           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE           FILED
                         APRIL 1997 SESSION
                                                    October 3, 1997

STATE OF TENNESSEE,             )                 Cecil Crowson, Jr.
                                      C.C.A. No. 03C01-9512-CC-00383
                                                   Appellate C ourt Clerk
                                )
            Appellee,           )     HAMBLEN COUNTY
                                )
VS.                             )     HON. LYNN W. BROWN, JUDGE
                                )
LEONARD EDWARD SMITH,           )     (Death Penalty)
                                )
            Appellant.          )


FOR THE APPELLANT:                    FOR THE APPELLEE:

J. ROBERT BOATRIGHT                   JOHN KNOX WALKUP
150 Commerce Street                   Attorney General and Reporter
Kingsport, TN 37660

LARRY S. WEDDINGTON                   AMY L. TARKINGTON
200 Seventh Street                    Assistant Attorney General
Bristol, TN 37620                     450 James Robertson Parkway
                                      Nashville, TN 37243-0493

                                      H. GREELY WELLS, JR.
                                      District Attorney General
                                      P. O. Box 526
                                      Blountville, TN 37617-0526




OPINION FILED:



AFFIRMED


JOE G. RILEY,
JUDGE




                            OPINION
      This is the third trial in which the defendant, Leonard Edward Smith, was

sentenced for the felony murder of Novella Webb.         On each occasion he was

sentenced to death by electrocution. The guilt of the defendant having been previously

affirmed on direct appeal, the present appeal resulted solely from the re-sentencing

hearing.   Finding as an aggravating circumstance that the defendant had been

previously convicted of one (1) or more felonies, other than the present charge, which

involved the use or threat of violence to the person, the jury again imposed the death

penalty. Defendant presents the following issues for our review:

             (1) whether the trial court erred by not allowing the defendant
                 to establish selective prosecution by the district attorney
                 general in death penalty cases;

             (2) whether the trial judge erred by not recusing himself;

             (3) whether the trial court erred by denying the defendant
                 the services of a jury selection expert;

             (4) whether the trial court committed errors with regard to
                 the jury selection process;

             (5) whether the trial court erred in honoring the defendant’s
                 request not to present further mitigating evidence;

             (6) whether the trial court erred in allowing the introduction
                 of the judgment of conviction for the present offense;

             (7) whether the trial court erred with regard to the introduction
                 of evidence of prior violent felonies of which the defendant
                 had been convicted;

             (8) whether the trial court erred in allowing the introduction
                 of victim impact evidence;

             (9) whether the state engaged in prosecutorial misconduct;

            (10) whether the trial court committed errors with regard to the
                 jury instructions;

            (11) whether the trial court erred in allowing the jurors
                 to take exhibits to the jury room during deliberations;

            (12) whether the trial court erred in declaring the death penalty
                 statutes constitutional; and


            (13) whether imposition of the death penalty was excessive and
                 disproportionate to the penalty imposed in similar cases.

Finding no reversible error, we AFFIRM the sentence of death.


                                          2
                                    CASE HISTORY



         Defendant was originally charged with the murder of John Pierce and Novella

Webb, both of whom were killed in Sullivan County. Venue was changed to Hamblen

County at defendant’s request, and he was convicted on two (2) counts of felony

murder. At the conclusion of all the proof in the first trial, the state withdrew the death

penalty request for the murder of Pierce, whereupon defendant received a life

sentence for this homicide. He was then sentenced to death for the murder of Webb.

On his first direct appeal, the Tennessee Supreme Court affirmed the conviction and

the life sentence for the murder of Pierce but reversed the conviction for the murder

of Webb. Finding an improper joinder of offenses as well as prosecutorial misconduct

during final argument, the Court reversed and remanded for a new trial. See State v.

Smith, 755 S.W.2d 757 (Tenn. 1988) (hereinafter “Smith I”).

         Defendant was re-tried and convicted for the felony murder of Webb and again

sentenced to death by electrocution. On direct appeal the Tennessee Supreme Court

affirmed the conviction but vacated the death penalty finding (1) the jury was

improperly allowed to consider the life sentence imposed for the Pierce murder in

considering the death penalty for the Webb murder; and (2) the underlying felony was

improperly used as an aggravating circumstance pursuant to State v. Middlebrooks,

840 S.W.2d 317 (Tenn. 1992). See State v. Smith, 857 S.W.2d 1 (Tenn. 1993)

(hereinafter “Smith II”).

         Upon remand the trial judge sua sponte changed venue from Hamblen County

to Johnson County. The trial judge further overruled a motion for recusal. An

extraordinary appeal was granted by this Court pursuant to Tenn. R. App. P. 10(a).

On extraordinary appeal this Court found the trial court erred by changing venue

without defendant’s consent. The refusal of the trial judge to recuse himself was

affirmed; however, this Court noted that this issue could be re-litigated on direct

appeal. See State v. Smith, 906 S.W.2d 6 (Tenn. Crim. App. 1995) (hereinafter “Smith

III”).

         A re-sentencing hearing was then conducted before a jury in Hamblen County.



                                            3
Finding as an aggravating circumstance that the defendant had previously been

convicted of one (1) or more felonies, other than the present charge, which involved

the use or threat of violence to the person, the jury again imposed the death penalty.

The trial court ordered that the death penalty run consecutively to the life sentence in

the Pierce murder. This appeal resulted.



                    EVIDENCE AT RE-SENTENCING HEARING



       The evidence offered at the re-sentencing hearing was rather limited. The state

introduced a Carter County indictment charging the defendant with armed robbery

along with the judgment revealing that defendant was convicted of simple robbery. An

officer with the Carter County Sheriff’s Department identified the defendant as the

same Leonard Edward Smith convicted of that robbery. The state introduced another

Carter County indictment and judgment of conviction of simple robbery. Another

officer identified the defendant as the same Leonard Edward Smith who was convicted

of that robbery.

