# FILED
April 29, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON FEBRUARY

1998 SESSION
STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. N O. 02C01-9703-CC-00095 ) V. ) MADISON COUNTY ) (TRANSFERRED FROM H ENDERSON ) COUNTY) JON DOUGLAS HALL, ) ) HON. WHIT LA

FON, JUDGE Appellant. ) ) (First-Deg ree Murde r - Death Pe nalty)

FOR THE APPE LLANT: FOR THE APPELLEE: JESSE H. FORD, III JOHN KNOX WALKUP CLAYTON F. MAYO Attorney General and Repor ter 618 N. Highland Jackson, TN 38301 KENNETH W. RUCKER Asst. Attorney General 425 Fifth Ave. N. Cordell Hull Bldg., 2nd Fl. Nashville, TN 37243-0493 JAMES G. WOODALL District Attorney General ALFRED LYNN EAR LS Asst. District Attor

ney General Lowell Thomas S tate Office Bldg. Jackson, TN 38301

OPINION FILED :_______________________________
AFFIRMED JOHN H. PEAY, Judge2 

### O P I N I O N

The defendant wasindicted for the premeditated first-degree murder of his estranged wife, Bi llie J o Hall. Upon the defendant’s motio n, the case was transferr ed from Henderson County to Madi son County. On February 5, 1997, the ju ry returned a guilty verdict on the charg e of first-degree murder. After a sentencing hearing hel d that
same day, the ju ry s entence d the defendant to death. The jury found that the murder was especiallyheinous, atrocious, or cr uel in that it involv

ed torture or serious

physical abuse beyond that necessary t o produce death. T.C.A. § 39-13-204(i)(5). In this appeal as of right, the defendant raises the following issues:

I. Sufficiency of the convicting evidence; II. Exclusion of witnes s testimo ny; III. Admission of photographs; IV. Constitutionality of the aggravating circumstance; V. Sufficiency of the aggrav ating evidence; and VI. Appropri ateness of the de ath pena lty. Followingour review

of the record in this matter, we affirm the defendant’s conviction and sentence.

FACTS (Guilt/Innocence Phase) On the evening of July 29,1994, the defendant went to the victim's house, ostensibly to deliver a twenty-f ive dollar ($25.00) traveler's check. Although still marri ed, the defendant and the victim were no longer living together. When he arrived, the victim
was there with her four daughters, the youngest two of which were also the defendant's. According to Stephanie Lambert, eight y ears ol d at the tim e of trial and one of the defendant's daughters, the victi m and one of the other children answ ered the defendant's knock. Stephanie testified that her mother had “told [th e defendant] not to hurt her, but3

then he pushed his way thr ough.” The defendant then went into the kitchen and the victim sat down in a chair. Stephanie tes tified, “She was sitti ng in the chair, then [the defendant] told us to go to bed. We didn't go. Then he to ld us again. Then we didn't go. So he told us again, and then he ti pped my mama over in the cha ir.” Fo llowing this, Step hani e testified, h er mother and the defendant ha

d gone into the victim's bedroom, where she heard her mother yelling. Stephanie testified that she and her sisters had tried to get into the bedroom but that the defendant “had the sewing machine by the door and
we couldn't get in.” The chi ldr en eventually managed to get into the bedroom and Stephanie testified that one of them had given the victim a rag. She further testified that they had tried to stop the defendant from hurti ng their mother, andthat she had heard the defendant tell the victim that she would never live to graduate (the victim was apparently taking classes in Jackson). The victim told the children to go up to a n eighbor's house. Stephanie testified that sheand Cynthia had both gone to the household phone and tried to use it, but that the defendant “had it where we couldn't u se it.” Without having seen her mother leave the b edro om, Stephanie and her older sist er Cynthia left for the neighbor’s.
Cynthia Lambert, ten years old at the time of trial, also te stified that the defendant had “pushed his way i n” the door of the house, and told the g irls togo to bed. She testified tha t the defend ant had been d rinking and that s he had heard “[t ]hings slamming around” in her mother's bedroom and that sheand her sister had tried t o get in t here but, “ It was hard . . . because there was stuff blocking the door.” Cynthia succeeded in getting into her mother's room where she saw the victim and the defendant “fighting.”

She testified that she had “jumped on [the defendant's] back and bit him” in an effort to stop the fight. She testified that she and Stephanie had tried to call 911 butthat “the phones were off the hook.” She further testified that th e defen dant had told them that “if [they] went for help he w as going to

kill Mama.” In spite of the defendant's threat, she testified, she and Stephanie w ent to a neighbor's house and c alled 911.4 Jen nifer Lambert, another of the victim's daughters and eleven years ol d at the time of trial, testified that she had gotten i nto her mother's bedroom after the fight started and that she had tried to stop it. She saw her mothe r leave the bedroo m and go outside; she testified that the defendant had follow ed her and “[d]ragged her to the pool.” Her mother kicked and screamed w hile being dragged, a

ccording to Jen nife r. She testified further that thedefendant had said he would kill her mother if anyone went for help. After watching the defendant dra g her mother to the pool, Jennifer w ent to the neighbor's house, carrying her little sister with her.

ChiefJerry

Bingha m of the He nderson County Sheriff’s Department wa s the first officer

to arrive at the scene of the crime around midnight. He was directed behind the house where he found the body o f the victim lying face down in a swimming pool. Upon his discovery, Chief Bingham called EMS and the investigator.

AgentBrian Byrd of the Tennessee Bureau of Investigation ar rived on the
scene shortly after midnight . He found wet footprints on the carpet inside the

house and wetimpressions on the wooden d eck off the frontporch leading to the dri veway. Agent Byrd testified that

the master

bedroom had been in disarray and appeared as if a struggle had taken place. There did not appear to be any other

signs of struggle elsew

here in the house. A trail of skid or drag marks and blood stains led from the master bed room, out the front door, toward the dri veway, and down to the pool in theback yard. There were also two blood spots on the dri veway, the

furthest being approximately 106 feet from the house. The pool was about eighty feet from the driveway. Agent Byrd found a number of blood stains and spatters i n various areas of the bedroom, including on the bed, a counter top, and a w edding dress. He also ob served a blood splotch outs ide the bedroom in the foyer area.

