# FILED
November 24, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON SEPTEMBER 1995 SESSION STATE OF TENNESSEE, ) ) C.C.A. NO. 02C01-9405-CR -00089 Appellee, ) ) Shelby County v. ) ) Honorable Jose ph B. McCartie, Ju dge FREDRICK SLEDGE, ) ) (Capital First Deg ree Murder and Appellant. ) Especially Ag gravated R obbery)

For the Appellant : For the Appellee : William P. Redick Charles W. Burson Capital Case Resource Center Attorney General and Repor ter 704 - 18th Avenue South 450 James Roberston Parkwa y Nashville, TN 37203 Nashville, TN 37243-0497 (ON APPEAL) and Sharon S. Selby Paul Bottei Assistant Attorney Gener al Capital Case Resource Center 450 James Roberston Parkwa y 704 - 18th Avenue South Nashville, TN 37243-0497 Nashville, TN 37203 (ON APPEAL) John W. Pierotti District Attorney General Edwin C. Lenow and Suite 2325 John Campbell and 100 North Main Building Jerry Harris Memphis, TN 38103 Assistant District A ttorneys General (AT TRIAL) 201 Poplar Avenue Memphis, TN 38103

OPINION FILED:________________________ FIRST DEGREE MURDER CONVICTION AFFIRMED, SENTENCE REVERSED, REMANDED FOR NEW SENTENCING TRIAL. ESPECIALLY AGGRAVATED ROBBERY CONVICTION AND SENTENCE AFFIRMED.
Joseph M. Tipton Judge2 O P I N I O N
The defendant, Fredrick Sledge, w as convicted by a jur

y in the Shelby County Criminal Cour

t of first degree murder and espec ially aggrav

ated robbery, a Class A felony. In the capi tal sentencing hearing,the jury found the exist ence of one aggravating ci rcumstance: that the defendant had been prev iously convicted of one or more felonies, whose statutor y elements included the use o f violence to the person. See T.C.A. § 39-13-204(i)(2). The jury found that the aggravating circumstance outweighed the evidenc e of mitigating circumst ances beyond a reasonable doubt a nd sentenced the defendant to dea th by electrocution. He received a twenty-year,
consecu tive sente nce for t he espec ially aggrava ted robb ery.

In this appeal as of right, the defendant alleges def iciencies and errors that occurred from indictment i nsufficiency and trial err ors to the constitutionality of the death penalty, the particul ars being specified throug h this opinion. Having considered the various claims, w

e conclude that the conviction for felony murder is affirmed but that sentencing phase trial errors require us to reverse the sentence and to remand the case to the trial court for res entencing for first degree murder. We affirm the conviction and sentence for especially ag gravated robbery.

BACKGROUND The evidence presented at trial established that the victim, Johnny Harris, was killed in Memphi s, Tennessee, on the evening of December 10, 1991. Dr. O'Bri an C. Smith, Assistant Medic al Examiner for Shelby C ounty, performed the autopsy on the body the following morning. The autopsy revealed two gunshot wound tracks completely through the body. One bullet entered the left back, went through the heart, and came out of the chest. The other w as in the back of the left knee, and it came out just below the kneecap.3 Dr. Smith testified that the w ounds were distant wo unds, that is, the gun was shot from more than two feet away from the victi m. Dr. Smith could not determi ne exactly how far aw

ay the victim was

from the gun, but there was no powder residue on the victim's hands, w

hich he said would tend to indicate the victim did not grab the gun when it was dischar

ged.

The bullet that entered the back and w ent through the heart caused the death. Dr. Smith testified that the wound to the knee was consistent with a pers on whose leg was in a running motion when it was hit. He also testified that the bullet track in the back was consis

tent with a person bending forward, as in a running position. However, Dr. Smith acknowledged that the bul let tracks could also i ndicate that the shooter was positioned on a lower plane than the v ictim when the gun w

as fired.
Officer Sandra D. Palmer of the Memphis Police Depa rtment was the first officer at the scene, an apartment complex on 2240 Union Avenue. She rec eived a dispatch and arrived at 10:57 p.m. Officer Palmer testified sh e saw a white male ly ing on his back, face up, pockets tur ned inside out, and bleeding from the chest area. The victim lived in apartment 19, but the body was lying in front of apartment 21. The victim's car wa

s parked in front of apartment 19, and on the ground next to the car on the driver's side w

ere some of the victim's per sonal belongings. There i s an alley that runs parallel to t he front of t he apartment building, between the alley and the building are the parking spaces. Each apartment has two adjacent doors leading inside.

Officer Palmer saw no blood or shell casings in the area between the body and the items on the gr ound next to the car. The only blood she saw was on the ground nex

t to the vic

tim.4 Officer Dana Stine of the Memphis Poli ce Department was the patro lman responsible for the collecti on and preservation of the ev idence at the scene. He took photos, dusted for prints, drew sketches, and collected and t agged the victim's personal belongings that wer

e retrieved from the parki ng lot next to the driv er's side of the victim's car and from the fr ont seat of the car. Officer Stine r ecovered fingerprints from the victim's wallet and box cutter, but he was unable to get any prints from the victim's car. Officer Stine testified that because the victim's pant s pockets were turned i nside out, "it kind of appeared like he had to clean out his pockets or something like that." The victim did, however, have a gold necklace visibly hanging around his neck.

Officer Stine found four distinct bull et holes in the two doors leading into apartment 21, but he could only find three of th e bullets. One spent bullet was still in one of the holes, while the tw o other bullets were i nside the apartment, one in a mattress and one in a wall . He testified that both bullet s found inside the apartment were traveling in an upward direction before they came to rest. He could not, however, determine the direction of travel of the bullet fo und in the outside door.

Officer Stine also took measurements of the scene. The victim's body was thirty-three feet away from the items found next to the car. There is a sixteen-inch rise from the ground level of the parking lot to the porch in front of ap artment 21 where the body was lyi ng. The alley is about thirty feet from the front of the buildi ng, and the alley has about a two-

foot incline to the parking lot.

The State called three witn esses who were li ving in the apartment complex on the night of the murder. The first, James Falls, lived in apartm ent 21. Mr. Falls testified that he heard gunfire around 10:45 p.m. At first , he thought it was a ca r backfiring, but then he saw the bullets come through his apartment do ors. Mr. Falls testified that he went to the floor and yelled to his wife to get onto the floor. He cr awled5

to the kitchen and called 911. He testified that he did no t look outside until the police arrived, but when he d id look, he saw the v ictim lying on his

front porch.
Clifford Anderson, another apartment resident, testified that he w as on the Union Avenue side of the complex heading towards a conv enience store at about 10:45 p.m. when he heard gunshots c oming from the rear of the building . Mr. Anderson testified that he saw a man stand ing on a second floor balcony of the apartment building and thought that he might have been involved, but he did not see anything in his hands. Mr. Anderson the n saw what appeared to be a male with a long blac k or brown trench coat and a shor t Afro or hat running in the alley behind the building towards Edgewood. H e did not see the man carryi ng anything in his hands.

After he saw this man running, Mr. Anderson testified that he saw an early 1970's model blue Buick contain ing two or three peopl e drive down Edgew ood and make a left heading east onto Union Avenue. He said that he saw the car moments after he saw the person runni ng down the alley, a nd that the timing of the events led him to believe that the pers on he saw running had poss ibly gotten into the c ar. The car appeared to drive off at a normal r ate of speed. After the car drove away, he called the police.

Darrell Hubbard liv ed on the second floor in apartment 44.He testified that on the night of the murder he hear d five gunshots: first ther e was one, then a pause, t hen the o ther fou r were rapid . Mr. Hubba rd looked out of hi s window and saw a person with white shoes, black pants, and a long black coat, with his hands in his pockets, running down the alley towards Edg ewood. Mr. Hubbard tes tified he saw the person's face when the person appeared to be startled by s omething in the alley and turned around and looked back in Mr. Hubbard's general direction. Mr. Hubbar

d was about twenty to thirty

feet away from the person. When he talked to the police that6

night, he told them that it appea red the person had a stocking on his head and that he would be able to identify the person if he were we aring the same clothes as he had on that night. At the trial , however, he testified that it appeared that night l ike the person had on a stocking because he was looking at the person through the screen in his window. While on the witness stand, Mr. Hubbard identified the defendant as the person in the alley.

On December 18, 1991, the defendan t gave a statement to the police concerning the murder of Mr. Harris. Sergeant R ichard David Roleson and Sergeant Ronald F. Wilkinson both advised the defendant of his rights before conductin g the interview. Serg eant Wilkinson said that the defendant understood his rights, signed a waiver form, and agr

eed to answer questions from the officers. He also testifie d that at the time of the interview , the defendant seemed alert and did not appea r to be under the influence of any narcotics or alcohol.

The following is a summation of the statement the defendant gave to Sergeants Wilkinson and Free of the Memphis Police Department:

The defendant admitte d to shooting someone with a revolver in some apartment

complex on December 10, 1991. When asked why

he shot the person, the defendant stated that the man grabbed his gun and he was scared. He admi tted he was in the process of robbi ng the victim when he shot him. The defendant was at a friend's apartment w it h two other individuals, Antonio C rawford and Alex Bumpus, w hen the three of them decided to borrow a friend's Buick and go out and rob somebody

in the mid -town area. They spotted an old man, about 5'6" tall, coming out of the Mega Market and trail ed him to his apartment. When they arrived at the man's apartment building, the defendant got the gun from Crawford in the front seat, got out of the car, and followed the man into an alley. The defendant was wearing Craw

ford's long black coat. H e was holding the gun down to hi s side a nd approached the man and told the man to give him all his mone y. The man gave the defendant his billfold. The billfold containe d only six or

seven dollars and some sort of badge. The defendant asked the man if hewas a cop or something, but th e man ju st stood there without7 speaking. The defendant then went throug h the man's pockets, saying "this ain't a ll the money you got, I know it ain't." While he was going t hrough the pockets with his right han d , he held the gun in his left hand.The defendant kept asking the man i f he had more mon ey, but the man still did not say anything. After he searc hed the pockets, the defend a nt patted the man's clothing. The man then grabbed the gun and the gun went off. The defendant did not know if the man was hit. The defendant walked away and saw that theman was following him, so the defendant shot a w ay from him to scare him off. He thinks he fired the gun three or four times. The defendant then took off running. The defen dant stated, "I th oughtI was shooting away from him, and I must have hit him, I didn't see no thing, to make sure he don't foll ow me." When he got back in the car, he ga ve the gun back to Crawford. The other

two individuals a

sked whether he

shot the guy. The defendant replied he did not know , but hoped he did not. The defendant stated tha t he did not tell anyone else about the shooting, but stated that Cr awford and Bumpustold their cousin Lisa they had robbe d some old man, the defendant fired the gun, but they did no t know whether the man was hit. The defendant als o stated t hat he had robbed about four o r five ot her people in Memphis. Fina lly, the defendant stated he was not try ing to shoot the o ld man and he is sorry the man died.

The 1977 blue Buick the defendant and the other two were using on the night of the murder belonged to Davey Weeks. Kimberly Farmer borrowed the car from Mr. Weeks and then allowed Crawfor d, Bumpus, and the defendant to use it that evening. Ms. Farmer

testified that the defendant was w earing black jeans and a l ong black coat, and that he had a gun in his coat pocket when they went out. She further testified that she saw the thr ee men return no later than 11:00 p. m. that evening. When the three men returned, she overheard the defen dant say, "he don't need his business discussed with no bitc

h and everybody needed to shut up before he killed ever ybody that's conversating about him." Ms. Farmer also testified that the defendant said he would kill whoev

er snitched to the police about him. Ms. Farmer testified that when she talked to the defendant several d ays afterwards about the p olice looking for him, the defendant's reaction was normal ; he did not care.8 Nick A. Dodys, the victim's nephew, testified on behalf of the state. His testimony consisted only of personal information about the v ictim. The victim w

as 64 years old, about 5'6" tall , and in excellent health.He was retired from the restaurant business, and at the time of his death worked part-time as a butcher at a Mega Market

. At one time he also worked in vehicle storage for the Memphis Police Department. The victim lived with and took care of his mother, and after her death he lived alone. Mr. Dodys testified that he and hi s mother, the victim's s ister, would talk to the victim about twice a day, inclu ding the afternoon of the day of his de ath. Mr. Dodys testi

fied that he attended his uncle's funeral.