       The state then introduced the redacted judgment revealing that defendant had

been convicted of first degree murder in the Pierce case. The reference to the life

sentence was redacted. Also introduced was the judgment of conviction in the instant

case, the Webb murder, revealing that defendant had been convicted of first degree

murder. There was no reference to the sentence previously imposed. An agent of the

Tennessee Bureau of Investigation identified the defendant as being the same

Leonard Edward Smith convicted of these two murders.

       The daughter of the victim testified that her parents operated a country store for

many years, and her mother was 59 years of age at the time of her death. She further



testified that her father was hospitalized as a result of this robbery and was never able

to work again. She stated that her family lived with the murder all the time.

       The defendant’s only witness was the detective in charge of the investigation

of the case. At the request of defense counsel, he read defendant’s statement which



                                           4
was taken shortly after the arrest:



                      I, Leonard Edward Smith, am giving this
              statement of my own free will and without any threats or
              promises being made to me. On Monday, May 21,
              1984, I was with my girlfriend Angie O'Quinn and David
              Hartsock and we went and got some liquor and went to
              a road near the Sullivan-Carter County line. We parked
              and were just drinking and talking and smoked some
              joints. While we were on that road in my black Ford
              Pinto which I had painted black because it used to be
              orange, David said "Get out, I want to talk to you." He
              and I got out and walked a ways from the car where
              Angie couldn't hear us talking and David said, "I can get
              us a little bit of money down here at this store." He
              said, "It is the store down at the county line," and I
              asked him if it was Shorty Malone's and he said, "Yes."
              Angie and I drove David down there, and let him off a
              little ways from the store. I parked on the little paved
              road beside the store. David had a thirty-two caliber
              chrome plated pistol with him. The pistol was his pistol.
              I heard several shots fired and just a few seconds later
              David came running around the store. David jumped
              into the car and said, "Get the hell out of here, I had to
              shoot him." I figured it was Shorty because he ran the
              store. We drove out the road that goes behind the side
              of Malone's Grocery, and it dead ends, and you can
              turn left to the Wautauga area or right back to Sullivan
              County. We turned onto the Wautauga Highway and
              drove to what is known as Mountain Road. I asked
              David if he shot the man, and he said that he shot him
              one time and the man pulled a gun and started shooting
              at him. I don't remember if he said what money he got.
              I drunk some more liquor, and made Angie get out of
              the car. I started driving and was just going to drive us
              out of the mountain. We came out at some store, and
              I turned left, and drove until I realized I was going to
              [sic] wrong way, and I pulled in at Webb's Store to turn.
              I stopped the car at Webb's and David jumped out, and
              I ran in the store behind him. David ran and jumped on
              the counter, and knocked the old man over and yelled
              to me, "Get that bitch" referring to an old woman at the
              end of the counter. I started towards her, and she
              started throwing things at me and started spraying paint
              on me. I fired one shot just to scare people, but the old
              woman just kept spraying orange paint and came
              towards me. I couldn't see because of the paint and I
              held the gun up and apparently the old lady was trying
              to get the gun away from me and it went off. We ran
              from the store when I fired the second shot. I didn't
              really know that I had shot her until we heard it later on
              the news. When we were in Webb's Store the old man
              was hollering, "Help me, help me," and hollering for his
              wife. The old woman never did say anything that I
              remember. I know that before we left the store, some
              man came up to the door, and I told him to get out of
              there. I didn't get any money from either store, and
              David didn't say if he did or not. David and I left Webb's


                                          5
              and went back up towards Mountain Road, and picked
              Angie up. I told her we had to get out of there, and we
              drove down towards Underwood Park, and set the car
              on fire. David cut a hose next to the carburetor and set
              the car on fire. David and Angie and me took off on the
              trails, and really didn't know which way to go. We came
              out at a house on Indiana Creek. It was the Johnson
              residence because my dad had sold them the house.
              We didn't go to the house until late last night, and Angie
              got Gladys Sheets to take us to the home where we
              were arrested this morning. I had never been to the
              house before but had been in the area. When Gladys
              drove up to Dennis Cove, she said she thought we did
              it. I had taken my shirt and wrapped my feet so I could
              walk and I think I left it in Gladys' car or at the house.
              Gladys had told us that Mrs. Webb, and the man at
              Malone's were both dead. We told Gladys that we
              didn't do it and she said, "If you didn't, you better keep
              the gun because the news said it was a thirty-eight" and
              she knew we had a thirty-two caliber. I told David to
              throw the gun out anyway because I knew we had done
              it. He threw it out as we went over a bridge, and we
              drove on up to the house. We stopped at a grocery
              store, and Angie and Gladys went in and got some food
              for us to take to the house. We fixed something to eat,
              went to sleep, but I felt like they knew where we were
              at. I had cut mine and David's hair with a pair of
              scissors Angie had in her pocketbook because I knew
              they would be looking for somebody with longer hair.
              This morning I heard a loud noise, and I knew we were
              caught then. I told Angie I was going out, and you
              come out too, so we won't get hurt. Somebody had
              yelled for us to come out, and David went out first. All
              I know is that everything didn't turn out the way it was
              supposed to, and it shouldn't have happened. I am
              sorry for what happened, because I know I am a thief,
              but I don't think of myself as a murderer. This is all I
              know to tell you about what happened.



       After the testimony of the detective, the defendant requested that his attorneys

present no further mitigating evidence nor make a closing argument. The trial court

determined that the defendant was competent to make such a request. No further

mitigating evidence was submitted.

       The state’s rebuttal proof consisted of re-calling the daughter of the victim. She

testified that during the 11 years since the homicide, she had never seen any evidence

of remorse from the defendant.

       The state made a closing argument. Defense counsel, honoring defendant’s

request, did not.




                                           6
                            I. SELECTIVE PROSECUTION



         Defendant filed a pre-trial motion requesting that the district attorney general

disclose the standards used to determine whether to seek the death penalty in murder

cases.     The assistant district attorney general explained that aggravating and

mitigating circumstances were examined and weighed in order to determine whether

to seek the death penalty under particular facts. Defense counsel’s request to put the

assistant district attorney general under oath to testify was denied by the trial court.