AgentByrd noticed that the telephones inside the living room of the house5

were off their hooks. Also,the telephone junction box on the outside of the house was opened and the phone li ne was disconnected. Agent Byr d testified that the grass and
wee ds near this box had been matted dow n. Agent Byrd also found at the scene a moneyorder in th e amoun t of twent y-five dollars ($25.00), dated the day of the murder, made out to the v

ictim from t he d efendant. No weapons were found and Agent Byrd testified that fingerprints taken from th e scene were never c ompared against the defendant’s because he had believed they had enough evidence otherwise.
AgentByrd observed tire skid marks in the driv eway leading in th e direction toward the road. He found two blood spots in the driveway, a spot near a sandbox in the backyard, and two spots by the pool . Agent Byrd testified that the grass next to the pool had been pulled out of the ground. Also, Agent Byrd testifie d that th e ground from the driveway to the pool was sparselycovered in grass and there had been disturbances in the ground as if someone had been dragged and a struggle had occurred. The water in the pool had a pinkish tint and the re were clods of grass similar to that

which was pulled out of the ground next to the pool. The t-shirt, later identi fied as the one the victim w as wearing that evening, was found next to the pool.

AgentByrd testifiedthat the defendant had become a suspect as the result of his investigation.The defendant was arrested at his brother’s residence in Bell Coun ty, Texas. It was later discov er ed that the defendant had taken the victim’s minivan and driven it to Texas. Agent Byrd first encountered the defendant at the Justice Complex in Bell County. Agent Byr d testified that the defendant had been calm but at one point had started crying and seemed remorseful.

Chris Dutton, a fellow inmate of the defenda nt’s a t Riverbend Maximum Security Institution, testified that he had been placed in a cell nex t to the defendant and that he and the defendant had confided in one another. Dutton had not know n the6

defendant before his imprisonment and testified that he had not initiated a ny conver sations concer ning th e defendant’s convicti on or ci rcumsta nces the reof.

Dutton testified that thedefendant had told him that he had contacted the victim earlier in the day of the murder and made arrangements t o take her

money. When he had arrivedat the victim’s residence,he tried to talk to the v ictim about reconciliati on, but she was only interested in receiving the money

. The victim had not wanted t o talk to the defendant and told him to leave. According to Dutton, the defendant had explai ned that he lost his temper at this point and began striking the victim. Dutton testified that the defendant had told him he “wanted to make her feel as he did. He w anted her to suffer
as he did, feel the helplessness that he was feeling because she t ook his wor ld awa y from him.”
According to Dutton, the defendant had stated that the assault had started in the house and continued into the y ard. He told Dutton that he had hit the victim in the head until he panicked and then threw her into the pool. He then went back into the house, grabbed the victim’s van key s, and left. Dutton also testified that the defendant had sai d th at he had disconnected the telephone befor e entering the residence s o the victi m co uld not call the police. A pparently, the defendant had disabl ed the phone on several previous occasions because the victim had, at times, called the police. According to Dutton, the defendant had been unarmed the day of the murder and had been at the victim’s earlier in the week worki ng on one of her cars.

Dutton testified that the def e ndant had told him that he was dr unk and extremelydepressed when he went t o visit the victi m that day. Dutton said the defendant had been concerned about his child ren, especially his youngest, who had cerebral palsy, and wanted to reconcile w ith th e v ictim for their sake. Dutt on received the impressi on that the defendant had gone to the victim’s home to reconcile, and to “make her hurt the7

way she made him hurt” if she was not willing. Dutton did not believe the defendant went to visit on ly for the purpose of giving th e victim mo ney.

Dutton testified that hehad mailed a letter to the Attorney General’s office in Nashville a week or two upon hearing this information. The District Attorney informed Dutton that he would speak on his behalf at his parole hearing when the time came. No other promise s or benef its were of fered an d Dutton testifie d that he was not mo tiva te d to talk by the return of fav orable treatment.

Dr. O’Brien Clary Smith performed the autopsy on th e victi m. The victim
was 5'4" tall and weighed 122 pounds and had suffered a fractured nose and numerous contusions, abrasions, and lacerations . Dr. Smith determined that the primary cause of death was asphyxia r

esulting from manual strangu lation and drowning. However, Dr. Smith could not determine whether the strangulation or dr

owning was

the exclus ive cause of death. Water was found in thevictim's stomach and her blood stream, both of which ind icated th at she may have drowne d. In conjunction with the strangulation, Dr. Smith found bruises on the left and rig ht sides of the victim’s neck and he morrhaging about the neck muscles around the hyoid bone in the neck. Also, the thyroid gland had bleeding on the left side which indicated extensive compression to the neck.

Acco rding to Dr. Smith, all of the associ ated injuries, the blunt tr auma or blows t o t he head, multiple skin tears,bruises and scrapes to the chest, abdomen, genitals, extremities, arms, legs, and back, had occurred during life. The approximately eighty-three

areas of separate wounds to the body indicated that the v ictim had received
an extensive and pain ful be ating, but Dr. Smith stat ed that none of these associated wounds were sufficient in and of themselv e s to cause death. The abrasions on the victim’s back

were consistent with being dragged on pav ement. Moreover, the w ounds to the neck, face and head were tar get or aggressiv

e wounds and could ha ve been8

caused by anger. Dr. Smith also found defensive wounds on the forearms, the back of the hands, and the front of the thighs, k nees and shins. All of the injuries occur red within several minutes to two ho urs before death and Dr. Smith, the refore, was unable to determine a sequence of the wounds.