The defense called no witnesses in the guilt phase of the tri al. The defendant was convicted on the above evidence.
During the sentencing phase, Carolyn Rudolph, C lerk for the Shelby County Criminal Court, was called by the state to testify concerning the defendant's previous convictions. The defendant robbed a couple on December 13, 1991, only days after the robbery i n the present case, and was convicted for those crimes on February 23, 1993. The v ictims of the

other crime

s were Yv

ette and Gary

Yochum.

Mr. Yochum testified on behalf of the state. Mr. Yochum and his wife had pulled into their driv

eway when the defendant confronted them with a gun demanding all their m oney. Mr. Yo chum tes tified t hat the d efenda nt said, " give me all yo ur money, or I'll kill you ." After Mr. Yochum and his wife gave him all the y had, the defendant approached them and went throug h their pockets. The defendant told the m to lie down, but because of the car's positio n against the fence they coul d not. Mr. Yochum testified that a shot was fired and then the defendant fled. No one was hurt.9 The defense attempted to introduce the testi mony of Carl Nelson as mitigating evidence. After a lengthy leave into Mr. Nelson's credentials, though, Mr. Nelson never testified. The court stated that the def ense never established Mr. Nelson's expertise i n the field to which he w as to testify: psychol ogy. At the time of the trial, Mr. Nelson was employed by the state as a Psychological Chaplain II. He has a bachelor's degree in social psychology and a master's in pastoral counseling. Mr. Nelson testified that he had performed thousands of psychological evaluations on inmates in Tennessee over the pr evious eight year

s through a test he devel oped himself. Mr. Nelson testi fied that he had met with the defendant for ab out an hour on three different occasions, and in or der to assess the defendant's upbri nging, even moved into the defendant's housing developmen t for eight months.

The defense wanted to elicit testimony from Mr. Nelson conc erning the defendant's remorsefulness. The court, however, stated that he was not qualified as a psychologist. The cour t ruled that Mr. Nelson would only be allow ed to testify about interviews he had w

ith the defendant, but that he could not t estify as to any opinions he formed. At one point during the q uestioning, the topic of raci sm surfaced. The transcript indicates tha t the witness was at

tempting to interpose theori es concerning the socialization of African- American males. The trial cou rt asked the witness s everal times what he meant by such state ments. The witness appeared to be skirting around the trial court’s questi ons, and the trial court final ly said that Mr. Nel son could not testify and asked the witness to step down.

The next morning, however, the trial court told the defense that Mr. Nelson would be allowed to testify, but that his testimony would be limited to his interviews with the defendant and not as to any opi nions he formed. The defense, however, was unabl e to reach Mr. Nelson, and Mr. Nelson never tes tified.10 The defendant testified on his own behalf during the sentencing phase

. He testified that he never i ntended to strike Mr. Har ris and that he is sad about w hat happened. On cross-examination, the defend ant stated that he was not shooting at Mr. and Mrs. Yochum, but that the gun fired accidentally.He said he was not aw are that Mr. Harris was

shot until the police told him. The defendant denied telling any one that he would ki ll them if the y talked ab

out him.

SUFFICIENCY OF THE INDICTMENT In his first issue, the defendant c hallenges the sufficiency of the indictment. Specifically, the defendant claims tha t the felony murder count is fatally defective and void because i t fails to allege the mental s tate required for a kill ing to result in the offense of felony murder. The state contends that this iss ue has been waived. Alternati

vely, the state asser

ts that the indictment correc tly charges the offense.
As a general proposition,defenses and objections based on defects in the indictment must be raised before tr ial. Tenn. R. Crim. P. 12( b)(2); State v. Randolph , 692 S.W.2d 37, 40 (Tenn. Crim. App. 1985). If the defendant fails to raise the issue before trial, the issue is deemed to be waived. Tenn. R.Crim. P. 12(f); see Rhoden v. State , 816 S.W.2d 56, 61 (Tenn. Crim. App. 1991).

However, Rule 12( b)(2) expressly states that jurisdicti onal defects or the failure to charge an offense "shall be noticed by the court at an y time during the pendency of the proceedings." If the indictmen t does not charge an offense, Tenn. R. Crim. P . 34 perm its an a rrest o f the judg ment if "fi led wi thin thi rty day s of the d ate [of] the order of sentence . . . ." Mo reover, our rules r equire that we determin e "whether the trial and appellate court ha ve jurisdiction ov

er the subject matter," even though the11

issue might not have been pr esented as a ground for relie f. T.R.A.P. 13(b). See State v. Seagraves , 837 S.W.2d 615, 61 7-18 (Tenn. Crim. App. 1992).

In State v. Perkinson , 867 S.W.2d 1 (Tenn. Crim. App. 1992), the defendants were convicted of conspiracy to commit first degree murde r. On appeal, they claimed that the conspi racy indictment was legally insufficient because it did not allege an overt act, on e of the statutory elements of the cr ime. The appellants failed to raise the issue before trial . In holding the indictment to be void, this court no ted that "the waiver rule does

not apply when the indi ctment fails to assert an essent ial element of the offense. In that circumstance, no offense has been charged. In consequence , subsequent proceedings are a nullity.” Id . at 6. A lawful accusati on is an essential jurisdictional element w ithout which there can be no prosecution. State v. Hughes , 212 Tenn. 644, 3 71 S.W. 2d 445, 447 (T enn. 1963). More over, "[c]onvictio n upon a charge not made would be a sheer denial of due process." De Jonge v. Oregon , 299 U.S. 353, 362, 57 S. Ct. 255, 259 (1937).

Accordingly, w

e are not prevented from rev iewing this issu e on appeal when the defendant failed to raise the issue in a pretrial moti on. See Seagraves , 837 S.W.2d at 618 (issue per taining to indict ment properly be fore this court even though issue not raised in motion befor e trial). Nor are w

e prevented from review ing the issue when the defendant did not raise the issue in his motion for new trial. T.R.A.P. 3(e) provides that:
no issue presented for review shall be predicated upon error in the admissi on or ex

clusio n of e vidence, jury ins tructions granted or refused, misconduct of jur ors, parties, or counsel, or other action committe d or o ccurring during the trial of the case, or other ground upon which a new trial is sought , unless the same was specifically stated in a motion for a new tr ial. (Emphasis added). Because the i ssue relating to the sufficie ncy of the indictment would involve v

acating the convicti on rather than a new tria l on the charge, we may properly review

it. State v. Sowder , 826 S.W.2d 924, 92 6 (Tenn. Crim. App. 1991);1 We note that the for m indictment for f elony murder dev

eloped by the Tennessee Sentencing Comm ission for recomm ended use unde r the 1989 criminal code chan ges includes the allegation of a reckless killing. See Pattern I ndictments, Tennessee Sent encing Commission, page 12, (Jan. 1991). The introduct ion to t hat publi cation not es that t he “basic wordi ng and the majorit y of the work” in preparing the form s was d one by the Shelby C ounty Distric t Attorney G eneral’s o ffice. 12 State v. Davis , 748 S.W.2d 206, 207 (Tenn. Crim. App. 1987); see also State v. Keel , 882 S.W.2d 410, 416 (Tenn. Crim. App. 1994). Also, as noted in Seagraves , 837 S.W.2d at 618, this type of issue is plain error on the face of the record. See Tenn. R. Crim. P. 52(b).

Count one of the murder indictment i n this case reads, in pertinent part, as follows: THE GRAND JURORS of the State of Tennessee, . . . present that FREDRICK

SLEDGE . . . on Decemb er 10 , 1991, in Shelby County, Tennessee, and before the find ing of this indictment, did unlawful ly k ill JOHNNY HARRIS dur ing the perpetration of AggravatedRobbery, in violation of T.C.A. 39- 13-202, against the peace and digni ty of the State of Tennessee. (Emphasis added). The defendant was convicted of felony murder.

At the time of the offense in this case, th is means of committing first degree murder was defined as "[a] reckless killing of another committed in the perpetration of, or attempt to perpet rate any . . . robbery . . . . " T.C.A. § 39-13- 202(a)(2) (1991) (emphasis added). 1 The defendant argues that because the mens rea then required for the offense, i.e., "reckless," was not i ncluded in the indictment, the tr ial court lacked power to enter judgment against the defendant . In response, the state asserts that the indictment c omplies with applicabl e statutory and case law requirements.

T.C.A. § 40-13-202 provides that: The indictment must state the facts constituting the

offense in ordinaryand concise language, w ith out prolixity or r

epetition, in such a manner as to enab le a pe rson of common understanding to know what is i ntended, and with that degr ee13 of certaint y wh ich wi ll enable the court, on conv iction, to pronounce the proper judgment .

. . . Also, in Perkinson , this court state d the following: The provisions of bo

th the Federal and Tennessee Constitutions

guarantee the cr iminally accused knowledge of the "nature and cause of theaccusation." U.S. Const. amend. VI; Tenn. Const. art. I, § 9. In order to comply with these constitutional guidelines, an indictment must provide notice of the offense charged, adequate grounds upon which a proper judgme nt may be entered, and suitable protection against double jeopardy. State v. Pearce , 7 Tenn. 65, 67 (1823); State v. Byrd , 820 S.W.2d 739 (Tenn. 1991). When the indictment fails to fu llystate the crime, all subsequent proceedings are void. State v. Morgan , 598 S.W.2d 796, 797 (Tenn. Crim. App. 1979). 867 S.W.2d at 5. In State v. Smith , 612 S.W.2d 493, 49 7 (Tenn. Crim. App. 1980), this court stated that "the test for the sufficiency of an indictment is w hether it contains the elements of the offense intended to be charged [and] sufficiently apprises the defendant of what he must be prepared to meet. " See also Warden v. State , 381 S.W.2d 244, 245 (Tenn. 1964); Inman v. State , 259 S.W.2d 531, 532 (Tenn. 1953). “When the indictment f ails to fully state the crime, all subsequent proceedings are void.” Perkinson , 867 S.W.2d at 5.

In State v. Roger Dale Hill, Sr. , No. 01-S-01-9701-CC-00005, Wayne County (Tenn. No v. 3, 1997) (for pu blication), our s upreme court st ated the foll owing:

We hold that for

offenses which neither expressly require nor plainlydispense with the requirement for a culpable mental state, an indictment which fails to allege such mental state will be suffi c ient to support prosecution an d conviction for that offense so long as (1) the lan gua ge of the indictment is sufficient to meet the constitutional requirements of notice to the accused of the charge against which the accuse d must defend, ad equate basis for entry of a proper judgment, and protection from double jeopardy; (2) the form of the ind ict ment meets the requirements

of Tenn. Code Ann. § 40-13-202; and (3) the mental state can b e logically inferr ed from the conduct alleged.14

Slip op. at 3. The court also noted that “[i]n modern practi ce, it is unnecessary to charge guilty knowledge unless it is included in the statutory definition of the offense .” Slip op. at 9. We read Hill to mean that the fact that the reckle ss mens rea was specifically stated in the felony murder statute at that time requires that it be particularly included in an indictment char ging felony murder.
The state asserts, though, that the use of the word “unlawfully” sufficiently supplies the mens rea that w ould necessarily eq uate with “reckless ly.” It argues that “unlawfully” reflec

ts that not every ki lling in a course of a felony will result in criminal liability, but only th ose presc ribed by la w, i.e., whe re the kill ing is done intentio nally, knowingly, or r

ecklessly. How

ever, the statute to wh ich the state refers regar ding culpable mental states, T.C.A. § 39-11-301 (1991 ), does not even contain the word “unlawfully,” but c

ontains another culpable mental s tate that the state ignores i n its reliance on the meaning of “unlawful”: criminal negligence, which is a lesser culpable mental state than reckless. Thus, the state’s argument actual ly suggests that the defendant could have been “crimi nally negligent” and still be convicte

d of felony murder. This, of course, is erroneous.

