           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON

                      FEBRUARY 1998 SESSION
                                                          FILED
                                                             April 29, 1998

STATE OF TENNESSEE,             )                         Cecil Crowson, Jr.
                                )                         Appellate C ourt Clerk
     Appellee,                  )   C.C.A. NO. 02C01-9703-CC-00095
                                )
V.                              )   MADISON COUNTY
                                )   (TRANSFERRED FROM HENDERSON
                                )    COUNTY)
JON DOUGLAS HALL,               )
                                )   HON. WHIT LAFON, JUDGE
     Appellant.                 )
                                )   (First-Degree Murder - Death Penalty)



FOR THE APPELLANT:                     FOR THE APPELLEE:

JESSE H. FORD, III                     JOHN KNOX WALKUP
CLAYTON F. MAYO                        Attorney General and Reporter
618 N. Highland
Jackson, TN 38301                      KENNETH W. RUCKER
                                       Asst. Attorney General
                                       425 Fifth Ave. N.
                                       Cordell Hull Bldg., 2nd Fl.
                                       Nashville, TN 37243-0493

                                       JAMES G. WOODALL
                                       District Attorney General

                                       ALFRED LYNN EARLS
                                       Asst. District Attorney General
                                       Lowell Thomas State Office Bldg.
                                       Jackson, TN 38301




OPINION FILED:_______________________________


AFFIRMED


JOHN H. PEAY,
Judge
                                      OPINION


              The defendant was indicted for the premeditated first-degree murder of his

estranged wife, Billie Jo Hall. Upon the defendant’s motion, the case was transferred

from Henderson County to Madison County. On February 5, 1997, the jury returned a

guilty verdict on the charge of first-degree murder. After a sentencing hearing held that

same day, the jury sentenced the defendant to death. The jury found that the murder

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

abuse beyond that necessary to produce death. T.C.A. § 39-13-204(i)(5). In this appeal

as of right, the defendant raises the following issues:

              I.     Sufficiency of the convicting evidence;

              II.    Exclusion of witness testimony;

              III.   Admission of photographs;

              IV.    Constitutionality of the aggravating circumstance;

              V.     Sufficiency of the aggravating evidence; and

              VI.    Appropriateness of the death penalty.

Following our review of the record in this matter, we affirm the defendant’s conviction and

sentence.



                                          FACTS

                                (Guilt/Innocence Phase)

              On the evening of July 29, 1994, the defendant went to the victim's house,

ostensibly to deliver a twenty-five dollar ($25.00) traveler's check. Although still married,

the defendant and the victim were no longer living together. When he arrived, the victim

was there with her four daughters, the youngest two of which were also the defendant's.

According to Stephanie Lambert, eight years old at the time of trial and one of the

defendant's daughters, the victim and one of the other children answered the defendant's

knock. Stephanie testified that her mother had “told [the defendant] not to hurt her, but

                                             2
then he pushed his way through.” The defendant then went into the kitchen and the

victim sat down in a chair. Stephanie testified, “She was sitting in the chair, then [the

defendant] told us to go to bed. We didn't go. Then he told us again. Then we didn't go.

So he told us again, and then he tipped my mama over in the chair.” Following this,

Stephanie testified, her mother and the defendant had gone into the victim's bedroom,

where she heard her mother yelling. Stephanie testified that she and her sisters had tried

to get into the bedroom but that the defendant “had the sewing machine by the door and

we couldn't get in.” The children eventually managed to get into the bedroom and

Stephanie testified that one of them had given the victim a rag. She further testified that

they had tried to stop the defendant from hurting their mother, and that she had heard the

defendant tell the victim that she would never live to graduate (the victim was apparently

taking classes in Jackson). The victim told the children to go up to a neighbor's house.

Stephanie testified that she and Cynthia had both gone to the household phone and tried

to use it, but that the defendant “had it where we couldn't use it.” Without having seen

her mother leave the bedroom, Stephanie and her older sister Cynthia left for the

neighbor’s.



              Cynthia Lambert, ten years old at the time of trial, also testified that the

defendant had “pushed his way in” the door of the house, and told the girls to go to bed.

She testified that the defendant had been drinking and that she had heard “[t]hings

slamming around” in her mother's bedroom and that she and her sister had tried to get

in there but, “It was hard . . . because there was stuff blocking the door.” Cynthia

succeeded in getting into her mother's room where she saw the victim and the defendant

“fighting.” She testified that she had “jumped on [the defendant's] back and bit him” in an

effort to stop the fight. She testified that she and Stephanie had tried to call 911 but that

“the phones were off the hook.” She further testified that the defendant had told them

that “if [they] went for help he was going to kill Mama.” In spite of the defendant's threat,

she testified, she and Stephanie went to a neighbor's house and called 911.

                                             3
              Jennifer Lambert, another of the victim's daughters and eleven years old

at the time of trial, testified that she had gotten into her mother's bedroom after the fight

started and that she had tried to stop it. She saw her mother leave the bedroom and go

outside; she testified that the defendant had followed her and “[d]ragged her to the pool.”

Her mother kicked and screamed while being dragged, according to Jennifer. She

testified further that the defendant had said he would kill her mother if anyone went for

help. After watching the defendant drag her mother to the pool, Jennifer went to the

neighbor's house, carrying her little sister with her.



              Chief Jerry Bingham of the Henderson County Sheriff’s Department was the

first officer to arrive at the scene of the crime around midnight. He was directed behind

the house where he found the body of the victim lying face down in a swimming pool.

Upon his discovery, Chief Bingham called EMS and the investigator.



