1

“Prior to the setting of oral argument, the Court shall review the records and briefs and consider all

errors assigned. The Court may enter an order designating those issues it wishes addressed at oral argument.” Tenn.

Sup. Ct. R. 12.2.

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

April 4, 2001 Session

STATE OF TENNESSEE v. JOHN MICHAEL BANE

 Automatic Appeal from the Court of Criminal Appeals

Criminal Court for Shelby County

No. 89-01502 John P. Colton, Jr., Judge

No. W1997-02158-SC-DDT-DD - Filed July 3, 2001

The defendant, John Michael Bane, was convicted of felony murder in the perpetration of a

robbery for an offense committed in November of 1988. The jury originally imposed a sentence of

death after it found that evidence of two aggravating circumstances – (1) the murder was especially

heinous, atrocious, or cruel in that it involved torture or depravity of mind and (2) the murder was

committed during the perpetration of a felony – outweighed evidence of any mitigating factors. See

Tenn. Code Ann. § 39-2-203(i)(5), (7) (1982). On appeal, this Court affirmed the conviction, but

remanded for a new sentencing hearing because the jury’s application of the felony murder

aggravating circumstance duplicated the offense of felony murder in violation of article I, section

16 of the Tennessee Constitution. See State v. Bane, 853 S.W.2d 483 (Tenn. 1993). After a new

sentencing hearing, the jury again imposed a sentence of death after it found that evidence of two

aggravating circumstances – (1) the murder was “especially atrocious or cruel in that it involved

torture and depravity of mind” and (2) the murder was committed for the purpose of avoiding,

interfering with, or preventing a lawful arrest or prosecution of the defendant or another –

outweighed evidence of any mitigating factors. See Tenn. Code Ann. § 39-2-203(i)(5), (6) (1982).

After the Court of Criminal Appeals affirmed the death sentence, the case was docketed in

this Court. See Tenn. Code Ann. § 39-13-206(a) (1997) (“The affirmance of the conviction and the

sentence of death shall be automatically reviewed by the Tennessee supreme court.”). After

reviewing the record, the briefs, and applicable authority, we designated seven issues for oral

argument.1

 We now hold as follows: (1) the trial court did not err in refusing to instruct the jury that

a witness for the prosecution, Brian Lovett, was an accomplice whose testimony had to be

corroborated in order to find an aggravating circumstance; (2) the trial court did not err in refusing

to admit Bryan Lovett’s medical and psychological records; (3) the trial court did not err in refusing

to allow the defendant’s expert witness to remain in the courtroom; (4) the trial court did not err in

allowing the prosecution to argue a “non-statutory” aggravating circumstance; (5) the evidence was
-2-

sufficient to support the jury’s application of the aggravating circumstance set forth in Tenn. Code

Ann. § 39-2-203(i)(5) (1982); (6) the evidence was sufficient to support the jury’s application of the

aggravating circumstance set forth in Tenn. Code Ann. § 39-2-203(i)(6) (1982); and (7) the sentence

of death was not arbitrary or disproportionate as applied in this case to the defendant. We also agree

with the Court of Criminal Appeals’ conclusions with respect to the remaining issues, the relevant

portions of which are included in the appendix to this opinion. Accordingly, we affirm the judgment

of the Court of Criminal Appeals.

 

Tenn. Code Ann. § 39-13-206(a)(1); Judgment of the Court of Criminal Appeals Affirmed

E. RILEY ANDERSON, C.J., delivered the opinion of the court, in which FRANK F. DROWOTA, III,

JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined. ADOLPHO A. BIRCH, JR., dissenting.

Joseph S. Ozment, Memphis, Tennessee, and Charles S. Kelly, Dyersburg, Tennessee, for the

appellant, John Michael Bane.

Michael E. Moore, Solicitor General; Amy L. Tarkington, Deputy Attorney General; William L.

Gibbons, District Attorney General; and Thomas D. Henderson and Kevin R. Rardin, Assistant

District Attorneys General, for the appellee, State of Tennessee.