In State v. Hughes , our supreme court held that because driving to the “left across a yellow

stripe” is not alw

ays a violation of the l aw, such an allegation in an indictment fails to state an offense . 212 Tenn. at 649, 371 S.W .2d at 447. Similarly, in the present case, while count one of the murder indictment all eges that the defendant did “unlawfully ki ll” the victim duri ng the perpetration of an agg ravated robbery, the allegation does not excl ude a killing committed thr ough criminal neglig ence. Thus, with “reckless” being but only one of the several legally recognized culpable mental states, there can be no logical or necessary implication from the inclusion of the qualif ying term “unlawfully” that the killing was done with the requisite “recklessness.”2 The pre -1989 fe lony mu rder statu te did not re quire a se parate m ens rea for the killing. See T.C.A. § 39-2-20 2 (1982). Consequent ly, an indict ment such as the one in the present case woul d be valid unde r that statute

. See , e.g ., State v. Giannini , No. 36, Shel by County (Tenn. Crim. App. June 12, 1991), app. denied (Tenn. Nov. 12, 1991). In fact, eff ective f or crimes committed on or aft er July 1, 1995, our statu tes no lon ger requ ire a me ns rea fo r the killing involve d in a felony m urder. See T.C.A. § 39-13- 202(a)( 2). 15

The state also asserts that count one was meant to charge the defendant with felony murder as noted by the citation in count one to T.C.A. § 39-13-20 2, the first degree murder statute. How ever, in State v. Marshall , 870 S.W.2d 532, 537 (Tenn. Crim. App. 1993), this cour t stated that “a reference to a c riminal statute should not suffice in terms of replacing the necessary factual elements” required to be allege

d by T.C.A. § 40-11-202.

Count one of the murder indictment i n the present case fails to inc lude an allegation of recklessnes s for the killing all eged. Accordingly , felony murder was not sufficiently charged in c ount one. 2 However, this c onclusion does not end our inq uiry. The murder indictment also contai ns in count two alleg ations that the defendant unlawfully, intentiona lly, preme ditatedly , and deliber

ately kil led the vic

tim.
We note that our criminal code prohibits the offense of first degree murder, although it lists several means by which the offense may be committed. Thus, whether a finding of guilt is made for a felony murder or a premeditated and deliberate one, the offense committed is the same, first degree murder.
Historically in

Tennessee, an indictment allegi ng that the defendant unlawfully, wil lfully (intentionally ), maliciously, pre meditatedly and deliberatel y killed the victim has been deemed sufficient to sustain a conviction for first degree murder upon proof of felony murder. See Sullivan v. State , 173 Tenn. 475, 483, 121 S.W.2d 535, 537 (1938); State v. Johnson , 661 S.W.2d 854, 860-61 (Tenn. 1983); Tosh v. State , 527 S.W.2d 146, 148 (Tenn. Crim. App. 1975). Compare Schad v. Arizona , 501 U.S. 624, 642 -46, 651 , 111 S. Ct . 2491, 2 502-03, 2507 (19 91) (histo rical use o f felon y16

murder and premeditated murder as alternative, equivalent mean s of committing single crime of first degree murder renders inconsequential for constitu tional purposes the fact that jury returned a g eneral verdict, with no indication that it ag reed upon which form of murder occurred). This means that, as a matter of law, count two of the murder indictment alleging a d eliberate and premeditated kil ling suffices for felony murder, as well. Thus, regardl ess of the validity of count one, the defendant was lawfull y charged with first degree murd er in count two, even if the means proven was by felony murder.

We ac knowledge that the state, in practice , has usua lly brought two counts of first degree murder w hen the commission of or attempt to commit a felony specified in the first degree murder statute has been inv olved. Such is obvi ously what occurred in the present cas e. Although this result

s in an indictment that could be deemed multiplicitous -- charging the same offense in sep arate counts -- it provides specific notice of the particul ar acts and means of murder upon w hich the state relies and allows for, in effect, speci fic findings from the jury. This is of particular v alue in a capital case in light of State v. Middlebrooks , 840 S.W.2d 317 (Te nn. 1992). Thus, although count one of the murder indi ctment in the present case may have been deficient in its allegations, we cannot ignore the fact that count two constituted a valid charge of first degree murder

.

Moreover, we do not believe that the verdict returned by the jury is subject to question as a legitimate finding of guilt under the facts and th e law. The trial court’s instructions to the jury for felony murder was, in pertinent part, as follows:17 HOMICIDE: FIRST DEGRE E MURDER (KILLING IN PERPETRATION OF OTHER CRIMES) A person who commits first degree murder is guilty of a felony. For you to find the defendant guil ty of this offense, the state must have provenbe yond a reasonable doubt the existence of the following essential elements: (1) that the defendant unlawfully k illed the alleged victims; and ( 2) that the killing w as committed in t h e perpetration of or the attempt to p e rpetrate the alleged Aggravated R obbery ; that is, that the killing was c lose ly connected to the alleg ed Ag grava ted Robbery and was not a separate, distinct and independent event ; and (3) That [sic] the defendant inte nded to commit the alleged Aggravated Robbery ; and (4) that the kil ling w

as the r esult of a reckless act by the defendant. This was followed by definitions of intentionally, knowingly, and recklessly. These instructions constituted a correct statement of the specific requirements for a finding of felony murder. Thus, the jury ’s consideration of the evi dence was pursuant to the proper law regardi ng first degree murder by means of a reckless killi ng during the perpetration of or the attempt to per petrate robbery. With the evidence pr esented and the instructions giv

en, we believe that the jury verdict r epresents a proper finding.
The problem in this case is that the trial court’s i nstructions pretermitted any return of a verdict

directed to count two, onc e the jury found the defendant guilty of felony murder. Preliminarily, we note that the sequential, alternative verdict requirement used by the t rial court was unneces sary as a matter of law because, upon proper instructions, findi ngs as to both counts woul d not violate any ri ght of the defendant, but would provide specific findings by the trier of fa ct which would aid in determi ning ho

w the se ntencin g phase should p roceed i n light of Middlebrooks

. See James David Carter v. State , 03-S01-9612-CR-00119, Gr eene County, slip op. at 113 A judgment of convi ction i s the legal instrument t hat incl udes the sentence andthrough whi ch the exe cutive bra nch m ay enforc e punish men t. See Tenn . R. Crim . P. 32(c); State v. Vasser , 870 S.W.2d 543, 546 (Tenn. Cri m. App. 1993). Appare ntly , the “conv icti ons” in Hurley and Cribbs refer to the guilty verdicts. 18 n.6 (Tenn. Oc

t. 20, 1997) (

for publicat ion). Obviously, t wo guilt y verdic ts for the same first degree murder wou ld only result in one j udgment of conviction for first degree murder, but there would be n o need to ignore or, in effect, l ose either finding represented by a guilt

y verdict by di smissing one of the two cou nts.
We are aware that the supreme court has “v acated” a “conviction”

for felony murder in such a cir cumstance. See State v. Hurley , 876 S.W.2d 57, 70 (Tenn. 1993). We are also aware that this cour t has previously s

tated that guilty v

erdicts for felony murder and premeditated and de liberate murder, charged in separate counts but for the same crime, should lead to one of the “convictions” bei ng vacated or stricken. 3 See State v. Perry A. C ribbs , No. 02C01-9508-CR-00211, Shelby County, slip op. at 36-37 (Tenn. Crim. App. Feb. 14, 1997). In Cribbs , this court concluded that the concept of merger relates onl y to lesser included offenses and that felony murder and premeditated and deliberate murder are not a lesser of each other.

From our perspective, though, we do not believe that the supreme court in Hurley intende d for a di smissal t o be the o nly legitim ate opti on availab le. Likewis e, we believe that Cribbsoverlooke d the fa ct that whe n only one killing is in volved, th e two counts are for the same offense -- first degree murder.The fact that each count alleges a different means of committing the same offense does n ot render them separate. Moreover, there is no need to “dismiss,” “vacate,” or “strike” a properly returned jury verdict, which s hould continue to stand as a leg itimate finding of fact. Rather, the trial court should seek to preser ve proper jury findi ngs by merging the same offense counts into one judgment of convicti on for that offense.19 Under such circumstances,a merger of the counts amounts to nothing more than a procedural assuranc e that the record reflects onl y one judgment of convictio n while also preservin g the fac tual fin dings for both cou nts. In th is fashio n, we can avoid the potential for problems caused by dismissing “charges” or “convictions.” See , e.g ., State v. Davis , 613 S.W.2d 218, 22 1 (Tenn. 1981).

In any event, the point to be made in the present case is that the fact that the trial court pretermitted a jury verdict regarding count two does not mean that, as a matter of law, we are to ignore the jury’s finding of guilt. We note that Tennessee has a long-standing statute that provides that a gener al verdict of guilt may

be applied to a valid count of an indictment, if the proof so allows, even though oth er counts are fatally defective. T.C.A. § 40-18-111. Although the trial cour t’s instructions in the

present case indicate that the jury’s verdict was not to be a general one, the fact that, as a matter of law, the jury

’s finding of guilt fully

supports conviction unde r count two, because it charges the same offens e as inten ded to be charged in the fata lly defec tive count one, should allow the verdict to apply to count two, as well.We believe that the jury verdict remains valid and that a judgment of conviction may be entered for first degree murder in this cas e under count two of the murder i ndictment.

PUN ISH MEN T FO R GO ING TO T RIAL The defendant asserts that his consti tutional rights wer

e violated when the state offered a life sentence in retur n for a guilty plea, but sought the death penalty when the defendant chose to go to t rial. The defendant relies on United St ates v. Jackson , 390 U.S. 570, 583, 88 S. Ct. 1209, 1217 (1968), which impli es that the death penalty cannot be imposed in s uch "a manner that needlessly penalizes the assertion of a constitutional right. " See also North Carolina v. Pearce , 395 U.S. 711, 89 S. Ct. 2072, 23 (1969).20 In Jackson , the United States Supreme Cour t determined that a federal kidnapping statute, whi ch provided for the impositi on of the death penalty only upon a jury's verdict , unconstitutionally i nfringed upon the right to a jury trial. Essentially, as the Court noted, a person could be s ure of avoiding a penalty of death under the statute only by entering a guilty plea, and thus av oiding a jury tri al. 390 U.S. at 581, 88 S. Ct. at 1216. The defendant argues that the offer of a li fe sentence in return for a guil ty plea in this case presents the s ame unconstitutional choice confronted by defendants under the statute at issue in Jackson

.

The Court's holding in Jackson was based upon a statutory interpretation. Cf. Corbitt v. New J ersey , 439 U.S. 212, 99 S. Ct. 493 (1978). Its interpretation, however, does not apply to this case. Under the s tatute in Jackson , if the defendant pled guilty, he w

as completely shielded from ex ecution. In Tennessee, howev er, the guilt phase and sentencing phase are separate trials.Accordingly, the s tate may seek the death penalty after a jury verdict or after a gui lty plea. The Jackson Court suggested that there is nothing wrong w ith offering a life sentence in r eturn for a guilty plea in those states wher e "the choice between life impr isonment and capital punishment is left to a jury in every case -- regardless

of how the defendant's guilt has been determined." Jackson , 390 U.S. at 582, 88 S. Ct. at 1217 (emphasis in original).

[A] prosecutor can decline to c harge, offer a plea bar

gain, or decline to seek a death sentence in a ny pa rticular case . . . . Of course, "the power to b e lenient [also] is the pow er to discriminate," . . . but a capital punishment s ystem that did not allow for discretionary acts

of leniency "would be tota lly alien to our notions of criminal ju stice." McCleskey

v. Kemp , 481 U.S. 279, 312, 107 S. Ct. 1756,1778 (1987) (citations omitted).