         Prosecutorial discretion used in selecting candidates for the death penalty does

not result in any constitutional deprivation. Gregg v. Georgia, 428 U.S. 153, 198-99,

96 S.Ct. 2909, 2937, 49 L.Ed. 2d 859 (1976); State v. Brimmer, 876 S.W.2d 75, 86

(Tenn. 1994); State v. Cazes, 875 S.W.2d 253, 268 (Tenn. 1994). This issue is

without merit.



                            II. RECUSAL OF TRIAL JUDGE



         Defendant contends the trial judge should have granted a motion for recusal

since the trial judge was the prosecuting attorney in an earlier robbery case that the

state relied upon as an aggravating circumstance. A motion for recusal based upon

the alleged bias or prejudice of the trial judge addresses itself to the sound discretion

of the trial court and will not be reversed on appeal absent a clear abuse of discretion.

Caruthers v. State, 814 S.W.2d 64, 67 (Tenn. Crim. App. 1991). A motion for recusal

should be granted whenever the judge’s impartiality might reasonably be questioned.

Tenn. Sup. Ct. Rule 10, Code of Judicial Conduct, Canon 3C; State v. Hines, 919

S.W.2d 573, 578 (Tenn. 1995).

         The issue of recusal was addressed in the extraordinary appeal in Smith III. We

noted that the record did not establish that the trial judge acted as a lawyer in any

matter “in controversy” and further found no indication of bias. Smith III, 906 S.W.2d

at 12. We found that the disqualification provisions of Article 6, § 11 of the Tennessee

Constitution precluding a judge from presiding “on the trial of any cause... in which he



                                            7
may have been of counsel...” does not apply to prior concluded trials. Id. at 12 (citing

State v. Warner, 649 S.W.2d 580, 581 (Tenn. 1983)). We, nevertheless, concluded

that the issue could be more fully litigated in the direct appeal if the defendant

establishes that the nature of the trial judge’s participation in the earlier prosecution

deprived the defendant of a fair and impartial arbiter. Our review of the record

indicates no further evidence of the nature of the trial judge’s participation in the

underlying charge. Accordingly, this issue is without merit.



                          III. JURY SELECTION EXPERT



       Defendant requested the expert services of a licensed private investigator, two

(2) psychologists, a medical doctor and a jury selection expert. All services were

authorized except the jury selection expert. Defendant challenges this denial.

       The decision of whether to authorize expert services lies within the sound

discretion of the trial court. See State v. Cazes, 875 S.W.2d 253, 261 (Tenn. 1994),

cert. denied, ___ U.S. ___, 115 S.Ct. 743, 130 L.Ed.2d 644 (1995); State v. O’Guinn,

709 S.W.2d 561, 568 (Tenn. 1986) cert. denied, 479 U.S. 871, 107 S.Ct. 244, 93

L.Ed.2d 169 (1986). The right to these services exists only upon a showing of a

particularized need. State v. Shepherd, 902 S.W.2d 895, 904 (Tenn. 1995); State v.

Black, 815 S.W.2d 166, 179-80 (Tenn. 1991). “The defendant must show that a

substantial need exists requiring the assistance of state paid supporting services and

that his defense cannot be fully developed without such professional assistance.”

State v. Evans, 838 S.W.2d 185, 192 (Tenn. 1992), cert. denied 510 U.S. 1064, 114

S.Ct. 740, 126 L.Ed.2d 702 (1994).

       Our Supreme Court has held that there is no constitutional violation in the denial

of a capital murder defendant’s request for funds for a jury selection expert, absent a

showing of any special need. See State v. Black, 815 S.W.2d at 179-80. There was

no showing of a particularized need for a jury selection expert in the case at bar.

Defense counsel had represented defendant in both of his prior trials and conducted

extensive voir dire in the present case. The trial court did not abuse its discretion in


                                           8
denying funds for a jury selection expert. This issue is without merit.



                                IV. JURY SELECTION

                      A. Questionnaire on Life Imprisonment

       Defense counsel was allowed to submit an extensive questionnaire to potential

jurors prior to the jury selection process. The trial judge disallowed, however, two (2)

questions asking whether the potential juror believed that a person sentenced to life

would spend the rest of his life in prison, and if not, how many years he/she thought

such a person would serve. One of these questions also asked whether this would

make the potential juror less likely to vote for a life sentence.

       The scope and extent of voir dire is entrusted to the discretion of the trial judge

whose actions will not be disturbed absent a clear abuse of discretion. State v. Irick,

762 S.W.2d 121, 125 (Tenn. 1988); State v. Poe, 755 S.W.2d 41, 45 (Tenn. 1988).

Defendant contends more leeway should be allowed in voir dire so as to enable him

to intelligently exercise peremptory challenges. Although we agree with this general

statement, we find no abuse of discretion in this instance. Without the opportunity of

an explanation from counsel or the court as to these questions on the questionnaire,

this could lead to unwarranted speculation as to the meaning of a life sentence. This

issue is without merit.




                                  B. Group Voir Dire

       The trial judge denied defendant’s request for individual voir dire on all issues

except pre-trial publicity and views on the death penalty. Defendant cites three (3)

instances during group voir dire when jurors stated they would be unable to follow the

law. He contends he was prejudiced by group voir dire. All of these jurors were

ultimately excused for cause.

       The trial court’s authority to question jurors individually is permissive, not

mandatory. State v. Hutchison, 898 S.W.2d 161, 167 (Tenn. 1994), cert. denied 116

S.Ct. 137 (1994). It is only where there is a significant possibility that jurors have been


                                            9
exposed to potentially prejudicial material that individual voir dire is mandated. State

v. Cazes, 875 S.W.2d at 262. Our review of the record does not indicate any prejudice

to the defendant as a result of group voir dire. The three (3) instances related by the

defendant did not result in prejudicial information being imparted to other jurors. This

issue is without merit.