OPINION

BACKGROUND

On November 19, 1988, police found the body of the victim, Royce D. Frazier, age 60, lying

in a bathtub full of water in his home near Memphis, Tennessee. Frazier had been gagged; a plastic

bag had been placed over his head; and an electrical cord was tied around his neck. A plunger had

been placed over his face apparently to keep his head submerged. Frazier’s house had been

ransacked: several lamps and ashtrays had been overturned and numerous items were scattered in

disarray. 

Brian Lovett, who was 16 at the time of the offense, testified that his mother, Donna Lovett,

and the defendant, John Michael Bane, had discussed a plan to rob the victim several days before

he was killed. The plan was for Donna Lovett to visit Frazier, whom she knew, and render him

unconscious by putting Visine eye drops in his beer. Bane would then enter Frazier’s home and

carry out the robbery with Donna Lovett. According to Brian Lovett, Bane said that Frazier would

have to be killed because he “knew [Lovett] and would tell on her.” Brian Lovett said that he and

Bane discussed choking or stabbing the victim. 

On the day after the robbery plan discussion, Donna Lovett and the defendant Bane

experimented by giving Brian Lovett a beer containing eye drops to see whether it would render him
2

The evidence indicated that Donna Lovett reported the events to authorities after she learned that the

defendant was at a motel with another woman on the day after the offense.

-3-

unconscious. Brian Lovett testified that it caused him to fall asleep within five minutes of drinking

the beer. Thomas Lovett, Brian’s younger brother, also testified that he recalled Brian drinking a

beer containing eye drops. 

Sometime in the late afternoon of November 17, 1988, Bane, accompanied by Donna Lovett

and her two sons, Brian and Thomas Lovett, drove his car past Frazier’s home several times, but no

one appeared to be home. Bane explained that he was going to borrow money from the occupant.

When they saw Frazier’s car at the home, Donna Lovett got out of the car and went into the house

alone. Bane then left and drove Brian and Thomas to Brian’s girlfriend’s home. A short time later,

Bane picked up the boys and took them to the Lovetts’ trailer in Ripley, Tennessee. Thereafter, Bane,

along with Brian Lovett, returned to Frazier’s home. When Donna Lovett signaled by “flickering”

the porch light on two occasions, Bane entered Frazier’s home, leaving Brian Lovett in the car. 

According to Brian Lovett’s testimony, approximately thirty minutes later Bane and Donna

Lovett ran to the car carrying several items of Frazier’s property. Bane had blood on his gloves and

Donna Lovett was crying and upset. While driving from the scene, Bane told Brian that he had

beaten the victim several times because he kept getting up and that he had “cut [the victim’s] nuts

off.” Bane also said that he had taken $726 and that he “had done such a good job he deserved a

beer.” Bane was arrested two days later when Donna Lovett reported the events of November 17,

1988 to the police.2

 

Brian Lovett testified that his sister committed suicide several months before the killing of

the victim and that he himself had attempted suicide on two occasions before November 17, 1988.

He admitted that he had been treated at Charter Lakeside and Memphis Mental Health Institute and

that he had a history of using cocaine, speed, marijuana, and alcohol. Lovett also admitted that he

had made conflicting statements about the murder. In one statement, he had told authorities that he

had looked in Frazier’s window and saw Bane holding a knife to the victim’s groin while Donna

Lovett placed a bag over the victim’s head. He did not recall why he had made the statement and

conceded that he had never left Bane’s car. Lovett testified that he had been arrested for theft after

Bane was convicted and that he had been placed in the same prison cell as the defendant. He

conceded that he signed a statement that he had lied at trial because he feared the defendant.

Dr.JerryFrancisco, Shelby Counter Medical Examiner, testified that the cause of the victim’s

death was ligature strangulation with asphyxia. The combination of the cloth gag, plastic bag, and

electrical cord had cut off the supply of blood to the victim’s brain and the supply of oxygen to his

lungs. The victim’s tongue had been pushed into the back of his mouth from the cloth gag. Dr.

