Michael Dean Bush v. State of Tennessee

• Court: Tennessee Supreme Court
• Decided: April 7, 1997
• Docket: 03S01-9604-CC-00047
• Status: Published

Opinion

IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE FILED April 7, 1997 FOR PUBLICATION Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) Filed: APRIL 7, 1997 ) Appellee, ) CUMBERLAND COUNTY ) v. ) Hon. Leon Burns, Jr., ) Judge MICHAEL DEAN BUSH, ) ) Appellant, ) Supreme Court ) No. 03-S01-9604-CC-00047

FOR APPELLANT: FOR APPELLEE:

Martelia T. Crawford John Knox Walkup Cookeville, Tennessee Attorney General & Reporter

Richard McGee Michael E. Moore Nashville, Tennessee Solicitor General

Gordon W. Smith Associate Solicitor General

Amy L. Tarkington Assistant Attorney General Nashville, Tennessee

William Edward Gibson District Attorney General

Owen G. Burnett John A. Moore Lillie Ann Sells David A. Patterson Asst. District Attorneys General Cookeville, Tennessee

OPINION

TRIAL COURT AND COURT OF CRIMINAL APPEALS AFFIRMED. DROWOTA, J.

In this capital case, the defendant, Michael Dean Bush, was convicted of premeditated first degree murder and first degree burglary. 1 In the sentencing

hearing, the jury found two aggravating circumstances: (1) “[t]he murder was

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

abuse beyond that necessary to produce death;” and (2) “[t]he murder was

committed for the purpose of avoiding, interfering with or preventing a lawful arrest

or prosecution of the defendant or another.” Tenn. Code Ann. § 39-13-204(i)(5)

and (6) (1991). Finding that the two aggravating circumstances outweighed

mitigating circumstances beyond a reasonable doubt, the jury sentenced the

defendant to death by electrocution.

On direct appeal to the Court of Criminal Appeals, the defendant

challenged both his conviction and sentence, raising nineteen claims of error,

each with numerous subparts. After fully considering defendant’s claims, the

Court of Criminal Appeals affirmed the trial court’s judgment. Thereafter, pursuant

to Tenn. Code Ann. § 39-13-206(a)(1) (1996 Supp.), 2 the case was docketed in

this Court.

The defendant raised numerous issues in this Court, but after carefully

examining the entire record and the law, including the thorough opinion of the

Court of Criminal Appeals and the briefs of the defendant and the State, this

1 Although not relevant to this appeal, the trial judge imposed a three-year sentence concu rrent to the d eath pen alty for the bur glary convic tion.

2 "Whenever the death penalty is imposed for first degree murder and when the judgment has become final in the trial court, the defendant shall have the right of direct appeal from the trial court to the Court of Crim inal Appe als. The affirma nce of th e convic tion and the senten ce of de ath shall be automatically reviewed by the Tennessee Supreme Court. Upon the affirmance by the Cou rt of C rim inal A ppe als, th e cler k sh all doc ket th e cas e in the Sup rem e Co urt an d the cas e sha ll procee d in acco rdance with the T ennes see R ules of A ppellate P rocedu re.”

-2- Court, on October 14, 1996, entered an Order limiting review to seven issues and

setting the cause for oral argument at the January 1997 term of Court in Knoxville.

See Tenn. S. Ct. R. 12.3

For the reasons explained below, we have determined that none of the

alleged errors affirmatively appear to have affected the verdict of guilt or the

sentence imposed. Moreover, the evidence supports the jury’s findings as to

aggravating and mitigating circumstances, and the sentence of death is not

disproportionate or arbitrary. Accordingly, the defendant’s conviction for first

degree murder and sentence of death by electrocution are affirmed.

FACTUAL BACKGROUND

The defendant was convicted of the premeditated murder of Jodie Lefever,

a seventy-nine-year-old widow who lived alone in her home in the Silver Point

community of Putnam County.4 The evidence presented at the guilt phase of the

trial established that Lefever’s body was discovered by a neighbor on August 19,

1988, lying face down on the floor in her den next to the side door of the house.

She had been stabbed numerous times. A large amount of blood was on her

back, her head and the floor. Blood was also splattered on the door and nearby

wall. Two holes of unknown origin were in the wall near Lefever’s body.

3 Tennessee Supreme Court Rule 12 provides in pertinent part as follows: “Prior to the setting of oral argument, the Court shall review the record and briefs and c onsider all errors assigned. The Court may enter an order designating those issues it will review. Selection of such issues will be based on the criteria of T.R.A.P. 11(a).” This is the first capital case using this new procedure.

4 Although the crim e occu rred in Pu tnam Coun ty, Bush wa s tried in Cu mbe rland Co unty following the trial court’s grant of his motion for a change of venue.

-3- Investigating officers found a piece of pressure-treated wood on the floor

next to the den sofa and another piece of pressure-treated wood behind the

television set in the same room. Officers also found drops of blood on a chair in

the den, on the utility room floor leading from the den to the kitchen, on the

kitchen floor, and on a rug in the hallway leading to the bedroom. One drawer in

the bedroom dresser was open. The front door and windows of the house were

locked, and there was no sign of forced entry. The house and its furnishings were

essentially undisturbed. The only item missing from the house was a butcher

knife that was kept in a drawer next to the kitchen sink.

Dr. Gretel Harlan, assistant medical examiner with the State Medical

Examiner’s Office, testified that Lefever died as a result of being stabbed forty-

three times. The wounds extended down the left side of her face, down the back

of her neck, across her shoulders, and down her back. They were consistent with

wounds inflicted by a butcher knife like that taken from the kitchen. Several of the

wounds were fatal and had passed through Lefever’s back and penetrated various

vital organs and blood vessels. The location of the injuries indicated that Lefever

had probably been lying down during the attack. All the wounds had been made

while Lefever was alive; but it was impossible to determine the order in which they

had been inflicted. Some wounds would have resulted in unconsciousness in

three to five minutes. However, if other wounds had been inflicted first, Lefever

could have been alive and conscious for twenty to thirty minutes. Because the

stab wounds did not damage Lefever’s central nervous system, it was possible,

according to Dr. Harlan, that Lefever felt the wounds as they were inflicted, a

sensation that Dr. Harlan compared to undergoing surgery without anaesthetic. In

-4- addition to the stab wounds, there were two small “scrape areas” on the victim’s

left knee and elbow consistent with a fall onto those parts of her body before

collapsing to the ground. Lefever’s left collarbone had been bruised either shortly

before the stabbing or during the fall. Contusions found around her eyes could

likewise have been inflicted before she fell or could have resulted from one of the

stab wounds that had penetrated the left eye.

Despite extensive investigation, law enforcement officials had no suspects

on September 25, 1988, when Putnam County Sheriff Jerry Abston was notified

by his office that eighteen-year-old Michael Dean Bush and his father were at the

Sheriff’s office and had information regarding Lefever’s murder. Lefever had

been the best friend of the defendant’s grandmother, and Bush had mowed

Lefever’s lawn and helped her get groceries. In a series of statements recorded

at the Cookeville police department and played for the jury at trial, Bush told law

enforcement officers that on the afternoon of August 16, 1988, while he was living

at his mother-in-law’s trailer, he received a telephone call to go to the Silver Point

community after dark, if he ever wanted to see his family again. After calling his

parents’ house and receiving no answer, the defendant concluded something was

wrong.

Later that evening, after dark, the defendant instructed his wife to drive him

to an area near Lefever’s house. When his wife asked him what was going on, he

told her that they “needed some money . . . and [he] was going to go rob the old

woman that lived down there.” After his wife dropped him off and left, Bush said

he was met by four men wearing black ski masks. One pulled a gun on him and

-5- said that they “needed somebody Jodie trusts.” Bush said Lefever was on the

telephone when he knocked on her side door. After Bush identified himself,

Lefever unlocked the door. The men then pushed him inside the house and

began to hit Lefever so hard that she fell back and hit the wall with her elbow.

One of the men ran through the kitchen and the rest of the house. When the stick

being used to beat the victim broke, the men quickly gathered the pieces and

handed them to Bush and told him to go outside. A few minutes later the men

came out and gave the defendant a knife. The defendant’s hand was cut by the

blade as he took the knife. The men instructed Bush to “take the stuff and get rid

of it” and forget everything he had seen. As Bush was walking to meet his wife,

one of the men drove up beside him and said “loose lips sink ships.”

Shortly afterward the defendant’s wife picked him up. He was crying and

had blood all over him. When his wife asked him what had happened, he said, “I

killed Jodie.” They drove to Center Hill Lake, where he threw the knife and the

pieces of the broken stick into the water and washed himself off. Bush then told

his wife that he had not killed Lefever but blamed another man, Jackie Maxwell.

On the same day and approximately the same time as Bush was giving his

statements to law enforcement officials at the Cookeville police department, his

seventeen-year-old wife, Sheila Bush, made several statements to officers at the

Putnam County sheriff’s office. She testified to the substance of those statements

at trial. While most of her story matched that of the defendant’s, it was different in

one vitally important aspect. Shelia Bush incriminated the defendant as the sole

perpetrator of the offense. According to Sheila Bush, on the evening of August

-6- 16, 1988, the defendant told her that they needed money and that he knew “a

woman he could knock in the head and get some money,” but he would not tell

Shelia Bush the name of the woman nor the location of her home. The defendant

removed a piece of wood from the frame around his wife’s bedroom door and

directed his wife to drive him to an area in the Silver Point community. Once

there, he got out of the car and told her to come back in twenty minutes. After

driving to Center Hill Dam, Shelia Bush returned to find the defendant standing in

the road. He had his shirt off and was covered with blood. As he got into the car,

he excitedly told his wife that he had “killed her.” The defendant said he had

“stabbed her with a knife” and that he had cut his hand wide open. At the

defendant’s directions, Sheila Bush drove to a boat ramp near the dam, where the

defendant threw his shirt, some pieces of wood, a knife and a pair of sunglasses

into the lake. He then washed off the blood that was on him.

The next day, according to Sheila Bush, the defendant told her how he had

killed Lefever, how he knocked on the door as the victim spoke on the phone, how

she let him in once she recognized him, and how he had struck her in the head

with the stick and caused her to fall. The defendant said that the victim told him to

“get a hold of himself.” When Lefever indicated that there was someone in the

back of the house, the defendant searched the house. Finding no one there, he

removed his shirt, wrapped it around his hand, and as he came back through the

kitchen, took a knife out of the kitchen drawer. He took the knife into the den and

stabbed Lefever thirty or forty times. The defendant demonstrated how he had

killed Lefever by having his wife lie on her stomach on the floor as he pretended to

stab her in the head and the back. The defendant, a karate student and

-7- enthusiast, also told his wife that he practiced karate on Lefever. The next instant,

however, he told his wife that he was “just kidding” and that Jackie Maxwell had

killed Lefever. Sheila Bush explained that she had not reported this information

earlier because the defendant told her that the Mafia was watching her and that

something would happen if she mentioned anything.

Physical evidence supported the statement of Sheila Bush. Going to the

spot where the defendant had allegedly thrown away the murder weapon,

Tennessee Bureau of Investigation (T.B.I.) divers recovered a knife from the

waters of Center Hill Lake. Lefever’s grandson identified the knife as one his

grandmother kept in a drawer next to the kitchen sink. A forensic scientist, who

had analyzed the two pieces of wood discovered in Lefever’s den, testified that

they came from the top of a bedroom door in the trailer belonging to Sheila Bush’s

mother. A T.B.I. serologist testified that the blood found on the rug in the hallway

and kitchen floor was consistent with that of the defendant. Only two percent of

the Tennessee population have this blood-type.

Other witnesses tied the defendant to the killing. James Mullins, a friend of

the defendant, testified that on the day after Lefever’s body was found, the

defendant brought a newspaper reporting the discovery of the body to Mullins’

house. The defendant was excited and grinning, “all wound up like a kid that had

too much Kool-Aid.” Two of defendant’s fellow inmates at the Putnam County jail,

Jimmy Myers and William Roger Moore, testified that the defendant told them he

had killed the victim. According to Myers, the defendant said that his wife had

taken him to Lefever’s house to borrow or get some money and, when the

-8- defendant could not find any money, he stabbed Lefever to death. After this first

account, however, the defendant kept changing his story because, the defendant

said his lawyers had told him that people in the jail might be witnesses against

him. The defendant also told Myers that he would try to make people think he

was crazy. The second inmate, William Roger Moore, testified that the defendant

discussed the crime “at length” with him. The defendant said that he had gone to

Lefever to get some money because he had borrowed money from her in the past.

An argument erupted, he lost his temper, and stabbed her repeatedly with a knife

he had taken from the kitchen. The defendant also told Moore that he was “going

to make a ploy for craziness.”

The defendant did not testify nor did he offer any evidence at the guilt

phase of the trial. Based on the proof presented at the guilt phase, the jury found

Bush guilty of premeditated first degree murder.

The State presented no additional proof during its case-in-chief at the

sentencing phase of the trial, but instead relied upon the evidence presented

during the guilt phase.

Through the videotaped deposition testimony of his grandmother and the

live testimony of his father, sister, and uncle, the defendant presented evidence of

his childhood and alleged mental illness. The defendant was the second of three

children. His father, a Vietnam War veteran, was a truck driver, who abused

alcohol and was away from home for long periods of time when the defendant was

young. His father physically abused the defendant’s mother and singled out the

-9- defendant, who was particularly strong-willed, for strict discipline, beatings and

whippings. The defendant was placed on Ritalin, a medication for hyperactivity, at

a very young age. At the age of three or four, he began sniffing gasoline. At the

age of ten, he seriously injured his head in a bicycle accident. Afterwards, his

personality seemed to change; he became nocturnal, distant and quick tempered.

He was involved in fights at school. He expressed the wish to die, heard voices,

suffered from nightmares, drew pictures of demons and monsters and became

fascinated with death and twins. In 1987 the defendant dropped out of high

school before completing his senior year. In March of 1988, his mother was

diagnosed with terminal colon cancer. In May and June of 1988, he attempted

suicide by overdosing on Tylenol and Advil. At that time he was referred to the

Plateau Mental Health Center for treatment.

Following his arrest in September of 1988, the trial court, upon the request

of his court appointed attorney, referred the defendant to the Middle Tennessee

Mental Health Institute (M.T.M.H.I) for a competency and sanity evaluation. Three

members of the evaluation team, a social worker, Rebecca Jane Smith, Dr.

Gillian Blair, a clinical psychologist, and Dr. John Cain, a psychiatrist, testified that

they had diagnosed the defendant as suffering from schizophrenia paranoid

subtype sub chronic, an adjustment disorder, and substance abuse (inhaling

solvents). Dr. Blair opined that the schizophrenia had begun before the

defendant’s admission to M.T.M.H.I. Dr. Cain said that the defendant had shown

symptoms of schizophrenia beginning in high school. The evaluation team

administered tests to determine whether Bush was malingering. Dr. Blair

administered an “M” test, the results of which indicated that Bush was

-10- schizophrenic and not malingering. In addition, Dr. Cain administered sodium

amitol, popularly known as truth serum. According to Dr. Cain, under the

influence of that drug, Bush’s psychotic symptoms became even more

pronounced which indicated that Bush was not malingering. The W exler Adult

Intelligence Test showed that the defendant had a full scale I.Q. of 96.

In rebuttal the State presented two members of the M.T.M.H.I treatment

team who had worked with the defendant from May to August of 1991 when he

was again admitted for treatment and evaluation. One of these, Dr. Zillur Athar, a

psychiatrist, testified that the defendant was not actively psychotic at that time but

malingering. Dr. Athar diagnosed defendant as suffering from borderline

personality disorder. Edean Gerdes, coordinator for the treatment ward, said that

she had observed the defendant reading books about vampires, which he said

had been given to him by his lawyers.

The State also presented a deputy with the Putnam County sheriff’s

department who had transported the defendant to mental health institutions on

several occasions. He testified that in 1989 the defendant told him “some of the

doctors were easy to fool.” At a later time, the defendant told the deputy that a lot

of the doctors were foreigners and asked silly questions. The defendant’s former

mother-in-law testified that in 1988, when the defendant was married to her

daughter, he was normal, intelligent and quick tempered. She had never

observed any bizarre behavior on his part. A high school friend of the defendant

testified that Bush had been a normal, happy person. On cross-examination,

however, he admitted telling the assistant district attorney in 1989 that in 1988 the

-11- defendant had begun to act strangely and talked about dreams of men killing

people in the Silver Point area.

Based on the proof, the jury determined that the State had proven the

existence of two aggravating circumstances beyond a reasonable doubt (1) “[t]he

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

serious physical abuse beyond that necessary to produce death;” and (2) “[t]he

murder was committed for the purpose of avoiding, interfering with or preventing a

lawful arrest or prosecution of the defendant or another.” Tenn. Code Ann. § 39-

13-204(I)(5) and (6) (1991). In addition, the jury found that the aggravating

circumstances outweighed the mitigating circumstances5 beyond a reasonable

doubt and, as a result, sentenced the defendant to death by electrocution. The

trial court entered a judgment in accordance with the verdict and the Court of

Criminal Appeals affirmed. After reviewing the record and considering the errors

5 The jury was instructed to consider the following mitigating circumstances: (1)T he de fend ant h as no signif ican t histo ry of pr ior cr imin al act ivity; (2) The murder was committed while the defendant was under the influence of extreme mental or emotional disturbance. Extreme mental or emotional disturbance is a temporary state of mind so enraged, inflamed or disturbed as to overcome one’s judgment and to cause one to act from the compelling force of the disturbance rather than for evil or malicious purposes. It is not a mental disturbance in itself and an enraged, inflamed or disturbed emotional state does not constitute an extrem e em otional distur bance unless th ere is a rea sonab le explan ation or ex cuse fo r it; (3) The youth of the defendant at the time of the crime; (4)T he ca pac ity of the defe nda nt to a ppre ciate the w rong fulne ss o f his c ond uct o r to co nfor m h is conduct to the requirements of the law was substantially impaired as a result of mental illness or defect or intoxication which was insufficient to establish a defense to the crime but which substa ntially affected his judgm ent; (5)T he de fend ant w as s ubje cted to ph ysica l and/ or ps ycho logica l abus e or c ruelty d uring his formative years; (6)That the defendant has considerable poetic abilities; (7)That the defendant can be treated in a prison setting; (8)That at a very early age the defendant exhibited signs of mental or emotional disturbance that went untreated; (9) That the defendant was immature for his age and lacked the normal emotional development at the time of the commission of the offense; and (10) Any other mitigating factor which is raised by the evidence produced by either the prosecution or defense at either the guilt or sentencing hearing. That is, you shall consider any aspect of the defendant’s character or record or any aspect of the circumstances of the offense favorable to the defend ant which is suppo rted by the e vidence .

-12- alleged by the defendant, we affirm the judgment of the trial court and Court of

Criminal Appeals.

I.

MOTION TO SUPPRESS

Prior to trial, defense counsel moved to suppress a series of statements

given by Bush to police officers on September 25, 1988, alleging that the

statements were obtained in violation of the defendant’s rights under the Fifth

Amendment to the United States Constitution and Article I, Section 7 of the

Tennessee Constitution. First, Bush alleged that he was not given warnings in

accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966), before he gave the first tape-recorded statement even though he was

subjected to custodial interrogation. As a result, Bush urged that the initial and all

subsequent statements were tainted. Alternatively, Bush asserted that the waiver

of his rights given prior to the second interview was not valid because he was

mentally ill and not competent to knowingly and intelligently waive his Miranda

rights. Finally, Bush contended that the officers continued to question him after he

invoked his Fifth Amendment right to counsel.

An evidentiary hearing was held on the motion to suppress. Sheriff Abston

testified that on Sunday, September 25, 1988, he was contacted by his office that

Larry Bush wanted to bring his son to the jail to discuss the Jodie Lefever

homicide. Defendant, along with his father, met Sheriff Abston at the county jail

around 1:30 p.m. Larry Bush told Sheriff Abston that the defendant wanted to

make a statement that he was with the people who murdered Lefever. Because

-13- the jail was crowded with visitors on Sundays, and because Bush indicated that he

also had information about an unrelated homicide that had occurred in the city of

Cookeville, Sheriff Abston asked the defendant and his father if they would be

willing to go with him to the Cookeville police station to discuss the case. They

agreed. Larry Bush rode in the front passenger seat of a deputy sheriff’s patrol

car and the defendant rode, unrestrained, in the back seat of the same car.

