# FILED
May 19, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE JANUARY 1996 SESSION

STATE OF TENNESSEE, ) ) Appellee, ) No. 01C01-9412-CC-00408

) ) Montgomery County upo n change of venue ) from the Twenty-Fourth Judicial District v. ) ) Honorable Julian P. Guinn, J udge ) STACY DEW AYNE RAMSEY, ) (First Degree Murder) ) Appellant. ) For the Appellant : For the Appellee : Matthew M. Maddox Charles W. Burson D. D. Maddox Attorney General of Tennessee 105 East Main Street and P.O. Box 430 William David Bridgers Huntingdon, TN 38344- 0430 Assistant Attorney Gener al of Tennessee 450 James Robertson Parkwa y Nashville, TN 37243-0493 Robert G. Radford District Attorney General and Elenora Cahill Assistant District A

ttorney General 111 Church Street P.O. Box 686 Huntingdon, TN 38344-0686

OPINION FILED:____________________ AFFIRMED Joseph M. Tipton Judge1 The defendant’s i niti al motion to change venue was granted, and venue was changed from Carroll C ounty, the co unty in which the offen se occ urred, to H enry Cou nty. A subs equen t motion to chang e venue was also granted due to pu blicity surroun ding the trial of Teres a Deion Smith Harris, a cod efen dan t, and venu e wa s ch ang ed fr om Hen ry Cou nty to M ontg om ery Co unty. 2 O P I N I O N The defendant, Stacy Dewayne Ramsey, appeals as of right from a jury conviction in the Cir

cuit Court of Montgomery County 1 for first degree murder and sentence of life imprisonment wi thout the possibility of par ole. At the sentencing hearing, the jury found the existence of two agg ravating circumstan ces: that the murder was especially hei nous, atrocious, or cruel in that it involv

ed torture or serious phy sical abuse beyond that necessary to produce death and the murder w as committed for the purpose of avoiding, inter fering with, or prev

enting a lawful arrest

or prosecution of the defendant or another. See T.C.A. § 39-13-204(i)(5) and (6). The defendant contends that: (1) the trial court lacked jurisdict i on to convict the defendant

because an order of interchange was never entered; (2) he was convicted base d upon the uncor r oborated testimony of a codefendant; (3) the trial court erred b y overruling hi s motion to su ppress statements he gave to polic e; (4) the trial court erred by allowing the introduction of evidence during the g uilt and sentencing phases c oncerning the defend ant’s mu tilation and dispo sal of th e victim’s body; (5) the trial judge erred by refusing to recuse hi mself from hearing the case; (6) the trial cour

t erre d by denying the defendant’s motion challenging the constitutionality of the felony murder stat ute when it is read in conjunction with the statutes allowing for a conviction based upon criminal responsibil ity for the conduct of another and for t he facil itation o f a felo ny. (7) the trial c ourt erre d by e xcu sing an impaneled juror after testimony had begun; (8) the trial court erred b y denying the defendant’ s spe cial requestsfor jury instructions o n duress and diminished capacity and by instructing the jur y regarding dimin ished capacity in the manner that it did; and2 The defendant, Harris, and Walter Steve Smothers were joi ntly indict ed for the f irst degree murder of Dennis Br ooks, Jr. Befor

e Harris’ trial , Smothers entered a guilt y plea t o first degree murder and was sentenced to life without the possibility of parole. Pursuant to the agreem ent, Smothers testif ied against

Harris and t he defendant. Harris was tr ied separately and was conv icted by a jury of

first degree murd er and s entenc ed to life witho ut the pos sibility of parole. 3 (9) t h e evidence is insufficient t o support the aggravating circumstances. We affirm the judgment of conviction.

On July 30, 1993, at approx imately 7:00 p.m., police officer s discovered a truck belonging to De nnis Brooks, Jr., on a di rt road in an isolated part of Carroll County near the residence of the defendan t and Teresa Deion Smith Harris 2 . The truck was on fire with the severel

y charred body of Dennis Brooks, Jr., inside it. The victim had been shot in his left hip and under hi s chin. The victim’s bo dy had also been dismembered and stabbed. The radio, the speakers and other items belonging to the victim had been taken from the truck.

Alvin Daniels, an agent with the Tennessee Bureau of Investigation (TBI), testified that the truck w as moved to the jail after the fire went out. He said tha t the victim’s body w

as then removed from the truck. He stated that it was app arent that the victim’s legs had been cut off, with one being on the passenger side of the truck and the other being under the vi ctim’s body. Agent Da niels testified that he inter viewed the defendant the next morning. He said that he noticed blood on the s hoes that the defendant was wearing. He stated that when he ques tioned the defendant about the blood, the defendant told him that it w as deer blood. Agent Daniel s testified that he searched the defendant’s residence with the defendant’s permissi on. He said that he found a .20 gauge, single shot shotgun at the defend ant’s residence and a shaving kit containing tools in a bar n located on the defendant’s property . He stated that the shotgun had to be cocked manually each time it was fired. Agent Daniels found severa l items belonging to the v ictim at Harris’ r

esidence, including tw

o Mexican coins, one Grover Cleveland c

oin, and the truck radio and s peaker. He also found two butc her4

knives, a shovel, an ax, a five-gallon gasoline tank at her residenc e and red droplets on the walkway to the shed behind her house. Agent D aniels testified that he disco vered stains that appeared to be blood on Parrish Road, a narrow gravel road in an i solated part of the county near the loc ation where the truck w as discovered by pol ice.
May Dill, the manager at a Subway Restaurant, testified that the victim was an employee at the res taurant and that he was clos ing the restaurant on the ni ght that he was killed. She said that she spoke to the v ictim on the telephone at approximately 12:25 a.m. on July 30, 1993.

Officer David Bunn of the Carr oll County Sheriff’s Depar tment testified that he responded to a call from Keith Knowles on July 30 that he had heard voices coming from the road near his r esidence followed by a g unshot. He stated that when he arrived, he discov

ered red spots on the road and the defendant’s truck parked on the side of the road. He said that the truck had a flat tire and the hood of the defendant’s truck was sti ll warm. Officer Bunn testi fied that a search for the vic tim was conducted after the victim’s father reported the victi m and his truck missing.He stated that the victim’s truc

k was discovered by

police, and he described the d iscovery of the victim’s body in the burned truck.

Keith Knowles testified that he was awakened at 12:30 or 1:00 a.m. by people talking near the ro ad approximately six

ty to seventy feet from w here he lived. He said that he saw the tai llights of a vehicle stopped in the road. He stated that he heard someone ask to borrow ten dollars and a male voice responded that he had it covered. Mr. Knowles testified that he then heard th e motor of the vehicle speed up and a man curse and say that if the person moved the truck, he would blow the person’s head off. He said that the man asked the person in a loud voice two more times whether the person hear d what he was sayi ng. Mr. Knowles s tated that he then5

heard a gu nshot fo llowed by a s cream by a woman. He s aid that the truck then drove away and he heard the woman yell, “Lay down. Lay down, M.F., lay down.” Mr. Knowles testified that he saw what appeared to be blood in the road when he walked t o the road. His wife testi fied similarly.

Walter Smothers, a codefendant, testified that he had dated Ter esa Deion Smith Harris for approx imately one month and had liv ed with her for approxi mately one week before the offense occurred. H e said that he, Harris and the defendant spent the day drinking beer and whiskey and taking Valium at Harris’ house . Smothers stated that he argued with Dav id Hampton, Harris’ ex

-boyfriend, on the telephone. H e testified that Harris asked him and the defendant to find Hampton and to hold him dow n so that she could beat him up as Hampton had bea ten her on earlier occasi ons. He stated that they agreed, and the defendant took a gun that he had brought to H arris’ house with him in the defendant’s truck. Smother s said that they then dropped Harris’ children at their grandmother’s house.