The defendant called his sis ter, Ch eryl A rbogas

t, to tes tify on his beha lf. Arbogast had not spoken to her brother f or several months prior t o the murder. The substance of her testimony, elicite d during an offer of proof, was based upon statements concerning the defendant which her other br other, now deceased, had m ade to her. Arbogast was in Cincinnati the night of the murde r, but s tated she had been trying t o arrange psychiatri c counseling for the defendant on an urgent basis because her other bro t her had conveyed to her that the defendant was crying and was very di straught. Arbogast had attempted to contact the defendant the night of the murder but had been unable to r each him. Arbogast testified that the defendant had been upset about his brother’s impending death, his divorce and losi ng his children. Arbogast stated that she had never attempted to commit the defendant prior to the night of the murder. The trial court did not allow t he jury to h ear her te stimony.

The defend ant also c alled Dr. L yn n Donna Z ager, a clinical psy chologist. Dr. Zager’s eva luation of the de fendan t wa s b ased upon the three intervi ews she conducted and the information she received from the prison and the Middle Tennessee Mental Health Ins titute where the defendant spent a month. She concluded that the defendant suffered from depression and alcohol dependence. The depression was more acute prior

to the murder. Dr. Zager also observed some personality disorders such as paranoia. Dr. Zager t estified that at the time of the murder the defendant had been suffering from depression and was into xicated. She also stated that he had been under stress due to his youngest daug hter’s medical con dition ( cerebral palsy), hi s loss of empl oyment, his wife’s job loss,financial problems, and his br other who was dyi ng. In9

her opinion, the defendant had acted in an impulsive manner rather than pursuant to a well-thought-out

plan. Dr. Zager testified that she had interviewed people with whom the defendant spentthe day of the murder who stated the defendant had been drinking beer. However, no one that she interview ed remarked about

slurred speech or

any other signs of intoxication.

Randy Helms was the last w

itness called by the

defendant during the guilt phase of the trial. Helms owne d a motor company in Lexing ton, Ten nesse e, and employed the defendant from 1993 to June1994. The defendant stopped by Helms’ workplace two days before the murder to inform Helms that

he had obtained a new job. Helmstestified that the defendant hadseemed severely depres sed and suspected that family problems were the cause.
(Sentencing Phase) The State called Dr. Smith as its only witness during the sentencing phase. Dr. Smith ident ified autopsyphotos which depicted the approximately eight y-three injuries
su stained, not including the intern al injuries caused by the strangulation. The photo s depicted areas where multiple blows had c aused bruises to become confluent so as to be indistinguishable. Dr. Smith stated that the scrapes on the back of the shoulders, parallel line scrapes in the middl e and lower portion of the back, and thescrapes on the elbows and legs were consistent wit h bei ng dragged or moved across pavement or a similar hard surface. The wound about the left breast was consistent with the knuckle pattern of the fist . One injury to the forehead was indicative of a pi pe-like object. The triangular

bruises to the

forehead were consistent w ith an object of

that shape. The other injuriesreflected no specific characteri stic patter n of an instru ment but wer e blunt traum a injuriesconsistent with a blunt force. Dr. Smith testified that the head injuries could have been caused by hitting the h ead against theground or being pulled by the hairacross the ground. According to Dr. Smith, the concentration of the injur ies to the head, face and10

neck, which were i ntentional and focused, indicated the infliction of torture.

The defendant called Dr. Zage ragain during the sentencing phase. Dr. Zager testified that several

factors had had an impact on the defendant’s development, including his status as

youngest child, his

father's alcoholism, his father 's denial of

him
as his son, and his witnes sing spousal abuse betw een his pa rents. A ccording to Dr. Zager, the defendant had not had good role models during his youth. Dr. Zag er testified that the defendant’s alcohol dependency had led to problems with hi s employment and in his relationships w

ith others. Moreover, the defendant’s j udgment was compromised when he was intoxi cated. Dr. Zager state d that the domestic problems experi enced by the defendant at th e timeof the murder had had an effect on his mental conditio n. Dr. Zager further testified that the def endant suffers from depression and had thoug hts of suicide. She said the defendant was remor seful for what had happenedand tha t his children meant everything to him.

Dr. Joe Mount, a psychological ex aminer at Riverbend Max imum Security Institution, also testified on behalf of the def endant. At the defendant's request, Dr. Mounthad had six to eight formal counseling sessions w ith the defendant and numerous other in formal cell visits. Dr. Mount testified that the defendant ha d been extremely distraught

and depressed about the circumst ances surrounding his case. Dr. Mount also testified that the defendanthad expressed extreme r emorse and appeared very sincere in his expression. The defendant ent ertained suicidal thoughts in the fall of 1994 and was diagnosed with an adjustment disor der with mixed emotional features like depression and anxiety. Dr. Mount also stated that the defendant had been prescribed anti-d epressant medication while in prison a nd seeme d to show so me impro vement ove r time. Fin ally, Dr. Mount testified that the defendant was concerne d about his children, especially the one suf fering f rom cereb ral palsy.11 Randy Helms also testified again during the sentencin g phase. Helms stated that he h ad known the defe ndant fo r abo ut two years. The defendant had approached Helms about a job so that he could support his wife and childr en. Although Helmsdid not really have a position available, he stated he ha d h ired the defendant beca use of hi s situation. Helms testified that the defendant had performed well,was dependable, worked overtime, and never caused any problems. Helms saw the def endant with his children two or three times and he t estified that the defendant ha d seemed to take excell ent ca re of the m. Helms conside red the d efendant and his w ife friends of his and even talked to the defendant about his domestic probl ems. Although the defendant left his employment wit h Helms voluntarily, Helms stated that he had noticed the defendant’s domestic problems were starting to affect his work. Helms told the jury that he believ

es the defendant’s life has value.

