# FILED
March 14, 2000 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE TENNESSEE COURT OF CRIMINAL APPEA LS AT JA CKSON SEPTEMBER 1999 SESSION
STATE OF TENN ESSEE, ) C.C.A. NO. W1998-00634-CCA-R3-DD ) Appellee, ) SHELBY COUNTY ) (No. 96-0 9279 , 80 Below) V. ) ) HON. JOSEPH B. DA ILEY, JUDGE VINCENT C. SIMS, ) ) (Especially Aggravated Burglary and Appellant. ) Firs t-De gree Murd er - D eath Pena lty)

FOR APPELLANT : FOR APPELLEE : ON APPEAL: PAUL G. SUMMERS Attorney General & Repor ter W. MARK WARD Assistant Public Defender MICHAEL E. MOORE Solicitor General TONY N. BRA

YTON Assistant Public Defender AMY L. TA RKINGTON Senior Counsel AT TRIAL: 425 Fifth Avenue, North Nashville, TN 37243 BET TY TH OMAS Assistant Public Defender WILLIAM L. GIBBONS District Attorney General LARRY H. NANCE Assistant Public Defender JAMES M. LA MMEY Criminal Justice Center, Suite 201 Assistant District A ttorney General 201 Poplar Avenue Memphis, TN 38103 LEE V. COFFEE Assistant District A

ttorney General Criminal Justice Center, Suite 301 201 Poplar Avenue Memphis, TN 38103

OPINION FILED ____________________________ AFFIRMED THOMAS T. WOODALL JUDGE-1- O P I N I O N

In this capital case, the defendant, Vincent C. Sims, was convicted by a jury of especially aggr

avated burglary and first-degree murder. The j ury sen tenced the def endant to death by electrocution.At the sentencing hearing , the jury found fou r aggravating

circumstances: (1) the defendant was previousl y con victed of one or more felonies whose statutory element s involve the use of v iolenc e, (2) the murder was especiallyheinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death, (3) the murder was committed for the purpose of avoiding, interf ering with, or preventi ng a lawful arrest or pros ecution of the defendant
or another; and (4) the murder was knowingly

committed, solicited, directed, or aided by the defendant, while the defendant had a subs tantial role in committing or att e mpting to commit, or was fleein g after ha ving a substantial r ole in committing or attempti ng to commit, an y burgl ary or theft. See Tenn. Code Ann. § 39-13-204(i)( 2), (5), (6), and (7) ( Supp. 1995). The jury found that there were no mitigating circumstances suff iciently substa ntial to outweigh the aggr avating circumstances

and sentenced the defendant to death by electrocution. At a separate hearing, the tri al court sentenced the defendant to 20 years for his especiallyaggravated burgl ary conviction and ordered the sentence to run consecutively to the defendant’s sentence of death.

The defendant makes the following arguments in this direc t appeal: (1) that the evidence of

premeditation is insufficient to support his first-deg ree murder conviction, (2) th at the tr ial court erred by refusing to instruct the jury on the full law of self-defense and in charging the jury on the victim’s rig ht to self-defense, (3) that the tri al court erred by failing to instruct the jury on voluntary manslaug hter and criminally neg ligent homicide, (4) that the trial c ourt erre d by grantin g the stat e’s speci al request for a jury inst ruction on felony-murder, (5) that the evidence i s insufficient to support applic ation of the prior violent felony aggravating circumstance, (6) that the trial court erre d byallowing the state t o impeach the defendant’s mitigation w itnesses with his pr

ior convictions, (

7) that the trial court erred by refusing to al low the defense to p resen t hearsay evidence dur ing the-2-

sentencing phase, (8) that the state’s closi ng argument durin g sentencin g constituted prosecutorial misconduct, (9) that the evidence is insufficient to support a finding that the murder was es pecially heinous, atroc ious, or cruel, (10) that the jury instructi on on the heinous, atrocious, or cruel aggravating circumstance is unconstitutional, and (11) that the death pe na lt

y s ta tu te s a re un co nsti tu ti on al . We

find that any error was har mless and affirm the judgment.

BACKGROUND

The 42-year-old victim, Forrest “Chip” Smith, was killed during the burglary of his home on April 5, 1 996. According to a co-w orker, the victim left hi s place of employment that day at approx imately 10:05 p.m.

That same night, the defendant called Brian Keith Mitchell, the defendant’s cousin and co-defenda nt, from a p hone booth around 8:40 or 8:50 p.m. The defendant told Mitchell that he had broken into a house and needed help carryi ng a television. Mitchell went to pick up his mother, and when he returned, the defendant was waiting for him. It was approximatel y 9:30 p.m. when Mitchell and the defendant drove to the victim’s house in a 1994 Toyota Camry owned by the defendant’s gi rlfriend. Mitchell did not see
a weapon on the defendant, however, he did see something “poking” out of the defendan t’s clothes. Earlier

that day, Mitchell had seen the defendant with a .22 caliber pistol with a brown handle and an eight- or nine-inch barrel.

It took approximately 30 minutes to drive to the victim’s house. When they arrived at the house, there were no cars in the drivew ay, and no one was at home. The defendant told Mitchell to unscrew the sensor light on the carport. While Mit che ll was doing this, the defendant went in the front door, w hich was halfway

off its hinges, and let Mitchell in through the

side door by the carpor t. The two men took the big s creen television out to the trunk

of the car. Once the televi sion was in the trunk, the defendant and Mitchell wentback into the house to find wire to tie the trunk down. The defendant told Mitchell to untangle the wire w

hile he got

a computer th at was in the front bedro om. While they were-3-

doing thi s, a l ight went on in the hall way. Mitchell ran out of the bedroom and saw the victim standing in the hallw aywith his empty hands in the air. Mitchell ran past the victim and out the door. The victim di d not try to stop h im. Mit chell tried to move the victim’s vehicle, which w

as blocking the Toyota. Thedefendant came out of the house and tried to move the victim’s vehi cle as well. When they could not mov e the vehicle, the defendant
ran back into t he house to get the keys. Mit chell heard the defendant yell “Give me the keys, motherfucker, give me the keys.” Then Mitchell

heard eight or nine gun shots. The shots sounded the same and were in rapid succession. Mitchell slid the tel evision out of the trunk when he heard the sho ts . Wh en the defen dant came out , he was holding a chrome.380 pistol and was holdi ng his side, saying that he had been shot. Thedefendant threw Mitchell the keys an d told him to move the vic tim’s car to t he end of the d riveway. While Mitchell was moving the victim’s car, the d efendant moved the Toyota.

During the drive home, the defendant told Mitchell that he and the victim were “skrangling” over the gun when the defendant was shot in the side and the victim was shot in the head and neck. The defendant said t hat he had to turn the victi m over to get the keys to his vehicle, and when asked why he killed the victim, the defendant said he had to because the victim saw his face. He appeared to be upset and ex cited after

the murder. The defendant told Mitchell that he had lost his beeper but he w as unsure where. He also told Mitchell not to tell any one about the murder and that he wa s going out of town. At the time of the murder, the defendant was 24 years old and Mitchell was 17 years old.

The defenda nt’s girlfriend, Tiffany J. Maxwe ll, testified that the defendant took her to work on April 5, 1996, and picke d her up betw

een 10:00 and 10 :15 p.m. Maxwell’s time sheets reflected that she worked until 11 p.m. that day, however, she testified that the defendant was always ear ly. The defendant told her that someone h ad tried to r ob him, and he had a deep scar on his side and blood o n his shirt. She did not observe any other injuries. That night, they went home and went to bed. The next day, the defendant acted normal, and they took the car to be w ashed. At thattime, Maxw ell noticed

that the frame
on her license plate was broken. The defendant said someone had tried to steal the car.-4-

Theybought a new frame after havi ng the car washed and threw the

rest of the old one in a dumpster.

When Patricia Louise Henson, the victim’s girl friend, arrived h ome between 10:00 and 10:30 p.m. on April 5 , she was unable to pull into the driveway beca use the victim’s vehicle was park ed across the sidewalk, blocking the driveway. After attempting to call and page the vic tim, Henson approached the house. S he saw the big screen television under the carport and the side door to the house pr opped open. The porch light, which she had left on, was turned off, and the motion detector light w as unscrewed. Inthe house, Henson found the victim ly ing in a pool of

blood. The victim kept tel ling her to “call 911, help me, call 911.” Henson immediatel y called 911 on her mobile telephone. When Henson asked the victim what had happened, he said “robbery.”

The police arrived w

ithin a few minutes, and anambulance followed. The first officer to arrive on t he scene observed that the victim was bleeding from sev eral places and appeared to be shot and in ex treme pain. The victim told the officer twice that “they shot me in the head,” however, the victim did not know

who had shot him nor could he descri be the su spects.Shortly there aft er, the vic tim became unconscious and was taken to the hospital, where he was eventually

taken off life s upport betw een 2 and 3 a.m. on April 6, 1996.

Itemsmissing from the house inclu ded the remote control for the television,
an answering machine an d telephone, and one of the victim’s pistols. When the police moved the big scree n tel evision from the carport, a beeper was discover ed. It was later determined that the beeper was owned by the defendant. Also found in the carport was a broken license plate frame.

Cartridge casings, bullet fragments , and bullet holes were found throughout the kitchen, living room, and hallway of the victim’s house. Five fired .380 ca liber cartridge
cases were identif ied as hav ing been fired from the same gun. A fired metal-jacketed-5-

bulletwas also consistent w ith a .380 caliber bullet. Three of the fragments, found in the north end of the hal lway in front of one of the bedrooms, were of .22 caliber bullets. Anothe r. 22 caliber bullet fragment was removed from the north entry hall in a return air vent. The bullet removed from the v ictim was also a .22 ca liber bullet. Fromall the bullet fragments examined, there were pos itively four separate bullets, and potentially five, which were .22 caliber.

On October 29, 1996, the defendant gave Mitchel l a statement regarding the incidentand told him to give it to his lawyer. Mi tchell’s atto rney, Bill Anderson, J r., confirmed that on October 29, 1996, his client gave him a written stat ement outlini ng a version of the offense. This document was examined by a forensic document examiner, who concluded that the document w as written by the defendant.