Francisco stated that the victim could have been rendered unconscious in seconds or minutes,

depending on the severity and force of the ligature strangulation, but that the victim’s death required

several minutes. Dr. Francisco testified that the victim had extensive bruising around his eyes, head,

neck, arms, and hip; a tear and scrape below his left eye; and abrasions around his neck. There was
-4-

no evidence of injury to the victim’s groin area or scrotum. Dr. Francisco testified that fluid found

in the victim’s lungs was consistent with a finding that the victim had been alive when placed in the

water.

The defendant Bane called several witnesses to testify on his behalf. Brian Lovett identified

the handwriting of Donna Lovett in two letters that she had written to Bane after the murder. One

of the letters indicated that Brian Lovett had lied at trial and was coerced by the prosecution. Donna

Lovett also wrote that only she and Bane knew what happened in Frazier’s home.

Wilma McNeill, the defendant’s aunt, testified that Bane had been “very close” to his mother,

who died of cancer in April of 1988. McNeill testified that Bane had grown up working on a farm.

She stated that she loved Bane and asked the jury to spare his life. Maybelle Cunningham, also an

aunt of the defendant, testified that both of Bane’s parents were deceased. Cunningham testified that

Bane had two sons, ages 14 and 10. 

Marvin Ramey testified that Bane had worked on his farm when he was young and was a

good worker. Ramey testified that his wife looked after Bane and that he had never caused any

trouble.

Teresa Goforth, a co-worker of Bane and Donna Lovett at J.P.W. Enterprises, testified that

Bane was a good, hard worker. She testified that Bane and Donna Lovett were dating and that Lovett

was extremely jealous. About one week before the murder, Donna Lovett told Goforth that “if she

couldn’t have [the defendant], no one would and that she would see him locked away so far he would

never get out.”

Alicia Shadell Gray, Bane’s cousin, likewise testified that Donna Lovett was very possessive

and jealous. Three weeks before the murder, Gray heard Lovett say, “If I can’t have Michael, no

woman would have Michael, and I’ll see us both behind bars.” Donna Lovett attempted suicide later

that day at Gray’s home by overdosing on pills, and Bane took her to the emergency room. Gray

testified that after Bane was convicted, Brian Lovett told her that his mother had agreed to plead

guilty in exchange for a sentence of 35 years and that he did not want to see “an innocent man” go

to prison. He said he planned to write an affidavit stating that Bane had no part in the offense.

Diane Bane testified that she met Bane while he was in prison and fell in love with him after

talking regularly to him on the telephone. She married Bane in March of 1995 and travels 200 miles

round trip every Saturday to visit him. Her former husband died in August of 1994, and she had

three sons from that marriage. 

After deliberating on all of the above evidence, the jury found that there was evidence

supporting two aggravating circumstances: (1) that the murder was “especially atrocious or cruel in
3

As will be discussed herein, the jury’s verdict did not track the specific language of Tenn. Code Ann.

§ 39-2-203(i)(5) (1982).

4

Although all of the capital sentencing provisions were amended and recodified in 1989, the jury in this

case was properly instructed with the law as it existed at the time of the offense. See State v. Brimmer, 876 S.W.2d 75,

82 (Tenn. 1994). The aggravating circumstances at issue in this case are now codified in Tenn. Code Ann. § 39-13-

204(i)(5), (6) (1997 & Supp. 2000).

-5-

that it involved torture and depravity of mind”3

 and (2) that the murder was committed for the

purpose of avoiding, interfering with or preventing a lawful arrest or prosecution of the defendant

or another.” Tenn. Code Ann. § 39-2-203(i)(5), (6) (1982).

4

 After further finding that the

aggravating circumstances outweighed the evidence of mitigating circumstances, the jury imposed

a sentence of death. 