                          C. Alternating Voir Dire Questioning

       Defendant complains that the trial judge erred in not alternating the order of voir

dire between the state and the defense. This issue was rejected in Smith II, 857

S.W.2d at 20. We find no abuse of discretion in allowing the state to proceed first in

voir dire questioning.

                          D. Sua Sponte Dismissals for Cause

       Defendant contends the trial court erred by sua sponte excusing several

prospective jurors for cause. In the instances cited by defendant, each juror had

indicated that he or she could not follow the law. It is clear that each juror’s views

would “prevent or substantially impair the performance of his [her] duties as a juror in

accordance with his [her] instructions and his [her] oath.” Wainwright v. Witt, 469 U.S.

412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985).

       The trial court’s findings on this issue are entitled to a presumption of

correctness since they involve a determination of demeanor and credibility, and the

burden rests on the defendant to establish by clear and convincing evidence that the

trial court’s determinations were erroneous. State v. Alley, 776 S.W.2d 506, 518

(Tenn. 1989). The responses of these jurors gave the judge the “definite impression”

they could not follow the law. Wainwright v. Witt, 469 U.S. at 425-26, 105 S.Ct. at 853.

       These jurors met the standard for dismissal. See State v.Hutchison, 898

S.W.2d 161 (Tenn.1994). Furthermore, the argument that defense counsel should be

allowed to rehabilitate such jurors is without merit. State v. Harris, 839 S.W.2d 54, 65

(Tenn. 1992).

                            E. Failure to Excuse for Cause

       Defendant contends the trial judge erred in failing to excuse two (2) potential

jurors who stated they could not consider mitigating evidence. Although both potential


                                           10
jurors initially stated they would have trouble considering certain kinds of mitigating

evidence, the totality of the questions and answers reveals that they could follow the

law in weighing aggravating and mitigating circumstances. The trial court has wide

discretion in ruling on the qualifications of jurors. State v. Howell, 868 S.W.2d 238,

248 (Tenn. 1993). The failure to exclude these two (2) jurors was not an abuse of

discretion.

       Furthermore, one of the jurors was excused by defendant’s peremptory

challenge. Neither did the other juror sit on the panel. The defendant exercised only

six (6) peremptory challenges out of the allowed 15 challenges. Therefore, defendant

is entitled to no relief. See State v. Howell, 868 S.W.2d at 248-49.



              V. FAILURE TO PRESENT FURTHER MITIGATING PROOF



       After the testimony of the investigating detective who read the defendant’s pre-

trial statement to the jury, defense counsel advised the trial judge that the defendant

wanted to waive further mitigating proof. Since this was against the advice of counsel,

the trial judge allowed a recess in which counsel discussed this issue with the

defendant. Upon returning to the courtroom, counsel again stated defendant’s desire

to rest the case and waive final argument. According to counsel, defendant had

considered waiving mitigation proof several months earlier. The trial court questioned

the defendant as to this decision, including the likelihood that the “jury will almost

certainly return with a verdict of death by electrocution.” Defendant, who refused to

communicate directly with the trial judge, acknowledged through counsel that he

understood.

       Defense counsel was questioned extensively by the trial judge as to defendant’s

competency. Noting that defendant had been examined by various experts, defense

counsel stated none of the reports indicated that he was incompetent. Both defense

counsel advised the court they had no doubts about defendant’s competency and

ability to make this decision.    The trial judge was satisfied that the defendant

understood the ramifications of this decision.



                                          11
       Defense counsel then rested the case even though other witnesses were

prepared to testify on behalf of the defendant. Final argument was also waived at the

request of the defendant. Defendant now contends the trial court erred in allowing the

defendant to waive further proof and final argument.1

                                          A. Waiver

       Firstly, we note that the issue of the failure to present further mitigating proof

and final argument has been waived. Defendant seeks relief for something he chose

to do. Relief may not be granted to a party responsible for an alleged error or who

failed to take whatever action was reasonably available to prevent or nullify the harmful

effect of the alleged error. Tenn. R. App. P. 36(a); State v. Gregory, 862 S.W.2d 574

(Tenn. Crim. App. 1993). The issue is also waived by the failure to raise it in the

motion for new trial. Tenn. R. App. P. 3(e); State v. Moffett, 729 S.W.2d 679 (Tenn.

Crim. App. 1986). Nonetheless, we will address the issue.




                       B. Defendant’s Right to Control Defense

       Defendant now contends he had no right to control the presentation of his

defense; therefore, it was error for the court to allow defense counsel to follow his

directive to present no further mitigating proof nor make a closing argument.

       In death penalty cases, the sentencer may not be precluded from considering

any aspect of a defendant’s character or record as a basis for a sentence less than

death. Lockett v. Ohio, 438 U.S. 586, 604-05, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973

(1978) (plurality opinion); see also Johnson v. Texas, 509 U.S. 350, 361, 113 S.Ct.

2658, 2666, 125 L.Ed.2d 290, reh’g denied, 509 U.S. 941, 114 S.Ct. 15, 125 L.Ed.2d

767 (1993). The United States Supreme Court has held that mitigating evidence is

relevant to sentencing hearings and should be heard. See California v. Brown, 479

U.S. 538, 541, 107 S.Ct. 837, 839, 93 L.Ed.2d 934 (1987); Eddings v. Oklahoma, 455



       1
         The defendant’s reason for the request to waive further mitigating proof and argument
is not revealed in the record. Arguably, it could be strictly tactical hoping for a life sentence,
or it could be that defendant desired the death penalty. The defendant’s motive is not
determinative of this issue on appeal.

                                               12
U.S. 104, 113-15, 102 S.Ct. 869, 876-77, 71 L.Ed.2d 1 (1982). As a general rule,

counsel should present mitigating evidence. Goad v. State, 938 S.W.2d 363 (Tenn.