Smothers testified that before they arrived at Hampton’s r esidence, the defendant’s truck began over heating, requiring

them to stop along the road at approxim ately 12: 00 or 1:00 a.m. He st ated tha t they disc ussed a p lan to tak e the next vehicle that came along. He said that they also di scussed the possibility that they would have to kill the driver. Smo thers tes tified t hat as th e victim’s truck cam e down the road, Harris stood in the middle of the road to flag the victim down while Smothers and the defendant stood on the other side of the road out of sight. He stated that when the victim stopped the truc k, he pointed the gun at the v ictim and told him to get out of the truck. He said that the defendant then grabbed the victi m and threw him to the ground, and he stated that Har ris slapped the victi m, cursed him, and told him to shut up. Smothers said that the v ictim became quiet.6 Smothers testified that he got into the back of th e truck with the victim. He stated that the defendant drove the tr uck and Harris sat in the passenger seat holding the gun on the victim through the rear sliding glass window of the truck. Smothers testified that when the defendant sped u p at one point, Smothers grabbed for the gun and it accidentally discharged, hitting the victim in his left hip. He said that the victim began screaming but Harr is told the victim to s hut up. He also said that they told the victim that they w

ould take him to the hospital. He stated that the victi m began screaming again as they neared security lig hts or street lights within the city l imits. Smothers claimed that he heard a v oice tell him to shoot the v ictim, although he did not know whether he was hallucinating or someone in fact said to shoot the victim. He stated that he then took the gun, pointed it at the victim’s chin, and shot the victim again. Smothers believ ed that the second shot killed the victim.
Smothers testified that as they were driving towards Harris’ residence, they were pursued by

a police car but the defendant w as able to evade the officer and return to Harris’ r

esidence. He said that they then took the radio and some coins from the victim’s truck. He stated that they decided to bury the victim. Smothers testified that the defendant initially suggested that they use a backhoe to bu ry the truck as well as the victim, but the back hoe had a flat tire. He said tha t the defendant retrieved an ax and a shovel from his resid ence and Harris obtained a but cher knife from her residence. He stated that they then drove the truck to a secluded area located near a bridge. Smothers testified that while there, they decided to cut off the victim’s legs to make it easier to bury hi m. He said that before cutting off the victim’s legs, the defendant took the shoes off the victim’s feet. Smothers said that he and the defendant each cut off a leg with t he ax. H e claime d that he did not t ell the defendant

to cut of f the victim’s leg. Smothers said that Harris then stated that she wanted the victim’s heart, and he removed the vi ctim’s heart for her. He s aid that Harris then held the victim’s heart to her

mouth. Smothers testified that he and the defendant also held the7

victim’s heart up to their mouths at the request of Harris. He also said that they each took turns stabbing the v ictim with the butcher knife. Smothers stated that the defendant also took a tool kit from the victim’s truck.

Smothers testified that they returned to Harris’ residence and retrieved oil and gasoline to burn the v ictim’s body and the v

ictim’s truck. He sai d that at approxim ately 2:3 0 or 3:00 a .m., he d rove the vic tim’s tru ck approxi mately on e to two miles away, with the defendant riding with him and Harris following in her own car. They poured gasoline on the truck, set it on fire, and then went back to Harris’ residence where they

showered and Harris washed their clothing

.
Smothers stated that they w ent to get the defendant’s truck at approximately noon but the truck had a flat tire and w ould not crank. They retur ned later and towed the truck to the defendant’s residence. Smother s said that the three concocted a story to tell the police if they wer

e questioned.

On cross-examination, Smothers testified that Harris was more in command than anyone else. He stat ed on redirect examination that Harris did not order the defendant to grab the victim and throw him to the ground, to drive the victim’s truck, to chop off the victim’s legs, or to take the victim’s personal belongings. He said that when Harris stated that they would need a gun if they were going to Hampton’s residence, the defendant retriev ed the shotgun.
Dr. Obrien Smith, a patholog ist, testified that he examin ed the charred remains of the victim that were found in the truck and that he iden tified the victim through h is dental records. His examin ation reve aled tha t the victi m suffe red two shotgun wounds, one to the l eft hip, causing damage to the i ntestines and large blood vessels, and the other under the chin, causing damage to the head an d neck. He said8

that a pellet also penetrated the victim’s lung. D r. Smith’s examination s howed that the victim also suffered stab wounds to the right side of the abdom en and to the liver. Dr. Smith testified that the victim’s chest had been opene d and the heart removed. He stated that the victim’s heart was found in the abdominal c avity. Dr. Smith said that both of the victim’s legs , one of his arms, and his penis h ad been amputated.

In Dr. Smi th’s opin ion, the shotgun wo und unde r the chin could have caused the victim’s death because of the damage to th e spinal cord and the brain. He believed that the shotgun wound to the victim’s left hip also could have been fat al, although it was less likely to cause immediate death. Dr. Smith testified that he could not determine which guns hot wound occurred first.He expressed the opinio n that the stabbing, the dismemberment, and the charring occurred after the victim’s death.
Officer Thomas Bridges, the chief of poli ce for Hollow Rock, t estified that as he was responding to a call, he saw a speedi ng truck. He stated that he pursued the vehicle but eventuall

y lost it.
David Lee Hampton testified that he called Teresa Deion Sm ith Harris, his former girlfriend, the day before the victim was killed. He stated that he spoke to Harris and Walter Smothers on the telephone. He said that he argued with Smothers , and Smothers asked him to meet him to fig ht the following Monday and told him that he was going to beat him up.

The defendant testified, an d his testimony was similar to that of Smothers, except he portrayed hi s role as a much more limited one. The defendant claimed that he was working on his truck when Harris and Smothers stopped the victim’s truck. He testified that he did not know of any plan to stop and kill the driver of the vehic

le. The defendant admitted that the shotgun Smothers used to kill the vic

tim was his, but he9

stated that he did not know th at Smothers had taken it from the tr uck until after the victim was stopped. He stated that Smothers, who was holding the gun, told him to get in the truck and drive and then Smothers forced the vic tim into the back of the truck. The defendant said that he drove the truck beca use he was scared of Smothers. He stated that he did not believ e that anyone would be ki lled. The defendant remembered hearing two gunshots

and the victim pleading for his life, but he did not remember being pursued by a police car.The defendant denied that he participated in the mutilation of the victim’s body. The defendant also denied taking anything from th e victim. He denied having a conver sation about using his father’ s backhoe to bury the v ictim and his truck, and he stated that h e did not see anyone get an ax or a shovel. The defendant admitted that he help ed place the victim’s body in the seat of the truck before Smothers poured gasoline on th e truck and set it on fire. The defendant testified that Smothers made up a story for them t o tell police if they w

ere questioned. He said that he initially told the police the concocted story . He also admitted that he w as wearing the victim’s shoes w

hen he was arrested, but he claimed that Smothers took the sho es off the victim’s feet and gave them to him.

Dr. Pamela Auble, a clinic al psychologist, tes

tified that she conducted an examination of the defendant. She stated th at as part of her examination, she interviewed the defendant and reviewed the defendant’s s chool records, his medical records, his birth rec

ords, transcripts of pri or testimony in the Har ris’ trial, and transcripts of intervi ews of family members and co-w orkers of the defendant conducted by an investigator. Dr. Auble testified that s he determined that the defendant was of low intelligence, having a full-scale I Q score of eighty-one. She said that testing of the defendant in 1982 and 1988 revealed full- scale IQ scores of eighty and seventy-two, respectively. D r. Auble testified that the defendant’s school records revea led that the defendant took some special education c lasses in middle school and high school. She10

said that the defendant graduated fifty -eight out of a class of one hundr ed and that he passed the Tennessee Proficiency Test given in high s

chool.

Dr. Auble stated that in her opinion, the defendant is not a v iolent person but is a very passive person who has problems standing up for himself. Dr. Auble said that the defendant is also shy, immature, and dependent on others. She d escribed the defendant as being submissive and a follower. Dr. Aubl e testified that in her opinion the defendant was afraid of Smothe rs and was not capable of standing up to him because of his submissiveness and low intelligenc

e. She said that the defendant had some problems remembering the ev ents that occurred on the nig ht of the offense. She believed the defendant was sufferi ng from severe depression and a lot of anxiety because he had symptoms of a person w ho has been through a horribl e event.

In rebuttal, Dr. Bernard Hudson, a psychiatris t, testified that he examined the defendant pursuant to a court order. In his opinion, the defendant w as competent to stand trial and an insanit y defense could not be supported. He stated that the defendant did not have a mental diseas e or defect. Dr. Bernard als o said that the defendant denied any kind of psychiatric illness in the past or in the prese nt. He testified that the defendant knew w hat was taking place w hen the offense occurred, knew that it was wrong, and knew that he had s everal choices.

In surrebuttal, Dr. Aubl e testified that although the defendant do es not meet the standard for being insane,he suffers from a mental disease or defect i n that he meets the criteria for a dependent personality disorder and post-traumatic stress disorder. On cross-ex

amination, she explained that the defendant suffers from posttraumatic stress disorde r as a result of the events that occurred on the night o f the killing. She conceded th at the defendant’s post-traumatic s tress has no bearing on the defendant’s diminished capacity

.11 I. JURISDICTION The defendant contends that the trial court was without jurisdiction to try the case because no order of inter change was entered follow ing the changes of venue. He asserts that it wa

s necessary that an order of interchange be entered by a judge of the Circuit Court of Montgomery County. The defendant arg ues that the references to “the receiving court” in Rule 21, Tenn. R. Crim. P., implies that the judge for the district to which venue is ch anged will be different from the judge that originall y had jurisdiction. The state responds that the trial judge retained jurisdi ction because there is no requirement that an order of i nterchange be entered.

The trial judge in this case is a judge for the Tw enty-Fourth Judicial District. Carroll Cou nty, the co unty in whic h the of fense o ccurred, and Henry C ounty, the county to which venue was initially changed, are two of the counties that comprise the Twenty-Fourth Judi cial District. M ontgomery County is not in the same judicial district as Carroll

County and Henry Cou nty. Venue was changed from Carroll County to Henry County and from Henry Count y to Montgomery Coun ty. The trial judge presided over the defendant’s c ase at all times. No order of interchange was entere d.
At a bench conference during v oir dire, the defendant objected to the trial court presiding over

the defendant’s case because no order of interchange had been entered by the Tennessee Supreme Co urt allowing the tr ial judge to sit by interchange. The trial judge overr

uled the defendant’s objection.