At approximately 2:47 p.m., officer Bob Terry, Sheriff Abston, and the

defendant entered an investigator’s office, where the defendant gave a tape-

recorded statement, admitting his presence during the murder of Lefever, but

denying his involvement in the crime. Essentially, Bush told law enforcement

officials that he had received a phone call, in which the unknown caller threatened

to harm his family if he did not follow the caller’s instructions. Bush believed the

caller, and as instructed, went to Lefever’s home where he was met by four

unknown hooded men who forced him to knock on the door so they could gain

entry to Lefever’s home. Bush recounted how the hooded intruders beat and

eventually murdered Lefever.

When this interview ended, Sheriff Abston and Officer Terry left the room,

and were approached in the hallway by Deputy Doug Burgess and T.B.I. agent

Larry O’Rear who told them that Shelia Bush, the defendant ‘s wife, had given a

statement at the Putnam County sheriff’s office in which she had implicated

Michael Bush and said that he had admitted to her that he had killed Lefever.

Upon receiving this information, Sheriff Abston testified that he then considered

the defendant to be a suspect in the homicide. Bush was given his Miranda

-14- warnings for the first time at approximately 4:17 p.m. He signed a waiver of those

rights, and a second tape-recorded interview was conducted during which Bush

basically repeated the information given in his first statement. In addition, Bush

described the position in which Lefever was lying when he left her home, and he

told officers that, at the direction of the hooded men, he had disposed of the

pieces of the stick used to beat Lefever and a knife near a boat ramp on Center

Hill Dam. This second interview ended when Bush and Officer Terry became

involved in a heated discussion about the defendant’s involvement in the murder.

A third interview began at approximately 6:04 in which Bush gave a

statement about the unrelated Cookeville homicide. However, Bush requested an

attorney during this session and the police officers testified that all questioning

then ceased.

David Brady, the attorney appointed to represent Bush after he requested

counsel testified that the trial judge contacted him around 10:00 p.m. and he saw

Bush at approximately 11:00 p.m. According to Brady, Bush was strangely calm

and detached and his answers to questions were vague and non-specific. Brady

considered Bush’s behavior unusual and requested a psychiatric evaluation.

Dr. Blair, the clinical psychologist who had examined Bush in early 1989

when he was first referred to M.T.M.H.I. for a competency evaluation also testified

at the suppression hearing. Dr. Blair opined, based upon her examinations of the

defendant and review of the taped statements, that the defendant was suffering

from paranoid schizophrenia when he executed the waiver of his rights prior to the

-15- second tape-recorded interview and that the waiver was not “a product of rational

reasoning.”

Law enforcement officials who conducted the interviews with Bush all

testified that he was coherent and responsive to questioning and appeared

normal. Bush did not, according to the officers, discuss demons, vampires, or

other delusions. In addition, Sheriff Abston testified that neither the defendant nor

Larry Bush indicated that there was any problem with the defendant’s mental

condition at the time he came in to give the statement.

Upon considering the proof, the trial judge denied the motion to suppress

finding that (1) Bush was not entitled to Miranda warnings prior to the initial

interview because he was not subjected to custodial interrogation; (2) Bush was

not a suspect in the mind of Sheriff Abston until after the conclusion of the initial

interview; (3) Bush was advised of his Miranda rights before the second interview;

and knowingly and intelligently waived those rights; and (4) Bush was not

questioned further after he invoked his Fifth Amendment right to counsel. The trial

court’s denial of the motion was affirmed by the Court of Criminal Appeals.

A. Custodial Interrogation

Defendant first urges, in this Court, that the statements should have been

suppressed because he was not advised of his Miranda warnings even though he

was in custody when he gave the first tape-recorded statement. In reviewing this

issue, we are mindful that an appellate court must uphold a trial court’s findings of

fact in a suppression hearing unless the evidence in the record preponderates

-16- against those findings. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).

We begin our analysis of this issue with the Miranda decision in which the

United States Supreme Court held that a defendant’s statements given during

custodial police interrogation are inadmissible as evidence in the State’s case-in-

chief unless the State establishes that the defendant was advised of certain

constitutional rights and waived those rights. Specifically, Miranda requires police

to inform the person being questioned that (a) he has the right to remain silent; (b)

any statement made may be used as evidence against him; (c) he has the right to

the presence of an attorney; and (d) if he can not afford an attorney, one will be

appointed for him prior to questioning, if he so desires. Id., 384 U.S. at 444, 86

S.Ct. at 1612.

However, police officers are only obligated to administer Miranda warnings

prior to “custodial interrogation” which has been defined as a “formal arrest or

restraint on freedom of movement of the degree associated with a formal arrest.”

Stansbury v. California, 511 U.S. 318, 114 S.Ct. 1526, 1529, 128 L.Ed.2d 293

(1994). The United States Supreme Court has held that it is appropriate to apply

an objective test to determine whether a person is in custody and therefore

entitled to receive Miranda warnings. Courts must consider the totality of the

circumstances of the interrogation and inquire “how a reasonable man in the

suspect’s position would have understood his situation.” Berkemer v. McCarty,

468 U.S. 420, 422, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317 (1984); see also

Stansbury, 511 U.S. at ___, 114 S.Ct. at 1529. The United States Supreme

Court has emphasized, however, that “any inquiry into whether the interrogating

-17- officers have focused their suspicions upon the individual being questioned

(assuming those suspicions remain undisclosed) is not relevant for purposes of

Miranda.” Stansbury, 511 U.S. at ___, 114 S.Ct. at 1530.

Recently, this Court, in State v. Anderson, __ S.W.2d ___ (Tenn. 1996),

expressly adopted the objective analysis employed by the United States Supreme

Court and rejected as irrelevant to the determination of custody any inquiry into

the subjective beliefs of law enforcement officials about the culpability or guilt of

the person being questioned. We adopted several nonexclusive factors to aid in

the objective assessment of whether a reasonable person would consider himself

or herself deprived of freedom of movement to a degree associated with a formal

arrest. Relevant factors include (1) the time and location of the interrogation; (2)

the duration and character of the questioning; (3) the officer’s tone of voice and

general demeanor; (4) the method of transportation to the place of questioning; (5)

the number of police officers present; (6) limitations on movement or other forms

of restraint imposed during the interrogation; (7) interactions between the officer

and the person being questioned, including the words spoken by the officer and

the verbal or nonverbal responses of the person being questioned; (8) the extent

to which the person being questioned is confronted with the officer’s suspicions of

guilt or evidence of guilt; and finally (9) the extent to which the person being

questioned is aware that he or she is free to refrain from answering questions or to

end the interview at will. Anderson, ___ S.W.2d at ___.

Considering the totality of the circumstances, including the factors

delineated in Anderson, the evidence in this record does not preponderate against

-18- the lower courts’ finding that Bush was not in custody when he was initially

interviewed by law enforcement officials. Bush initiated the contact with Sheriff

Abston. He asked his father to go with him to the Putnam County Sheriff’s office.

Indeed, Sheriff Abston was called from the golf course on a Sunday by his office

to meet Bush. He voluntarily sought to give information about the murder of Jodie

Lefever. Bush and his father agreed to accompany Sheriff Abston to the

Cookeville police department to further discuss the case. Although Bush was

transported to the Cookeville police department in a patrol car, he was not

restrained, and his father rode along in the front seat of the same car. Bush was

not restrained upon arrival at the police station nor during the interview. Only two

officers were present during the initial interview, and they did not accuse Bush of

the crime or question the truth of his story. Indeed, Bush did most of the talking

and seemed eager to give the statement, with the officers asking very few

questions. While Bush was not told that he was free to leave, he was also never

told that he could not leave, and he did not at any point attempt to leave. Finally,

even assuming, as the defense argues, that law enforcement officials were aware

of Shelia Bush’s statement and considered the defendant a suspect from the

moment he arrived at the sheriff’s office, that has no bearing on the determination

of whether Michael Bush was in custody. The undisclosed knowledge or

suspicions of law enforcement officials are irrelevant to the question of whether a

reasonable person in the position of Michael Bush would have considered himself

deprived of freedom of movement to a degree associated with a formal arrest.

The evidence in the record does not preponderate against the trial court and Court

of Criminal Appeals’ determination that Bush was not in custody during the initial

interview. Therefore, this issue is without merit.

-19- B. Waiver of Rights

Bush next contends that the statements resulting from the second, and any

subsequent interviews, should have been suppressed because he presented

expert testimony at the suppression hearing that he was not competent to make a

knowing and intelligent waiver of his Miranda rights. Essentially Bush argues that

because the State did not offer expert proof on his mental condition, the validity of

the waiver was not established. As support for his argument, the defendant relies

upon State v. Hammock, 867 S.W.2d 8 (Tenn. Crim. App. 1993). In that case,

defendant presented unequivocal expert testimony to establish that he was legally

insane at the time he committed the murders. Rather than presenting expert proof

to contradict the defendant’s claim, the State relied upon lay witnesses who

testified to the defendant’s appearance and actions. Under those circumstances,

the Court of Criminal Appeals reversed the defendant’s convictions finding that the

State had failed to prove sanity beyond a reasonable doubt. In Hammock,

therefore, the Court of Criminal Appeals was concerned with the sufficiency of the

evidence to establish the offense. No waiver issues were involved.

Contrary to the defendant’s assertion, Hammock should not be read as

establishing the broad proposition that the State must introduce expert proof that a

waiver was knowingly and intelligently executed whenever a defendant introduces

expert testimony to the contrary. Unlike the element of sanity in Hammock which

required proof beyond a reasonable doubt, the State need only prove waiver by a

preponderance of the evidence. Colorado v. Connelly, 479 U.S. 157, 173, 107

S.Ct. 515, 523, 93 L.Ed.2d 473 (1986). In determining whether the State has

satisfied that burden of proof, courts must look to the totality of the circumstances.

-20- State v. Middlebrooks, 840 S.W.2d 317, 326 (Tenn. 1992). Applying those

principles, the trial court in this case concluded that the waiver was valid. The

evidence does not preponderate against that finding.

Even assuming, as Dr. Blair testified, that Bush executed the waiver

because he was suffering from paranoid schizophrenia, that fact does not render

the waiver invalid. The United States Supreme Court in Connelly, supra, refused

to adopt a “free will” rule that would require a court to find a waiver invalid

whenever a defendant feels compelled by a mental illness to waive his rights. In

so holding, the Court stated

Miranda protects defendants against government coercion leading them to surrender rights protected by the Fifth Amendment; it goes no further . Respondent’s perception of coercion flowing from the “voice of God,” however important or significant such a perception may be in other disciplines, is a matter to which the United States Constitution does not speak.

Connelly, 479 U.S. at 174, 107 S.Ct. at 524. Here, as in Connelly, there is no

proof of police overreaching. Law enforcement officials testified that Bush

appeared normal, was coherent and responsive to questioning, and did not

discuss demons, vampires, or other delusions. Therefore, in the absence of

police overreaching, the trial court and Court of Criminal Appeals did not err in

upholding the validity of the waiver, even assuming that the defendant’s decision

to execute the waiver could have been influenced by mental illness.

C. Right to Counsel

In his final argument for suppression of his statements defendant contends

-21- that the Court of Criminal Appeals mistakenly characterized his right to counsel

claim as an alleged violation of the Sixth rather than the Fifth Amendment. We

disagree. The Court of Criminal Appeals simply noted that the Sixth Amendment

right to counsel does not attach until after formal proceedings have begun. The

intermediate court then recognized the applicability of the Fifth Amendment right

to counsel. The Court of Criminal Appeals concluded that when the defendant

invoked his Fifth Amendment right to counsel, questioning ceased and an attorney

was appointed. The Court of Criminal Appeals therefore affirmed the trial court’s

finding that no violation of the defendant’s Fifth Amendment right to counsel

occurred. The evidence in the record does not preponderate against that finding.

This issue is without merit.

II.

SUFFICIENCY OF THE EVIDENCE

Relying upon State v. Brown, 836 S.W.2d 530 (Tenn. 1992), defendant

next contends that the trial court and Court of Criminal Appeals erred in finding the

evidence sufficient to establish premeditation and deliberation. In considering this

claim, we apply the familiar rule that where the sufficiency of the convicting

evidence is challenged, the relevant question for an appellate court is whether,

after reviewing the evidence in the light most favorable to the State, any rational

trier of fact could have found the defendant guilty beyond a reasonable doubt.

Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979); State v. Cazes, 875 S.W.2d 253 (Tenn. 1994).

-22- At the time the offense was committed, premeditated first degree murder

was defined as the “willful, deliberate, malicious and premeditated killing of

another.” Tenn. Code Ann. § 39-2-202(a)(1) (Supp. 1988).6 In Brown, supra, we

stated that premeditation and deliberation are not synonymous terms. While the

existence of both elements may be established by circumstantial evidence alone,

premeditation requires proof of a previous intent to kill, while deliberation requires

proof of a “cool purpose” that includes some period of reflection during which the

mind is free from passion and excitement. Id. at 539.

With respect to deliberation, the proof shows that the defendant announced

to his wife that he knew “a woman he could knock in the head and get some

money.” Since Bush was acquainted with Lefever, he necessarily knew she was a

frail, elderly lady. Despite that knowledge he took a board with him to her house

to accomplish his stated intention. Evidence of procurement of a weapon is

probative to prove premeditation. Brown, 836 S.W.2d at 541. After Bush broke

the board by striking the victim with it, he did not end the assault but procured a

second weapon, the butcher knife, from the kitchen and proceeded to stab

Lefever forty-three times down the side of her head and on her back.

With respect to deliberation, the evidence shows that before opening the

drawer to obtain the butcher knife, Bush removed his shirt and wrapped his hand

in what reasonably can be inferred to be an attempt to avoid leaving fingerprints.

After stabbing Lefever forty-three times, Bush maintained the presence of mind

6 That s tatute has now be en replac ed by Te nn. Cod e Ann. § 39-13-2 02(a)(1 ) (Supp . 1996).

-23- and took the time to collect the broken board. He walked back to the designated

place and met his wife, and from there he immediately directed his wife to drive

him to Center Hill Lake where he disposed of the evidence. These facts are

sufficient to establish that the killing was committed with deliberation and in the

absence of passion. State v. West, 844 S.W.2d 144, 148 (Tenn. 1992).

Considering the proof in this record in the light most favorable to the State,

as we are required to do, we agree with the Court of Criminal Appeals that the

evidence is sufficient to establish premeditation and deliberation.

III.

REBUTTAL PSYCHIATRIC EVIDENCE

Defendant next contends that the testimony of Dr. Athar, a psychiatrist who

had treated defendant in 1991 while he was a patient at M.T.M.H.I, and Endean

Gerdes, the treatment coordinator at M.T.M.H.I., introduced at the sentencing

hearing by the State to rebut the mitigating evidence that the defendant was

mentally ill, was obtained in violation of his Sixth Amendment right to counsel and

his Fifth Amendment right to remain silent.

In Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981),

the United States Supreme Court held that the Fifth Amendment right against

compelled self-incrimination precludes the State from subjecting a capital

defendant to a psychiatric examination concerning future dangerousness without

first informing the defendant that he has a right to remain silent and that anything

-24- he says can be used against him at the sentencing proceeding. Id., 451 U.S. at

471, 101 S.Ct. at 1872-76. Once a capital defendant is formally charged, the

Sixth Amendment right to counsel precludes such an examination unless defense

counsel is first notified that the psychiatric examination will encompass the issue

of the defendant’s future dangerousness. Id., 451 U.S. at 471, 101 S.Ct. 1877;

see also Powell v. Texas, 492 U.S. 680, 109 S.Ct. 3146, 106 L.Ed.2d 551 (1989).

When a capital defendant asserts a mental status defense, however, he waives

the right to raise a Fifth Amendment challenge to the prosecution’s use of

evidence obtained through the psychiatric examination to rebut the defense.

Buchanan v. Kentucky, 483 U.S. 4022, 422-23, 107 S.Ct. 2906, 2917, 2918

(1987). Likewise, the United States Supreme Court has stated that there is no

Sixth Amendment violation where defense counsel requests the psychiatric

evaluation and is on notice that if a mental status defense is presented,

psychological evidence will be used by the State in rebuttal. Id.

Applying those principles to the facts in this case, we agree with the Court

of Criminal Appeals’ conclusion that the State’s rebuttal testimony was

appropriately introduced. Defense counsel requested the first mental evaluation

in this case and was notified of each subsequent psychiatric evaluation which was

court ordered at the request of either the defendant or the State. Bush relied

upon his mental status at the time of the offense as a mitigating circumstance in

the penalty phase of the trial. Accordingly, introduction of the rebuttal testimony

did not violate the defendant’s Fifth or Sixth Amendment rights.

IV.

-25- LIFE IMPRISONMENT AND PAROLE ELIGIBILITY

Approximately fifteen minutes after deliberations began in the sentencing

phase of this case, the jury sent a note to the trial court asking, “How many years

does the [defendant] serve if he gets life imprisonment and how long before

parole?” Counsel for Bush requested that the jury be instructed that under

present law the defendant would have to serve a minimum of thirty calendar years

before becoming eligible for parole. In addition, counsel requested that the jury be

instructed that a life sentence is literally a life sentence since Bush has no

absolute legal right to parole even though he might at some point become parole

eligible. The trial judge denied defense counsel’s request, and instead, instructed

the jury that “parole eligibility is not an issue in a capital case. . . .” The Court of

Criminal Appeals affirmed the trial court’s action.

Relying upon a recent United States Supreme Court decision, Simmons v.

South Carolina, ___ U.S. ____, 114 S.Ct. 1392, 129 L.Ed.2d 133 (1994), the

defendant contends in this Court that the trial court’s response to the jury question

violated his right to Due Process. We disagree.

In Simmons, the prosecution was allowed to argue future dangerousness to

the jury as a basis supporting imposition of the death penalty. Simmons sought to

rebut the prosecution’s generalized argument in two ways. First, he attempted to

introduce proof that due to his unique psychological problems, his future

dangerousness was limited to elderly women and would not be a threat in a prison

setting where he would have no contact with such individuals. Secondly,

Simmons sought to introduce proof that under South Carolina law, he would not

-26- be eligible for parole if sentenced to life imprisonment and therefore would never

pose a future danger to elderly women. The trial judge refused to allow Simmons

to offer any rebuttal proof of his parole ineligibility and also refused Simmons

requested jury instruction defining a life sentence as “imprisonment in the state

penitentiary for the balance of his natural life.”

After deliberating ninety minutes on the appropriate sentence, the jury sent

a note to the judge asking, “Does the imposition of a life sentence carry with it the

possibility of parole?” Over Simmons’ objection, the trial judge instructed the jury

“not to consider parole or parole eligibility in reaching your verdict. That is not a

proper issue for your consideration. The terms life imprisonment and death

sentence are to be understood in their plan [sic] and ordinary meaning.” Twenty-

five minutes later the jury returned to the courtroom with a sentence of death.

On appeal to the United States Supreme Court, Simmons claimed that the

trial court’s refusal to allow proof or instruction about his parole ineligibility violated

his rights under the Due Process Clause. A majority of the Court in Simmons

agreed and held that “where the defendant’s future dangerousness is at issue,

and state law prohibits the defendant’s release on parole, due process requires

that the sentencing jury be informed that the defendant is parole ineligible.”

Simmons, ___ U.S. at ___, 114 S.Ct. at 2190. If parole is an option for a

defendant sentenced to life imprisonment, however, the Simmons Court

emphasized that it will not second-guess the refusal of a State to allow proof,

instruction, or argument to the jury on the availability of parole. Simmons, ___

U.S. at ___, 114 S.Ct. at 2196; see also Simmons, ___ U.S. at ___, 114 S.Ct. at

-27- 2200 (O’Connor, J., concurring) (“In a state in which parole is available, the

Constitution does not require (or preclude) jury consideration of that fact.”)