              Agent Brian Byrd of the Tennessee Bureau of Investigation arrived on the

scene shortly after midnight. He found wet footprints on the carpet inside the house and

wet impressions on the wooden deck off the front porch leading to the driveway. Agent

Byrd testified that the master bedroom had been in disarray and appeared as if a struggle

had taken place. There did not appear to be any other signs of struggle elsewhere in the

house. A trail of skid or drag marks and blood stains led from the master bedroom, out

the front door, toward the driveway, and down to the pool in the back yard. There were

also two blood spots on the driveway, the furthest being approximately 106 feet from the

house. The pool was about eighty feet from the driveway. Agent Byrd found a number

of blood stains and spatters in various areas of the bedroom, including on the bed, a

counter top, and a wedding dress. He also observed a blood splotch outside the

bedroom in the foyer area.



              Agent Byrd noticed that the telephones inside the living room of the house

                                             4
were off their hooks. Also, the telephone junction box on the outside of the house was

opened and the phone line was disconnected. Agent Byrd testified that the grass and

weeds near this box had been matted down. Agent Byrd also found at the scene a

money order in the amount of twenty-five dollars ($25.00), dated the day of the murder,

made out to the victim from the defendant. No weapons were found and Agent Byrd

testified that fingerprints taken from the scene were never compared against the

defendant’s because he had believed they had enough evidence otherwise.



              Agent Byrd observed tire skid marks in the driveway leading in the direction

toward the road. He found two blood spots in the driveway, a spot near a sandbox in the

backyard, and two spots by the pool. Agent Byrd testified that the grass next to the pool

had been pulled out of the ground. Also, Agent Byrd testified that the ground from the

driveway to the pool was sparsely covered in grass and there had been disturbances in

the ground as if someone had been dragged and a struggle had occurred. The water in

the pool had a pinkish tint and there were clods of grass similar to that which was pulled

out of the ground next to the pool. The t-shirt, later identified as the one the victim was

wearing that evening, was found next to the pool.



              Agent Byrd testified that the defendant had become a suspect as the result

of his investigation. The defendant was arrested at his brother’s residence in Bell County,

Texas. It was later discovered that the defendant had taken the victim’s minivan and

driven it to Texas. Agent Byrd first encountered the defendant at the Justice Complex in

Bell County. Agent Byrd testified that the defendant had been calm but at one point had

started crying and seemed remorseful.



              Chris Dutton, a fellow inmate of the defendant’s at Riverbend Maximum

Security Institution, testified that he had been placed in a cell next to the defendant and

that he and the defendant had confided in one another. Dutton had not known the

                                            5
defendant before his imprisonment and testified that he had not initiated any

conversations concerning the defendant’s conviction or circumstances thereof.



              Dutton testified that the defendant had told him that he had contacted the

victim earlier in the day of the murder and made arrangements to take her money. When

he had arrived at the victim’s residence, he tried to talk to the victim about reconciliation,

but she was only interested in receiving the money. The victim had not wanted to talk to

the defendant and told him to leave. According to Dutton, the defendant had explained

that he lost his temper at this point and began striking the victim. Dutton testified that the

defendant had told him he “wanted to make her feel as he did. He wanted her to suffer

as he did, feel the helplessness that he was feeling because she took his world away

from him.”



              According to Dutton, the defendant had stated that the assault had started

in the house and continued into the yard. He told Dutton that he had hit the victim in the

head until he panicked and then threw her into the pool. He then went back into the

house, grabbed the victim’s van keys, and left. Dutton also testified that the defendant

had said that he had disconnected the telephone before entering the residence so the

victim could not call the police. Apparently, the defendant had disabled the phone on

several previous occasions because the victim had, at times, called the police. According

to Dutton, the defendant had been unarmed the day of the murder and had been at the

victim’s earlier in the week working on one of her cars.



              Dutton testified that the defendant had told him that he was drunk and

extremely depressed when he went to visit the victim that day. Dutton said the defendant

had been concerned about his children, especially his youngest, who had cerebral palsy,

and wanted to reconcile with the victim for their sake. Dutton received the impression

that the defendant had gone to the victim’s home to reconcile, and to “make her hurt the

                                              6
way she made him hurt” if she was not willing. Dutton did not believe the defendant went

to visit only for the purpose of giving the victim money.



              Dutton testified that he had mailed a letter to the Attorney General’s office

in Nashville a week or two upon hearing this information. The District Attorney informed

Dutton that he would speak on his behalf at his parole hearing when the time came. No

other promises or benefits were offered and Dutton testified that he was not motivated

to talk by the return of favorable treatment.



              Dr. O’Brien Clary Smith performed the autopsy on the victim. The victim

was 5'4" tall and weighed 122 pounds and had suffered a fractured nose and numerous

contusions, abrasions, and lacerations. Dr. Smith determined that the primary cause of

death was asphyxia resulting from manual strangulation and drowning. However, Dr.

Smith could not determine whether the strangulation or drowning was the exclusive cause

of death. Water was found in the victim's stomach and her blood stream, both of which

indicated that she may have drowned. In conjunction with the strangulation, Dr. Smith

found bruises on the left and right sides of the victim’s neck and hemorrhaging about the

neck muscles around the hyoid bone in the neck. Also, the thyroid gland had bleeding

on the left side which indicated extensive compression to the neck.