In this written statement,the defendant indicated that the victim entered

the residence unnoticed an d retriev ed a .380 cali ber pistol from t he back of the house. The victim confronted “the two burgl ars” with the .380 cal iber pistol, and Mitchel l ran out of the house. As the defendant tr ied to run, the victim began shooting at him. When the defendant tried to stop the victim from killing him, a “scuffle and struggle ensued.” According to the statement, the result was the victim being shot once in the head with his .380 caliber

pistol. The defendant then fled the house with the victim’s .380 caliber pistol and keys.

The autopsy on the victim was performed by Dr. Wendy Guther. The victim’s
arms were covered w

ith bruises. The

left arm was almost completel y bruised on the back, and the right arm was bruised in a coupl e of places on the front. There wer e bruiseson the bottom of the spine, on the right side of the buttocks, and near two w ounds on the back of the neck. Some of the bruises were white with purple bruises on either side and were in the shape of a narrow obj ect, suc h as a ro

d. From the shape of t hese bru ises, Dr. Guther concluded that some of the beating was done with an object that was a quarter inch in width and at least one an d a quarter inches long

.-6- There were four blows to the left side of the head andthere was blood on the brain. A bullet went in behind the victim’s rig ht ear, goingthrough the frontal lobes of the brain, and stopping inside the sk ull above the right ey

e. A portion of the bullet exited the body in front of the ear. The bullet w ent from the back towards the f ront of the body , somewhat right to left, and slightly upwards.

There were at least six blows to the head that re sul ted in a mark, and the victim had bitten his tongue several times. In Dr. Guther’s opinion, the victim was struck
a minimum of ten times and died of a combination of injuries. The most serious injury was from the bullet that went throu gh the frontal lobe of the brain, causing the brain to swell. T h is wound would have pr oduced death within seve ral hours. The heavy bl ows to the head produced blood on the brain and also contributed to the victim’s death. Fina lly, the manyimpacts to thearms, upper back, and sides r epresented bleeding into the skin, a nd added together, also contributed to the victim’s death, although these injuries were less significant. According

to the death certificate, the v ictim was declared dead at 3 a.m.

Dr. Steven A. Symes, a forensi c anthropologist, testified that there were two fractures to the victim’s skul l. The first trauma was above the ear on the right side to the temporal bone, and the second trauma was to the parietal bone on the right side, slightly back and above the first.

The trauma right above the ear was a guttering pu ncture wound caused by
a projectile impacting with the bone. Dr. Symes identified thi s wound as a gunshot w ound. The projectile moved back t o front and slightly r

ight to left. Based onthe radiating fractures from each trauma, Dr. Symes w as able to conclude that the tr auma caused by the gunshot wound occurred first, but he could not determine the amount of time bet ween each. Although the non-gunsho t wound did not pu nch a hole throu gh the skull, a punched-out plug of bone was pushed throug h on the inside of the skull.

Based on this evidence, the jur y found the defend an t guilty of especially aggravated burgl ary and first-degree p remeditated murder beyond a re asonable doubt.-7- At the sentencing phas e , the stat e presen ted proo f of the defend ant’s two prior convictions of ag gravated assault, w hich were entered on Apri l 2, 1991.

The defendant presented the testimony of his mother, Jenny B. Sims. She testified that the defendant was born on Nov ember 5, 1972. He started hav ing proble ms with other friends in the eighth or ninth grade. Because the defendant was small when he entered junior high, the big ger students would bother him. His parents never had trouble wi th the def endant, who was always r espectf ul to them and to th e family. If there wa s a problem, they could talk to the defendant,and he w ould listen . According to Mrs. Sims,
on October 26, 1990, the defendant went to a f ootball g ame with som e friend s, and two boys tried to ju mp him. They put up their guns, and the defendant’s f riend, who was in the
car w ith the defen dant, gave the defendant a gun. The gun went off, resulting i n the aggravatedassault charges. During cross-examination, the prosecution questioned Mrs. Sims regarding the

facts resulting in the defendant’s two aggravated assault convictions.

Generall y, the defendant always wo rked. At some point, he was expelled from school because of fighting and then went to night school. The f amil y is very close, and growing up, the defendant was close to his broth er, who is three y ears older. The defendant was having probl ems and dropped out of school around the ti me that his brother left for college.

The defendant has two children, Qui nton and Jasmine, and was marri ed to Dor is Marie Sims. He enj oyed playing basketb all, liste ning to musi c, and spendi ng time with his family. After his release from prison, the defendant w as quiet and mostly stayed to himself. Mrs. Sims testified th a t she loved her son and would support him regardless of the ve rdict. Sh e also tes tified t hat she wa s sorry for the victim ’s famil y.

The defendant’s father, Jimmy Sims, Jr., testified that up throug h t he defendant’s 25 years of life, he was a “ good child.” The defendant was never disrespectful to his parents and did ever ything they asked hi m to do. He was an honor student and a school favorite. When the defe ndant was 11 o r 12, he won second place at a dance-8-

contest
. The defendant played by himself as a child when he was not with his brother. When his brother went to coll ege in 1988, the defendant began hav ing problems. Even when he had problems, the defendant was always respectful to his parents. I n junior high, the defendant was picked onbecause of his size, and the defendant’s father encouraged him to stand up for himself.

After he was released from incarceration, the defendant lived with his parents. Once the defendant was shot while trying to stop a fight. The defendant was not working at the time of the murder.

Mr. Sims was aware that the defendant had been convi cted of theft of property under $500 on November 27, 1990, t wo counts of aggrav

ated assault on April 2, 1991, and aggrav

ated burgla ry on Janua ry 22, 1993.Mr. Sims told the defendant the first time to learn from his mistake. After the third convicti on, he told the defendant that he was going to mess up his life if he continued this behavior andthat Mr. Sims would be unable to help him. Mr. Sims testified that he loved his son and would support him, but that he did not condone his behavior.

The defendant’s aunt, Naomi Gardner, testif ied that as a child, the defendant
was interested in dancing. He was very q uiet and close to his older brother. Ms. Gardner would see the defendant at family gatherings. While the defendant was in jail, Ms. G ardner talked to him two or three times a month. She lo ves the defendant and will be there for him. During cross-ex

amination, Ms. Gardner testified that s he believed the defendant was a good person and was not dangerous despite her knowledge of his prior convictions.

Trezevant

Warren Gardner, the def endant’s older brother, testified that the defendant was shy

growing up and

looked up to his older brother. Approximately six years earlier, Mr. Gardner and the defendant w ere at a park whenthe defendant took a gunshot forhis brother during an altercation. When the defendant was younger, Mr. Gardner had to extricate him from fights and arguments. The defendant was beaten up as a child and
was stabbed once. Mr. Gardner hasbeen to see the defendant in jail many times and is-9-

support ive of him. Despite their simil ar upbringing, Mr.G ardner has not had any of the defendant’s problems. Mr. Gardner was aware of the defen dant’s prior convictions.

Mary Gardner, thedefendant’s aunt, described the defendant as a beautiful, interesting, intelligent, and creati ve child. Ms. Gardner, who was employed at the Shelby Coun ty Correctional Center from 1978 to 1996, observed the def endant when he was a prisoner there on two occasions. The defendant was a role model prisoner, doing what he
was told, getting involved through classes, and working hard. The defendant did not have any write-ups w

hile he was there. Ms . Gardner loves and suppor ts the defendant.

Based on the proo

f, the jury found four aggrav ating circumstances: ( 1) the defendant was prev iously convicted of one or more felonies whose statutory element s inv olve the use of violence, (2) the murder was especially heinous, atrocious, or cru el i n that it involved tortur

e or serious physical

abuse beyond that necessary to produce death, (3) the murder was commit ted for the purpose of avoiding, inter fering with, or prev

enting
a l awful arr est or prosecution of the defendant or another; and (4) the murder w as knowingly

committed, solicited, dir ected, o r ai ded by the defendant, while the defendant had a substantial role in committing or atte mpting to commit, or was fleeing after having
a substantial role in committing or attempting to commit, any burglary or theft. SeeTenn. Code Ann. § 39-13-204(i)(2), (5), (6), and (7) (Supp. 1995). The jury determined that these aggravating ci rcumstances outweighed a ny mitigating cir cumstances and sentenced the defendant to death by electrocuti on.

SUFFICIENCY OF EVI DENCE OF PREMEDITA TION The defendant contends that the evidence pr esented at trial was insuffici ent to justify a rational tr

ier of fact in finding that at the time of the murder, he was acting free from passion and excit ement so as to p remeditate th e killing. We find that the proof of premeditation is sufficient.

A jury verdict appr

oved by the trial j udge accredits the state's witnesses

and resolves all conflicts

in favor of the state's theory

. State v. Willia ms , 657 S.W.2d 405, 410-10-

(Tenn. 1983). On appeal, the state is entitled to the strongest legitimate vie w of the evidence and to all reasonable inferences which might be drawn therefrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Mor eover, a gui lty verdict remov es the presumpti o n of innocence which the appell ant enjoyed at trial and r aises a presumption of guilt on appeal. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). The appellant has the burden of overcoming this presumption of guilt. Id

.

In reviewing the s ufficiency of the evidence, the r elevan t question for an appellate cou rt is w hether, after viewing the evidence in the lig ht most favorable to the prosecution, any rational trier of fact could have found the es sential elements of the

crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985); T.R.A.P. 13(e).