Since Tennessee is a state in which defendants sentenced to life

imprisonment are eligible for parole, Simmons does not require that the jury be

given information about parole availability. 7 Indeed, the trial court’s refusal to give

defendant’s requested response to the jury question was entirely consistent with

prior decisions of this Court holding that the after-effect of a jury’s verdict, such as

parole availability, is not a proper instruction or consideration for the jury during

deliberations. State v. Caughron, 855 S.W.2d 526, 543 (Tenn. 1993); State v.

Payne, 791 S.W.2d 10, 21 (Tenn. 1990).8 Accordingly, we conclude that the trial

court did not err by refusing to respond to the jury’s question as the defendant

requested.

V.

MURDER TO PREVENT ARREST - AGGRAVATING CIRCUMSTANCE (I)(6)

7 We also note that unlike Simmons , the trial judge in this case appropriately did not allow the State to argue fu ture dan gerous ness to the jury as a basis for impos ition of the de ath pena lty. At one point during the closing argument prosecution counsel commented, “It’s not going to protect the other Jodie Lefevers of the world.” Defense counsel immediately objected and the trial judge sustained the objection.

8 Effective July 1, 1993, the available punishments for first degree murder are now (1) death; (2) imprisonment for life without possibility of parole; or (3) imprisonment for life. Tenn. Code Ann. § 39-13-202 (b) (1996 Supp.). Prior to that enactment, the only available punishment options for first degree murder were death and life with the possibility of parole. Another part of the recent legislative enactment requires that jurors now be instructed “that a defendant who receives a sentence of imprisonment for life shall not be eligible for parole consideration until the defendant has served at least twenty-five (25) full calendar years of such sentence.” In addition, jurors must be informed that “a defendant who receives a sentence of imprisonment for life without possibility of parole shall never be eligible for release on parole.” Tenn. Code Ann. § 39-13-204(e)(2) (1996 Supp.).

-28- With respect to this issue, defendant first argues that, if interpreted to apply

under the facts of this case, the aggravating circumstance, “the murder was

committed for the purpose of avoiding, interfering with, or preventing a lawful

arrest or prosecution of the defendant or another” violates the narrowing principles

adopted by a majority of this Court in State v. Middlebrooks, 840 S.W.2d 317

(Tenn. 1992). The only basis for finding the aggravating circumstance in this

case, according to the defendant, is the theory that he killed the victim to prevent

his arrest for killing her, a theory and circumstance arguably present in every first

degree murder in which the victim knows the murderer. Defendant urges this

Court to adopt a narrowing construction of the aggravating circumstance and find

the evidence in this case insufficient to support its application.

This Court has previously held that to establish the applicability of this

aggravating circumstance, the State must prove that avoidance of prosecution or

arrest was one of the purposes motivating the killing. State v. Smith, 868 S.W.2d

561, 581 (Tenn. 1993). We have refused to narrow the application of the

circumstance to only those killings which are solely or predominantly motivated by

a desire to avoid arrest or prosecution. State v. Carter, 714 S.W.2d 241, 250

(Tenn. 1986) (avoidance of arrest need not be sole motive for murder). While we

agree with the defendant that the aggravating circumstance logically can not and

does not apply when the only theory advanced by the State is that the victim was

killed to prevent the defendant from being arrested or prosecuted for the killing,

we do not agree that was the only theory advanced by the State and supported by

the proof, in this record.

-29- Indeed, as the Court of Criminal Appeals observed, the evidence supports

the conclusion that the victim was killed to prevent the defendant’s apprehension

and prosecution for the separate offense of burglary of which the defendant was

convicted. The proof shows that the defendant intended to “get” money from a

victim with whom he was well-acquainted. By refusing to reveal the residence or

identity of the intended victim to his wife, the defendant was obviously attempting

to avoid having anyone witness the crime. By his own statement, the defendant

admitted that the victim recognized him. The proof therefore supports the jury’s

finding that one purpose of the murder was to avoid prosecution or arrest. See

also State v. Smith, 857 S.W.2d 1, 14 (Tenn. 1993); State v. Evans, 838 S.W.2d

185 (Tenn. 1992); State v. Thompson, 768 S.W.2d 239 (Tenn. 1989); State v.

Irick, 762 S.W.2d 121 (Tenn. 1988); State v. Coe, 655 S.W.2d 903 (Tenn. 1983).

The facts of this case are distinguishable from State v. Branam, 855

S.W.2d 563 (Tenn. 1993), on which the defendant relies. In Branam, the proof

showed that the killer was a person whom the victim did not know, and the

defendant, whom the victim knew, remained out of the victim’s sight. Therefore,

there was no proof that the victim could have identified the triggerman or the

defendant, and therefore, no proof that one purpose motivating the killing was

avoidance of prosecution or arrest.

Application of the aggravating circumstance also does not violate the

narrowing principles of Middlebrooks. In Middlebrooks, a majority of this Court

held that when a defendant is convicted of the statutory offense of felony murder,

the felony murder aggravating circumstance, which duplicates the elements of the

-30- underlying offense, does not sufficiently narrow the class of persons eligible for

the death penalty and can not be relied upon as a basis for imposition of the death

penalty.

In this case, the defendant was convicted of premeditated first degree

murder which required the State prove, beyond a reasonable doubt, the willful,

deliberate, malicious and premeditated killing of another. The State was not

statutorily required to prove, as part of the offense, that one purpose motivating

the killing was the avoidance of arrest or prosecution. Therefore, the aggravating

circumstance does not duplicate the elements of the underlying offense and

sufficiently narrows the class of persons eligible for the death penalty. Cf. State v.

Stephenson, 878 S.W.2d 530 (Tenn. 1994) (murder for renumeration).

Consequently, we decline the defendant’s invitation to further limit application of

the aggravating circumstance.

VI.

JURY INSTRUCTION - AGGRAVATING CIRCUMSTANCE (i)(5)

In his final issue, the defendant contends that the jury was not properly

instructed with respect to the remaining aggravating circumstances. Jodie

Lefever was murdered in 1988. At the time of the killing, one of the aggravating

circumstances upon which the State relied was defined by statute as “[t]he murder

was especially heinous, atrocious, or cruel in that it involved torture or depravity of

mind.” See Tenn. Code Ann. § 39-2-203(I)(5)(1982). In 1989, the statute was

amended and the aggravating circumstance redefined as “[t]he murder was

-31- especially heinous, atrocious, or cruel in that it involved torture or serious physical

abuse beyond that necessary to produce death.” Tenn. Code Ann. § 39-13-

204(I)(5)(1991)(emphasis added).

The trial of this defendant was held in February of 1993. The trial court,

without objection from the defense or the State, instructed the jury in the language

of the 1989 statute, rather than in accordance with the law as it existed when the

offense was committed in 1988. Under decisions of this Court rendered after the

trial of this case,9 it is clear that the sentencing hearing should have been

conducted in accordance with the 1988 law, the law in effect at the time of the

commission of the offense. State v. Brimmer, 876 S.W.2d 75, 82 (Tenn. 1994).

Therefore, instructing the jury in the terms of the amended statute was

erroneous. The defendant argues that he is entitled to a new sentencing hearing

which must be conducted in accordance with the law in effect at the time the

offense was committed. The State argues that the error was harmless and relies

upon the decision of the Court of Criminal Appeals which held that the error was

harmless beyond a reasonable doubt because the amended definition of the

aggravating circumstance “required a higher burden on the State to prove that the

act involved torture or serious physical abuse.” While we do not agree with the

intermediate court that the amended definition imposed a higher burden upon the

State, we have determined, for the reasons explained below, that the erroneous

jury instruction is harmless beyond a reasonable doubt and does not “affirmatively

9 W e em pha size th at the reco rd in th is cas e ref lects that th e trial c ourt c ons cien tious ly app lied cu rren t and availa ble law to en sure that th is def end ant re ceive d a fa ir trial.

-32- appear to have affected the result of the trial on the merits.” Tenn. R. App. P.

36(b); Tenn. R. Crim. P. 52(a).

The 1989 version of the aggravating circumstance is different from the

1988 version in that it substitutes the phrase “serious physical abuse beyond that

necessary to produce death” for the phrase “depravity of mind.” The aggravating

circumstance is redefined. Unlike the Court of Criminal Appeals, we consider the

amendment a substantive change which imposes not a different level of proof

upon the State, but different factors of proof. Therefore, it is not accurate to

broadly characterize an instructional error such as that complained of on appeal in

this case as beneficial to the defendant.10 Depending upon the facts of the case,

such an error could conceivably be beneficial to the State. We do not agree,

however, with the defendant’s argument that such an error always requires

reversal and may never be harmless. The defendant’s reliance upon State v.

Stephenson, 875 S.W.2d 530 (Tenn. 1994) is misplaced. The circumstances in

Stephenson were unique and are not present in this case. The jury was instructed

and returned a verdict in accordance with 1988 law, though the offense was

committed after the statute was amended in 1989. The defendant was therefore

10 The entire sentencing hearing in this case was conducted in accordance with the 1989 law. Clearly, portions of that statute are beneficial to the defendant in all cases and impose a higher burden upon the State. For example, the 1989 statute explicitly requires the State to prove the existence of aggravating circumstances beyond a reasonable doubt and must establish that the aggravating circumstances outweigh mitigating circumstances beyond a reasonable doubt. Tenn. Code Ann. § 39-13-204(f) & (g) (1991 Repl). In contrast, the 1982 statute required only a showing that there were no mitigating circumstances sufficiently substantial to outweigh the aggravating circumstances. Tenn. Code Ann. § 39-2-203(g)(2)(1982 Repl.). In addition, unlike the 1982 statute, the 1989 statute entitles a defendant to instructions on non-statutory mitigating circumstances. Tenn. Code Ann. § 39-13-204(e) (1991 Repl) & Odom , supra. Give n the over all benefits, it is certainly conceivable that a defendant would prefer instructions in accordance with the 1989 statute. We again emphasize that the instruction now complained of as error was not challeng ed in the trial co urt.

-33- deprived of the previously noted benefits of the 1989 law. When the error was

called to the trial court’s attention, the jurors were recalled, some two weeks after

the trial, and questioned by the trial court to establish that the erroneous jury

instructions had no impact on the verdict rendered, a procedure that was clearly

inappropriate. Under such circumstances, this Court found that error required

reversal. Unlike Stephenson, the instructional error in this case is harmless for

two reasons.

First, this aggravating circumstance was sufficiently proven by evidence of

torture, independent of the depravity or serious physical abuse prong of the

aggravating circumstance. State v. Hines, 919 S.W.2d 573, 587 (Tenn. 1995).

The trial court correctly instructed the jury as to the definitions of the terms

“heinous,” “atrocious,” and “cruel” in accordance with this Court’s decision in State

v. Williams, 690 S.W.2d 517, 529 (Tenn. 1985). Also in accordance with

Williams, the trial court instructed the jury that “torture” means “the infliction of

severe physical or mental pain upon the victim while he or she remains alive or

conscious.” Id. The proof introduced by the State during the trial clearly

established torture. The victim was initially assaulted and knocked to the floor by

the defendant. While she was lying helpless on the floor, the defendant retrieved

a butcher knife, returned to the den, and began stabbing her. Dr. Harlan testified

that the victim would have been alive and conscious for at least three to five

minutes during the assault, and possibly as long as thirty minutes. The pain of the

stabbing during that period of consciousness would have been comparable,

according to Dr. Harlan, to undergoing surgery without an anesthetic. Therefore,

based upon the proof in this record, we are convinced beyond a reasonable doubt

-34- that had the sentencing jury given no weight to the invalid aggravating criteria

[serious physical abuse], the defendant’s sentence would have been the same.

State v. Howell, 868 S.W.2d 238, 260-61 (Tenn. 1993). Therefore the error does

not affirmatively appear to have affected the result of the sentencing hearing.

Alternatively, we are convinced beyond a reasonable doubt that had the

jury been properly instructed, it would have found the evidence sufficient to

establish depravity of mind beyond a reasonable doubt. In Williams, this Court

stated that depravity is inherent in the state of mind of a murderer who willfully

inflicts severe physical or mental pain on a victim prior to death or at a time very

close to the victim’s death. Id., 690 S.W.2d at 529. In this case the defendant

beat and stabbed the victim, a person whom he knew, and later boasted about

how he had practiced karate on Lefever. Such evidence clearly establishes that

the defendant willfully inflicted severe physical pain upon the victim. Accordingly,

we conclude that had the jury been properly instructed it would have found

depravity of mind. Therefore, the instructional error in this case does not

affirmatively appear to have affected the verdict and is harmless beyond a

reasonable doubt.

VII.

PROPORTIONALITY REVIEW

In accordance with the mandate of Tenn. Code Ann. § 39-13-

206(c)(1)(1991 Repl.), we have considered the entire record in this cause and find

that the sentence of death was not imposed in any arbitrary fashion; that the

-35- evidence supports, as previously discussed, the jury’s findings of the statutory

aggravating circumstances; and the jury’s finding that the aggravating

circumstances outweigh mitigating circumstances beyond a reasonable doubt.

Tenn. Code Ann. § 39-13-206(c)(1)(A)-(C)(1991 Repl.). Finally, comparative

proportionality review convinces us that the sentence of death is neither excessive

nor disproportionate to the penalty imposed in similar cases considering the

nature of the crime and the defendant. Tenn. Code Ann. § 39-13-206(c)(1)(D)

(1991 Repl.).

Our 1977 statute created a comparative proportionality review to serve as

an additional safeguard against arbitrary or capricious sentencing. Such review of

death cases insures rationality and consistency in the imposition of the death

penalty. We have studied, compared, and analyzed cases and conducted a

meaningful proportionality review as outlined in State v. Barber, 753 S.W.2d 659,

663-68 (Tenn. 1988). We have reviewed Rule 12 reports from trial judges

submitted over the past eighteen years in all criminal trials for first degree murder

in which life imprisonment or a sentence of death has been imposed. We have

made an independent, conscientious and thorough review of this case, as we

have in every other capital case that has come before this Court. As a result of

that review, we are of the opinion that the senseless, gruesome, premeditated

killing of this innocent, helpless, elderly woman clearly warrants the imposition of

the death penalty. Defendant’s deliberate acts showed a total disregard for

human life. The victim, a seventy-nine year old widow, was the best friend of the

defendant’s grandmother. The defendant used this relationship to gain access to

her home. The defendant savagely beat the victim with a stick and then stabbed

-36- her forty-three times. This brutal murder places the defendant Bush into the class

of defendants deserving capital punishment and is not disproportionate to the

sentences imposed in similar cases. See State v. Van Tran, 864 S.W.2d 465

(Tenn. 1993); State v. McNish, 722 S.W.2d 490 (Tenn. 1987); State v. Harbison,

704 S.W.2d 314 (Tenn. 1986); State v. Barnes, 703 S.W.2d 611 (Tenn. 1985);

State v. Cone, 665 S.W.2d 87 (Tenn. 1984); State v. Campbell, 664 S.W.2d 281

(Tenn. 1984); State v. Melson, 638 S.W.2d 342 (Tenn. 1982).

CONCLUSION

We have considered the defendant’s assignments of error and determined

that none affirmatively appear to have affected the verdict of the trial or the

sentencing proceeding. With respect to issues not specifically addressed herein,

we affirm the well-reasoned decision of the Court of Criminal Appeals, authored

by Judge David Hayes and joined in by Judge Paul G. Summers and Judge

William M. Barker. Relevant portions of that opinion are published hereafter as an

appendix. The defendant’s conviction for first degree murder and sentence of

death by electrocution are affirmed. The sentence of death will be carried out as

provided by law on the 7th day of July 1997 unless otherwise ordered by this

Court, or other proper authorities. Costs of this appeal are adjudged against the

defendant.

_____________________________________ Frank F. Drowota, III Justice

-37- Concur:

Anderson, Holder, JJ.

Reid, J., Concurring by Separate Opinion

Birch, C.J., Dissenting by Separate Opinion

-38- Appendix (Excerpts from the Court of Criminal Appeals’ Decision)

-39- -40- 3. THE MARITAL PRIVILEGE

A. WHETHER THE TRIAL COURT ERRED IN OVERRULING THE

APPELLANT'S MOTION TO SUPPRESS THE TESTIMONY OF SHEILA

BUSH HAMMOCK

The appellant contends that the marital privilege should have barred, at

trial, the testimony of Sheila Bush Hammock concerning statements made by the

appellant to Ms. Hammock during their marriage. Specifically, the appellant

argues that, because the trial court restricted examination of Ms. Hammock at the

suppression hearing to "the circumstances under which any statements were

made that might be attributable or not attributable to some marital privilege," the

court was unable to properly determine whether the appellant could invoke the

privilege. In other words, according to the appellant, testimony concerning "the

details and contents of the statements" was essential to the resolution of the

appellant's motion.

The suppression hearing was held on June 9, 1992. At the hearing, Ms.

Hammock testified that she had married the appellant on August 13, 1988, three

days prior to the murder of Jodie Lefever. She further testified that she and the

appellant had been dating "off and on two years" before their marriage. Both

before and after their marriage, the appellant "threatened" and "beat" Ms.

Hammock. Ms. Hammock also stated, "He would always call me names and

make fun of me. I couldn't say anything right." Moreover, following their

marriage, while the appellant and Ms. Hammock were living with her mother, the

-41- appellant would not allow Ms. Hammock to visit friends. After they moved to his

parents' house, the appellant would not allow her to visit her mother.

Ms. Hammock concluded that she "was just scared of Michael," and that

her relationship with the appellant was a relationship built upon fear and threats.

For example, after the appellant admitted to her that he had killed Ms. Lefever, he

told Ms. Hammock that the Mafia was watching her, and that, if she ever told

anyone what he had done, she would be killed. On the day that Ms. Hammock

decided to leave the appellant, he again physically abused her. The State

introduced into evidence a picture of bruises that Ms. Hammock suffered as a

result of the appellant's abuse. At the time of the suppression hearing, Ms.

Hammock and the appellant had been divorced for approximately two years.

The rule of marital privilege applicable in the appellant's case was

announced by our supreme court in McCormick v. State, 186 S.W. 95 (Tenn.

1916).11 In McCormick, 186 S.W. at 97, the supreme court held that "[s]ound

11 The appellant in his brief suggests that the trial court's decision to deny the appellant the marital privilege implicates the ex pos t facto provisions of the United States and Tennessee Constitutions. We disagree. Between the time of the offense and the time of trial, there were no significant changes in the law of marital privilege in criminal cases. Although the Tennessee Rules of Eviden ce were adopted in 1990, T enn. R. E vid. 501 sim ply states, Except as otherwise provided by constitution, statute, common law, or by these or other rules promulgated by the Tennessee Supreme Court, no person has a privilege to: (1) Refuse to be a witness; (2) Refuse to disclose any ma tter; (3) Refuse to produce any object or writing; or (4) P reve nt an othe r from being a witn ess or dis clos ing an y matter or producing any object or writing. The Advisory Commission Comments to Rule 501 refer one to McCormick for the rule governing spous al com mun ications in c riminal c ases. C learly, Rule 50 1 also en com passe s the ex ceptions to the marital privilege implicit in this court's opinion in Adam s v. State , 563 S.W .2d 8 04 (T enn . Crim . App. 1978). In State v. Hurley, 876 S.W .2d 57, 64 (Tenn . 1993), cert. denied, U.S. , 115 S.Ct. 328 (1994), our supreme court modified the marital privilege in criminal cases so that the testifying spouse alone had the right to invoke the privilege. However, the opinion was filed on April 5, 1993,

-42- public policy requires that neither the husband nor the wife shall be permitted to

testify, in criminal cases, as to any matter coming to his or her knowledge by

reason of the marital relation." See also Burton v. State, 501 S.W.2d 814, 817-

819 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1973); Bragan, No.

03C01-9403-CR-00121. Under this rule, either the testifying or non-testifying

spouse can invoke the privilege. Bragan, No. 03C01-9403-CR-00121. However,

the privilege is not absolute. In Adams, 563 S.W.2d at 808, this court observed

that the following conditions must exist before a communication between husband

and wife can be considered privileged:

(1) The communications must originate in a confidence that they will not be disclosed.

(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

(3) The relation must be one which, in the opinion of the community, ought to be sedulously fostered.