ANALYSIS

Corroboration of Accomplice Testimony

The defendant argues that the trial court erred in failing to instruct the jury that Brian Lovett

was an accomplice to the offense and that an aggravating circumstance cannot be predicated upon

the uncorroborated testimony of an accomplice. The State maintains that corroboration of an

accomplice’s testimony is not required for sentencing; that the trial court did not err in refusing to

instruct the jury that corroboration was required as a non-statutory mitigating circumstance; and that,

in any event, Brian Lovett’s testimony was corroborated by the testimony of his younger brother,

Thomas Lovett. 

This Court has repeatedly held that a conviction may not be based solely upon the

uncorroborated testimony of an accomplice to the offense. See State v. Stout, ___ S.W.3d ___

(Tenn. 2001); State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994); Monts v. State, 379 S.W.2d 34,

43 (Tenn. 1964). We have described the nature of this requirement as follows:

[T]here must be some fact testified to, entirely independent of the

accomplice’s testimony, which, taken by itself, leads to the inference,

not only that a crime has been committed, but also that the defendant

is implicated in it; and this independent corroborative testimony must

also include some fact establishing the defendant’s identity. This

corroborative evidence may be direct or entirely circumstantial, and

it need not be adequate, in and of itself, to support a conviction; it is

sufficient to meet the requirements of the rule if it fairly and

legitimately tends to connect the defendant with the commission of

the crime charged. It is not necessary that the corroboration extend

to every part of the accomplice’s evidence.
5

For example, although the present case involved only re-sentencing, it appears that the trial court

instructed the jury that Brian Lovett was an accomplice during the guilt phase of the trial. 

-6-

State v. Bigbee, 885 S.W.2d at 803 (quoting Hawkins v. State, 469 S.W.2d 515, 520 (Tenn. Crim.

App. 1971) (citations omitted)) (emphasis added). As the State correctly argues, this Court has never

extended the corroboration requirement to an accomplice testifying in the sentencing phase of a

capital trial. See State v. Henley, 774 S.W. 908, 913 (Tenn. 1989) (conviction may not be based on

accomplice’s testimony unless there is some corroboration). 

There is likewise no statutory provision that requires corroboration of an accomplice’s

testimony for the finding of an aggravating circumstance in the sentencing phase of a capital trial.

Instead, at the time of this offense, the statute governing the admissibility of evidence in the

sentencing phase of a capital trial provided as follows: 

In the sentencing proceeding, evidence may be presented as to any

matter that the court deems relevant to the punishment and may

include, but not be limited to, the nature and circumstances of the

crime; the defendant’s character, background history, and physical

condition; any evidence tending to establish or rebut the aggravating

circumstances enumerated in subsection (i) below; and any evidence

tending to establish or rebut any mitigating factors. Any such

evidence which the court deems to have probative value on the issue

of punishment may be received regardless of its admissibility under

the rules of evidence, provided that the defendant is accorded a fair

opportunity to rebut any hearsay statements so admitted. However,

this subsection shall not be construed to authorize the introduction of

any evidence secured in violation of the Constitution of the United

States or the state of Tennessee.

Tenn. Code Ann. § 39-2-203(c) (1982). The statute obviously contains no express provision

regarding the corroboration of accomplice testimony and instead affords the trial court wide

discretion in ruling upon the admissibility of evidence. See State v. Sims, ___ S.W.3d ___ (Tenn.

2001) (discussing trial court’s broad discretion under the identical provisions of Tenn. Code Ann.

§ 39-13-204(c) (1997)).

 

In addition to the absence of case law or statutory authority, we likewise find no other basis

or rationale for applying the corroboration requirement in a capital sentencing proceeding. The

purpose of the corroboration requirement is to assure that a conviction is not predicated solely upon

the testimony of a witness who was also involved in the commission of the offense. See Bigbee, 885

S.W.2d at 803. In a capital sentencing proceeding, the defendant has already been convicted of the

offense and the testimony of any accomplice has been subject to the corroboration requirement

during the guilt phase of the trial.