              According to Dr. Smith, all of the associated injuries, the blunt trauma or

blows to the head, multiple skin tears, bruises and scrapes to the chest, abdomen,

genitals, extremities, arms, legs, and back, had occurred during life. The approximately

eighty-three areas of separate wounds to the body indicated that the victim had received

an extensive and painful beating, but Dr. Smith stated that none of these associated

wounds were sufficient in and of themselves to cause death. The abrasions on the

victim’s back were consistent with being dragged on pavement. Moreover, the wounds

to the neck, face and head were target or aggressive wounds and could have been

                                            7
caused by anger. Dr. Smith also found defensive wounds on the forearms, the back of

the hands, and the front of the thighs, knees and shins. All of the injuries occurred within

several minutes to two hours before death and Dr. Smith, therefore, was unable to

determine a sequence of the wounds.



              The defendant called his sister, Cheryl Arbogast, to testify on his behalf.

Arbogast had not spoken to her brother for several months prior to the murder. The

substance of her testimony, elicited during an offer of proof, was based upon statements

concerning the defendant which her other brother, now deceased, had made to her.

Arbogast was in Cincinnati the night of the murder, but stated she had been trying to

arrange psychiatric counseling for the defendant on an urgent basis because her other

brother had conveyed to her that the defendant was crying and was very distraught.

Arbogast had attempted to contact the defendant the night of the murder but had been

unable to reach him. Arbogast testified that the defendant had been upset about his

brother’s impending death, his divorce and losing his children. Arbogast stated that she

had never attempted to commit the defendant prior to the night of the murder. The trial

court did not allow the jury to hear her testimony.



              The defendant also called Dr. Lynn Donna Zager, a clinical psychologist.

Dr. Zager’s evaluation of the defendant was based upon the three interviews she

conducted and the information she received from the prison and the Middle Tennessee

Mental Health Institute where the defendant spent a month. She concluded that the

defendant suffered from depression and alcohol dependence. The depression was more

acute prior to the murder. Dr. Zager also observed some personality disorders such as

paranoia. Dr. Zager testified that at the time of the murder the defendant had been

suffering from depression and was intoxicated. She also stated that he had been under

stress due to his youngest daughter’s medical condition (cerebral palsy), his loss of

employment, his wife’s job loss, financial problems, and his brother who was dying. In

                                             8
her opinion, the defendant had acted in an impulsive manner rather than pursuant to a

well-thought-out plan. Dr. Zager testified that she had interviewed people with whom the

defendant spent the day of the murder who stated the defendant had been drinking beer.

However, no one that she interviewed remarked about slurred speech or any other signs

of intoxication.



              Randy Helms was the last witness called by the defendant during the guilt

phase of the trial. Helms owned a motor company in Lexington, Tennessee, and

employed the defendant from 1993 to June 1994. The defendant stopped by Helms’

workplace two days before the murder to inform Helms that he had obtained a new job.

Helms testified that the defendant had seemed severely depressed and suspected that

family problems were the cause.



                                   (Sentencing Phase)

              The State called Dr. Smith as its only witness during the sentencing phase.

Dr. Smith identified autopsy photos which depicted the approximately eighty-three injuries

sustained, not including the internal injuries caused by the strangulation. The photos

depicted areas where multiple blows had caused bruises to become confluent so as to

be indistinguishable. Dr. Smith stated that the scrapes on the back of the shoulders,

parallel line scrapes in the middle and lower portion of the back, and the scrapes on the

elbows and legs were consistent with being dragged or moved across pavement or a

similar hard surface. The wound about the left breast was consistent with the knuckle

pattern of the fist. One injury to the forehead was indicative of a pipe-like object. The

triangular bruises to the forehead were consistent with an object of that shape. The other

injuries reflected no specific characteristic pattern of an instrument but were blunt trauma

injuries consistent with a blunt force. Dr. Smith testified that the head injuries could have

been caused by hitting the head against the ground or being pulled by the hair across the

ground. According to Dr. Smith, the concentration of the injuries to the head, face and

                                             9
neck, which were intentional and focused, indicated the infliction of torture.



              The defendant called Dr. Zager again during the sentencing phase. Dr.

Zager testified that several factors had had an impact on the defendant’s development,

including his status as youngest child, his father's alcoholism, his father's denial of him

as his son, and his witnessing spousal abuse between his parents. According to Dr.

Zager, the defendant had not had good role models during his youth. Dr. Zager testified

that the defendant’s alcohol dependency had led to problems with his employment and

in his relationships with others. Moreover, the defendant’s judgment was compromised

when he was intoxicated. Dr. Zager stated that the domestic problems experienced by

the defendant at the time of the murder had had an effect on his mental condition. Dr.

Zager further testified that the defendant suffers from depression and had thoughts of

suicide. She said the defendant was remorseful for what had happened and that his

children meant everything to him.



              Dr. Joe Mount, a psychological examiner at Riverbend Maximum Security

Institution, also testified on behalf of the defendant. At the defendant's request, Dr.

Mount had had six to eight formal counseling sessions with the defendant and numerous

other informal cell visits. Dr. Mount testified that the defendant had been extremely

distraught and depressed about the circumstances surrounding his case. Dr. Mount also

testified that the defendant had expressed extreme remorse and appeared very sincere

in his expression. The defendant entertained suicidal thoughts in the fall of 1994 and was

diagnosed with an adjustment disorder with mixed emotional features like depression and

anxiety. Dr. Mount also stated that the defendant had been prescribed anti-depressant

medication while in prison and seemed to show some improvement over time. Finally,

Dr. Mount testified that the defendant was concerned about his children, especially the

one suffering from cerebral palsy.