At the time of the defendant's off ense, first-degree murder was defined as the "premeditated and intentional killing of another." Tenn. Code Ann. § 39-13-202(a)(1) (Supp. 1995). Under the statute, pr emeditation requires "the ex ercise of ref l ection and judgment," Tenn. Code Ann. § 39-13- 202(d ) (Supp. 1995), and "a previ ously formed design or intent to kill." State v. West , 844 S.W .2d 144, 147 (T enn. 1992) (citi ng McGill v. Sta te , 4 Tenn. Crim. App. 710, 720, 475 S.W .2d 223, 227 (1971)). The purpose to kill does not necessarily hav e to pre-exist in the mi nd of th e accused for any definite peri od of time. Instead, it is the mental state of the accused at the time the accused allegedly decided to kill t hat must be considered in order to determine whether the acc used was sufficiently free from excitement and passion to be capable of

premeditation. Tenn. Code Ann. § 39-13-202(d) (Supp. 1995). At the same time, i f a defendant becomes impassioned later, but "the intent to kill wa

s formed as a result of premeditation

... prior to the crime, it is imma terial that th e act was carried out in a state of passion." State v. Roy Keough , No.02C01-9708-CR-00317, slip op. at 13 (Tenn. Crim. App., atJackson, Jan. 13, 1999), transferred , No. 02S01-9901-CR-00009 (Tenn. Jan. 27, 1999)(Oral argument on N ov. 17, 1999); State v. Edwi n Jesperson , No. 03C01-9206-CR-00 212, slip op . at 7 (Tenn. C rim. App., at Knoxville, Aug. 11, 1993) (citing Leonard v. State , 292 S.W.2d 849, 852 (Tenn. 1927)), perm . to app . denied (Tenn. Dec. 6, 1993).-11- The elementof premeditation is a questio n of fact to be resolvedby the jury. State v. Gentry , 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993); State v. Anderson , 835 S.W.2d 600, 605 (Tenn. Crim. App. 1992). "As is usually the case, a determination of aculpable mental st ate, s uch as premeditation, must be infere ntially made from the circumstances surrounding the killing." State v. Burlison , 868 S.W.2d 713, 717 (Tenn. Crim. App. 1993); See Gentry , 881 S.W.2d at 3.

While there is no strict stan dard governing w hat constitutes

proof of premeditation, Tennessee Courts have relied on the following circumstances in determining whether an inference of premeditation is sup ported: the use of a deadly weapon upon an unarmed victi m; the fact thatthe killing was particularly cruel; evidence of procurement of a weapon; the victim was retreating or attempting toescape when shot; the making

of p r eparations before the killing for the purpose of concealing the crime; calmness immediately after the kill ing; and declarations by the defendant of his intent to kill. See , e.g ., State v. Bland , 958 S.W.2d 651, 660 (Ten n. 1 997)(citing State v. B rown , 836 S.W.2d 530, 541-42 (Tenn. 1992); State v. West , 844 S.W.2d 1 44 , 148; State v. Martin , 702 S.W.2d 560, 562 (Tenn. 1985) (citations omitted) , overruled on other grounds , Brown , 836 S.W.2d at 543.

Other relevant factor

s from which a jury may infer premeditation include planning activities by the defendant prior to the killi ng, facts about the defendan t's prior relationship with the victim from w hich motive may be inferr ed, and the nature of the killing. Gentry , 881 S.W.2d at 4-5 (citation omitted). "The fact that repeated blows (or shots) were inflicted on the victim is not sufficie nt, by itself , to establish first-deg ree murder." Brown , 836 S.W.2d at 542 (emph asis added) ; see also State v. Darnell , 905 S.W.2d 953, 962 (Tenn. Crim. App. 1995).

The proof in this case was s ufficient to support the jury’s verdic

t. From the proof, the jury could have concluded that the defendant had in his possession a .22 caliber long-barreledpistol, that he went armed when burglarizing the victim’s home, and that he shot the victim with th is weapon. Mitchell , the co-defendant, testifiedthat he had seen the-12-

defendant with a

.22 caliber long-barreled pistol earlier on the day of the murder. He also
saw an object “poking” from the de fendant’s shirt when the defendant dr ove him to the victim’s home. Moreover, the v ictim was shot in the bac k of the head with a .2 2 calib er bullet, a nd bullet fragments from a total of fo ur, and possibly five, separate .22 ca libe r bullets were recovered. The victim was also repeatedly beaten with a long cy linder-type object, such as a long-barrel ed gun, and one of the blows cr acked the victim’s skull, producing blood on his bra in.

There was also proof of the defendant ’s motive. See State v. Bordis , 905 S.W.2d 214, 222 ( Te nn. Crim. App. 1995). Following the murder, the defendant told Mitchell that he had to kill the victim because the victim had seen his face. Aft er the defendant and Mitchell were caught in the h ouse by the victim, the y ran out and tried to drive away. When neither could move the victim’s vehicle, which was blocking their own, the defendant went back in the house, d emanding the victim’s keys. Mitchell immediately heard shots being fired . The victi m w as shot in the back of the head with a .22 caliber bulletand was repeatedly beate n. The medical testimony show ed that the blow cracki ng the victim’s skull w

as done after the victim had been shot. The proof also showed that the victim sustained a minimum of ten hard blows. Thedefendant then had to turn the victim
over so he could recover the keys. Afterwards, the defendant picked up his girlfri end and went home to go to sleep, s howing a calmness after th e murder.

B a sed on our review of the pr oof, we find that the evidence i s sufficient to support the jury’s findi ng of premeditation.

JURY INSTRUCTION S ON SELF-DEFENSE Next, the defendant argues that the trial court’s instruction on self -defense improperly raised the inference that the victim had an absolute right to use fo rce regardless of whether the defendant was abandoni ng the encounter. Moreov er, the defendant contend s that the trial cour t erred by re fusing to give a full jury charge on the lawof selfdefense. Specifically, he submits that the 198 9 Criminal Code omitted any limitatio n on the law of self-defense as it may apply to a felony murder other than the “initial aggressor”-13-

rule. The defendant submits that the inst ructions given violated his right to have the jury fully instructed and to hav e a meaningful opportunity to present a complete defense.

From the record, it appears that the trial court gave the following instruc tion to the jury on self-defense:

Any person using force in tende d or likely to cause death or serious bodilyinjury within their own residen ce is p resumed to have held a reasonable fear of imminent peril of death or seriousbodily injury to self, family or a member of the household when that force is used against another person, not a member of the family or househol d, who unlawfully and forcibly enters or has unlawfully and forciblyentered the residence, and the per son using the force knew

or had rea son to be lieve that an unlawful and forcible entry occurred.

In ruling on what portions of the self-defense law to cha rge the jury, the tr ial court made the following findings: Well, I think the fact s would cert ainly bear tha t out [th e self-d efense of a residence], the facts that are before us today, both the facts from Mr. – well, from several witnesse

s. From Ms. Henson, from Mr. Mitchell, and from this letter that the

Defense relies

on, this

man’s ho me – the fa cts a re uncontroverted that th is man’s home had been unlawfully and forcibly entered by

Mr. Vincent Sims. And the facts are also uncontrover ted thathe knew or had reason t o believe that an unlawful and forcible entry occur red as he pulled up into his driv eway and parked rig ht in front of a strange car, and that strange car hav ing his big screen TV in the trunk at that point. I mean, you know, I’m always cogni zant of the need to becareful not to comment on the evidence beca use I don’t want to re-try thi s case any more than anybody else does. But this is what the la w states. This is a cl ear and unambiguous statement of the law, and the jury i s entitled toknow what a homeowner is entitled to do under these circumstances. And the law further does not allow an individual to avail himselfof selfdefense under any scenario that w e’ve heard in this tri al. So I believe that paragraph (B) under

39-11-611 would be appropr iate but that a charging of the entire self-defense would no t be. Unless there’s some fact s to warrant it or justify it, it’s

just not appropriate to be ch arging something to l end credence to something that doesn’t even exist in the facts b y a ny interpretation. And I’ve yet to hear one, even from [defense counsel], even his reference to this let

ter that conv

inces me that under any

scenario M r. Sims had a right to avail himself of the defense of self-defense. Scenario number one, the letter, in that, by Mr. Sims’ ow n statement, he’s in the middle of a burglar y, tryingto get out of the house when all this occurs. Scenario number

two, by M r. Mitchel l’s stateme nt, Mr. Sim s had come out of the house and realizing he couldn’t get his car

out, goes back in and the only words that are heard are words from Mr. Sims to the eff ect of, G ive me your keys, and then shots.-14- So that’s my

ruling. I’m not goi ng to charge self-defense. I am going to charge this one parag raph.

Initiall y, the Court agrees with the defendant

that the trial court err

ed when it instructed the jury about the right of a person to use deadly force against an intruder in his or her

reside nce. In State v. Belser , 945 S.W.2d 776 (Tenn. Crim. App. 1996), the defendant shot and killed the victim dur ing an argument on the vi ctim’s front porch. The state requested and the trial court instructed the jury based on Tennessee Code Annotated section 39-11-611(b). This Court noted thatunder Tennessee Code Annotated secti on 39- 11-601, self-de fense m ay only be utiliz ed as a defense of a prosecution. Id . at 782. Moreover, the Court h eld that “it is not, how ever, any justificati on for a victim’s conduct. ” Id

. Thus, the instruction w as not warranted by th e fac ts a nd impermissibly shifted the burden of proof to the defendant. Id . This Court went on to determine that it was harmless error because the trial court gave the defendant’s self-defense instruction to the jury. At the conclusion of the self-defen se charge, the trial cour t also correctly poi nted out the burden on the state toprove beyond a reasonabl e doubt thatthe defendant did not act in self-defense. This served to mitig ate any adverse conseq uences from the charge. Id . at 783.

Under Belser , it was error for the trial court to instruct the jury in this case that it could presume the victim acted in self-defense because the instruction was inapplicable to the facts presented at trial. How ever unlike Belser , as discu ssed belo w, the defendant in this case was not entitled to an instruction on self-defense.Thus, the Court concludes that the error was harmless.

Under the previous Tennessee felony murder statute, self-defense could not justify a killing when the defendant was engaged in a felony

. Smith v. State , 354 S.W.2d 450, 451-52 (Tenn. 1961). However, in 1989, the Legislature rev ised the Criminal Code and established statutory defenses that are applicable to all criminal offenses unless otherwise provided

by the Code. It is not for this Court to choose or reject any particular defense fora particular offense, State v. Culp , 900 S.W.2d 707, 710 (Tenn. Crim. Ap p .-15-

1994), nor can this Court add or subtract from the elements of each statutory defense. Id

. See Tenn. Code Ann. § 39-11-601, et seq . Accordingly, w e must l ook to t he statute to determine whether the defendant w as entitled to raise self-de fense.

