# FILED
April 7, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE SUPREME COUR T OF TENNESSEE AT KNOXVILLE

FOR PUBLICATION STATE OF TENNESSEE, ) Filed: APRIL 7, 1997 ) Appellee, ) CUMBERLAND COUNTY ) v. ) Hon. Leon Burns, Jr., ) Judge MICHAEL DEAN BUSH, ) ) Appellant, ) Supreme Court ) No. 03-S01-9604-CC-00047

FOR APPELLANT : FOR APPELLEE: Martelia T. Crawford John Knox Walkup Cookeville, Tennessee Attorney General & Repor ter Richard McGee Michael E. Moore Nashville, Tennessee Solicitor General Gordon W. Smith Associate Solicitor Gener al Amy L. Tarkington Assistant Attorney Gener al Nashville, Tennessee William Edward Gibson District Attorney General Owen G. Burnett John A. Moore Lillie Ann Sells David A. Patterson Asst. District Attor

neys General Cookeville, Tennessee



## O P I N I O N

TRIAL COURT AND COURT OF CRIMINAL APPEALS AFFIRMED. DROWOTA, J. In this capital case, the defendant,Michael Dean Bush, was convicted of1 Although not relevant

to thi s appeal, t he trial judge imposed a thr ee-year sent

ence concu rrent to the d eath pen alty for the bur glary convic tion.

2 "Whenever the death penal ty i s imposed for fi rst degree murder and when the judgment has become final i n the tri al court, the defendant shall hav

e the rig ht of dir

ect appeal f rom the trial court to the Court of Crim inal Appe als. The affirma nce of th e convic tion and the senten ce of de ath shall be aut

omaticall y revi ewed by the Tennessee Supr eme Court. Upon the affi rmance by the Cou rt of C rim inal A ppe als, th e cler k sh all doc ket th e cas e in the Sup rem e Co urt an d the cas e sha ll procee d in acco rdance with the T ennes see R ules of A ppellate P rocedu re.” -2- premedi tated f irst degre e murder and first degree bu rglary. 1 In the sentencing hearing, the jury found tw o aggravating ci rcumstances: (1) “[t]he mur der was especially heinous, atr

ocious or cruel in that i t involved torture or serious physical abuse beyond that necessary to produce death;” and (2) “[t]he murder was committed for the purpose of avoiding, interfe ring with or preventing a lawful arrest or prosecution of the defendant or another.” Tenn. Code Ann. § 39-13-204(i )(5) and (6) (1991). Finding that the two aggrav

ating circumstances outw eighed mitigating circumst

ances beyond a reasonable doubt, the jury sentenced the defendant to death by electrocuti on.
On direct appeal to the Court of Criminal Appeals, the defendant challenged both his conviction and sentence, raising nineteen claims of error, each with numerous subparts . After fully considering defendant’s claims, the Court of Criminal Appeals affirmed the trial court’s judg ment. Thereafter, pursuant to Tenn. Code Ann. § 39-13-206(a)(1) (1996 Supp.), 2 the case was docketed in this Court.

The defendant raised numerous issue s in this Court, but after carefully examining the entire r

ecord and the law, incl uding the thorough opinion of the Court of Criminal Appeals and the briefs of the de fendant and the State, this3 Tennessee Supreme Court Rule 12 provi des in pert inent part as foll ows: “Prio r to the setting of oral argument, the Court shall review the record and briefs and c onsider all errors assigned. The Court may enter an order

designati ng those issues i t wil l revi ew. Selection of such issues wil l be based on t he criteria of T.R.A. P. 11(a).” This is t he first

capital case using thi s new procedure.

4 Although the crim e occu rred in Pu tnam Coun ty, Bush wa s tried in Cu mbe rland Co unty followi ng the tri al court’ s grant of hi s motion for a change of venue. -3- Court, on October 14, 1996, enter ed an Order limiting r

eview to seven i ssues and setting the cause for oral a rgument at the January 1997 t erm of Court in Knoxvil le. See Tenn. S. Ct. R. 12. 3

For the reasons explain ed below, we have det ermined that none of the alleged errors affirmativ ely appear to have affected the v erdict of guilt or the sentence imposed. Moreover, the evidence supports the jury’s findings as to aggravating and mitigating circumstanc es, and the sentence of death is not disproportionate or arbitrary. Accordingly, the defendant’s conviction for first degree murder and sentence of death by electrocution are affirmed.

FACTUAL BA

CKGROUND The defendant was convicted of the premed itated murder of Jodie Lefever, a seventy-nine-y

ear-old widow w

ho lived alone in her home i n the Silver Point
commun ity of Put nam Coun ty. 4 The evidence presented at the g uilt phase of the trial established that Lefev er’s body was dis

covered by a neighbor

on August 19, 1988, lying face down on the floor in her den next to the side door of the house. She had been stabbed numerous times. A l arge amount of blood was on her back, her head and the floor. Blood was also splattered on the door and nearby wall. Two holes of unknow n origin were in the wall near Lefever’s body.-4- Investigating officers

found a piece of pressure-treated w ood on the floor next to the den sofa and another piec e of pressure-treated wood behind the television set in the same room. Officers also found drop s of blood on a chair in the den, on the utility r

oom floor leading from the den to the k itchen, on the kitchen floor, and on a rug in the hallway leading to the bedroom. One drawer in the bedroom dresser was open. The front door and windows of the h ouse were locked, and there was no sign of forced entry. The house and its fu rnishings were essentially undisturbed. The only item missing from the house was a butcher knife that was kept in a dr awer next to the kitc

hen sink.

Dr. Gretel Harlan, as

sistant medical examiner with the State Medical Examiner ’s Offic e, testif ied that Lefever d ied as a re sult of b eing stab bed fort ythree times. The wounds extended down the left side of he r face, down the back of her neck, across her shoul ders, and down her back. They were consistent w ith wounds inflicted by a but cher knife like that taken from the kitchen. Several of the wounds were fatal and had pas sed through Lefever’s back and penetrated various vital organs and blood vessels. The location of the i njuries indicated that Lefev er had probably been lying down during the attack. All the wounds had been made while Lefever was alive; but it was impossible to determine the or der in which they had been inflicted. Some wounds would have resulted in unconsciousne ss in three to five minutes. How ever, if other wounds had been inflicted first, Lefever could have been alive and conscious for twenty t o thirty minutes. Because the stab wounds did not damage Lefev er’s central nervous

system, it was poss ible, according to Dr. Har

lan, that Lefever felt the woun ds as they were infli cted, a sensation that Dr. Harla n compared to undergoing sur gery without anaesthetic. In-5-

addition to the stab wounds, there were two small “scrape areas” on the victim’s left knee and elbow consistent with a fall onto those parts of he r body before collapsing to the ground. Lefever’s left collarbone had been bruised either shortly before the stabbing or during the fall. Contusions foun d around her eyes could likewise have been i nflicted before she fell or could hav e resulted from one of the stab wounds that had penetrated the left eye.
Despite extensive i nvestigation, law enforcement officials had no suspects on September 25, 1988, when Putnam County Sheriff Jerry Abston was notified by his office that eighteen-y ear-old Michael Dean Bus h and his father were at the Sheriff’s office and had information regar ding Lefever’s murder. Lefever had been the best friend of the defendant’s gr andmother, and Bush had mowed Lefever’s lawn and helped her get groceries. In a series of statements recor ded at the Cookeville poli ce department and played for the j ury at trial, Bush t old law enforcement officers that on the afternoon of Augus t 16, 1988, while he was living at his mother-in-law

’s trailer, he receiv

ed a telephone call to go to the Silver Point community after dark, if he ever wanted to see his family again. After calling his parents’ house and receiv ing no answer, the defendant c oncluded something was wrong.
Later that evening, after dark, the defendant inst ructed his wife to drive him to an area near Lefever’s house . When his wife asked him what was going on, he told her that they “needed some money . . . and [he] was going to go rob the old woman that lived down there.” After his wife dropped him off and lef t, Bush said he was met by four men wear ing black ski masks. One pulled a gun on him and-6-

said that they “needed somebody Jodie trusts.” Bush sai d Lefever was on the telepho ne when

he knock

ed on her

side doo r. After

Bush ide ntified himself, Lefever unlocked the door. The men th en pushed him inside the house and began to hit Lefever so hard that she fell back and hit the w all with her elbow

. One of the men ran through the kitchen and the rest of the house. When the stick being used to beat the vic tim broke, the men quickly gathered the pieces and handed them to Bush and told him to go outside. A few minutes later the men came out and gave the defendant a knife. The defendant’s hand was cut by the blade as he took the knife. The men instructed Bush to “take the stuff and get rid of it” and forget every

thing he had seen. As Bush w as walking to meet his

wife, one of the men drove up beside him and said “loose lips sink ships.”
Shortly afterward the defendant’s wife picked him up. H e was crying and had blood all over him. When his wife asked him what had happened, he said, “I killed Jodie.” They dr

ove to Center Hill La ke, where he threw the knife and the pieces of the broken stick into the water and washed himself of f. Bush then told his wife that he had not killed Lefever but blamed anothe r man, Jackie Maxwell.
On the same day and approximately the same time as Bush was giving his statements to law enforcement officials at the Cookeville police department, his seventeen-year-old w

ife, Sheila Bush, made several statements to officers at the Putnam County sheriff’s office. She tes tified to the substance of those statements at trial. While most of her story matched that of the defendant’s, it was differen t in one vitally important aspect. Shelia Bush incriminated the defend ant as the sole perpetrator of the offense. According to She ila Bush, on the evening of August-7-

16, 1988, the defendant told her tha t they needed money and that he knew “a woman he could knock in the head and get some money,” but he would not tell Shelia Bush the name of the woman nor the location of her home. The defendant removed a piece of wood from the frame around his wife’s bedroom door and directed his wife to drive him to an area in the Silver Point community. Once there, he got out of the car and tol d her to come back in twenty minutes. After driving to Center Hill Dam, Shelia Bush returned to find the defendant standing in the road. He had his shirt off and was covered with blood. As he got into the car, he excitedly told hi s wife that he had “kill ed her.” The defendant said he had “stabbed her with a knife” and that he had cut his hand wide open. At the defendant’s directions, Sheila Bush drove to a boat ramp near the dam, where the defendant threw his shirt, some pieces of wood, a knife and a pai r of sunglasses into the lake. He then wa shed off the blood that was on him.
The next day, according to Sheila Bush, the defendant told her how he had killed Lefever, how he knocked on the door as the vi ctim spoke on the phone, how she let him in once she recog nized him, and how he had s truck her in the head with the stick and caus ed her to fall. The defendant said that the victim told him to “get a hold of himself.” When Lefever indicated that there was someone in the back of the house, the defendant searched the h ouse. Finding no one there, he removed his shirt, wrapped it around his hand, and as he came back through the kitchen, took a knife out of the kitchen drawer. He took the knife into the den and stabbed Lefever thirty or forty times. The defendant demonstrated h ow he had killed Lefever by hav

ing his wife lie on he r stomach on the floor as he pretend ed to stab her in the head and the back. The defendant, a karate student and-8-

enthusiast, also told his w ife that he practiced karate on Le fever. The next instant, however, he told his wife that he was “jus t kidding” and that Jacki e Maxwell had killed Lefever. Sheila B ush explained that she had not r eported this information earlier because the defendant told h er that the Mafia was w atching her and that something would h appen if she m entioned anyth ing.
Physical evidence s upported the statement of Sheila Bush. Going to the spot where the defendant had alleg edly thrown away the murder weapon, Tennessee Bureau of Investigati on (T.B.I.) divers rec overed a knife from the waters of Center Hill Lake. Lefever’s grandson identified the knife as one his grandmother kept in a draw er next to the kitchen si nk. A forensic scientist, who had analyzed the two p ieces of wood discover ed in Lefever’s den, testified that they came from the top of a bedroom doo r in the trailer belonging to Sheila Bush’s mother. A T.B.I. serologis t testified that the blood found on the r ug in the hallway and kitchen floor was consi stent with that of the defendant. Onl y two percent of the Tennessee population have this blood-type.

Other witnesses tied the defendant to the killing. J ames Mullins, a friend of the defendant, testified that on the day after Lefever’s body was found, the defendant brought a newspaper reporting the discovery of the body to Mullins’ house. The defendant was excited and grinning, “all

wound up like a kid that had too much Kool-Aid.” Two of defendant’s fe llow inmates at the Putnam County jail, Jimmy Myers and William Roger Moore, testified that the defendant tol d them he had killed the victim. According to Myer s, the defendant said that his w ife had taken him to Lefever’s house to borrow or get some money and, when the-9-

defendant could not find any money, he stab bed Lefever to death. After this first account, however, the defendant kept changing his stor y because, the defendant said his lawyers had told him that people in the jail might be witnesses against him. The defendant also told Myer s that he would try t

o make people think he was crazy. The s

econd inmate, William Roger Moore, testified that the defendant discussed the crime “at l ength” with him. The defendant s aid that he had gone to Lefever to get some money becau se he had borrowed money from h er in the past. An argu ment eru pted, he lost hi s temper , and stabbed her repeatedly wi

th a kni fe he had taken from the kitchen. The defendant als o told Moore that he was “ going to make a ploy for craziness.”
The defendant did not testify nor did he of fer any evidence at the guilt phase of the trial. Based on the pr oof presented at the guilt phase, the jury found Bush guilty of premeditated first degree murder.
The State presented no additional pr oof during its case-in-chief at the sentencing phase of the trial,but instead relied upon the ev idence presented during the guilt phase.
Through the videotaped deposit ion testimony of his grand mother and the live testimony of his father, sister, and uncle, the defendant pr esented evidence of his childhood and alleged ment al illness. The defendant was the second of three children. His father, a Vi etnam War veteran, was a truck dri ver, who abused alcohol and was away

from home for long periods of time w hen the defendant was young. His father phy

sically abused the defendant’s mother and singled out the-10-

defendant, who was particul arly strong-w illed, for strict disc

ipline, beatings and whippings. The defendant w as placed on Ritalin, a medic ation for hyperactivity, at a very young ag e. At the age of three or four, he began sniffing gasoline. At the age of ten, he seriously injured his head in a bicycle accident. Afterwards, his personality seemed to chang e; he became nocturnal, distant and quick tempered. He was involved in fights at school. He expressed the wish to die, heard voices, suffered from ni ghtmares, d rew pictu res of demons a nd monsters a nd became fascinated with death and twins. In 1987 the def endant dropp ed out of high school before completing his senior year. In Mar ch of 1988, his mother was diagnosed with terminal colon cancer. In May and June of 1988, he attempted suicide by overdosi ng on Tylenol and Advil . At that time he was referr ed to the Plateau Mental Health Center for treatment.
Following his arrest in September of 1988, the trial court, upon the request of his court appointed attorney , referred the defendant to the Middle Tennessee Mental Health Institute ( M.T.M.H.I) for a competency and sanity evaluation.Three members of the evaluation team, a social worker, Rebecca Jane Sm ith, Dr. Gillian Blair, a cli nical psychologist , and Dr. John Cain, a psy chiatrist, testified that they had diagnosed the defendant as suff ering from schizophrenia paranoid subtype sub chronic, an adj ustment disorder, and substance abuse (inhaling solvents). Dr. Bl air opined that the schiz ophrenia had begun before the defend ant’s adm ission to M.T.M.H. I. Dr. Cain said that the def endant h ad shown symptoms of schizophrenia beginning in high sc hool. The evaluation team administered tests to determine whether Bush was malingering. Dr. Blair administered an “M” test, the results of which ind icated that Bush was-11-

schizophrenic and not mali ngering. In addition, Dr. Cain administered sod ium amitol, popularly know

n as truth serum. Accordin g to Dr. Cain, under the influence of that drug, Bush’s psychotic symptoms became even more pronounced which indicated that Bush was not malingering. The W exler Adult Intelligence Test showe d that the defendant had a full scale I.Q.of 96.
In rebuttal the State presented t wo members of the M.T.M.H.I tr eatment team who had worked w ith the defendant from May to Augus t of 1991 when he was again admitted for tr eatment and evaluation. One of these, Dr. Zillur Athar, a psychiatrist, testified that the defendant was not activ ely psychotic at tha

t time but malingering. Dr. A

thar diagnosed defendant as suffering from borderline personality disorder. Edean Gerdes, coordinator for the treatment ward, said that she had observed the defendant reading books abo ut vampires, which he said had been given to him by his lawyers.
The State also presented a deputy with the Putnam Count y sheriff’s department who had transported the defendant to mental health instituti ons on several occasions. H e testified that in 1989 the defendant told him “some of the doctors were easy t

o fool.” At a later time, the defendant told the deputy that a lot of the doctors were foreign ers and asked silly q uestions. The defendant’s former mother-in-law testifie

d that in 1988, when the defendant w as married to her daughter, he was normal, intelligent and quick tempered. She had never observed any bizar

re behavior on his part . A high school friend of the defendant testified that Bush had been a normal, happy person. On cross-examination, however, he admitted tel ling the assistant dis trict attorney in 1989 that in 1988 the5 The jury was i nstructed t o consider t he foll owing miti gating ci rcumstances: (1)T he de fend ant h as no signif ican t histo ry of pr ior cr imin al act ivity; (2) The murder was committed whil e the defendant was under the i nfluence of ext reme mental or emotional di sturbance. Ext reme mental or emotional disturbance is a temporary state of mind so enraged, i nflamed or dist urbed as to over come one’s judgment and to cause one to act fr om the compelling for

ce of the di sturbance rat her than for evil o r malicious p urposes. It is not a mental disturbance in it

self and an enr

aged, infl amed or disturbed emoti onal state does not constitute an extrem e em otional distur bance unless th ere is a rea sonab le explan ation or ex cuse fo r it; (3) The youth of the defendant at the t ime of the cri me; (4)T he ca pac ity of the defe nda nt to a ppre ciate the w rong fulne ss o f his c ond uct o r to co nfor m h is conduct to t he requirements of the law was subst antial ly i mpaired as a result of mental il lness or defect or i ntoxicat ion which was i nsuffici ent to establish a def ense to the cr ime but which substa ntially affected his judgm ent; (5)T he de fend ant w as s ubje cted to ph ysica l and/ or ps ycho logica l abus e or c ruelty d uring his formative y

ears; (6)That the def

endant has conside rable poet ic abil iti es; (7)That the def

endant can be tr

eated in a prison sett ing; (8)That at a v

ery early age the def endant exhibi

ted signs of

mental or emotional disturbance

that went untreat

ed; (9) That the defendant was i mmature for his age and l acked the normal emotional development at the ti me of the commission of the offense; and (10) Any ot her mitigat ing factor which is r

aised by t he evidence produ ced by eit her the prosecut ion or defense at ei

ther the gui lt or sent

encing heari ng. That is, you shall consider any

aspect of the defendant’s character or record or any aspect of the circumstances of t he offense favor able to t he defend ant which is suppo rted by the e vidence

. -12- defendant had begun to act strangel y and talked about dreams of men ki lling people in the Silver Poi nt area.
Based on the proof, the jury dete rmined that the State had proven the existence of two agg ravating circumstan ces beyond a reasonable doubt ( 1) “[t]he murder was especially

heinous, atrocious or cr uel in that it involv

ed torture or serious physical abus

e beyond that necessary t o produce death;” and (2) “[t ]he murder was commi tted for the p urpose of avoid ing, interferin g with or preventing a lawful arrest or pros

ecution of the defendant or another.” Tenn. C ode Ann. § 39- 13-204(I)(5) and (6) ( 1991). In addition, the jury found that the aggravating circumstances outweig hed the mitigating cir cumstances 5 beyond a reasonable doubt and, as a result, sentenced the defendant to death by electrocution. The trial court entered a judg ment in accordance with th e verdict and the Court of Criminal Appeals affirmed. After reviewing the record and considering the errors-13-

alleged by the defendant, w e affirm the judgment of the trial cour t and Court of Criminal Appeals. 