The defendant also raised the issue i n his motion in arrest of judg ment filed after the judgment of convic tion was entered. See Tenn. R. Crim. P. 34. At the hearing on the motion, the tri al judge explained that once it became apparent that the case could not be tried in th e judicial district in which he presided, he considered other counties and concluded that Montgomery County would be an appropriate venue to try12

the defendant. The judge stated that he spoke to every circuit judge in Montgomery County and each judge agreed that the defendant’s case co uld be tried in Montgomery County. The trial judg e said that each judge could not preside over the defendant’s trial due to scheduling conflicts but that the presiding judg e of the district informed him that venue could be changed to M ontgomery County as l ong as the trial judge presided over the case. He stated that ve nue was then changed wi th the understanding that the tr ial judge would continue to preside over the case. The trial judge overr uled the defendant’s motion, noting that the defendant had not been prejudiced.

At the time of the defendant’s trial, T.C .A. § 17-2-201 (1994) (repeal ed 1997) provided t he following:

The circuit ju dges may i nter change with each other or with judges of special courts for one (1 ) or more courts, or parts of courts, when causes ex ist making an in terchange necessa ry, or

for mutual convenience; and, in the absence of the judge of any circuit, the circuit judge’s death, or inability to hold court, any ci rcu it judge may hold court in such judge’s stead. This statute provides the authority by whi ch the trial judge pres ided over this case. I n this respect, there is no requirement that the recor d show that a judge is sitting by interchange. See State ex rel. Stall v. City of Knoxville , 211 Tenn. 271, 278-79, 364 S.W.2d 898, 902 (1962).

As for the defendant’s claim that Rul e 21, Tenn. R. Crim. P., rela ting to change of venue, indicates a t rial judge in the rece iving district is to try the defendant, we believe that it i s irrelevant to the i ssue before us. The fact that a trial court in the receiving county

is to hear the case under R ule 21 does not negate the fact that the trial judge could interchange with the judge of the recei ving court pursuant t

o T.C.A. § 17-2- 201 (1994) (repealed 1997).13 In this case, the interchang e was proper. The reasons provided by the trial judge establish

that the scheduling conflic ts of the other judges rendered it both necessary and mutually convenient that the trial judge try the defendant’s c ase. An order of interchange was not required by law . Moreover, the defendant has fail ed to show how he was pr

ejudiced by the failure to r eceive notice that the tr ial judge was sitting by interchange. The trial court had jurisdiction to try the defendant. This issue is without merit.

II. SUFFICIENCY OF THE EVIDENCE

The defendant challenges the sufficiency of the evidence. He argues that he was improperly c

onvicted upon the uncorrobor ated testimony of Smothers. Our standard of review when the sufficiency of the evidence is questioned on appe al is "whether, after view

ing the evidence in the light most favorable to th e prosecution, any rational trier of fact could ha ve found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This means that we do not reweigh the ev

idence, but presume that the jury has resolved all conflicts

in the testimony and draw n all reasonable inferences from the evidence in favor of the stat e. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).

In Tennessee, a conviction may not be based upon the uncorroborated testimony of an accomplice. State v. Bigbee , 885 S.W.2d 797, 803 (Tenn. 1994). An accomplice is an indiv

idual who knowing ly, voluntarily , and with common intent participates with the principal offender in the commissi on of an offense. State v. Lawson , 794 S.W.2d 363, 369 (Tenn. Crim. App. 1990). The testi mony of one accomplice may not be used to c orroborate the testimony of another. Bethany v. State , 565 S.W.2d 900, 90 3 (Tenn. Crim. App. 1978). Wh ether other evidence sufficiently14

corroborates the testimony of an accomplice is a questi on of fact entrusted to the jury. State v. Bigbee , 885 S.W.2d at 803. The general rule is that:

there must be some fact testified to, ent irely independent of the accomplice’s testimony, which, ta ken by itself, leads to the inference, not only that a crime has been committed, but also that t he defendant is implicated in it; and this independe n t corrobor ative testimony must also include some fact establishing the defendant’s identity. This cor r oborative evidence may be direct or entirelycircumstantial, and it need not be adequa te, in and of itself , to supp ort a convi ction ; it is sufficient to meet the requiremen t s of the rule if it fairly a nd legitimately tends to connect the defen dant with the commission of the crime charged. It is not necessary that the corrob orati on extend to every part of the accomplice’s evidence. The corroborati on need not be conclusive, but it is sufficie nt if this evidence, of itself, t ends to connect the defendant with the commission of the of fense, although the evidence is slight and entitled, when standing alone, to but little consideration. Hawkins v. State , 4 Tenn. Crim. App. 121, 133-34, 469 S.W .2d 515, 520 (1971).

We conclude that there is suf ficient evidence to corroborate Smothers’ testimony. Initially , the defendant testified in detail about his involvement in the crime. Also, the defendant was wearing the victim’s shoes when he was arrested. The victim’s shaving kit containing tools were also found in the barn located on the defen dant’s property two days

after the murder occurred. In addition, Officer Bunn discove red the defendant’s truck near the Know les’ residence where

the shooting occurred and the truck had a flat tire, as tes tified to by Smothers. This ev idence is sufficient corroboration.

III. SUPPRESSION OF STATEMENT

The defendant challenges the trial court’s denial of his motion to suppress the two statements he gav e to police. He argues that he did not give the st atements knowingly, v

oluntarily, and intell igently because of his l imited intellect. He als o argues that the statement he gave to Agent Champine was obtained in violation of his Miranda rights because he invoked his right to counsel.15 Before trial, the defendant filed a motion to suppress the statements he gave to police. At the hearing on the motion to suppress, TBI Agent Alvin Daniels testified regarding t he first stat ement give n by the defend ant at approx imately 8: 00 a.m. on July 31, 1993. He said that the defendant was not under arr est when he and Agent Carpenter interview

ed the defendant at the jail. He st ated that he informed the defendant of his rights orally and then Agent Carpenter read the defendant his rights from the waiver of rig hts form and the defendant signed the form. H e testified that the defendant denied the crime when q uestioned. He said that the defendant e xplained that he and Smothers went to Par is to cash a check on the ev ening of the offense. Agent Danie ls stated th at the defendant told him that

they had to get a ride h ome because his truck broke dow n.
TBI Agent Steven Champine testi fied that on the afternoon of July 31, 1993, he arrested the defendant af ter a search was conducted at the defendant’s house to investigate the defendant’s claim that he had kill ed a deer. He stated that he explained to the defendant that he w as being charged wi

th murder and then placed the defendant in the police car. Agent Champine testif ied that as he and a deputy were transporting the defendant to the jail, he advised the def endant of his Miranda rights. He said that the defendant then gav e a statement regarding hi s involvement in the crime. Agent Champine testi fied that once they arriv ed at the police station, he ask ed the defendant to put his statement in writing. He explai ned that he informed the defendant of his Miranda rights a second time, and the defendant gave a writt en statement.
Dr. Pamela Auble testified regarding the results of her p sychological examination of the defendant. She said th at the defendant had a full-scale IQ of 81 and poor reading, vocabulary and arithmetic skills and that his ability to express himself was within the ret

arded range. She stated that per sonality testing of the de fendant16

showed that he was somew hat immature. Dr. Auble testi fied that the defendant was not comfortable around people and that he d id not relate to people ver y well. She described the defendant as being s ignificantly depresse d at the time of the interview

. She stated that the defendant is intimida ted by people in authority, including police officers, and that he would try to please them by doing w hat they wanted, even i f it was to his own detriment.

Dr. Auble testified that w hen she questioned the defendant about the circumstances surrounding his statements, the defendant told her that he had gone to bed at approximately 11:30 p.m. the night before the interv iew but was awak

ened between 1:00 and 2:00 a.m. She said that the defendant told her that the pol ice kept him in jail until around 8 :00 a.m., when they questioned him for the first time. She stated that the defendant said that after the interview and after he consented to the search of his home, he was tak en home and a search was conduct ed. The defendant was arrested later that day and gave a second statement after being read his Miranda rights. Dr. Auble te

stified that she did not believ e the defendant fully understood that he could obtain counsel before gi ving the statement. She sai d that the defendant seemed more concerned about obtaining counsel after he gave the st atement. She testified that she was not su re whether the def endant unde rstood the imp ortance of giving a statement. Dr. Auble stated that she questioned the de fendant’s ability to waive his rights knowingl

y and voluntarily

given his limited intellectual capacity and his sleep deprivation.

On cross-examination, D r. Auble conceded that she did not diagnose the defendant with a learning di sability. She stated tha t the defendant was not retarded but he was within the l ow average intell igence range. She acknow ledged that the defendant initially lied about his conduct but then confessed onc e he learned about the17

evidence against him. Dr. Auble testified that she believed that the def endant was also susceptible to being inti midated by his codefendants.