5

 See People v. Hamilton, 259 Cal. Rptr. 701, 774 P.2d 730, 752

(1989). 
6

The present version of this statute requires that the jury conclude that the evidence of aggravating

circumstances outweighs evidence of mitigating factors beyond a reasonable doubt. Tenn. Code Ann. § 39-13-204(g)

(1997 & Supp. 2000).

7

Presently codified at Tenn. Code Ann. § 39-13-206(c) (1997).

-7-

Moreover, the capital sentencing scheme as a whole contains numerous specific provisions

to ensure a high degree of reliability in deciding whether a death sentence is appropriate. The jury

is required to find, for example, that any aggravating circumstance has been proven by the

prosecution beyond a reasonable doubt and that the evidence of the aggravating circumstances

outweighed evidence of mitigating factors. Tenn. Code Ann. § 39-2-203(g) (1982).6 The jury’s

consideration of mitigating factors may include “any aspect of a defendant’s character or record or

any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than

death.” State v. Stout, ___ S.W.3d at ___ (quoting Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct.

2954, 2964, 57 L. Ed. 2d 973 (1978)). Finally, every sentence of death must also be carefully

scrutinized on appeal to determine whether the jury’s findings are supported by the evidence and

whether the sentence of death is arbitrary, excessive, or disproportionate to sentences imposed in

other cases. See Tenn. Code Ann. § 39-2-205(c) (1982).

7

 In light of these specific statutory

provisions governing capital sentencing, we conclude that there is no basis or rationale for applying

the corroboration requirement to the sentencing phase of a capital trial.

In a related issue, we agree with the Court of Criminal Appeals’ conclusion that the trial court

did not err in failing to charge accomplice corroboration as part of any “non-statutory mitigating

factors” requested by the defendant. The defendant had requested two special instructions that

stated, in part, that Brian Lovett was an accomplice; that he lacked credibility due to his inconsistent

statements and testimony; and that he was not charged or convicted for his role in the offense. 

Under statutory law at the time of this offense, however, a trial court was not required to

instruct the jury on non-statutory mitigating factors. See State v. Hartman, 703 S.W.2d 106, 118

(Tenn. 1985). Although a 1989 statutory amendment requires instructions on non-statutory

mitigating factors that are supported by the evidence, it is not applicable to offenses committed

before the effective date of the amendment. See State v. Smith, 993 S.W.2d 6, 32 (Tenn. 1999). In

any event, the evidence of Brian Lovett’s involvement in the offense and his inconsistent statements

was heard by the jury. The defense vigorously argued that the evidence impeached the witness and

cast doubt on Bane’s involvement in the murder. Therefore, even if a specific instruction had been

appropriate, its absence did not affect the outcome to the prejudice of the defendant.

Psychological and Medical Records

The defendant argues that the trial court erred in refusing to admit records regarding Brian

Lovett’s medical and psychological treatment for the purpose of impeaching the witness and raising

“residual doubt” as to the defendant’s role in the offense. The State counters that the defense was

allowed to inquire extensively into Brian Lovett’s medical and psychological background and that

the trial court did not abuse its discretion in refusing to admit the underlying medical records.
8

Although Sims discussed the present statute governing admissibility of evidence, see Tenn Code Ann.

§ 39-13-204(c) (1997), our comments are equally applicable to the statute in effect at the time of the defendant’s offense,

i.e., Tenn. Code Ann. § 39-2-203(c) (1982).

-8-

The defendant relies in part upon Tenn. R. Evid. 617, which provides that a “party may offer

evidence that a witness suffered from impaired capacity at the time of an occurrence or testimony.”