### I . MOTION TO SUPPRESS Prior to trial, defense couns el moved to suppress a ser ies of statements given by Bush to pol ice officers on September 25, 1988, all eging that the statements were obtained in violation of the defendant’s ri ghts under the Fifth Amendment to the United States Consti tution and Article I, Secti on 7 of the Tennessee Constitution. First, Bush alleged that he was not given warnings in accordance with Miranda v. Arizo na , 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966), before he gave the fir st tape-recorded statement ev en though he was subjected to custodial interrogation. As a result, Bush urged that the initial and all subsequent statements were tainted. Alternativel

y, Bush asserted that the w aiver of his rights giv

en prior to the second inter view was not v

alid because he was mentally ill and not competent to knowingly and intelligently waive his Miranda rights. Finally , Bush contended that the officers conti nued to question him after he invoked his Fifth Amendment ri ght to counsel.
An evidentiary heari ng was held on the motion t o suppress. Sheriff Abston testified that on Sunday, September 25, 1988, he was contacted by his office that Larry Bush wanted to br ing his son to the jail

to discuss the Jodie Lefever homicide. Defendant, along with his father, met Sherif f Abston at the county jail around 1:30 p.m. Larry Bush told Sheriff Abston that the defendant want ed to make a statement that he was with the people who murdered Lef ever. Because-14-

the jail was crow

ded with visitors

on Sundays, and because Bush in dicated that he also had information about an unrelat ed homicide that had occurred i n the city of Cookeville, Sheriff Abston as ked the defendant and his father if they w ould be willing to go w

ith him to the Cookevill e police station to discus s the case. They agreed. Larry Bush r

ode in the front passenger seat of a deputy sheriff’s patrol car and the defendant rode, unrestrained, in the back seat of the same car.
At approximately 2:47 p.m. , officer Bob Terry, Sheriff Abston, and the defendant entered an investigat or’s office, where the defendant g ave a taperecorded statement, admitting his presence during the mur der of Lefever, but denying his invol

vement in the crime. Essentially, Bush told law enforcement officials that he had received a phone call, in which the unknown caller threat ened to harm his family if he did not follow the caller’s i nstructions. Bush believ ed the caller, and as instructe d, went to Lefever’s home w here he was met by four unknown hooded men who forced him to knock on the doo r so they could gain entry to Lefever’s home. Bush recounted how the hooded intruders beat and eventually murdered Lefever.

When this interv

iew ended, Sheriff Abston and Officer Ter

ry left the room, and were approached in the hal lway by Deputy Doug Burgess and T.B.I. ag ent Larry O’Rear wh o told them that Shelia Bush, the defendant ‘s wife, had given a statement at the Putnam County sher iff’s office in which she had impl icated Michael Bush and said that he had admitted to her that he had kil led Lefever. Upon receiving this

information, Sheriff Abston testified that he then considered the defendant to be a suspect in the hom icide. Bush was given his Miranda-15-

warnings for the first time at approximately 4:17 p.m. He signed a waiver of those rights, and a second tape-recorded interview was conducted during which Bush basically repeated the information given in his first statement. In additio n, Bush described the position in w hich Lefever was ly

ing when he left her home, and h e told officers that, at the direction of the hooded men, he had disposed of the pieces of the stick used to beat L efever and a knife near a boat ramp on Center Hill Dam. This second i nterview ended when B ush and Officer Terry beca me involved in a heated discussion about the defendant’s involvement in the murder.

A third interview

began at approximately 6:04 in which Bush gav e a statement about the unrelated Cookev ille homicide. Howev

er, Bush requested an attorney during this

session and the police officers testified that all questioni ng then ceased.
David Brady, the attor

ney appointed to represent Bus h after he requested counsel testified that the tri al judge contacted him around 10:00 p.m. and he saw Bush at approximately 11:00 p.m. According to Brady, Bush was strangely calm and detached and his answers to questions were v ague and non-specific. Brady considered Bush’s behavi or unusual and requested a psy chiatric evaluation.

Dr. Blair, the clini cal psychologist w ho had examined Bush in early 1989 when he was first refer red to M.T.M.H.I. for a competenc y evaluation also tes

tified at the suppression hearing . Dr. Blair opined, base d upon her examinations of the defendant and review of the taped s tatements, that the defendant was suffering from paranoid schizophrenia when he executed the w aiver of his rights prior to the-16-

second tape-recorded interv iew and that the waiv

er was not “a product of r ational reasoning.”

Law enforcement officials who conducted the inte rviews with Bush all testified that he was coherent and responsive to ques tioning and appeared normal. Bush did not, accordi ng to the officers, discuss demons , vampires, or other delusions. In addition , Sheriff Abston testified that neither the defendant nor Larry Bush indicated that there was any probl em with the defendant’s mental condition at the time he came in t o give the statement.
Upon considering the proof, the trial judge denied the motion to suppress finding that (1) Bush w as not entitled to Miranda warnings prior to the initial interview because he was not subjected to custo dial interrogation; (

2) Bush was not a suspect in the mind of Sheriff Abston until after the conclusion of the i nitial interview; (3) Bush was advised of his Miranda rights bef ore the se cond inte rview; and knowingly and i ntelligently w aived those rights; a nd (4) Bush was not questioned further after he inv oked his Fifth Amendment right t o counsel. The trial court’s denial of the motion was affirmed by the Court of Criminal Appeals.
A. Custodial Interrogation Defendant first urges, in thi s Court, that the statements sho uld have been suppressed because he was not advised of his Mirandawarnings even thou gh he was in custody when he gave the first tape-recorded statement. In reviewing this issue, we are mindful that an appellate court must uphold a tr ial court’s findings of fact in a suppression hearing unless the evidence in th e record preponderates-17-

against those findings. State v. Odom , 928 S.W.2d 18, 23 (T enn. 1996).
We begin our analysis of this issue w ith the Mirandadecision in which the United States Supreme Court hel d that a defendant’s statements giv en during custodial police interr

ogation are inadmissible as evidence in the State’scase-inchief unless the State establishes that the def endant was advised of certain constitutional rights

and waived those rig hts. Specifically, Mirandarequires police to inform the person being ques tioned that (a) he has the ri ght to remain silent; (b) any statement made may be used as evidence against him; ( c) he has the right to the presence of an attorney; and ( d) if he can not afford an attorney, on e will be appointed for him prior to ques tioning, if he so desires. Id ., 384 U.S. at 444, 86 S.Ct. at 1612.
However, police officers are only obligated to administer Mirandawarnings prior to “custodial i nterrogation” whic h has been defined as a “formal arres t or restraint on freedom of movement of the degree associated with a formal arrest.” Stansbury v. California , 511 U.S. 318, 114 S.Ct. 1526, 1529, 128 L.Ed.2d 293 (1994). The United States Supreme Court has held that it is appropriate to apply an objective test to determine whether a person is in custody and therefore entitled to receive Mirandawarnings. Courts must consider the totality of the circumstances of the interrogation and inquire “how a reasonable man in the suspect’s position would have understood his situation.” Berkemer v. McCarty, 468 U.S. 420, 422, 104 S.Ct. 3138, 3151,82 L.Ed.2d 317 (1984); see also Stansbury , 511 U.S. at ___, 114 S.Ct . at 1529. The United State s Supreme Court has emphasized, how ever, that “any inq uiry into whether the interrogating-18-

officers have focused their suspi cions upon the individual being questioned (assuming those suspici ons remain undisclosed) is not relevant for purposes of Miranda .” Stansbury , 511 U.S. at ___, 114 S.Ct. at 1530

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

adopted the ob

jective an alysis emp loyed by the United Sta tes Supreme Court and rejected as irr elevant to the determination o f custody any inquir

y into the subjective beliefs of law enforcement off icials about the culpability or guilt of the person being questioned. We ad opted several nonexclusive factors to aid in the objective assessment of whether a reasonable person would consider him self or herself deprived of freedom of move ment to a degree associated w ith a formal arrest. Relevant factor s include (1) the time and l ocation of the interrogation; (2) the duration and character of the q uestioning; (3) the officer’ s tone of voice and general demeanor; (4) the method of transportation to the place of q uestioning; (5) the number of po lice officer s present; (

6) limitati ons on moveme nt or other fo rms of restraint imposed during the interrogation; (7) interactions between the officer and the person being questi oned, including the wor ds spoken by the officer and the verbal or nonverb

al responses of the person being questioned; (8) the ex

tent to which the person being questioned is confronted w ith the officer’s suspicions of guilt or evidence of g uilt; and finally (9) the extent to which the person being questioned is aware that he or she is free to refrain from answering questi ons or to end the interview at will. Anderson , ___ S.W.2d at ___.
Considering the totality of the circumstances, including the factors delineated in Anderson , the evidence in this record does not preponderate against-19-

the lower courts’ finding that Bush was not in custody when he was initially interv iewed b y law enforcem ent officials. B ush ini tiated the conta ct wit h Sherif

f Abston. He asked his father to go with him to the Putnam County Sheriff’s office. Indeed, Sheriff Abston was called from the golf course on a Sunday by his office to meet Bush. He voluntarily sought to give information about the murder of Jod ie Lefever. Bush and his father ag reed to accompany Sheriff Abston to the Cookeville police depa rtment to further discuss the c ase. Although Bush was transported to the Cookevi lle police department in a pat rol car, he was not restrained, and his father rod e along in the front seat of the same c ar. Bush was not restr ained up on arrival a t the poli ce statio n nor duri ng the int erview. Only t wo officers were present duri ng the initial interv iew, and they did not ac cuse Bush of the crime or question the t ruth of his story. Indeed, Bush did most of the talking and seemed eager to give the statement, with the officers asking very few questions. While Bush was not told that he was free to leave, h e was also never told that he could not

leave, an d he did no t at any po int attem pt to leave . Finally, even assuming, as the defense argues, that law enforcemen t officials were aware of Shelia Bush’s statement and consi dered the defendant a suspect from the moment he arrived at the sher iff’s office, that has no bearing on the determination of whether Michael Bush w as in custody. The undiscl osed knowledge or suspicions of law enforcement officials are irrelevant to the questio n of whether a reasonable person in the position of Michael Bush would have considered h imself deprived of freedom of movement to a degr ee associated with a formal arrest. The evidence in the record does not preponderate against the trial court and Court of Criminal Appeals’ determin ation that Bush was not in custody during the ini tial interview. Therefore,this issue is without merit.-20- B. Waiver of Rights Bush next contends that the sta tements resulting from the sec ond, and any subsequent interview

s, should have been suppress ed because he presented expert testimony at the suppression hearing that h e was not competent to make a knowing and intelligent waiver of his Miranda rights. Essentiall

y Bush argues that because the State did not offer exper t proof on his mental condition, the validity of the waiver was not established. As support for his argument, the defendant reli es upon State v. Hammock , 867 S.W.2d 8 (Tenn. Crim. App. 1993). In that cas e, defendant presented unequivocal expert testimony to establish th at he was legally insane at the time he committed the mur ders. Rather than presenti ng expert proof to contradict the defendant’s cla im, the State relied upon lay witnesses who testified to the defendant’s appe arance and actions. Under those circumstances, the Court of Criminal Appeals reversed the defendant’s conv ictions finding that the State had failed to prove sanit y beyond a reasonable doubt.In Hammock , therefore, the Court of Criminal Appeals was concerned w ith the sufficiency of the evidence to establish the offense. No waiver iss ues were involv ed.
Contrary to the defendant’s as sertion, Hammock should not be read as establishing the broad pr oposition that the State must introduce expert proof that a waiver was kn owingly and intel ligently executed whenever a defendant introduc es expert testimony to the contrary. Unlike the element of sanity in Hammock which required p roof beyo nd a reaso nable do ubt, the State ne ed only pro ve waiver by a preponderance of the evidence. Colorado v. Connelly , 479 U.S. 157, 173, 107 S.Ct. 515, 523, 93 L.Ed.2d 473 (1986) . In determining whether the State has satisfied that burden of proof, courts must look to the totality of the circumstances.-21-

State v. Middlebrooks , 840 S.W.2d 317, 32 6 (Tenn. 1992). Applying those principles, the trial court in this case concl uded that the waiver w as valid. The evidence does not preponderate against that finding.
Even assuming, as Dr.Blair testified, that Bush ex ecuted the waiver because he was suffering from par anoid schizophrenia, that fact does not render the waiver inva lid. The United States Supreme C ourt in Connelly , supra , refused to adopt a “free will” rule that would require a court to find a waiver invalid whenever a defendant feels compell ed by a mental illness to waive his rig hts. In so holding, the Court sta ted Miranda protects defendants against g overnment coercion leading them to surrender rights protected by the Fifth Amendment; i t goes no further . Respondent’s perc eption of coercion flowing from the “voice of God,” howev

er important or signific

ant such a perception may be in other discipli nes, is a matter to whic h the United States Constitution does not speak. Connelly , 479 U.S. at 174, 107 S.Ct. at 524.Here, as in Connelly , there is no proof of police overreaching. Law enforcement off icials testified that Bush appeared normal, was coherent and responsive to ques tioning, and did not discuss demons, vampires, or other delusions. Therefore, in the absence of police overreaching, the trial court and Court of Criminal Appeals did not err in upholding the validity

of the waiver, even assuming that the defendant’s decis ion to execute the waiver could have been influenced by mental illness.

C. Right to Coun sel In his final argument for suppre ssion of his statements defendant contends-22-

that the Court of Criminal Appea ls mistakenly charact erized his right to counsel cl ai m a s a n a ll eg ed vi ol at io n of t he Si xt h r at he r t ha n t he

Fi ft h A me nd me nt . We disagree. The Court of Cri minal Appeals simply noted that the Sixth Amendment right to counsel does not a ttach until after formal proceedin gs have begun. The intermediate court then recog nized the applicabilit y of the Fifth Amendment right to counsel. The Court of Crimi nal Appeals concluded that w hen the defendant invoked his Fifth Amendment ri ght to counsel, questioni ng ceased and an attorney was appointed. The Court of Criminal Appeals therefo re affirmed the trial court’s finding that no violation of the defendant’s Fifth Amendment right to counsel occurred. The evidence in the record does not preponderate against that finding. This issue is without merit.