                                            10
              Randy Helms also testified again during the sentencing phase. Helms

stated that he had known the defendant for about two years. The defendant had

approached Helms about a job so that he could support his wife and children. Although

Helms did not really have a position available, he stated he had hired the defendant

because of his situation. Helms testified that the defendant had performed well, was

dependable, worked overtime, and never caused any problems.              Helms saw the

defendant with his children two or three times and he testified that the defendant had

seemed to take excellent care of them. Helms considered the defendant and his wife

friends of his and even talked to the defendant about his domestic problems. Although

the defendant left his employment with Helms voluntarily, Helms stated that he had

noticed the defendant’s domestic problems were starting to affect his work. Helms told

the jury that he believes the defendant’s life has value.



              Three of the defendant’s sisters testified on his behalf. Debbie Davis

testified that their parents had fought all the time and that the children would hide any

weapons so their parents would not kill each other. According to Davis, their parents had

seemed to enjoy fighting because they never left each other alone. She remembered

one occasion when their father hit their mother and banged her head on the floor to the

point her nose and ears bled. Davis said the defendant, although very young, had hit

their father with a fly swatter and tried to make him stop hitting their mother. Their

parents separated for a while but eventually got back together. Davis testified that their

father had denied the defendant was his son. Their father ultimately died and their

mother remarried another man who also was abusive to the defendant. Davis stated the

defendant had not had any good role models. The defendant lived with her and her

husband for a while, but he moved away after less than a year. Davis testified that the

defendant was a “wonderful” father and loved his children.



              Kathy Hugo, the defendant’s oldest sister, also testified about the violence

                                           11
between their parents. She stated that their mother’s second husband had been abusive

to their mother and did not seem to like the children. Cheryl Arbogast also testified for

the defendant, commenting on the terrible violence between their parents.



              Carol Alexander, the defendant’s mother, testified that the defendant’s

father had drunk a lot and abused her. She stated that her children had had to call the

police on several occasions. She further testified she was surprised that her son took

such good care of his children and how attentive he was toward them, especially given

his father’s character.



                                       ANALYSIS

                             I. Sufficiency of the Evidence

              In his first issue, the defendant challenges the sufficiency of the convicting

evidence. In part, the defendant contends that evidence of his intoxication at the time of

the murder negated his capacity to form the requisite mens rea for premeditated and

deliberate murder. The defendant also claims that there was insufficient time for him to

form the requisite intent to commit the murder because the passion and anger he

possessed during his fight with the victim had not subsided when he killed her.



              A guilty verdict by the jury, approved by the trial court, accredits the

testimony of the witnesses for the State and resolves all conflicts in favor of the State's

theory. State v. Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978); State v. Grace, 493

S.W.2d 474, 476 (Tenn. 1973). On appeal, "the State is entitled to the strongest

legitimate view of the trial evidence and all reasonable or legitimate inferences which may

be drawn therefrom." State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). This Court

does not reweigh or reevaluate the evidence. Id. The jury's verdict, therefore, will only

be disturbed if, after a consideration of the evidence in the light most favorable to the

State, a rational trier of fact could not have found the essential elements of the crime

                                            12
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v.

Williams, 657 S.W.2d 405, 410 (Tenn. 1983); T.R.A.P. 13(e).



             A criminal offense may be proven through direct evidence, circumstantial

evidence, or a combination of the two. State v. Tharpe, 726 S.W.2d 896, 899-900 (Tenn.

1987). See also State v. Brown, 836 S.W.2d 530, 541 (Tenn. 1992)(“the cases have long

recognized that the necessary elements of first-degree murder may be shown by

circumstantial evidence”). Before the defendant may be convicted of a criminal offense

based upon circumstantial evidence alone, the facts and circumstances "must be so

strong and cogent as to exclude every other reasonable hypothesis save the guilt of the

defendant, and that beyond a reasonable doubt." State v. Crawford, 470 S.W.2d 610,

612 (Tenn. 1971). "A web of guilt must be woven around the defendant from which he

cannot escape and from which facts and circumstances the jury could draw no other

reasonable inference save the guilt of the defendant beyond a reasonable doubt." Id. at

613.



             At the time of this offense, first-degree murder was defined as "[a]n

intentional, premeditated and deliberate killing of another." T.C.A. § 39-13-202(a)(1)

(Supp. 1994). Once a homicide has been proven, it is presumed to be a second-degree

murder and the State has the burden of establishing premeditation and deliberation.

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



             Intentional is defined as "the conscious objective or desire to engage in the

conduct or cause the result."     T.C.A. § 39-11-106(a)(18) (1991).        Premeditation

necessitates "the exercise of reflection and judgment," T.C.A. § 39-13-201(b)(2) (1991),

requiring "a previously formed design or intent to kill." State v. West, 844 S.W.2d 144,

147 (Tenn. 1992). A deliberate act is performed with a "cool purpose," "without passion

or provocation." T.C.A. § 39-13-201(b)(1) and comments. "While it remains true that no

                                          13
specific length of time is required for the formation of a cool, dispassionate intent to kill,

Brown requires more than a 'split-second' of reflection in order to satisfy the elements of

premeditation and deliberation." West, 844 S.W.2d at 147. Accordingly, before a jury

can convict the defendant of first-degree murder, it must find that the defendant

consciously engaged in the conduct to cause the death, and killed "upon reflection,

'without passion or provocation,' and otherwise free from the influence of excitement."

State v. Gentry, 881 S.W.2d 1, 4 (Tenn. Crim. App. 1993). See State v. Brooks, 880

S.W.2d 390, 392 (Tenn. Crim. App. 1993) ("the jury must find that the defendant formed

the intent to kill prior to the killing, i.e., premeditation, and that the defendant killed with

coolness and reflection, i.e., deliberation"); State v. Bordis, 905 S.W.2d 214, 221-22

(Tenn. Crim. App. 1995).