Tennessee courts have indica ted a similar stance on this issue. See Bratton v. State , 477 S.W.2d 754, 757 (Tenn. Crim. App. 1971) ("a g uilty plea is not4 The state argues that becau se only four of the issues presented in the defendant's brief were raised in h is motio n for new trial, we are lim ited to con sideration of those four issu es in our re view. Because of the qual itati ve differ ence between death pen alty cases and other sent ences, however, our supreme court has normally considered t he merits of an i ssue even if t he issue was not r aised in t he motion for new tria l. See State v. Bigbee , 885 S.W .2d 797, 8 05 (Te nn. 1994 ); State v. Duncan , 698 S.W .2d 63, 67 -68 (Te nn. 1985 ); State v. Stro uth , 620 S.W .2d 467, 4 71 (Te nn. 1981 ). W e have c hosen to consider the se issues on the meri ts, but wi th a significant cav

eat. The fact

that var ious issues wer e not litigated in the trial co urt subs tantially limits the d evelopm ent of thos e issues in the reco rd on ap peal. W ith the burden bei ng upon the defendant , as the appel lant, to show reversi ble tri al court e rror, an i nsuffici ent record in t he trial

court wil l be of no ai d to his case. 21 rendered involuntary

by the fact that the accused is faced with an election betw een a possible death sentence on a plea of not guilty and a lesser sentence upon a guilty plea"); Parham v. State 885 S.W.2d 375, 381 (Tenn. Crim. App. 1994). We conclude that the defendant's constitutional rights were not v iolated by the state’s offer of a pl ea bargain wh ose rejec tion lef t the def endant e xposed to the deat h penalt y.

EXCLUSION OF JURORS 4 The defendant maintains that two pros pective jurors, Mat thew Dupree and Melissa Adams, were i mpermissibly excuse d for cause because of their percei ved views on capital pun ishment. The applicable standard for determining whether a juror was properly excused for cause because of his beliefs on the death pe nalty is delineated in Wainwright v. Witt , 469 U.S. 412, 424, 105 S. Ct. 844, 852 (1985), and is as follows: "whether the juror's view s would 'prevent or

substantially impair

the performance of his duties as a jur or in accordance with his instructions and his oath.'" The United States Supreme Court al so held that "this standard does not require that a juror's bias be prov

ed with 'unmistakable cl arity.'" Id . It further noted that "deference must be paid to the trial judg e who sees and hears the jur ors." Id . at 426, 105 S. Ct. at 853.

The stat e, the de fense a nd the tri al court a ll questio ned thes e two prospective jurors.At various stages of the questioning, both indi viduals indicated that they could in no way

vote for the death penalty.22 When Mr. Dupree was asked by the co urt if he could consider the imposition of the death penalty i f the statutory aggrav

ating circumstances w

ere proven beyond a reasonable doubt and ther e were no mitigators,Mr. Dupree stated, "No, I couldn't consider a death penalty." Though at times Mr. Dupree indicate d that he would have to hear all the facts of the c ase before deciding about the death penalty, and that his general feelings concerning the death penalty would have no influence over his verdict of guilt or innocence, when asked by the trial court directly about the imposition of the death penalty, he stated he cou ld not vote for it.

The trial court asked Mr.Dupree two times wh ether he could impose the death penalty. The first time he said that he did not "think so," and the second time he said "no." It can be inferred that his answer, that he coul d not vote for the death penalty, "would 'prev

ent or substantially i mpair [his] performance of his duti es as a juror in accordance with his

instructions and his oath. '" Wainwright , 469 U.S. at 424, 105 S. Ct. at 852; see also State v. Smith , 893 S.W .2d 908, 915-1 6 (Tenn. 1994 ). Although this determination might not be certain, it need not be. It can be said, however, that it is evident that Mr. Dupree 's performance of his duties w ould have been impaired. Moreover, as the Unit

ed States Supreme Court stated, g reat deference should be giv en to the trial court, who is "left with the definite impression that a prospective juror would be unable to faithfully and imparti ally apply the law ." Wainwright , 469 U.S. at 426, 105 S. Ct. at 853.
Ms. Adams also expressed sincere reservatio ns about the death penalty. She stated that she could follow the law but that she w as opposed to the death penalty because of her religious bel iefs. Her opposition to the death penalty was unequi vocal. The defendant contends, however, that excusing Ms. Adams because of her religious beliefs interferes with th e defendant's constitutional ri ghts. Our supreme court h as ruled that because a juror' s "'views on capit al punishment may have had a r eligious23

foundation does not necessarily transform the test mandated by the United States Supreme Court in [

Wainwright v. Witt ] into religious test s for . . . [constitutional purposes].'" State v. Jones , 789 S.W .2d 545, 547 (T enn. 1990) (quo ting State v. Bobo , 727 S.W.2d 945, 949 (Tenn. 1987)). Accordingly, Ms. Adams' unmistakably clear opposition to the death penalty, though based on religion, could ren der her unfit as a juror.
We conclude the trial court appropriatel y excused jurors M atthew Dupree and Melissa Adams for cause becaus e of their perceived vi ews on capital punishment. This issue, therefore, is w ithout merit.

GUILT PHASE Sufficiency of

the Evidence The defendant argues that the evidenc e is insufficient to support the convic tion of mu rder and

robbery. Mainly, he co ntends t hat the s tate offer

ed no pro

of, apart from the uncorroborated statemen t of the defendant, that a robbery in fact occurred.
In Tennessee, great weig ht is given to the re sult reached by the jury in a criminal trial. A j ury verdict approv ed by the trial court ac

credits the state's witnesses and resolves all confli cts in favor of the state. State v. Willia ms , 657 S.W.2d 405, 410 (Tenn. 1983). On appeal, the state i s entitled to the stronges t legitimate view

of the evidence and all reasonabl e inferences which may be drawn therefrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). In review ing the sufficiency of the evidence, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a rea sonable doubt. T.R.A.P. 13(e); Jackson v. Virginia ,24

443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985).

We hold that there is suff icient evidence to support the defendant's convictions. Darr

ell Hubbard, one of the residents of the apartment complex, testified that he heard several gu nshots and saw a person w earing a long black c

oat running down the alley behind the apartment building. He further testified th at he saw the victim lying on his back w

ith his pockets turned ins ide out. Clifford Anderson, another resident, testified that he hear d several gunshots and s aw a man in a long black coat running down the alley. Mr. Anderson also testi fied that shortly after he saw the man running down the alley, he saw two to three individuals drive away in a blue Buick. This was the same type of car the defendant and his cohorts drove that night.
Kimberly Farmer testified that the defendant carried a gun and was wearing a long bl ack coat the evening of the mur der. Officer Palmer testified that she saw the victim's p

ockets turned inside out. Both officers on the scene also testified that the personal belongings of the victim, such as his wallet, were scat tered on the ground. This evidence, taken in conjunction with the defendant's sta tement, is sufficient for a reasonable trier of fact to find the es sential elements of the crimes bey ond a reasonable doubt.

Evidence of Victim’ s Family and Lif estyle The defendant contends that the prosecution' s introduction of evidence at the guilt phase by the v ictim’s nephew concerni ng the victim's employ ment history, age, health, living conditions, funeral, and the size and members of th e victim's family, were
not r el ev an t to a ny

as pe ct of th e d ef en da nt 's

gu il t, an d w

as hi gh ly in fl am mato ry . We note that the defendant did not ob ject to the nephew’s testimony. The defendant also asserts that references to these factors by the prosecutor in closing argumen ts were25

equally prejudici al. The state argues that Payne v. Tennessee , 501 U.S. 808, 111 S. Ct. 2597 (1991) and Brimmer v. State , 876 S.W.2d 75 (Tenn. 1994), are dispositiv e of this issue. The defendant responds th at Payne and Brimmer only hold that the introduction of such evidenc e is not per se inadmissible at the sentenci ng phase, not at the guilt phase.

"A State may legitimately conclude that evidence about the victim and about the impact of the murder on the v ictim's family is rel evant to the jury's decision as to whether or not the death pena lty should be imposed." Payne , 501 U.S. at 827, 111 S. Ct. at 2609. Thus, contrary to the state's claim, Payne is not directly appl icable to the guilt phase.

The defendant provides a list of cas es from other states that indicat es that evidence about the victi m's family and personal life is irrelevant to the de termination of guilt and highly i nflammatory, and therefore inadmissi ble at the guilt phase of the tr ial. We agree that it was irrelev ant at the guilt phase and shoul d not have been admitted at that point. However,we question its har m given the other evi dence in the case.

In State v. Bigbee , 885 S.W.2d 797 (Tenn. 1994), the defendant argued that testimony from two different witnesses concerning the victim's family and employment history had no bearing on the issues at the trial. The victim's

daughter testified about the victim's family, and a store manager testified about the victim's job, wages, and employee sta tus. Our supreme court stat ed that the testimony, though not relevant, "was bri ef and straightforward, and a ny error in its admi ssion was harmless." Id . at 808. The court also mentioned that the defendant's failure to object t o the testimony at trial prev

ented any determination of its r elevancy. Id

.26 Similarly, in State v. Hensley , 656 S.W.2d 410 (Te nn. Crim. App. 1983), this court held that testimony from the victim's wi dow about the victim's personal characteristics and the consequences of his death on her was "irrelevant and obviously designed to raise sympathy for the deceased victi m and his family." Id . at 414. Because the testimony was brief and straightforwar d, the evidence against the defendant was overwhelmi ng, and the jury imposed a lesser penalty, the cour t decided that the testimony more probabl y than not did not affect the jury 's verdict. Id . The court cautioned, however, "against the use of such testimony in the future." Id

.
The testimony at issue in the present case was offered by the victim's nephew an d include s inform ation ab out the vic tim's age , health , employm ent histo ry, relatives, family si ze, telephone conversati ons, and his funeral. As wi th the testimony in Bigbee and Hensley , the nephew's testimony was relatively

brief and straightforwar d. Moreover, the evidence of guilt in the present case was overwhelming, which evidence included the defendant's own confess ion to the police. When viewed in l ight of the other evidence against the defendant, the adm ission of this testimony was harmless
error.
We note, as well, that the def ense did not object to the nephew’s testimony about the victim’s background. Ordinarily, this results in no record development about the potential r elevance of such evidence an d constitutes a waiv er. However, we caution the state that the social and family background of a victim is normally so irrelev

ant to the issue of a defendant’s guil t and the law is so w

ell settled regarding such evidence being inadmissible that its continued use may constitute plain error involving

prejudice to the integr

ity of the judicial proc

ess in Tennessee.5 We note that Tennessee no longer requires t hat scient ific ev idence be shown to have “‘gai ned general acceptance in the particular field in which it belongs.’” Kenneth McDaniel v.CSX Transportation, Inc. , No. 01-S-01- 9605-CV-00095, sl ip op. at 10 (Tenn. Sept. 29, 1997) (f or publi cation) (quoting Frye v. United Stat

es , 293 F. 1013 (D.C. Cir. 1923)). Howeve r, the evidentiary rul es continue to require “a determination as to the scientific validity or reliability of the evidence.” Id . at 16. In determini ng the evidence’s reliab ili ty, the trial court may now also

consider, in addit ion to t he Frye test, ( 1) whether t he scienti fic evi dence has been testedand the methodology with whi ch it has been t ested, (2) whether the evidence has been subj ected to peer review or pu blicat ion, (3)whether a pote ntialrate of er ror is known, and (4) w hether th e expe rt’s resea rch in the fie ld has be en con ducted indepen dent of litigation

. Id . at 16- 17. 27 Use of Opinion Ev

idence (A) The defendant claims that Dr. Smith’s testimony about the distance from which the gun was fired, the manners in which revolvers leav

e powder burns, and the bullet track in the vi ctim's leg, was outs ide the scope of his experti se. Dr. Smith was qualified as an expert i n the field of anatomical, clinic al, and forensic pathology , with an extensive educational and practical background.He testified that as part of his training in forensic pathology, he has examined the various patterns that are caused by powder burns.
It is a well-establi shed rule of law that the allowa nce of expert testimo ny, the qualifications of the expe rt witness, the relevancyand compet ency of expert testimony, the trustworthine s s of the facts and data forming the basis of the expert witness's opinion, and whether the facts an d d ata are t he type reasonably used by experts in the same field in forming opin io ns are within the sound di scretion of the trial court. 5 This C ourt will not interfere with the exercise of this discretion unless clear abuse in ex ercising this disc retion appears on the face of the record. State v. Henry Euge ne Hodges , No. 01C01-9212-CR-00382, Davidson County, sl ip op. at 35 (Tenn. Crim. App. May 18, 1995) (citations omitted) (footno te added).