(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

The court in Adams noted that exceptions to the marital privilege generally arise

approximately two months after the appellant's trial. Thus, obviously, the trial court did not apply the Hurley rule in this c ase . In an y even t, eve n had the tria l cour t app lied th e new rule, w e hav e held that the Hurley rule is a pro ced ural ru le tha t doe s not affe ct an y subs tantia l rights of a d efen dan t in a criminal case and, therefore, does not implicate ex pos t facto constitution al provision s. State v. Bragan, No. 03C 01-940 3-CR -00121 (Tenn . Crim. A pp. at Kno xville, July 5, 199 5). Finally, we note that the Hurley modification of the common law rule was superseded by statu te wh en th e legis lature , in 199 5, am end ed T enn . Cod e An n. § 2 4-1- 201 , whic h had prev ious ly only applied in civil cases. Section 24-1-201 now provides, (a) In either a civil or criminal proceeding, no married person has privilege to refu se to ta ke the witnes s stan d sole ly becau se tha t perso n's spouse is a party to the proceeding. (b) In either a civil or criminal proceeding, confidential communications between married persons are privileged and inadmissible if either spouse objects.

-43- from the failure of the communication to meet these conditions. Id. "All four of

these conditions must exist to protect the evidence by the marital privilege." State

v. Garland, 617 S.W.2d 176, 183 (Tenn. Crim. App.), perm. to appeal denied,

(Tenn. 1981). Thus, testimony at the suppression hearing relevant to the first two

conditions was unnecessary if sufficient evidence was presented to negate the

last two conditions.

In Garland, 617 S.W.2d at 182-183, this court observed that the

application of the marital privilege was inappropriate where the marriage between

the parties was "extremely tumultuous." Similarly, in this case, the trial court

denied the appellant's motion to suppress on the basis of the following findings of

fact:

Sheila (Bush) Hammock and the defendant were married on August 13, 1988. The Court further finds that the parties separated on or about September 25, 1988. From the testimony, the Court further finds that a divorce was granted to the parties approximately two (2) years prior to the date of this hearing. The Court further finds that the marriage was extremely turbulent and disturbing from its beginning. The defendant regularly beat and physically abused the prospective witness. He subjected her to various forms of mental and verbal abuse on a regular basis. He threatened her with physical harm and death if she ever disclosed any of the crimes which he allegedly committed. The threats were made before and after the threats [sic] were allegedly committed.

The findings of fact made by the trial court after an evidentiary hearing are

afforded the weight of a jury verdict; this court will not set aside the judgment of

the trial court unless the evidence in the record preponderates against its findings.

State v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994); State v. Dick, 872

S.W.2d 938, 943 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1993); State

-44- v. Killebrew, 760 S.W.2d 228, 233 (Tenn. Crim. App. 1988). We conclude that

the record supports the trial court's findings. Thus, as in Garland, 617 S.W.2d at

183, "we do not believe that the conditions 3 and 4 enumerated in Adams are

met." Therefore, contrary to the appellant's argument in his brief, further

testimony regarding the contents of the appellant's statements to Ms. Hammock

was unnecessary to the proper resolution of the appellant's motion.

B. WHETHER THE TRIAL COURT'S LIMITATION AT THE SUPPRESSION HEARING OF CROSS-EXAMINATION OF SHEILA BUSH HAMMOCK VIOLATED THE APPELLANT'S RIGHT TO CONFRONTATION UNDER THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 9 OF THE TENNESSEE CONSTITUTION.

The appellant contends that, at the suppression hearing, he "was limited

and restricted from confronting [his] accuser, Sheila Bush (Hammock), and

thereby denied his rights under the Sixth Amendment to the United States

Constitution and Article I, Section 9 of the Tennessee Constitution." The right to

confrontation set forth in the Sixth Amendment includes the right to conduct

cross-examination.12 However, we have previously observed, "[I]t is elementary

that the exclusion of immaterial or irrelevant evidence does not abridge an

accused's right to confrontation." State v. Marquadis, 649 S.W.2d 15, 17 (Tenn.

Crim. App. 1982). See also Delaware v. Van Arsdall, 475 U.S. 673, 679, 106

S.Ct. 1431, 1435 (1986)("trial judges retain wide latitude insofar as the

12 The Sixth Amendment to the United States Constitution is applicable to the states through the Fou rteenth A men dme nt. Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1068 (1965). Moreover, our supreme court has largely adopted the standards of the United States Supreme Court under the Sixth Amendment in determining whether there has been a violation of the Te nness ee Co nstitution. State v. Middlebrooks, 840 S.W .2d 317, 332 (Tenn. 1992 )(however, with respect to the right to phys ically confront one's accusers, our supreme court has observed that "[t]he 'face-to-face' language found in the Tennessee Constitution has been held to impose a higher right than th at found in the fede ral cons titution," State v. Deuter, 839 S.W.2d 391, 395 (Tenn. 1992)).

-45- Confrontation Clause is concerned to impose reasonable limits on ... cross-

examination based on concerns about, among other things, harassment,

prejudice, confusion of the issues, the witness' safety, or interrogation that is

repetitive or only marginally relevant"); Tenn. R. Evid. 611(a) ("[t]he court shall

exercise appropriate control over the presentation of evidence and conduct of the

trial when necessary to avoid abuse by counsel"). In other words, "the

Confrontation Clause only guarantees 'an opportunity for effective cross-

examination, not cross-examination that is effective in whatever way, and to

whatever extent, the defense counsel might wish.'" Pennsylvania v. Ritchie, 480

U.S. 39, 53, 107 S.Ct. 989, 999 (1987)(citation omitted). We have already

concluded that the testimony at the suppression hearing concerning the contents

of the appellant's statements to Ms. Hammock would have been superfluous.

Moreover, this court has held that "the 'confrontation' guaranteed by the

United States Constitution is confrontation at trial." Haggard v. State, 475 S.W.2d

186, 187 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1971). Similarly, in

Ritchie, 480 U.S. at 52, 107 S.Ct. at 999, a plurality of the United States Supreme

Court observed that "the right to confrontation is a trial right." See also United

States v. Sasson, 62 F.3d 874, 881 n. 5 (7th Cir. 1995); United States v. De Los

Santos, 819 F.2d 94, 97 (5th Cir. 1987); United States v. Boyce, 797 F.2d 691,

693 (8th Cir. 1986).13 Defense counsel was able to fully and extensively cross-

13 In Kentucky v. Stincer, 482 U.S. 730, 738, 107 S.Ct. 2658, 2663 n.9 (1987), Justice Blackmun stated that, in his opinio n, de nying a defe nda nt ac ces s to in form ation befo re tria l may hinder that defendant's opportunity for effective cross-examination, thereby implicating the Confrontation Clause. However, our supreme court in Middlebrooks, 840 S.W.2d at 832, noted that "[t]he right to cross-examine witnesses ... does not include the power to require the pretrial disclosu re of any an d all inform ation that m ight be us eful in con tradicting un favorab le testimo ny." In any event, the State in this case followed a policy of open file discovery and, prior to trial, informed the appe llant's coun sel of the s tatem ents m ade by the appellant to Sheila Bu sh Ha mm ock.

-46- examine Ms. Hammock at trial. This claim is without merit.

4. WHETHER THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT'S MOTION TO SUPPRESS THE TESTIMONY OF OTHER INMATES.

The appellant contends that the trial court erred in allowing jailhouse

informants to testify against the appellant concerning statements made by the

appellant during his incarceration. The appellant filed a motion on October 16,

1992, to exclude the testimony of William Moore, Jimmy Myers, Billy Goney, and

other inmates, based on the allegation that law enforcement officers asked the

inmates to elicit statements from the appellant in violation of Massiah v. United

States, 377 U.S. 201, 84 S.Ct. 1199 (1964). On November 13, 1992, an

evidentiary hearing was held to resolve the appellant's motion.

Billy Goney and Jimmy Myers testified at the hearing. Billy Goney stated

that he was incarcerated with Michael Bush at the Putnam County Jail between

September or October of 1988 and April of 1989. He further alleged that,

approximately one week after the appellant was placed in the jail, Bobby Lane

and Doug Burgess, investigators with the Putnam County Sheriff's Department,

asked Goney and fellow inmates, Guy Ramsey and Jimmy Myers, to tape

conversations with Michael Bush. The inmates were told that, if they cooperated

with the police, the police "would help [them] out." The inmates already had

access to tape recorders and tapes, and the inmates used the equipment to tape

conversations with the appellant. However, Goney added,

[W]hat we'd do was like Jimmy would ask Michael a question, say, did you kill that old woman, and we'd have the recorder playing and we'd ease up off the play button. Then

-47- they would ask him another question like, do you like karate, and he would say, yeah, and we'd push yeah when he was saying yes.

Goney stated that he and his fellow informants made approximately three tapes,

and that Jimmy Myers, his half-brother, delivered the tapes to Deputy Lane.

Goney insisted that he never heard the appellant admit to killing Jodie Lefever.

Jimmy Myers also testified at the hearing. He was also incarcerated at the

Putnam County Jail in September of 1988. Indeed, he shared a cell with the

appellant. However, Myers testified that neither Deputy Burgess nor Deputy Lane

asked the inmates to record conversations with Michael Bush. Rather, Myers

asserted that Goney and Ramsey first suggested taping the appellant and first

contacted Deputies Lane and Burgess. His testimony is somewhat unclear as to

whether the tapes were made before or after the inmates contacted the deputies.

Myers conceded that the officers may have been aware that the tapes were being

made.

In any event, before the tapes were made, Myers heard the appellant admit

to killing Ms. Lefever.

Well, one time he was telling me and Billy and Ramsey all, I mean, he told us he tied Ms. Lefever up and stuff and stabbed her and waited on his wife. His wife dropped him off and came back to pick him up, and he went down to the dam and washed blood off of him and stuff. And, I mean, that's about all he said. And then some other times he would tell a different story.

Again, Myers could not remember whether he and the other inmates spoke to the

deputies before or after they overheard this statement. Finally, Myers conceded

on cross-examination that it was common knowledge at the jail that inmates could

-48- get help from the police if they provided information. However, he testified that he

was not promised any assistance in return for his testimony.

Deputy Burgess testified at the hearing that he never asked any of the

inmates to tape conversations with Michael Bush, nor, to his knowledge, had any

other deputy made such a request. Moreover, he never received any tapes, nor

was he aware that tapes had been turned over to the Sheriff's Department until he

found a tape in Bobby Lane's office the day before the hearing. He was not

aware of any agreement between jailhouse informants and the police. He

testified that Billy Goney and, possibly, Jimmy Myers had asked to speak with him

several times. He spoke with Goney privately "maybe one or two" times. He told

Goney "to keep his ears open and if he heard anything, let us know." Goney was

unable to provide any useful information. At a subsequent hearing, on December

10, 1992, Burgess stated that he would not have turned to inmates to obtain

incriminating statements from Michael Bush because "[t]hat's no good in court.

We can't use it."

At the December 10 hearing, Deputy Bobby Lane testified that, during the

course of his investigation of the Lefever murder, he never asked inmates to

secretly record conversations with the appellant. Goney approached him with two

tapes, but "[t]he tapes was garbage. There wasn't any use in keeping the tapes."

Lane did not have any subsequent conversations with Goney about the tapes, nor

did Lane talk to any other inmate. On December 22, 1992, the trial court denied

the appellant's motion, observing, "I think it's a question of credibility for the jury to

decide."

-49- At trial, no tapes were introduced into evidence. However, Jimmy Myers

and William Roger Moore testified. Jimmy Myers again stated that he had heard

the appellant admit to killing Jodie Lefever. Bush also told Myers that "he was

going to try to make people think he was crazy." Myers testified that these

statements were not recorded, as the informants began taping the appellant only

after the appellant's lawyers advised him against talking to fellow inmates about

the murder. After the appellant was so advised, he changed his story several

times. Finally, Myers insisted that he was never offered any form of

compensation in return for his testimony. On cross-examination, he conceded

that he had written a letter to an assistant district attorney, in which he stated, "If

you can help me out in any way, I promise you that you will not be sorry."

Finally, William Roger Moore, another fellow inmate of Michael Bush

following the appellant's incarceration at the Putnam County Jail, also testified at

trial. Moore stated that, as there was very little to do at the jail, Bush approached

him and initiated several conversations. The appellant admitted to Moore that he

had killed Jodie Lefever. The appellant also stated that he was going to "make a

ploy for craziness." Moore imparted this information to Special Agent O'Rear, an

agent with the Tennessee Bureau of Investigation. Moore testified that he was

not offered any compensation in return for his cooperation, nor did he ask for any

compensation.

Again, the appellant argues that any incriminating statements made by the

appellant to fellow inmates were elicited in violation of Massiah. We note, initially,

that, because only Jimmy Myers and William Moore testified at trial, the denial of

-50- the motion to suppress with respect to Goney and other inmates, even if

erroneous, was harmless. See Hartman v. State, 896 S.W.2d 94, 100 (Tenn.

1995); State v. Sparks, 727 S.W.2d 480, 482 (Tenn. 1987), post-conviction relief

granted, No. 03S01-9212-CR-00105 (Tenn. May 10, 1993). With respect to

Myers and Moore, "the clear rule of Massiah is that once adversary proceedings

have commenced against an individual, he has a right to legal representation

when the government interrogates him." Brewer v. Williams, 430 U.S. 387, 401,

97 S.Ct. 1232, 1240 (1977). Thus, in order to find a Massiah violation, a court

must first determine (1) whether adversary proceedings had commenced; (2)

whether the informant was a government agent; and (3) whether the agent

"interrogated" the appellant within the meaning of Massiah.

The initiation of adversary proceedings is "marked by formal charge, which

[has been] construe[d] to be an arrest warrant, or at the time of the preliminary

hearing in those rare cases where a preliminary hearing is not preceded by an

arrest warrant, or by indictment or presentment." State v. Mitchell, 593 S.W.2d

280, 286 (Tenn. 1980), cert. denied, 449 U.S. 845, 101 S.Ct. 128 (1980). Clearly,

at the time the appellant allegedly made the incriminating statements to fellow

inmates, he had been formally charged and, probably, indicted.14

It is arguably unclear whether Myers was acting as a government agent.

This court in State v. Dunn, No. 85-356-III (Tenn. Crim. App. at Nashville, June 6,

14 The appellant was arrested on September 25, 1988, and indicted the next day. The record does not reflect precisely when the appellant mad e the incriminating statements. Howe ver, the statements were made after the appellant's arrest and consequent incarceration in the Putnam Cou nty Ja il.

-51- 1986) observed, "Although Massiah and it progeny do not explicitly define the

term 'state agent,' the conduit in each of these cases was clearly a state agent,

operating as such, when the conversations occurred." Thus, any admissions

made by the appellant before law enforcement officers became involved would, of

course, be admissible. Hartman, 896 S.W.2d at 100. "[T]he Sixth Amendment is

not violated whenever - by luck or happenstance - the State obtains incriminating

statements from the accused after the right to counsel has attached." Maine v.

Moulton, 474 U.S. 159, 176, 106 S.Ct. 477, 487 (1985).

Again, at the suppression hearing, Goney testified that Deputies Burgess

and Lane asked inmates, including Myers, to record conversations with the

appellant. However, Goney's testimony was largely contradicted by the testimony

of both deputies and by the testimony of Myers. 15 At trial, Myers recounted

statements by the appellant, overheard prior to the recording of any

conversations. At the suppression hearing, Myers could not remember whether

he heard these statements before or after first talking to Burgess and Lane. Both

deputies, for the most part, denied enlisting inmates to obtain statements from the

appellant, although Deputy Burgess admitted that he might have asked Goney "to

keep his ears open."

Even assuming that Myers was a state agent, the appellant at the

suppression hearing also carried the burden of demonstrating "that the police and

their informant took some action, beyond merely listening, that was designed

15 In any even t, no tapes were ev er introduc ed either a t the supp ression hearing o r at trial.

-52- deliberately to elicit incriminating remarks." Kuhlmann v. Wilson, 477 U.S. 436,

456, 459, 106 S.Ct. 2616, 2628, 2630 (1986). At the suppression hearing, Goney

testified that he and Guy Ramsey recorded conversations with the appellant,

during which they attempted, with Myers' assistance, to elicit and, indeed,

fabricate a confession.16 However, Myers testified that he did not participate in

the recording of any statements. Rather, he testified both at the suppression

hearing and at trial that he merely overheard the appellant confess to the murder

of Ms. Lefever. There is no evidence in the record that this statement was made

in response to efforts by the other inmates to stimulate conversation about the

crime charged.

Given the conflicting testimony adduced at the suppression hearing, the

record supports the trial court's denial of the appellant's motion with respect to

Jimmy Myers. The findings made by the trial court after an evidentiary hearing

are afforded the weight of a jury verdict; this court will not set aside the judgment

of the trial court unless the evidence in the record preponderates against its

findings. State v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994); State v. Dick,

872 S.W.2d 938, 943 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1993);

State v. Killebrew, 760 S.W.2d 228, 233 (Tenn. Crim. App. 1988).

In any event, assuming for the sake of argument that Myers was a state

agent and assuming that he "interrogated" the appellant within the meaning of

Massiah, the admission at trial of Myers' testimony was harmless error. See

16 Deputy Lane testified at the suppression hearing that the resultant tapes contained no incriminating evidence.

-53- Hartman, 896 S.W.2d at 100; Sparks, 727 S.W.2d at 482. W illiam Moore

testified at trial concerning almost identical statements made by the appellant to

him in the Putnam County Jail. The record is devoid of evidence that Moore was

a state agent at the time of his conversations with Michael Bush, nor is there

evidence that he made any effort to elicit statements from the accused about the

crime charged. This issue is without merit.

5. WHETHER THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT'S OBJECTION TO THE INTRODUCTION OF CERTAIN PHOTOGRAPHS OF THE VICTIM.

The appellant contends that the trial court erred in overruling his motion to

suppress certain photographs of the victim. Specifically, he insists that the

pictures were admitted only for the purpose of inflaming the jury, thus, their

prejudicial effect outweighed their probative value. Additionally, the appellant

argues that the photographs had no probative value in light of the vivid description

of the victim's body given in Officer Lane's testimony.

During a jury-out hearing, the State attempted to present four photographs

of the victim. Exhibit 25 was a photograph of the victim as she was discovered by

Officer Lane. Exhibit 26 was a photograph which showed wounds to the victim's

head. Exhibit 27 was a photograph which showed the lower dental plate of the

victim on the floor next to her body. Exhibit 28 showed a wound to the victim's left

knee. The State argued that the photographs were relevant to corroborate

medical testimony, to aid the jury in determining the extent of the wounds, and to

-54- establish the element of malice. The appellant responded that the pictures did

not add to testimonial value as Officer Lane had already described the wounds in

great detail. The appellant concluded that, moreover, the pictures were more

prejudicial than probative.

The trial court accepted the State's argument that Exhibit 25 was probative

to show the placement of the wounds on the body, Exhibit 27 was probative as to

the amount of force that was used to dislodge the dental plate from the victim's

mouth, and Exhibit 28 was probative to show additional wounds on the body.

Furthermore, the trial court found that the probative value of these three

photographs was not outweighed by their prejudicial effect. However, the trial

court sustained the appellant's objection to Exhibit 26, finding it to be the most

gruesome of the pictures, and finding it to not accurately depict the victim's

wounds.

To be admissible, a photograph must be relevant to some issue at trial,

and its prejudicial effect must not outweigh its probative value. State v. Banks,

564 S.W.2d 947, 951 (Tenn. 1978); see also Tenn. R. Evid. 403. The discretion

of a trial judge in allowing the admission of a photograph into evidence will not be

overturned except upon a clear showing of an abuse of discretion. State v.

Bordis, 905 S.W.2d 214, 226 (Tenn. Crim. App. 1995) (citations omitted); see

also State v. Stephenson, 878 S.W.2d 530, 542 (Tenn. 1994).

We conclude that it was not error to admit the photographs in this case.

The photographs were relevant to supplement the testimony of the medical

-55- examiner and the officer who initially investigated the crime scene in establishing

the cause of death, see Stephenson, 878 S.W.2d at 542, and to show the

brutality of the attack and extent of force used against the victim, from which the

jury could infer malice. See State v. Brown, 836 S.W.2d 530, 551 (Tenn. 1992).