When self-defense became a statutory defense,the Legislatur e did no t specifically include the felony-murde r ex ception. Instead, the statute codi fied the “initial aggressor” exception. Self-defense is defined in Tennessee Code Annotated section 39- 11-611, which provi des in part:

(a) A person is justified in threatening or using force against another person when and to the degree the person reasonably believes the force is immediately necessary to protect against the other’s use orattempted use of unlawful force. The person must ha ve areasonable belief that there is an imminentdanger of death or serious bodily injury. The danger creating the beli ef of imminent death or serious bodil y injury must be re

al, or hon estl y believed to be real at the time, and must b e founded upon reasonable grounds. There is no duty to retreat before a person threatens or uses force. (b) Any person using force intended or likely to cause death or serious bodilyinjury within their o wn residence is pres umed to have held a reasonable fear of i mminent pe ril of de ath or serious bodily

injury to self, family or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfullyand forcibly entered the r esidence, and the person using the force knew or had reason to believe that a n unlawful and forcible entry occurred. * * * * (d) The threat or use of force again st another is not justified i f the pers on provok ed the other individual’ s use or attempted use of unlawful force, unless: (1) The per son a bandons the encounter or clearly communicates to the other the intent to do so; and (2) The other nevertheless continues or attempts to use unlawful force against the pe rson. Teen. Code Ann. § 39-11-611 (1991 Repl.).

The Sentencing Commission Comments are enlightening

on the intent of the codification of this common law defense: Subsections(c), (d) and (e) are restr ictions tothe defense. Subsections (c) and (d) continue the

traditional rule that the defendant claiming justificati on should be free from fault in bringing on t he neces sity of using force...Subsection (d) also restricts th e defense by co difying t he t raditional conceptof the initial aggressor. In order to use the defense, the initial aggressor

must withdraw or communi cate an intent to withdraw and the force must c ontinue despite this communicati on. See Irvine v. State , 104 Tenn

.-16- 132, 56 S.W. 845 (1 900); G ann v. State , 214 Tenn. 711, 383 S.W.2d 32 (1964).

In Gann v. State , 214 Tenn. 711, 383 S.W .2d 32, which is cit ed in t he Sentencing Commission Comments, the Supreme C ourt further explained t h e initial aggressor excepti on: The law of Tennessee is that an ag gressor, who p roduces fear or apprehension of death or great bodily harm in the mind of his adversary, can not lawfully defendhis life a gainst th e deadly d efensive act of his adversary by taking the latter’ s life, until he has restored his right of self-defense, lost byhis initial fault, by abandoning and withdraw ing from the contest and givingnotice of the fact to the adv ersary. Th e aggressor’s act i s unlawful and felonious, and his adversary’s act lawful and necessary , and the former, as the guilty party , must bear all unavoidable conseq uences flowingfrom his wrongful act. Id . at 719-20, 383 S.W.2 d at 36 (citations omitted).

Accordin gly, based on the language of the statute and the cases cited in the Sentencing Commission Comments, a defendant is not automatically precluded from raising self-defen se wh en force is used during the commission of a felony. Self -defense would be available if the proof “fair ly raised” the iss ue of whether the defendant withdr ew or communicated an int ent t o withdraw and the force continued despite this communic ation. In orde r to dete rmine w hether the proof “

fairly raises ” the is sue of sel

fdefense, the trial court must asses s the defendant’s position wi thout ascertaining its truthfulness or the weight to which it might be entitled. State v. Ivy , 868 S.W.2d 724, 728 (Tenn. Crim. App. 1993). In effect, the tr ial court must “consider the evidence in the light most favorable tothe defendant, including draw ing all reasonable inferenc es flowing from that evidence.” State v. Shropshire , 874 S.W.2d 634, 639 (Tenn. Crim. App. 1993). The jury , not the t rial court , is to reso lve the fa ctual dis pute and ascertai n the app licable la w. I vy , 868 S.W.2d at 728. In a later case, this Court explained that the “test for whether a special instruction must be given is whether ‘there is any evidence which reasonable minds could accept as to any such [defense] .. . .’ ” State v. Davenport , 973 S.W.2d 28 3, 28 7 (Tenn. Crim. App. 1998) (quoting Johnson v. State , 531 S.W.2d 558, 55 9 (Tenn. 1975)).-17- In support of his theory of self-defense, the defendant relies u pon th e statement which he gav e to Mitchell. The statement r eads in part: The homeowner pulled his vehicle in [behind] suspects vehicl e blocking them in Homeowner then entered his residence went to a rear bedr oom without being noticed by the tw o burglars and retriev

ed a 380 pistol from a dresser draw[er] and then confronted intrud er s with the 380 pistol Br ian ran out of residence and I Vincent Sims also tri ed to ru n out of the residence that’s when homeowner began shooting several shots at Vincent Sims grazing him in the r ight side and left hip. That’s when Vincent tried to s to p th e homeowner

from killing him and a scuffle and struggle ensued betw een VincentSims and homeowner the end results were that the home owner Mr. Forrest Smith was s hot once in th e head with his .380 pis

tol. Vincent Sims then picked up the homeowner[‘s] 380 pistol and keys and fled the scene with Brian K. Mitche ll in a 199 4 maroon Toyota Ca mry.

While the credibility of thi s statement is clearly suspect, the s tanda rd of review does not allow the tri al court to ascertain the t r uthfulness or weight of the pr

oof. Nevertheless, the Court concludes that the defendant w as not entitled to an instruc tion on self-defense because the defense was not “fairly raised”by the proof. Under the go verning statute, an initial aggress or can only claim self-defense if the aggressor had aband one d the encounter or c lear ly communicated to the other the intent to do so and the other nevertheless con tinued or attempted to use unlawful force against the initial aggressor. According to the defendant’s statement, he was still in the process of burglarizing Smith’s residence when Smith confronted hi m wit h a firearm. The defendant then attempted to leave the residence, but he remained close enough to Smith that he was able to engage in a physical strugg le with Smith after Smith fir ed shots at him

. Rather than continuing his attempt to leave after he was fired upon, the defendant became en gaged in the physical altercation with Smith that resulted in Smith’s death. Thus, even if accepted as true, the defendant’s statement does not contain pr oof which tends to show th at he “abandon[ed] the encounter or clearly communicate[d] to the other the intent to do so.” Nor is there any other evidence in the record that, if accepted as true, could be ac cepted as showing that the defendant either abandoned hi s e ncounter with Smith or clearly communicated his intentto do so. When a defense is not fairly rai sed b y the proof, it is not err or for a trial court to refuse to instruct the jury on the defense. Davenport , 973 S.W.2d at 288.-18- In short, we agree w

ith the defendant that the trial court erred when it instructed the jury on Smith’s presumed right to use force against the defenda nt. However, the defendant was not entitled to an instructio n on self-defense and the concern about confusing the jury i n regard to the burden of proof that this Court was concerned with in Belser is not present in this c ase. As such, we conclude that the trial court’s er ror was harmless error

beyond areasonable doubt. T.R.A.P. 36(b); Tenn. R. Crim. P. 52(a). Th is issue is without meri

t.

JURY INSTRUCTION S ON LESSER-INCLUD ED OFFENSES The defendant contends that the trialcourt erred by failing to instruct the jury
on voluntarymanslaughter and criminal ly negligent homici de as lesser-included or lesser grade offenses.Moreov er, the d efendant submits that fa ilure to so instruct was not harmless error.

Under State v. Trusty , 919 S. W.2d 305 (Tenn. 1996), a defendant was entitled to jury instructi ons on lesser-included offenses and l esser grades or classes of the offense charged if the evidence w ould support a conviction for the offense. Id . at 311. Recently, our Supreme Court overru led Trusty to the extent that it reco gnized “lesser grade” offenses as dis tinct from lesser-included offenses and per mitted convictions of “lesser grade” offenses that were not lesser-included offenses embraced by the indic tment. State v. Dominy , 6 S.W.3d 472, 473 (Tenn. 1999). See also , State v. Burns , 6 S.W.3d 453 (Tenn. 1999). Under the new case la w, a defendant is only enti tled to instructions on lesser-includedoffenses. The definition of lesser-include d offense is set forth in State v. Burns : An offense is a les ser-in cluded o

ffense if: (a) all of its statutory el ements are included within the statutory elements of the offense charged; or (b) it fails tomeet the definition in part (a) only in the respect that it contains a statutory element or elements establishi ng (1) a different mental state i ndic ating a lesser kind of culpability; and/or (2) a less serious harm or r isk of harm to the same person, property or public interest; or-19- (c) it consists of (1) facil itatio n of the offense charged or of an offense that otherwise meets the defini tion of lesser-included offense in part (a) or (b); or (2) an attempt to commit the offense charged or an offense that otherwise meets the definition of lesser-included offense in part (a) or (b); or (3) solicitation to commit the offense charged or an offense that otherwise meets the definition of lesser-included offense in part (a) or (b). Burns , 6 S.W.3d at 466–67.

Vo luntarymanslaughter is defined as th e intentional o r knowing killing o f another in a state of passion produce d by adequate provocati on sufficient to lead a reasonable person to act in an irrational manner. Tenn. Code Ann. § 39-13-211(a) (1991 Repl.). Under the new test, voluntary manslaughter would be a lesser-included offense of first-degree murder. Specifically, its statutor y elements fail to

meet the definition of firstdegree murder

in part only in the respect that it contains a statutory el ement establishing
a different mental state indicating a lesser kind of culpability. Burns , 6 S.W.3d at 466–67. See also , Dominy , 6 S.W.3d at 477, n. 9.

Criminallynegligent homicide, defined as criminally negligent conduct which results in death, Tennessee Code Annotated se ct ion 39-13-212 (1991 Repl.), is also a lesser-included offense. See Burns , 6 S.W.3d at 466–67. Compare , State v. Lynn , 924 S.W.2d 892, 899 (Tenn. 1996) (criminally negligent homicide is lesser-included offense of second-degree murder).

Havin g determined that voluntary manslaughter and criminal ly negligent homicid e are both lesser-included offenses, the next in quiry is whether the evide nc e justified a jury instruction on such lesser offenses. Burns , 6 S.W.3d at 467. The Supreme Court has set forth a

two -part test. First, th e trial court must determin e whether “any evidence exists that reasonable minds could accept as to the lesser-i ncluded offense.” In making this determination, the trial court must “v iew the evidence liberally in the light most favorable to the existence of the lesser-included offense without making any judgments on-20-

the credibility of such evidence.” Id. at 469. Second, the trial court mus t determine if the evidence, viewed i n this lig ht, is legally sufficient to support a conviction for the lesserincluded offense. Id.