Dr. Smith's testimony c oncerning the distance of the v ictim from the shooter and the pattern of the powde r burns are well w ithin the field of his expert ise. See State v. Wright , 756 S.W.2d 669, 673 (Tenn. 1988) (Court stated that medical examiner's testimony about distance from which g un was fired was "obv iously within the range of his expertise.") ; State v. Van Tran , 864 S.W.2d 465, 47 0 (Tenn. 1993)28

(uncontroverted testimony of Dr. Smith, the medical ex aminer in the present case, describing distance of victim from shooter).

The state con tends that Dr. Sm ith's testimon y that the bullet t rack through the victim's leg w

as consistent with the theory that the victi m was running was proper. The state suggests that the w itness was not testify

ing that the victim w

as in fact running when he was shot, but r ather that the bullet track through the leg was compatible with a person who had been running. The defendant argues, however, that the witness possessed no expert trai ning in this area w hich would substantiall

y assist the jury

on this matter. The state asserts the defendant has proffered no authority stating that the study of g unshot wo und track s is outsid e the fie ld of fo rensic pa thology.

Dr. Smith's testimony about the wound track in the victim's leg is within the scope of his expertise. Dr. Smith testified that the wound track indicates the angle through which the bullet passed through the body. He stated this particular track could be consistent with the v ictim's leg being i n a position where the upper leg was raised, i.e., as in a running pos ition. He further testified, though, that this "would have to be correlated with the ci rcumstances as were know n at the time of the incident." And on cross-examination, Dr. Smith testified that the wound track caused by the bull et was also consistent with the theory that the victim was on a higher plane than the shooter. Because the testimony is bas ed on information Dr. Smith obtaine d from his area of expertise and such expe rtise could substantiall y assist the jury

in understanding the evidence, the testimony o f Dr. Smith was appropri ate. See State v. Caughron , 855 S.W.2d 526, 537 (Tenn. 1993), Tenn. R. Evid. 702. M oreover, because the testi mony did not establish a definite theory of the wound tract, the def endant was able to elicit testimony from Dr. Smith that his theory of the shooting was feasible.29 (B) The defendant argues that the testimony of Officer Dana Stine that "it kind of appeared like [the victi m] had to clean out his pockets o r something like that," w as an improper opinion which inappropriately suggested to the jury that the v ictim had been robbed. See Tenn. R. Evid. 701(a). Pa rticularly, the defendant c ontends that the witness could "readil

y and with equal ac

curacy and adequacy c ommunicate what [he] perceived [about the cri me scene] to the trier of fact without testifying in ter ms of opinions or inferences." Tenn. R.Evid. 701(a)(2). The defendant also argues that given that a defendant's statement must be corroborated by ex trinsic evidence to support a conviction, al lowing Officer Stine's improper testimony prev ents the state from demonstrating that the testimony did not contribute to the jur y's finding that the defendant robbed the victim. The sta te contends that the testimony was permissible, but even if it were error, it would be harmless error.

Our supreme court has address ed a similar issue. In State v. Middlebrooks , 840 S.W.2d 317 (Te nn. 1992), the officer testified that a bloody T-shirt found around the victim's neck had been used as a gag. The de fense objected to this testimony as inadmissibl e lay opinion, but the tri al court allowed it a nyway. The supreme court held that the testi mony was an inadmissibl e lay opinion and stated:

A non-expert must ordinari ly confine his testimony to a narration of facts base d on first-hand knowledge and avoid stating mere personal opinions. Blackburn v. Murphy, 737 S.W.2d 529, 531 (Tenn. 1987). The purpose of this rule is "to preserve the primary fact-finding role of the jury, since '[i]t is the function of the witness to stat e evidentiary facts an d t he function of the ju ry to d raw such conclusions as the facts warrant.'" Id . (quoting Wilson v. Nashville, Chattan ooga & St. Louis R y. , 16 Tenn. App. 695, 705, 65 S.W.2d 637, 643 (1933)). Nevertheless, there are exceptions to the general rule. "Non-expert opinion testimony can be admissibl e when 'such testimony

describes observed facts in the o nly way in which they can be clearly descri bed.'" Id ., 737 S.W.2d at 532 (quoting National Life & Accident Ins. Co. v. Follett , 168 Tenn. 647, 662, 80 S.W.2 d 92, 98 (1935)).30

Id . at 330-31. Although the cour t stated that the question of admis sibility of the testimony was close, it concluded that it would be harmless error even if it were inadmissible. The court ex plained that because the defendant had admitt ed to gagging the victim, the officer's testimony was harmless.

We view the opinion testimony in the present case to be improper,but as in Middlebrooks , its admission is harmless error. There is sufficient evidence elsewhere in the record that corrobor ates the defendant's statement that he robbed the victim. Darrell Hubbard, one of the r esidents of the apartment complex, testified that he saw the victim lying on his back with his pockets turned inside out. Officer Palmer testified that she saw the v ictim's pockets turned in side out. Both officers testified that the personal belongings of the victim, such as his wallet, were scat tered on the ground. In fact, under this evidence and the defendant’s statement, Officer Stine’ s opinion borders on stating the obvious. Accordingly, his opinion testimony was harmless error.
Chain of Custody

of Tangible Evidence The defendant contends that a juvenile court badge found at the scene was improperly introduced into evidence. The defendant argues that the state failed t o establish a proper chain of cus tody with respect t

o the badge. In his testimony , Officer Stine stated that he placed all of the victim's personal items into one envelope for inventory purposes. At the trial, howev er, it was reveal ed that the badge had been removed and placed into another envelope by another memb er of the police department. The defendant contends that because the state could not establish who removed the badge, that its introduction was inappr opriate. The state argues its introduction was proper given that the badge w as a particular object tha t Officer Stine identified as an item he recov ered from the scene.31 The case upon which the defendant rel ies tends to discount his ar gument. In State v. Goodman , 643 S.W.2d 375, 381 (Tenn. Crim. App. 1982), this court held: "As a condition precedent to the introduction of tangible ev idence, a witness must be able to identify the evide nce or establish an unbroken chain of custody." (Emphasis added). "In determining the admissibility of tangible evidence, the law does not require absolute certainty of identification. It is sufficien t if the facts establish a reasonable assurance of identity of the ev idence." State v. Larry G. Hart , No. 02C01-9406-CC00111, Hardin County, sl ip op. at 6-7 (Tenn. Crim. App.June 28, 1995). See also State v. Phillip Branson , 03C01-9305 -CR-00148, Roane County, slip op. at 13 (Tenn. Cr

im. App. Dec. 9, 1994). After rev iewing the record, we conclude that the intr oduction of the badge was proper.

INSTRUCTIONS Witness Credibility The defendant contends that the trial cour t’s instruction on the assessment of witness credibility went beyond the bare "presumption of truth fulness" and general methods for assessi ng credibility uphe ld in Cupp v. Naughten , 414 U.S. 141, 94 S. Ct. 396 (1973). The trial court instructed the jury in this case as follows:

You will take all of the evidence adduced in the case by the State an d the def endant a nd give it a full, fair and impartial consideration. If there are any conflicts i n the statements of the different witnesses, it is y our duty to reconcile them, if you can, for the law

presumes that

every witness

has sworn to the truth; but, if you cannot, the law makes you the s ole and exclusive judges

of t he c redibility of the wi tnesses and the weight to be given their testi mony. In forming your opinion as to the credibility

of a witness, you may loo k to the pr oof, if any, of his general c haracter, the manner and demeanor of the w i tness, the consistency or inconsistency of his statements, th eirprobability or impr obability, his abili

ty and willing nes s t o speak the truth, his intelligence and means of knowledge, his motive to speak the truth or sw ear to a falsehood, his interest or lack of interest in the outcome of the trial. The defendant argues that the instruction is a com ment on the evidence and improperly provides limited rul es for the jury to determine credibility iss ues of fact.32 We believe

that the instru ction i s with in the c onfines o

f Naughten . The instruction in Naughten , like the instruction i n this case, informed the jury "to consider the manner of the witness, the nat ure of the testimony, and any other matter relating to the witness' possible

motivation to speak falsely. [The jury] thus remained free to exercise its coll ective judgment to rej ect what it did not find tr ustworthy or plaus ible." 414 U.S. at 419, 94 S. Ct. at 401. Moreover, as emphasiz ed in the above instructi on, the trial court instruc

ted the jury that it may

co ns id er

th e e nu me ra

te d g ui de li ne s. We believe that the instruction adequately guides the jurors in their consideration of witness credibility whi le leaving them free of undue cons traints on their evalu ations. As such, the instruction does not amount to a comment on the evidence, but is an aid to the jurors if they find irreconci lable con flicts in the testi mony.

"Intentional" The defendant contends that the trial cour t's definition of intentional, w hen instructing the jury

that they must find that the defendant i ntended to commit the especially aggr

avated robbery, wa

s improper. Specifically , the defendant claims that the trial court’s instruction defined "general intent," and the crime of aggravated robbery is a specific intent cri me requiring a finding of "specific intent." The defendant offers no authority in support of his claim. The trial court i nstructed the jury that "a person acts 'intentionally' w

hen that person acts with a conscious objective ei ther: (1) to cause a particular result; or (2) to engage in particular conduct." As the state asserts, this definition is in conformity with the statute. See T.C.A. § 39-11-302(a) (1991)

. Accordingly, w

e can find no error in the tri al court's instructio n.

Reasonable Doubt The defendant argues that the instruc tions on reasonable doubt did not lend content to the words “moral certainty” used by the trial court. The trial court instructed the jury in the guilt phase of the trial as follows:33 Reasonable do ubt is that doubt engendered by an investigation of

all the proof in the case and an inability, after such investigation, to letthe mind rest easily upon the certainty of guilt. Reasonable doubt does not mean a doubt that may ari se f rom possibility. Abs olute certainty of guilt is not demanded by the law to conv ict of any criminal char ge, but moral certaint y is required and this c ertainty i s required as to every proposition of pr

oof requisite to constitute the offense. The trial court gave the following instruction during the penalty phase:

Reasonabl e d oubt 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. R

easonable doubt doesnot mean a doubt that mayarise from possibility. Absolute certainty of guilt is no t demanded by the law to conv ict of any criminal char ge, but moral certainty is req uired and t his certainty is r equired as to every proposition of pr

oof requisite to constitute the verdict.
The defendant contends that the phrases "inability, after such investigation, to le

t the mind rest easily u pon the certainty of guilt" and "arise from possibility," when used to explain moral certainty, violate due process and allow the jury to convict upon a standard l ower than that set forth in Victor v. Nebraska , 511 U.S. 1, 114 S. Ct. 1239 (1994). In Victor , the United States Supreme Cour t ruled that the phrase "moral certainty" may have lost its historical meaning and that modern juries, unaware of the historical meaning, might understand "moral certainty,” in the abs

tract, to mean something less than the high level of determination co nstitutionally required in criminal cases. Id . at 13-14, 114 S. Ct. at 1246-47. Although the Court stated tha t it did not condone the use of the "moral certainty" phra se, the Court held that the phrase could pass constitutional mus ter if used in conjunction w ith a modifying instruc

tion that lent meaning to the phrase. Id . at 15, 114 S. Ct. at 1248. In or der to meet the requirements of due process, the jury instructions must be examined as a whol e, without considering

particular phrases out of co ntext. Id . at 5, 114 S. Ct. at 1243
The Supreme Court has held that "g rave uncertainty" and "a ctual substantial doubt," when modify ing moral certainty , did not meaningfully conv ey the definition of reasonable doubt and thus v iolated the due process claus e. Cage v.34

Louisiana , 498 U.S. 39, 41, 111 S. Ct. 328, 329 (1990). Neither of the se phrases, though, were used in the instructions in the pres ent case. In Victor , the Court, tho ugh satisfied with the modifying "abiding conviction" language used by the trial court, held that the constitution does not r equire the use of any specific terminology in defini ng reasonable doubt. Id . at 14-15, 114 S. Ct. at 1243, 1247.It did suggest, how ever, that the phrase "moral certainty " by itself would be in sufficient to convey the appr opriate meaning of reasonable doubt. Id . at 15, 114 S. Ct. at 1247.