Three of the defendant’s sisters tes tified on his behalf. Debbie Davis testified that theirparents h ad fought all the time and that the c hildren would hide any weapons so their parents woul d not kill each other. According to Davi s, their parents had
seeme d to e njoy fighting because they never left each other alone. She remembered
one occasion when their father hit their mother and banged her head on the floor to the point hernose and ears bled. Davi s said the defendant, although v ery young, h ad hi t theirfather with a fly swatter and tried to make him stop hitting their m other. Thei r parents separated for a while but eventually got back together. Davis testified that their fat he r had denied the defendant was his son. Their fa ther ultimately died and their mother remarried another man who a lso was abusive to the defendant. Davis stated the defendant had not h ad any good role mode ls. The de fendan t lived wi th her and her husband for a while, but he moved away after less than a year. Davis testified that the defendant was a “wonderful” father and loved his childr en.
Kathy Hugo, the defendant’s oldest sister, also testified about the violence12

between their

parents. She stated that their mot her’s sec ond husb and had b een abus ive to their mother and did not see m to like the children. C heryl Arbogast also testified for the defendant, commenting on the terrible violence between their parents.

Carol Alexan der, the

defe ndant ’s mother, testified that the defenda nt’s father had drunk a lot and abused her.She stated that her childre n had had to call the police on several occasions. She further testified she was surprised that her son took such good care of

his children andhow attentive he w as toward them, especiall y given his father’s character.

ANAL YSIS I. Sufficiency o

f the Evidence In his first issue, the defendant challenges the

sufficiency of the convicti ng evidence. In part, the defendant contends that ev idence of his intoxication at the time of the murder negated his capacit y to form the requisite mens rea forpremeditat ed and deliberate murder. The defendant also claims that there was insufficient time for him to fo rm the requisite inte nt to commit th e murder becau se the passion a nd ange r h e possessed during his fight with the victim had not subsided when he killed her.

A guilty verdic

t by the jury, approv

ed by the trial court, accredi ts the testimony of

the witnesses

for the State and resolves all conflicts in favor of the State's theory. State v. H atchett , 560 S.W.2d 627, 630 (Tenn. 1978); State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). On appeal, "the State is entitled to the strongest legitimateview of the trial evidence and all reasonable or legi timate inferences which may be drawn therefrom." State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). This Court does not reweigh or r

eevaluate the evidence. Id. The jury's verdict, therefore, will only be disturbed if, after a consider a tion of the evidence in the li ght most favorable to the Sta te, a rati onal trier

of fact could n ot have found the essential elements of th e crime13

beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319 (197 9); Stat e v. Williams , 657 S.W.2d 405, 41 0 (Tenn. 1983); T.R.A.P. 13(e).

A criminal offense maybe proven through direct evidence, circumstantial evidence, or a combination of the two. State v. Tharpe , 726 S.W.2d 896, 899-900 (Tenn. 1987). See also State v. Brown , 836 S.W.2d 530, 541 (Tenn. 1992)(“the cases have l ong
r ecognized that the necessar y element s of firs t-degree murder m ay b e shown b y circumstantial eviden ce”). Before the defendant

may be c

onvict ed of a criminal offense based upon circumst antial evi dence alone, the facts and circumstances "m ust be so strong and cogent asto exclude every other reasonable hypothesi s save the guilt of the defendant, and that beyond a reasonable doubt ." Sta te v. Crawford , 470 S.W.2d 610, 612 (Tenn. 1971). "A web of guilt must be woven around the defendant from w hich he cannot escape and from which facts and circumsta nces the jur y could draw no other reasonable inference save the guilt of the defendant beyond a reasonable doubt." Id. at 613.

At the time of thi s offense, firs t-degree mu rder wa s defined as "[a]n intentional, premeditated and deliberate killing of another." T.C.A. § 39-13-202(a) (1) (Supp. 1994). Once a homicide has been proven, it is presumed to be a second-deg ree murder and the State has the burden of est ablis hing premeditation and deliber ation. State v. B rown , 836 S.W.2d 530, 543 (Tenn. 1992).

Intentional is defined as "the conscious objective or desire to engage in the conduct or cau se t he result." T.C.A. § 39-11-106( a)(18) (1991). Premeditation necessitates"the exercise of reflection and judgment," T.C.A. § 39-13-201(b)(2)(1991), requiring"a previously formed desi gn or intent to kill." State v. West , 844 S.W.2d 144, 147 (Tenn. 1992). A deliberate act is performed with a "c ool purpose," "without pass ion
or provocation." T.C.A. § 39-13-201(b)(1) and comments. "While it remains true that no14

specific length of ti me is required for the formatio n of a cool, dispassionate intent to kill, Brown requires more than a 'sp lit-second' of reflection in order to satisfy the

elements of premeditation and delib eration." West , 844 S.W.2d at 147. Acco rdingly, before a jury
can convict the defendant of first-deg ree murder, it must find that the d efendant consciously engaged in the conduct to c ause the death, and killed "upon r eflec tion , 'without passion or provocation, ' and otherwise free from the i nfluence of excitement." State v. Gentry , 881 S.W.2d 1, 4 (Tenn. Crim. App. 1993). See State v. Brooks , 880 S.W.2d 390, 392 (Tenn. Crim. App. 1993) ("the jur y must find that the defendant formed the intent to kill prior

to the killing, i.e., pr

emeditation, and that the defendant kill ed with cooln ess and reflection, i.e., deliber ation"); State v. Bordis , 905 S.W.2d 214, 22 1-2 2 (Tenn. Crim. App. 1995).

The elements of premeditation and deliberation are questions for the jury and may be inferred from the circumstances surrounding the kill ing. Gentry , 881 S.W.2d at 3; Taylor v. State , 506 S.W.2d 175, 17 8 (Tenn. Crim. App. 1973). The Supreme Court has delineated several rel evant circumstances which may be indicative ofpremeditation and deliberation, including the use of a deadly weapon upon an unarmed victim, the fact that the killing was particularly cruel , declarations by the defendant o f his intent to kill, and the m aki ng of preparations before the kil ling for the purpose of conceali ng the crime. State v. Brown , 836 S.W.2d 530, 541-42 (Tenn. 1992). This Court has also recently noted several factors from which the jury may infer the t wo elements: facts about what the defendan t di d prior to the killing which would show

planning; facts about the defendant's prior relationship w ith the victim from whi ch motive may be inferred; and facts about the nature of the killing. State v. Bordis , 905 S.W.2d 214, 222 (Tenn. Crim.App. 1995) citing 2 W. LaFave and A. Scott, Jr., Substantive Criminal La w§ 7.7 (1986).