6. WHETHER THE APPELLANT IS ENTITLED TO RELIEF BASED ON ALLEGATIONS OF PROSECUTORIAL MISCONDUCT.

A. LACK OF REMORSE

The appellant first argues that the prosecutor erroneously elicited

testimony concerning the appellant's lack of remorse from three witnesses. When

questioned by the prosecutor as to whether the appellant had expressed any

remorse for what he had done, William Roger Moore, an inmate who had been

incarcerated with the appellant, answered that the appellant had expressed

remorse only in that he had gotten caught. When asked whether he had

observed any sadness on the part of the appellant when the appellant had shown

him a newspaper account of the murder, James Mullins, a friend of the appellant,

testified that he had observed no sadness. When asked whether the appellant

had expressed any remorse or sadness for what he had done, Shelia Bush

(Hammock) testified that he had expressed no remorse.

The failure of defense counsel to make a contemporaneous objection

-56- waives consideration of the issue on appeal. See Teague v. State, 772 S.W.2d

915,926 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1989); State v.

Killebrew, 760 S.W.2d 228, 235 (Tenn. Crim. App.), perm. to appeal denied,

(Tenn. 1988); Tenn. R. App. P. 36(a). A review of the record reveals that of the

three statements to which the appellant now objects, the appellant only objected

to the prosecutor's question to James Mullins, and the objection was based on the

fact that it was a leading question. We conclude that the appellant has waived

this issue.

B. IRRELEVANT OPINION EVIDENCE

The appellant next contends that the prosecutor erred in eliciting irrelevant

opinion evidence from Jimmy Myers, another inmate who had been incarcerated

with the appellant. On redirect examination, the prosecutor asked Myers why he

was in court testifying. Myers responded that it "could be my mother or my

grandmother, someone that's you know, laying there dead you know. I don't think

someone should kill someone like that and just walk the streets. Get out scot

free."

The appellant contends that the prosecutor deliberately brought before the

jury evidence which was wholly irrelevant to the appellant's guilt or innocence.

However, the record reveals that on cross-examination, appellant's counsel

questioned Myers extensively concerning his true motivation for testifying. We

conclude that the question asked by the prosecutor was appropriate,

notwithstanding the witness' nonresponsive statement. This issue is without merit.

-57- C. CLOSING ARGUMENT

(1) MASSIVE INVESTIGATION

The appellant also argues that he is entitled to a reversal of his conviction

due to prosecutorial misconduct during closing argument. He objects to the

prosecutor's remark that the investigation was "the most extensive investigation ...

that I've ever heard of" and to the prosecutor's statement that the appellant was

the only suspect resulting from the investigation. The appellant contends that

evidence of such an investigation was not before the jury, and that the

prosecutor's comments exceeded the scope of proper argument.

Our supreme court has observed that "argument of counsel is a valuable

privilege that should not be unduly restricted. Our courts seek to give great

latitude to counsel in expressing their views of the case to the jury." Smith v.

State, 527 S.W.2d 737, 739 (Tenn. 1975). See also State v. Bigbee, 885 S.W.2d

797, 809 (Tenn. 1994). The trial judge has wide discretion in controlling the

argument of counsel. Smith, 527 S.W.2d at 739. Generally, on appeal, this court

will not interfere with the exercise of that discretion in the absence of abuse

thereof. Id. However, if the prosecutor's remarks, in fact, "stray[ed] beyond the

wide latitude afforded," this court should consider, among other factors, the intent

of the prosecutor, any curative measures undertaken by the court, the improper

conduct viewed in context and in light of the facts and circumstances of the case,

the cumulative effect of the remarks with any other errors in the record, and the

relative strength or weakness of the case. Bigbee, 885 S.W.2d at 809; Judge v.

State, 539 S.W .2d 340, 344 (Tenn. Crim. App. 1976). We note that "curative

-58- instructions will not render all improper comments harmless; the test is whether

the conduct ... affected the results to the prejudice of the appellant." State v.

Byerley, 658 S.W.2d 134, 139 (Tenn. Crim. App. 1983). See also Bigbee, 885

S.W.2d at 809.

In arguing that the investigation was extensive, the prosecutor specifically

referred to Deputy Richard Smith's testimony that the Sheriff's Department had

interviewed between 200 and 250 people regarding this case. The prosecutor's

observation, that the appellant was the only suspect, was similarly supported by

the evidence introduced at trial. We conclude that the trial court did not abuse its

discretion in allowing the argument.

(2) PROSECUTOR'S PERSONAL VIEWS

The appellant next contends that the prosecutor erred in referring to this

murder as being "a murder of the worst kind," "one of the worst kind of murders

imaginable," and "a most heinous and brutal act." The appellant contends that

the prosecutor expressed his personal views of the offense in an effort to inflame

the passions of the jury.

However, evaluating the prosecutor's comments in light of his entire

argument, we conclude that the comments referred to the fact that the appellant

took advantage of a lady who was a close friend of his grandmother. Even if

improper, we do not view this argument as being so prejudicial as to require a

-59- new trial. This issue is without merit.

D. BOLSTERING

Finally, the appellant contends that the prosecutor erred by improperly

bolstering the testimony of William Roger Moore and Shelia Bush (Hammock) by

asking them if they were telling the truth. He also asked Ms. Bush if she was

having dreams about the case.

In State v. Carpenter, 773 S.W.2d. 1, 11 (Tenn. Crim. App.), perm. to

appeal denied, (Tenn. 1989), this court held that bolstering was permitted to

rehabilitate an impeached witness to rebut the inference that the witness's

testimony was a recent fabrication. Bolstering has also been permitted to allow

seemingly inconsistent statements to be placed into context. State v. Boyd, 797

S.W.2d 589, 594 (Tenn. 1990). We conclude that the prosecutor's questions

were not inappropriate.

The question asked of Ms. Bush concerning whether she had dreams

about the offense were posed in the context of remembering things that she had

not thought of and explaining why there had been inconsistencies in previous

statements. Again, we conclude that the prosecutor could use this question to

rehabilitate his witness. This issue is without merit.

7. WHETHER THE PROSECUTOR'S STATEMENTS DURING THE CLOSING ARGUMENT OF THE PENALTY PHASE OF THE TRIAL

-60- DENIED THE APPELLANT A FAIR TRIAL.17

A. CALDWELL VIOLATION

The appellant first contends that the prosecutor, in violation of the

Supreme Court's holding in Caldwell v. Mississippi, 472 U.S. 320, 328-29, 105

S.Ct. 2633, 2639 (1985), "led the jury to believe that the responsibility for

determining the appropriateness of the defendant's death rests elsewhere." The

appellant cites the following portion of the prosecutor's argument to the jury:

I submit to you that the most important day in the defendant's life was the day that he chose -- not you; not I; -- the day that he chose to go to the home of Jodie Lefever and murder her horribly, heinously, atrociously, in cold blood. They'll tell you that you have a choice to make here today, that is his life is literally in your hands. And I submit to you, ladies and gentlemen of the jury, that's not true. When he went to the home of Jodie Lefever and had her open the door as a friend, he took his life in his own hands. He took his life in his own hands.

When reviewing an alleged Caldwell error, this court must first determine

whether the prosecutor's comments minimized the jury's role in determining the

appropriateness of death. State v. West, 767 S.W.2d 387, 399 (Tenn. 1989),

cert. denied, 497 U.S. 1010, 110 S.Ct. 3254 (1990). If the prosecutor's comments

were improper, we must then decide whether the trial judge's instructions to the

jury sufficiently corrected the error. Id. "If the Court cannot say the comments

had no effect on the sentencing, then the jury's decision does not meet the

standard of reliability required by the Eighth Amendment." State v. Irick, 762

S.W.2d 121, 131 (Tenn. 1988), cert. denied, 489 U.S. 1072, 109 S.Ct. 1357

(1989).

17 See supra Section III, Issue #6 "Whether the Appellant is Entitled to Relief Based on Allegations of Prosecutorial Misconduct," (C)(1) Closing Argum ent, Massive Investigation, for a genera l discuss ion of the s tandard to be app lied in reviewing couns el's argum ent.

-61- We have previously observed that the State may properly argue that a

defendant is the "author of his own fate." Wright v. State, No. 01C01-9105-CR-

00149 (Tenn. Crim. App. at Nashville), perm. to appeal denied, (Tenn. 1994),

cert. denied, U.S. , 115 S.Ct. 1129 (1995). In any case, the prosecutor's

comments must be evaluated in the context of the total argument by the parties

and, of course, the trial court's instructions to the jury about its obligations under

the law. See State v. Nichols, 877 S.W.2d 722, 733 (Tenn. 1994), cert. denied,

U.S. , 115 S.Ct. 909 (1995).

Immediately following the quoted portion of the prosecutor's argument, the

prosecutor reminded the jurors that they had been asked during voir dire whether

they would be able to impose the death penalty if the State were able to prove

that aggravating factors outweighed any mitigating factors. The prosecutor then

reviewed the aggravating circumstances presented by the State. During rebuttal

argument, the prosecutor again explained the weighing process, remarking, "You

have a job to do and it's a serious job. It's probably one of the most tough things

that you've ever been called upon to do in your life." Defense counsel, during

closing argument, emphasized the importance of the jury's role in determining the

appropriate punishment. Defense counsel observed, "The verdict you render on

the question you have today is whether a young man lives or dies. You are the

supreme decision makers in this case." Finally, immediately before the jury

began deliberations, the trial court correctly instructed the jury as to their

responsibility for determining the appropriate punishment. We conclude,

therefore, that even if the prosecutor's comments, by themselves, violated

Caldwell, the error was harmless beyond a reasonable doubt.

-62- B. PROSECUTORIAL EXPERTISE

The appellant next contends that the prosecutor alluded to prosecutorial

expertise when she asked that the jury impose the death penalty. That is, the

prosecutor, according to the appellant, argued that the jury should impose the

death penalty because the State, in its expertise, chose to seek the death penalty.

However, the record reveals that, in the portion of the argument to which the

appellant refers, the prosecutor merely reviewed the facts of the case and

concluded that "[i]f that's not a set of circumstances that deserves the death

penalty, one would wonder what it takes." We conclude that the prosecutor's

argument did not rely upon prosecutorial expertise, and that this issue is without

merit.

C. DENIGRATION OF MITIGATING EVIDENCE

The appellant also contends that the prosecutor misled and inflamed the

jury by denigrating the appellant's mitigating evidence, characterizing the

evidence as an "excuse" which should be disregarded. First, our supreme court

found "nothing wrong with counsel's argument" in State v. Smith, 893 S.W.2d

908, 922 (Tenn. 1994), cert. denied, U.S. , 116 S.Ct. 99 (1995), a case in

which the prosecutor similarly referred to the defendant's mitigating evidence as

an excuse. See also State v. Keen, No. 02S01-9112-CR-00064 (Tenn. May 23,

1994), rehearing granted, (Tenn. May 16, 1995). Second, the record reveals that,

although the State generally downplayed the mitigating evidence presented by the

appellant, the prosecutor, during rebuttal, conceded that two mitigating factors,

the appellant's youth and his lack of a significant criminal history, had been

proven. During the course of argument, the prosecutor also explained that the

-63- appellant could "present proof on anything [he] want[s] to and call it a mitigator.

Whether it's a mitigator or not is up to you." We conclude that the challenged

comments do not rise to the level of reversible error.

D. MERCY

The appellant next contends that the prosecutor attempted to discourage

the jury's consideration of mercy. Specifically, in rebuttal, the prosecutor argued,

"We want you to use the same mercy that this defendant used on Jodie Lefever

as she lay helpless in her floor." Our supreme court has observed that this

argument "encourage[s] the jury to make a retaliatory sentencing decision, rather

than a decision based on a reasoned moral response to the evidence," and is

therefore improper. Bigbee, 885 S.W.2d at 812. However, the record reveals

that the trial court sustained the appellant's objection to the prosecutor's remark.

Moreover, at the conclusion of argument, the trial court instructed the jury that

they could "decide to sentence the appellant to life imprisonment simply because

based on the evidence introduced at either the guilt/innocence or sentencing

phase at this trial you find it appropriate to exercise mercy." We conclude that the

appellant was not unduly prejudiced by the prosecutor's statement.

E. MISCELLANEOUS

The appellant complains that the prosecutor waived the murder weapon

before the jury. He also asserts that the prosecutor improperly argued that the

death penalty would protect all the "other Jodie Lefevers of the world." Finally,

the appellant argues that the prosecutor, during argument, impermissibly

-64- remarked that the appellant's expert witnesses received a fee for their services.

First, the murder weapon was properly introduced into evidence at trial

and, therefore, could be displayed to the jury and otherwise referred to during the

State's closing argument. Moreover, the prosecutor is an advocate and is entitled

to pursue his role with thoroughness and vigor. Post v. State, 580 S.W.2d 801,

808 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1979). Second, although

argument based on general deterrence and, perhaps, deterrence of the

defendant, is in fact improper, see Irick, 762 S.W.2d at 131, the trial court

sustained the appellant's objection to the prosecutor's remark. Finally, with

respect to any remarks addressing fees paid to expert witnesses, Tenn. R. Evid.

616 provides, "A party may offer evidence by cross-examination, extrinsic

evidence, or both, that a witness is biased in favor of or prejudiced against a party

or another witness." Thus, in cross-examining the appellant's expert witnesses

during trial, the prosecutor properly inquired about fees. Therefore, the

prosecutor's statements during closing argument were grounded in the proof

presented at trial.

"Closing argument must be temperate, must be predicated on evidence

introduced during the trial of a case, and must be pertinent to the issues being

tried." State v. Odom, No. 02C01-9305-CR-00080 (Tenn. Crim. App. at Jackson,

October 19, 1994), perm. to appeal granted, (Tenn. 1995). See also State v.

Tyson, 603 S.W.2d 748, 754 (Tenn. Crim. App. 1980). We conclude that the

State's argument largely complied with this standard, and that the trial court did

not abuse its discretion in controlling closing argument during the penalty phase

-65- of the trial. This issue is without merit.

8. WHETHER THE TRIAL COURT PROPERLY CHARGED THE JURY REGARDING THE CREDIBILITY OF WITNESSES.

The appellant contends that the jury instructions given by the trial judge

regarding the credibility of witnesses, the impeachment of witnesses, and the

method of resolving conflicts in the testimony of witnesses unconstitutionally

restrained the jury in their determination of credibility.

The instructions about which the appellant complains are the pattern jury

instructions for the credibility of witnesses and the impeachment of witnesses.

T.P.I. -- Crim. § § 37.01, 37.02. Both of these instructions have been held by this

court to be a proper statement of the law. See State v. Glebock, 616 S.W.2d 897,

906 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1981). We conclude that

9. WHETHER THE APPELLANT WAS PROPERLY CONVICTED OF FIRST DEGREE BURGLARY.

A. INSUFFICIENT EVIDENCE

The appellant contends that there was insufficient evidence to

convict him of first degree burglary. He specifically claims that the State failed to

prove that there had been a "breaking and entering" of the victim's house. The

-66- standard of review regarding the sufficiency of the evidence outlined in the

appellant's second issue will be used to evaluate this contention also. See,

supra, Section III, Issue #2 "Whether the trial court erred in overruling the

appellant's motion for judgment of acquittal as to the charge of premeditated

murder.".

Tenn. Code Ann. § 39-3-401 (1988) defined first degree burglary as "the

breaking and entering into a dwelling house . . . by night, with intent to commit a

felony." The trial court properly instructed the jury that "[a]ny person who after

having entered the premises mentioned in §39-3-401, with intent to commit a

felony, shall break any premises, or any safe or receptacle therein, shall receive

the same punishment as if he had broken into the premises in the first instance."

See Tenn. Code Ann. § 39-3-402 (1988).

The appellant contends that the evidence demonstrated that the appellant

had been granted entry by the victim. However, the breaking element can be

either actual or constructive, and if entry was gained by either fraud or threat, the

breaking will be considered constructive. State v. Holland, 860 S.W.2d 53, 58 fn.

11 (Tenn. Crim. App. 1993). Since the appellant was armed with a piece of wood,

there was at least circumstantial evidence that the appellant gained entry by

threat. Likewise, because the victim knew the appellant, entry could have been

gained by fraud if the appellant told her that he was there for legitimate business.

Moreover, in consideration of Tenn. Code Ann. § 39-3-402, the State

proved that the top right-hand dresser drawer had been opened and that the

-67- appellant had opened the kitchen drawer to remove the butcher knife. Based

upon these facts, we conclude that a rational trier of fact could have found the

appellant guilty of first degree burglary.

B. VARIANCE

The appellant next argues that he was denied notice of the charges being

brought against him because the indictment charged the breaking and entering

into the home while the proof demonstrated only the breaking into the drawers of

the home. He further contends that he was denied due process and a fair trial

because he was convicted on a charge never made in the indictment.

In order to satisfy constitutional requirements, an indictment must provide

the defendant with notice of the offense charged, provide the court with an

adequate ground upon which a judgment may be entered, and provide the

defendant with protection against double jeopardy. State v. Byrd, 820 S.W. 2d

739, 741 (Tenn. 1991). Moreover, in State v. Moss, 662 S.W.2d 590, 592 (Tenn.

1984), the Tennessee Supreme Court held that a variance between the proof and

the indictment did not prejudice the defendant's rights if the indictment sufficiently

informed the defendant of the charges against him so that he could properly

prepare his defense and not be misled or surprised at trial and if the variance was

not such that it would present a danger that the defendant could be prosecuted a

second time for the same offense.

In this case, the appellant was aware of the facts surrounding the entry into

-68- Ms. Lefever's home and the entry into the two drawers of her home. Although the

appellant contends that he was surprised at trial, he has not demonstrated how

he could have better defended had he been given prior notice that the breaking

involved breaking into the drawers. All of the activity was involved in one criminal

episode. For these reasons we conclude that, even if a variance existed, it was

harmless under these circumstances. This issue is without merit.

11. WHETHER THE APPELLANT WAS GIVEN PROPER NOTICE OF THE AGGRAVATING CIRCUMSTANCES UPON WHICH THE STATE INTENDED TO RELY.

The appellant contends that he was not provided sufficient notice of the

facts supporting the aggravating circumstance that "[t]he murder was committed

for the purpose of avoiding, interfering with, or preventing a lawful arrest or

prosecution of the defendant or another." Although the appellant requested a bill

of particulars for information concerning this circumstance, the State did not reply.

Tenn. R. Crim. P. 7(c) allows the court to direct the filing of a bill of

particulars "so as to adequately identify the offense charged." "This provision is

to be construed to serve that singular purpose, and is not meant to be used for

purposes of broad discovery." (emphasis added) Advisory Commission

Comments, Tenn. R. Crim. P. 7. See also State v. Stephenson, 878 S.W.2d 530

(Tenn. 1994); State v. Wiseman, 643 S.W.2d 354 (Tenn. Crim. App. 1982).

Therefore, Rule 7(c) is not applicable to the sentencing phase of the proceedings.

-69- Tenn. R. Crim. P. 12.3(b) requires the State to provide notice of its intent to

seek the death penalty no less than thirty days prior to trial. The rule also

requires the State to specify the aggravating circumstances upon which it tends to

rely at the sentencing hearing. Specification may be satisfied by a citation to the

aggravating circumstance. Tenn. R. Crim. P. 12.3(b).

In the present case, the State amended its notice to seek the death penalty

to include the subsection (i)(6) aggravating factor on November 5, 1992, well

within the statutorily mandated time period.18 This issue is without merit.

14. WHETHER THE TRIAL COURT PROPERLY INSTRUCTED THE JURY "REGARDING REASONABLE DOUBT."

The appellant contends that he was denied his rights under Article I,

Sections 6, 7, 8, 16, 17, and 18 of the Tennessee Constitution, and the Sixth,

Eighth and Fourteenth Amendments to the United States Constitution because

the jury was unconstitutionally instructed concerning the meaning of "reasonable

doubt" at the guilt and sentencing phase of the trial. At the guilt phase of the trial,

the jury received the following instruction concerning the meaning of "reasonable

doubt."