### II. SUFFICIENCY OF THE EVIDENCE Relying upon State v. B rown , 836 S.W.2d 530 (Tenn. 1992), defendant next contends that the trial court and Court of Criminal Appeals erred in finding the evidence sufficient to establish premeditation an d deliberation. In considering this claim, we apply the famil iar rule that where the sufficiency of the convicti ng evidence is challenged, the relevant question for an appellate court is whether, after reviewing th e evidence in the light most favorable to the State, any rational trier of fact could have found the defendant guilty beyond a rea sonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cazes , 875 S.W.2d 253 (Te nn. 1994).6 That s tatute has now be en replac ed by Te nn. Cod e Ann. § 39-13-2 02(a)(1 ) (Supp . 1996). -23- At the time the offense was committed, p remeditated first degree murder was defined as the “wil lful, deliberate, malicious and premeditated killing o f another.” Tenn. Code Ann. § 39-2-202(a)(1) (Supp. 198 8). 6 In Brown , supra , we stated that premeditation and deli beration are not synony mous terms. While the existence of both elements may be established by circumstantial evidence alone, premeditation requires pr oof of a previous intent to kil l, while deliberati on requires proof of a “cool purpose” that inc ludes some period of reflection dur ing which the mind is free from passion and excitement. Id . at 539.
With respect to deliberation, the proof show s that the defendant announced to his wife

that he knew

“a woman he could knock in the head an d get some money.” Since Bush was acquainted with Lefever, he necessarily knew she was a frail, elderly lady. Despite that knowledge he took a board with him to her house to accomplish his stated intention. Evidence of procureme nt of a weapon is probative to prove pr

emeditation. Brown , 836 S.W.2d at 541. Af ter Bush broke the board by striking

the victim with i

t, he did not end the assault but pr ocured a second weapon, the butcher kni fe, from the kitchen and proceeded to stab Lefever forty-three times down the side of her head and on he r back.
With respect to deliberation, the evid ence shows that before opening the drawer to obtain the butcher knife, Bush removed his shi rt and wrapped his hand in what reasonably c

an be inferred to be an attempt to av oid leaving fingerpr

ints. After stabbing Lefever forty -three times, Bush maintained the presence of mind-24-

and took the time to collect the broken board. He walked back to the designated place an d met his wi fe, and from the re he imm ediatel y directed his wife to drive him to Center Hill Lake where he disposed of the evidence. These fa cts are sufficient to establish that the k illing was committ

ed with deliberation and in the absence of passion. State v. West , 844 S.W.2d 144, 14 8 (Tenn. 1992).
Considering the proof in thi s record in the light most favorable to the State, as we are required to do, we agree with the Court of Criminal Appeal s that the evidence is sufficient to est ablish premeditation and deliberation.



### III. REBUTTAL PSYCHIATRIC EVIDENCE Defendant next contends that the tes timony of Dr. Athar, a psy chiatrist who had treated defendant in 1991 while he was a patient at M.T.M. H.I, and Endean Gerdes, the treatment coordinato r at M.T.M.H.I., introduc ed at the sentencing hearing by the State to r ebut the mitigating ev

idence that the defendant was mentally ill, was

obtained in violation of hi s Sixth Amendment right t o counsel and his Fifth Amendment right to r emain silent.

In Estelle v. Smith , 451 U.S. 454, 101 S.Ct. 1866, 68 L. Ed.2d 359 (1981), the United States Supreme Court held that the Fifth Amendment right against compelled self-incriminati on precludes the State from subjecting a capital defendant to a psychiatric ex amination concerning future dang erousness without first informing the defendant that he has a right to remain sil ent and that anything-25-

he says can be used agains t him at the sentencing proc eeding. Id ., 451 U.S. at 471, 101 S.Ct. at 1872-76. Once a c apital defendant is formally cha rged, the Sixth Amendment right to counsel precludes such an examination unle ss defense counsel is first notified that the psychiatric ex amination will encompass the issue of the defendant’s future dangerousness. Id ., 451 U.S. at 471, 101 S.Ct. 1877;
see also Powell v. Texas , 492 U.S. 680, 109 S.Ct. 3146, 106 L. Ed.2d 551 (1989). When a capital defendant asserts a mental status defense, ho wever, he waiv

es the right to raise a Fi

fth Amendment challenge to the prosecution’s use of evidence obtained through the psychiatric exami nation to rebut the defense. Buchanan v. Kentucky , 483 U.S. 4022, 422-23, 107 S.Ct. 2906, 2917, 2918 (1987). Likewise, the

United States Supreme Court ha s stated that there is no Sixth Amendment violation where defense counsel requests the psychiatric evaluation and is on notic e that if a mental status defense is pr esented, psychological ev

idence will be used by

the State in rebuttal. Id

.
Applying those principles to the facts in this case, we agree with the Court of Criminal Appeals’ conclu sion that the State’s rebuttal testimony was appropriately introduc

ed. Defense counsel requested the first mental evaluation in this case and was noti fied of each subsequent psychiat ric evaluation whi ch was court ordered at the reques t of either the defendant or the State. B ush relied upon his mental status at the time of the of fense as a mitigating circumstance in the penalty phase of the trial.Accordingly, int roduction of the rebuttal testimony did not violate the defendant’s Fifth or Sixth Amendm ent rights.



### IV.-26- LIFE IMPRISONMENT AND PAROLE ELIGIBILITY Approximately fifteen minutes after deliberations began in the sentencing phase of this case, the jury sent a note to the trial court asking, “How many years does the [defendant] serve if he gets life imprisonm ent and how long before parole?” Counsel for Bush r equested that the jury be instructed that under present law the defendant would have to serve a minimum of thirty calendar years before becoming eligible for parole. In addition, counsel requested that the jury be instructed that a life sentence is literally a l ife sentence since Bush has no absolute legal right to parole even though he might at some point become parole eligible. The trial j udge denied defense counsel’s req uest, and instead, instructed the jury that “parole e ligibility is not an issue in a capital c ase. . . .” The Court of Criminal Appeals affirmed the tr ial court’s action.
Relying upon a recent United States Supreme Court dec ision, Simmons v. South Carolina , ___ U.S. ____, 114 S.Ct. 1392, 129 L .Ed.2d 133 (1994), the defendant contends in this Court th at the trial court’s r esponse to the jury ques tion violated his right

to Due Process. We disagree.

In Simmons , the prosecution was al lowed to argue future dang erousness to the jury as a basis sup porting imposition of the death penalty. Simmons sought to rebut the prosecution’s g eneralized argument in two ways. Fi rst, he attempted to introduce proof that due to his unique psychological problems, his fu ture dangerousness was li mited to elderly women and would not be a threat in a prison setting whe re he would have no co ntact with such indi viduals. S econdly, Simmons sought to introduce pr oof that under South Carolina law , he would not-27-

be eligible for parole if sentenced to life imprisonment and ther efore would never pose a future danger to elderly women. The trial judge refused to allow Simmons to offer any rebuttal proof of his par ole ineligibility

and also refused Simmons requested jury inst ruction defining a life sentenc e as “imprisonment in the stat e penitentiary for the balance of his natural life.”
After deliberating ninety minutes on the appropriate sentenc e, the jury sent a note to the judge asking,“Does the imposition of a life sentence carry with it the possibility of parole?” Over Simmons’ objection, the trial judge instructed the jury “not to consider parole or parole eligibility

in reaching your v

erdict. That is not a proper issue for your co nsideration. The terms life impr isonment and death sentenc e are to be understo od in the ir plan [si c] and ord inary mea ning.” Twe ntyfive minutes later the jur y returned to the courtr oom with a sentence of death.
On appeal to the United States Supr eme Court, Simmons claimed that the trial court’s refusal t

o allow proof or instru ction about his parole inel igibility vi olated his rights under the D ue Process Clause. A major ity of the Court in Simmons agreed and held that “wher e the defendant’s future dangerousness is at issue, and state law prohibits

the defendant’s release on parole, due process requires that the sentencing jury be informed that the defe ndant is parole ineligible.” Simmons , ___ U.S. at ___, 114 S.Ct. at 2190 . If parole is an option for a defendant sentenced to life imprisonment, h owever, the Simmons Court emphasi zed tha

t it wi ll not second-g uess the refusal of a State

to allo w proof , instruction, or argument to the jury on the avai lability of parole. Simmons , ___ U.S. at ___, 114 S.Ct. at 2196; see also Simmons , ___ U.S. at ___, 114 S.Ct. at7 We also note that unl ike Simmons , the tr ial j udge in thi s case appropria tely did not al low the State to argue fu ture dan gerous ness to the jury as a basis for impos ition of the de ath pena lty. At one point

during t he closing ar gument prosecution cou nsel commented, “It’s not going t o protect the other Jodi e Lefevers of t he world.” Defense counsel i mmediately object ed and the tr ial j udge sustained t he objecti on.

8 Effectiv

e July 1, 1993, the ava ilabl e punishments for fi rst degree murder ar e now (1) death; (2)imprisonment for l ife wit hout possibi lit y of parol e; or (3) imprisonment for l ife. Tenn. Code Ann. § 39-13-202 ( b) (1996 Supp.) . Prior to that enactment, the onl

y avail able punishment opt ions for fir st degree murder were deat h and lif e with t he possibil ity

of parole. Another part of the recent legisl ative enact ment requires t hat juror s now be instr ucted “that a defendant who re ceives a sentence of i mprisonment for life shall not be eli gible f or parole consi deration u ntil the defendant has served at l east twenty -five (25) full

calendar y

ears of such sentence. ” In addi tion, jurors must be informed that

“a defendant who r

eceives a sent ence of imprisonment for life without possibil ity of parole shal l never be el igibl e for rel ease on parole. ” Tenn. Code Ann. § 39- 13-204(e)(2) (1996 Supp.). -28- 2200 (O’Connor, J., concur ring) (“In a state i n which parole is av ailable, the Constitution does not require (or preclude) jury consideration of that fact.”)

Since Te nnessee

is a sta te in which defe ndants sentenced to life imprisonment are eligibl e for parole, Simmonsdoes not require that the j ury be given info rmation about pa role avail ability. 7 Indeed, the trial c ourt’s ref usal to give defendant’s requested response to the jury question w as entirely consistent with prior decisions of this C ourt holding that the after-effect of a j ury’s verdict, such as parole availability , is not a proper instruc tion or consideration for the jury during deliberations. State v. Caughron , 855 S.W.2d 526, 543 (Tenn. 1993); State v. Payne , 791 S.W.2d 10, 21 (T enn. 1990). 8 Accordingly, w e conclude that the trial court did not err by r

efusing to respond to the jury ’s question as the defendant requested.



### V. MURDER TO PREVENT ARREST - A GGRAVA

TING CIRCUMSTA

NCE (I)(6)-29- With respect to this issue, def endant first argues that, if interpreted to apply under the facts of this case, the ag gravating circumstance, “the murder was committed for the purpose of avoidin g, interfering with, or preventing a l awful arrest or prosecution of the d efendant or another” violates the narrowing pri nciples adopted by a majority of thi s Court in State v. Middlebrooks , 840 S.W.2d 317 (Tenn. 1992). The only basis for finding the aggravating circumstance in this case, according to the defendant, is the theory that he kil led the victim to prev ent his arrest for killing her, a theory and circumstance arguably present in every first degree murder in which the victim knows the murderer. Defendant urges this Court to adopt a narrowi ng construction of the agg ravating circumstan ce and find the evidence in this cas e insufficient to support its appl ication.
This Court has previously held that to establish the applicability of this aggravating ci rcumstance, the State must prov e that avoidance of prosecution or arrest was one of the purpose s motivating the kil ling. State v. Smith , 868 S.W.2d 561, 581 (Tenn. 1993). We have refused to narrow the application of the circumstance to only thos e killings whic

h are solely or predomi nantly motivated by a desire to avoid arres

t or prosecution. State v. Carter , 714 S.W.2d 241, 250 (Tenn. 1 986) (avoi dance of arrest ne ed not be sole moti ve for mur der). W hile we agree with the defendant that the aggravating ci rcumstance logically can not and does not apply when the onl y theory advanced by

the State is that the vic tim was killed to prevent t he defenda nt from being a rrested or prosec uted for the ki lling, we do not agree that w as the only theory adv

anced by the State and supported b y the proof, in this record.-30- Indeed, as the Court of Criminal Appeals observed, the ev idence supports the conclusion that the vi ctim was killed to pr event the defendant’s apprehension and prosecution for the separate offense of bur glary of which the defendant was convicted . The proof sho ws that the

defendant inte nded to “get ” money from a victim with w

hom he was well-acq uainted. By refusing to r eveal the residence or identity of the intended vi ctim to his wife, the defendant w as obviously attempting to avoid having any

one witness the crime. By his own statement, th e defendant admitted that the victim recognized him. The proof theref ore supports the jury’s finding that one purpose of the murder was to avoid prosecution or arrest. See also State v. Smith , 857 S.W.2d 1, 14 (Tenn. 1993); State v. Evans , 838 S.W.2d 185 (Tenn. 1992); State v. Thompson , 768 S.W.2d 239 (Tenn. 1989); State v. Irick , 762 S.W.2d 121 (Tenn. 1988); State v. Coe , 655 S.W.2d 903 (Te nn. 1983).

The facts of thi s case are di stinguish able from State v. Branam , 855 S.W.2d 563 (Tenn. 1993), on which the defendant reli es. In Branam , the proof showed that the killer was a person whom the v ictim did not know, and the defendant, whom the victim knew, remained out of the victim’s sight. Therefore, there was no proof that the v ictim could have identified the triggerman or the defendant, and therefore, no proof that one purpos e motivating the kill ing was avoidance of prosecution or ar rest.
Application of the aggrav ating circumstance also does not violate the
narrow ing pri nciples

of Middlebrooks . In Middlebrooks , a majority of this Court held that when a defendant is convicted of the statut ory offense of felony murder, the felony murder aggrav ating circumstance, w

hich duplicates the elements of the-31-

underlying offense, does not suffici ently narrow the cl ass of persons eligible for the death penalty and can not be r elied upon as a basis for imposition of the death penalty.

In this case, the defendant was convicted of premeditated first degree murder which required the State prove, beyond a reasonable doubt, the willful, deliberate, malicious and pr emeditated killing of another.The State was not statutorily requi red to prove, as part of the offense, that one purpose motivating the killing was the avoidance of arrest or pr osecution. Therefore, the aggr avating circumstance does not duplic ate the elements of the underlying offense and sufficiently narrows the class of persons eligi ble for the death penalty. Cf

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

. Consequently, we dec

line the defendant’s invitati on to further limit applicati on of the aggravating c

ircumstance.



### VI. JURY INSTRUCTION

- AGGRA

VATING CIRC UMSTANCE (i)(5) In his final issue, the defendant conten ds that the jury was not properly instructed with respect to the remaining aggravating circumstances. Jodie Lefever was murdered in 1988. At the time of the killing , one of the aggravating circumstances upon whic h the State relied was defined by statute as “[t]he murder was especially hei nous, atrocious, or cruel in that it involv

ed torture or depravity

of mind.” See Tenn. Code Ann. § 39-2-203(I)( 5)(1982). In 1989, the statute w as amended and the aggravating circumstance redefined as “[t ]he murder was9 W e em pha size th at the reco rd in th is cas e ref lects that th e trial c ourt c ons cien tious ly app lied cu rren t and availa ble law to en sure that th is def end ant re ceive d a fa ir trial. -32- especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death .” Tenn. Code Ann. § 39-13- 204(I)(5)(1991)(emphasis added).

The trial of this defendant was hel d in February of 1993. The tri al court, without objectio n from the def ense or the Stat e, instructed th e jury in the language of the 1989 statute, rather than in ac cordance with the law

as it existed when the offense was committed in 1988. Under decisions of this Court r endered after

the trial of this case, 9 it is clear that the sent encing hearing should hav e been conducted in accordance wi th the 1988 law, the law in effect at the time of the commission of the offense. State v. Brimmer , 876 S.W.2d 75, 82 (T enn. 1994).
Therefore, instructing the j ury in the terms of the amended st atute was erroneous. The defendant argues that he is entitled to a new s entencing hearing which must be conducted in ac cordance with the law

in effect at the time the offense was committed. The State arg ues that the error was harmless and relies upon the decision of the Court of Cr iminal Appeals which hel d that the error was harmless beyond a reasonable doubt because the amended definition of the aggravating ci rcumstance “required a higher burden on the State to pr ove that the act involved tortur

e or serious physical

abuse.” While we do not agree wi th the intermediate court that the amended de finition imposed a higher bur den upon the State, we have determined,for the reasons explained bel ow, that the erroneous jury instruction is harmless beyond a reasonable doubt and does not “aff irmatively10 The entire sent encing heari ng in thi s case was conducted i n accordance wit h the 1989 law. Clear

ly, portions of that st

atute are ben eficial

to the defen dant in al l cases and i mpose a higher burden upon the St

ate. For example, the 1989 stat ute expli citl y requi res the Stat e to prove t he existence of aggravati ng circumstances beyo nd a reasonable doub t and must establ ish that the aggravati ng circumstances outwei gh mitigati ng circumstances beyo nd a reasonable doub t. Tenn. Code Ann. § 39-13-204( f) & (g) (19 91 Repl). I n contrast, the 1982 stat ute requir ed only a sh owing that ther

e were no mitigating cir cumstances suffici ently substanti al to out

weigh the aggr

avating circumstances. Tenn. Code Ann. § 39-2-203( g)(2)(1982 Repl .). I n additi on, unli ke the 1982 statute, the 1989 stat ute enti tles a defendant to i nstructi ons on non-stat utory mit igati ng circumstan ces. Tenn. Code Ann. § 39 -13-204( e) (1991 Rep l) & Odom , supra . Give n the over all benefits, it i s certainl

y conceivab le that

a defendant woul d prefer i nstructi ons in accordance with the 1989 statute. We again emphasize that the instruction now complained of as error was not challeng ed in the trial co urt. -33- appear to have affected the result of the trial on the merits.” Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a).
The 1989 version of the aggr avating circumstance is different from the 1988 version in that it s ubstitutes the phrase “seri ous physical abuse bey ond that necessary to produce death” for the phrase “depravity of mind.” The aggravatin g circumstance is redefined. U nlike the Court of Criminal Appeals, we consider th e amendment a substantive change w hich imposes not a different level of proof upon the State, but different factors of proof. Therefore, it is not accur ate to broadly characterize an instructional error such as that complained of on appe al in this case as beneficial to the defendant. 10 Depending upon the facts of the case, such an error could concei vably be beneficial to the State. We do not agree, however, with the defendant’s argument that such an er ror always req uires reversal and may nev