The evidence in the present case, when viewed in the light most favorable to the State, as this Court i s required to do on appeal, demonstrates that the defendant15

contacted the victim earlier in the day of the murder to arrang e a meeting. According to the defendant’s p risonmate, with whom the defendant had c onfided about the circumstances

surrounding the killing, the defendant went to the victim’ s house with the intentto recon cile their marriage. In fact, the defendant brought a money order to the victim’s residence, perhaps as a sign of reconciliati on. However, the defendant had also indicated that if the victim was unwilling to reconcile, he intended to “make her hurt the way she made him hurt.”

Prior to knocking on the victim’s front door,the defendant disconnected the telephone lines on the outside of the house. The defendant wanted toprevent the victim from calling the police for help, which the vi ctim had apparently done or a ttempted to do
on previous occasions. The defendant forced his way inside the residence and told his children several times to go to bed. The victim was apparently unwilling to reconcile and
a fight ensued between the two in the victim’s bedroom, w here the defendant proceeded to block the bedroom door in order to prevent the

children, or anyone els e forthat matter, fro m entering the room. Upon hearing the phy sical fight occurring

in the bedroom, the children managed to enter the room and saw the defendant beating the victim. One

of the defendant’s children jumped on hi s back and bit him in anattempt to stop him from hitting the victim. At some point during the altercation,the defendant told his children that he would kill their

mother if they went for help

. The fight between the defendant and vi ctim continued outside the house, where the evidence show ed that the defendant dragged the victim across the dr

iveway and down to the back of the house. One of the children testified that the victim had been kicking and screaming as the d efe ndant dragged her across the ground. The victim’s body was found floating in a sw imming poo l in the back yard. The victim sus tained approximately eighty-three separate wounds, includi ng manual strangulation of the neck. Expert testimony revealed that the woun ds t o the face, neck and head were tar get1 “ < Passion' ” h as been defined as < [a]ny of the emotions of the mind [ref lecti ng] anger, r age, sudden resentm ent, or terror, rendering the mind incapable of cool reflection.' ” State v . Brown , 836 S.W .2d 530, 543 n.10 (Tenn. 199 2) (citations omitted). 16 wounds, meaning that they had been infli cted intentio nally. After throwing the v ictim into the pool, the defendant went bac k inside the house, grabbed the keys to the victim’s
m in ivan, and sped out of the driveway. The defendant fled to his brother’s place in Texas, where he was later apprehended by the authorities.

Given the circumstances surrounding this crime, the jury could reasonably have found that the killing was premeditated and deliber ate: ‘Premeditation’ is t he pr ocess simply of thinking about a proposed killing before en gagi ng in the homicidal conduct; and ‘deliberation’ is the process of carefully weighing such matters as the wisdom of going a hea d with the proposed k illin g, the manner in which the ki lling will be ac complished, and the consequences which may be visited upon the kill e r if and when apprehended. ‘D eliberation’ is present if the thinking, i.e., the ‘premeditation,’ is being done in such a cool mental state, unde r such circumstances, and for such a period of time as to permit a ‘ca reful weighing’ of the proposed decision. State v. Brown , 836 S.W.2d 530, 540-41 (Tenn. 1992) quoting C. Torcia, Wharton’s Criminal Law

§ 140 (14th ed. 1979) (emphasis deleted).

The defendant contends that he did not have time to deliberate because he killed the victi m d uring t he fight. The defendant argues that hi s passion 1 from the fight trumped any cool purpose or reflection. What the de fendant fails to realize, however, is that the evidence amply demonstrat es that he had had plenty of time i n which to coolly reflect upon his intentions before he ev en a rrived at the vic

tim’s home. The defendant told a fellow inmate that he had thou ght about his meeting w ith the victim earli er in the day; he even obtained a money order to take to her. He knew he was going to see her that night. Thedefendant wanted to settle his differences with the victi m, but also wanted to hurt her if she was unwilli ng to talk. Thus, the defendant made his plans earli er in the day and therefore had more than just a few moments to think about what he was goi ng17

to do. Even the time followi ng his disconnection of the phone until he knocked on the front door would be a l egallysufficient amount of time in which to plan and ponder the murder.

The fact that a fight ensued upon the defendant’s arrival does not discount the existence of premeditation and deliberation. The defendant had hoped to work things out with his wife, but he was also prepared to inflict pain upon her if she resis te d reconciliation. The defendant suspected a confrontation could occur. A s he had done before, he disconnected the telephone line prior to entering the house . Moreover, once inside and realizing the v ictim did not want to tal k, in an apparent move to av oid an y interference, the defendant told his children t o go to b ed and blocked the victim’s bedroom door. Although the defendant may have been “passionate” during the fight with the victim, which i s only natural, the defendant expected this to occur prior to his arrival.

This Court has previously noted thatin circumstances wher e the intent to kill is formed during a deadly struggle, the cri me could still rise to the level of first-degree murder if the State proved that premeditation and deliberation preceded the struggl e. State v. Edwin Jesperson , No. 03C01-9206-CR-00212, Monr oe County (Tenn. Crim. App. filed Aug. 11 , 1993, a

t Knoxv ille).“Also,if the intent to kill was formed as a result of premeditation and deliberation prior to the crime, it is immateri al that the act wascarried out in a sta te of passi on.” Id. In Jesperson , the defendant became enraged and attempted to kill his wife upon arriving at her residence and findin g ano ther man there (who had been watching a movi e with her). Althou gh the def endant appeared to be in
a stat e o f passion at the time of the killi ng, the jury determined that premeditation and deliberation were established prior to the defendant’s arr ival. T he facts of the case at hand are somewhat similar to Jesperson . Interestingly thou gh, none ofthe defendant’s children in the prese nt case testified about the defendant’s de meanor the night of the18

murder. They testified that the defendant and the victim had been “y elling” and “fighting ,” and that the victim had been kicking and screaming at times. H owever, they nev er men tioned whe ther or not the defendant had seemed angry or in a rage. The only evidence of the defendant’s demeanor was the statement

he made to his prisonmate that he had lost his temper when the victim refused to attempt a r econciliation.