In the present case, ther e is no evidence in the r ecord supporting the existence of these lesser-included offenses, an d the trial court d id not e rr by refusing to instruct the jury on either. Mor eover, even if it w

as error not to

instruct the jury on voluntary manslaughter

and negligent

homicide, such error w as harmless. Our

Supreme Court has stated that error

associated with the trial court's failure to instruct a lesser-included offense is harmless when the jury finds the defendant guilty of the greater offense and declines to convict the defendant of oth er lesser -included offenses that were i nstructed by the trial court and that are greater offenses than the one requested. State v. Willia ms , 977 S.W.2d 101, 106-108 (Tenn. 1998). See also , State v. Atkins , 681 S.W.2d 571, 577 (Tenn . Crim. App.1984). In the present case, the sequenti al instructions to the jury included a charge
on second-degree murder, and th e jury concluded that th e defend ant was guilty of premeditated first-deg ree mu rde r beyond a reasonable doubt. Accordingly, under Willia m s , any error in decli ning to give instr uctions on voluntary manslaughter and criminallynegligent homicide would be harmless beyond areasonable doubt. This issue is without merit.

JURY INSTRUCTION ON FELONY-MURD ER The defendant contends that the trial court erred by granting the state’s special request that the jury be instructed that a felony pa rticipant is responsib le for any death that ensues as a result of the felony. Specifically , he asserts that the trial court took
no precautions to ensure the li mited applicability of the instruction to the

charge of felonymurder, and thus, the jury could have bel ieved that the state did not have to prove mens rea for the charge of premeditated mur der. We disagree.

It appears that the trial cour t instructed the jury first on premeditated murder. The jury was then ins

tructed on murder during the perpetrat ion of a burglary, on murd er-21-

during the perpetration of a theft, and theft of proper ty. At the en d of these instructions, the trial court gav

e the following charg e: When one enters into a scheme wi th others to commit a

burglary or a theft and a killing ensues, all participants in the burglary or theft may be held responsible for the d eath, regardless of who ac tually committed the murder and whether the killi ng was specifically contemplated by

the others. As long as the defendant intended to commit the burglary or theft and a killing resulted dur

ing the attempt

to perpetratethe burglary or theft, each defendant is responsible for the murder, regardless of w hether he intended for the victim to die or participated in the act of murder.
Thereafter, the trial court instr ucted the jury on second-degree murder. The trial court also gave a criminal res ponsibility instruc tion later in the charge

.

The defendant’s argument that the tri al court failed to limit the i nstruction to the felony-murder

charge and thus, eliminated the state’s responsibility to pr ove mens rea on the premeditated murder charge is without merit. Firs t, the t rial court specifically i nstructed the jury on the elements of premeditated murder, an d the jury is p resumed t o have followed the trial cour t’s instruction. State v. Williams , 977 S.W.2d 101, 106 (Tenn. 1998). Moreover, a

challenge to a single jury instru ction mu st be judg ed in cont ext of the entire jury charge. See Cupp v. Naughten , 414 U.S. 141, 146-147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973); State v. Bolin , 678 S.W.2d 40, 43 (Tenn. 1984). In the present case, the contested instruction, al beit unnec essary, was given in con junction with the f elonymurder instructions, and in the context of the entire jury charge, we find that the special instruction was not error.

“PRIOR VIOLENT FELONY” AGGRAVA TING CIRCUMSTANCE The defendant contends that the aggrav ating circumstance, that he
co mmitted prior felonies whose statutory elements involve the use of violence, was n o t supported by the record. Specifically , the defendant contendsthat the statutory elements of aggravated assault,the prior violent feloni es relied upon by the state , do not necessarily involve the use of violence because ag gravated assault can be c ommitted merely by displayinga deadly weapon in a way that causes the victim to reasonably fear imminent bodilyinjury. Accordingly, the defendant asserts that the trial c ourt erred by going beyond-22-

the statutory elements of agg ravated assault and consi dering the actual facts of his prior offenses, that the state erred in placing the aggr avated assaults into ev idence and/or by placing the underlying facts of the offenses into evidence, and the trial court erred in charging the jury that the agg ravated assaults involved the use of violence to the per son.

While we find that the trial court did not err by allowing the jury to consider this aggravating ci rcumstance, it appears tha t the defe ndant raises an issue of first impression. The Courts of this state have not specifically address ed this issue. However, the Tennessee Supr

eme Court has impliedly r ecognized that an offense may be an offense whose statutory elements inv olve the use of violence t o the perso n even though bodily injury to the vic

tim is not a required el ement of the offense.

In State v. Vann , 976 S.W.2d 93 (Tenn . 1998)(a ppendix), the defendant asserted that because aggravate d rape could be proven by a showing that there w as unlawful sexual penetration of a victim less than 13 years old, aggravated ra p e did not necessarilyinvolve viole nce to the person and thus, a conv iction for aggravate

d rape did not support the application of the ag gravating circumstance that the defend ant was previouslyconvicted of a felony w hose statutory elements inv olve the use of violence t o the person. In regard to thi s argument, the Supreme Court adopted this Court’s rul ing that rape is a serious offense which is injurious to both the body and the mind of the victim. Id

. at 116 (appendix)(c iting State v. H o yt , 928 S.W.2d 935, 94 8 (Tenn. Crim. App. 1995)). This Court also noted that the Supr eme Court had impliedly acknowledged th e use of aggravatedrape as an aggravati ng circumstance. Id . (citing State v. Nichols , 877 S.W.2d 722, 737 (Tenn. 1994)).

In State v. Cribbs , 967 S.W.2d 773 (Te nn. 1998), our Supreme Court upheld the use of two attempted second-deg ree murder convictions to establish the

aggravating circumstance that the defendant had previously been convicted of a fe lony whose statutory elements involve the use of violence to the person. Id . at 782. The Court held that while the statutory elements of crimi nal attemptdo not invo lve the use of violence to the per son,-23-

attempted second d egree mur der still qu alified as a felo ny wh ose sta tutory elements involve the use of vi olence to the person. Id

.

In State v. Hodges , 944 S.W.2d 346 (Tenn. 1997), our Supr eme Court held that the evidence was sufficient to establis h the aggravating circumstance that the defendant had previouslybeen convicted of felonies whose statutory elements involve the use of violence to the pers

on becau se the de

fe nda nt had pre viously bee n convicte d of arme d robbery, robbery, and attempted kidnappi ng. Id. at 357.

Vann , Cribbs , and Hodges all uph eld the application of the aggra vating circumstance that the defendant had previously been convicted of felonies whose statutory eleme nts involve the use of vi olence to the person even thoug h the offenses relied on could be committed w ithout causi ng bodily

injury to a victim. Th us, w e conclude that aggravatedassault is also a felony whose statutory elements involve the use of violence to the person, regardless of the elements that were actual ly relied on to support the conviction. Accordingly, w e hold that the proof

supported a finding that the defendant had previouslybeen convicted of two prior felo n ies that involved the use of violence to the person and thatthe trial court properly charged the jury on this agg ravating circumstan ce.

IMPEACHMENT

OF MITIGATI ON WITNESSES Next, the defendant contends that the trial court erred in allow ing the state to cross-examine his w itnesses during the sentenc ing hearing about his pr ior convictions fortheft, aggravated burg lary, and aggrav ated assault. First, he ar gues that the testimony of the defendant’s father did not open the door with regard t

o general character ev

idence. Second, the defendant submits that even if th e evidence could be deemed chara cter evidence, it o nly pertained to the defendant’s character as a child and the state’s impeachmentof the mitigati on witnesses with ques tions regarding the de fendant’s adult convictions

was irrelevant.Third, the defendant argues that the trial court failed to consider whether the probative value of the evidence outweighed the prejudicial effect. Fourth, the defendant contends t hat any error was not h armless because the state cro ss-examined-24-

three additional witnesses about the prior convictions,the state made extensive r eferences to the prior convictio ns during closing ar guments, and the trial cour t did not instruct the

jury that it could consider the pri or convictions only as impeachment evidence. Ess entially, the defendant contends that the state’s cr oss-examination with th e p rior convictions w as improper because it failed to satisfy the requir ements of Rule 405 of

the Tennessee Rules of Evidence.

At the sentenci ng hearing , the defendant’ s mo ther testified that the defendant had had “several employment s” and he generally w

orked. The defendant’s mot her also testified that the defendant had been married for four years, was the father of two children, and he liked to spend his time “ just being around family.”

Defense counsel subsequently as ked the defendant’s fath er duri ng direct examination “[w]hat kind of person was [t he defenda nt] up th rough t he 25 years of hi s life that you’ve known him?” The defendant’s father responded “Vince nt was a good child. Good one.” When asked what he meant by good, th e defendant’s father testifiedthat the defendant “wouldn’t disrespec t me or his mo

ther.” The defendant’s father also testified that the defendant did not get into a lot of fights when he was growing up and he was not aggressive. The defendant’s father also stated that the defendant had previously intercede d in an a ltercation on behalf of his brother and had been shot while doing so. Further, the defend ant’s father testified that whe n the defendant was released from confinement for his previous convicti ons, he was always w

orking or spending ti me with his family.

Before cross-examining th e defendant’s father, a bench conference was h eld, during which the state reques ted permission to ask the w itness if he was awar

e o f t he defendant’s prior convictions in order to refute his te stimony that the defendant was a “good person.” In ruli ng that the defense had “opened the door, ” the trial court stated: [W]hile it’s tr ue th at the questions weren’ t phrased in the more traditi onal character slash reputatio n proof form, that was in essence what

was being elicited from this witness and the previous witness, but certainly this witness, in asking hi m w hat kind of person the defendant was, if he w as a good-25- person, and if he basically w orked, and that sort of thing. I think it opened the door sufficiently and I’l l allow these two prior convictions t o be asked. The state then proceeded to questi on the defendant’s father about the de fendant’s conviction of theft of property under $500 on Nov ember 27, 1990, h is conviction of two counts of aggravated assa ult on April 2, 1991, and his conviction of aggravated burglary on January 22, 1993.