               The elements of premeditation and deliberation are questions for the jury

and may be inferred from the circumstances surrounding the killing. Gentry, 881 S.W.2d

at 3; Taylor v. State, 506 S.W.2d 175, 178 (Tenn. Crim. App. 1973). The Supreme Court

has delineated several relevant circumstances which 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, and

the making of preparations before the killing for the purpose of concealing the crime.

State v. Brown, 836 S.W.2d 530, 541-42 (Tenn. 1992). This Court has also recently

noted several factors from which the jury may infer the two elements: facts about what

the defendant did prior to the killing which would show planning; facts about the

defendant's prior relationship with the victim from which motive may be inferred; and facts

about the nature of the killing. State v. Bordis, 905 S.W.2d 214, 222 (Tenn. Crim. App.

1995) citing 2 W. LaFave and A. Scott, Jr., Substantive Criminal Law § 7.7 (1986).



               The evidence in the present case, when viewed in the light most favorable

to the State, as this Court is required to do on appeal, demonstrates that the defendant

                                              14
contacted the victim earlier in the day of the murder to arrange a meeting. According to

the defendant’s prisonmate, with whom the defendant had confided about the

circumstances surrounding the killing, the defendant went to the victim’s house with the

intent to reconcile their marriage. In fact, the defendant brought a money order to the

victim’s residence, perhaps as a sign of reconciliation. However, the defendant had also

indicated that if the victim was unwilling to reconcile, he intended to “make her hurt the

way she made him hurt.”



              Prior to knocking on the victim’s front door, the defendant disconnected the

telephone lines on the outside of the house. The defendant wanted to prevent the victim

from calling the police for help, which the victim had apparently done or attempted to do

on previous occasions. The defendant forced his way inside the residence and told his

children several times to go to bed. The victim was apparently unwilling to reconcile and

a fight ensued between the two in the victim’s bedroom, where the defendant proceeded

to block the bedroom door in order to prevent the children, or anyone else for that matter,

from entering the room. Upon hearing the physical fight occurring in the bedroom, the

children managed to enter the room and saw the defendant beating the victim. One of

the defendant’s children jumped on his back and bit him in an attempt to stop him from

hitting the victim. At some point during the altercation, the defendant told his children that

he would kill their mother if they went for help.



              The fight between the defendant and victim continued outside the house,

where the evidence showed that the defendant dragged the victim across the driveway

and down to the back of the house. One of the children testified that the victim had been

kicking and screaming as the defendant dragged her across the ground. The victim’s

body was found floating in a swimming pool in the backyard. The victim sustained

approximately eighty-three separate wounds, including manual strangulation of the neck.

Expert testimony revealed that the wounds to the face, neck and head were target

                                             15
wounds, meaning that they had been inflicted intentionally. After throwing the victim into

the pool, the defendant went back inside the house, grabbed the keys to the victim’s

minivan, and sped out of the driveway. The defendant fled to his brother’s place in

Texas, where he was later apprehended by the authorities.



                Given the circumstances surrounding this crime, the jury could reasonably

have found that the killing was premeditated and deliberate:

                ‘Premeditation’ is the process simply of thinking about a
                proposed killing before engaging in the homicidal conduct;
                and ‘deliberation’ is the process of carefully weighing such
                matters as the wisdom of going ahead with the proposed
                killing, the manner in which the killing will be accomplished,
                and the consequences which may be visited upon the killer
                if and when apprehended. ‘Deliberation’ is present if the
                thinking, i.e., the ‘premeditation,’ is being done in such a cool
                mental state, under such circumstances, and for such a
                period of time as to permit a ‘careful weighing’ of the
                proposed decision.

State v. Brown, 836 S.W.2d 530, 540-41 (Tenn. 1992) quoting C. Torcia, Wharton’s

Criminal Law § 140 (14th ed. 1979) (emphasis deleted).



                The defendant contends that he did not have time to deliberate because he

killed the victim during the fight. The defendant argues that his passion1 from the fight

trumped any cool purpose or reflection. What the defendant fails to realize, however, is

that the evidence amply demonstrates that he had had plenty of time in which to coolly

reflect upon his intentions before he even arrived at the victim’s home. The defendant

told a fellow inmate that he had thought about his meeting with the victim earlier in the

day; he even obtained a money order to take to her. He knew he was going to see her

that night. The defendant wanted to settle his differences with the victim, but also wanted

to hurt her if she was unwilling to talk. Thus, the defendant made his plans earlier in the

day and therefore had more than just a few moments to think about what he was going


        1
          “ <Passion' ” has been defined as <[a]ny of the emotions of the mind [reflecting] anger, rage,
sudden resentm ent, or terror, rendering the mind incapable of cool reflection.' ” State v. Brown, 836
S.W .2d 530, 543 n.10 (Tenn. 199 2) (citations omitted).

                                                    16
to do. Even the time following his disconnection of the phone until he knocked on the

front door would be a legally sufficient amount of time in which to plan and ponder the

murder.



              The fact that a fight ensued upon the defendant’s arrival does not discount

the existence of premeditation and deliberation. The defendant had hoped to work things

out with his wife, but he was also prepared to inflict pain upon her if she resisted

reconciliation. The defendant suspected a confrontation could occur. As he had done

before, he disconnected the telephone line prior to entering the house. Moreover, once

inside and realizing the victim did not want to talk, in an apparent move to avoid any

interference, the defendant told his children to go to bed and blocked the victim’s

bedroom door. Although the defendant may have been “passionate” during the fight with

the victim, which is only natural, the defendant expected this to occur prior to his arrival.