The evidence in the record fully suppo rts the conclusion that the defendant had had more than enough time to premeditate and deliberate the consequen ces of his actions before he engaged in the fight with the

victim. The evidence presented to the jury contains several of the above-listed circumstances which support a findi ng of premeditation and deliberation. See,e.g. , Stat e v . Bullington , 532 S.W.2d 556, 560 (Tenn. 1976) (premeditation may be proven by showing past hard feelings between the defendant and victim). There w as evidence of planning ex hi bited by the fact that the defendant disconnected the telephone line before entering the residence. The defendant also indicated his intent to kill the victim to his children, and even informed a fellow inmate afterwardsthat he had intended to hurt the victim. In addition, the killing of the victim in this case was particular ly cruel in that it was accomplished through a severe beating, strangulation and drowning. The jury was justified in concluding that the evidence failed to show that the defendant’s “re ason [had been] d ethrone d by anger or any other ‘passion.’ ” Id.

The defendant also contends th at his alleged intoxication prevented him from carrying out an intentional murder. T.C.A. § 39-11-503(a)recognizes that voluntary intoxication is not a defense to pros ecutionfo r an offense, however, evidence of such maybe admitted to negate a culpable mental state. Se e a lso State v. Phipps , 883 S.W.2d 138, 148 (Tenn. Crim. App. 1994); State v. Shelton , 854 S.W.2d 116, 121 (Tenn. Crim. App. 1992). In this c ase, t he trial court allow ed into evidence statements concerning the defendant’s allegedintoxication at the time of the off ense. Acc ordingly,2 Dr. Zager also testif ied that some persons who had spent ti me with the defendant on the day of the murder had tol d her that h e had been drinki ng that day . Their st atements, however, had not incl uded other inf ormation which woul d indicat e that t he defendant had t hereby become intoxicated.

19 the only issue before this Court is whether the evidence of intoxication was s uch thata reasonable jury could not have found anything but that the defendant was unable to form the requisite mens rea . Or, as this Court stat ed in Harrell v. State , 593 S.W.2d 664, 672 (Tenn. Crim. App. 1979), “[t]he determinative q uestion is not whether th e accused was intoxicated, but what was his mental capacity.”

In the present case, the only evidence of the defendant’s intoxication were his own statements made to his pr isonmate and Dr. Zager. D r. Zager testified that the defendant’s statement conveying his intoxication, taken in conjunction with his history of alcohol abuse a nd th e stress from his domestic pr oblems, led her to believe that the defendant had been acting in an impulsi ve manner rather than from a w ell-thou ght-o ut plan. Although one of

the defendant’s daughters testifie d that the defendant had been drinking beer, there was nothing else to indicate the defendant w as actually intoxi cated. 2 Of course, as discussed above, there was other evidence establishing the presence of the required mental state. The defendant was not so intoxicated that he could not drive to the victim’s reside nce, disconnect the telephone li ne prior to ent e ring the house, barricadethe bedroom door, drag the victim down to the pool in the back yard, and return inside the house to grab the vict im’s car keys. See State v. Joseph Troy Man uel , No. 02C01-9301-CC-00007, Benton C ounty ( Tenn. Cr

im. App. fi led Sep t. 29, 1993, at Jackson) (fact that defendant took victim’ s truck keys after kil ling, in p art, rebutted defendant’s assertion that he w as too intoxicated to form the r equisite mens rea ).

The weight and credibil ity of the witnesses' testimony are matters entr usted exclusively

to the jury as the

trier of fact. State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); Byrge v. State , 575 S.W .2d 292, 2 95 (Tenn. Crim. App. 1978). Moreover, this Court has observed that passion and intoxication are v aluable to thedefense only if they20

are of such a d e gree that they negate pr emeditation and deliberation. Wendall Ray Witherspoon v. State , No. 01C01-9204-CC-00137, Maur y County (Tenn. Cri m. App. filed Mar. 18, 1993, at Nashv il le) (finding of mental state su pported by fact that defendant stated his intent to kill vic tim and attempted to remove children from sc ene so they did not witness attack). The jury obv iously decided not to beli eve the defendant’s own account s of his intoxication and

anger (or

other passion) in lig ht of the other evidence establi shing premeditation and deliberation, andthis Court should not inte rfere with that determinati on in this case.

This issue is without merit.
II. Exclusion of Testimony Next, the defendant argues that the tr ial court erroneously excluded Arbogast’s testimony during the g uilt ph as e of the trial. The defendant contends her testimo nywas relevant to est ablish his state of mind on the ni ght of the murde r an d sho uld have been admitted to negate the existence of the requisi te intent. The Stat e argues th at the tri al court p roperly exc luded he r testimo ny.

Upon the prosecution’s objecti on, the trial court heard an offer of proof from the defense prior to the questioning of this witness in front of the jury. Arbogast stated that she had not personally spo ken with the de fendant for several months prior to the murder. All of her te stimony was based upon i nformation she had obtained from her other brother, who was dec

eased at the time of trial. Arbog ast, who was in Ci ncinnati the nightof the murder, stated that her deceas ed brother had told her the defendant had been crying and seemed distraught earlier in the evening of the murder. The trial court, based on this information, held Ar bogast’s testimony inad missible.