Reasonable doubt is that doubt engendered by an investigation of all the proof in the case and an inability, after such investigation, to let the mind rest easily as to the certainty of guilt. Reasonable doubt does not mean a

18 The appellant's trial was set for February of 1993.

-70- captious, possible, or imaginary doubt. Absolute certainty of guilt is not demanded by the law to convict of any criminal charge, but moral certainty is required, and this certainty is required as to every element of proof necessary to constitute the offense.

(charge of the court, transcript of the evidence, vol. five, § III, p. 681). 19

The appellant argues that this instruction equating "beyond a reasonable

doubt" with "a moral certainty" violated his due process rights under the new

standard set forth in Victor v. Nebraska, --- U.S. ---, 114 S.Ct. 1239 (1994). In

Victor, the United States Supreme Court ruled that the phrase "moral certainty"

may have lost its historical meaning, and that a jury might "understand it to allow

conviction on proof that does not meet the beyond a reasonable doubt

standard." Victor, --- U.S. at ---, 114 S.Ct. at 1247. It reasoned that "'moral

certainty,' standing alone, might not be recognized by modern jurors as a

synonym for 'proof beyond a reasonable doubt,' " but "something less than the

very high level of probability required by the Constitution in criminal cases." Id.

While the Court stated that it did not condone the use of the "moral certainty"

phrase, the Court held that the phrase could pass constitutional muster if used in

conjunction with a modifying instruction that lent meaning to the phrase. Victor, -

-- U.S. at ---, 114 S.Ct. at 1248.20 In order to meet the requirements of due

19 We also note that, at the sentencing phase of the trial, the jury was likewise instructed as to "a m oral c ertain ty" rega rding the fin ding o f agg rava ting c ircum stan ces "beyo nd a r eas ona ble doubt." (charge of the court, transcript of the evidence, vol. eight, § III, pp. 1153-1154).

20 The United States Supreme Court, in Cage v. Louisiana, 298 U.S. 39, 41, 111 S.Ct. 328, 329 (1990), held that "moral certainty" modified by the phrases "grave uncertainty" and "actual substantial doubt" did not meaningfully convey the definition of reasonable doubt, and, thus, violated the due process clause.

-71- process, the jury instructions must be examined as a whole, without considering

particular phrases out of context. Victor, --- U.S. ---, 114 S.Ct. at 1243.

The instruction provided to the jury in the present case used the term

"moral certainty" in conjunction with "let the mind rest easily" and "arise from

possibility." Though neither of these phrases have been before the United

States Supreme Court,21 the courts of this state have consistently upheld the

constitutionality of this instruction. See State v. Nichols, 877 S.W. 2d 722

(Tenn. 1994), cert. denied, --- U.S. ---, 115 S.Ct. 909 (1995); Pettyjohn v. State,

885 S.W.2d 364 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1994);

State v. Beckham, No. 02C01-9405-CR-00107 (Tenn. Crim. App. at Jackson,

Sept. 27, 1995); Caldwell v. State, No. 02C01-9405-CR-00107 (Tenn. Crim.

App. at Jackson, Dec. 28, 1994), perm. to appeal granted in part, denied in part,

(Tenn. May 30, 1995); State v. Voaden, No. 01C01-9305-CC-00151 (Tenn.

Crim. App. at Nashville, Dec. 22, 1994), perm. to appeal denied, (Tenn. May 1,

1995); Smith v. State, No. 03C01-9312-CR-00393 (Tenn. Crim. App. at

Knoxville, July 1, 1994). Specifically, the Tennessee Supreme Court noted in

State v. Nichols, 877 S.W .2d at 734, that "the use of the phrase 'moral certainty'

by itself is insufficient to invalidate an instruction on the meaning of reasonable

doubt." The court distinguished the Tennessee instruction from the one

invalidated in Cage v. Louisiana because the Tennessee instruction does not

require "grave uncertainty" to support acquittal. Moreover, the court concluded

21 We note, however, that a federal district court has recently held that the phrase "let the mind rest easily," when used to qualify "moral certainty," does not sufficiently convey to the jury the requisite b urden o f proof re quired by the Cons titution. See Rickman v. Dutton, 864 F.Supp. 686 (M.D. Tenn. 1994). We are not, however, bound by that court's decision.

-72- that:

[w]hen considered in conjunction with an instruction that "[r]easonable doubt is that doubt engendered by an investigation of all the proof in the case and an inability, after such investigation, to let the mind rest easily upon the certainty of your verdict," we find that the instruction properly reflects the evidentiary certainty required by the "due process" clause of the federal constitution and the "law of the land" provision in our state constitution.

Nichols, 877 S.W.2d at 734. We, therefore, conclude that the charge given by

the trial court, although containing the phrase "moral certainty," did not violate

the appellant's rights under the United States or the Tennessee Constitutions.

15. WHETHER THE TRIAL COURT'S INSTRUCTIONS IN THE PENALTY PHASE PROHIBITED THE JURY FROM CONSIDERING AND GIVING FULL EFFECT TO THE APPELLANT'S MITIGATING EVIDENCE.

A. MODIFIER "EXTREME"

The appellant first contends that the jury instructions precluded the jury

from considering mitigating evidence of mental or emotional disturbance which

did not rise to the level of extreme mental or emotional disturbance. In its jury

instructions, the trial court recited the language of Tenn. Code Ann. § 39-2-

203(j)(2) in instructing the jury that in arriving at the punishment the jury shall

consider the mitigating factors including, but not limited to that "[t]he murder was

committed while the defendant was under the influence of extreme mental or

emotional disturbance." The appellant contends that use of the modifier

"extreme" misled the jury in its consideration of the evidence.

The Tennessee Supreme Court rejected this same argument in State v.

-73- Smith, 857 S.W.2d 1, 16-17 (Tenn.), cert. denied, --U.S.--, 114 S. Ct. 561

(1993). Moreover, in the case at bar, the jury was also instructed that it could

consider any mitigating factor raised by the evidence at either the guilt or penalty

phase of the trial. This issue is without merit.

B. MODIFIER "SUBSTANTIALLY"

The appellant also contends that the jury instructions precluded the jury

from considering mitigating evidence of mental illness and intoxication which did

not rise to the level of "substantially" affecting the appellant's ability to conform

his conduct to the law. Again, this argument was rejected in Smith, 857 S.W.2d

at 16-17, and we find the issue to be without merit.

C. UNANIMOUS AGREEMENT ON MITIGATING CIRCUMSTANCES

Lastly, the appellant contends that the trial court unconstitutionally limited

the consideration of mitigating evidence by requiring the jury to unanimously

agree on a verdict of life or death. This argument was rejected in Smith, 857

S.W.2d at 18, and we agree that "nothing in the Tennessee statutes, and the

instructions given the jury, or in the verdict form submitted to the jury, was likely

to lead any juror to believe that he or she was precluded from considering

mitigating circumstances unless all jurors agreed that the circumstances

existed." This issue is without merit.

16. WHETHER THE TRIAL COURT FAILED TO PROVIDE THE JURY WITH PROPOSED INSTRUCTIONS NECESSARY FOR THE PROPER DETERMINATION OF SENTENCE.

-74- The appellant contends that the trial court erred in refusing to give certain

requested jury instructions during the penalty phase of the trial. The trial court

rejected the following special instructions:

1.(2) Burden of proof -generally; 2.(4) Life means life -death means death -sentence will be carried out 3.(5) Definition of life and death - sentencing; 4.(6) Jury has responsibility for final decision - sentencing; 5.(7) Decision to be made by individual jurors - sentencing; 6.(9) Aggravating circumstance - definition - sentencing;

7.(10) Weighing aggravation and mitigation - defining mitigation - sentencing; 8.(13) Aggravating circumstance - standards for consideration - sentencing; 9.(14) Presumption regarding aggravating circumstances - sentencing; 10.(15)Aggravating circumstances - unanimity - sentencing: 11.(16)Aggravating circumstance - individual consideration but requirement of unanimity - sentencing; 12.(18)Sentence - crime in society; 13.(19)Deterrence - cost sentencing; 14.(20)Definition - weight and unanimity - sentencing; 15.(21)Definition - mitigating circumstances - sentencing; 16.(22)Mitigating circumstance - definition -sentencing; 17.(23)Mitigating circumstance - definition -sentencing; 18.(24)Standard of proof - sentencing; 19.(26)Weighing aggravating and mitigating circumstances - sentencing; 20.(27)Doubt inures to the benefit of the defendant - sentencing; 21.(28)Mercy - sentencing; 22.(29)Consideration for sentence less than death - sentencing; 23.(30)Mitigation - reason for sentence less than death - sentencing; 24.(31)Sympathy - sentencing; 25.(32)Compassion - mercy - sentencing; 26.(33)Mitigation - reason for sentence less than death - sentencing; 27.(34)Mitigating circumstances - basis for sentence less than death - sentencing; 28.(35)Imposing a sentence less than death; 29.(36)May vote life - sentencing; 30.(37)Finding beyond a reasonable doubt that death is appropriate - sentencing; 31.(38)Lingering doubt -sentencing; 32.(39)Jury verdict - inability to agree - sentencing; 33.(40)No evidence except that introduced at trial - sentencing; 34.(42)Mitigating circumstance - age - sentencing;

-75- 35.(44)Mitigating circumstance - mental illness - sentencing; 36.(46)Mitigating circumstance - capacity to appreciate criminality - sentencing; 37.(47)Mitigating circumstance - emotional development - sentencing; 38.(50)Mitigating circumstance - adolescent - sentencing; 39.(51)Mitigating circumstance - parental expectations - sentencing; 40.(53)Mitigating circumstance - health of another - sentencing; 41.(54)Mitigating circumstance - domination - sentencing; 42.(55)Mitigating circumstance - planning of crime - sentencing; 43.(56)Mitigating circumstance - death of victim - sentencing; 44.(57)Mitigating circumstance - lingering doubt - sentencing.

When a trial court's instructions correctly charge the applicable law, the

court does not err by refusing special requests. Tillet v. State, 565 S.W.2d 509,

511(Tenn. Crim. App. 1978). Nor is it error to refuse to give an inaccurate

special request. State v. Moore, 751 S.W.2d 464, 467 (Tenn. Crim. App.), perm.

to appeal denied, (Tenn. 1988). After reviewing the instructions given by the trial

court, we conclude that the instructions adequately charge the applicable law.

17. WHETHER THE DEATH PENALTY UNCONSTITUTIONALLY INFRINGES UPON THE APPELLANT'S FUNDAMENTAL RIGHT TO LIFE.

The appellant contends that the Tennessee death penalty statute is

unconstitutional in that the right to life is fundamental and the punishment of

death is not necessary to promote any compelling state interest. The appellant

argues that less severe penalties are available to serve the state's interest in

punishing the appellant. Moreover, the appellant asserts that "compelling state

interests are those which secure our democratic institutions and/or insure

national security." While this argument is somewhat novel in its approach, we

-76- note that one of the state's most basic functions is to enforce the penal laws as

established by the legislature. We quote from the United States Supreme Court

decision, Gregg v. Georgia, 428 U.S. 153, 183, 96 S.Ct. 2909, 2930 (1976):

[C]apital punishment is an expression of society's moral outrage at particularly offensive conduct. This function may be unappealing to many, but it is essential in an ordered society that asks its citizens to rely on legal processes rather than self-help to vindicate their wrongs.

The Tennessee Supreme Court has held that the state's death penalty

statute, per se, meets due process requirements. See State v. Black, 815 S.W.

2d 166, 190 (Tenn. 1991); see also State v. Groseclose, 615 S.W.2d 142

(Tenn.), cert. denied, 454 U.S. 882, 102 S.Ct. 366 (1981). This issue is

therefore without merit.

18. WHETHER THE STATE'S DEATH PENALTY STATUTE IS CONSTITUTIONAL.

The appellant raises several constitutional objections to the Tennessee

death penalty statute. Specifically, the appellant contends that the death penalty

statute is unconstitutional in that:

(a) it provides insufficient guidance to the jury concerning who has the burden of proving whether mitigation outweighs aggravation and what standard the jury should use in making that determination;

(b) it fails to sufficiently narrow the class of death penalty eligible defendants;

(c) it insufficiently limits the jury's discretion in that once it finds an aggravating circumstance beyond a reasonable doubt, it can impose death, regardless of what mitigation is shown;

(d) it requires that if the jury finds that the aggravating circumstances outweigh the mitigating circumstances, it must impose death;

-77- (e) it allows the jury to afford too little weight to non-statutory mitigating factors. The statute requires that the jury consider "any mitigating circumstances";

(f) it does not require the jury to make the ultimate determination that death is appropriate in that it is "merely filling in the blanks" in determining and comparing mitigating and aggravating circumstances.;

(g) it does not inform the jury of its ability to impose mercy;

(h) it provides no requirement that the jury make findings of fact as to the presence or absence of mitigating circumstances, thereby preventing effective appellate review;

(i) it prohibits the jury from being informed of the consequences of its failure to reach a unanimous verdict in the penalty phase of the trial;

(j) it allows the imposition of a cruel and unusual punishment and in that it allows death to be imposed by electrocution;

(k) it has been imposed discriminately on the basis of race, sex, geographic region, and economic and political status of the defendant;

(l) the proportionality of arbitrariness review conducted by the Tennessee Supreme Court pursuant to Tenn. Code Ann. § 39-13-205 is inadequate and deficient;

(m) it permits the introduction of relatively unreliable evidence in the State's proof of aggravating circumstances and in its rebuttal of mitigating circumstances;

(n) it allows the State to make final closing arguments to the jury in the penalty phase of the trial;

All of the appellant's arguments except (g) have been rejected by the

Tennessee Supreme Court. See State v. Cazes, 875 S.W.2d 253, 268-269

(Tenn. 1994);.State v. Smith, 857 S.W.2d 1, 16-17, 23 (Tenn. 1993); State v.

Howell, 868 S.W.2d 238, 258 (Tenn. 1993); State v. Black, 815 S.W.2d 166,

185, 187 (Tenn. 1991); State v. Boyd, 797 S.W.2d 589, 596 (Tenn. 1990); State

v. Melson, 638 S.W.2d 342, 366, 368 (Tenn. 1982); State v. Groseclose, 615

S.W.2d 142, 150 (Tenn. 1981). With respect to the argument in (g), in

-78- consideration of the jury instructions given in a capital case, we find this issue to

be without merit.

19. WHETHER THE CUMULATIVE EFFECT OF ALL ERRORS VIOLATE THE APPELLANT'S CONSTITUTIONAL RIGHTS.

As his final argument, the appellant contends that the cumulative effect of

all errors alleged both at trial and at sentencing violates his constitutional rights.

As this court has not found any error with respect to the appellant's previous

eighteen issues, we find this final issue to be without merit.

-79- I N T H E S U P R E M E C O U R T O F T E N N E S S E E

A T K N O X V I L L E

FILED April 7, 1997

Cecil Crowson, Jr. Appellate C ourt Clerk S T A T E O F T E N N E S S E E , (

(

P l a i n t i f f - A p p e l l e e , (

( C u m b e r l a n d C o u n t y

v . (

( H o n . L e o n B u r n s , J r . , J u d g e

( N o . 0 3 - S 0 1 - 9 6 0 4 - C C - 0 0 0 4 7

M I C H A E L D E A N B U S H , (

D e f e n d a n t - A p p e l l a n t . (

C O N C U R R I N G O P I N I O N I c o n c u r i n a f f i r m i n g t h e c o n v i c t i o n o f f i r s t

d e g r e e m u r d e r a n d t h e s e n t e n c e o f d e a t h i n t h i s c a s e .

I w r i t e s e p a r a t e l y t o s t a t e m y r e a s o n s f o r n o t

f i n d i n g a s p r e j u d i c i a l e r r o r t h e t r i a l c o u r t ' s c h a r g i n g o f

t h e 1 9 8 9 v e r s i o n o f a g g r a v a t i n g c i r c u m s t a n c e ( i ) ( 5 ) , t o

e x p r e s s m y c o n t i n u i n g c o n c e r n r e g a r d i n g t h e C o u r t ’ s

c o m p a r a t i v e p r o p o r t i o n a l i t y r e v i e w , a n d t o c o m m e n t o n a

d i s t u r b i n g a s p e c t o f t h e c a s e w h i c h i s i n s u l a t e d f r o m

r e v i e w .

F i r s t , I r e p e a t a n o b s e r v a t i o n m a d e i n S t a t e v .

H o w e l l , 8 6 8 S . W . 2 d 2 3 8 , 2 6 3 ( T e n n . 1 9 9 3 ) ( R e i d , C . J . ,

c o n c u r r i n g ) , w h i c h i s a p p l i c a b l e t o t h e p e r f o r m a n c e o f t h e

t r i a l j u d g e i n t h i s c a s e : " T h e t r i a l j u d g e d e m o n s t r a t e d t h e

q u a l i t i e s c r i t i c a l l y i m p o r t a n t i n c o n d u c t i n g a h i g h l y

e m o t i o n a l a n d l e g a l l y e x a c t i n g t r i a l . T h e r e c o r d s h o w s t h a t

t h e c a s e w a s d e c i d e d b y a c o m p e t e n t a n d i m p a r t i a l j u r y . T h e

r e c o r d d e m o n s t r a t e s t h a t c a p i t a l c a s e s c a n b e t r i e d

r e l a t i v e l y f r e e o f e r r o r . " C o u n s e l p r e s s e d t o t h e l i n e t h e

w i d e l a t i t u d e n e c e s s a r y f o r e f f e c t i v e a d v o c a c y b u t w e r e

a p p r o p r i a t e l y r e s t r a i n e d b y t h e c o o l h a n d o f t h e j u d g e . T h e

c a s e a l s o d e m o n s t r a t e s t h a t h a v i n g a r e v i e w b y t h e C o u r t o f

C r i m i n a l A p p e a l s o f a l l a s s i g n m e n t s o f e r r o r i n c a p i t a l

- 8 1 - c a s e s , w i t h a f i n a l r e v i e w b y t h i s C o u r t o f a l i m i t e d n u m b e r

o f i s s u e s i n a d d i t i o n t o t h o s e i s s u e s m a n d a t e d b y s t a t u t e ,

i s a n e f f i c i e n t u t i l i z a t i o n o f j u d i c i a l r e s o u r c e s .

T h e S t a t e r e l i e d u p o n , a n d t h e j u r y f o u n d ,

a g g r a v a t i n g c i r c u m s t a n c e ( i ) ( 5 ) . T h e o f f e n s e i n t h i s c a s e

w a s c o m m i t t e d i n 1 9 8 8 ; t h e t r i a l w a s h e l d i n 1 9 9 3 . A t t h e

t i m e t h e o f f e n s e w a s c o m m i t t e d , a g g r a v a t i n g c i r c u m s t a n c e s

( i ) ( 5 ) w a s d e f i n e d a s a m u r d e r t h a t " w a s e s p e c i a l l y h e i n o u s ,

a t r o c i o u s , o r c r u e l i n t h a t i t i n v o l v e d t o r t u r e o r d e p r a v i t y

o f m i n d . " T e n n . C o d e A n n . § 3 9 - 2 - 2 0 3 ( i ) ( 5 ) ( 1 9 8 2 ) . I n

1 9 8 9 , t h a t d e f i n i t i o n w a s a m e n d e d b y d e l e t i n g " d e p r a v i t y o f

m i n d " a n d s u b s t i t u t i n g " s e r i o u s p h y s i c a l a b u s e b e y o n d t h a t

n e c e s s a r y t o p r o d u c e d e a t h . " T e n n . C o d e A n n . § 3 9 - 1 3 -

2 0 4 ( i ) ( 5 ) ( 1 9 9 1 ) . W i t h o u t o b j e c t i o n , t h e t r i a l c o u r t

c h a r g e d t h e 1 9 8 9 v e r s i o n o f t h e s t a t u t e .