              This Court has previously noted that in circumstances where the intent to

kill is formed during a deadly struggle, the crime could still rise to the level of first-degree

murder if the State proved that premeditation and deliberation preceded the struggle.

State v. Edwin Jesperson, No. 03C01-9206-CR-00212, Monroe County (Tenn. Crim. App.

filed Aug. 11, 1993, at Knoxville). “Also, if the intent to kill was formed as a result of

premeditation and deliberation prior to the crime, it is immaterial that the act was carried

out in a state of passion.” Id.       In Jesperson, the defendant became enraged and

attempted to kill his wife upon arriving at her residence and finding another man there

(who had been watching a movie with her). Although the defendant appeared to be in

a state of passion at the time of the killing, the jury determined that premeditation and

deliberation were established prior to the defendant’s arrival. The facts of the case at

hand are somewhat similar to Jesperson. Interestingly though, none of the defendant’s

children in the present case testified about the defendant’s demeanor the night of the

                                              17
murder. They testified that the defendant and the victim had been “yelling” and “fighting,”

and that the victim had been kicking and screaming at times. However, they never

mentioned whether or not the defendant had seemed angry or in a rage. The only

evidence of the defendant’s demeanor was the statement he made to his prisonmate that

he had lost his temper when the victim refused to attempt a reconciliation.



              The evidence in the record fully supports the conclusion that the defendant

had had more than enough time to premeditate and deliberate the consequences of his

actions before he engaged in the fight with the victim. The evidence presented to the jury

contains several of the above-listed circumstances which support a finding of

premeditation and deliberation. See,e.g., State v. Bullington, 532 S.W.2d 556, 560

(Tenn. 1976) (premeditation may be proven by showing past hard feelings between the

defendant and victim). There was evidence of planning exhibited by the fact that the

defendant disconnected the telephone line before entering the residence. The defendant

also indicated his intent to kill the victim to his children, and even informed a fellow inmate

afterwards that he had intended to hurt the victim. In addition, the killing of the victim in

this case was particularly cruel in that it was accomplished through a severe beating,

strangulation and drowning. The jury was justified in concluding that the evidence failed

to show that the defendant’s “reason [had been] dethroned by anger or any other

‘passion.’ ” Id.



              The defendant also contends that his alleged intoxication prevented him

from carrying out an intentional murder. T.C.A. § 39-11-503(a) recognizes that voluntary

intoxication is not a defense to prosecution for an offense, however, evidence of such

may be admitted to negate a culpable mental state. 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).      In this case, the trial court allowed into evidence statements

concerning the defendant’s alleged intoxication at the time of the offense. Accordingly,

                                              18
the only issue before this Court is whether the evidence of intoxication was such that a

reasonable jury could not have found anything but that the defendant was unable to form

the requisite mens rea. Or, as this Court stated in Harrell v. State, 593 S.W.2d 664, 672

(Tenn. Crim. App. 1979), “[t]he determinative question is not whether the accused was

intoxicated, but what was his mental capacity.”



                In the present case, the only evidence of the defendant’s intoxication were

his own statements made to his prisonmate and Dr. Zager. Dr. Zager testified that the

defendant’s statement conveying his intoxication, taken in conjunction with his history of

alcohol abuse and the stress from his domestic problems, led her to believe that the

defendant had been acting in an impulsive manner rather than from a well-thought-out

plan. Although one of the defendant’s daughters testified that the defendant had been

drinking beer, there was nothing else to indicate the defendant was actually intoxicated.2

Of course, as discussed above, there was other evidence establishing the presence of

the required mental state. The defendant was not so intoxicated that he could not drive

to the victim’s residence, disconnect the telephone line prior to entering the house,

barricade the bedroom door, drag the victim down to the pool in the backyard, and return

inside the house to grab the victim’s car keys. See State v. Joseph Troy Manuel, No.

02C01-9301-CC-00007, Benton County (Tenn. Crim. App. filed Sept. 29, 1993, at

Jackson) (fact that defendant took victim’s truck keys after killing, in part, rebutted

defendant’s assertion that he was too intoxicated to form the requisite mens rea).



                The weight and credibility of the witnesses' testimony are matters entrusted

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). Moreover, this

Court has observed that passion and intoxication are valuable to the defense only if they

        2
          Dr. Zager also testified that some persons who had spent time with the defendant on the day of
the murder had told her that he had been drinking that day. Their statements, however, had not included
other information which would indicate that the defendant had thereby become intoxicated.

                                                  19
are of such a degree that they negate premeditation and deliberation. Wendall Ray

Witherspoon v. State, No. 01C01-9204-CC-00137, Maury County (Tenn. Crim. App. filed

Mar. 18, 1993, at Nashville) (finding of mental state supported by fact that defendant

stated his intent to kill victim and attempted to remove children from scene so they did not

witness attack). The jury obviously decided not to believe the defendant’s own accounts

of his intoxication and anger (or other passion) in light of the other evidence establishing

premeditation and deliberation, and this Court should not interfere with that determination

in this case.



                This issue is without merit.



                                 II. Exclusion of Testimony

                Next, the defendant argues that the trial court erroneously excluded

Arbogast’s testimony during the guilt phase of the trial. The defendant contends her

testimony was relevant to establish his state of mind on the night of the murder and

should have been admitted to negate the existence of the requisite intent. The State

argues that the trial court properly excluded her testimony.