er be harmless. The defendant’s rel iance upon State v. Stephenson , 875 S.W.2d 530 (Te nn. 1994) is misplaced. The circumstances in Stephenson were unique and are not present in this case. The jur y was instructed and returned a verdict i n accordance with 1988 law, though the offense was committed after the statute was amended in 19 89. The defendant was therefore-34-

deprived of the previousl y noted benefits of the 1989 law. When the error was called to the trial cour

t’s attention, the jurors were recalled, some tw o weeks after the trial, and questioned by the trial court to establish that the erroneous jury instructions had no impact on the verdict rendered, a procedure that was clearly inappropriate. Under such circumstances, this Cour t found that error required reversal. Unlik

e Stephenson , the instructional err or in this case is harml ess for two reasons.
First, this aggr

avating circumstance was sufficiently prov en by evidence of torture, independent of the deprav ity or serious phy

sical abuse prong of the aggravating ci rcumstance. State v. Hines , 919 S.W.2d 573, 587 (Tenn. 1995). The trial co urt correc

tly instr ucted the jur

y as to the d efinitions o f the terms “heinous,” “atrocious,”

and “cruel” in accordan ce with this Court’ s decision in State v. Williams , 690 S.W.2d 517, 529 (Tenn. 1985). Also in accorda nce with Williams , the trial court instr ucted the jury that “tor

ture” means “the infliction of severe physical or

mental pain upon the victim w hile he or she remains ali ve or conscious.” Id . The proof introduced by the State during the trial clearly established torture. The v ictim was initiall

y assaulted and knocked to the floor by the defendant. While she was lying hel pless on the floor, the defendant retr ieved a butcher knife, returned to the de n, and began stabbing her. D r. Harlan testified that the victim would have been alive and c onsciou s for at le ast three to five minutes during the assault,and possibly as long as thirty minutes. The pai n of the stabbing during that per iod of consciousness would have been comparable, according to Dr. Har

lan, to undergoing surg ery without an anesthet ic. Therefore, based upon the proof in this recor d, we are convinced bey ond a reasonable doubt-35-

that had the sentencing jury given no weight to the invalid aggravating criteria [serious physical abus

e], the defendant’s sentence would have been the same. State v. Howell , 868 S.W.2d 238, 260-61 (Tenn. 1993). Therefore the error does not affirma tively appear to ha ve affected t he result of th e sentencing he aring.
Alternatively, w

e are convinced beyond a reasonable doubt that had the jury been properly instructed, it would have found the evidence sufficient t o establish depravity

of mind beyond a reasonable doubt. I n Williams , this Court stated that depravity is inherent in the state of mind of a mu rderer who willfully inflicts severe physical or mental pain on a victim prior to death or at a time very close to the victim’s

death. Id ., 690 S.W.2d at 529. In this case the defendant beat and stabbed the victim, a person whom he knew, and l ater boasted about how he had practiced karat e on Lefever. Such evidence clearly establishes that the def endant wi llfully in flicted severe phys ical pain upon the victim. Acc ordingly, we conclude that had the jur y been properly inst ructed it would have found depravity of mind. Therefore, the instructional error in this case does not affirmatively appear to hav e affected the verdict and is har mless beyond a reasonable doubt.



### VII. PROPORTIONAL ITY REVIEW In accordance with the mandate of Tenn. Code Ann. § 39-13- 206(c)(1)(1991 Repl.),we have considered the entire record in this cause and find that the sentence of death was not i mposed in any arbitrary fashion; that the-36-

evidence supports, as previously discussed, the jury’s findings of the statutory aggravating ci rcumstances; and the jury ’s finding that the aggr

avating circumstances outweig h mitigating circums tances beyond a reasonable doubt. Tenn. Co de Ann. § 39-13-20 6(c)(1)(A )-(C)(199 1 Repl.). Finally, co mparati ve proporti onality re view convinc es us that the sent ence of death is n either exc essive nor disproportionate to the pen alty imposed in similar cases considering the nature of the crime and the defenda nt. Tenn. Code Ann. § 39-13-206(c)(1)(D) (1991 Repl.).
Our 1977 statute created a compara tive proportionality

review to serv

e as an additional safeguard again st arbitrary or capricious sentencing. S uch review of death cases insures rational ity and consistency in the imposition of the death penalty. We have studied, compared, and anal yzed cases and conducted a meaningful proportionality review as outlin ed in State v. Barber , 753 S.W.2d 659, 663-68 (Tenn. 1988). We have reviewe d Rule 12 reports from trial judges submitted over the past eig hteen years in all cr iminal trials for first degree murder in which lif e impriso nment or a senten ce of dea th has be en impos ed. W e have made an indepen dent, co nscienti ous and t horough r eview of th is case, a s we have in every other

capital case that has come before this Court. As a result of that review, we

are of the opinion that the senseles s, gruesome, premeditated killing of this innocent , helpless, elderly w oman clearly warr

ants the imposition of the death penalty. Defendant’s del iberate acts showed a total disregard for human life. The victim, a sev enty-nine year old w

idow, was the best fri end of the defendant’s grandmother. The defendant used thi s relationship to gain access to her home. The defendant savagely beat the victim with a stick and then stabbed-37-

her forty-three times. This brutal murder places the defen dant Bush into the class of defendants deserving capital punishment and is not dispropor tionate to the sentences imposed in similar cases. See State v. Van Tran , 864 S.W.2d 465 (Tenn. 1993); State v. McNish , 722 S.W.2d 490 (Tenn. 1987); State v. Harbison , 704 S.W.2d 314 (Tenn. 1986); State v. Barnes , 703 S.W.2d 611 (Tenn. 1985); State v. Cone , 665 S.W.2d 87 (Tenn. 1984); State v. Campbell , 664 S.W.2d 281 (Tenn. 1984); State v. Melson , 638 S.W.2d 342 (Tenn. 1982).

CONCLUSION We have considered the defendant’s assignments of error and determined that none affirmatively appear to have affected the verdict of the trial or the sentencing proceeding. With respect to issues not specifically addressed herein, we affirm the well-reas oned decision of the Court of Cri minal Appeals, authored by Judge David Hayes and joined in by Judge Pa ul G. Summers an d Judge William M. Barker. Relevant por tions of that opinion are publis hed hereafter as an appendix. The defendant’s convi ction for first degree murder and sentence of death by electrocution ar e affirmed. The sentence of death will be carried out as provided by law on the 7th day of July 1997 unless otherwise ordered by this Court, or other proper auth orities. Costs of this appeal are adjudged against the defendant.

_____________________________________ Frank F. Drowota, II I Justice-38-

Concur: Anderson, Holder, JJ. Reid, J., Concurring

by Separate Opinion Birch, C.J., Dissenti ng by Separate Opinion-39- 

# Appendix (Excerpts from the Court of Criminal Appeals’ Decision)-40--41-

3. THE MARIT

AL PRIVILEGE

A. WHETHER THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT'S MOTION TO SUPPRESS THE TESTIMONY OF SHEILA BUSH HAMMOCK
The appellant contends that the marit al privilege shoul d have barred, at trial, the testimony of Shei la Bush Hammock concerning statements made by the appellant to Ms. Hammock duri ng their marriage. S pecifically, the appellant argues that, because the tri al court restricted ex amination of Ms. Hammock at the suppression hearing to "the circumstances under which any statements were made that might be attributable o r not attributable to some mari tal privilege," the court was unable to proper ly determine whether the appellant could invoke the privilege. In other

words, according to the appellant, testimony c oncerning "the details and contents of the statements" was essential to the re solution of the appellant's motion.
The suppression hearing was held on June 9, 1992. At the hearing, Ms. Hammock testified that she had marr ied the appellant on August 13, 1988, three days prior to the murder of Jodie Lefever. She further test ified that she and the appellant had been dating "off and on tw o years" before their marri age. Both before and after their marriage, the appellant " threatened" and "beat" Ms. Hammock. Ms. Hammock also st ated, "He would alway

s call me names and make fun of me. I couldn't say anything right." Moreover, following their marriage, while the appellant and Ms. Hammock w ere living wi

th her mother, the11 The appellant in his brief suggests that the trial court's decision to deny the appell ant the marital pr ivil ege implicat es the ex pos t facto provisi ons of the Unit ed States and Tennessee Constitut ions. We disagree. Bet ween the ti me of the offense and t he time of tr ial, there were no signifi cant changes in the law of marit al pri vilege i n criminal cases. Alth ough the Tennessee Rules of Eviden ce were adopted in 1990, T enn. R. E vid. 501 sim ply states, Except as otherwi se provided by constit ution, statute,common law, or by these or other

rules promulgat

ed by the Tennessee Supr eme Court, no person has a pri vilege t o: (1) Refuse to be a witness; (2) Refuse to disclose any ma tter; (3) Refuse to pr

oduce any object

or writ ing; or (4) P reve nt an othe r from being a witn ess or dis clos ing an y matter or pr

oducing any o bject or wr iti ng. The Advisory Commission Comments to Rule 501 ref er one to McCormick for the ru le governi ng spous al com mun ications in c riminal c ases. C learly, Rule 50 1 also en com passe s the ex ceptions to the marital

privi lege impli cit i n this cour t's opi nion in Adam s v. State , 563 S.W .2d 8 04 (T enn . Crim

. App. 1978).

In State v. Hurley , 876 S.W .2d 57, 64 (Tenn . 1993), cert. deni ed , U.S. , 115 S.Ct. 328 (1994), our supreme court modified the marital privil ege in cri minal cases so that the test ifyi ng spouse alone had t he right to invoke t he privi lege. However,the opini on was fil ed on April5, 1993, -42- appellant would not allow Ms. Hammock to visit friends. After they moved to his parents' house, the appellant would not allow her to visit her mother.

Ms. Hammock concluded that she "was just scared of Mic hael," and that her relationship with the appellant was a rel ationship built upon fear and thre ats. For example, after the appella nt admitted to her that he had kil led Ms. Lefever, he told Ms. Hammock that the Mafia was watching her, and that, if she ever told anyone what he had done, she would be killed. On the day that Ms. Hammock decided to leave the appellant , he again physicall y abused her. The State introduced into evidence a picture of bruises that Ms. Hammock suf fered as a result of the appellant's abuse. At the time of the suppression hearing, Ms. Hammock and the appellant had been divorced f or approximately two years.
The rule of marital privi lege applicable in the appel lant's case was announced by our supreme court in McCormick v. State , 186 S.W. 95 (Tenn. 1916). 11 In McCormick , 186 S.W. at 97, the supreme court held that "[s]oundapproximately two months after the appellant 's tri al. Thus, obv iously , the tr ial cour t did not apply t he Hurley rule in this c ase . In an y even t, eve n had the tria l cour t app lied th e new rule, w e hav e held that the Hurley

rule is a pro ced ural ru le tha t doe s not affe ct an y subs tantia l rights of a d efen dan t in a criminal case and, theref ore, does not implicate ex pos t facto constitution al provision s. State v. Bragan , No. 03C 01-940 3-CR -00121 (Tenn . Crim. A pp. at Kno xville, July 5, 199 5).

Finall y, we note that t he Hurley modificati on of the common law rule was super seded by statu te wh en th e legis lature , in 199 5, am end ed T enn . Cod e An n. § 2 4-1- 201 , whic h had prev ious ly only appl ied in ci

vil cases.Section 24- 1-201 now provi des, (a) In either a civ il or criminal pr oceeding, no marri ed person has privilege to refu se to ta ke the witnes s stan d sole ly becau se tha t perso n's spouse is a part

y to t he proceeding. (b) In either a civ il or criminal pr oceeding, conf identi al communications between married perso ns are priv ileged andinadmissibl e if ei ther spouse objects. -43- public policy req uires that neither the husband n or the wife shall be permitted to testify, in criminal c

ases, as to any matter coming to his or her knowled ge by reason of the marital relation. " See also Burton v. State , 501 S.W.2d 814, 817- 819 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1973); Bragan , No. 03C01-9403-CR-00121. Under this rule, either the tes tifying or non-testify

ing spouse can invoke the pri vilege. Bragan , No. 03C01-9403-CR-00121. However, the privilege is not absolute. In Adams , 563 S.W.2d at 808, this court observed that the following conditions must exist before a communi cation between husband and wife can be considered pr ivileged: (1) The communications must ori ginate in a confidence that they will not be di sclosed. (2) This element of confidentialit y must be essential to the full and satisfactory maintenanc e of the relation between the parties. (3) The relation must be one w hich, in the opinion of the community, ought to be sedulou sly fostered. (4) The injury that w

ould inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the c orrect disposal of litigation.
The court in Adamsnoted that exceptions to the marital privilege generally arise-44-

from the failure of the communication to meet these conditions. Id . "All four of these conditions must exis t to protect the evidence by the marital privil ege." State v. Garland , 617 S.W.2d 176, 183 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1 981). Th us, testi mony at th e suppre ssion hea ring releva nt to the first two conditions was unnecessar y if sufficient evidence w as presented to negate the last two conditions.

In Garland , 617 S.W.2d at 182-183, this court observed that the application of the marital pri vilege was inappr

opriate where the marri age between the parties was "extremely tumultuous." Similarly, in this case, the trial court denied the appellant's motion to s uppress on the basis of the follow ing findings of fact: Sheila (Bush) Hammock and the de fendant were married on August 13, 1988. The Court further finds that the parties separated on or about September 25, 1988.From the testimony, the Court further finds that a divorce w

as granted to the parties approximatel y two (2) year

s prior to the date of this hearing. The Court fur ther finds that the marriage w as extremely turbulent and disturbing from its beg inning. The defendant regularly beat and p hysically abused the prospective witnes

s. He subjected her to v arious forms of mental and verbal abuse on a r egular basis. He thre

atened her with physical

harm and death if she ever dis closed any of the crimes which he all egedly committed. The threats were made before and after the threats [sic] were allegedly committed. The findings of fact made by the trial court aft er an evidentiary hearing are afforded the weight of a jury verdict; this cour

t will not set aside the judgment of the trial court unless the evidence in the record preponderates against its findings. State v. Stephenson , 878 S.W.2d 530, 544 (Tenn. 1994); State v. Dick , 872 S.W.2d 938, 943 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1993); State12 The Sixth Amendment to the Unit ed States Constitution is appli cable to t he states through the Fou rteenth A men dme nt. Pointer v . Texas , 380 U.S. 400, 403, 85 S.Ct. 1065, 1068 (1965). Moreover , our supreme court has largel y adopted t he standards of t he United Stat es Supreme Court under the Sixth Amendment in determini ng whether ther e has been a viol ation of the Te nness ee Co nstitution. Stat e v. Mi ddleb rooks , 840 S.W .2d 317, 332 (Tenn. 1992 )(however, with respect

to the ri ght to phys ically confront one' s accusers, our supr eme court has observed th at "[t] he 'face-t

o-face' l anguage found in the Tennessee Constitut ion has been hel d to impose a higher right than th at found in the fede ral cons titution," State v. Deuter , 839 S.W.2d 391, 395 (Tenn. 1992)). -45- v. Killebrew , 760 S.W.2d 228, 233 (Tenn. Crim. App. 1988). We conclude that the record supports the tri al court's findings. Thus, as in Garland , 617 S.W.2d at 183, "we do not believe tha t the conditions 3 and 4 enumerated i n Adams are met." Therefore, contrary to the appellant's argument in hi s brief, further testimony regarding

the contents of the appellant's statements to Ms. Hammock was unnecessary to th e proper resolution of the appell ant's motion.

B. WHETHER THE TRIAL COURT'S LIMITATION A T THE SUPPRESSION HEA RING OF CROSS-EXA MINATION OF SHEILA BUSH HAMMOCK VIOLA TED THE APPELLANT'S RIGHT TO CONFRONTATION UNDER THE SIXTH AM ENDMENT TO THE UNITED STATES CONSTITUTION AND A RTICLE I, SECTION 9 OF THE TENNESSEE CONSTITUTION. The appellant contends that, at the sup pression hearing, he "w as limited and restricted from confronting [his] accuser, Sheila Bus h (Hammock), and thereby denied his rig hts under the Sixth Amendment to the United States Constitution and Article I, Section 9 of the Tennessee Constitution." The right to confrontation set forth in the Sixth Amendm ent includes the right to conduct cross-examination. 12 However, we have previously observed, "[I]t is elementary that the exclusion of immateri al or irrelevant ev idence does not abridge an accused's right to confront ation." State v. Marquadis , 649 S.W.2d 15, 17 (Tenn. Crim. App. 1982). See also Delaware v. Van Arsdall , 475 U.S. 673, 679, 106 S.Ct. 1431, 1435 (1986)("tri al judges retain wi de latitude insofar as the13 In Kentucky v. Stincer , 482 U.S. 730, 738, 107 S.Ct. 2658, 2663 n.9 ( 1987), Justi ce Blackmun stated that , in his opinio n, de nying a defe nda nt ac ces s to in form ation befo re tria l may hinder tha

t defendant' s opportuni ty for effecti ve cross-examinati on, thereby implicat ing the Confrontati on Clause. However, our supreme court i n Middl ebrooks , 840 S.W.2d at 832, not ed that "[t] he right to cross-examine wi tnesses ... does not incl ude the power to require t he pretri al disclosu re of any an d all inform ation that m ight be us eful in con tradicting un favorab le testimo ny." In any event, the State in thi s case foll owed a policy of open fil e discovery and, pri or to tr ial, informed the appe llant's coun sel of the s tatem ents m ade by the appellant to Sheila Bu sh Ha mm ock. -46- Confrontation Clause is concerned to impose reasona ble limits on ... crossexamination based on concerns about, among other things, har assment, prejudice, confusion of the issues, the witness' safet y, or interrogation that is repetitive or only marginally relevant"); Tenn. R. Evid. 611(a) ("[t]he court shall exercise appropriate c

ontrol over the presentat ion of evidence and conduct of the trial when necessary

to avoid abuse by counsel "). In other words, "the Confrontation Clause only g uarantees 'an opportunityfor effective crossexamination, not cross-ex amination that is effective in w hatever way, and to whatever extent, th e defense counsel might wis h.'" Pennsylvania v. Ritchie , 480 U.S. 39, 53, 107 S.Ct. 989, 999 ( 1987)(citation omitted). We have alrea dy concluded that the testimony at the suppression hearing c oncerning the contents of the appellant's statements to Ms. Hammock would have bee n superfluous.