T h e C o u r t h e l d i n S t a t e v . B r i m m e r , 8 7 6 S . W . 2 d 7 5 ,

8 2 ( T e n n . 1 9 9 4 ) , t h a t i n c a p i t a l c a s e s t h e a p p l i c a b l e l a w i s

t h e l a w t h a t w a s i n e f f e c t a t t h e t i m e t h e o f f e n s e w a s

c o m m i t t e d . T h e d e f e n d a n t i n s i s t s t h a t c h a r g i n g t h e 1 9 8 9

d e f i n i t i o n w a s r e v e r s i b l e e r r o r . T h e r e c a n b e n o d e n y i n g

t h a t u n d e r t h e a u t h o r i t y o f B r i m m e r , t h e i n s t r u c t i o n w a s

- 8 2 - 2 2 e r r o n e o u s . H o w e v e r , i n m y o p i n i o n , t h e e f f e c t o f t h e

e r r o r w a s a m e l i o r a t i v e r a t h e r t h a n p r e j u d i c i a l , a n d ,

t h e r e f o r e , d o e s n o t c o n s t i t u t e r e v e r s i b l e e r r o r .

I h a v e d i s s e n t e d i n e v e r y c a s e d e c i d e d b y t h i s

C o u r t s i n c e S e p t e m b e r 1 9 9 0 i n w h i c h t h e r e w a s r e l i a n c e f o r

t h e s e n t e n c e o f d e a t h o n a f i n d i n g t h a t t h e m u r d e r i n v o l v e d

d e p r a v i t y o f m i n d . T h e b a s i s o f t h o s e d i s s e n t s i s t h a t

e v e r y f i r s t d e g r e e m u r d e r i s " e s p e c i a l l y h e i n o u s , a t r o c i o u s

o r c r u e l i n t h a t i t i n v o l v e d d e p r a v i t y o f m i n d " ;

c o n s e q u e n t l y , t h a t i n s t r u c t i o n h a s n o r e a s o n a b l y p r e c i s e

m e a n i n g a n d d o e s n o t a i d t h e j u r o r s i n d e t e r m i n i n g i f d e a t h

i s a n a p p r o p r i a t e p u n i s h m e n t . I n t h e f i r s t c a s e , S t a t e v .

B l a c k , 8 1 5 S . W . 2 d 1 6 6 , 1 9 6 - 9 7 ( T e n n . 1 9 9 1 ) ( R e i d , C . J . ,

c o n c u r r i n g a n d d i s s e n t i n g ) , I s u g g e s t e d t h a t :

a p r op e r l i m i t i n g c o n s t r u c t i o n o f " d e p ra v i t y o f m i n d " t o b e g i v e n i n t h o s e c a s e s w h e r e t o r t u r e i s a b s e n t w o u l d b e e s t a bl i s h e d b y a d o p t i n g t h e d e f i n i t i o n o f t ha t t e r m s e t f o r t h b y t h e N e w J e r s e y S u p r em e C o u r t i n S t a t e v . R a m s e u r , 1 0 6 N . J . 1 2 3 , 5 2 4 A . 2 d 1 8 8 , 2 3 0 - 2 3 1 ( 1 9 8 7 ) , w h e r e i t h e l d t h a t t h i s p h r a s e m a r k s

s o c i e t y ' s c o n c e r n t o p u n i s h s e v e r e l y

22 A s n o t e d i n t h e m a i n o p i n i o n , B r i m m e r w a s d e c i d e d a f t e r t h i s c a s e h a d b e e n t r i e d .

- 8 3 - t h o s e w h o m u r d e r w i t h o u t p u r p o s e o r m e a n i n g a s d i s t i n g u i s h e d f r o m t h o s e w h o m u r d e r f o r a p u r p o s e ( a l b e i t a c o m p l e t e l y u n j u s t i f i e d p u r p o s e ) . T h i s t e r m i s o l a t e s c o n d u c t t h a t c a u s e s t h e g r e a t e s t a b h o r r e n c e a n d t e r r o r w i t h i n a n o r d e r e d s o c i e t y , b e c a u s e c i t i z e n s c a n n o t e i t h e r i n f a c t o r i n p e r c e p t i o n p r o t e c t t h e m s e l v e s f r o m t h e s e r a n d o m a c t s o f v i o l e n c e . T h e k i l l e r w h o d e o s i t b e c a u s e h e l i k e s i t , p e r h a p s e v e n b e c a u s e i t m a k e s h i m f e e l b t e t e r , w h o k i l l s b y s t a n d e r s w i t h o u t r e s a o n , w h o k i l l s c h i l d r e n a n d o t h e r s w o h s e h e l p l e s s n e s s w o u l d i n d i c a t e t h a t t h e r e w a s n o r e a s o n t o m u r d e r , e v i n c e s w h a t w e d e f i n e a s d e p r a v i t y o f m i n d .

. . .

W h a t s o c i e t y i s c o n c e r n e d w i t h h e r e . . . i s t h e c o m p l e t e a b s e n c e - - f r o m s o c i e t y ' s p o i n t o f v i e w - - o f a n y o f t h e r e c o g n i z a b l e m o t i v a t i o n s o r e m o t i o n s t h a t o r d i n a r i l y e x p l a i n m u r d e r .

I n S t a t e v . V a n T r a n , 8 6 4 S . W . 2 d 4 6 5 , 4 8 8 ( T e n n . 1 9 9 3 )

( D a u g h t r e y , J . , d i s s e n t i n g ) , I j o i n e d J u s t i c e D a u g h t r e y i n

s t a t i n g : " B e c a u s e t h e " d e p r a v i t y o f m i n d " p r o n g o f

a g g r a v a t e d c i r c u m s t a n c e ( i ) ( 5 ) i s s o v a g u e , t h e i n s t r u c t i o n

g i v e n i n t h i s c a s e a l l o w e d t h e j u r y t o e x e r c i s e t h e s o r t o f

u n g u i d e d d i s c r e t i o n c o n d e m n e d b y t h e U n i t e d S t a t e s S u p r e m e

C o u r t i n G o d f r e y v . G e o r g i a , 4 4 6 U . S . 4 2 0 , 1 0 0 S . C t . 1 7 5 9 ,

- 8 4 - 6 4 L . E d . 2 d 3 9 8 ( 1 9 8 0 ) , a n d M a y n a r d v . C a r t w r i g h t , 4 8 6 U . S .

3 5 6 , 1 0 8 S . C t . 1 8 5 3 , 1 0 0 L . E d . 2 d 3 7 2 ( 1 9 8 8 ) . "

H a v i n g o b v i o u s l y f a i l e d t o c o n v i n c e m y c o l l e a g u e s

o f t h e c o r r e c t n e s s o f m y p o s i t i o n , I s t a t e d t h e m a t t e r a b i t

m o r e f i r m l y i n S t a t e v . S h e p h e r d , 9 0 2 S . W . 2 d 8 9 5 , 9 0 9 ( T e n n .

1 9 9 5 ) ( R e i d , J . , d i s s e n t i n g ) :

A s s t a t e d i n p r i o r d i s s e n t s , t h e w o r d s " h e i n o u s , a t r o c i o u s o r c r u e l " a r e s o b e r e f t o f p a r t i c u l a r m e a n i n g t h a t t h i s a g g r a v a t i n g c i r c u m s t a n c e d o e s n o t a c c o m p l i s h t h e c o n s t i t u t i o n a l m a n d a t e o f d i r e c t i n g a n d l i m i t i n g t h e j u r y ' s d i s c r e t i o n " s o a s t o m i n i m i z e t h e r i s k o f w h o l l y a r b i t r a r y a n d c a p r i c i o u s a c t i o n . " G r e g g v . G e o r g i a , 4 2 8 U . S . 1 5 3 , 1 8 9 , 9 6 S . C t . 2 9 0 9 , 2 9 3 2 , 4 9 L . E d . 2 d 8 5 9 ( 1 9 7 6 ) ; s e e S t a t e v . B l a c k , 8 1 5 S . W . 2 d 1 6 6 , 1 9 5 ( T e n n . 1 9 9 1 ) . T h e p r e c a r i o u s n e s s o f t h e C o u r t ' s p e r s i s t e n t r e l i a n c e u p o n t h i s p a t e n t l y i n v a l i d a g g r a v a t i n g c i r c u m s t a n c e i s i n d i c a t e d b y t h e o p i n i o n o f J u s t i c e S t e v e n s i n B a r b e r v . T e n n e s s e e , _ _ _ _ _ U . S . _ _ _ _ _ , 1 1 5 S . C t . 1 1 7 7 , 1 3 0 L . E d . 2 d 1 1 2 9 ( 1 9 9 5 ) . I n d e n y i n g t h e c a p i t a l d e f e n d a n t ' s p e t i t i o n f o r c e r t i o r a r i f r o m t h e j u d g m e n t o f t h i s C o u r t d e n y i n g p o s t - c o n v i c t i o n r e l i e f , J u s t i c e S t e v e n s s t a t e d :

. . . I n t h i s c a s e , f o r e x a m p l e , t h e r e a r e v a l i d r e a s o n s f o r t h e C o u r t ' s d e c i s i o n t o d e n y r e v i e w . B u t t h i s d o e s n o t m e a n p e t i t i o n e r ' s c h a l l e n g e t o h i s d e a t h s e n t e n c e , b a s e d i n p a r t u p o n t h e t r i a l j u d g e ' s d e f i n i t i o n o f a n

- 8 5 - a g g r a v a t i n g c i r c u m s t a n c e , l a c k s m e r i t . U n d e r t h e t r i a l c o u r t ' s i n s t r u c t i o n , a j u r y c o u l d f i n d a n a g g r a v a t i n g c i r c u m s t a n c e s u f f i c i e n t t o i m p o s e t h e d e a t h p e n a l t y m e r e l y b y c o n c l u d i n g t h a t a m u r d e r e r ' s s t a t e o f m i n d w a s " w i c k e d o r m o r a l l y c o r r u p t . " B e c a u s e s u c h a s t a t e o f m i n d i s a c h a r a c t e r i s t i c o f e v e r y m u r d e r , t h e i n s t r u c t i o n i s p l a i n l y i m p e r m i s s i b l e u n d e r t h i s C o u r t ' s h o l d i n g s i n G o d f r e y v . G e o r g i a , 4 4 6 U . S . 4 2 0 , 4 2 8 - 4 2 9 [ 1 0 0 S . C t . 1 7 5 9 , 1 7 6 4 - 6 5 , 6 4 L . E d . 2 d 3 9 8 ] ( 1 9 8 0 ) ( s t r i k i n g d o w n i n s t r u c t i o n a l l o w i n g j u r y t o f i n d a g g r a v a t i n g c i r c u m s t a n c e i f m u r d e r w a s " ' o u t r a g e o u s l y o r w a n t o n l y v i l e , h o r r i b l e a n d i n h u m a n ' " ) , a n d M a y n a r d v . C a r t w r i g h t , 4 8 6 U . S . 3 5 6 , 3 6 3 - 3 6 4 [ 1 0 8 S . C t . 1 8 5 3 , 1 8 5 8 , 1 0 0 L . E d . 2 d 3 7 2 ] ( 1 9 8 8 ) ( " ' e s p e c i a l l y h e i n o u s , a t r o c i o u s , o r c r u e l ' " ) .

( F o o t n o t e s o m i t t e d . )

W h i l e " d e p r a v i t y o f m i n d , " i n m y v i e w , i s f a t a l l y

d e f i c i e n t i n m e a n i n g , t h e l a n g u a g e o f t h e 1 9 8 9 s t a t u t e ,

" s e r i o u s p h y s i c a l a b u s e b e y o n d t h a t n e c e s s a r y t o p r o d u c e

d e a t h , " i s p l a i n a n d p r o v i d e s a m e a n i n g f u l s t a n d a r d f o r

d e t e r m i n i n g t h e a p p r o p r i a t e n e s s o f d e a t h a s a p e n a l t y . A s a

p r a c t i c a l m a t t e r , t h e n , t h e s u b s t a n t i v e e f f e c t o f t h e “ e r r o r ”

i n t h i s c a s e w a s t o e l i d e , o r e v e n t o c o r r e c t , t h e

u n c o n s t i t u t i o n a l p o r t i o n o f t h i s a g g r a v a t i n g c i r c u m s t a n c e .

T h e e r r o r w a s e n t i r e l y t e c h n i c a l a n d c u r a t i v e o f t h o s e

- 8 6 - c o n s t i t u t i o n a l d e f e c t s w h i c h I h a v e p r e v i o u s l y f o u n d i n t h i s

a g g r a v a t i n g c i r c u m s t a n c e a n d , u n d e r t h e f a c t s o f t h i s c a s e ,

t h e i n s t r u c t i o n g a v e t h e j u r y a c o n s t i t u t i o n a l e q u i v a l e n t t o

t h e p r i o r u n c o n s t i t u t i o n a l v e r s i o n o f a g g r a v a t i n g

c i r c u m s t a n c e ( i ) ( 5 ) f o u n d i n T e n n . C o d e A n n . § 3 9 - 2 -

2 0 3 ( i ) ( 5 ) . I h a v e n o t i n a n y p r i o r c a s e , a n d I d o n o t n o w ,

f i n d t h a t d e f i n i t i o n d e f i c i e n t a s a n a g g r a v a t i n g

c i r c u m s t a n c e . C o n s e q u e n t l y , I a g r e e w i t h t h e m a i n o p i n i o n

t h a t g i v i n g t h e e r r o n e o u s i n s t r u c t i o n t o t h e j u r y i s n o t

g r o u n d s f o r r e v e r s a l o f t h e s e n t e n c e .

A l s o , i n s o m e p r i o r c a s e s , I h a v e i n s i s t e d t h a t t h e

e v i d e n c e d i d n o t s u p p o r t a f i n d i n g o f t o r t u r e a s a n

a g g r a v a t i n g c i r c u m s t a n c e . S e e e . g . , S t a t e v . C a z e s , 8 7 5

S . W . 2 d 2 5 3 , 2 7 2 ( T e n n . 1 9 9 4 ) ( R e i d , J . , c o n c u r r i n g a n d

d i s s e n t i n g ) ; S t a t e v . V a n T r a n , 8 6 4 S . W . 2 d 4 6 5 , 4 8 3 ( T e n n .

1 9 9 3 ) ( R e i d , C . J . , c o n c u r r i n g a n d d i s s e n t i n g ) ; S t a t e v .

B l a c k , 8 1 5 S . W . 2 d a t 1 9 6 . T h e f a c t s o f t h i s c a s e , a s s t a t e d

i n t h e m a i n o p i n i o n , c l e a r l y s u p p o r t a f i n d i n g o f t o r t u r e a s

t h a t t e r m i s g e n e r a l l y u n d e r s t o o d . P e r h a p s i t i s n o t e w o r t h y

t h a t t h e s u f f i c i e n c y o f t h e e v i d e n c e s u p p o r t i n g t h i s

a g g r a v a t i n g c i r c u m s t a n c e , t h o u g h m a n d a t e d b y s t a t u t e f o r

r e v i e w , T e n n . C o d e A n n . § 3 9 - 1 3 - 2 0 6 ( c ) ( 1 ) ( B ) ( S u p p . 1 9 9 6 ) ,

- 8 7 - w a s n o t r a i s e d b y t h e d e f e n d a n t . C o n s e q u e n t l y , I c o n c u r i n

t h e h o l d i n g t h a t t h e e v i d e n c e i s s u f f i c i e n t t o s u p p o r t t h e

j u r y ' s f i n d i n g o f t h e t o r t u r e c o m p o n e n t o f a g g r a v a t i n g

c i r c u m s t a n c e ( i ) ( 5 ) .

A n o t h e r i s s u e w h i c h , i n m y v i e w , r e q u i r e s f u r t h e r

d i s c u s s i o n i s t h e c o m p a r a t i v e p r o p o r t i o n a l i t y r e v i e w m a n d a t e d

b y T e n n . C o d e A n n . § 3 9 - 1 3 - 2 0 6 ( c ) ( l ) ( D ) ( S u p p . 1 9 9 6 ) ; t h i s

i s s u e h a s b e e n t h e b a s i s f o r p r i o r d i s s e n t . T h e r e i s n o

m e t h o d o l o g y t o t h e m a j o r i t y ' s a n a l y s i s . T h e r e v i e w c o n s i s t s

e n t i r e l y o f c o n c l u s o r y , a n d d e f e n s i v e , s t a t e m e n t s f o l l o w e d b y

a f u r t h e r r e c i t a t i o n o f t h e f a c t s . S e e S t a t e v . N i c h o l s , 8 7 7

S . W . 2 d 7 2 2 , 7 4 4 ( T e n n . 1 9 9 4 ) ( R e i d , C . J . , d i s s e n t i n g ) ; S t a t e

v . H u r l e y , 8 7 6 S . W . 2 d 5 7 , 7 1 ( T e n n . 1 9 9 3 ) ( R e i d , C . J . ,

d i s s e n t i n g ) ; S t a t e v . H o w e l l , 8 6 8 S . W . 2 d a t 2 7 1 - 7 2 ( R e i d ,

C . J . , c o n c u r r i n g ) ; S t a t e v . V a n T r a n , 8 6 4 S . W . 2 d a t 4 8 4 - 8 5

( R e i d , C . J . , c o n c u r r i n g a n d d i s s e n t i n g ) ; S t a t e v . H a r r i s , 8 3 9

S . W . 2 d 5 4 , 8 4 - 8 5 ( T e n n . 1 9 9 2 ) ( R e i d , C . J . , d i s s e n t i n g ) .

N e v e r t h e l e s s , a s i n S t a t e v . H o w e l l a n d S t a t e v .

S m i t h , 8 6 8 S . W . 2 d 5 6 1 , 5 8 5 ( T e n n . 1 9 9 3 ) ( R e i d , C . J . ,

c o n c u r r i n g ) , t h e r e c o r d e s t a b l i s h e s t h a t u p o n c o m p a r i s o n o f

t h e c h a r a c t e r o f t h e d e f e n d a n t a n d t h e n a t u r e o f h i s c r i m e ,

- 8 8 - t o o t h e r d e f e n d a n t s a n d o t h e r f i r s t d e g r e e m u r d e r s , b y a n y

r a t i o n a l s t a n d a r d , t h e d e f e n d a n t i s a m o n g t h e w o r s t o f t h e

b a d .

T h e c h a r a c t e r o f t h e d e f e n d a n t a n d t h e

c i r c u m s t a n c e s o f t h e k i l l i n g i n t h i s c a s e w o u l d j u s t i f y t h e

s e n t e n c e o f d e a t h j u d g e d b y t h e d e f i n i t i o n o f " d e p r a v i t y o f

m i n d " u r g e d i n S t a t e v . B l a c k , s e e s u p r a , a t _ _ _ _ _ [ p . 4 ] .

T h e d e f e n d a n t ' s c o n d u c t i n k i l l i n g a n a g e d a n d h e l p l e s s

v i c t i m , w h o s u r r e n d e r e d h e r l a s t m e a n s o f p r o t e c t i o n b y

o p e n i n g t h e d o o r o f h e r h o m e t o t h e g r a n d s o n o f h e r b e s t

f r i e n d , i s c o n d u c t w h i c h c a u s e s t h e g r e a t e s t a b h o r r e n c e a n d

t e r r o r w i t h i n a n o r d e r e d s o c i e t y . T h e r e i s n o p r o t e c t i o n

a g a i n s t a r a n d o m k i l l i n g b y a t r u s t e d a c q u a i n t a n c e . T h e

c h a r a c t e r o f t h e d e f e n d a n t s h o w s m o r e t h a n a c a l c u l a t e d

r o b b e r y w h i c h g o t o u t o f h a n d . T h e e v i d e n c e s h o w s a p e r s o n

o f i n t e l l i g e n c e w h o i s f a s c i n a t e d w i t h v a m p i r e s a n d d e m o n s ,

w h o d r e a m s o f k i l l i n g , a n d w h o s e l i f e i s i n h a b i t e d b y d e m o n s

a n d m o n s t e r s . H i s e x p l a n a t i o n o f t h e h o m i c i d e i s d i s t u r b i n g ;

h e w a s c o m p e l l e d b y a n u n d e r w o r l d g r o u p . B u t t h a t f a n c i f u l

c o m p u l s i o n i s b e l i e d b y h i s m a n n e r o f p e r f o r m i n g t h e a c t s o

t h a t h e l i t e r a l l y b e c a m e d r e n c h e d w i t h t h e v i c t i m ’ s b l o o d a n d

b y t h e r e l i s h w i t h w h i c h h e r e c o u n t e d t h e c r i m e t o

a c q u a i n t a n c e s . A s s t a t e d i n H o w e l l , 8 6 8 S . W . 2 d a t 2 7 2 ,

" c o m p a r i s o n o f t h e c h a r a c t e r o f t h e d e f e n d a n t i n t h i s c a s e

a n d t h e n a t u r e o f h i s c r i m e , b y a n y s t a n d a r d o f a n a l y s i s ,

w o u l d s h o w t h a t h e i s a m o n g t h e w o r s t o f t h e b a d . "

- 8 9 - I t i s , i n f a c t , t h e a b u n d a n t e v i d e n c e o f t h e

d e f e n d a n t ' s m a l e f i c e n c e t h a t i s d i s t u r b i n g . T h e r e c o r d

c o n t a i n s s i g n i f i c a n t e v i d e n c e b e y o n d t h e c i r c u m s t a n c e s

r e l a t i n g d i r e c t l y t o t h e c r i m e . T h e d e f e n d a n t h a s b e e n

e x h i b i t i n g s y m p t o m s o f s c h i z o p h r e n i a s i n c e h e w a s i n h i g h

s c h o o l a n d w a s d i a g n o s e d a s a s c h i z o p h r e n i c w h i l e a w a i t i n g

t r i a l . T h e r e c o r d d i s c l o s e s t h a t , b a s e d u p o n t h e a s s e s s m e n t

o f c o u r t - a p p o i n t e d m e n t a l h e a l t h e x p e r t s , t h e t r i a l c o u r t

f o u n d t h a t t h e d e f e n d a n t w a s i n c o m p e t e n t t o s t a n d t r i a l .