The twenty-two-y

ear-old defendant testified regar ding the circumstances surrounding his arres

t and the statement that he gave to Agent Champine. He said that Agent Champine read him his r ights and asked him wheth er he wanted to tell him w hat happened. The defendant stated that he understood w hat was meant by the rig ht to counsel, and the defendant said that h e asked Agent Champine whether he could still obtain counsel if he told the poli ce what happened. He testified that Agent Champine told him that counsel woul d be provided and then began q uestioning him. The defendant stated that during the int erview, he asked Ag ent Champine again whether he would receive legal representation. The defendant clai med that the reason he asked the questions was that he wanted an attorney. He stated that Agent Champine told him that he should talk to him becaus e he would not get a chance later.

On cross-examina tion, the def endant testif ied that he earn ed average grades during high school and that he graduated from hi gh school. He conceded that he had earlier signed a waiver of rights form, and he admitted that he understo od his rights at the time he sig ned the form. He also stated that he understood when he was told that he was charge d with first degree mur

der and explained his ri ghts before giving the second statement. The defen dant acknowledged that the officers did not keep him awake before he was inter viewed. He said tha

t he freely and voluntari ly told Officer Champine what happened. He stat ed that he was given an attorney after givi ng the statement. On redirect examination, the defen dant testified that he did not really understand what was meant by the right to counsel or the right to remain s ilent.
At the conclusion of the hearing , the trial court denied the motion to suppress the statements. It found that the defendant gave the statements knowingly18

and vol untaril

y. On ap peal, th e trial

court’ s findin gs of fac

t at the c onclusi on of a suppression hearing w ill upheld unless the ev idence preponderates otherw ise. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). The defendant bears the burden of demonstrating that the evi dence preponderated against the trial court’s findings

. Id

. However, the application of the law to the facts as determined by the trial court is a question of law whic

h is reviewed de novo on appeal. State v. Yeargan , 958 S.W.2d 626, 629 (Tenn. 1997).

Initially, we note

that the statement given to Agent Champine was nev er introduced at trial, eithe r as substantive evi dence or for purposes of cross-examining the defendant. Nor does the defendant expl ain how he was prejud iced by the trial court’s denial of the motion to s uppress with respect t o the statement given to Ag ent Champine. Under these circumstances, we would not need to concern ourselves about the trial court’s rul ings with respect to the defendant’s second statement that w as given to Agent Champine.

However, evidenc

e relating to the first s

tatement that was giv

en to Agent Daniels was introduc

ed at trial both substantiv ely and for purposes of cross-examining the defendant. Agent Daniels testified during the sta te’s case in chief regarding his questioning of the defendant rega rding the blood on his shoes . He stated that the defendant told him that the blood was deer blood. The defendant was also questioned on cross-examination r egarding the alibi that

he and his codefendants concocted. Therefore, the issue of whether the def endant knowingly, voluntarily and intelligently waived his rig hts before giving the fir st statement must be addressed.
Initially, we note

that the defendant could have been cr oss-examined regarding the statement he gave irrespectiv e of whether the statement was admissible. A statement which is inadmissible against the defendant in the prosecution’s case in19

chief because of a Mirandaviolation but whic h otherwise satisfies l egal standards for trustworthiness may

properly be used for impeachment purposes to attack the testifying defendant’s credibility. Harris v. New York , 401 U.S. 222, 225-26, 91 S. Ct.643, 645- 46 (1971); State v. Hopper , 695 S.W.2d 530, 538 (Tenn. Crim. App. 1985).

However, the state c

annot introduce an illegal ly obtained statement during its case in chief. Miranda v. Arizo na , 384 U.S. 436, 86 S. Ct. 1602 (1 966). Before a defendant can knowingly and voluntarily waive his Mirandarights, the defendant must be “adequately and effectively apprised of his rights.” State v. Middlebrooks , 840 S.W.2d 317, 326 (Tenn. 1992). The defendant may waiv e his constitutional ri ghts as long as the waiver is made “knowingly, voluntarily, and intelligently.” Id . The state has the burden of proving the w aiver by a preponderanc e of the evidence. State v. Bush , 942 S.W.2d 489, 50 0 (Tenn. 1997). In determining whether a defendan t has validly waived his or her Mirandarights, the court must l ook to the totality of the ci rcumstances. Id .; Middlebrooks , 840 S.W.2d at 326. When the voluntariness of a statement giv en to police is challenged bas ed on the defendant’s competency to w aive the rights prov

ided by Miranda , the determinative issue is “whether the defendant had the capacity in the first place to form a will of his own and to reject the will of others.” State v. Benton , 759 S.W.2d 427, 431 (Tenn. Crim. App. 1988).

The record reflects that Agent Daniels read the defendant his r ights and the defendant signed a waiv er of rights form before the defendant ga ve the statement. The defendant testified that he understood w hat was meant by the rig ht to counsel. Although the defendant is limited intellectually, he does not have a learning di sability and is not retarded. In fact, he ea rned average grades and graduated from high school. We hold that the evidence does not preponderate against the trial court’s ruling that the defendant knowingly and v oluntarily waiv

ed his constitutional ri ghts. We conclude that the trial court properl

y admitted the statement.20 IV. ADMISSION OF POST-DEATH EVIDENCE The defendant contends that the trial cour t erred by admitting po

st-death evidence during the g uilt and sentencing phases. He argues that evidenc e of mutilation of the victim’s body is

irrelevant to the deter

mination of whether the defendant committed first degree murder.He asserts that even i f the evidence is relev

ant, the evidence should be excluded under Rul e 403, Te nn. R. Evid ., becau se the pro bative value is su bstanti ally outwei ghed by the danger of unfair p rejudice , mislead ing the jur y, and confusion of the issues. The state r esponds that the evidence is relevant to the issue of the defendant’s culpabilit y and whether the defendant acted under duress. It contends that the probative value of the evidence of mu tilation was not substantially outweighed by the dang er of unfair prejudice. It arg ues that because the evidence w as admissible at the guilt p hase of the trial, the defendant’s cl aim that the evidence was inadmissible during the sentencing phase cannot form the bas is for relief on appeal. We hold that the trial court did not err by admitting the evi dence.

The admissibility of evidence as more probative than prejudicial is a matter within the trial

court’s discretion and will not be rever sed on appeal absent a showing of an abuse of that disc retion. State v. Harris , 839 S.W.2d 54, 66 (Tenn. 1992). Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probabl e than it wo uld be with out the e vidence. ” Tenn. R. Evid. 401. If the pro bative value of relevant evidence is “substantially outweighed by the danger of unfair prejudice,” it may be ex cluded. Tenn. R. Evid. 403.

We conclude that evidence of mutilation was relevant to the issue of the defendant’s guilt. Our supr eme court stated in State v. West , 844 S.W.2d 144 (Tenn. 1992), that evidence of concealment , though not relevant to es tablish premeditation or deliberation, may be rele vant to establish the defendant’s guilt by discredi

ting a claim of21

self-defense. Id . at 148, 151 (cit ing Sotka v. State , 503 S.W.2d 212, 220 (Tenn. Crim. App. 1972)) (“an inference may be drawn from the concealment or destruction of the corpse of the deceased”). Dur ing opening statement, defense coun sel informed the jury that the defendant admitted that he did something wrong but that he should not be held responsible for the kil ling of the victim. Defense counsel presented sever al theories that would eithe r reduce or excuse the de fendant’s commission of the offense, including the defendant acting under duress and suffering from dimi nished capacity at the time of the offense. The defendant’s introducti on of evidence of diminished capacity m ade evide nce of th e defen dant’s co nduct af ter the ki lling releva nt to prove that the defendant actively pa rticipated in the crime.

We also conclude that the probative val ue of the evidence of mutilation was not substantially

outweighed by the dang er of unfair prejudice. Though the evidence of post-death facts w as gruesome, it was par ticularly relev

ant to show that the defendant was a willing participant in the murder. Given the fact that the evi dence was relevant and admissible t o the issues to be determined, the trial court did not err

by admitting the evidence.

V. R ECU SAL

The defendant asserts that the trial judge erred by refusing to recuse himself from the c

ase. He argues that a r ecusal w as neces

sary ( 1) becau se of a statement made by the trial j udge during a pretrial hearing on a motion to suppres s the statement of Harris regar ding the credibility

of TBI Agent Daniels, (2) bec ause the trial judge presided over H arris’ trial, and ( 3) because of an ex parte communic ation between the trial judg e and an assistant distric t attorney general. H e contends that these instances showed the t rial judge’s bias i n favor of the prosecution and ag ainst the defendant and caused an appearance of impropri ety. Specifically, he argues that an22

appearance of impropriety w ith respect to the trial judge acting as thirt eenth juror was created by the trial j udge sitting for both the defendant’ s and Harris’ trial

.

A trial judge should g rant a motion to recuse whe never his or her impartiality can reas

onably be questioned. Alley v. State , 882 S.W.2d 810, 820 (Tenn. Crim. App. 1994). Recusal is “warranted w

hen a person of ordinary prude nce in the judge’s position, knowing all of the facts known to the judge would find a reasonable basis for questioning the judge’s impartiality.” Id . The standard of review on appeal is whether the trial cour

t abused its discretion by denying the motion. State v. Cash , 867 S.W.2d 741, 749 (Tenn. Crim. App. 1993).