Moreover, this court

has held that "the 'confrontation' guaranteed by the United States Constitution is confrontation at trial." Haggard v. State , 475 S.W.2d 186, 187 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1971). Similarly, in Ritchie , 480 U.S. at

52, 107 S.Ct.at 999, a plur ality of the

United Stat

es Supreme Court observed that "the r ight to confrontation is a trial right." See also United States v. Sasson , 62 F.3d 874, 881 n. 5 (7th Cir. 1995); United States v. De Los Santos , 819 F.2d 94, 97 (5th Cir. 1 987); United States v. Boyce , 797 F.2d 691, 693 (8th Cir. 1986). 13 Defense counsel was able to fully and extensively cross--47-

examine Ms. Hammock at tri al. This claim is wi thout merit.

4. WHETHER THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT'S MOTION TO SUPPR ESS THE TESTIMONY OF OTHER INMATES. The appellant contends that the trial court erred in allowing jailhouse informants to testify agains t the appellant concerning statements made by the appellant during his inc arceration. The appellant filed a motion on October 16, 1992, to exclude the testimony of William Moore, Jimmy Myers, B illy Goney, and other inmates, based on the allegation that law enforcement officers asked the inmates to elicit stat

ements fr

om the appellant i n viol ation of Massiah v. United States , 377 U.S. 201, 84 S.Ct. 1199 (1964 ). On November 13, 1992, an evidentiary hearing

was held to resolv

e the appellant's motion.
Billy Goney and Jimmy Myers testified at the he aring. Billy Gone

y stated that he was incarcerated with Michael Bush at the Putnam County Jail betw een September or October of 1988 and Apri l of 1989. He further alleged that, approximately one w

eek after the appellant was pl aced in the jail, Bobby Lan e and Doug Burgess, inv estigators with the

Putnam County Sheriff's Department , asked Goney and fellow inmat es, Guy Ramsey and Jimmy Myers, to tape conversations with Michael Bush. The inmates w ere told that, if they cooper ated with the police, the pol ice "would help [them] out." The inmates already had access to tape recorders an d tapes, and the inmates used the eq uipment to tape conversations with the appellant. Howev er, Goney added, [W]hat we'd do was like Jimmy would ask Michael a question, say, did y

ou kill that old woman, and we'd have the recorder playing an d we'd ease up off the play button.Then-48- they would ask him anothe r question like, do y ou like karate, and he would say, ye

ah, and we'd push yeah w hen he was saying yes. Goney stated that he and his fellow informants made approximately three tapes, and that Jimmy Myers, his half-brother, deliv ered the tapes to Deputy Lane. Goney insisted that he never heard the appellant admit to killing Jodie Lefe ver.
Jimmy Myers also t

estified at the hearing. He was also incarcerate d at the Putnam County Jail in September of 1988. Indeed, he shared a cell w ith the appellant. However,Myers testified that nei ther Deputy Burgess n or Deputy Lane asked the inmates to record conversations with Michael Bush. Rather, Myers asserted that Goney and Ramsey first suggested taping the appellant and f irst contacted Deputies Lane and Burg ess. His testimony i s somewhat unclear as to whether the tapes were made before or after the inmates contacted the deputies. Myers conceded that the officer s may have been aware that the tapes were being made.
In any event, before the tapes were made, Myers heard the appellant adm it to killing Ms. Lefever. Well, one time he was telling me and Bi lly and Ramsey all,I mean, he told us he tied Ms. Lefev er up and stuff and stabbed her and waited on his wife. His wife dropped him off and came back to pick him up, and he w ent down to the dam and washed blood off of him and stuff. And, I mean, that's about all he said. And then some other times he would tell a diffe rent stor y. Again, Myers could not remember whether he and the other inmates spoke to the deputies before or after they ov erheard this statement. Final ly, Myers conceded on cross-examination that it was common knowledge at the jail that inmates could-49-

get help from the police if they provided information. How ever, he testified that he was not pro mised an y assistan ce in retu rn for his testimo ny.
Deputy Burgess testified at the hearing that he nev er asked any of the inmates to tape conversation s with Michael Bush, nor, to his knowledg e, had any other deputy made such a req uest. Moreover, he nev er received any tapes , nor was he aware that tapes had been turned over to the Sher iff's Department until he found a tape in Bobby Lane's office the day before the hearing. He w as not aware of any agreement between jailhouse informants and the police. He testified that Billy Goney and, possibly, Jimmy Myers had asked to speak with him several times. He spoke with Goney privately "maybe one or two" times. He told Goney "to keep his ears open a nd if he heard anything, let us know." Goney w

as unable to provide any us eful information. At a subsequent hear ing, on December 10, 1992, Burgess stated that he would not have turned to inmates to obtain incriminating statements from Michael Bush because "[t]hat' s no good in court. We can't use it."
At the December 10 hearing, Deputy Bobby Lane testified that , during the course of his investig ation of the Lefever murder, he nev er asked inmates to secretly re cord conve rsations with the ap pellant . Goney ap proache d him with t wo tapes, but "[t]he tapes was garbage. There wasn't any use in keeping the tapes." Lane did not have any subseq uent conversations wi th Goney about the tapes, nor did Lane talk to any other i nmate. On December 22, 1992, the tri al court denied the appellant's motion, observ ing, "I think it's a q uestion of credibility for the jury to decide."-50- At trial, no tapes were introduced into evidence. However, Jimmy Myers and William Roger Moore testified. Jimm y Myers again stated that he had heard the appellant admit to killi ng Jodie Lefever. Bush als o told Myers that "he w as going to try to make people think he was crazy." Myers testified that these statements were not recorded, as the informants began ta ping the appellant only after the appellant's lawy ers advised him agains t talking to fellow i nmates about the murder. After the appellant w as so advised, he changed his story several times. Finally, My

ers insisted that he wa

s never offered any form of compensation in return for his testimony. On cross-ex amination, he conceded that he had written a lette r to an assistant distri ct attorney, in whi ch he stated, "If you can help me out in any way, I promise y ou that you will not be sorry."
Finally, William Roger Moore, another fellow inmate of Michael Bush following the appellant' s incarceration at the Putnam County Jail, also testified at trial. Moore stated that,as there was very little to do at the jail,Bush approached him and initiated several conversations. The appell ant admitted to Moore that he had killed Jodie Lefever. The appellant also stated that he w as going to "make a ploy for craziness." Moore imparted this informati on to Special Agent O'Rear, an agent with the Tennessee Bur eau of Investigation. Moor e testified that he was not offered any compensation in retur n for his cooperation, nor did he ask for any compensation.
Again, the appellant argue s that any incriminati ng statements made by the appella nt to fel low in mates w ere eli cited i n viol ation of Massiah . We n ote, init ially, that, because only Jimmy Myers and William Moore testified at trial, the denial of14 The appellant was arrested on Sept ember 25, 1988, and i ndicted t he next day. The record does not reflect precisely when the appellant mad e the incriminating statements. Howe ver, the statements wer

e made after the appel lant' s arrest and consequ ent incarcer ation i n the Putnam Cou nty Ja il. -51- the motion to suppress with respect to Goney and other inmates, even if erroneous, was harmless

. See Hartman v. State , 896 S.W.2d 94, 100 (Tenn. 1995); State v. Sparks , 727 S.W.2d 480, 482 (Tenn. 1987), post-conviction reli ef granted , No. 03S01-9212-CR-00105 ( Tenn. May 10, 1993). With respect to Myers and Moor

e, "the clear ru le of Massiah is that once adver sary proceedings have commenced against an indi vidual, he has a righ

t to legal representatio n when the government int errogates him." Brewer v . Williams , 430 U.S. 387, 401, 97 S.Ct. 1232, 1240 (1977). Thus, i n order to find a Massiah violation, a court must first determine (1) w hether adversary pr

oceedings had commenced; (2) whether the informant was a government agent; and ( 3) whether the agent "interr ogated" the appe llant w

ithin t he meanin g of Massiah

.
The initiation of adversary proceedings is "marked by formal charge, which [has been] construe[d] to be an arrest warrant, or at the time of th e preliminary hearing in those rare c

ases where a preliminar y hearing is not preceded by an arrest warrant, or by indictment or presentment ." State v. Mitchell , 593 S.W.2d 280, 286 (Tenn. 1980), cert. denied , 449 U.S. 845, 101 S.Ct. 128 (1980). Cl early, at the time the appellant alleg edly made the incriminati ng statements to fellow inmates, he had been formally char ged and, probably, indic ted. 14
It is arguably uncl ear whether Myers was acting as a g overnment agent. This court in State v. Dunn , No. 85-356-III (Tenn. Cri m. App. at Nashville, Ju ne 6,15 In any even t, no tapes were ev er introduc ed either a t the supp ression hearing o r at trial. -52- 1986) observed, "Although Massiah and it progeny do not ex plicitly define the term 'state agent,' the condui t in each of these cases was clearly a state agent , operating as such, when the conversations occur red." Thus, any admissions made by the appellant before law enforcement officers became inv olved would, of course, be admissible. Hartman , 896 S.W.2d at 100. "[ T]he Sixth Amendment is not violated wheneve r - by luck or happens tance - the State obtains incr iminating statements from the accused after the ri ght to counsel has attached." Maine v. Moulton , 474 U.S. 159, 176, 106 S.Ct. 477, 487 (1985).
Again, at the suppression hearing, Goney testified that Deputies Burgess and Lane asked inmates, including Myers, to record c

onversations with the appellant. However,Goney's testimony w as largely contradi cted by the testimony of both deputies and by the testimony of Myers. 15 At trial, Myers recounted statements by the appellant, ov erheard prior to the recor ding of any conversations. At the s uppression hearing, My ers could not remember whether he heard these statements before or after first talking to Burg ess and Lane. Both deputies, for the most part, denied e nlisting inmates to obtai n statements from the appellant, although Deputy Burgess admitted that he mig ht have asked Goney "to keep his ears open."
Even assuming that My ers was a state agent, the appellant at the suppression hearing als o carried the burden of demonstrati ng "that the police and their informant took some action, beyond merely listeni ng, that was designed16 Deputy Lane testifi ed at the suppr ession heari ng that t he resultan t tapes contained no incriminat ing evid ence. -53- deliberately to elici

t incriminating remark

s." Kuhlmann v. Wilson , 477 U.S. 436, 456, 459, 106 S.Ct. 2616, 2628, 2630 (1986 ). At the suppression heari ng, Goney testified that he and Guy Ramsey recorded conversations with the appellant, during which they

attempted, with Myer

s' assistance, to elici

t and, indeed, fabricate a confession. 16 However, Myers testified that he did not participate in the recording of any state ments. Rather, he testified both at the suppression hearing and at trial that he merely overheard the appellant confess to the murder of Ms. Lefever. There is no ev idence in the record that thi s statement was made in response to efforts by the othe r inmates to stimulate conv ersation about the crime charged.
Given the conflicting t

estimony adduced at the suppres sion hearing, the record supports the trial court's denial of the appellant's motion with respect to Jimmy Myers. The findings made by the trial court after an evidentiary hear ing are afforded the weight of a jury verdict; this cour

t will not set aside the judgment of the trial court unless the evidence in the record pr eponderates against its findings. State v. Stephenson , 878 S.W.2d 530, 544 (Tenn. 1994); State v. Dick , 872 S.W.2d 938, 943 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1993); State v. Killebrew , 760 S.W.2d 228, 23 3 (Tenn. Crim. App. 1988).
In any event, assuming for the sake of argument that My ers was a state agent and assuming that he "interrogated" the appellant within the meaning of Massiah , the admission at trial of Myers' testimony w as harmless error. See-54-

Hartman , 896 S.W.2d at 100; Sparks , 727 S.W.2d at 482. W illiam Moore testified at trial concerni ng almost identical statement s made by the appellant to him in the Putnam County Jail . The record is devoid of ev idence that Moore was a state agent at the time of his conversations with Michael Bush, nor is there evidence that he made any effort to elicit statements from the accus ed about the crime charged. This iss ue is without merit.

5. WHETHER THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT'S OBJECTION TO TH E INTRODUCTION OF CERTAIN PHOTOGRAPHS OF THE VICTIM.
The appellant contends that the tri al court erred in over ruling his motion to suppress certain photogr aphs of the victim. Specifical ly, he insists that th e pictures were admitted only for the purpose of inflaming the jury, thus, the ir prejudicial effect outweig hed their probative v alue. Additionally, the appellant argues that the photographs had no probative value i n light of the vivi d description of the vic tim's bod y given in Of ficer La ne's test imony.
During a jury-out

hearing, the State attempted to pr esent four photographs of the victim. Exhibit

25 was a photograph of the v ictim as she was disc

overed by Officer Lane. Exhibit 26 was a photograph which showed wounds to the victim's head. Exhibit 27 was a photograph which show ed the lower dental plate o f the victi m on the fl oor nex

t to her body. E xhibit

28 show

ed a wou nd to the

victi m's left knee. The State argued that the photog raphs were relevant to corroborate medical testimony, to aid the jury in determining the extent of the wounds, and t o-55-

establish the element of malice. The app ellant responded that the pictures did not add to testimonial value as Officer Lane had alrea dy described the wounds in great detail. The appellant concluded that, moreover, the p ictures were more prejudicial than probativ e.

The tria l court acc epted th e State' s argumen t that Exh ibit 25 was probative to show the placement of the w ounds on the body, Exhibit 27 was probative as to the amount of force that was used to dislodge the de ntal plate from the victim's mouth, and Exhibit 28 was probative to show additional wounds on the body. Furthermore, the trial c ourt found that the probative v alue of these three photographs was not outw eighed by their prej udicial effect. However, the trial court sustained the appellant's objection to Exhibit 26, find ing it to be the most gruesome of the pictures, and finding it to not accurately depict the victim's wounds.
To be admissible, a photograph must be relevant to some issue at trial, and its prejudicial effect must no t outweigh its probat ive value. State v. Banks , 564 S.W.2d 947, 951 (Tenn. 1978); see also Tenn. R. Evid. 403. The disc retion of a trial judge in allow

ing the admission of a photogr aph into evidence wil l not be overturned except upon a c lear showing of an abuse of di scretion. State v. Bordis , 905 S.W.2d 214, 226 (Tenn. Crim. App. 1995) (cit ations omitted); see also State v. Stephenson , 878 S.W.2d 530, 542 (Tenn. 1994).

We conclude that it was not error to ad mit the photographs in this case. The photographs were rel evant to supplement the testimony of the medical-56-

examiner and the officer who i nitially investi gated the crime scene in est ablishing the cause of death, see Stephenson , 878 S.W.2d at 542, and to show the brutality of the attack and ex tent of force used against the v ictim, from which the jury could infer malice

. See State v. B rown , 836 S.W.2d 530, 551 (Tenn. 1992). This issue is without merit.

6. WHETHER THE A PPELLANT IS EN TITLED TO RELIEF BA SED ON ALLEGATIONS OF PROSECUTORIAL MISCONDUCT.

A. LA CK OF REMORSE The appellant first argues that the prosecutor erroneously elicited testimony concerning the appellant's lack of remorse from three witnesses. When questioned by the prosecutor as to whether the appel lant had expressed any remorse for what he had done, William Rog er Moore, an inmate who had been incarcerated with the appellant, answered that the appellant had expressed remorse only in that he had gotten caught. When asked whether he had observed any sadne ss on the p art of th e appella nt when th e appella nt had sh own him a newspaper account of the mur der, James Mullins, a frie nd of the appellant, testified that he had observed no sadness. When asked whether the appellant had expressed any remorse or sadness for what he had done, Shelia Bush (Hammock) testified that he had ex pressed no remorse.

The failure of defense counsel to make a contempor aneous objection-57-

waives considerati on of the issue on appeal. See Teague v. State , 772 S.W.2d 915,926 (Tenn. Crim. App.), perm
. to appeal denied , (Tenn. 1989); State v. Killebrew , 760 S.W.2d 228, 235 (Tenn. Crim. App.), perm
. to appeal denied , (Tenn. 1988); Tenn. R. App. P. 36(a) . A review of the rec ord reveals that of the three statements to which the appellant now objects, the appellant only objected to the prosecutor's quest ion to James Mullins, and th e objection was based on the fact that it was a leading question. We conclude that the appellant has waived this issue.