As we discussed above, however, the admissibility of evidence in a capital sentencing proceeding

is largely governed by a statute that “should be interpreted to allow trial judges wider discretion than

would normally be allowed under the Tennessee Rules of Evidence . . . .” State v. Sims, ___ S.W.3d

at ___.8

 We also observed in Sims:

The Rules of Evidence should not be applied to preclude introduction

of otherwise reliable evidence that is relevant to the issue of

punishment, as it relates to mitigating or aggravating circumstances,

the nature and circumstances of the particular crime, or the character

and background of the individual defendant. As our case history

reveals, however, the discretion allowed judges and attorneys during

sentencing in first degree murder cases is not unfettered. Our

constitutional standards require inquiry into the reliability, relevance,

value, and prejudicial effect of sentencing evidence to preserve

fundamental fairness and protect the rights of both the defendant and

the victim’s family. The rules of evidence can in some instances be

helpful guides in reaching these determinations of admissibility. Trial

judges are not, however, required to adhere strictly to the rules of

evidence. These rules are too restrictive and unwieldy in the arena of

capital sentencing.

Id. at ___ (emphasis added).

The defendant also correctly asserts that a defendant is permitted to present evidence of

“residual doubt” as a non-statutory mitigating factor in a re-sentencing proceeding. State v. Teague,

897 S.W.2d 248, 256 (Tenn. 1995). We recently have explained:

By definition, residual doubt is established by proof that casts doubt

on the defendant’s guilt. It is not limited to proof that mitigates the

defendant’s culpability for the crimes. 

While we agree . . . that not all impeachment proof will be relevant

to show residual doubt, it does not logically follow that impeachment

proof will never be relevant to establish residual doubt about the

defendant’s guilt. Where . . . the proffered residual doubt is

impeachment of the testimony of the only witness who offered direct

rather than circumstantial proof of the defendant’s involvement in the
-9-

crime, such proof clearly is relevant and admissible to establish

residual doubt as a mitigating circumstance.

State v. Hartman, ___ S.W.3d ___, ___ (Tenn. 2001). 

With these principles in mind, the defendant argued that he wanted to use the records to show

that Brian Lovett had a history of mental health problems; that he had been discharged from

treatment against medical advice shortly before the offense; and that his capacity to recall and relate

facts was impaired. Moreover, the defendant argued that because Brian Lovett was the main witness

against him, the impeachment evidence necessarily raised doubt as to the defendant’s role in the

offense.

The record reveals that the trial court gave careful consideration to this issue. The court

conducted several jury-out hearings on the issue and did not foreclose any efforts made by the

defendant to question the witness with regard to his history of suicide attempts, mental health

treatment, and drug abuse. The trial court even signed an order allowing the defense to obtain certain

medical and psychological records. During the sentencing, Brian Lovett testified about his two

suicide attempts, one of which occurred one month before the offense, and he testified that he had

been treated in two mental health facilities. He testified that his sister had committed suicide several

months before the murder. Finally, Lovett admitted his history of using marijuana, cocaine, alcohol,

and speed. When denying the motion for a new trial on this issue, the trial court made the following

findings:

Defense counsel asked Bryan [sic] Lovett about the information in the

records and the witness admitted everything. Thus, the jury heard the

evidence from the witness himself, there was nothing to impeach, and

the defense was free to argue Bryan [sic] Lovett’s credibility to the

jury in closing argument.

Moreover, as the Court of Criminal Appeals observed, the evidence failed to show that the witness’s

alleged impaired capacity existed at the time of the offense or at the time of the witness’s testimony.

See Tenn. R. Evid. 617.

Accordingly, we conclude that the defendant was not denied an opportunity to use evidence

of Brian Lovett’s medical and psychological history for the purpose of impeaching the witness’s

testimony or raising any doubts about the defendant’s role in the offense. In short, the trial court

did not abuse its discretion in ruling that the mental and psychological records were cumulative to

the testimony and therefore inadmissible. 
-10-

Sequestration of Defense Expert Witness

The defendant contends that the trial court committed reversible error and violated his rights

to due process and confrontation by refusing to exempt the defendant’s expert witness, a pathologist,

from the rule of witness sequestration. The defendant specifically argues that the presence of his

expert witness in the courtroom was essential for the purpose of responding to and rebutting the

testimony of the Shelby County Medical Examiner. The State responds that the trial court did not

abuse its discretion and that, in any event, the defendant has failed to demonstrate how he was

prejudiced by the trial court’s ruling.