1996). However, there is no legal requirement and no established practice that the

accused must offer evidence at the penalty phase of a capital trial. State v. Melson,

772 S.W.2d 417, 421 (Tenn. 1989), cert. denied 493 U.S. 874, 110 S.Ct. 211, 107

L.Ed.2d 164 (1989); see also Darden v. Wainwright, 477 U.S. 168, 184-85, 106 S.Ct.

2464, 2473, 91 L.Ed.2d 144 (1986). In fact, counsel has properly seen fit not to offer

any evidence at the penalty phase in many death penalty cases. State v. Melson, 772

S.W.2d at 421 (citing sixteen cases heard by the Tennessee Supreme Court).

       At the heart of the issue in this case is whether counsel should disregard the

client’s desires as to how the defense should be conducted. The purpose of a defense

lawyer is to assist a defendant in making a defense and to represent the defendant

before the court. State v. Franklin, 714 S.W.2d 252, 262 (Tenn. 1986). Although a

client may conduct his or her own defense ultimately to his or her detriment, that

choice must be honored out of “that respect for the individual which is the lifeblood of

the law.” Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 2541, 45 L.Ed.2d

562 (1975). We are certainly not suggesting that counsel must honor an illegal or

unethical request from the client. However, the authority to make decisions generally

belongs to the client and, if made within the framework of the law, such decisions are

binding on counsel. Sup. Ct. Rules, Rule 8, Code of Prof. Resp., EC 7-7.

       The nature of the attorney-client relationship in a criminal case was addressed

in State v. Ali, 329 N.C. 394, 407 S.E.2d 183 (1991). The court found no constitutional

violation when counsel complied with the wishes of the defendant in accepting a juror

when counsel suggested otherwise.          The court found that the attorney-client

relationship is one based upon principles of agency as opposed to guardian and ward.

Ali, 407 S.E.2d at 189; see also People v. Wilkerson, 123 Ill.App.3d 527, 463 N.E.2d

139 (1984).

       We likewise find that the attorney-client relationship is primarily one of agency.

If a competent defendant knowingly and voluntarily chooses a lawful course of

conduct, counsel is ordinarily bound by that decision. If the defense is prejudiced



                                           13
because of a defendant’s choice, a defendant should not later be heard to complain

as to the course the defendant chose. State ex rel. Lea v. Brown, 166 Tenn. 669, 64

S.W.2d 841, 848 (1933); Dukes v. State, 578 S.W.2d 659, 665 (Tenn. Crim. App.

1978).

         The United States Supreme Court has recognized the right of a mentally

competent defendant to forego appellate review. Demosthenes v. Baal, 495 U.S. 731,

110 S.Ct. 2223, 109 L.Ed.2d 762 (1990); Whitmore v. Arkansas, 495 U.S. 149, 110

S.Ct. 1717, 109 L.Ed.2d 135 (1990); Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50

L.Ed.2d 632 (1976). A competent defendant may, therefore, waive the right to present

certain mitigating evidence. Singleton v. Lockhart, 962 F.2d 1315, 1322 (8th Cir.

1992). Counsel is not ineffective if he or she follows the defendant’s request not to

fight the death penalty. Autry v. McKaskle, 727 F.2d 358 (5th Cir. 1984); Clark v.

State, 613 S.2d 412 (Fla. 1992), cert. denied 114 S.Ct. 114 (1993).

         In this case trial counsel received explicit instructions from their client not to

present further mitigating evidence nor make a closing argument. Trial counsel

believed the defendant to be competent as did the trial judge. In view of counsels’ and

the court’s explanations to defendant of the ramifications of his decision, the

competence of the defendant, and his knowing and voluntary request that no further

mitigating evidence nor argument be presented, we find no error committed by the trial

court in allowing the waiver of further mitigating evidence and closing argument.

                                     C. Competency

         Defendant contends the trial court erred by failing to conduct a sufficient inquiry

into the defendant’s competency when defendant decided not to present further

mitigating evidence and closing argument.

         Firstly, this issue was waived by the failure to request the trial court to do

anything further. Tenn. R. App. P. 36(a); see also State v. Estes, 655 S.W.2d 179,

182 (Tenn. Crim. App. 1983) (holding that the failure of counsel to bring the matter of

competency before the court amounted to a waiver of that issue).

         Secondly, there is nothing in the record to indicate that defendant was

incompetent. He had been examined by a clinical psychologist and a psychiatrist



                                             14
before this trial.   Counsel indicated there was nothing that would establish

incompetence. The defendant was questioned by the trial judge. Counsel stated

several times that the defendant was now and had always been competent. The trial

judge’s determination that the defendant was competent to make this decision is

supported by the record. This issue is without merit.

                         D. Reliability of Appellate Review

       Defendant contends that meaningful appellate review of death penalty cases

is undermined by the failure to present available mitigating evidence.

       After restricting the class of death-eligible offenses, a state must utilize

additional procedures under the Eighth Amendment to the United States Constitution

to assure reliability in the determination that death is the appropriate punishment in a

given capital case. See Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49

L.Ed.2d 944 (1976). Individualized determinations on the basis of the character of the

individual and the circumstances of the crime must be allowed. Zant v. Stephens, 462

U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983); State v. Howell, 868 S.W.2d at 256.

A proper narrowing device must differentiate a death penalty case in an objective,



even-handed, and substantially rational way from murder cases in which the death

penalty may not be imposed. State v. Hines, 919 S.W.2d at 583.

       Comparative proportionality review by an appellate court is not constitutionally

required in every case in which the death penalty is imposed and the defendant

requests it. Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984).

However, meaningful appellate review does play a crucial role in ensuring that the

death penalty is not imposed arbitrarily or irrationally. Parker v. Dugger, 498 U.S. 308,

321, 111 S.Ct. 731, 739, 112 L.Ed.2d 812 (1991).

       The Tennessee statute creates a comparative proportionality review to serve

as an additional safeguard against arbitrary or capricious sentencing. Tenn. Code

Ann. § 39-2-205 (1982) [presently Tenn. Code Ann.§ 39-13-206)(Supp. 1996)]; State

v. Bush,      S.W.2d       (Tenn. 1997); State v. Harris, 839 S.W.2d 54, 84 (Tenn.