A. Comment regarding credibility of witness First, the defendant asserts th at the trial judge should have recused himself because he made statements durin g a suppression hearing regarding the credibility of TBI Agent Daniels demonstrating a bias in favor of the state an d against the defendant. The state contends that the comment s made by the trial judg e did not warrant a recusal. We agree.

Before trial, the defendant filed a motion to recuse the trial judg e. At the hearing on the motion, the defendant ar gued that a recusal was necessary because of comments made by the trial jud ge during a suppressi on hearing regarding the veracity of a witness, Agent Danie ls. Agent Daniels had r ecently been diagnosed w ith cancer and had been undergoing chemotherapy at the time of the hearing. Agent Daniels’ testimony was preserved because of the possibility that Agent Daniels’ illness could prevent him from later attendi ng trial. The trial j udge made the following comment s immediately after ruling on Harris’ motion to suppr ess her statement: Lastly, and perhaps as an aside thi s court cannot set aside, - perha ps some 30 years of knowle dge of having Danie ls testify, - since he first started as a youngster. He is peculiarlytalented, and uncommon ly straight forward. This23 man doesn’t have a dishonest bone in his body. You couldn’t beat a lie out of him. I have seen him let cases drop out from under him, - before he would even disco lo r his testimony. I think what he testified to, is precisely what happened out there that day, - and I think

that he established the voluntar y giving of this statement. When co unsel for Harris a sked that the tr ial judge recuse hi mself, the tri al judge explained his comments as a means of showing his great respect for Agent Daniels’ talents.
We agree that the remarks made by the tri al judge were not appr opriate. See Alley , 882 S.W.2d at 822 (“Remarks which sug gest that the judge has tak en a position favorable or unfavo rable to a party . . . i ndicate bias.”). How ever, the “issue to be determined is not the propri ety of the judicial conduct of the trial judge, but w hether he committed an error which resulted in an unjust disposition of the case .” State v. Hurley , 876 S.W.2d 57, 64 (Tenn. 1993).

In this case, the defendant was not prejudiced by the trial judge’s comments. The trial judge’s comments were made pretrial and not in front of the jury. The defendant was tried before an impa rtial jury who determined the defendant’s guilt based upon the evidence presented . Also, the comments were i ntended to show the trial judge’s respec

t for the work of Agent Dani els, a man in poor health. Mor eover, the only portion of the defendant’s sta tements that was introduced substantively w as that the def endant c laimed t hat the b lood on h is shoes wa s deer blo od. W e do not b elieve that the error committed by the trial judge resulted in an unjust disposition of the case. Under these circumstances, we cannot say that the tr ial judge abused its dis cretion by denying the motion to recu se.
B. Presiding over codefendant’s trial Next, the defendant contends that a r ecusal was necessary

because the trial court presided ov

er the trials of both Harr is and the defendant, resulting in the24

appearance of impropriety in the exercise of his role as thirteenth juror in the defendant’s case. The defendant argues that the trial judge could no t be fair and unbiased because the judge had appr oved the verdict of gui lt in the trial of Harri s. The state responds that the mere fact that the trial judge presi ded at both trials is ins ufficient to require a recusal. We agree.

A trial judge is not di squalified from sitting on a case because he or she tried and made findings in prev ious litigation. King v. State , 216 Tenn. 215, 226, 391 S.W.2d 637, 642 (1965). In King , the trial judge had tr ied the divorce case of the defendant’s wife and granted a dec ree of divorce upon matters i nvolved in the crimi nal case, assault with the intent to commit first degree murder. The suprem e court held that the trial court proper ly overruled the defendant’ s motion to recuse the trial judge, stating that nothing in Article 6, Section 11 of the Tenness ee Constitution operated to disqualify the trial

judge under the circumstan ces. Id

.
Similarly, the tri al judge in this case i s not disqualified from sitti ng on the defendant’s case merely because he sat on Harris’ case. Although the trial judge he ard similar testimony during the codefendant’s trial and approved the verdict of guilt against the codefendant, the record does not ref lect that the judge was influenced in his decision as a thirteenth ju ror in the defendant’s case by his presiding at the codefendant’s trial. Moreov er, the central issue at the defendant’s trial was w hether he acted under duress or whe ther he suffered from diminished capacit y, an issue not before the trial court at Harris’ trial. Therefore, we believe that the trial court properly denied the defendant’s motion to recuse.
C. Ex parte communications Third, the defendant complains that the t rial judge should hav e recused himself because of ex parte communications with an assistant district attorney g eneral.25

The state argues that the trial court did not abuse its discretion by refusing to recuse himself because the communications w ere limited to appropriate s ubjects.
During pretrial di scussions regarding discovery, defense couns el stated that the trial court should be aware of the reports that had been sent to the District Attorney General’s office bec ause of his ex parte communicati ons with an assistant district attorney general. Defense counsel informed the court tha t the assistant district attorney general had infor med him that the trial judge had telephoned her. At the motion to recuse hearing, the defendant tried to call the tri al judge and the assistant district attorney g eneral as witnesses, but the trial judge refused to allow the questioning. Howe

ver, the trial judg e admitted that ex parte communic ations had taken place, but he assured the parti es that the communications did not relate to inappropriate subjects. H e explained that he often had ex parte communications with the attorneys in ever

y case, including th e defendant’s case, but that the communications were limited to appropriate subjects, such as the scheduling of hearings to resolve motions filed by the parties.

Pursuant to the Code of Judicial Conduct in effect at the time of the offense: A judge should accord to every person wh o is legally inter ested in a proceeding, or his lawyer, full ri ght to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte or other

comm unications con cerning a pending or impending proc eeding. . . . Tenn. S. Ct. R. 10, Code of Judici al Conduct, Canon 3(A)(4) (1993). In State v. Jones , 735 S.W.2d 803 (Tenn. Crim. App. 1987), this cour t addressed the appropriateness of an ex parte communication that occurred after the trial had begun. The trial judge in Jones had an ex parte communication w ith the prosecutor in chamber s shortly followi ng voir dire and a heated ex changed concerning a proc edural disagreement betw een counsel. Id . at 810. The trial judge g ranted the ex parte conference on ly after the3 We note that the Code of Judi cial Conduct presently

allows ex par

te communications where the cir

cumstances require i t for schedul ing, admini strative purposes or emergencies that do not deal wit h substanti ve matters or i ssues on the merits, provided t hat (1) t he judge reasonably beli eves that no person wil l gain a p rocedural or tacti cal advantage , and (2) t he judge promptly notifi es all ot her parti es regardin g the sub stance of the ex parte co mm unication and allow s an op portunity to res pond. See Tenn. S. Ct. R. 10, Code of Judicial Conduct, Ca non 3(B)(7)(a)(i) and (ii) (amended 1997). 26 prosecutor assured the judge that the purpose of the conference was to discuss matters not pertaining to the case on trial. Id . This court stated that the trial court’s decision to grant an ex parte communication was l acking in judgment. Id . at 810 n.3. However, any er

ror was considered har mless given (1) the trial court’s reassur ance that the ex parte conference d id not c oncern m atters relati ng to th e case, ( 2) the l ack of a showing of prejudice, and (3) the matter took place ent irely out of the presence of the jury. Id . at 810.

Similar to Jones , there has been no showing of prejudice in this case. The trial judge assured the defendant that he did not speak to the assistant district attorney general reg arding inappropriate matter s. The record reflects that the trial judge’s conversations related to scheduling matters involving motions. 3 Moreover, the jury was not made aware of the trial judge’s ex parte communications. Under these circumstances, we are unable to say that the decis ion to deny the motion to recu se was an abuse of discretion.

VI. CONSTITUTIONALITY OF THE FELONY MURDER STA TUTE The defendant contends that the trial cour t erred by denying

his motion challenging the constitutionality of the felony mur der statute when read in c onjunction with the statutory pr

ovisions providi ng for criminal responsi bility for the conduct of another and for the facilitation of a felony. He also argues that the prosecutor abused his discretion by see king the death penalty bec ause the prosecutor could hav e charged the defendant instead with facili tation of first degree murder. The defendant acknowledges that the pr osecutor has wide disc retion in seeking the death penalty, see State v. Cazes , 875 S.W.2d 253, 26 8 (Tenn. 1994). However, he argues that this case27

is distinguishable bec

ause, similar to State v. Middlebrooks , 840 S.W.2d 317, 346 (Tenn. 1992), the class of death eli gible defendants are not restr icted by the prosecutor seeking the death penalty instead of charging the defenda nt with facilitation of first degree murder.

We first note that the defendant did not receive a dea th sentence. Second, we note that the defendant w as found beyond a reasonable doubt to be criminally responsi ble for the criminal acts c harged, not a mere facilitator. Thus, the arguments he raises in thi s issue are irrelev ant to what actually o

ccurred in this case. His claimed errors had no bearing on the outcome. This i ssue is without merit.