B. IRRELEVANT OPINION EVIDENCE The appellant next contends that the prosecutor erred in eli citing irrelev ant opinion evidence from Jimmy Myers, another inmate w ho had been incarcerated with the appellant. On r edirect examination, the pr osecutor asked Myers why he was in cou rt testifying. Mye rs responded that it "co uld be my mot her or my grandmother, someone that's y ou know, laying th ere dead you know. I don' t think someone should kill someone li ke that and just walk the streets. Get out scot free."
The appellant contends that the prosec utor deliberately broug ht before the jury evidence w

hich was wholly

irrelevant to the appel lant's guilt or innoc ence. However, the recor

d reveals that on cross-examination, appellant's counsel qu esti on ed My

er s exten si ve ly

co ncer ni nghi s t ru e m ot iv at io n f or te st if yi ng . We conclude that the question ask ed by the prosecutor w as appropriate, notwithstanding the w

itness' nonresponsive s tatement. This issue is wi thout merit.-58- C. CLOSING ARGUMENT (1) MASSIVE INVESTIGATION The appellant also argues that he is entitled to a rever sal of his conviction due to prosecutorial miscondu ct during closing a rgument. He objects to the prosecutor's remark that the investigation w as "the most extensive i nvestigation ... that I've ever heard of" and to the prosecutor's statement that the appellant was the only suspect result ing from the investiga tion. The appellant contends that evidence of such an invest igation was not before the jury, and that the prosecutor's comments exc eeded the scope of proper argument.
Our supreme court has observed that "argument of counse l is a valuable privilege that shoul d not be unduly restrict ed. Our courts seek to g ive great latitude to counsel in ex pressing their vi ews of the case to the jury ." Smith v. State , 527 S.W.2d 737, 739 (Tenn. 1975). See also State v. Bigbee , 885 S.W.2d 797, 809 (Tenn. 1994). The trial j udge has wide discretion in controlling the argument of counsel. Smith , 527 S.W.2d at 739. Gen erally, on appeal, this court will not interfere with the exercise of that discretion in the absence of abuse thereof. Id . However, if the pr osecutor's remarks, in fact , "stray[ed] beyond the wide latitude afforded," this c ourt should consider, among other factors, the intent of the prosecutor, any curati ve measures undertaken by the court, the improper conduct viewed in cont ext and in light of the facts and circumstances of the case, the cumulative effect of the remarks w ith any other errors in the record, and the relative strength or

weakness of the case. Bigbee , 885 S.W.2d at 809; Judge v. State , 539 S.W .2d 340, 344 (Ten n. Crim. A pp. 1976 ). We n ote that "curative-59-

instructions will

not render all improper c omments harmless; the test is w hether the conduct ... affected the results t o the prejudice of the appellant." State v. Byerley , 658 S.W.2d 134, 139 (Tenn. Crim. App. 1983). See also Bigbee , 885 S.W.2d at 809.

In arguing that the investigation was extensive, the prosecutor specifically referred to Deputy Richar d Smith's testimony that the Sheriff's Department had interviewed between 200 and 250 people regarding this case. The prosecutor's observation, that the appell ant was the only suspec t, was similarly

supported by the evidence introduced at t rial. We conclude that the trial court did not abuse its discretion in allow

ing the argument.

(2) PROSEC UTOR'S PERSONAL VIEWS The appellant next contends that the prosecuto r erred in referring to this murder as being "a murder of the worst kind," "one of the worst kind of murders imaginable," and "a most heinous and brutal act." The appellant conten ds that the prosecut

or express

ed his perso nal view

s of the offense i n an effort to i nflame the pass ions of t he jury.
However, evaluating the prosecutor's comments in light of his entire argument, we conclude that the comments referred to the fact that the appellant took advantage of a lady who was a close friend of his grandmother. Even if improper, we do not vi ew this argument as bei ng so prejudicial as t o require a-60-

new trial. This iss ue is without merit.

D. BOLSTERING Finally, the appellant contends that the prosecutor erred by improperly bolstering the testimony of William Roger Moore and Shelia Bush ( Hammock) by asking them if they wer e telling the truth. H e also asked Ms. Bush if she w as having dreams about the cas e.

In State v. Carpenter , 773 S.W.2d. 1, 11 (Tenn. Crim. App.), perm
. to appeal denied , (Tenn. 1989), this court hel d that bolstering was permitted to rehabilitate an impeached witness to rebut the inference that the witness's testimony was a recent fabrication. Bolstering has also been permitted to all ow seemingly inconsist

ent statements to be placed into co ntext. State v. B oyd , 797 S.W.2d 589, 594 (Tenn. 1990). We conclude that the prosecutor's q uestions were not inappropriate.
The question

asked of Ms. Bush concern ing wheth er she had dr eams about the offense were posed in the context of remembering things that she had not thought of and explaining why there had been incon sistencies in previ ous statements. Again, we c onclude that the prosecutor coul d use this question to rehabilitate his witness. This issue is without merit .

7. WHETHER THE PROSECUTOR'S STATEMENTS DURING THE CLO SIN G ARG UME NT O F THE PEN ALTY P HASE OF T HE T RIAL17 See supra Section I II, I ssue #6 "Whether the Appell ant is Ent itl ed to Reli ef Based on Allegations of Prosecutorial Misconduct," (C)(1) Closing Argum ent, Massive Investigation, for a genera l discuss ion of the s tandard to be app lied in reviewing couns el's argum ent. -61- DENIED THE APPELLANT A FAIR TRIAL. 17 A. CALDWELL

VIOLATION The appellant first contends that the prosecutor, in violation of the Supreme Court's holding i n Caldwell v. Mi ssissippi , 472 U.S. 320, 328-29, 105 S.Ct. 2633, 2639 (1985), "led the jury to believe that the responsibility for determining the appropriaten ess of the defendant's death rests els ewhere." The appella nt cites t he follo wing portio n of the prosecut or's argum ent to th e jury: I submit to you that the m ost impo rtant da y in the defendant

's life was the day that he chose -- not you; not I; -- the day that he chose to go to th e home of Jodie Lef ever and m urder her horribly, heinously, atrociousl

y, in cold blood. They' ll tell you that y ou have a choice to make here today, tha t is his life is liter

ally in your hands. And I submit to you, ladies and gentlemen of the jury, that's not true. When he went to the home of Jodie Lefever and had her open the door as a friend, he took his life in his own hands. He took his life in his own hands. When reviewing an alleged Caldwell error, this court must first determine whether the prosecutor's comments minimized the jury 's role in determining

the appropriateness of death. State v. West , 767 S.W.2d 387, 39 9 (Tenn. 1989), cert. denied , 497 U.S. 1010, 110 S.Ct. 3254 (1990). If the prosecutor's comments were improper, we mus t then decide whether the tr ial judge's instructions to the jury sufficiently cor

rected the error. Id . "If the Court cannot say the comments had no effect on the sentencing, then the j ury's decision does not meet the standard of reliability

required by the Eig hth Amendment." State v. Irick , 762 S.W.2d 121, 131 (Tenn. 1988), cert. denied , 489 U.S. 1072, 109 S.Ct. 1357 (1989).-62- We have previously observed that the State may properly argue that a defendant is the "author of his own fate." Wright v. State , No. 01C01-9105-CR00149 (Tenn. Crim. App. at Nashv ille), perm. to appeal denied , (Tenn. 1994), cert. denied , U.S. , 115 S.Ct. 1129 (1995). In any case, the prosecutor's comments must be evaluated in the c ontext of the total argument by the parties and, of course, the trial cour t's instructions to the j ury about its obligations under the law. See State v. Nichols , 877 S.W.2d 722, 733 (Tenn. 1994), cert. denied , U.S. , 115 S.Ct. 909 (1995).
Immediately following the quoted portion of the prosecut or's argument, the prosecutor reminded the juror s that they had been asked duri ng voir dire w hether they would be able to impose th e death p enalty if the Stat e were able to prove that aggravating factors outweighed any mitigating factors. The pr osecutor then reviewed the agg ravating circumstan ces presented by the State. During rebuttal argument, the prosecutor ag ain explained the weig hing process, remarkin g, "You have a job to do an d it's a serious job . It's probably one of the most to ugh things that you've ever bee n called upon to do in your life." Defense counsel, during closing argument, emphasi zed the importance of the jury 's role in determining

the appropriate punishment. Defense coun sel observed, "The verdi ct you render on the question you have t oday is whether a y

oung man lives or dies . You are the supreme decision makers in this case." Finally, immediately before the jury began deliberations, the trial court correctly instructed the jury as to their responsibility for deter

mining the appropriate punis hment. We conclude, therefore, that even if the prosec utor's comments, by themselv es, violated Caldwell , the error was harml ess beyond a reasonable doubt.-63- B. PROSECUTORIAL EXPERTISE The appellant next contends that the prosecutor alluded to pros ecutorial expertise when she as ked that the jury impose the death penalty. That is, the prosecutor, according t o the appellant, argued that the jury should impose the death penalty because the State, in its expertise, cho se to seek the death penalty. However, the recor

d reveals that, in the por tion of the argument to whic h the appellant refers, the prosecutor merely review

ed the facts of the case and concluded that "[i]f that's not a s et of circumstances that deserv es the death penalty, one would wonder what it takes." We conclude that the prosecutor's argument did not rely upo n prosecutorial expertise, and that this issue i s without merit.

C. DENIGRATION OF MITIGATING EVIDENCE The appellant also contends that the prosecutor misled and inflamed the jury by denigrating the appellant's mitigating evidence, charac terizing the evidence as an "excuse" which should be disregarded. First, our supreme court found "nothing wrong w ith counsel's argument" in State v. Smith , 893 S.W.2d 908, 922 (Tenn. 1994), cert. denied , U.S. , 116 S.Ct. 99 (1995), a case in which the prosecutor s imilarly referred to the defendant's mitigating ev idence as
an excuse. See also State v. Keen , No. 02S01-9112-CR-00064 ( Tenn. May 23, 1994), rehearing granted , (Tenn. May 16, 1995). Seco nd, the record reveals that, although the State generall y downplayed the miti gating evidence pres ented by the appellant, the prosecutor, during rebuttal, conceded tha t two mitigating factors, the appellant's youth and his lack of a significant cri minal history, had been proven. During the c

ourse of argument, the prosecutor also explained that the-64-

appellant could "present proof on any thing [he] want[s] to and call it a mitigator. Whether it's a mitigator or not is up to you." We conclude that the challenged comments do not rise to the level of reversible error.

D. MERCY The appellan t next contends t hat the prosecu tor attempte d to discourage the jury's consideration of mercy. Specifically, in rebuttal, the prosecutor argued, "We want you to use the same mercy that this defendant used on Jodie Lefever as she lay helpless in her floor." Our supreme court has observed that this argument "encourage[s] the j ury to make a retaliator y sentencing decisio n, rather than a decision based on a reasoned moral response to the evidence," and is therefore improper. Bigbee , 885 S.W.2d at 812. However, the record reveals that the trial court susta ined the appellant's objectio n to the prosecutor's remark

. Moreover, at the conclu sion of argument, the trial c ourt instructed the jury

that they could "decide to sentence the appellant to life im prisonment simply because based on the evidence introduc ed at either the guilt/in nocence or sentencing phase at this trial you

find it appropriate to exer cise mercy." We conclude that the appellant was not unduly prejudiced by the prosec utor's statement.

E. MISCELLANEOUS The appellant complains that the pr osecutor waived the mur der weapon before the jury. He also asserts that the prosecutor improperly argued tha t the death pe nalty would protect a ll the "ot her Jodie Lefevers of the wor ld." Fina lly, the appellant argues that the prosecutor, during argument, imperm issibly-65-

remarked that the appellant's expert witnesses received a fee for their services.
First, the murder weapo n was properly int roduced into evidence at tr ial and, therefore, could be display ed to the jury and otherw ise referred to during the State's closing arg ument. Moreover, the pros ecutor is an advocate and i s entitled to pursue his role wi

th thoroughness and vig or. Post v. State , 580 S.W.2d 801, 808 (Tenn. Crim. App.), perm
. to appeal denied , (Tenn. 1979 ). Second, alth ough argument based on general deter rence and, perhaps, deterrence of the defendant, is in fact improper, see Irick , 762 S.W.2d at 131, th e trial court sustained the appellant's objec tion to the prosecutor's r emark. Finally, w

ith respect to any remarks a ddressing fees paid to expe rt witnesses, Tenn. R. E vid. 616 provides, "A party may offer evidence by cross-examination, extrinsic evidence, or both, that a w itness is biased in favor of or prejudiced against a party or another witness." Thus,in cross-examining the appellant's expert w itnesses during trial, the pros

ecutor properly inq uired about fees. Therefore, the prosecutor's statements duri ng closing argument w ere grounded in the proof presented at trial.
"Closing argument must be temperate, must be predicate d on evidence introduced during the tri al of a case, and must be pertinent to the issues being tried." State v. Odom , No. 02C01-9305-CR-00080 ( Tenn. Crim. App. at Jackson, October 19, 1994), perm. to appeal granted , (Tenn. 1995). See also State v. Tyson , 603 S.W.2d 748, 754 (Tenn. Crim. App. 1980). We conclude that the State's argument largely complied with this standard, and that the trial court did not abuse its discretion in controlling closing argument during the penalty phase-66-

of the trial. This issue is without merit.

8. WHETHER THE TRIAL COURT PROPERLY CHA RGED THE JURY REGAR DING THE CREDIBILI TY OF WITNESSES.
The appellan t contends tha t the jury instructio ns given by the trial jud ge regarding the credibi lity of witnesses, the impeachment of witnesses, and the method of resolving conflicts in the testimony of witnesses unconstitut ionally restrain ed the ju ry in their d etermin ation of credibili ty.
The instructions about which the appellant complains are the pattern jury instructions for the credi bility of witnesses and the impeachment of witnesses. T.P.I. -- Crim. § § 37.01, 37.02. Both of these instruction s have been held by this court to be a proper statement of the law. See State v. Glebock , 616 S.W.2d 897, 906 (Tenn. Crim. App.), perm
. to appeal denied , (Tenn. 1981). We conclude that this issue is with out merit.

9. WHETHER THE A PPELLANT WA S PROPERLY CONVICT ED OF FIRST DEGREE BURGLARY.

A. INSUFFICIENT EVIDENCE The appellant contends that there w as insufficient evidence to convict him of first degr ee burglary. He specifically claims that the State failed to prove that there had been a "bre aking and entering" of the v ictim's house. The-67-

standard of review regarding the sufficiency of the ev idence outlined in the appellant's second issue w ill be used to evaluate th is contention also. See , supra , Section III, Issue #2 "Whether the trial court erred in overr uling the appellant's motion for judgment of ac quittal as to the charg e of premeditated murder.".
Tenn. Code Ann. § 39-3-401 (1988) define d first degree burglar

y as "the breaking and entering i nto a dwelling house . . . by night, with intent to commit a felony." The trial court pr operly instructed the j ury that "[a]ny person who after having entered the premis es mentioned in §39-3-401, wi th intent to commit a felony, shall brea k any prem ises, or an y safe or re ceptacle therein, shall rece ive the same punishment as if he had broken i nto the premises in the first i nstance." See Tenn. Code Ann. § 39-3-402 (1988).
The appellant contends that the evi dence demonstrated that the appellant had been granted entry by the victim. Howev

er, the breaking element can be either actual or construc tive, and if entry w

as gained by either fraud or threat, the breaking will be considered constructiv e. State v. Holland , 860 S.W.2d 53, 58 fn. 11 (Tenn. Crim. App. 1993). Si nce the appellant was armed w ith a piece of wood, there was at least cir

cumstantial evidence that the appellant gained entry by threat. Likewise, beca use the victim knew the appellant, entry could h ave been gained by fraud if the appellant told her that he was there for legitimate business.

Moreover, in consider

ation of Tenn. Code Ann. § 39-3-402, the St ate proved that the top right-hand dresser drawer had been opened and that the-68-

appellant had opened the kitchen dr awer to remove the butche r knife. Based upon these facts, we conclude th at a rational trier of fact coul d have found the appella nt guilty of first deg ree burgla ry.

B. VARIA

NCE The appellant next argues th at he was denied notice of the c harges being brought against him becaus e the indictment charged the br eaking and entering into the home while the proof demons trated only the breaking into the drawers of the home. He further contends that he was denied due process and a fair trial because he was convict ed on a charge never made i n the indictment.
In order to satisfy consti tutional requirements, an i ndictment must provide the defendant with notice of the offense char ged, provide the court with an adequate ground upon whic h a judgment may be entered, and provide the defendant with protection aga inst double jeopardy. State v. Byrd , 820 S.W. 2d 739, 741 (Tenn. 1991). Moreove r, in State v. Moss , 662 S.W.2d 590, 592 (Tenn. 1984), the Tennessee Supreme Court hel d that a variance between the proof and the indictment did not prejudice the defend ant's rights if the indictment sufficiently informed the defendant of the charges against him so that he could properly prepare his defense and not be misled or surprised at trial

and if the variance was not such that it would pr esent a danger that the defendant could be prosecuted a second time for the same offense.
In this case, the appellant w as aware of the facts surroundi ng the entry into-69-

Ms. Lefever's home and the entr y into the two draw

ers of her home. Although the appellant contends that he was surprised at trial, he

has not demonstrated how he could have better defended had he been given prior notice that the breaking involved breaking

into the drawers. Al l of the activity w as involved in one cr

iminal episode. For these reasons w e conclude that, even if a v ariance existed, it w

as harmless under these circu mstances. This issue is w ithout merit.