1992). In addition, Sup. Ct. Rules, Rule 12 requires the submission of a trial judge’s



                                           15
report to be used by the appellate court as an integral part of proportionality review.

See State v. Barber, 753 S.W.2d 659, 663-64 (Tenn. 1988).

       Unfortunately, in this case the only way to have gotten further possible

mitigating evidence before the jury would have required counsel to disregard their

client’s emphatic instructions, thereby creating an untenable conflict. This they could

not do. Trial counsel must function as an advocate for the defendant as opposed to

a mere friend of the court. United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80

L.Ed.2d 657 (1984).

       The heightened standard of reliability in death penalty cases does not mandate

or justify forcing an unwilling defendant to present certain mitigating evidence. Wallace

v. State, 893 P.2d 504 (Okla. Crim. 1995), cert. denied 116 S.Ct. 232 (1995). As did

the court in Wallace, we likewise conclude that the Eighth Amendment does not

require the presentation of such proof under these circumstances and does not

prevent an adequate appellate review.2

       This issue is without merit.



              VI. ADMISSION OF WEBB JUDGMENT OF CONVICTION



       The state introduced the judgment showing that the defendant had been found

guilty of the first degree murder of Webb. Defendant contends this judgment was

erroneously relied upon by the state as an aggravating circumstance.

       No contemporaneous objection was made to the introduction of this evidence.

The issue is, therefore, waived. Tenn. R. App. P. 36(a); State v. Walker, 910 S.W.2d

381, 386 (Tenn. 1995). We will, nevertheless, address this issue.

       This was a re-sentencing hearing only as guilt had already been determined and


       2
         Noting that it would be inappropriate to require defense counsel to present mitigating
evidence contrary to the wishes of the client and further noting the inappropriateness of the
presentation of such proof by the prosecutor or under the authority of the trial judge, it has been
suggested that the best accommodation of interests would be achieved by appointing an
independent attorney whose specific role is to present mitigating evidence. Linda E. Carter,
Maintaining Systemic Integrity In Capital Cases: The Use of Court-Appointed Counsel to
Present Mitigating Evidence When the Defendant Advocates Death, 55 TENN . L. REV. 95, 147-
49 (1987). We do not find that such is required by the United States Constitution or the
Tennessee Constitution.

                                                16
affirmed on the previous appeal. The state was entitled to show to the jury that the

defendant had in fact been convicted of the first degree murder for which the jury was

to determine the sentence.

       Defendant’s primary argument is that the state was improperly allowed to use

this first degree murder conviction as an aggravating circumstance in the same case.

The state relied upon one (1) aggravating circumstance; namely, the defendant was

previously convicted of one (1) or more felonies, other than the present charge, whose

statutory elements involved the use or threat of violence to the person. Tenn. Code

Ann. § 39-2-203(i)(2) (1982) (emphasis added). Obviously, the state could not rely

upon the present conviction as one of the previous violent felony convictions.

       However, our reading of the record does not indicate that the state relied upon

this conviction as one of the prior violent felonies. From voir dire through final

argument the state contended that the defendant had been convicted of three (3)

prior felony offenses involving violence or the threat of violence; namely, two (2)

robberies and the first degree murder of Pierce. The trial judge further instructed the

jury that the state alleged the defendant had been previously convicted of murder in

the first degree and two (2) robberies. The trial court was obviously referring to the

Pierce first degree murder conviction which had been made an exhibit. This issue is

without merit.



                         VII. PRIOR VIOLENT FELONIES



       As previously stated, the prosecution relied upon the prior violent felonies

aggravating circumstance. Tenn. Code Ann. § 39-2-203(i)(2) (1982), the statute in

effect at the time of this crime, defined this aggravating circumstance as follows:


              The defendant was previously convicted of one (1) or more
              felonies, other than the present charge, which involved the
              use or threat of violence to the person.

Defendant contends the state was erroneously allowed to introduce evidence in

support of this aggravating circumstance.

                                A. Pierce Judgment

                                          17
         Defendant argues that the introduction of his conviction and redacted Order of

Judgment for the first degree murder of Pierce was erroneously allowed as evidence.

Smith I condemned the use of defendant’s life sentence in the Pierce case as

evidence in the Webb case. 755 S.W.2d at 767-69. Upon re-trial the state again

failed to observe the warning in Smith I and related to the jury that the defendant had

received a life sentence for the Pierce murder. On appeal in Smith II the Court again

condemned this evidence and remanded for a new sentencing hearing. 857 S.W.2d

at 25. Both Smith I, 755 S.W.2d at 769, and Smith II, 857 S.W.2d at 25, recognized

the sentencing relevance of the Pierce conviction but not the Pierce life sentence.

         The trial judge conducted an extensive jury-out hearing and redacted the Pierce

judgment omitting any reference to the sentence. Upon being asked if there were any

objections to the redactions, defense counsel made no objection. The issue is,

therefore, waived. Tenn. R. App. P. 36(a); State v. Walker, 910 S.W.2d at 386.

Furthermore, the jury was specifically instructed by the trial judge not to speculate as

to the significance of any redactions. The jury is presumed to have followed the

instructions of the court. State v. Woods, 806 S.W.2d 205, 211 (Tenn. Crim. App.

1990).

         The admission of the redacted judgment showing the conviction but not the

sentence is in compliance with the dictates of Smith I and Smith II. This issue is

without merit.

                          B. Direct Participation in Violence

         Defendant contends that he did not directly participate in the use of violence in

the Pierce murder as a co-defendant was the person who actually fired the shot that

killed Pierce. He argues that direct participation is necessary to trigger this homicide

as a prior violent felony. This issue was decided contrary to defendant’s argument in

Smith II, 857 S.W.2d at 10. See also State v. Teague, 680 S.W.2d 785, 789 (Tenn.