VII. DISMISSAL

OF A JUROR The defendant contends that the trial cour t erred by excusing

a sitting juror fro m the cas e after t estimon y had begun in the tria l. After T BI Agent A lvin Floyd and Subway Manager M ay Dill testified, the trial court dismissed the juror because she was unable to make arrang ements for the care of her eight- year-old daughter dur

ing the trial in which the j urors were to be seq uestered. The defendant argues that it was an abuse of discretion to dismiss the juror. The state responds that the trial court’s actions were proper. We agree.

During voir dir

e, the trial court asked the potential jurors wh ether they had any personal or family problems that would inter fere with service on

the jury that was t

o be sequestered for approxi mately ten days. In res ponse, the juror stated that s he was a single parent and that as a single parent, she w

as required to take her d aughter to school and to pick her up from the day care after school. She explained that she did not have anyone to do these thi ngs for her other than her mother. She said that her mother could not pick her daug hter up until after 8:00 p.m. because she was working that week. When asked by defen se counsel whether the problem with child care would28

be a problem, the juror conceded that she would be worried but stated that sh e would be able to give her undi vided attention to the case.
During a bench conference after s ome peremptory challenges had been made, the trial court stated that the juror had a legiti mate reason for being excused for cause, but it also recogn ized that both the prosecuti on and the defense believed that she would be a good juror. At that time, defense counsel objec ted, stating that the dismissal should have oc curred before challenges w ere made. The prosecutor then stated that he agreed with the trial court that the j uror’s position was an impossible one, although he liked the juror. Defense counsel asserted that a dismissal was not pr oper and that the state should be req uired to exercise a per emptory challenge. The tr ial court then decided not to dismis s the juror. Additional challenges were made, and the juror was selected t

o serve on the jury.That afternoon, opening statements w ere given, and Agent Daniel and Ms. D ill testified.

At the beginning of next day, the trial court conducted a bench confe rence concerning the juror’ s child care problem. The cou rt informed the parties that the j uror had been unable to make arrangements for the care of her daughter. It explained that the juror’s only re latives that lived locally were her

mother and father, but her parents had contacted the court and stated that they could not care for th e juror’s daughter because they had conflicts w ith work. Defense counsel objected to the dismissal of the juror on the grounds that the juror was properl y selected and that defense counsel preferred her over the alt ernate juror.
Upon trial court quest ioning, the juror ex plained that one of her parents would have to take off from wor k in order to care for her daughter. The juror stated that her mother could keep her daughter no longer than the rest of th e week. The trial court stated that its concern w as that the juror would worry about her daug hter while servi ng29

on the jury. The court dis missed the juror, stating that it was convinc

ed that the juror had done everything to obtain alternat ive child ca re and tha t requirin g the juror to serve would cause an undue burden on her. The juror was then repl aced by an alternate juror.
Pursuant to Rule 24(e), the trial court may allow alternate jurors to replace sitting jurors who “become or are found to be unable or disqualified to perfo rm their duties.” The decision to seat an alternate juror is w

ithin the trial court’ s discretion. State v. Millbrooks , 819 S.W.2d 441, 445 (Tenn. Crim. App. 1991). The defendant has the burden of showing prej udice by the trial cour t’s seating of an alternate j uror. State v. Max , 714 S.W.2d 289, 294 (Tenn. Crim. App. 1986). The defendant has a right to a fair trial at the hands of an impar tial jury, but such a right does not include the right to any particular juror

s. See State v. Smith , 857 S.W.2d 1, 20 (Tenn. 1993).
In this case, the juror could only obtain child care for the rest of the week, although the trial court

estimated that the jurors w ould be sequestered for approximately ten days. The trial court concluded that the juror’s inability to obtain child care rendered the juror unable to fulfill her duties as a juror. Under these circumstances, we cannot say that the trial cour

t abused its discretion by dismissing the juror and replacing her with an alternate jur

or. Moreover, the defendant ac cepted the impanelling of the alternate j urors. He makes no claim that the alternate juror w ho replaced the juror in q uestion was less than i mpartial. Therefore, the defendant has failed to show how he w as prejudiced by the use of the alternate juror. We hold that the trial court did not er r.

VIII. SPECIAL REQUESTS FOR JURY INSTRUCTIONS30 The defendant complains that the trial court improperly denied eleven of the defendant’s twelve special requests for jury instructions, two of w

hich relate to the defense of duress and eleven of whi ch relate to diminished capacity. He argues that the instructions as gi

ven by the trial cour

t do not adequately cov er the applicable law. He also contends that the trial court erred in the manner in which it instructed the jury regarding his speci al request for a diminished capacity instruction.The state responds that the trial court proper ly denied the defendant’s speci al requests and that the defendant was not prejudiced by the manner in which the j ury was charged regarding diminish ed capac ity.

A trial court has a duty

to give a complete char ge of the law applicable t o the facts of the case. State v. Harris , 839 S.W.2d 54, 73 (T enn. 1992). Anything short of a complete charge denies a defendant hi s constitutional right to trial by a jury

. State v. McAfee , 737 S.W.2d 304, 308 (Tenn. Crim. App. 1987). How ever, Tennessee law does not mandate that any particular jury instructions be given so long as the trial court gives a complete charg e on the applicable law. State v. West , 844 S.W.2d 144, 151 (Tenn. 1992).

A. Duress

The defendant asserts that his speci al requests for instruc tions relating to the defense of duress should have been g iven. The state responds that the requests were properly denied as the instructions given adequately covered the law with respect to the defense of duress. We agree.

Both of the defendant’s special requ ests concerned the considerat ion of diminished capacity in determining whether the defendant acte d under duress. The first instruction requested by the defendant states:

I further charge you that as to the defense of duress, the duress must generally be actua l and existing at the times

alleged. However, even ifsuch duress was not actually31

existing, the defendant has the right to rely upon the defense of duress if such actions by another are reasonably perceived by the defendant to amount to duress, having in mind the defendant’s diminished capacity, if any you should find. The second special request by the defendant is as follows:

Because of his dim inished c apacity, a person m ay have been mistaken based upon his per cepti on of the circumstances as to the ex tent of his actual duress. But if he acts under duress from honest, even though m ist aken, conviction as to the extent of danger to him, he w ill not be held criminally liable for his actions. The trial court denied the special requests and instructed the jury regarding the defense of duress as follows:

Also included in the

defendant’s plea of not guilty is his plea that his acts constitutin g the offense charged were the result of duress. Duress is a defense to prosecution where: (1) the defendant is threatened with harm which is pre sent , imminent, impending and of such a nature as to induce awellgrounded apprehension of death or serious bodily inj ury if the act is not done; (2) the threatened harm is continuo us througho ut the time the act is being committed; (3) the harm is one from which th e defendant cannot withdraw in safety; and (4) the desirability an d urge ncy o f avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be pr event ed by the law proscr ibing the conduct. See T.P.I.-Crim. 40.03 (4th ed.). The instruction given by the trial court is virtually identical to the definition of dure ss provided under T.C.A. § 39-11-504.
The state argues that the statutory description of the requiremen t of harm turns on an objec

tive s howing

of the ex

istence of harm an d not on a

showi ng of a subjective perception of the existence of harm. It asser ts that as a result, the defendant’s subjective percep tions are irrelevant

to the determination of whether the defendant acted under duress, and therefor e, the defendant was not entitled t o instructions that the jury was to consider the defendant’s mental def iciencies in determining

his abilit y to percei

ve the natur

e of the harm.32 We agree with the state that the defendant’s s tate of mind is irrelevant to the defense of duress. The statute providing for the defense of duress states:

Duress is a defense toprosecution where the per son or a third person is threatened with harm which is pre sent, imminent, impending and of such a nature to i nduce a wel lgrounded apprehension of death or serious bodily inj ury if the act is not done. The threatened harm must be continu ou s throughout

the time the act is being c ommitted, and must be one from which the

person cannot

withdraw in safety. Further, the desirability and ur

gency of avoiding

the harm must clearly outweigh, according to ordinary standards of reasonableness, the harm sou ght to be p revented by the law p roscr ibing the conduct. T.C.A. § 39-11-504(a).

Notably, the defendant’s mental state is not an elem ent of the defense under the statute. The defense of duress i s not supported by evid ence that the defendant was mistaken as to the circumstances due to his dimi nished capacity. Rather, the defense of duress requi res a showing that the threatened harm was “present, imminent, impending and of such a nature to induce a w ell-grounded apprehension of death or serious bo dily injury if the act is not done.” T.C.A. § 39- 11- 504(a). In this vein, we also note that the first duress instruction req uested by the defendant contains an incorrect s tatement of law in that it stat es that the defendant may rely upon the defense of duress even if such duress was not actually existing. Thus, the trial court properl

y denied the defendant’s two r equests for additional inst ructions on duress.