11. WHETHER THE A PPELLANT WA S GIVEN PROPER NOTICE O F THE AGGRAVA

TING CIRCUMSTANCES UPON WHICH THE STATE INTENDED TO RELY. The appellant contends that he was not provided sufficient notic e of the facts supporting the aggr avating circumstance that "[t]he murder was committ ed for the purpose of avoiding, i nterfering with, or p reventing a lawful arrest or prosecution of the defendant or ano ther." Although the appellant requested a bill of parti culars fo r inform ation con cerning th is circums tance, t he State did not re ply.
Tenn. R. Crim. P. 7(c) al lows the court to dir ect the filing of a bill of particulars "so as to adequately identify the offense charged." "This provision is to be construed to serve that singular purpose , and is not meant to be used for purposes of broad discovery." (emphasis added) Advis ory Commission Comments, Tenn. R. Crim. P. 7. See also State v. Stephenson , 878 S.W.2d 530 (Tenn. 1994); State v. Wiseman , 643 S.W.2d 354 (Tenn. Crim. App. 1982). Therefore, Rule 7(c) is not applicable to the sentencing phase of the proceedings.18 The appellant 's tri al was set fo r February o f 1993. -70- Tenn. R. Crim. P. 12.3(b) r equires the State to prov ide notice of its intent to seek the death penalty no less than thirty days prior to trial. The rule also requires the State to specify the aggravati ng circumstances upon w hich it tends to rely at the sentencing

hearing. Specification may be satisfied by a citatio n to the aggravating circumstance. Tenn. R. Crim. P. 12.3(b).
In the present case, the State amended its notice to seek the death penal ty to include the subsection (i)(6) aggravating factor on November 5, 1992, well within the statutoril

y mandated time period. 18 This issue is witho ut merit.

14. WHETHER THE TRIAL COURT PROPERLY INSTRUCTED THE JURY "REGA RDING REASONABLE DOUBT ." The appellant contends that he was denied his rights under Article I, Sections 6, 7, 8, 16, 17, and 18 of the Tennes see Constitution, and the Six th, Eighth and Fourteenth Amendments to the Unite d States Constitution because the jury was unconstitutionally instructed concerning the meaning of "reasonable doubt" at the guilt and sentencing phase of the trial. At the guilt pha se of the trial, the jury received the following instruction concerning the meaning of "reasonable doubt."
Reasonable doubt is that doubt eng endered by an investigation of all the proof in the case and an inabili ty, after such investigation, to let the mind rest easily as to the certainty of guilt. R

easonable doubt does not mean a19 We also note that, at the sentenci ng phase of the t rial, the jury was likewi se instruct ed as to "a m oral c ertain ty" rega rding the fin ding o f agg rava ting c ircum stan ces "beyo nd a r eas ona ble doubt." (charge of the court, transcript of the evidence, vol. eight, § III , pp. 1153-1154).

20 The United States Supreme Court, in Cage v. Louisi ana , 298 U.S. 39, 41, 111 S.Ct. 328, 329 (1990), hel d that "moralcertaint y" modifi ed by the phr ases "grave uncer

tainty " and "actua l substanti al doubt" did not meaningf ully convey the definition of reasonab le doubt, and, thus, violat ed the due process cl ause. -71- captious, possible, or imag inary doubt. Absolute cer tainty of guilt is not demanded by the law to convict of any criminal charge, but moral certainty is required, and this certainty is required as to every

element of proof necessary to cons titute the offense. (charge of the court, transcript of the evidence, vol. five, § III, p. 681). 19

The appellant argues that this instruction equating "beyond a reasona ble doubt" with "a moral certai nty" violated his due p rocess rights under the new standard set forth in Victor v. Nebraska , --- U.S. ---, 114 S.Ct. 1239 (1994). In Victor , the Unit ed State s Suprem e Court ru led that the phras e "moral certaint y" may have lost its his

torical meaning, and that a j ury might "understand it to allow conviction on proof that does n ot meet the beyond a reasonable doubt standard." Victor , --- U.S. at ---,114 S.Ct. at 1247. It reasoned that "'moral certainty,' standing alone, might not be recognized by modern jurors as a synonym for 'proof beyond a reasonable doubt,' " but "something less than the very high lev

el of probability requ ired by the Constituti on in criminal cases." Id

. Whil e the Cou rt stated that it di d not con done the use of th e "moral certaint y" phrase, the Court held that the phrase could pass constitutio nal muster if used in conjunction with a modify ing instruction that l ent meaning to the phrase. Victor , - -- U.S. at ---, 114 S. Ct. at 1248. 20 In order to meet the requi rements of due21 We note, however, that a federal district

court has recently hel d that t he phrase "l et the mind rest easil

y," when used to quali fy "moral ce rtaint

y," doe s not suffi cientl y convey t o the jury

the requisite b urden o f proof re quired by the Cons titution. See Rickman v. Dutton , 864 F.Supp. 6 86 (M.D. Tenn. 1994). We are not, however, bound b y that court's decision. -72- process, the jury ins

tructions must be examined as a whole, without cons idering particular phrases out of cont ext. Victor , --- U.S. ---, 114 S.Ct. at 1243.
The instruction provided to the jury in the present case used the term "moral certainty" in conj unction with "let the mind rest easily" and "aris e from possibility." Though ne ither of these phrases have been before the United States Supreme Court, 21 the courts of this state hav e consistently upheld the constitutionality of this

instruction. See State v. Nichols , 877 S.W. 2d 722 (Tenn. 1994), cert. denied , --- U.S. ---, 115 S.Ct. 909 (1995); Pettyjohn v. State , 885 S.W.2d 364 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1994); State v. Beckham , No. 02C01-9405-CR-00107 ( Tenn. Crim. App. at Jackson, Sept. 27, 1995); Caldwell v. State , No. 02C01-9405-CR-00 107 (Tenn. Cr im. App. at Jackson, Dec. 28, 1994) , perm. to appeal granted in part, denied in part , (Tenn. May 30, 1995); State v. Voaden , No. 01C01-9305-CC-00151 ( Tenn. Crim. App. at Nashvil le, Dec. 22, 1994), perm. to appeal denied , (Tenn. May 1, 1995); Smith v. State , No. 03C01-9312-CR-00393 ( Tenn. Crim. App. at Knoxville, July 1, 1994). Specifically, the Tennessee Supreme Court noted in State v. Nichols , 877 S.W .2d at 73 4, that " the use o f the ph rase 'mor al certai nty' by itself is insufficient to invalidate an instruction on the meanin g of reasonable doubt." The court distinguis hed the Tennessee instruction from the one invalidated in Cage v. Louisiana because the Tennessee instructi on does not require "grave unc

ertainty" to support acq uittal. Moreover, th e court concluded-73-

that: [w]hen considered in conj unction with an instruc tion that "[r]easonable doubt is that doubt en gendered by an investigation of all the proof in the case and an inabili ty, after such investigation, to let the mind rest easily upon the certainty of your verdict," we find that the instruction properly reflects the evidentiary

certainty requir

ed by the "due process" clause of the federal cons titution and the "law of the land" provision in our state constitution. Nichols , 877 S.W.2d at 734. We, therefore, conclude that the charge gi ven by the trial court, althoug h containing the phrase "moral certainty," did not v

iolate the appellant's rights under the United States or the Tennesse e Constitutions.

15. WHETHER THE TRIAL COURT'S INSTRUCTIONS IN THE PENALTY PH ASE PROHIBITE D THE JURY FROM CONSIDERING AND GIVING FULL EFFECT TO THE APPELLANT'S MITIGAT ING EVIDENCE. A. MODIFIER "EXTREME" The appellant first contends that the jury instructions preclude d the jury from considering mitigating evidence of mental or emotional disturba nce which did not rise to the level of extreme mental or emotional disturbance. In its jury instructions, the trial

court recited the language of Tenn. Code Ann. § 39-2- 203(j)(2) in instructing the jury that in arriving at the punishment the jury shall consider the mitigating

factors including, but not limited to that "[t]he murder w as committed while the defendant w as under the influence of extreme mental or emotional disturbance." The appell ant contends that use of the modifier "extreme" misled the jury in its consideration of the ev idence.
The Tennessee Supreme Court rejected this same argument in State v.-74-

Smith , 857 S.W.2d 1, 16-17 (Tenn.), cert. denied , --U.S.--, 114 S. Ct.561 (1993). Moreover, in the case at bar, the jury was also instructed that it could consider any mitigati ng factor raised by the ev idence at either the guilt or penalty phase of the trial. This issue is without merit.

B. MODIFIER "SUBSTANTIALLY" The appellant also contends that the jury instructions precluded the jury from considering mitigating evidence of mental illness and intoxication which did not rise to the level of "substantially" affecting the appellan t's ability to conform his conduct to the law. Again, this argument w as rejected in Smith , 857 S.W.2d at 16-17, and we find the issue to be without merit.

C. UNANIMO US AGREEMENT ON MITIGATI NG CIRCUMSTA NCES Lastly, the appellant conten ds that the trial court unc onstitutionally limited the consideration of mitigating evidence by requiring the jury to unanimously agree on a verdict of li

fe or death. This argument w as rejected in Smith , 857 S.W.2d at 18, and we agree that "nothing i n the Tennessee statutes, and the instructions given the jury, or in the verdict form submitted to the jury, was likely to lead any juror to bel ieve that he or she was precluded from considering mitigating circumst

ances unless all jurors

agreed that the circumstanc es existed." This issue is

without merit.

16. WHETHER THE TRIAL COURT FAILED T O PROVIDE THE JURY WITH PROPOSED IN STRUCTIONS NECESSA RY FOR THE PROPER DETERMINATION OF SENTENCE.-75- The appellant contends that the trial court erred in refu sing to give certain requested jury instructions during the penalty phase of the trial. The trial court rejected the following special instructions: 1.(2) Burden o f proof -generall y; 2.(4) Life means life -death means death -sentenc e will be carried out 3.(5) Definition of life and deat h - sentencing; 4.(6) Jury has responsib ility for final de cision - sentenci ng; 5.(7) Decision to be ma de by individual juro rs - sentencing; 6.(9) Aggravating circumst ance - definit ion - sentencing; 7.(10) Weighing aggravation and mitigation - defining mitigation - sentencing; 8.(13) Aggravating circumstance - standards for consideration - sentencing; 9.(14) Presumption re garding aggravating circu mstances - sent encing; 10.(15)Aggravatin g circumstances - u nanimity - senten cing: 11.(16)Aggravating

circumstance - indiv

idual consideration but requirement of unanimity - sente ncing; 12.(18)S entence - crime in so ciety; 13.(19)Deterre nce - cost senten cing; 14.(20)Defin ition - weight and un animity - sentenc ing; 15.(21)Defin ition - mitigating cir cumstances - se ntencing; 16.(22)Mitigatin g circumstance - de finition -sent encing; 17.(23)Mitigatin g circumstance - de finition -sent encing; 18.(24)Stand ard of proof - sentencing; 19.(26)Weighing aggravating and mitigating circumstances - sentencing; 20.(27)Doubt inures to the be nefit of the defendant - sentencing; 21.(28)Mercy - sent encing; 22.(29)Consid eration for se ntence less tha n death - sente ncing; 23.(30)Mitigatio n - reason for se ntence less tha n death - sente ncing; 24.(31)Sympat hy - sentencing; 25.(32)Compa ssion - mercy - sente ncing; 26.(33)Mitigatio n - reason for se ntence less tha n death - sente ncing; 27.(34)Mitigating circumstances - basis for sentence less than death - sentencing; 28.(35)Imposing a sentence l ess than death; 29.(36)May vote lif e - sentencing; 30.(37)Finding beyond a reasonable doubt that death is app ropriate - sentencing; 31.(38)Lingerin g doubt -senten cing; 32.(39)Jury verdict - inability to agree - se ntencing; 33.(40)No eviden ce except that int roduced at trial - sentencing; 34.(42)Mitigatin g circumstance - age - sentencing;-76- 35.(44)Mitigatin g circumstance - m ental illness - sen tencing; 36.(46)Mitigating circumstance - capacity to appreciate criminality - sentencing; 37.(47)Mitigatin g circumstance - em otional develop ment - sentenc ing; 38.(50)Mitigatin g circumstance - ad olescent - sente ncing; 39.(51)Mitigatin g circumstance - pa rental expectat ions - sentencin g; 40.(53)Mitigatin g circumstance - he alth of anoth er - sentencing; 41.(54)Mitigatin g circumstance - do mination - sent encing; 42.(55)Mitigatin g circumstance - pl anning of crime - sentencing; 43.(56)Mitigatin g circumstance - de ath of victim - sen tencing; 44.(57)Mitigatin g circumstance - lin gering doubt - sent encing.
When a trial court's instructions c orrectly charge the applicable law, the court does not err by r

efusing special requests

. Tillet v. State , 565 S.W.2d 509, 511(Tenn. Crim. App. 1978). Nor is it error to refuse to give an inaccurate special request. State v. Moore , 751 S.W.2d 464, 467 (Tenn. Crim. App.), perm
. to appeal denied , (Tenn. 1988). After review ing the instructions g iven by the trial court, we conclude that the instructions adequately charge the applicable la w. This issue is without merit.

17. WHETHER THE DEATH PENALTY UN CONSTITUTIONALLY INFRINGES UPON THE APPELLANT'S FUNDA MENTAL RIGHT TO LIFE.
The appellant contends that the Ten nessee death penalty statute is unconstitutional in that the r ight to life is fundamental and the p unishment of death is not necessary to promote any compelling st ate interest. The appellant argues that less severe penalties are available to serve the state's interest in punishing the appellant. M oreover, the appellant ass erts that "compelling stat e interests are those which secure our democratic institutions and/or insure nationa l security. " Whi le this arg ument is somewhat novel in its approac h, we-77-

note that one of the state's most basic functions is to enforce the penal l aws as established by the legislature. We quote from the United States Supreme Court decision, Gregg v. Georgia , 428 U.S. 153, 183, 96 S.Ct. 2909, 2930 (1976): [C]apital punishment is an ex pression of society's mor al outrage at particularl

y offensive conduct. This functi on may be unappealing to many, but it is essential in an order ed society that asks its

citizens to rely

on legal processes rather than self-help to vindicate their wrongs.
The Tennessee Supreme Court has held that the state's death penalty statute, per se , meets due process requir ements. See State v. Black , 8 15S. W. 2d 166, 190 (Tenn. 1991); see also State v. Groseclose , 615 S.W.2d 142 (Tenn.), cert. denied , 454 U.S. 882, 102 S.Ct. 366 (1981). This issue is therefore without merit.

18. WHETHER THE STA TE'S DEATH PENALTY STA TUTE IS CONSTITUTIONAL.
The appellant raises sever al constitutional objecti ons to the Tennessee death penalty statute. Specifically, the appellant cont ends that the death penalty statute is unconstitutional in that: (a) it provides ins ufficient guidance to the jury concerning who has the burden of proving whether mitigation outweighs aggravation and what standard the jury should use in making that deter mination; (b) it fails to sufficiently narrow the class of death penalty eligible defendan ts; (c) it insufficiently limits the jury's d iscretion in that once it finds an aggravating circumstance beyond a reas onable doubt, it can impose death, r egardless of what mitigation is s hown; (d) it requires that if the jury finds that the aggravatin g circumstances o utweigh the mitigating circumstances, it must impose death;-78-

(e) it allows the j ury to afford too little w eight to non-statutory

mitigating factors. The statute requires that the jury consider "any mitigating circumst ances"; (f) it does not require the jury to make the ultimate determination that d eath is appropriate in that it is "merely filling in th e blanks" in determining and comparing mitigating and aggr

avating circumstances .; (g) it does not info rm the jur y of its ab ility to imp ose mercy; (h) it provides no r

equirement that the jury make findings of fact as to the presence or absenc e of miti gating circ umstanc es, there by prevent ing effe ctive appellate review; (i) it prohibits the jury from being informed of the c onsequences of its failure to reach a unanimous verdict in the penalty phase of the trial; (j) it allows the impo sition of a cruel an d unusua l punishm ent and i n that it a llows death to be imposed by electro cution; (k) it has been imposed discriminately on the basis of race, sex, geographic region, and economic and political status of the defendant; (l) the proportionalit

y of arbitrariness rev

iew conducted by the Tenness ee Supreme Court pursuant to Tenn. Code Ann. § 39-13-205 is inadequ ate and deficient; (m) it permits the intro

duction of relatively

unreliable evidence in

the State's proof of aggravating circumstances and in its rebuttal of mitigating circumstances; (n) it allows the S

tate to make final closing ar guments to the jury in the penalty phase of the trial;

All of the appellant's argument s except (g) hav

e been rejected by the Tennessee Supreme Court. See State v. Cazes , 875 S.W.2d 253, 268-269 (Tenn. 1994);. State v. Smith , 857 S.W.2d 1, 16-17, 23 (Tenn. 1993); State v. Howell , 868 S.W.2d 238, 258 (Tenn. 1993); State v. Black , 815 S.W.2d 166, 185, 187 (Tenn. 1991); State v. B oyd , 797 S.W.2d 589, 596 (Tenn. 1990); State v. Melson , 638 S.W.2d 342, 366, 368 (Tenn. 1982); State v. Groseclose , 615 S.W.2d 142, 150 (Te nn. 1981). With respect to the argument in (g), in-79-

consideration of the jury instructions give n in a capital case, we find this issue to be without merit.
19. WHETHER THE CUMULATIVE EFFECT OF ALL ERRORS VIOLATE THE A

PPELLANT'S CO NSTITUTIONA L RIGHTS.
As his final argument, the appel lant contends that the cumulativ e effect of all errors alleged both at trial and at sentencing violates his constitutional rights. As this court has not found any error with respec

t to the appellant's previ ous eighteen issues, we find this final issue to be wi thout merit.