1984). This issue is without merit.

                             C. Introduction of Indictment

         Defendant contends the trial court erred in allowing the introduction of an armed

robbery indictment since the judgment of conviction was only for simple robbery. This



                                            18
issue has also been determined contrary to defendant’s argument in both Smith I, 755

S.W.2d at 764, and Smith II, 857 S.W.2d at 20. This issue is without merit.




                         VIII. VICTIM IMPACT TESTIMONY



       The daughter of the victim testified briefly at the hearing. She related that her

parents operated this country store for many years. She stated her mother was 59

years of age at the time of her death, that her father was never able to work again after

his wife was killed, and that her family had to live with this murder every day. When

the detective as a defense witness read the defendant’s pre-trial statement

acknowledging sorrow for what had happened, the victim’s daughter testified in rebuttal

that defendant had never exhibited remorse. Defendant contends this victim impact

testimony was erroneously admitted.

       In State v. Payne, 791 S.W.2d 10, 18 (Tenn. 1990), our Supreme Court held

that, while this kind of evidence might be “technically irrelevant,” the evidence is

admissible relating to the defendant’s personal responsibility and moral guilt. This

ruling was affirmed by the United States Supreme Court when it held that there is no

per se Eighth Amendment bar to such evidence. Payne v. Tennessee, 501 U.S. 808,

111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). More recently, the Tennessee Supreme

Court announced its adherence to the admissibility of such evidence finding no

violation of the Tennessee Constitution. State v. Brimmer, 876 S.W.2d 75, 86 (Tenn.

1994). The issue regarding victim impact testimony was raised in Smith II, and the

Tennessee Supreme Court determined such testimony to be admissible. 857 S.W.2d

at 14. The trial judge relied upon this holding in admitting the testimony.

       Even accepting these decisions, the defendant contends these cases do not

authorize victim impact testimony when such is not authorized under state law.

Specifically, defendant contends that victim impact testimony is not recognized as an

aggravating circumstance under our law.



                                           19
       It is undisputed that victim impact is not listed as a statutory aggravating

circumstance. Tenn. Code Ann. § 39-2-203(i) (1982) [presently Tenn. Code Ann. § 39-

13-204(i)(Supp.1996)]. However, the only “victim impact” testimony was given by the

daughter and was extremely brief. The reference to victim impact in the state’s final

argument was also very brief. If there was error, it was harmless beyond a reasonable

doubt. Tenn. R. App. P. 36(b). 3



                         IX. PROSECUTORIAL MISCONDUCT



       Defendant contends that prosecutorial misconduct undermined his rights to a

fair trial and a reliable sentencing determination. No contemporaneous objection was

made to any of the alleged improper arguments. The issue is waived. Tenn. R. App.

P. 36(a); State v. Keen, 926 S.W.2d 727, 736 (Tenn. 1994). Nevertheless, we will

address these issues.

                                  A. Intentional Murder

       Defendant contends the prosecutor improperly argued to the jury that the

homicide was intentional as opposed to being accidental. Our review of the argument

does not substantiate this claim.        The prosecutor merely related the facts and

circumstances surrounding the murder and stated the barrel of the gun “ended up in

her nose, and that’s where Leonard Smith pulled the trigger.” This argument was not

improper.

                                     B. Victim Impact

       Defendant contends the prosecutor improperly argued victim impact to the jury.

As previously stated, the alleged victim impact argument was extremely limited. The

prosecutor simply related that the victim and her husband had run a country store for

some 40 years, the husband was elderly and in failing health, and the victim was 59



       3
        We are mindful that other panels of this court have found error in the admission of
victim impact testimony. State v. Clarence C. Nesbit, C.C.A. No. 02C01-9510-CR-00293
(Tenn. Crim. App. filed Apr. 22, 1997, at Jackson); State v. Perry A. Cribbs, C.C.A. No. 02C01-
9508-CR-00211 (Tenn. Crim. App. filed Feb. 14, 1997, at Jackson); State v. Antonio M. Byrd,
C.C.A. No. 02C01-9508-CR-00232 (Tenn. Crim. App. filed Dec. 30, 1996, at Jackson).
However, harmless error was found in each case.

                                              20
years of age. The prosecutor further stated that the homicide greatly affected the

family and “won’t go away.” If there was error, at most it was harmless. Tenn. R. App.

P. 36(b).

                                    C. Deterrence

       Defendant contends the prosecutor unlawfully argued the need for deterrence.

Any argument based upon general deterrence is improper. State v. Irick, 762 S.W.2d

121, 131 (Tenn. 1988); Smith II, 857 S.W.2d at 13.

       The questioned argument was actually an explanation as to why felony murder

was a first degree murder, the most serious offense under our law. The prosecutor

stated that without felony murder, there would be no protection for those victimized by

someone like the defendant and his co-defendant. We do not view this as a

deterrence argument. This issue is without merit.

                                 D. Webb Conviction

       Defendant contends the prosecutor improperly argued that the present

conviction was a prior violent felony which the jury could consider as an aggravating

circumstance. The prosecutor clearly argued to the jury that the exhibit representing

the present conviction was the offense for which the jury was now going to be required

to sentence the defendant to either life imprisonment or death. He reviewed the other

three (3) judgments as those to be relied upon for prior felony convictions. The

prosecutor did not argue that the present conviction could be considered as an

aggravating circumstance. This issue is without merit.



                              X. JURY INSTRUCTIONS



       Defendant contends the trial court erred in failing to instruct the jury on specific

non-statutory mitigating circumstances. Further, the defendant contends the trial court

erred in refusing to instruct the jury to presume that a sentence to life imprisonment

meant the defendant would spend the rest of his life in prison, whereas a sentence to

death would presume death by electrocution.

                    A. Non-Statutory Mitigating Circumstances


                                            21
         Defendant requested that the trial court give special jury instructions listing four

non-statutory mitigating circumstances. The trial court declined to do so. Defendant

contends this is reversible error under State v. Odom, 928 S.W.2d 18, 30 (Tenn.