T h o s e s a m e m e n t a l h e a l t h p r o f e s s i o n a l s a l s o f o u n d t h a t a n

i n s a n i t y d e f e n s e c o u l d b e s u p p o r t e d . H o w e v e r , t h e d e f e n d a n t

h a s n o t c h a l l e n g e d t h e c o u r t ' s s u b s e q u e n t d e t e r m i n a t i o n o f

c o m p e t e n c y , a n d t h e r e c o r d d i s c l o s e s n o f a c t s u p o n w h i c h

p l a i n e r r o r c a n b e f o u n d i n t h i s r e g a r d . A p p a r e n t l y , c o u n s e l

w a s c o n t e n t t o p r e s e n t e v i d e n c e o f t h e d e f e n d a n t ' s m e n t a l

c o n d i t i o n a t t h e s e n t e n c i n g h e a r i n g . S i n c e t h e r e c o r d d o e s

n o t f a c i a l l y e s t a b l i s h t h a t t h e m e n t a l c o n d i t i o n o f t h e

d e f e n d a n t i s d i s p r o p o r t i o n a t e t o t h a t o f o t h e r d e f e n d a n t s

s e n t e n c e d t o d e a t h , t h i s a s p e c t o f t h e c a s e c a n n o t

e f f e c t i v e l y b e r e v i e w e d o n t h e r e c o r d b e f o r e t h e C o u r t .

I n c o n c l u s i o n , t h e r e c o r d d o e s n o t d i s c l o s e

r e v e r s i b l e e r r o r , b u t r a t h e r , s u p p o r t s t h e j u d g m e n t r e n d e r e d

i n t h e t r i a l c o u r t a n d a f f i r m e d b y t h e C o u r t o f C r i m i n a l

A p p e a l s a n d t h i s C o u r t .

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ R e i d , J .

- 9 0 - IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE FILED April 7, 1997 STATE OF TENNESSEE, ) FOR PUBLICATION ) Cecil Crowson, Jr. Appellee, ) FILED: APRIL 7,C 1997 Appellate ourt Clerk ) v. ) CUMBERLAND COUNTY ) MICHAEL DEAN BUSH, ) HON. LEON BURNS, JR., JUDGE ) Appellant. ) NO. 03-S-01-9604-CC-00047

DISSENTING OPINION

T h e m a j o r i t y c o n c l u d e s t h a t a g g r a v a t i n g f a c t o r 2 3 ( i ) ( 6 ) h a s b e e n s u f f i c i e n t l y d e m o n s t r a t e d i n t h e i n s t a n t c a s e .

23 (i) N o d e a t h p e n a l t y s h a l l b e i m p o s e d b u t u p o n a u n a n i m o u s f i n d i n g t h a t t h e s t a t e h a s p r o v e n b e y o n d a r e a s o n a b l e d o u b t t h e e x i s t e n c e o f o n e ( 1 ) o r m o r e o f t h e s t a t u t o r y a g g r a v a t i n g c i r c u m s t a n c e s , w h i c h a r e l i m i t e d t o t h e f o l l o w i n g : I n m y v i e w , t h e e v i d e n c e i s n o t s u f f i c i e n t t o w a r r a n t i t s

a p p l i c a t i o n . B e c a u s e I f i n d t h a t t h i s e r r o r m o r e p r o b a b l y t h a n

n o t a f f e c t e d t h e j u r y ’ s d e c i s i o n t o i m p o s e t h e d e a t h s e n t e n c e , I

w o u l d v a c a t e t h e s e n t e n c e o f d e a t h a n d r e m a n d t h i s c a u s e f o r a

n e w s e n t e n c i n g h e a r i n g .

A l t h o u g h t h i s i s a c l o s e c a s e , I d o n o t f i n d t h a t t h e

S t a t e p r e s e n t e d s u f f i c i e n t e v i d e n c e f o r t h e j u r y t o c o n c l u d e

t h a t B u s h k i l l e d t h e v i c t i m i n o r d e r t o a v o i d a r r e s t o r

p r o s e c u t i o n f o r t h e r o b b e r y . W h e n t h e e v i d e n c e i s e n t i r e l y

c i r c u m s t a n t i a l , a s i n t h i s c a s e , t h e n t h a t e v i d e n c e m u s t

p r e c l u d e e v e r y o t h e r r e a s o n a b l e t h e o r y o r h y p o t h e s i s e x c e p t t h a t

w h i c h i t t e n d s t o s u p p o r t , i . e . , t h a t t h e k i l l i n g w a s , i n f a c t ,

m o t i v a t e d b y a d e s i r e t o e r a d i c a t e a w i t n e s s . S t a t e v . Z i r k l e ,

9 1 0 S . W . 2 d 8 7 4 , 8 8 2 ( T e n n . C r i m . A p p . 1 9 9 5 ) ( c i t i n g M a r a b l e v . 2 4 S t a t e , 2 0 3 T e n n . 4 4 0 , 3 1 3 S . W . 2 d 4 5 1 , 4 5 6 ( 1 9 5 8 ) ) .

T h e m a j o r i t y r e l i e s i n p a r t o n t h e f a c t t h a t t h e

d e f e n d a n t a n d t h e v i c t i m k n e w o n e a n o t h e r . S u c h i s n o t

. . . .

( 6 ) T h e m u r d e r w a s c o m m i t t e d f o r t h e p u r p o s e o f a v o i d i n g , i n t e r f e r i n g w i t h , o r p r e v e n t i n g a l a w f u l a r r e s t o r p r o s e c u t i o n o f t h e d e f e n d a n t o r a n o t h e r .

T e n n . C o d e A n n . § 3 9 - 1 3 - 2 0 4 ( i ) ( 6 ) ( 1 9 9 1 ) .

24 A l t h o u g h Z i r k l e r e f e r s t o t h e s t a n d a r d o f p r o o f r e q u i r e d t o e s t a b l i s h g u i l t w h e n t h e e v i d e n c e a g a i n s t t h e d e f e n d a n t i s e n t i r e l y c i r c u m s t a n t i a l , I t h i n k i t i s e q u a l l y a p p l i c a b l e h e r e .

92 s u f f i c i e n t , w i t h o u t m o r e , t o e s t a b l i s h t h e ( i ) ( 6 ) a g g r a v a t i n g

f a c t o r . I n m a n y c a s e s , t h e v i c t i m e i t h e r k n o w s t h e d e f e n d a n t o r

h a s o b s e r v e d t h e d e f e n d a n t s u f f i c i e n t l y t o b e a b l e t o l a t e r

i d e n t i f y t h a t p e r s o n . T h i s c i r c u m s t a n c e i s s o p r e v a l e n t t h a t t o

a l l o w i t t o e s t a b l i s h t h e ( i ) ( 6 ) a g g r a v a t i n g f a c t o r w o u l d u n d u l y

a n d u n c o n s t i t u t i o n a l l y e n l a r g e t h e c l a s s o f d e f e n d a n t s s u b j e c t

t o t h e d e a t h p e n a l t y .

M o r e o v e r , o u r p r i o r a p p l i c a t i o n o f t h e ( i ) ( 6 )

a g g r a v a t o r i n s i m i l a r c a s e s h a s n o t b e e n c o n s i s t e n t . S e e S t a t e

v . E v a n s , 8 3 8 S . W . 2 d 1 8 5 ( T e n n . 1 9 9 2 ) ( a g g r a v a t i n g f a c t o r ( i ) ( 6 )

a p p l i e d w h e r e d e f e n d a n t , a f o r m e r e m p l o y e e , r e t u r n e d , r o b b e d

m a r k e t , a n d k i l l e d a c l e r k w h o m h e k n e w ) . B u t s e e S t a t e v . V a n

T r a n , 8 6 4 S . W . 2 d 4 6 5 ( T e n n . 1 9 9 3 ) ( a g g r a v a t i n g f a c t o r ( i ) ( 6 ) n o t

a p p l i e d w h e r e d e f e n d a n t , f o r m e r e m p l o y e e , r e t u r n e d , r o b b e d

r e s t a u r a n t , a n d k i l l e d o w n e r w h o m h e k n e w ) . S t a t e v . W e s t , 7 6 7

S . W . 2 d 3 8 7 ( T e n n . 1 9 8 9 ) ( a g g r a v a t i n g f a c t o r ( i ) ( 6 ) a p p l i e d w h e r e

d e f e n d a n t a n d c o - d e f e n d a n t w e r e c o n v i c t e d o f t h e m u r d e r o f a

g i r l w h o k n e w c o - d e f e n d a n t a n d c o u l d i d e n t i f y d e f e n d a n t ) . B u t

s e e S t a t e v . B r a n a m , 8 5 5 S . W . 2 d 5 6 3 ( T e n n . 1 9 9 3 ) ( a g g r a v a t i n g

f a c t o r ( i ) ( 6 ) n o t a p p l i e d w h e r e d e f e n d a n t a n d c o - d e f e n d a n t w e r e

c o n v i c t e d f o r t h e m u r d e r o f a w o m a n w h o k n e w d e f e n d a n t a n d c o u l d

i d e n t i f y c o - d e f e n d a n t ) .

93 B e c a u s e o f t h e i n c o n s i s t e n t a p p l i c a t i o n o f t h e ( i ) ( 6 )

a g g r a v a t i n g f a c t o r a n d t h e d a n g e r o f u n c o n s t i t u t i o n a l l y

e n l a r g i n g t h e c l a s s o f d e f e n d a n t s s u b j e c t t o t h e d e a t h p e n a l t y ,

I w o u l d h o l d t h a t t h e f a c t t h a t t h e v i c t i m k n e w t h e a s s a i l a n t ,

w i t h o u t m o r e , i s n o t s u f f i c i e n t t o p r o v e t h a t t h e k i l l i n g w a s i n

f a c t m o t i v a t e d b y a d e s i r e t o e v a d e a r r e s t o r a v o i d p r o s e c u t i o n .

B y r e q u i r i n g a d d i t i o n a l e v i d e n c e , w e w o u l d s c r e e n o u t t h o s e

c a s e s i n w h i c h a d e f e n d a n t i n i t i a l l y i n t e n t e d t o c o m m i t a n o n -

c a p i t a l o f f e n s e b u t f o r a r e a s o n o t h e r t h a n w i t n e s s e l i m i n a t i o n ,

e s c a l a t e d t h e c o n d u c t t o i n c l u d e a n u n l a w f u l k i l l i n g .

I n t h i s c a s e , t h e S t a t e ’ s t h e o r y w a s t h a t B u s h k i l l e d

L e f e v e r s o t h a t s h e c o u l d n o t i d e n t i f y h i m a s t h e i n d i v i d u a l w h o

b r o k e i n t o h e r h o u s e a n d r o b b e d h e r . F r o m m y r e v i e w , h o w e v e r ,

t h e r e i s s u b s t a n t i a l e v i d e n c e t h a t B u s h d i d n o t k i l l L e f e v e r i n

o r d e r t o e l i m i n a t e h e r a s a w i t n e s s t o t h e b u r g l a r y / r o b b e r y .

F i r s t , B u s h m a d e n o a t t e m p t t o c o n c e a l t h e i n t e n d e d c r i m e f r o m

h i s w i f e ; r a t h e r , h e t o l d h e r t h a t h e w a s g o i n g t o h i t t h e o l d

w o m a n o v e r t h e h e a d a n d t a k e h e r m o n e y . T h e m a j o r i t y f i n d s i t

s i g n i f i c a n t t h a t t h e d e f e n d a n t w i t h h e l d f r o m h i s w i f e t h e n a m e

o r a d d r e s s o f t h e i n t e n d e d v i c t i m c o n c l u d i n g t h a t B u s h w i s h e d t o

p r e v e n t h e r f r o m " w i t n e s s i n g t h e b u r g l a r y . " H o w e v e r , t h e r e i s

n o d i s p u t e t h a t B u s h t o l d h i s w i f e o f h i s i n t e n t t o c o m m i t t h e

b u r g l a r y a n d a s k e d h e r t o d r i v e h i m t o t h e s c e n e . I n m y v i e w ,

94 t h i s e v i d e n c e i n d i c a t e s t h a t B u s h w a s n o t c o n c e r n e d a b o u t

c o n c e a l i n g t h e b u r g l a r y . I f i n d t h a t t h i s t e s t i m o n y i n d i c a t e s

t h a t B u s h s i m p l y d i d n o t w a n t t o i m p l i c a t e h i s w i f e i n t h e

c r i m e . H e n c e , I f i n d t h i s e v i d e n c e i n s u f f i c i e n t t o s u p p o r t t h e

m a j o r i t y ’ s c o n c l u s i o n t h a t t h e d e f e n d a n t k i l l e d t h e v i c t i m t o

e l i m i n a t e h e r a s a w i t n e s s .

M o r e t o t h e p o i n t , B u s h r e l a t e d v e r s i o n s o f w h a t

h a p p e n e d t o t w o f e l l o w i n m a t e s w h o t e s t i f i e d a s w i t n e s s e s f o r

t h e S t a t e . T h e f i r s t t e s t i f i e d t h a t B u s h t o l d h i m t h a t h e h a d

k i l l e d t h e v i c t i m w h e n h e c o u l d n o t f i n d a n y m o n e y . T h e s e c o n d

t e s t i f i e d t h a t B u s h t o l d h i m t h a t h e k i l l e d t h e v i c t i m w h e n h e

l o s t h i s t e m p e r a f t e r a n a r g u m e n t e r u p t e d . I n t h e s e t w o

v e r s i o n s , B u s h c l e a r l y i d e n t i f i e s h i m s e l f a s t h e k i l l e r . G i v e n

t h i s d i s c l o s u r e , t h e r e w a s n o r e a s o n f o r h i m t o l i e a b o u t h i s

m o t i v a t i o n f o r t h e k i l l i n g . I n b o t h v e r s i o n s , B u s h k i l l e d

L e f e v e r b e c a u s e h e w a s a n g r y a n d f r u s t r a t e d . I n m y v i e w , t h i s

e v i d e n c e c l e a r l y i n d i c a t e s t h a t B u s h w a s n o t c o n c e r n e d a b o u t

L e f e v e r ’ s a b i l i t y t o i d e n t i f y h i m a s t h e b u r g l a r / r o b b e r w h e n h e

k i l l e d h e r . T h i s e v i d e n c e r a i s e s , i n t h e v e r y l e a s t , a

r e a s o n a b l e d o u b t a s t o w h e t h e r t h e d e f e n d a n t w a s m o t i v a t e d b y a

d e s i r e t o a v o i d a r r e s t o r p r o s e c u t i o n .

95 W e h a v e p r e v i o u s l y h e l d t h a t t h e S t a t e d o e s n o t h a v e

t o p r o v e t h a t a v o i d a n c e o f a r r e s t o r p r o s e c u t i o n w a s t h e

d e f e n d a n t ’ s s o l e o r p r e d o m i n a n t m o t i v a t i o n t o e s t a b l i s h t h e

a p p l i c a b i l i t y o f t h e ( i ) ( 6 ) a g g r a v a t i n g f a c t o r . S t a t e v .

C a r t e r , 7 1 4 S . W . 2 d 2 4 1 , 2 5 0 ( T e n n . 1 9 8 6 ) . H o w e v e r , w e s h o u l d

r e q u i r e t h a t t h e S t a t e p r o v e t h a t a d e s i r e t o a v o i d a r r e s t o r

p r o s e c u t i o n w a s a t l e a s t a m o t i v a t i o n f o r t h e c r i m e . I n m y

v i e w , t h e S t a t e f a i l e d t o c a r r y t h a t b u r d e n i n t h i s c a s e .

T o r e i t e r a t e , I w o u l d r e s t r i c t t h e a p p l i c a t i o n o f t h e

( i ) ( 6 ) a g g r a v a t i n g c i r c u m s t a n c e t o c a s e s w h e r e t h e e v i d e n c e

c l e a r l y e s t a b l i s h e s t h a t t h e d e f e n d a n t w a s m o t i v a t e d b y a d e s i r e

t o a v o i d a r r e s t o r p r o s e c u t i o n b y e l i m i n a t i n g t h e w i t n e s s . T o

i l l u s t r a t e , t h e ( i ) ( 6 ) a g g r a v a t o r w a s a p p r o p r i a t e l y a p p l i e d i n

S t a t e v . S m i t h , 8 6 8 S . W . 2 d 5 6 1 ( T e n n . 1 9 9 3 ) ( v i c t i m k i l l e d w h i l e

d i a l i n g 9 1 1 ) ; S t a t e v . M c C o r m i c k , 7 7 8 S . W . 2 d 4 8 ( T e n n .

1 9 8 9 ) ( u n d e r c o v e r a g e n t t e s t i f i e d t h a t d e f e n d a n t c o n f e s s e d t h a t

h e k i l l e d v i c t i m t o p r e v e n t h e r f r o m " s p i l l i n g h e r g u t s " a b o u t

p r o p e r t y d e f e n d a n t h a d s t o l e n ) ; S t a t e v . A d k i n s , 7 2 5 S . W . 2 d 6 6 0

( T e n n . 1 9 8 7 ) ( e v i d e n c e t h a t d e f e n d a n t e l i m i n a t e d t h e v i c t i m w h o

w a s t o t e s t i f y a g a i n s t d e f e n d a n t f o r t h e s h o o t i n g o f d e f e n d a n t ’ s

g i r l f r i e n d ) ; a n d S t a t e v . J o h n s o n , 6 3 2 S . W . 2 d 5 4 2 ( T e n n .

1 9 8 2 ) ( d e f e n d a n t t o l d f r i e n d t h a t h e w a s g o i n g t o r o b a m a r k e t

a n d t h a t h e i n t e n d e d t o l e a v e n o w i t n e s s e s ) .

96 I n c o n c l u s i o n , I f i n d t h a t u n d e r t h e f a c t s o f t h i s

c a s e , t h e e v i d e n c e i s n o t s u f f i c i e n t t o e s t a b l i s h t h e ( i ) ( 6 )

a g g r a v a t i n g f a c t o r . I f i n d a l s o t h a t t h e e r r o n e o u s u s e o f t h i s

a g g r a v a t i n g f a c t o r m o r e p r o b a b l y t h a n n o t a f f e c t e d t h e j u r y ’ s

d e c i s i o n t o i m p o s e t h e d e a t h s e n t e n c e . A c c o r d i n g l y , I w o u l d

v a c a t e t h e s e n t e n c e o f d e a t h a n d r e m a n d t h e c a u s e f o r a n e w

s e n t e n c i n g h e a r i n g .

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ A D O L P H O A . B I R C H , J R . , C h i e f J u s t i c e