                Upon the prosecution’s objection, the trial court heard an offer of proof from

the defense prior to the questioning of this witness in front of the jury. Arbogast stated

that she had not personally spoken with the defendant for several months prior to the

murder. All of her testimony was based upon information she had obtained from her

other brother, who was deceased at the time of trial. Arbogast, who was in Cincinnati the

night of the murder, stated that her deceased brother had told her the defendant had

been crying and seemed distraught earlier in the evening of the murder. The trial court,

based on this information, held Arbogast’s testimony inadmissible.



                The admissibility of evidence is within the sound discretion of the trial court,

                                               20
and this Court will not interfere with that discretion absent a clear showing of abuse. See

State v. Howard, 926 S.W.2d 579, 585 (Tenn. Crim. App. 1996). In addition, our rules

of evidence provide that a “witness may not testify to a matter unless evidence is

introduced sufficient to support a finding that the witness has personal knowledge of the

matter.” Tenn. R. Evid. 602. It was clear from Arbogast’s statements that she had not

talked with or seen the defendant for several months prior to the crime. Obviously, she

was in no position to comment on his condition the night of the murder. Her testimony

was based upon statements made to her by her deceased brother which were being

offered to prove the truth of the matter asserted, i.e., that the defendant was crying and

distraught prior to the murder. Her testimony, therefore, was based on hearsay. Tenn.

R. Evid. 801(c).



                 The defendant seems to suggest that the evidence falls within the state of

mind exception to the hearsay rule. See Tenn. R. Evid. 803(3).3 However, as the

Advisory Commission Comments note, Rule 803(3) contemplates that only the

declarant’s (the deceased brother’s) state of mind or condition, not some third party’s (the

defendant’s), is provable by this hearsay exception. See also State v. Hutchison, 898

S.W.2d 161, 171 (Tenn. 1994); State v. John David Rankin, Jr., No. 03C01-9511-CC-

00369, Sullivan County (Tenn. Crim. App. filed Aug. 18, 1996, at Knoxville) (at note 2).

The defense was attempting to prove the defendant’s state of mind through the statement

of an out-of-court witness. Rule 803(3) does not encompass this. Accordingly, the trial

court properly excluded this evidence from the jury. This issue is without merit.



                                  III. Admission of Photographs

                 The defendant also contends that the trial court erroneously admitted



        3
           “A statement of the declarant’s then existing state of mind, emotion, sensation, or physical
condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including
a statement of memory or belief to prove the fact remembered or believed unless it relates to the
execu tion, revoc ation, identifica tion, or term s of dec larant’s will.”

                                                     21
autopsy photographs of the victim into evidence during the penalty phase of the trial. The

defendant argues that the photos were “shocking and horrifying” and had a “designed

effect” upon the jury. The State asserts that the photos were relevant to prove the

existence of the aggravating circumstance and to assist the jury in understanding the

expert testimony. According to the State, the probative value of the evidence was not

substantially outweighed by any unfair prejudicial effect.



              The admissibility of relevant photographs of the victim is within the sound

discretion of the trial judge, and his or her ruling on admissibility will not be disturbed on

appeal absent a clear showing of an abuse of that discretion. State v. Banks, 564

S.W.2d 947, 949 (Tenn. 1978). See also, State v. Bigbee, 885 S.W.2d 797, 807 (Tenn.

1994); State v. Van Tran, 864 S.W.2d 465, 477 (Tenn. 1993). Moreover, the modern

trend is to vest more discretion in the trial judge's rulings on admissibility. See Banks,

564 S.W.2d at 949; State v. Michael Carlton Bailey, No. 01C01-9403-CC-00105, Dickson

County (Tenn. Crim. App. filed July 20, 1995, at Nashville).



              Evidence is relevant if it has "any tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence." Tenn. R. Evid. 401. However, relevant

evidence "may be excluded if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury." Tenn. R. Evid.

403. Of course, simply because evidence is prejudicial does not mean the evidence must

be excluded as a matter of law. See State v. Gentry, 881 S.W.2d 1, 6 (Tenn. Crim. App.

1993).   The Court must still determine the relevance of each photograph to the

sentencing issue and weigh its probative value against any undue prejudice.



              The photographs at issue here depicted the body of the victim during the

autopsy exam. Some of the photos showed close-ups of the external wounds sustained

                                             22
by the victim. None of the pictures depicted the surgical examination of the body. The

State sought to establish that the murder was especially heinous, atrocious, or cruel in

that it involved torture or serious physical abuse beyond that necessary to produce death.

T.C.A. § 39-13-204(i)(5). The medical examiner testified that several of the wounds were

target wounds and represented the intentional infliction of torture. The photographs in

this respect, as the State notes, assisted the jury in viewing the result of the alleged

tortuous activity. And although the wounds are somewhat gruesome, the depiction of

them was relevant in proving the aggravating circumstance. Their probative value

appears to clearly outweigh any undue prejudicial effect. This issue is without merit.



               IV. Constitutionality of the Aggravating Circumstance

              The defendant argues that the language of T.C.A. § 39-13-204(i)(5) (Supp.

1994) is unconstitutionally vague. In his brief, the defendant relies upon Rickman v.

Dutton, 854 F. Supp. 1305 (M.D. Tenn. 1994), a federal district court opinion interpreting

the language of the pre-1989 aggravating circumstance. The defendant in this case was

sentenced under the new language of this aggravator. The Rickman opinion, therefore,

is inapplicable here. Moreover, our Supreme Court has recently found the language of

this aggravating circumstance constitutionally sufficient to narrow the class of offenders

eligible for the death penalty. State v. Odom, 928 S.W.2d 18, 26 (Tenn. 1996). The jury

was properly instructed according to the wording of the statute and the definitions

provided in State v. Williams, 690 S.W.2d 517, 529 (Tenn. 1985) and Odom, 928 S.W.2d

at 26. Thus, there is no error.