In conclusion, we hold that the defendant was not entitled t o instructions that the jury was to consider the defendant’s “dimini shed capacity” in deter mining whether the defendant acted under dur ess. In any event, the i nstructions given t o the jury on diminished capacity and duress wer e sufficient to convey the appl icable law to the jury.33 B. Diminished capacity The defendant contends that the trial cour t improperly denied his special requests for instructio ns relating to diminis hed capacity. He arg ues that the diminished capacity instruction as given by the tr ial court does not accuratel y reflect the law as set forth in State v. Phipps , 883 S.W.2d 138 (Tenn. Crim. App. 1994). He als o argues that the trial court erred i n the manner in which it i nstructed the jury regarding diminished capacity because the identi fication of the instruction as th at of the defendant’s allowed the jury to view

the instruction as being less important or to disr egard the instruction altogether.
Before trial, the defendant request ed ten jury instructi ons relating to diminished capacity to s upplement the diminished capacity jury instruction t

o be given by the trial court. The requested jury instructions are summarized as follows:

(3) “Diminished capacity means a disturbance of mental or physical capacity wh ich would le ssen the ability of the defendant to form the intent or to k nowingly or recklessly commit the act. Diminished capacity is t hat state of mind of the defendant prevent ing hi m from possessing the requi red culpable mental state necessary to make out the offen se charged and/or any of the lesser in cluded offenses.” The jury must acquit the defendan t if th ey find that the defendant suff ered fro m diminished capacity to the extent that he could not have possessed the req uisite culpable mental state. ( 4) The jury may consider the opinion of expert or la y testimony

in determining whether the defendant sufferedfrom diminished capacity. (5) The state is required to prove beyond a reasonable doubt that the defendant was not suffering from dimini shed capacity once def endant p resents p roof of diminish ed capac ity. (6) The jury may convic t the defendant of a lesser crime if they find tha t he suff ered fro m diminis hed capa city. (7) The jurymust acquit the defendant of felony murder if they find tha t he suff ered fro m diminis hed capa city. (8) The jury must find the defendant not g uilty of the offense charged if they are unable to find bey ond a reasonable doubt that the defendant possessed the culpabl e mental state.34 (9) The jurymay consider the defendant’s diminished capacity in determining w hethe r the defendant had the requisite cul pable mental state required for the underlying felonie s fo r the charge of felony murder. (10) The jury must acquit the defendant if it is not shown that the defendant acted intentionally or knowingly with respect to the underlying felonies. (11) The jury must acquit the defendant of felo ny murd er if they find that because of his diminished c ap acity, he did not intentionally or knowingly commit the underlying felonies. The jurymay c onsider the defendant’s diminished capacity in determining whethe r the def e nd ant knowingly or intentionally committed the underlying felonies. (12) The jury must find that the ki lling was know ingly or recklessly commit ted, and the jury may cons ider the defendant’s diminished capacity in determining whether th e defendant acted knowingly or recklessly. The trial court denied all but requested instructio n number nine.

In its initial jury charge during the guilt phase of the trial, the trial court instructed the jury regarding diminished capacity as follows:

Testimony

as to a defendant’ s me ntal capacity may be considered by you to sho w t hat he wa s incapable of forming the specific culpable mental state required f or any particular offense. At the close of the initial c harge, the trial court asked the parties whether there was anything further. At that time, the following col loquy took place in th e presence of the jury: [DEFENSE COUNSEL]: Y es, Your Honor, our spec ia l

requests for instructio n. THE COURT: Ladies and ge ntleman, at the request of the Defendant, I further charge you that with respect to the crimeof the killing in the per petration of kidnappi n g, robbery, or theft, the actionsof the defendant must have been knowi ng and with intent insofar as the commission of the un der lying felony is concerned. If you find that bec ause of diminished capacity or for any other re ason the defendant did not knowingly

or with intent, commit the kidna pping, robbery or theft, then such underlying fel ony cannot be the b as is for the conviction of first-degree murder and you mu st acquit the defendant of that charge.35 In this respect, you may co nsider the diminished capacity of the defendant in determining whether he knowingly or intentionally committed the kidnapping, robbery or theft. If you find the defendant

had diminished mental capacity at the tim e of this offense, you may consider this in deliberating whether he had the requir ed culpable mental state. After the jury began its deliberations, the defendant object ed to the manner in which the court ins tructed t he jury rega rding dimi nished ca pacity.

Tennessee law permits the i ntroduction of evidence reg arding the defendant’s mental condition for the pur poses of negating the requi site mental state for the offense charged. Phipps , 883 S.W.2d at 149. Diminish ed capacity is not a defense to a crime; rather, it i s a rule of evidence allow ing the introduction of ev idence of the defendant’s mental condition to negat e the requisite culpable mental state. State v. Hall , 958 S.W.2d 679, 688-89 (Tenn. 1997); Phipps , 883 S.W.2d at 143. Recently, our supreme court cautioned again st the introduction of eviden ce that the defendant suffered from a mental disease or de fect as proof of “diminished capacity.” Hall , 958 S.W.2d at 690. Instead of proffering the evidence as proof of “diminished capacity, ” the evidence should be presented as being relevant to negate the existence of th e culpable mental state required to es tablish the criminal offense char ged. Id . However, wi

th respect to the obligation to give a jury i nstruction, “Tennessee law does not require the trial judge to instr

uct the jury that exper

t testimony may be consi dered in determining whether the requisite mental state existed.” Phipps , 883 S.W.2d at 151.

We conclude that the trial court was n ot obligated to give any additional instructions relating

to the jury’s consid eration of evidence of the defendant’s menta l condition as it related to his ability to form the r equisite mens rea. The instr uctions requested by the defendant were either incorrect statements of the law or they were fully and fairly cov

ered by the instructions given by the tri al court. We believe that the instructions give n by the trial court r elative to diminished cap acity adequately c

onveyed to the jury that it may consider evidence of the defendant’s diminishe d capacity in36

determining whether the defendant had the requisite culpabl e mental state for felony murder.

For his claim that the tr ial court erred by te lling the jury that the diminished capacity instruction given by the court was the one requested by the defendant, the defendant relies upon State v. Edward T. McConnell , No. 163, Washington County (Tenn. Crim. App. Jan. 3, 1983), app . denied (Tenn. Mar. 14, 1983). In McConnell , this court recognized that “the better practice is to incorporate specially requested jury instructions into the g eneral charge of the court . . ., else there is danger they may be considered by the jury as merely the contentions of one of the parties.” Id . at 11. The court held that for there to be a r eversal, however, it must be shown that the fail ure to incorporate the requested i nstruction into the charg e affected the outcome of the trial. Id . at 12.
Though we agree that the tr ial court should have i ncorporated the special request into the general charge, we believ

e that the defendant has failed to show that the verdict was affected by the manner in which the tr ial court gave the i nstruction. See T.R.A.P. 36(b); Tenn. R. Cri m. P. 52(b). Irrespectiv e of the trial court’s char acterization of the instruction as one req uested by the defendant, it was given as a mandate by the trial court as a relev

ant proposition of law for the jury’s considerati on. Moreover, the jury was aware that the diminished capacity instruction was being given at the request of the defendant because defense counsel informed the tr ial court in the presence of th e j ur y t ha t i t h ad fo rg ot

te n t o g iv

e t he de fe nd an t’ s s pe ci al re qu est f or in st ru ct io n. We conclude that no prejudice arose from the trial court’s error relating to the man ner it instructed the jury r

egarding diminished capa city.

IX. AGGRA

VATING CIRC UMSTANCES37 The defendant challenges the jury ’s application of the aggr avating circumstances. He arg ues that the evidence is i nsufficient to support their appli cation. Also, with respect to the avoiding arrest or prosecution aggrav ating circumstance under T.C.A. § 39-13-204(i)(6) , the defendant argues (1) that the jury applied the agg ravating circumstance based upon the uncor roborated testimony of Smothers, (2) that the aggravating ci rcumstance cannot be applied cons titutionally because the defendant was not the one who shot the victim, (3) that it requires a showi ng of intent, motive or premeditation to kill the victim to avoid capture, arrest or conviction, and (4) that it fails to narrow the class of death-eligible defendants under Middlebrooks . The state responds that the evidence i s sufficient to support the jury ’s application of the aggravating ci rcumstances and its impositi on of a sentence of life without the pos sibility of parole. It also argues that the avoiding arres t or prosecution aggr

avating circumstance was const itutionally applied.

A. Heinous, atrocious or cruel aggrav ating circumstance The defendant contends that there is no ev idence to show that the murder was heinous, atrocious or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death. See T.C.A. § 39-13-204(i)(5) . He argues that absent any evidence of post- death facts, the two shotgun w ounds were insufficient to support the application of the ag gravating circumstance beyond a reasonable doubt. The defendant also argues that there is insuf ficient evidence to corroborate Smothers’ testimony. We disagree.