The admissibility of evi dence is within the sound discretion of

the trial court,3 “A statement of the declarant ’s then exi sting state of mind, emoti on, sensati on, or phy sical conditi on (such as int ent, pl an, motive, design, mentalfeeli ng, pain, and bodily health),but not i ncluding a statement of memory or bel ief to pr ove the fact

remembered or believed unl ess it rel ates to t he execu tion, revoc ation, identifica tion, or term s of dec larant’s will.” 21 and this Court will not interfere with that discretion absent a clear showing of abuse. See State v. Howard , 926 S.W.2d 579, 585 (Tenn. Crim. App. 1996). In addition, our rules of evidence provide that a “witness may not testify to a matter u nless evid ence is introduced sufficient to support a finding th at the witness has person al knowledge of the matter.” Tenn. R. Evid. 602. It w as clear from Arbogast’s statements that she had not talked with or seen the

defendant for several months prior to the crime. Obv iously, she
was in no position to comment on his condition the night of th e murder. Her testim on y was based upon st a tements made to her by her deceas ed brother which wer

e being offered to prove the truthof the matter asserted, i.e., that the defendant was crying and distraught

prior to the murder. Her

testimony, therefore, wa s based on hearsay. Tenn. R. Evid. 801(c).

The defendant seems to suggest that the evidence falls within the state of mind exception to the hearsay rule. See Te nn. R. Evid. 803(3). 3 However, as the Advisory Commission Comments note, Rule 803(3) conte mplates that only the declarant’s (the deceased brother’s) state of mind or condition, not so me third party’s (the defendant’s), is provable by thi s hearsay exception. See als o Sta te v. Hutchison , 898 S.W.2d 161, 171 (Tenn. 1994); State v. John David Rankin, Jr. , N o. 03C01 -9511-CC00369, Sullivan County ( Tenn. Crim. App. filed Aug. 18, 1996,at Knoxville) ( at note 2). The defense was attempting to pro ve the defendant’s state of mind through the statement of an out-of-court witness. Rule 803(3) does not encompass this. Accordingly , the trial court properly exc

luded this evidence from the j ury. This issue is w ithout merit.
III. Admission of Photographs The defendant also contends that t he trial court erroneousl y admitted22

autopsy photographs of the victim i nto evidence during the penalty phase of the trial. The defendant argues that the photos w ere “shocking and horr ifying” and had a “desig ned
e f fect” upon the jury. The State asse rts that the photos were r elevant to prove the existence of the aggravating circumstance and to assist the jury in understanding the expert testimony. According to the State, the probat iv e value of the evidence w as not substantially outwei ghed by any unfair prej udicial effect.

The admissibility of rele vant photographs

of the victim is within the sound discretion of the trial judge, and his or her ruling on

admissibility

will not be disturbe

d on appeal absent a clear showing of an abuse of t hat discretion. State v. Banks , 564 S.W.2d 947, 949 (Tenn. 1978). See also , State v. Bigbee , 885 S.W.2d 797, 807 (Tenn. 1994); State v. Van Tran , 864 S.W.2d 465, 477 (Tenn. 1993). Moreo ver, the modern trend is to vest more discretion in the trial judge's rulings on admissibil ity. See Banks , 564 S.W.2d at 949; State v. Michael Carlton Bail ey , No. 01C01-9403-CC-00105, Dickson County (Tenn. Crim. App. filed July 20, 1995, at Nashville).

Evidence is relevant if it has "any tendency to make the ex istence of any fact th at is o f consequence to the determination of th e action more probable or less probable than it would be without the ev idence." Tenn. R. Evid. 401. How ever, relevant evidence "may be excluded if its pr obative value is subs

tantially outweig hed by the danger of unfair prejudice, confusionof the issues, or misleading the jury." Tenn. R. Ev

id. 403. Of course, simply because evidence is prejudicial does not mean the evidence must be excluded as a matter of law

. See State v. Gentry , 881 S.W.2d 1, 6 (Tenn. Cri m. App. 1993). The Court must still deter mine the relevance of each photog raph to the sentencing issue and w eigh its probative v

alue against any undue prej udice.

T he photographs at issue here depi cted the body of the victi m during the autopsy exam. Some of the photos showed close- ups of the external wounds sus tained23

by the victim. None of the pictures depicted the surgical examinati on of the body. The State sought to establish that the murder was especially heinous, atrocious, or cru el in that it involved tortur

e or serious physical

abuse beyond that

necessary to

produce death. T.C.A. § 39-13-204(i)(5). The medi cal examiner testified that several of the wounds were target wounds and represented the i ntentional infliction of tortur e. The photo graphs in this respect, as the State notes, a ssis ted the jury in vie

wing the result of the al leged tortuous activity. And although the wou nds ar e somewhat gruesome, the depi ction of them was relevant in pr oving theaggravat ing circumstance. Their probative value appears to clearly outw eigh any undue prejudici al effect. This issue is wi thout merit.

IV. Constitutionali

ty of the A

ggravating Circu mstance The defendant argues that the la nguage of T.C.A. § 39-13-204(i)(5) (Su pp. 1994) i s u nconstitutionally v ague. In his brief, the defendant r elies upon Rickman v. Dutton , 854 F. Supp. 1305(M.D. Tenn. 1994), a federal di strict court opinion interpreting the language of the pre-1989 agg ravating circumstan ce. The defendant in this case was sentenced under the new language of this aggravator. The Rickman opinion, therefore, is inapplicable here. More over, our Supreme Court ha s recently found the languag e of this aggravating ci rcumstance constitutionall y sufficient

to narrow the class of offenders eligible for the d eath pen alty. State v. Odom , 928 S.W.2d 18, 26 (T enn. 1996). The jury
was properly instructed according to the wor ding of t he statute and the definitions provided in State v. Williams , 690 S.W.2d 517, 529 (Tenn. 1985) and Odom , 928 S.W.2d at 26. Thus, there is no error.