The primary question, ther efore, is whether the phras e "moral certainty," when used in conjunction w ith "let the mind rest easil y" and "arise from possibil ity," correctly convey

ed to the jury the concept of r easonable doubt. Though neither of these ph rases have been bef ore the Un ited Sta tes Supre me Court, our court s have consistently upheld the c onstitutionality of simil ar instructions whi ch included the phrases "let the mind rest eas ily" and "arise from possi bility." State v. Nichols , 877 S.W.2d 722, 734 (Tenn. 1994); Pettyjohn v. State , 885 S.W.2d 364, 365-66 (Tenn. Crim. App. 1994). Accordingly, we conclude that the jury instructions on reasonable doubt in the present case did not violate the defendant's rig hts under the United States or Tennessee Constitution.

SENTENCING PHA SE Use of Prior Conv

ictions as Agg ravating Circumst ance The defendant contends that using his p rior convictions for later-occurring offenses as an aggravating circumstance violates

the defendant's constitutional r ights. The state argues that the use of thi s aggravator is prescribed by law . Under T.C.A. § 39-13-204(i)(2), a prior conviction of a felony, "other than the present cha rge, whose statutory elements inv

olve the use of violence t o the person" can be used as an aggravatin g circumst ance fo r the impo sition of the deat h penalt y.6 The defendan t argues that it is a constituti onal violation to permit enhancemen t by lateroccurring ev

ents in capital sentencing, whi le precl uding it in non-capi tal sentencing range enhancement under T.C.A. § 40- 35-106(b)(1) . That provi sion states that a " 'prior convicti on' means a convicti on for an offense occurri ng prior t o the commission of the of fense for whi ch the defendant is being se ntenced." The statute fo r capital se ntencing , howeve r, does n ot define "p rior convic tion." See T.C.A. § 39-13-2 04(i)(2). Our supreme court has int erpreted t he statute

to mean the prior

convicti on could be of an l ater-occurring offe nse . The cour t has also s tated that, a bse nt "ex cep tiona lly clear proo f," the defe nda nt's c laim that th is interpr etatio n would alway

s allow t he prosecutor t o select t he order of pro secution, thereby i nsuring tha t an aggrav ating circu msta nce of a prior violent co nviction wo uld be ava ilable for a m urder trial, is un tenable. See Nich ols , 877 S.W.2d at 736. We see no such "excepti onally clear proof " in t he record before us. 35 The Tennessee Supreme Court has held that the chronological order of the commission of the offenses is not rel evant for sentencing purpos es. Whether the conviction was enter

ed before the sentencing phase at w hich it is introduced i s the determining factor when us ing a prior convic tion under the statute. Bigbee , 885 S.W.2d at 817; Nichols , 877 S.W.2d at 736. Thus, even though the prior conviction for the aggravated robbery

is based upon an offense committed by the defendant after the offenses in the present case, the conv ictions were return ed before the sentencing phase in the present case. It is the fact of the prior convi ctions for a violent offense that remains relevant to capital sente ncing, not its tim ing. 6

Underlying Facts of Previous Convictions The defendant contends that the introducti on of evidence concerning the specific facts of the prior conv ictions used as an aggr avating circumstance was improper. During the s entencing phase of the trial and over the defendant’s objection, the state called Gary Y ochum, one of the victims of the later robberies, to testify about the facts of that event. Before Mr.Yochum testified, howev er, the keeper of the records for the Shelby County Cl erk's Office testified on behalf of the stat e that two convictio ns for aggravated robbery had been returned against the d efendant relative to the Yochums.
The defendant argues that the testimony of the clerk was sufficient t o establish the prior v

iolent conviction, and that the testimony of Mr. Y ochum was cumulative and served no purpose other than to inflame the pass ions and the7 The prior convi ctions i n State v. Moore , 614 S.W.2d 348 (Tenn. 1981 ), burgl ary in the second degree and arson, were crimes to proper ty, an d thus did not

facial ly i ndicate vi olence or t hreat of vi olence to the person.The court stat ed that i n such a situat ion, i t would be appr opriate t o introduce

evidence establish ing violence or threat of violence to the pers on. Id . at 351. The court also n oted, however , that evidence woul d not be needed when t he prior conv icti ons were for cri mes “which by thei r very def init ion involves the use or threat of violence to a person.” Id

. 36 prejudices of the jury. The state, however, asser ts that the defendant introduced a theory that the shooting in the present case was a ccidental and that the testimony of Mr. Yochum was necessary for rebuttal purposes.

In State v. Bigbee , 885 S.W.2d 797 (Tenn. 1994), our supreme court held: Ev idence of facts regarding a prev ious convictiont o show that it in fact involved viol ence or the threat of violenc e to the person is admissibl e at a sentencing hearing i n order to establish the aggr ava ting circumstance. State v. Bates , 804 S.W.2d 868, 879 (Tenn . 1 983); State v. Moore , 614 S.W.2d 348, 351 (Tenn. 1981). However, it is not appropriate to admit evidence regarding specific f acts of the crime resulting in the previousconviction, when the conviction on its face show s that it involved viol ence or the threat of violence to the

person. Id. Id . at 811; 7 see T.C.A. § 39-13-204(i)(2) . In Bigbee , the state s olicited te

stimony fro m a police detective about the fact s surrounding a prior

murder and the character of the victim. Also, the stat

e’s closing argument r

eferred to the detective’s t estimony concerning the prior crime and to the sentence imposed fo r that conviction. The court ruled that the detective's testimony and the state's ar guments were inadmissi ble and improper. 885 S.W.2d at 812.

The defendant contends that the facts in the present case are essentially indistinguishable from those in Bigbee . Because testimony establi shing the identity of the prior violent offenses and the existence of the convic tions was already i ntroduced, the defendant argues, any additional evidence about th e underlying facts was merely cumulative and prejudici al. The defendant asserts that the conv ictions for the offenses8 We note that the jur y was inst ructed in the guil t phase that aggravated r

obbery requi red both the use of viol ence or putti ng the vict im in fear and t he use of a deadly weapon (or reasonabl e facsimile)or the victim ’s receipt o f serious bodily injury. 37 of aggravated robbery

establish the aggrav

ating circumstance of a pri or violent conviction. 8
The state, however, arg ues that Bigbee is distinguishable i n two aspects. First, the sentences for the pr ior convictions w

ere not mentioned by the state i n the present case. The state implies that the ruling in Bigbee would have been different had the state not mentioned the prior sentences. As the supreme court stated in Bigbee , however, the error

was merely "compounded" by the reference to the previous sentences. Id . at 811.

Second, the state submits that unl ike the evidence in Bigbee , the testimony of Mr. Yochum w as required to rebut the de fendant's theory that the shootings were acci dental. The primary question for this court, therefore, i s whether the testimony of Mr. Yochum w as proper rebuttal evid ence. See Cozzolino v. St ate , 584 S.W.2d 765, 767-68 (Tenn. 1979).

Referring to the present cr ime, the defendant stated to the police that the gun just "went off." It is the state's position that this represented the defendant's theory that the shooting in the present case was accidental, and, thus, in order to rebu t this theory, the specific facts of the Yochum robbery needed to be i ntroduced. The defendant robbed Mr. and Mrs. Y ochum at gunpoint. A shot w as fired during that robbery, but no one was injured. During the cross-examination of the defendant i n the sentencing phase of the present c ase, the defendant testified that he w as not shooting at the Yochum's, but that the g un just "went off."38 The defendant asserts that his statem ent to the police suggested that only the first shot was accidental and that the other four shots were fired int entionally. He argues that he was not s uggesting that all the shots were fired acci dentally. If the state was indeed trying

to rebut the defendant's statement, the de fendant responds that the state was rebutting its own proof because the state introduced the def endant's statement into evidence. Fur thermore, the defendant's testimony concerning the gunshot in the Yochum robber y was solicited during cross-exami nation by the state. Finally, the def endant conte nds that if the state was sincerely in terested in rebu tting a theory of an accidental shooting, it would have introduced testimony to that ef fect during the guilt phase of the trial, rather than at the sentencing phase.

The testimony of Mr. Yochum and the state's reference to it i n argument for the purpose of establishing the prior conviction are improper and prejudici al under the Bigbee

ruling. We must now decide if this e vidence and argument is ap propriate under the state's rebuttal co ntention. The state admits that the j ury apparently rej ected the theory that the shooting was accidental when it returned its verdict in the guilt phase. The state argues, how ever, that the evidence of the prior conviction t ended to rebut the mitigator presented in the sentencing phase, i .e., that the shooting was accidental. As the defendant points out, though, the only w itness who testified for the defendant during the sentencing phase was the defendant himself. Mor eover, the defendant asserts that his theory was that the shootings were intentional, but that the killing was acc

idental. This is to be an accurate assessment of the theory pr esented to the jury. The state’s i ntroduction of the evidence for th e purpose of rebutting the defendant’s claim that the shootings were accidental does not, in fact, rebut the defendant’s evidence because the defendant conceded that the shootings in the present case were intentional.39 The state argues that if the introduction and argumen t of such evidence is error, it is no more than harmless error. The state suggests that Mr. Yochum's testimony was rather

straightforward and not so inflammatory, and simply reiterated the testimony of the keeper of the recor ds of the Shelby County Cl erk's Office. We do not agree. The testimony of Mr.Yochum described the specific details of the prior cri mes. In its argument to the jury, the state relied heavil y upon those details, incl uding the former victim’s continued fear, in order to increase the seriousness of the prior convictions as an agg ravating circumstan ce. With that aggravating ci rcumstance being the only one that the jury found to exist, we beli eve that the evidence of the det ails of the prior crimes more pro bably than not affected the jury ’s verdict. Thus, under existing law, reversibl e error occurred.
Exclusion of Mitigat ing Evidence The defendant contends that the trial court should have allowed Mr. Carl Nelson to testify at the sentencing phase of the trial as an expert witness c

oncerning the defendant's remorsefulness. He al so contends that even if the cour t did not allow Mr. Nelson to testify as an expert, it should hav e permitted him to testify as a lay witness. The state counters that the defendant failed to qualify Mr. Nelson as an expert in the field of psychology. It also asserts that the court afforded Mr. Nelson ample opportunity to testify as a lay witness, but that Mr. Nelson, by hi s absence, deprived the defendant of the benefit of his testimony.

The defendant proffered Mr. Nelson as an ex pert in psychology . At the time of the trial, Mr. Nel son was employed by the state as a Psychologi cal Chaplain II. He has a bachelor's degr ee in social psycholog

y and a master's degree in pastoral counseling. Mr. Nel son testified that he had performed thousan ds of psychological evaluations on inmates in Tennes see over the previous

eight years using

a test he had developed himself. The trial court, however, was not satisfied with Mr. Nelson's40

qualifications as an expert in the field of psycholog y relative to his

testing procedures. The trial court ultimately ruled that Mr. Nelson c ould testify as a pastoral counselor about his observations from the interviews and c ounseling he had with th e defendant, but that he could not give an expert opinion about the defendant's remorsefulness.

Mr. Nelson, howev

er, never testified before the jury. The defendant asserts that the trial c

ourt refused to allow any of Mr. Nelson's testimony , even the testimony the court wa s ultimately wil ling to permit regar ding his observations , and excused him from the courtroom. The record reflects th at during the questioning of Mr. Nelson, he and the trial court engaged in some heated exchanges regarding Mr. Nelson’s explanatory

answers to some questi ons and his method of answering . After several more exchang es between the trial cour t and the witness, the tr ial court excused Mr. Nelson from the courtr oom and ruled that he would not allow him to testify. Immediately after Mr. Nelson left the courtroom, the trial court con tinued the trial until the following day. On the following day, the trial court informed the defense that Mr. Nelson could testify about h is interviews a nd counseling with the defendant. It granted the defendant several recesses that morning for the purpose of cont acting Mr. Nelson, but the defendant was unsuccessful. Consequently, Mr. Nelson never testified.