Pursuant to T.C.A. § 39-13-204( i)(5), the jury may find as an aggravating circumstance that the “murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death.” Torture is defined as the infliction of severe physical or mental pa in upon the victim38

while he or she remains alive and conscious. State v. Odom , 928 S.W.2d 18, 26 (Tenn. 1996). In Odom , our supreme court stated that:

it must be assumed that the legis latur e intended the words ‘seriousphysical abuse’ to mean so mething distinct from ‘torture.’ The word ‘serious’ alludes to a matter of degree. The abuse must be physical as opposed to mental, and it must be ‘be yond that’ or more than what i s ‘necessary to prod uc e death.’ ‘Abuse’ is defined as an act that is ‘excessive’ or which makes ‘improper use of a thing,’ or which u ses a thing ‘in a manner contrary to the natur al or legal rules for i

ts use.’ Id

.
Viewed in the light mos t favorable to the state, Cabbage , 571 S.W.2d at 835, a rational juror could find beyond a reasonable doubt the existence of this aggravating circumstance. The evidence showed that after the defenda nt and his codefendants stopped the victim, the defendant grabbed the victim and threw him to the ground. Harris then slapped and cursed the victim and told him to shut up. The victim was forced into the back of the t ruck and the defendant drove the tr uck away. Smothers then shot the victim in his left hip with a shotgun, injuring the victim’s intestines and large bloo d vessels. When the victim screamed and begged for his life, he was told to shut up. Medical care was not obtained for the victim, though the victim was told th at he would be taken to a hospi tal. Inst ead, the defend ant cont inued to drive and as they approached street lights, the victim began to scream for help. Smot hers then took the shotgun, lo aded it, stuc

k it under t he victim’ s chin, and s hot the vic tim, killing him. We believe that these facts are suf ficient to establish torture and to support the jury’s finding that the murder was especially heinous, atrocious, or cruel in that it involved torture or

serious physical abus

e beyond that necessary t o produce death. See State v. Bland , 958 S.W.2d 651, 660-61 (Tenn. 1997) (victim s hot once in leg and remained alive, consciou s, in pain, and pleading for he lp for approximately ten to fifteen minutes after he was shot several more times in the leg). Also, as earlier noted, there is sufficient evidence to corro borate Smother’s testimony.39 B. Avoid ing arrest or prosecut ion aggravating circumstance The defendant also alleges that the ev idence is insufficient to suppor t the application of the avoiding arrest or prosecution ag gravating circumstance. Pursuant to T.C.A. § 39-13-204(i)(6) , the jury is permitt ed to consider that the “murder was committed for the purpose of avoidin g, interfering with, or preventing a l awful arrest or prosecution of the defendant or another.” The prevention of arrest or prosecution need not be the dominant motive for the mur der. State v. Smith , 868 S.W.2d 561, 581 (Tenn. 1993). Rather, it is sufficient that at least one of the motiv es for the murder was to avoid, interfere wi

th, or prevent the law

ful arrest or prosecution of the defendant or another. Id . at 580-81.

We conclude that a rational trier of fact could have found the existence of this aggravating circumstance beyond a reasonable doubt. In the light most favorable to the state, the proof showed that after the defendant’s truck over heated, the defendant and hi s codefendants devised a p lan to take t he next ve hicle that c ame along. They also discus sed the possibility th at the vehicle’s occupant s would have to be killed. According to their plan, Harris stood in the middle of the road and flag ged down the victim. Onc

e the victim stopped the tr uck, Smothers got the shotg un the defendant had earlier obtained at Harris’ request and had p laced in the defendant’s truck. Smothers pointed the g un at the victim and told hi m to get out of the truck. Then, the defendant grabbed the victim and threw him to the ground while Harris cursed and slapped the victim and told him to shut up. The victim was then placed in the back of the truck with Smothers while the defendant drov e the victim’s truck

and Harris held the gun on the victim through the r ear sliding glass

window of the truck.
When Smothers grabbed for the gun as the defendant increased his speed, the gun discharged, hitting the victim i n his left hip. The victim began screaming but was ordered to be qui et. As street lights became visible, the vi ctim began40

screaming again. Then, Smother s heard a voice telli ng him to shoot the victi m, and Smothers complied. We believe that it w as reasonable for the jury to infer that one of the reasons that Smothers shot the victim was to pre

vent someone from hearing the victim’s screams for help in order to avoid detection. As we noted earlier, there is sufficient evidence to corro borate Smother’s testimony.The evidence supports the application of this aggr avating circumstance beyond a reasonable doubt.
Next, the defendant argues that the avoiding arrest

or prosecution aggravating ci rcumstance may not be applied because he did not shoot the vi ctim. Under the facts of this case, w e disagree. This court has previously addres

sed a similar issue. In William E. Groseclose v. State , No. 02C01-9407-CR-00145, Shelby County (Tenn. Crim. App. Aug . 23, 1995), app . denied (Tenn. Feb. 5, 1996), a postconviction case, the petitioner had been convicted as an aider and abe ttor of first degree premeditated murder for hiring two men to kill his wife. The jury sentenced him to death, finding that the aggravating circumstance that the killing was heinous, atrocious, or cruel applied, although the petitioner was not the person who actually killed the victim. The petitioner challenged the v icarious application of the ag gravating circumstance, asserting that it could not be consider ed because the petitioner did not commit the actual killings.

On appeal from the denial of post-conv iction relief, the petitioner relied upon Omelus v. State , 584 So.2d 563 (Fla. 1991), a mur der for hire case that holds that the heinous, atrocious or cruel aggravating circumstance cannot be applied vicariously when there is no evid ence to show either that th e defendant directed the codefendant to kill the victim i n the manner in which the mur der was accomplished or that he had any knowledge of how the murder would be accomplished. However, this court distinguished Omelus because of the petitioner’s par ticipation in the planning and preparatory steps to the murder itself. Groseclose , slip op. at 6-7.41 Similar distinguishi ng features exist in the present case. A review of the state’s evidence reflects that the defendant actively participated in the planning and in the nature of the killing. The defendant ob tained the shotgun for the trip. W hen their initial plans to find Dav id Hampton were hampered by the overheating of his tr uck, the defendant and his codefenda nts devised a plan to take the victim’s truck and also discussed the possibilit y that the victim w

ould have to be killed. S mothers then used the defendant’s shotgun to force the v ictim in the back of his truc k, and the defendant drove the victim’s

truck away. The v

ictim was then shot in the hip by Smothers. Although the def endant wa s driving th e truck, h e did not take the victim to re ceive medical attention. Later, w hen the victim began scr eaming for help as they appro ached street lights, Smothers shot the victim in the head, killing him, after hearing a voice tell him to shoot the victim. Based upon the defenda nt’s active participation in the crime, it was proper for the jury

to rely upon the aggr

avating circumstance to enhance the defendant’s sentence to life impriso nment without the possibil ity of parole.

The defendant also argues that the stat e failed to show that Smothers had the intent, motive or premedi tation to kill the vi ctim in order to avoid capture, arrest or conviction of the defendant or another. As previously noted, tho ugh, the facts of this case demonstrate the existenc e of such a motive in kill ing the victim. Fr om the participants discussing the possibility of kil ling their robbery victim to Smothers shooti ng the victim when he sc reamed for help, it was reas onable for the jurors to concl ude beyond a reasonable doubt that Smothe rs shot the victim to av oid being caught.
With respect to the defendant’s claim that the av oiding arrest or prosecution aggravating circumstance fails to narrow the class of death eligible defendants similar to Middlebrooks , we first note that the defendant w as not sentenced to death . This c

ourt has held tha t a felony

murder s

entence may be en hanced t o life imprisonment without the pos sibility of parole by

using the commission of a felony42

aggravating ci rcumstance, because Middlebrooks is only concerned w ith the constitutional narrowing needed for the death penalty. State v. Frederick D . Butler, et al. , No. 02C01-9604-CR-00128, Shelby County (Tenn. Cr im. App. Mar. 19, 1997), app . granted (Tenn. Nov. 3, 1997); see also State v. Danny Ray Lacy , No. 02C01-9701-CC00013, Madison County, sl ip op. at 21-22 (Tenn. Crim. App . Nov. 24, 1997), app . filed (Tenn. J an. 20, 1 998) (F irst degree mur der by a ggrav ated chi ld abuse

enhanced to life imprisonment without parole because of reckless killing of a child under sixteen years old. T.C.A. § 39-13-202(a)( 4)); but see State v. James Lloyd Jul ian, II , No. 01C01- 9511-CV-00371, Loudon County, slip op. at 16-17 (Tenn . Crim. App. July 24, 1997), app
. filed (Tenn. Oct. 30, 1997) (“We do not believe the legislature intended t o except those receiving li

fe without parole from the protec tions against double enhancement afforded those receiving death and those receiving lesser sentences.”). W e note that in Lacy , Judge Wade wrote separately to ex plain that he agreed with Julian , not Butler

. However, a majorit

y of our panel agrees that the Middlebrooks holding is not implica ted when a sentence of life imprison ment is imposed, as in this c ase.
In any event, we bel ieve that avoiding arrest or prosecution i s not an element of felony murder and is not necessarily implied i n every felony murder. Also, as previously indi cated, when the killing of the victim is for the pur pose of avoiding arrest or p rosecuti on, such a purpose reflect s an inten t to kill. S uch an int ent narro ws the class of felony murderers subject to life imprisonment w ithout the possibility

of parole. We conclude

that the jury w as just ified in

sentencing the

defendant

to life imprisonment without the pos sibility of parole under

the circumstances of this cas e.
In consideration of the foregoing and the record as a whole , the judgment of the trial court is affirmed.

Joseph M. Tipton, Judge43

CONCUR:

Gary R. Wade, Presiding Judge

Paul G. Summers, Judge