One of defendant’s aunts then testified that she had known thedefendant all his life, and he was very close to his family. The defendant’s brother testified that the defendant
was not an aggressive person when he was g rowing up. The defendan t’s bro ther also te s tified that the defendant had intervened in a fight on his behalf and had been shot as a result. Another of defendant’s aunts testified that she had been e mployed a t the institu tion where the defendant had been incarc erated, and the defendant was a model prisoner who never got into trouble. The st ate c ross-examined each of these w itnesses regarding the defendant’s prior convi ctions. The elicited testimony was then emphasi zed during the prosecution’s closing arguments.

First, we note that the admiss ibility of evidence and the propriety and form of cross-e xamination are entrusted to the sound discretion of the tri al court. See , e.g ., State v. Hutchison , 898 S.W.2d 161, 17 2 (Ten n. 1994). Absent an abuse of that discretion, such rulings wi ll not be r eversed on appeal. State v. Caughron , 855 S.W.2d 526, 541 (Tenn. 1993).

The defendant contends that the defense witne sses should not have been cross-examinedabout their knowledge of his prior convictions because the requirements of Rule 405 of the Tennessee Rules of Evidence were not

satisfied. However, we note that Tennessee Code Annotated section 39-13 -204(c) provides: In the sentencing proceeding , evidence may be presented as to any matter that the court deems relevant to the punishment and may include , but not be limited to, the nature and circumstances of the crime; the defendant's character, backg round history, and physical condition ; any evidence tend ing to establi sh or rebut the aggravating

circumstances enumerated in subsection (i); and any evidence tending to establish or rebut any mitigating factors. Any such e vidence which the court deems to have probative v alue on the issue of punishment may be received regardless of its admissibility und er the ru les of evidence ; provided, that the-26- defendant is accorde d a fair o pportun ity to rebu t any h earsay statements so admitted. However, this s ubsection shall not be constr ued to authorize the introduction of any evidence secured i n violation of the constitution of the United States or the constitution of Tenness ee. Tenn. Code Ann. § 39-13-204(c) (1997) (emphasis added). Under the express terms of this statute , evidence of the defendant’s prio r con victions was admis sible in the capital sentencing hearing as long as it was relevant to the rebutting of a mitigating circumstance, subject to constitutional limitations. In addition, under the express terms of the statute , the admissibility

of such evidence was not subject to the Tennessee Rules of Ev idence a nd thus, whether the admission of the prior convictions was proper under Rule 405 would simply not be relevant

.

We note that the Tennessee Supreme Court has argua bly mad e conflicting statements about the interplay between section 39-13-204(c) and the rule s of evid ence. For instance, our Supreme Court held in State v. Odom , 928 S.W.2d 18 (Tenn. 1996), that section 39-13-204(c) “expressly exempts evidence in capital sentencing proceedings from the usual evidentiary rules.” Id. at 28. Similarly, in State v. Van Tran , 6 S.W.3d 257 (Tenn. 1999), the Supreme Court cited secti on 39-13-204(c) for the proposi tion that“the rules of evidence do not

limit the admissibility of evidence at capital sentencing hearings.” Id. at 271. Likewise, when the Supreme Court addressed the introduction of photographs duri ng a capital sentencing heari ng in State v. Hall , 8 S.W.3d 593 (Tenn. 1999), the Court stated: The admissibility of evi dence ata capital sentencing hear ing is controlled

by Tenn. Code Ann. § 39-13-204(c) (1991), which allows the admission of any evidence “the court deem s relevant to the punishment . . . regardless of the rul es of evidence,” subject to a defendant’s opportunity to reb ut any hearsay statements and to constitutional limitations. Id. at 602. In addition, the Supreme Court cl early implied that this Court had erred when it analyzed the issue under Rules 401 and 403 of the Tennessee Rules of Evi dence. Id. at 602 n. 5. On the other hand, in State v. Burns , 979 S.W.2 d 276 (Tenn. 1998), the SupremeCourt cited Rule 403 for the proposition that in regard to the admissibility of evidence under

section 39-13-204(c), the trial court should “exclude any evidence where its probative value is

substantially outw

eighed by its unfair prejudice.” Id. at 282. Similarly, in State v. Nesbit , 978 S.W.2d 872 (Tenn . 1998), the S upremeCourt held that under Rule 403, evidence admissible under section 39-13-204(c) shou ld be excluded by the trial court-27-

if its probative value is substant ially outweighed by its prejudicial

effect. Id. at 891. Further, in State v. Nichols , 877 S.W.2d 722 (Tenn. 1994), the Supreme Court held th at the admissibility of prio r convicti ons in a capital sentencing hearing is governed by Rule 404(b); however, the Court made no mention of section 39-13- 204(c). Id. at 732.
Acknowledging

the apparent

conflicts in opinions, but in light of the fact that the Supreme Court’s mo st recent opinions hold that section 39-13-204(c) expressly exempts evidence in capital sentencing proceedings from th e usual evidentiary rules, we must conclude that section 39-13- 204(c) means what it say s in clear and una mb iguous terms: that evidence is admissi ble in a capital sentencing heari ng if it is relevant to establish or rebut a mitigating or aggravating

circumstance and the admissi on of the evidence would not violate the federal or s tate const itutions. We emphasize that this interpretation does not allow the state t o “run amok” and introduce any thing it wants to establish an aggravating c ircumstance or rebut

a mitigating circumstance; introduction of evidence that is so unduly prej udicial that it renders a t rial fundame ntally unfair would violatethe due process clauses of the federa l and sta te constitutions. See Burns , 979 S.W.2d at 282; Nesbit , 978 S.W.2d at 891.

W e concl ude that in this case, the defendant opene d the door to allow the state to cross-examine the defendant’ s father regarding his prior convictions by asking the witness “[w]hat kind of person w as [the defendant] up through the 25years of his life that you’ve kno wn him ,” (emphasis added), when the defendant was 26 years ol d at the time of trial. It is evident

from this question, the questions about the defe ndant’s respect for his parents, the questions emphasizi ng that t he defen dant was not aggress ive, and the questionsabout the defendant’s intercession in an alter cation on behalf of his brother, that the defense w

as attem pting t

o establ ish the mitiga

ting ci rcumsta nce that

the defe ndan t
was and is a person who respects authority as well as a peaceful person who tries to avoid breaking the law. Th us, the state was entitled under section 39-13-204(c) to rebut this mitigating circumstance with ev idence of the defendant’s prior conv ictions. As noted by the Tennessee Supr

eme Court in regard to section 39-13-204(c): “Juxtaposed against a capital defendant’s right to introduce a broad range of proof in mitigation is the State’ s right-28-

to offer evidence to rebut the mitigating factors.” State v. Reid , 9 81 S. W. 2 d 166, 171 (Tenn. 1998).

We also note that the other defense witness es were arguably

called for the purpose of establi shing the mitigating circumstance that the defendant w as a peaceful family person who respecte d author ity. Indeed, the defendant’s brother testi fied that the defendant was not an aggressiv e per son when he was gro wing up. In addition, one of defend ant’ s aunts testified that she had obser ved the defendant while he had bee n incarcerated and he was a model prisoner who ne ver got into trouble. However, even if the three additional defense witnesses provi ded no mitigating proof for the s tate to rebut with evidence o

f the defendant’ s prior con victions , any erro r was harm l ess b ecause the matter was covered exte nsively during the cross-examination of the defendant’ s father and fur ther, as dis cussed in the previous s ection of this opinion, the jur y had already been properly informed about the defendan t’s prior aggravated assault convictions.

Of more concern to this Court i s the prosecutor’s closi ng remarks. However,
we have carefully reviewed the recor d, and we do not find that these r emarks impacted the imposition of the death sentence in this case. Proof of the four aggravating ci rcumstances
was st rong, and the mitigating evidence did not outwei gh these aggravati ng circumstances

. Accordin gly, the state’s remarks and any error in cross-examining th e defense witnesses about the defendant’s prior conv ictions were harmless

beyond a reasonable doubt.

HEARSAY EVIDENCE DURING SENTENCING HEA RING The defendant contends that the trial co urt erred by excl uding evidence of the defendant’s remorsefulness at the sent encing hearing as hears ay. Because no offer of proof was made, the defendant reques ts that this Court remand the matter to the trial court for an offer of proof on this issue pursuant to State v. Goad , 707 S.W.2d 846, 852-54 (Tenn. 1986). We f ind that the defendant waived this issue on appeal.

During the testimony of the defendant’s mother at th e sente ncing hearing, defense counsel began to ask her whether the defendant had expressed remorse for th e-29-

killing. Before the question could be completed, the state objected on the basis that the
answer would be he arsay a nd s elf-serving. The tri al court sustained the objection. The defendant did not respond to the obje ction, reque st an opportunity to make an offer of proof, or raise the issue in his motion for new trial. Ac cordingly, the

issue is waived. See T.R.A.P. 36(a); State v. Killebrew , 760 S.W.2d 228, 235 (Tenn. Crim. App. 1988); T.R. A.P. 3(e).
As previously noted, section 39-13-204(c) provides: In the sentencing proceeding , evidence may be presente d as to any matter that the court deems relevant to the punishment and may include, but not be limited to, the natu re and circumstances of the crime; the defend ant's character, background history,and physical condition; any evidence tending to establish or rebut the ag gravating circumstances enumerat e d in subsection (i); and any evidence tending to estab lish or rebut any mitigating factors. Any such evidence which the court deems to have probative value on the issue of punishment may be rec eived regardless of it

s admissib ility under the rules of

evidence; provided, that the defendant is accorded a fa ir opportunity

to rebut any hearsay statements so ad mitted. However, this subsection shall not be construed to author ize the introduction of any evidence secured in v

iolation of

the constitution of the United States or the constitution of Tennessee. Tenn. Code Ann. § 39-13-204(c) (1997). Further, our Supreme Court has held that “[t]his statute expressly exempts evidence adduced in capital sentencing proceedings from the usual evidentiary rules . Hence, evidence concer ning a capital defendant's pers onal or psychologicalhisto ry would clearly be admissible under the above statute.” Odom , 928 S.W.2 d at 28. Evidence of the defendant’s r emorse would have been re levant and admissible at the sentencing hearing. Regardless, this issue is waived by the defendant’s failure to make a contemporaneous objection. See T.R.A.P. 36(a); Killebrew , 760 S.W.2d at 235. Moreover, the is sue was not presented to the trial j udge in the motion for a new trial as required by T.R.A. P. 3(e). See State v. Durham , 614 S.W.2d 815, 816 (Tenn. Crim

. App. 1981). Fin ally, there was no offer of proof, leavi ng this Court with nothing t o review.