V. Sufficiency o

f the Aggrav

ating Evidence Next, the defendant contends that the evidence was insufficient to support the jury’s finding of the especially heinous, atrocious or cruel aggravati ng circumstance. Specifi cally, the defendant claims that the State did not prove beyond a reason able doubt that he tortured the victi m prior to her death.24 T.C.A. § 39-13-204(i)(5) prov ides that thedeath penalty may be imposed if the State proves beyond a reasonabl e doubt that “[t]hemurder was especially heinous, atrocious, or cruel in that it inv olved torture or ser

io us physical abuse beyo nd that necessary to produce death.” “Tort ure” has been defined as “the infliction of severe phys i cal or mental pain upon the vic tim while he or she remai ns alive and conscious,” State v. Williams , 690 S.W.2d 517, 529 (Tenn. 1985), whereas “seri ous physical abuse beyond that necessary to produce death” means just tha t: t here must be serious physical, not mental, abuse, i.e., “an act that is ‘excessive’ or which makes ‘improper use of a thing,’ or

which uses a thing ‘ in a manner contrary to th e natural or legal rul es for its use.’ ” State v. Odom , 928 S.W.2d 18, 26 (Tenn. 1996) quoting Black’s Law Dictionary 11 (6th ed. 1990).

As noted above, the jury’s verdict, approved by the trial court, accredits the testimony

of the witnesses for the State and resolves all confli cts in favor of the State's theory. State v. Hatc hett , 560 S.W.2d 627, 630 (Tenn. 1978); State v. Grace , 493 S.W.2d 47 4, 476 (Tenn . 1973). On appeal, "the State is entitled to the strongest legitimateview of the trial evidence and all reasonable or legitimate inferences w hich may be drawn therefrom." State v. Cabbage , 571 S.W.2d 832, 83 5 (Tenn. 1978). This Court does not reweigh or re-ev aluate the evidence. Id. The jury's verdict, therefore, will only be disturbed i f, after a consideration of the evi dence in the light most favor able to the State, a ratio nal tri er of fa ct could not have found the existence of the aggravating circumstance beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 309 (1979); State v. Willia ms , 657 S.W.2d 405, 41 0 (Tenn. 1983).

The evidence p r esented clearly supports the jury’s finding of the aggravating

ci rcumstance in this case. Death resulted from a combination of manual strangulation and drowning. Prior to her death, however, the victim received a very extensive and painful beating. There were approximately eig hty-three separate w ounds25

found on the victim’s body, not including the internal injuries associa ted wi th the strangulation. The concentration of wounds to the fac e, neck, and head, classified as target wounds, had been intentionall y inflicted and represent the presence of torture. The victim was drag ged across the pavement and groundand sustained extensiv e scrapes on her back, arms andlegs. Some of the victim’ s hair was pulled from her head and her
nose was fractured. Also, numer ous defensive wounds wer e found on her arms and legs. The medical examiner testified that the injuries hadbeen inflicted within tw o hours prior to death and that thevicti m had been alive and conscious during the entire attack. Evidence demonstrated that the beatin g started in the victi m’s bedroom and continued along the outs ide of th e house a nd into th e back yard where the vi ctim was manu ally strangled and thrown i nto a swimming pool to dr own.
Apart from the physical abuse sust ained in the presence of the children, the evide nce als o supports the presence of mental abus e. During the beating in the bedroom, the defendant told thechildren he would ki ll their mother if they c alled for help. Not only did the victi m possibly fear for the safety of her children, she had to endure, during the period before her death, the thought that the defendant did in fact intend to kill her. Moreover, water was found in the victim’s stomach and lu ngs, which, accordi ng to the medical examin er, indicated that the victim had been alive while lying face down in the pool. The evidence in this case seems to overw helmingly prove bey

ond a reasonable doubt that the victim w

as tortured.

This issue is without merit.
VI. Appropriateness of the Death Penalty Final ly, th e defendant appears to be reasserting his position that the evidence in thi s case supports at most a conv iction for second-degree mur der. The defendant, citing State v. Thornton , 730 S.W.2d 309 (Tenn. 1987), seems to suggest that4 During sentenci ng, the defen dant int roduced evidence r elati ng to his subst

ance abuse, depression, and suicidal thoughts. He also demonstrated that he was rai sed by an abusi ve father who would not acknowl edge that t he defendant was hi s son. The defendant’s sister andmother testi fied that the defendant was a good father an d cared for hi s childr en. 26 the conviction and sentence her e should be reversed

because domestic homicides rarely
are committed in the absence of passion.The State notes, however, that this case did not involve the “typica l” domesti c dispute. At the time of the murder, the couple was separated and they were not li ving together. Moreover, contrary to the authority cited by the defendant, there was no evid ence in this case that the defendant had been reacting to an illicit sexual affair in whic h the vic tim was involve d. The State argues that the defendant planned to kill his w ife and the fact that

the victim was

his wife does not, in and of itself, discount the existence of premeditation and deliberation. As noted abov e, the evidence in this case clearly supports the convictio n and sentence. Accordingl y, the defendant’s reliance solely upon the relationship between him and the victim is w ithout merit. See, e.g. , State v. Cooper , 718 S.W.2d 256 (Te nn. 1986).

After a thoroug h revi ew o f the issues and the record before th e Court as mandated by T.C.A. §§ 39-13-206(b), and (c), and for the reasons statedherein, we find that the defendant's conviction and sentence of death should be affirmed. T he sentence of death was not imposed in an ar bitrary fashion, the

evidence supports the jur y's finding of the aggravating circumstance, and the evid ence supports th e jury's finding that the aggravating

circumstance outweighs any mitigating circu mstanc es. 4 Moreover, a compara tive proportionality rev iew, considering bo

th the circumstances of the cri me and the nature of the defendant, affirms that the sentenc e of death is neither excessi ve nor disproportionate

to the penalty imposed in similar ca se s. See, e.g. , State v. Bland , __ S.W.2d __ (Tenn. 1997) (and cases cited therein); State v. Mann , __ S.W.2d __ (Tenn. 1997) (a nd cases cited therein); State v. Poe , 755 S.W.2d 41 (Tenn. 1988) (victi m suffered s evere beating and was strangled); and State v. O’Guinn , 709 S.W.2d 56 1 (Tenn. 1986) (victim suffered severe beating and was strangled).27 The conviction and sentence ar e hereby affirmed.

______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ JOE B. JONES, Pres iding Judge

______________________________ THOMAS T. W OODALL, Judge