1996).

         The present offense was committed prior to November 1, 1989; therefore,

sentencing for this capital offense is governed by the statutory law in effect on the date

of the commission of the offense. State v. Hutchison, 898 S.W.2d 161, 174 (Tenn.

1994), cert. denied 116 S.Ct. 137 (1995). At the time of the commission of this

offense, the statute did not require that the jury be instructed as to non-statutory

mitigating circumstances. Tenn. Code Ann. § 39-2-203(e)(1982); State v. Hartman,

703 S.W.2d 106, 118 (Tenn. 1985).

         State v. Odom required the jury to be instructed on non-statutory mitigating

circumstances when raised by the evidence and specifically requested by either the

state or the defendant. 928 S.W.2d at 30. However, Odom was based upon the

requirements of the new statute, Tenn. Code Ann. § 39-13-204(e)(1991). Odom

specifically recognized that neither the United States Constitution nor the Tennessee

Constitution required the submission of non-statutory mitigating circumstances to the

jury. 928 S.W.2d at 30 (citing State v. Hutchison, 898 S.W.2d at 173-74). We,

therefore, conclude that the trial judge did not err in refusing to charge non-statutory

mitigating circumstances as was allowable under the statute in effect on the date of the

commission of the offense.

                                B. After-Effect of Verdict

         Defendant requested that the jury be instructed that they were to presume that

if the defendant were sentenced to life imprisonment, he would spend the rest of his

life in prison; and that if he were sentenced to death, he would be executed by

electrocution. Alternatively, the defendant requested that the jury be instructed that

a sentence of life imprisonment meant the defendant would remain in prison for the

rest of his life, and that a sentence of death meant that the defendant would be

executed by electrocution. These requests were rejected by the trial court. Our

Supreme Court has recently ruled that the jury need not be given information about



                                              22
parole availability. State v. Bush,    S.W.2d      (1997). Likewise, a trial court does

not err by refusing to instruct jurors that they should presume that the sentence they

assess will actually be carried out. State v. Caughron, 855 S.W.2d 526, 543 (Tenn.

1993); see also Smith II, 857 S.W.2d at 11. This issue is without merit.



                      XI. TAKING EXHIBITS TO JURY ROOM



       Defendant contends the trial court erred in allowing the jury to take the exhibits

with them to the jury room for use in deliberations. More specifically, defendant

contends he was prejudiced by the redactions on the Pierce and Webb convictions.

       Tenn. R. Crim. P. 30.1 was in effect at the time of trial. This rule provides that

the jury shall take to the jury room all exhibits that were received in evidence unless

the Court, for good cause, determines otherwise. Defendant’s contention that the jury

would engage in undue speculation due to the redactions on the Pierce and Webb

convictions is without merit. As previously noted, the jury had been specifically

instructed not to speculate concerning these matters.         There was no abuse of

discretion in allowing the jury to take these exhibits to the jury room pursuant to Tenn.

R. Crim. P. 30.1.



                 XII. CONSTITUTIONALITY OF DEATH PENALTY



       Defendant contends the Tennessee death penalty statutes are unconstitutional

in the following respects:

              (1) the statutes fail to meaningfully narrow the class
              of death eligible defendants;

              (2) the statutes allow the death penalty to be imposed
              capriciously and arbitrarily;

              (3) electrocution constitutes cruel and unusual
              punishment; and

              (4) the appellate review process in death penalty
              cases is constitutionally inadequate.




                                           23
Each of these contentions has been rejected by our Supreme Court. State v. Keen,

926 S.W.2d at 741-44. This issue is without merit.



                           XIII. PROPORTIONALITY REVIEW



       Pursuant to Tenn. Code Ann. § 39-2-205(c) (1982) [presently Tenn. Code Ann.

§39-13-206(c)(1)(Supp.1996)], we have reviewed the sentence of death for this felony

murder. The sentence was not imposed in an arbitrary fashion, and the evidence

clearly supports the jury’s finding of the statutory aggravating circumstance relating to

the conviction of three (3) prior violent felonies. The evidence further clearly supports

the jury’s finding that this statutory aggravating circumstance outweighs any mitigating

circumstances. We have further conducted a proportionality review as required by

State v. Barber, 753 S.W.2d 659, 663-68 (Tenn.1988). 4 The sentence is neither

excessive nor disproportionate to death sentences imposed in similar cases. See

State v. Howell, 868 S.W.2d 238 (Tenn. 1993); State v. Boyd, 797 S.W.2d 589 (Tenn.

1990); State v. Johnson, 762 S.W.2d 110 (Tenn. 1988); State v. Bobo, 727 S.W.2d

945 (Tenn. 1987); State v. Goad, 707 S.W.2d 846 (Tenn. 1986); State v. Johnson, 698

S.W.2d 631 (Tenn. 1985); State v. King, 694 S.W.2d 941 (Tenn. 1985); State v.

McKay, 680 S.W.2d 447 (Tenn. 1984); State v. Harries, 657 S.W.2d 414 (Tenn. 1983);

State v. Simon, 635 S.W.2d 498 (Tenn. 1982); State v. Coleman, 619 S.W.2d 112

(Tenn. 1981).

       We find no reversible error; therefore, the judgment of the trial court is

AFFIRMED.5



                                               JOE G. RILEY, JUDGE



       4
          Although there is no Tennessee Supreme Court Rule 12 report by the trial judge filed
in the record, we have examined the reports filed after both prior trials of this case. The absence
of a new report does not prevent adequate proportionality review. See State v. Smith, 893
S.W.2d 908, 927 (Tenn. 1994).
       5
        No execution date is set since this case will be automatically reviewed by the
Tennessee Supreme Court. Tenn. Code Ann. § 39-13-206(a)(1). If the death sentence is
affirmed, that Court will set the execution date.

                                                24
CONCUR:



JERRY L. SMITH, JUDGE




CHRIS CRAFT, SPECIAL JUDGE




                             25