First, we believ

e that under the evidence pres ented, the trial court w

as within its discre

tion to hold that Mr. Nels on did not qualify to render an opinion as an expert witness. Al

though the defendant presented evid ence that could support an inference that Mr. Nelson had substantial experience an d training relativ e to counseling and evaluating prison i nmates, the trial court q uestioned the basis of his eva luation techniques and the scientific nature of his conclusions. T here is material evidence in the record to support the tr ial court’s doubts. Ultimately, the trial co urt concluded that Mr. Nelson did not posses s the expertise for render ing an expert opinion as to the defendant’s remorsefulness. See Tenn. R. Evid. 702. The allowance of expert41

testimony is withi n the discretion of the trial court. See State v. Ballard , 855 S.W.2d 557, 562 (Tenn. 1993).

However, the real concern in this case is the manner in which the tr ial court’s actions wer

e a cause of the defendant’s losing a potentially material w itness for the sentencing phase. Contr ary to the state’s impli ed assertion, the record before us does not cast fault upon the defen dant for the failure of Mr. Nelson to appear as a witness. By refusing to allow Mr. Nelson to testify, the trial court effectively excused him from any obligation or ex pectation to appear and testify thereafter. He had no duty to remain available. Also , nothing in the record r eflects that, after the trial co urt relented the next morning, the defense made anything but a good fa ith effort to reobtain Mr. Nelson as a witness.

In this capital case, the defendant was entitled to present evidence relevant to punishment concer ning his character, background history, or physical condition, and any other ev idence tending to establis h any mitigating factor s. See T.C.A. § 39-13-204(c). Our supreme court has acknowledged the importan ce of this statutory provisi on. See , e.g ., State v. Odom , 928 S.W.2d 18, 27-28 (Tenn. 1996) (defendant’s details of history given to psycholo

gist during interv

iew admissible despite hearsay quality). In fact, it is the defendant’s constitutional right to present such matters. [T]he Eighth and F ourteenth Amendments require that the s entencer, and all but the rarest ki nd of capital case, not b e precluded from considering, as a mitigating factor, any aspect of a defendant’s character or rec ord and any of the circumstances

of the offense that the def endant proffers as a basis for a sentence less than de ath. Lockett v. Ohio , 438 U.S. 586, 604, 98 S. Ct. 2954, 2964-65 (1978); see also McKoy v. North Carolina , 494 U.S. 433, 442-43, 110 S. Ct.1227, 1233 (1990); Penry v. Lynaugh , 492 U.S. 302, 317-18, 109 S. Ct. 2934, 2946-47 (1989).42 In this case, the trial c

ourt acknowledged the c ompetency of Mr. Nelson to testify about his counseling with and observations of the defend ant. Although relatively limited, Mr. Nelson’s

jury-out testimony

indicated that he had interv iewed the defendant, obtaining background information regarding him, and had observed the defendant in his prison environment. This was the only witness proffered by the defendant, other than himself, to present to the jury a picture of the defendant’s characte r and background history, including

the time during his impr isonment. We also note that Mr. Nelson indicated that the defendant did not easi ly disclose his r eal feelings.
In the context of the state assailing the sincerity of the defen dant’s statement of regret, through h is demeanor, and the limited natur e of the information provided by the defendant’s testimony, we believe that Mr. Nelson’s testimony would have been material to the defendant’s cause in the sentencing phas e. Certainly, the record reflects that he was better able to articulate the defen dant’s background history to the jury than was the defendant.

In Skipper v. South Carol ina , 476 U.S. 1, 8, 106 S. Ct. 1669, 1673 (1986), the Supreme Court held that err or in excluding ev

idence is not harmless if the ex clusion of the evidence “may have affected the jury’s decision to impose the death sentence.” Given the singular na

ture of the evidence presented by the state for its one proven aggravating ci rcumstance and the otherwis e limited evidence present ed by the defend ant in mit igation, we believe t hat the lo ss of Mr. Ne lson as a wit ness may h ave had such an effect. The refusal to allow Mr. Nelson to testify

under the circumstances in this case constitutes reversible trial error.43 IMPROPER ARGUMENT Caldwell Violation The defendant claims that the prosecutor 's closing argument i n the sentencing phase of the trial violated the constitutio nal principles set forth i n Caldwell v. Mississippi , 472 U.S. 320, 105 S. Ct. 2633 ( 1985). In closing arg ument, the prosecutor made the following statements:

There's not one thing to mitigate except the old defense lawyer guilt trip of you're to give him the electric chair. You're not to give anybody anything. You don't giv e him t he death penalty. You don't do that. You do your d uty. You ca n't give someone the death penalty. If he gets it, he ordered it up himself.So don't let the defense put a guilt trip on you. You're here to do a duty.
In Caldwell , the United States Supreme Court held that "it is constitu tionally im permissi ble to res t a death sentenc e on a det erminat ion made by a sentencer who has been led to believe that the responsi bility for determining the appropriateness of the defendant's death r ests elsewhere." Id . at 328-29, 105 S. Ct. at 2639. The argument made by the pros ecutor in the Caldwell case contained phrases such as "your decision i s not the final decision," "y our job is review

able," and "the decision you render is

automatically revi ewable by the Supreme Cour t." Id . at 325-26, 105 S. Ct. at 2637-38. Althoug h the defense objected to these statements,the trial judge overruled the objection and instructed the prosecutor to info rm the jury that their decision was automatical ly reviewable . The Supreme Court ruled that th e argument was imp roper an d in vi olation of the co nstitut ion. In the late r case o f Romano v. Oklahoma , 512 U.S. 1, 9, 114 S. Ct. 2004, 2010 (1 994), the Uni ted States Su preme Court noted that it has

since read Cal dwe ll as "relevant only to certain types of c om ment - those that mislead the jur y as to its role in the sentencing process in a way that allo ws the jury to feel less responsible than it sho u ld for the sentencing decisi on." Darden v. Wainwright , 477 U. S. 168, 184, n.15, 106 S.Ct. 2464, 2473, n.15 (1 986). Thus, "[t]o establish a Caldwell violation, a defendant necessarily must s how that the remarks to the jury improperlydescribed the role assigned to the jury by44 local law." Du gger v . Adams , 489 U.S. 401, 407, 109 S. Ct. 1211, 1215 (1989).

We believe that the stateme nts made by the prosecutor in this case could arguably be read as an attempt to diminish in the eyes of the jury its responsibility in imposing the death penalty.Statements such as "keep in mind, you don't impose the sentence, the law prov ides the sentence," State v. West , 767 S.W.2d 387, 399 (Tenn. 1989), and "she is responsibl e for her death, no one else," and "it is she, the defendant, that has signed her own death warrant," Buttrum v. Black , 721 F. Supp. 1268, 1316 n.11 (N.D. Ga. 1989), aff’d , 908 F.2d 695 (11th Cir. 1990) , have been construed as minimizing in the jur

y's eyes its rol e in imposing the death penalty

.
The ultimate question, though,is whether the argument had an intolerable risk of affecting the sentencing decision. See State v. Irick , 762 S.W.2d 121, 131 (Tenn. 1988). Factors that w e can consider in making this review incl ude the following: whether

the trial court endorsed the improper remarks; the ex tent and the specificity of the statements g iven the context of the arg ument as a whole; whether other portions of the prosecutor 's argument properly set forth the jury's rol e; and whether the court proper ly instructed the jur

y as to its role under

the law. See West , 767 S.W.2d at 399.

We note that the def ense in this case did not object to the prosecutor's argument. Also, the trial court did not endorse the improper remarks, and it properly instructed the jury about its role according to the law. Moreov

er, the prosecutor did not refer the jury to another authority as having the final say in the death sent ence. Although the prosecutor did not subsequently set forth the jury's role, he did impress upon the jury later to "do [its] duty." Under thes e circumstances, we do not believe that the prosecutor’s argument presented an intolerable ri sk that the jury’s se ntencing decision was unreliab le.45 Prosecutorial Miscondu ct The defendant contends that several ar guments made by the prosecutor during the sentencing phas e were improper so that hi s sentence should be rever sed. The stat e asserts that its a rguments to the jur y were prope r and that even if on e or two of the statements should have been av oided, the argument, when v iewed as a whole, was appropriate.

When claiming prosecutorial miscond uct in argument, the defendant is required to show that the argument was so inflammator y or the conduct so imprope r that it affected the verdict to h is detriment. Harrington v. State , 385 S.W.2d 758, 759 (Tenn. 1965). In review , this Court should consi der several factors, in cluding the intent of the prosecutor, the curativ e measures which wer

e undertaken by the court, the improper conduct view

ed in context and in lig ht of the facts and circumstances of the case, the cumulative effect of the remar ks with any other er

rors in the record, and th e relative strength or

weakness of the case. Judge v. State , 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976). The trial court has wide discr

etion in controlling the argument of counsel. State v. Smith , 527 S.W.2d 737, 73 9 (Tenn. 1975).

The statements of concern to the def endant in this appeal are as follows: Ladies and gentleman, this old cit yhere is violent, and this man is violent. An d we who pass the age of fifty, we can see ourselves. We are victims. We are prey. Never thought I'd be looking at myse lf like t hat back when I was pl aying football. I thought I was a pret ty tough guy. But,hey, I'm fifty now, and, hey, my gait is going to halt and things like that, and I'm goin g to be like Mr. Har ris one of these days. Pause fo r thought. Mr. Harris' life was not a joke. It was not flippant. He took care of his mother, 1988, moves off. He's sixty-four years, in an a part ment, working, minding his own business, mighthave been an okay guy . Two nephews from Atlanta, Georgia, come down here. They cared enough about him

. . . We're not ask ing much of Mr. Johnny Ha rris. All he wanted in life was to go to Mega Ma rket, work, go home. He didn't want to live in Graceland or anything like that. He wasn't aski ng for a big house in Germantown. He's got a little old46 two-bedroom apa rtment of f Union. That's all. His l ife was serious. It was simple, but it was serious. And he's got a right to live that life. Ladies and ge ntlemen, the State's proven i t to you. You' re at the point where the stat e has proven to yo u aggravating

circumstances. The State needs o ne. We've got two. And ladies and gentlemen, those t wo outweigh the mitigating because there isn't any. The only verdict, l adies and gentlemen, that you ca n return i n this cas e, the ve rdic t that truth dictates and justice demands, in fact justice screams for, is death.

As an initial concern to o ur review, w e note that the defendant did not object to this argument. N eedless to say, neither the trial court nor the st ate was made aware of a ny need to stop the argument , alter th e argumen t or give cura tive instructions. Under thes e circumstances, it w

ould only be error so p lain and material to the cause that the trial court should have corrected it without prompting that would warrant our granti ng relief.

A portion of this argument addr esses the personal character istics and lifestyle of the victim, as well as referring to the victim's family members. As previously noted, victim impact arg ument has been held to be constituti onally proper in an appropriate case. Payne v. Tennessee , 501 U.S. at 827, 111 S. Ct. at 2609. However, this does not mean that such arg ument is otherwise rel evant and admissible under Tennessee law. That is, the only evidence that is relevant during the sentencing phase of Tennessee’s capital sentencing scheme is that tending to es tablish or disprove the existence of aggrav

ating circumstances or mitigating factors. See Cozzolino v. St ate , 584 S.W.2d 765, 768 (Tenn. 1979). Any evidence that does not go to the proof of one or the other of these issues is irrelevant to the jur

y’s deliberation. Id . Recently, this court has concluded that vi ctim impact evidence is irrelevant in the cont ext of our capital sentencing scheme. See State v. Clarence C. Nesbit , No. 02C01-9510-CR-00293, Shelby County, slip

op. at 31-33 (Tenn. Crim. App. A pr. 22, 1997).47 However, we can not say that the argument co nstituted plain error or resulted in real prejudi ce. In the context of the total argument by the prosecutor s, the part involving victim impact was i nsignificant. Therefore, w e believe no plain error exists.
As to the portion of the argument that the def endant suggests improperly comments on the absence of any mitig ating factors, our supreme c ourt has held that such statements by the prosec utor do little more than "set out the State's interpretati on of the proof." State v. Brimmer , 876 S.W.2d 75, 85 (T enn. 1994). The defendant's contention in this respect, therefore, is without mer it.
The defendant also argues that the arg ument by the prosecutor tendi ng to illustrate a bleak pict ure of "growing old i n the city" served no other purpose than placing fear in the minds of the j ury. We note that this court has held tha t argument that the jury is the v

oice of the community is not mis conduct. See State v. Johnnie Lamont Dalton , No. 01C01-9408-CR-00291, Davidson County, sl ip op. at 5-6 (Tenn. Crim. App. July 11, 1995) . Obviously, thoug h, argument that inflames the passi ons and fears of the jurors, tending to influence a sentencing decis ion with irrelev ant considerations, can be cause for reversal. See Bigbee , 885 S.W. 2d at 809. However, in considering the arg ument in this case, made without objection, in the contex t of the state’s total argument, w e do not believe that it con stitutes plain error th at affected the verdict.