Despite w aiver ofthis issue, the defendant reques ts that the matter be remanded to the trial court for an offer of proof pur suant to Goad , 707 S.W.2d 846. This
case is readily d istinguis hed from Goad , where the trial cour t limited the defendant’s offer of proof, thus, requiring the matter

to be remanded so the trial court could r econsider and rectify its ruling. Id . at 853. Before a trial court can be held in error, it must be given an-30-

opportunity

to rule on the issue at an appr opriate time during the

course of the trial. State
v. Walker , 910 S.W.2d 381, 396 (Tenn. 1995). In the present case,the defendant failed to provide the trial court with such an opportunity, and thus, the issue has been waived.

PROSECUTORIAL MISCONDUCT The defendant contends that the prosecution’s clo sing argument

regarding specific deterrence and future dangerousness was improper in the context of the present
cas e . Specifically, he contends that the state was allow ed to argue an irrelev

ant, nonstatutory aggrav

ating circumstance as a r eason to impose thedeath penalty. The Court finds that any error was harmless.

During the prosecution’s closi ng argument at the sentencing hear ing, the following comments wer e made: The only verdict that is proper in this case and, again, I do not say this to deme an your job, but the only proper verdict that th is defendantha s earned, that he deser

ves, that a ll his life ’s been cry ing out for, sentence me to death, because if you don’t stop me, if you don’t st op me, I’m going to take somebody

else away from you. I’m going to take aw ay a valued member of this community if you don’t stop me.

Initiall y, we note that the defendant failed to make a c ontem poraneous objection to the arg ument, and th us, the issue has been wai ved. See T.R.A.P. 36(a); Killebrew , 760 S.W.2d at 235. Nor does thi s issue a ppear in the defendant’s motion for
new trial. See T.R.A.P. 3(e); Durham , 614 S.W.2d at 816. Regardless, the Court finds that the prosecutor’s comments constitute harmless error.

A capital sentencing jury is not precluded from consideration of the f uture dangerousness of a part icular de fendan t where suc h is a releva nt factor under a state's capital sentenc ing law. See Jurek v. Texas , 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Californ ia v. Ramos , 463 U.S. 992, 1001, 103 S.Ct. 3446, 3453, 77 L.Ed.2d 1171 (1983); Spaziano v. Florida , 468 U.S. 447, 461-62, 104 S.Ct. 3154, 3163, 82 L.Ed.2d 340 (1984).-31- Generall y, however, ou r Courts ha ve held that the issue of specific or genera l deterrence should be avoi ded bythe prosecution in closi ng argument at a capital sentencing hearing. See State v. Bates , 804 S.W.2d 868, 881-82 (Tenn. 1991); State v. Irick , 762 S.W.2d 121, 131 (Tenn. 1988). Specifically , the deterrence argument is usually irrelevant

to the aggravating circumstances listed in Tennessee's s t atute. Bates , 804 S.W.2d at 882. Thus, “unless relevant t o some theory raised by the State[']s proof, or the defense, it interjects an element i nto the jury's consider ations notprovided for by the law.” Id

. In Bates , the defendant's mitigating theory was that the defenda nt was mentally disturbed to such adegree that it lessened his culpability, th at he would be confined for the rest of his natural life, and that he w ould be amenable to treatment and rehabilitation. The SupremeCourt held that the state's argument concer ning specific deterrence w as in direct response to the defendant's theory and was no t improper under the circums tances. Id

.

T he stat e suggests that the arg ument in question was i n response to the defendant’s pro of showing that he was a model prisoner whil e incarcerated. While the state argues that the def endant was t rying to show he was amenable to treatment and rehabilitation, it is apparent that the defense theor y wasto show that the defendant would not be a behavioral problem if confin ed for life. The defense was not attempting to s how that if s entenced to life or life without parole, he would not “ take away a valued membe r of this community.” The prosecutor should not have made this argument. Regardless, as pointed out in Ir ick , 762 S.W.2d 121, in reviewing the p ropriety of argument in a capital sentencing proceeding, the revi ewing court must deter mine whether the p rosecuto r's comments affected the sentencing decision. Id . at 131. "If the Court ca nnot say the comments had no effe ct on the sente ncing, then the ju ry's decision does not meet the standard of reliabil ity r equired by the Eighth Amendment." Id . (citing Caldwell v. Mississippi , 472 U.S. 320, 105 S.Ct. 2633, 2646, 86 L.Ed.2d 231 (1985)). Based on the proof presented, it is clear that these few comments, although improper, did not affect the jury’s sentencing decision.
HEINOUS, ATROCIOUS, OR CRUEL AGGRA VATING CIRCUMSTANCE-32- First, the defendant contends that the state failed to present

proof of torture. Specifi cally, he submits that the victim’s consciou sness can only be a matter o f speculation. The defendant ar gues the same

as to whether the vi ctim was sufferingfrom physical or

mental pain during this per iod of time, and, if so, how long and to what extent he suffered. Next, the defendant contends that the state failed toshow serious physi cal abuse beyond that necessary to produce death. He points to the testimony of the medical examiner, who testified that all of the injuries

contributed to the victi m’s death. We find that the evidence supporting this aggravating circumstance was sufficie nt.

On appeal, the jury's verdict will only be disturbed if, after a consideration of the evidence in the light most favorable to the state, a r ational trier of

fact cou ld not ha ve found the existence of the aggravating

circumstance beyond a reas onable doubt. Jackson
v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); State v. Williams , 690 S.W.2d 517, 530 (1985).

Tennessee Code Annotated section 39-13-204(i)(5 )(Supp. 1995) provides that the death penalty may be imposed if the state proves bey ond a reasonable doubt that "[t]he murder was especially heinous, atrocious, or cruel in that it involved tor ture or serious physical abuse beyond that necessary to produce death." Proof of either torture or serious physical abuse beyond that ne cessary to produce death i s sufficient to support the aggravator.

"Torture" has been defined as "the infliction of severe physical or mental pain upon the victim while he or she remains alive and c onscious." Williams , 690 S.W.2d at 529. In State v. Od om , 928 S.W.2d 18 (Tenn. 1996), our Supreme Court held that the term "s erious physical abuse" as used in the aggravator means something distinct fro m "torture," that "serious" alludes to a matter of degree, and that the abuse must be physical and must be "beyond that" or more than what is "necessary to produce death." Id . at 26.

In the pres ent ca se, the victim was shot behind the right ear, and the .22 caliber bullet went through th e frontal lobes of the brain and stopped inside th e skull ab ove-33-

the right eye. The back of the victim’s left arm was almost completely bruised, and his right
arm was bruised as

well. There were also bruis es on the bottom of the spine and on the right side of the buttocks. There w ere bruises near the tw o gunshot wounds on the back of the neck. Some of the bruises, w hite with purple bruise s on either side, were in the shape of a narrow object such as a rod. Overall, the medical examiner t esti fied that the victim was struck a minimum of ten times, and at

least six of the blow

s to the head resulted in a mark. The victim had bitten his tongue several times. Although the medical ex aminer could not identify the sequence of blows in conju nctio n with the bullet wo und, the
an thropol ogist testified that one blow to the head, which fractured the victim’s skull, occurred after the bullet wound. Moreover, the bruises on the back of the arms cou ld indicate that the victim was attempting to defend himself from further blows. See Barber
v. State , 889 S.W.2d 185, 189 (Tenn. 1994); State v. Sutton , 761 S.W.2d 763, 767 (Tenn. 1988); State v. Melson , 638 S.W.2d 342, 367 (Tenn. 1982)

.

When the victim’s g irlfriend arrived home,the victim was cons cious and asked her to call 911. H e also was aware that he had been robbed. Wh en the police arrived, the victim was

still cons

cious, and he

appeared to be in extrem e pain. While the victim could not identify his atta ckers, he told police that he h ad b een shot in the head. See State v. Smith , 868 S.W.2d 561, 580 (Tenn. 1993 ). This is sufficient proof to sho w that the victim was c onscious during the attack and that he s uffered. The medical examiner

testified that the victim would have died from the bulle t wound within sev eral hours due to the swelling o f his brain, however, the heavy blow which produce d blood on the brain also contributed to the vic tim’s death. Finally, the many impacts to the arms, sides, back, and buttocks, each of whi ch represented some bleeding into the skin, if added together, also contributed to the victim’s death. While these other injuries contributed to the victim’s de ath, the medical e xaminer m ade it cle ar that th e victim wou ld have died within several hour

s from the bullet wound.

Based on the pr oof, we find th at a ratio nal juror c ould inf er from t he above evidence that the victim was subjected to torture and t hat the murder involved s erious physical abuse beyond that necessary to produce death. See e.g ., State v. Nesbit , 978-34-

S.W.2d 872, 886 (Tenn. 1998) (victim alive and conscious w hen injuries were i nflicted); State v. Cauthern , 967 S.W.2d 726, 733-34 (Tenn. 1998) (holding ev idence sufficient of (i)(5) aggravator when victim was unconscious thirty seco nds into attack); State v. Pike , 978 S.W.2d 904, 917-18 (Tenn. 1998) (vi ctim beaten and slashed); Melson , 638 S.W.2d 342 (victim suffered sever al blows with a bal l peen hammer before dy ing or becoming unconscious); State v. Mann , 959 S.W.2d 503, 511 (Tenn. 1997) (during burglary, victim received 15 blows to the head, was raped, strangled, and stabbed).

Next, the defendant contends that the trial court erred b

y instructing the

jury in the disjunctive, permitting the jury to find ei ther torture or

serious physical abuse beyond that necessary to produce death. Accordingly, he argues that the jury rendered its verdict in the disjunctive, and ther e is no way to determi ne whether thejurors unanimously agreed
on either the basis for finding the aggrav ating circumstance or the facts in suppo rt ther eof.

This argument was

recently rejected

by our Court in State v. David M. K een , No. 02C01-9709-CR-00365, sli p op. at 17 (Tenn. Crim. App., at Jackson, Feb. 10, 1999), transferred , No. 02S01-9903-CR-00022 (Tenn. March 16, 1999). As in Keen , the trial court in the present case prope rly instru cted the jury under the l aw as to this aggr avating circumstance and each of the jurors signed the unanimous verdict indic ating their approval of the fo ur aggr avating circumstances

. See T.P.I. § 7.04(a) (4 th ed. 1995); Tenn. Code Ann. § 39-13-204(i)(5)(Supp. 1995). Accordingly, this claim is without merit.