                     V. Sufficiency of the Aggravating Evidence

              Next, the defendant contends that the evidence was insufficient to support

the jury’s finding of the especially heinous, atrocious or cruel aggravating circumstance.

Specifically, the defendant claims that the State did not prove beyond a reasonable doubt

that he tortured the victim prior to her death.

                                            23
              T.C.A. § 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.” “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. Williams, 690 S.W.2d 517, 529 (Tenn. 1985), whereas “serious 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.’ ” State v. Odom, 928 S.W.2d 18, 26 (Tenn. 1996) quoting Black’s Law Dictionary

11 (6th ed. 1990).



              As noted above, the jury’s verdict, approved by the trial court, accredits the

testimony of the witnesses for the State and resolves all conflicts in favor of the State's

theory. State v. Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978); State v. Grace, 493

S.W.2d 474, 476 (Tenn. 1973). On appeal, "the State is entitled to the strongest

legitimate view of the trial evidence and all reasonable or legitimate inferences which may

be drawn therefrom." State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). This Court

does not reweigh or re-evaluate the evidence. Id. The jury's verdict, therefore, will only

be disturbed if, after a consideration of the evidence in the light most favorable to the

State, a rational trier of fact could not have found the existence of the aggravating

circumstance beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 309 (1979);

State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).



              The evidence presented clearly supports the jury’s finding of the

aggravating circumstance in this case. Death resulted from a combination of manual

strangulation and drowning. Prior to her death, however, the victim received a very

extensive and painful beating. There were approximately eighty-three separate wounds

                                             24
found on the victim’s body, not including the internal injuries associated with the

strangulation. The concentration of wounds to the face, neck, and head, classified as

target wounds, had been intentionally inflicted and represent the presence of torture. The

victim was dragged across the pavement and ground and sustained extensive scrapes

on her back, arms and legs. Some of the victim’s hair was pulled from her head and her

nose was fractured. Also, numerous defensive wounds were found on her arms and legs.

The medical examiner testified that the injuries had been inflicted within two hours prior

to death and that the victim had been alive and conscious during the entire attack.

Evidence demonstrated that the beating started in the victim’s bedroom and continued

along the outside of the house and into the back yard where the victim was manually

strangled and thrown into a swimming pool to drown.



              Apart from the physical abuse sustained in the presence of the children, the

evidence also supports the presence of mental abuse. During the beating in the

bedroom, the defendant told the children he would kill their mother if they called for help.

Not only did the victim possibly fear for the safety of her children, she had to endure,

during the period before her death, the thought that the defendant did in fact intend to kill

her. Moreover, water was found in the victim’s stomach and lungs, which, according to

the medical examiner, indicated that the victim had been alive while lying face down in

the pool. The evidence in this case seems to overwhelmingly prove beyond a reasonable

doubt that the victim was tortured.



              This issue is without merit.



                       VI. Appropriateness of the Death Penalty

              Finally, the defendant appears to be reasserting his position that the

evidence in this case supports at most a conviction for second-degree murder. The

defendant, citing State v. Thornton, 730 S.W.2d 309 (Tenn. 1987), seems to suggest that

                                             25
the conviction and sentence here should be reversed because domestic homicides rarely

are committed in the absence of passion. The State notes, however, that this case did

not involve the “typical” domestic dispute. At the time of the murder, the couple was

separated and they were not living together. Moreover, contrary to the authority cited by

the defendant, there was no evidence in this case that the defendant had been reacting

to an illicit sexual affair in which the victim was involved. The State argues that the

defendant planned to kill his wife and the fact that the victim was his wife does not, in and

of itself, discount the existence of premeditation and deliberation. As noted above, the

evidence in this case clearly supports the conviction and sentence. Accordingly, the

defendant’s reliance solely upon the relationship between him and the victim is without

merit. See, e.g., State v. Cooper, 718 S.W.2d 256 (Tenn. 1986).



                After a thorough review of the issues and the record before the Court as

mandated by T.C.A. §§ 39-13-206(b), and (c), and for the reasons stated herein, we find

that the defendant's conviction and sentence of death should be affirmed. The sentence

of death was not imposed in an arbitrary fashion, the evidence supports the jury's finding

of the aggravating circumstance, and the evidence supports the jury's finding that the

aggravating circumstance outweighs any mitigating circumstances.4                      Moreover, a

comparative proportionality review, considering both the circumstances of the crime and

the nature of the defendant, affirms that the sentence of death is neither excessive nor

disproportionate to the penalty imposed in similar cases. See, e.g., State v. Bland, __

S.W.2d __ (Tenn. 1997) (and cases cited therein); State v. Mann, __ S.W.2d __ (Tenn.

1997) (and cases cited therein); State v. Poe, 755 S.W.2d 41 (Tenn. 1988) (victim

suffered severe beating and was strangled); and State v. O’Guinn, 709 S.W.2d 561

(Tenn. 1986) (victim suffered severe beating and was strangled).



        4
          During sentencing, the defendant introduced evidence relating to his substance abuse,
depression, and suicidal thoughts. He also demonstrated that he was raised by an abusive father who
would not acknowledge that the defendant was his son. The defendant’s sister and mother testified that
the defendant was a good father and cared for his children.

                                                 26
          The conviction and sentence are hereby affirmed.



                                          ______________________________
                                          JOHN H. PEAY, Judge



CONCUR:



______________________________
JOE B. JONES, Presiding Judge



______________________________
THOMAS T. W OODALL, Judge




                                     27