The defendant also claims reference s by the state to the defendant's statements that he threatened to kil l his codefendants were blat antly improper. Immediately after the statements were made, however, the def endant successfully objected, and the court admonished the prosecutor from making such comments.48

Moreover, as the state s uggests, the testimony of Kimberly Farmer did i n fact state that the defendant had made similar comments in her presence.

The defendant also contends that comments in the state's closing argument during the sentencing phase concerning the victims of the defendant’s prior crime were improper. We have already concluded this ty pe of argument was improper under the circumstances of this case and existing l aw. See Bigbee , 885 S.W.2d at 812.
The defendant also asserts that the pro secutor improperly comment ed on the defendant's failure to testify. Griffin v. California , 380 U.S. 609, 85 S. Ct. 1229 (1965). After reviewing the record, we co nclude that th is claim is unfou nded. Though the defendant did not testify in the g uilt phase, he did take the stan d in the sentencing phase. The comments of the prosecu tor during the sentencing phase did not suggest that the defendant did not testify, but rath er that he said he was sad rather than sorry that the killing happened.

Finally, the defendant arg ues that the prosecutor's cr iticism of the defendant's demeanor and the prosecutor' s use of sarcasm while al luding to the defendant were improper. See United States v. Schuler, 813 F.2d 978, 982 (9th Cir. 1987); United States v. Doe , 860 F.2d 488, 492 (1st Cir.1988); Lindsey v. Smith , 820 F.2d 1137, 1155 (11th Cir. 1987). However, we see no problem with the prosecutor’s argument. Demeanor is a relevant consideration in the context of the de fendant’s claim of remorse. Likewise, attorneys are allowed to engage in “oratorical emphasis in arguing their respec

tive positions,” and j ury argument is gi ven wide latitude w

ithin the trial court’s discr

etion. State v. Prince , 713 S.W.2d 914, 91 8 (Tenn. Crim. App. 1986); State v. Sutton , 562 S.W.2d 820, 823 (Tenn. 1978). This would inc lude the use of irony and sarcasm for the purpose of making relevant points. We believe that th e9 The defendant further contends th at we should r econsider th e holding i n State v. Sm ith , 857 S.W.2d 1 (Tenn. 1993), to the effect

that th ere is no reasonable probabi lit y that jurors i nterpret

instruct ions on unanimity

so as to precl ude the ful l consider ation of a defendant' s mitigati ng evidence. He relies on an opinion fro m a fe deral district c ourt that be lieves that the re is such a proba bility. See Houston v. Dutt on , No. 3:86-0749, slip op. at 41-48 (M.D. Tenn. May 19, 1994) . Obviousl y, we are bo und by our supr eme court’s decisions.

10 The defendant ci tes to Simmons v. South Caroli na , 512 U.S. 154, 114 S. Ct. 2187 (1994). The law in Te nness ee at the tim e of the pr esent trial, ho wever, d id not provid e for life withou t parole. See T.C.A. § 39-13-2 02(b) (1991). Accordingl y, the holding i n Simmons would not be ap plicabl e to thi s case. 49 prosecutor’s argument about which the defendant complains w as based upon relevant considerations.

INSTRUCTIONS Nonunanimous Verdict The defendant argues that the jury was unconstitutionall

y instructed that a life verdict had to be unanimous , was not instructed of the e ffect of a nonunanimous verdict, and was unconstitutionally given instructions that precluded the full consideration of mitigating evidence. The defendant's argument s under similar circumstances have been r epeatedly rejected by o ur supreme court. See State v. Brimmer , 876 S.W.2d 75, 82-83, 87 (Tenn. 1994); State v. Cazes , 875 S.W.2d 253, 267-68 (Tenn. 1994), State v. Smith , 857 S.W.2d 1, 17, 21-23 (Tenn. 1993); State v. Barber , 753 S.W.2d 659, 67 0-71 (Tenn. 1988). 9 Accordingly, thi s issue is without mer it.
Parole Eligibility The defendant contends that the tria l court sh ould have instructed the jury
on the particular dates of the defendant's parole eligibility. The defendant claims that had the jury known that

the defendant would not have been e ligible for parole for at least f ortyeight (48) years, it coul d have made a more informed decisio n about the def endant' s sentence. 10 Our supreme court has addres sed the defendant’s contention: Neither the T ennessee Constitution nor the F ederal constitution prohibits or requir es informing a capital sentenc ing juryof relevant and accurate sentencing in fo rm at io n. . . . We are of the op inion tha t to provi de a jury with the sor t of information requested by the [defendant] could result in50 sentences of death based on sheer speculation and on factors other than t hose e numerated in [the statute] and sanct ioned under either Constitution. Smith , 857 S.W.2d at 11 (citations omitted). “A greater defect in such inst ructions stems from the fact that jurors tend to attempt to compensate for future clemency by imposing harsher sentences , which is certainl y a matter of prejudice to a de fendant." Id . This issue is without merit.

CONSTITUTIONALITY OF DEATH PENA LTY STATUTES AND THEIR A

PPLICATION The defendant makes myriad attacks upon the constitutionality of the death penalty and the Tennessee statutes pro viding for it, and its application in this case. We need not itemize all of them in this opinion. Our supreme court ha s rejected all of his claims regar

ding the death penalty and how our statutes and procedures al low for its imposition. See , e.g ., State v. Black , 815 S.W.2d 166, 178-79, 85-91 (Tenn. 1991); State v. Brimmer , 876 S.W.2d 75, 88 (Tenn. 1994); State v. Cazes , 875 S.W.2d 253, 270-71 (Tenn. 1994); State v. Van Tran , 864 S.W.2d 465, 48 1-82 (Tenn. 1993); State v. Smith , 857 S.W.2d 1, 23 (Tenn. 1993); State v. Thompson , 768 S.W.2d 239, 252 (Tenn. 1989); see also State v. Cribbs , supra , slip op. at 24-25.

As for the issue of the death penalty being properly appli ed to the defendant, our review of the r ecord and other similar ca ses leads us to conclude that the nature of the crime and the defendant adeq uately justify the sente nce imposed by the jury. The evidence in the light most favorabl e to the state supports a concl usion that the defendant intended to kill th e victim and that his deni al was less than candid. Such a rep eat violen t offen der, for whom almo st no miti gating circ umstanc es are sho wn in the record, would ty

pically fall within the class of felony murderer s who receive the death penalty in this stat e. Cf

. State v. Branam , 855 S.W.2d 563, 57 0-71 (Tenn. 1993).51 ENHANCEMENT FACTORS FOR ROBB ERY The defendant asserts that the trial court improperly consi dered enhancement factors that were ess ential elements of the offense when it s entenced him to twenty year

s for especially agg ravated robbery. The st ate concedes as much, although not identifying which ones it concedes.In reviewing the sentence imposed by the trial court, we ar

e to conduct a de novo review on the record, and such review "shall be conducted with a presumption that the determinat ions made by the court from which the appeal is taken are correct." T.C.A. § 40-35-401(d). However, "[i]f the trial court applies inappropriate factors or otherwise fails to follow the 1989 Sentencing Ac t, the presumption of correctness falls ." State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).
The trial court applied the foll owing seven enhancement fact ors as they are provided in T.C.A. § 4 0-35-114: (1) The defenda nt has a history of criminal convictions or behavior. (2) The defendant was a leader of others in the commission of the offense. (6) The defendant inflicted particularly great personal injuries upon the vic

tim. (9) The defendant employed a firearm dur ing the offense. (10) The defendant had no hesitati on in committing a crim e involving a hig h risk to life. (12) The defendant willfully inflicted bodily injury upon another person. (16) The defend ant commi tted the

off ense under circumstances

showing a great pot

ential forbodily injury to the victim. As a general

rule, factor

s that are el ements of a cri me or are inh erent in the crime cannot be used. See T.C.A. § 40-35-114; State v. Jones , 883 S.W.2d 597, 599-600 (Tenn. 1994).11 W e note tha t the presu mptive senten ce for C lass A fe lonies on or after Ju ly 1, 1995, is twe nty years if there are neithe r enhan cing nor m itigating facto rs prese nt. See T.C.A. § 40-35- 210. 52 Thus, to the extent that an especially aggravated robbery requires the use of violence or fear of viole nce, the use of a deadly weapon,and the infliction of serious bodily injury, see T.C.A. § 39-13-403, those cir cumstances are inapplicable for enhancement purposes. This means that the use of a deadly weapon, the i nfliction of particularly great injuries, the risk to life, and the existence of a great potential for bodily injury -- as they exist in all especially aggravated robberies -- cannot enhance punishment for the especially aggravated robbery

in this case.

However, to the ex

tent the circumstances of the cr ime reflect a greater range of risk or great

er culpability rel ative to certain factors,they may apply in a particular case. See Jones , 883 S.W.2d at 603. In this respect, the evi dence of the shootings occurring

near to and into occupied dw ellings would all ow the use of factor (10) relative to inv

olving the high r

isk to life presented to pers ons other than the victim. Likewise, because an espec ially aggrav

ated robbery does not req uire the willful infliction of bodily injury upon another person, factor (12) applies.

In any event, the fact that factor s (6), (9) and (16) do n ot apply does not necessarily transl ate into a reduction in the sentence imposed by the trial court. The burden remains upon the defendant to show that the sentence imposed was unjustified. See State v. Holland , 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993). The defendant w as previously convicted of similar crimes and acted in concert with others to aid in his commission of the offense and his leavi ng the scene. With no applicable mitig ating factors, we hold that these c ircumstances give w

eight to the remaining factor s so as to justify the midrange sente nce of twenty years for the Class A felony inv

olved. 11 The sentence is affirmed.53 CONSECUTIVE SENTENC ES The defendant contends that the imposition of co nsecutive sentences w as improper in this case becaus e: (1) the term "extensiv e" when used to modify crimi nal history in T.C.A. § 40-

35-115 is unconstitutionall y vague; (2) the defendant does not have any prior juv

enile convictions; (

3) the use of juvenile cri minal activity in considering the imposition of consecutive sentences is improper; and ( 4) the defendant is not a danger to society.

The pred icate fa ctors fo r determi ning wheth er to impo se consec utive sentences are provided i n T.C.A. § 40-35-115. The trial court found that the defendant had an extensive histor y of criminal activi

ty and that he was a dang erous offender whose behavior indic

ates little or no respect for human life. See T.C.A. § 40-35- 115(b)(2) and (4 ). The defen dant's conten tions as to the im propriety of the se findings are without merit. The defendant c ites no authority in su pport of his proposition that th e term "extensive" is unc onstitutionally vag ue. The trial court properl y considered the defendant's prior criminal ac tivity as being extensive. Though the defendant may not have any prior juv

enile convictions, the statute does not state that there mus t be a conviction, just pri or criminal activi ty. Furthermore, State v. Stockton , 733 S.W.2d 111, 112-13 (Tenn. Crim. App. 1986), suggests that the trial court can review juvenile records when making a sentencing determination. Finally, the defendant was properly classified as a dangerous offender. See State v. Wilkerson , 905 S.W.2d 933, 935-39 (Tenn. 1995). Accordingly, this issue is without merit.

CONCLUSION In consideration of the foregoing and the record as a whole , we hold that th e f ir st de gr ee mu rd er co nv ic ti on is af fi rm ed bu t t ha

t t he se nt en ce

is re ve rs ed . We affirm the judgment of conviction for the esp ecially aggravated robbery. The case is54

remanded to the trial court for a new sentencing hearin g for the first degree murder and the entry of a judgment of conv iction under count two of C ase No. 92-04081.

_____________________________ Joseph M. Tipto n, Judge CONCUR:

_________________________ Joe B. Jones, Pre siding Judge

_________________________ John K. Byers, Sen ior Judge