Finally, the defendant contendsthat the combination of our Supreme Court’s broad inte rpretations of this aggr avating circumstance m ake its application unconstitutional

. Specifi cally, the defendant citesto State v. Willia ms , 690 S.W.2d 517 (Tenn. 1985), State
v . Blant on , 975 S.W.2d 269 (Tenn. 1998), and State v. Nesbit , 978 S.W.2d 872 (Tenn. 1998), as “[t]hree specific ‘br oadening’ constructions b y the Tennessee Supreme Court” which defeat the narr o wing language of the s tatute. As an intermediate appell ate court, this Court has a duty to apply the law as promulgated byour Legislature or as announc ed byour Supreme Court. Accordingly, it is b eyond the statutory functio n of this Court to overrule the holdings of ou r Supreme Cour t, and we are bound to follow the holdings in-35-

these cases under the doctrine of stare deci sis. See Reimann v. Huddleston , 883 S.W.2d 135, 137 (Tenn. App. 1993). This iss ue is without merit.

CONSTITUTIONALITY OF THE DEA TH PENALTY

STATUTES While acknowledging th at our Supreme Court has upheld the constitutionality of the death penalty statutes, the appellant raises sever al issues regarding

the constitutionality of the death penalty in order to pr eserve them for later rev iew.

All of the is sues rais ed have been reject ed repeatedly by our S upremeCourt. See e.g ., State v. Keen , 926 S.W.2d 727, 741-44 (Tenn. 1994); State v. Smith , 893 S.W.2d 908 , 926 (Tenn. 1994); State v. Brimmer , 876 S.W.2d 75, 86-88 (Tenn. 1994); State v. Cazes , 875 S.W.2d 253, 268-70 (Tenn. 1994); State v. Smith , 857 S.W.2d 1, 21- 24 (Tenn. 1993); State v. Black , 815 S.W.2d 166, 178-79 (Tenn. 1991); State v. Boyd , 797 S.W.2d 589, 599 (Tenn. 1990); State v. Teel , 793 S.W.2d 236, 251 (Tenn. 1990); State v. Thompson , 768 S.W.2d 239, 25 2 (Tenn. 1989).

PROPORTIONALITY REVIEW The state submits that the death sentence in this case was not imposed in
an arbitrary fashion, that the record supports the jur y’s finding that the four aggravating circumstances

outweig h the miti gating circumstances beyond a reasonable doubt, and that the dea th senten ce in this case is neither excessive nor dis proportionate to the penalty imposed in similar cases.

Pursuantto Tennessee Code Annotated section 39-13 -206(c)(1 )(D ), a compara tive proportionality rev iew must be undertakenin all capital cases. In conducti ng a comparative proportionality review, the Court must begin with the presumption that the sentence of death is proportionate to the crime of fir st-degree murder. State v. Hall , 958 S.W.2d 679, 699 (Tenn. 1997). A deat h sentence will be considered disproportionate if when taken as a whole, the case is "plainly lac

king in circumstances consistent withthose in similar cases in which the death penalty has been imposed." State v. Bland , 958-36-

S.W.2d 651, 665 (Tenn. 1997). A sentence o f death , however, is not di sproportionate merelybecause the circum stanc es are similar to those i n another case in which a defendant received a life sentence. Hall , 958 S.W.2d at 699. T he role of this Cou rt in conducting comparative proporti onal ity review i s to assure "that no aberrant de ath sentence is affirmed," not to assure th at a sentence "less than death has nev er been imposed in a case with si milar characteristic s." Id

.

In comparing similar cases, the Court must consider many factors, including (1) the means of death, (2) the manner of death, (3) the motivati on for the killing, (4) the place of death, (5) the similarity of the victims' circums

tances including age, physical, and mental conditions, and the victims' treatment during the killing, (6) the absence or presence of premeditation, (7) the absence or presence of provocation, (8) the absence or presence of justification, and (9) the injury to and effects on n ondecedent victims. Bland , 958 S.W.2d at 667.

In comparing similar defendants, the Court must consider variables such as: (1) the def endant' s prior crim inal reco rd or prior criminal a ctivity, (2) the defendant's age, race, and gender, (3) the defendant's mental, emo tional, or physical co ndition, (4) the defendant's involvement or role in the murder, (5) the def endant's cooperation with authorities, (6) the defendant's remorse, (7) the defenda nt's knowledge of helplessness of the victim(s), and (

8) the defendant's capacity for r ehabilitation. Id

. Compara tive proportionality rev iew is not a rigi d, objecti ve test
. Id . at 668; Hall , 958 S.W.2d at 699. T his Court does not need to " employ a mathematical formula or scientific grid." Hall , 958 S.W.2d at 699. Rath er, in using these f actors to compare the circumstances

of this case to other death penalty cases, this Court must r ely upon " t he experienced judgment and i ntuition of its own members." Bland , 958 S.W.2d at 668.

Based on a review of the cases listed be low, the Court conclude s that the death penalty in this case was neither arbitrar

y nor disproportionate.-37- In State v. Cribbs , 967 S.W.2d 773 (Te nn. 1998), the victim sust aine d a contact shotgun wound to the side of her head. The murder occurred when the vi ctim and her husband came home to find the 22-year -old defendant and a second assai lant burglarizing

theirhome. The jury found two ag gravating circumstances: (1) the defendant had previously been con victed of one or more fel onies whos e statut ory eleme nts involve the use of violence and (2) the murder was committed while the defendant was engaged in committing or was att empting to commit a burglar y. Tenn. Code Ann. § 39-13-204(i)( 2) and (7) (Supp. 1993).

In State v. Mann , 959 S.W.2d 503, the 23-year-old defen dan t unlawfully entered the home of the victim, who rec eived 15 separate blows to the head and who

was also raped, strangled, and stabbed. The jury found two aggravati ng circumstances: (1) the murder was especially he inous, atrocious, or cr uel and (2) it was

co mmitted while the defendant was engaged in committing a burglary. Tenn. Code Ann. § 39-13-204(i)( 5) and (7) (1991 Repl.).

In State v. Pike , 978 S.W.2d 904 (Tenn. 1998), the victim sustained at least fourheavy blows to th e head. The victim’s body had multiple cuts and slashes, including
a slashed throat. There wer e also defensive wounds. The defendant was 18 years old at the time of the murder. The jury found two agg ravating circumstan ces: (1) the murder was especiallyheinous, atrocious, or cruel and (2) the murder was committed for the purpose of avoiding, interfering with, or preventing a law

ful arrest or prosecution.Tenn. Code Ann. § 39-13-204(i)(5) and (6) (Supp. 1993).

In State v. House , 743 S.W.2d 141 (Ten n. 1987), the defendant, in his early twentiesat the time of the offense, killed the victim with a severe blow to theleft forehead. The victim’s body w

as badly bruised and there were ab rasions and blood indicating that she had been in a fierce struggle. The victim was also p artially strangl ed. Three aggravating

circumstances were found by the jury: (1) the appellant had previousl y been convicted of a felony involving the use or threat of violenc e to the person, (2) the homicide
wa s especially heinous, atr ocious, or cruel, and (3) it was committed whi le the appellant-38-

was committing or attempting to com mit or fleeing from the commission of r ape or kidnapping. See Tenn. Code Ann. § 39-2-203(i)(2), (5), and (7) (1982) (repealed 1989).

In State v. Barber , 753 S.W.2d 659 (Tenn. 1988), the 29-year-old defendant burglarized the home of the el derly victim, w ho was struck in the

head at least five times with a blunt instrument. The jury found that the murder was especially heinous, at rocious,
or cruel and that the appellant w as engaged in committing larceny. See Tenn. Code Ann. § 39-2-203(i)(5) and (7) (1982) (repealed 1989).

In State v. Cazes , 875 S.W.2d 253 (Tenn. 1994), the victim w as raped and sustained multiple blows to the head with a blunt instrument. There w ere also numerous marks and bruis es foun d on the vic tim’s bod y. The jury found t hree aggravating circumstances: (1) the defendant had previousl y been convicted of one or mor e violent felonies, (2) the murder was especially heinous, atrocious, or cruel, and (3) the murder was committed while engaged in a felony. Tenn. Code Ann. § 39-2-203(i)(2), ( 5), and (7) (1982) (repealed 1989).

Moreover, the same four aggravating circumstances as in this case were found in State v. Ca ruthers , 676 S.W.2d 935, 938-39 (Tenn. 1984) (Jury found the aggravating

circumstances set forth in Tenn. Code Ann. § 39-240 4 (i)(2), (5), (6), (7) (Supp. 1980) (repealed 1982)).

While "[n]o two cases are alike,and no two defendants are alike, " Barber , 753 S.W.2d at 665, the above-mentioned cases bear many similarities w

ith the case now before the Court. Based on the similarities betw een these casesand the one now before the Court, imposition of the death penal ty is not aberrant, nor

is its application to the defendant excessive or di sproportionate.

CONCLUSION In conclusion, we find that the e vidence is sufficient to support the jury’s findin g that the defendant is guilty of premeditated murder. While error occurr ed during-39-

the trial, we have carefully rev iewed the record and hav e concluded that such error did not affect the verdict. We also find the evidence sufficient to support th e sentence of death. Again, while error occur red during th e sentenci ng hearing, we find that such error was harmless and did not affect the jury’s verdic t. Moreover, we have cond ucted a co mparati ve proportion ality

review and have determined that the sentence of death in this case is neither excessive nor dis proportion ate to the pena lty impose d in simila r cases. Fi nally, although not raised, we have reviewed the record and find that the evidence is sufficie nt to suppo rt the def endant’ s convictio n for esp ecially aggr avated bu rglary.

Accordin gly, we affirm the defendant’s convictions of premeditated murder and especially aggr

avated burglary, a nd we affirm his sentence of death.

____________________________________ THOMAS T. W OODALL, Judge
CONCUR:

___________________________________ DAVID G. HAYES, Judge

___________________________________ JOE G. RILEY, JR., Judge