# FILED
April 7, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

STATE OF TENNESSEE, ( ( Plaintiff-Appellee, ( ( ( Cumberland County

v . ( ( Hon. Leon Burns, Jr., Judge ( ( No. 03-S01-9604-CC-00047 MICHAEL DEAN BUSH, ( ( Defendant-Appellant. (

CONCURRING OPINION-81- I concur in affirming the conviction of first degree murder and the sentence of death in this case.

I write separately to state my reasons for not finding as prejudicial error the trial court's charging of the 1989 version of aggravating circumstance (i)(5), to express my continuing concern regarding the Court’s comparative proportionality review, and to comment on a disturbing aspect of the case which is insulated from review. First, I repeat an observation made in State v. Howell , 868 S.W.2d 238, 263 (Tenn. 1993) (Reid, C.J., concurring), which is applicable to the performance of the trial judge in this case: "The trial judge demonstrated the qualities critically important in conducting a highly emotional and legally exacting trial. The record shows that the case was decided by a competent and impartial jury. The record demonstrates that capital cases can be tried relatively free of error." Counsel pressed to the line the wide latitude necessary for effective advocacy but were appropriately restrained by the cool hand of the judge. The case also demonstrates that having a review by the Court of Criminal Appeals of all assignments of error in capital-82-

cases, with a final review by this Court of a limited number of issues in addition to those issues mandated by statute, is an efficient utilization of judicial resources.

The State relied upon, and the jury found, aggravating circumstance (i)(5). The offense in this case was committed in 1988; the trial was held in 1993. At the time the offense was committed, aggravating circumstances (i)(5) was defined as a murder that "was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind." Tenn. Code Ann. § 39-2-203(i)(5) (1982). In 1989, that definition was amended by deleting "depravity of mind" and substituting "serious physical abuse beyond that necessary to produce death." Tenn. Code Ann. § 39-13- 204(i)(5) (1991). Without objection, the trial court charged the 1989 version of the statute.

The Court held in State v. Brimmer , 876 S.W.2d 75, 82 (Tenn. 1994), that in capital cases the applicable law is the law that was in effect at the time the offense was committed. The defendant insists that charging the 1989 definition was reversible error. There can be no denying that under the authority of Brimmer , the instruction was22 As noted in the main opinion, Brimmer was decided after this case had been tried.

-83- erroneous. 2 2 However, in my opinion, the effect of the error was ameliorative rather than prejudicial, and, therefore, does not constitute reversible error.

I have dissented in every case decided by this Court since September 1990 in which there was reliance for the sentence of death on a finding that the murder involved depravity of mind. The basis of those dissents is that every first degree murder is "especially heinous, atrocious or cruel in that it involved depravity of mind"; consequently, that instruction has no reasonably precise meaning and does not aid the jurors in determining if death is an appropriate punishment. In the first case, State v. Black , 815 S.W.2d 166, 196-97 (Tenn. 1991) (Reid, C.J., concurring and dissenting), I suggested that:

a proper limiting construction of "depravity of mind" to be given in those cases where torture is absent would be established by adopting the definition of that term set forth by the New Jersey Supreme Court in State v. Ramseur , 106 N.J. 123, 524 A.2d 188, 230-231 (1987), where it held that this phrase marks society's concern to punish severely-84- those who murder without purpose or meaning as distinguished from those who murder for a purpose (albeit a completely unjustified purpose). This term isolates conduct that causes the greatest abhorrence and terror within an ordered society, because citizens cannot either in fact or in perception protect themselves from these random acts of violence. The killer who does it because he likes it, perhaps even because it makes him feel better, who kills bystanders without reason, who kills children and others whose helplessness would indicate that there was no reason to murder, evinces what we define as depravity of mind.

. . . What society is concerned with here . . . is the complete absence--from society's point of view--of any of the recognizable motivations or emotions that ordinarily explain murder.

In State v. Van Tran , 864 S.W.2d 465, 488 (Tenn. 1993) (Daughtrey, J., dissenting), I joined Justice Daughtrey in stating: "Because the "depravity of mind" prong of aggravated circumstance (i)(5) is so vague, the instruction given in this case allowed the jury to exercise the sort of unguided discretion condemned by the United States Supreme Court in Godfrey v. Georgia , 446 U.S. 420, 100 S. Ct. 1759,-85-

64 L.Ed.2d 398 (1980), and Maynard v. Cartwright , 486 U.S. 356, 108 S. Ct. 1853, 100 L.Ed.2d 372 (1988)."

Having obviously failed to convince my colleagues of the correctness of my position, I stated the matter a bit more firmly in State v. Shepherd , 902 S.W.2d 895, 909 (Tenn. 1995) (Reid, J., dissenting):

As stated in prior dissents, the words "heinous, atrocious or cruel" are so bereft of particular meaning that this aggravating circumstance does not accomplish the constitutional mandate of directing and limiting the jury's discretion "so as to minimize the risk of wholly arbitrary and capricious action." Gregg v. Georgia , 428 U.S. 153, 189, 96 S. Ct. 2909, 2932, 49 L.Ed.2d 859 (1976); see State v. Black , 815 S.W.2d 166, 195 (Tenn. 1991). The precariousness of the Court's persistent reliance upon this patently invalid aggravating circumstance is indicated by the opinion of Justice Stevens in Barber v. Tennessee , _____ U.S. _____, 115 S. Ct. 1177, 130 L.Ed.2d 1129 (1995). In denying the capital defendant's petition for certiorari fromthe judgment of this Court denying postconviction relief, Justice Stevens stated: . . . In this case, for example, there are valid reasons for the Court's decision to deny review. But this does not mean petitioner's challenge to his death sentence, based in part upon the trial judge's definition of an-86- aggravating circumstance, lacks merit. Under the trial court's instruction, a jury could find an aggravating circumstance sufficient to impose the death penalty merely by concluding that a murderer's state of mind was "wicked or morally corrupt." Because such a state of mind is a characteristic of every murder, the instruction is plainly impermissible under this Court's holdings in Godfrey v. Georgia , 446 U.S. 420, 428-429 [100 S. Ct. 1759, 1764-65, 64 L.Ed.2d 398] (1980) (striking down instruction allowing jury to find aggravating circumstance if murder was "'outrageously or wantonly vile, horrible and inhuman'"), and Maynard v. Cartwright , 486 U.S. 356, 363-364 [108 S. Ct. 1853, 1858, 100 L.Ed.2d 372] (1988) ("'especially heinous, atrocious, or cruel'").

(Footnotes omitted.)

While "depravity of mind," in my view, is fatally deficient in meaning, the language of the 1989 statute, "serious physical abuse beyond that necessary to produce death," is plain and provides a meaningful standard for determining the appropriateness of death as a penalty. As a practical matter, then, the substantive effect of the “error” in this case was to elide, or even to correct, the unconstitutional portion of this aggravating circumstance. The error was entirely technical and curative of those-87-

constitutional defects which I have previously found in this aggravating circumstance and, under the facts of this case, the instruction gave the jury a constitutional equivalent to the prior unconstitutional version of aggravating circumstance (i)(5) found in Tenn. Code Ann. § 39-2- 203(i)(5)

. I have not in any prior case, and I do not now, find that definition deficient as an aggravating circumstance. Consequently, I agree with the main opinion that giving the erroneous instruction to the jury is not grounds for reversal of the sentence.

Also, in some prior cases, I have insisted that the evidence did not support a finding of torture as an aggravating circumstance. See e.g. , State v. Cazes , 875 S.W.2d 253, 272 (Tenn. 1994) (Reid, J., concurring and dissenting); State v. Van Tran , 864 S.W.2d 465, 483 (Tenn. 1993) (Reid, C.J., concurring and dissenting); State v. Black , 815 S.W.2d at 196. The facts of this case, as stated in the main opinion, clearly support a finding of torture as that term is generally understood. Perhaps it is noteworthy that the sufficiency of the evidence supporting this aggravating circumstance, though mandated by statute for review, Tenn. Code Ann. § 39-13-206(c)(1)(B) (Supp. 1996),-88-

was not raised by the defendant. Consequently, I concur in the holding that the evidence is sufficient to support the jury's finding of the torture component of aggravating circumstance (i)(5).

Another issue which, in my view, requires further discussion is the comparative proportionality review mandated by Tenn. Code Ann. § 39-13-206(c)(l)(D) (Supp. 1996); this issue has been the basis for prior dissent. There is no methodology to the majority's analysis. The review consists entirely of conclusory, and defensive, statements followed by a further recitation of the facts. See State v. Nichols , 877 S.W.2d 722, 744 (Tenn. 1994) (Reid, C.J., dissenting); State v. Hurley , 876 S.W.2d 57, 71 (Tenn. 1993) (Reid, C.J., dissenting); State v. Howell , 868 S.W.2d at 271-72 (Reid, C.J., concurring); State v. Van Tran , 864 S.W.2d at 484-85 (Reid, C.J., concurring and dissenting); State v. Harris , 839 S.W.2d 54, 84-85 (Tenn. 1992)(Reid, C.J., dissenting).

Nevertheless, as in State v. Howell and State v. Smith , 868 S.W.2d 561, 585 (Tenn. 1993) (Reid, C.J., concurring), the record establishes that upon comparison of the character of the defendant and the nature of his crime,-89-

to other defendants and other first degree murders, by any rational standard, the defendant is among the worst of the bad.

The character of the defendant and the circumstances of the killing in this case would justify the sentence of death judged by the definition of "depravity of mind" urged in State v. Black , see supra , at _____ [p. 4]. The defendant's conduct in killing an aged and helpless victim, who surrendered her last means of protection by opening the door of her home to the grandson of her best friend, is conduct which causes the greatest abhorrence and terror within an ordered society. There is no protection against a random killing by a trusted acquaintance. The character of the defendant shows more than a calculated robbery which got out of hand. The evidence shows a person of intelligence who is fascinated with vampires and demons, who dreams of killing, and whose life is inhabited by demons and monsters. His explanation of the homicide is disturbing; he was compelled by an underworld group. But that fanciful compulsion is belied by his manner of performing the act so that he literally became drenched with the victim’s blood and by the relish with which he recounted the crime to acquaintances. As stated in Howell , 868 S.W.2d at 272, "comparison of the character of the defendant in this case and the nature of his crime, by any standard of analysis, would show that he is among the worst of the bad."-90- It is, in fact, the abundant evidence of the defendant's maleficence that is disturbing. The record contains significant evidence beyond the circumstances relating directly to the crime. The defendant has been exhibiting symptoms of schizophrenia since he was in high school and was diagnosed as a schizophrenic while awaiting trial. The record discloses that, based upon the assessment of court-appointed mental health experts, the trial court found that the defendant was incompetent to stand trial. Those same mental health professionals also found that an insanity defense could be supported. However, the defendant has not challenged the court's subsequent determination of competency, and the record discloses no facts upon which plain error can be found in this regard. Apparently, counsel was content to present evidence of the defendant's mental condition at the sentencing hearing. Since the record does not facially establish that the mental condition of the defendant is disproportionate to that of other defendants sentenced to death, this aspect of the case cannot effectively be reviewed on the record before the Court.

In conclusion, the record does not disclose reversible error, but rather, supports the judgment rendered in the trial court and affirmed by the Court of Criminal Appeals and this Court.

__________________ __________________ _______ Reid, J.23 (i) No death penalty shall be imposed but upon a unanimous finding that the state has proven beyond a reasonable doubt the existence of one (1) or more of the statutory aggravating circumstances, which are limited to the following: 

# FILED
April 7, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

STATE OF TENNESSEE, ) FOR PUBLICATION ) Appellee, ) FILED: APRIL 7, 1997 ) v. ) CUMBERLAND COUNTY ) MICHAEL DEAN BUSH, ) HON. LEON BURNS, JR., JUDGE )

Appellant. ) NO. 03-S-01-9604-CC-00047

DISSENTING OPINION The majority concludes that aggravating factor (i)(6) 2 3 has been sufficiently demonstrated in the instant case.. . . . (6) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another. Tenn. Code Ann. § 39-13-204(i)(6)(1991).

24 Although Zirkle refers to the standard of proof required to establish guilt when the evidence against the defendant is entirely circumstantial, I think it is equally applicable here.

92 In my view, the evidence is not sufficient to warrant its application. Because I find that this error more probably than not affected the jury’s decision to impose the death sentence, I would vacate the sentence of death and remand this cause for a new sentencing hearing.

Although this is a close case, I do not find that the State presented sufficient evidence for the jury to conclude that Bush killed the victim in order to avoid arrest or prosecution for the robbery. When the evidence is entirely circumstantial, as in this case, then that evidence must preclude every other reasonable theory or hypothesis except that which it tends to support, i.e., that the killing was, in fact, motivated by a desire to eradicate a witness. State v. Zirkle , 910 S.W.2d 874, 882 (Tenn. Crim. App. 1995)(citing Marable v. State , 203 Tenn. 440, 313 S.W.2d 451, 456 (1958)). 2 4

The majority relies in part on the fact that the defendant and the victim knew one another. Such is not93

sufficient, without more, to establish the (i)(6) aggravating factor. In many cases, the victim either knows the defendant or has observed the defendant sufficiently to be able to later identify that person. This circumstance is so prevalent that to allow it to establish the (i)(6) aggravating factor would unduly and unconstitutionally enlarge the class of defendants subject to the death penalty.

Moreover, our prior application of the (i)(6) aggravator in similar cases has not been consistent. See State
v. Evans , 838 S.W.2d 185 (Tenn. 1992)(aggravating factor (i)(6) applied where defendant, a former employee, returned, robbed market, and killed a clerk whom he knew). But see State v. Van
Tran , 864 S.W.2d 465 (Tenn. 1993)(aggravating factor (i)(6) not applied where defendant, former employee, returned, robbed restaurant, and killed owner whom he knew). State v. West , 767 S.W.2d 387 (Tenn. 1989)(aggravating factor (i)(6) applied where defendant and co-defendant were convicted of the murder of a girl who knew co-defendant and could identify defendant). But

see State v. Branam , 855 S.W.2d 563 (Tenn. 1993)(aggravating factor (i)(6) not applied where defendant and co-defendant were convicted for the murder of a woman who knew defendant and could identify co-defendant).94 Because of the inconsistent application of the (i)(6) aggravating factor and the danger of unconstitutionally enlarging the class of defendants subject to the death penalty, I would hold that the fact that the victim knew the assailant, without more, is not sufficient to prove that the killing was in fact motivated by a desire to evade arrest or avoid prosecution. By requiring additional evidence, we would screen out thosecases in which a defendant initially intented to commit a noncapital offense but for a reason other than witness elimination, escalated the conduct to include an unlawful killing.

In this case, the State’s theory was that Bush killed Lefever so that she could not identify him as the individual who broke into her house and robbed her. From my review, however, there is substantial evidence that Bush did not kill Lefever in order to eliminate her as a witness to the burglary/robbery. First, Bush made no attempt to conceal the intended crime from his wife; rather, he told her that he was going to hit the old woman over the head and take her money. The majority finds it significant that the defendant withheld from his wife the name or address of the intended victim concluding that Bush wished to prevent her from "witnessing the burglary." However, there is no dispute that Bush told his wife of his intent to commit the burglary and asked her to drive him to the scene. In my view,95

this evidence indicates that Bush was not concerned about concealing the burglary. I find that this testimony indicates that Bush simply did not want to implicate his wife in the crime. Hence, I find this evidence insufficient to support the majority’s conclusion that the defendant killed the victim to eliminate her as a witness.

More to the point, Bush related versions of what happened to two fellow inmates who testified as witnesses for the State. The first testified that Bush told him that he had killed the victim when he could not find any money. The second testified that Bush told him that he killed the victim when he lost his temper after an argument erupted. In these two versions, Bush clearly identifies himself as the killer. Given this disclosure, there was no reason for him to lie about his motivation for the killing. In both versions, Bush killed Lefever because he was angry and frustrated. In my view, this evidence clearly indicates that Bush was not concerned about Lefever’s ability to identify him as the burglar/robber when he killed her. This evidence raises, in the very least, a reasonable doubt as to whether the defendant was motivated by a desire to avoid arrest or prosecution.96 We have previously held that the State does not have to prove that avoidance of arrest or prosecution was the defendant’s sole or predominant motivation to establish the applicability of the (i)(6) aggravating factor. State v. Carter , 714 S.W.2d 241, 250 (Tenn. 1986). However, we should require that the State prove that a desire to avoid arrest or prosecution was at least a motivation for the crime. In my view, the State failed to carry that burden in this case.

To reiterate, I would restrict the application of the (i)(6) aggravating circumstance to cases where the evidence clearly establishes that the defendant was motivated by a desire to avoid arrest or prosecution by eliminating the witness. To illustrate, the (i)(6) aggravator was appropriately applied in State v. Smith , 868 S.W.2d 561 (Tenn. 1993)(victim killed while dialing 911); State v. McCormick , 778 S.W.2d 48 (Tenn. 1989)(undercover agent testified that defendant confessed that he killed victim to prevent her from "spilling her guts" about property defendant had stolen); State v. Adkins , 725 S.W.2d 660 (Tenn. 1987)(evidence that defendant eliminated the victim who was to testify against defendant for the shooting of defendant’s girlfriend); and State v. Johnson , 632 S.W.2d 542 (Tenn. 1982)(defendant told friend that he was going to rob a market and that he intended to leave no witnesses).97 In conclusion, I find that under the facts of this case, the evidence is not sufficient to establish the (i)(6) aggravating factor. I find also that the erroneous use of this aggravating factor more probably than not affected the jury’s decision to impose the death sentence. Accordingly, I would vacate the sentence of death and remand the cause for a new sentencing hearing.

____________________________________ ADOLPHO A. BIRCH, JR., Chief Justice