The defendant relies in part upon Tenn. R. Evid. 615, which provides that “[a]t the request

of a party the court shall order witnesses, including rebuttal witnesses, excluded at trial or other

adjudicatory hearing.” The rule also provides, however, that it does not authorize the exclusion of

“a person whose presence is shown by a party to be essential to the presentation of the party’s cause.”

Tenn. R. Evid. 615. The comments to the rule suggest that an essential witness may be “an expert

witness a lawyer needs to help the lawyer understand opposing testimony.” See Tenn. R. Evid. 615

(advisory commission comments). The purpose of the rule, simply put, is to prevent a witness from

changing or altering his or her testimony based on testimony heard or facts learned from other

testifying witnesses. See State v. Harris, 839 S.W.2d 54, 68 (Tenn. 1992). 

As the defendant points out, we recently said that Rule 615 is not applicable in a proceeding

to determine whether a defendant is competent to be executed. Coe v. State, 17 S.W.3d 193, 222

(Tenn. 2000). In ruling that mental health experts were permitted to remain in the courtroom despite

the general rule of witness sequestration, we focused on the unique nature of such a competency

proceeding:

Allowing the mental health experts to remain in the courtroom during

the presentation of the proof is entirely consistent with the purpose of

competency proceedings which is to accurately ascertain the

prisoner’s mental state. . . . Also, the dangers Rule 615 is intended

to prevent do not arise in a proceeding to determine competency to be

executed. In light of the fact that both the State and the prisoner have

access to the reports of the experts prior to the hearing, there is little

or no risk that one of the expert witnesses will change his or her

testimony or adopt facts testified to by other witnesses.

Id. at 222-23 (emphasis added). 

Although Coe involved a mental competency proceeding, we believe that the dangers Rule

615 is intended to prevent generally do not arise with regard to expert witnesses in any proceeding.

In fact, the rules of evidence provide that an expert witness may testify and base an opinion on

evidence or facts made known to the expert at or before a hearing and the facts need not be

admissible at trial. See Tenn. R. Evid. 703. Moreover, an expert witness often may need to hear the
-11-

substance of the testimony of other witnesses in order to formulate an opinion or respond to the

opinions of other expert witnesses. In short, allowing an expert witness to remain in the courtroom

as an “essential person” generally does not create the risk that the expert will alter or change factual

testimony based on what is heard in the courtroom. Accordingly, we conclude that the trial court

erred by refusing to allow the defendant’s expert witness to remain in the courtroom without

considering the purpose and application of Rule 615. 

We must therefore determine whether the error affected the outcome of the proceedings to

the defendant’s prejudice. We observe first that the defendant and his expert pathologist had the

benefit of the medical examiner’s testimony from the initial trial. The defendant and his expert also

had the benefit of the autopsy report and the findings with respect to the victim’s injury and death.

Moreover, there is no indication that the medical examiner’s testimony was so detailed or complex

as to be beyond the ability of defense counsel to comprehend and prepare a defense. Finally, the

defendant did not call the expert to testify at the motion for new trial hearing or otherwise attempt

to make an offer of proof as to how the evidence or cross-examination of the medical examiner

would have differed had his expert witness been allowed to remain in the courtroom. Accordingly,

for all of these reasons, we conclude that the trial court’s refusal to allow the defendant’s expert

witness to remain in the courtroom did not affect the outcome to the prejudice of the defendant. 

Non-Statutory Aggravating Circumstances

The defendant argues that the prosecution was permitted to introduce and argue a nonstatutory aggravating circumstance by referring to the defendant’s relationships with women and his

“promiscuity.” The defendant’s argument is based largely upon the prosecution’s questioning of his

aunt, Wilma McNeill, with regard to how many times the defendant had been married and the

number of women with whom he had been involved in a relationship. McNeill replied that the

defendant had been married twice, but that she did not know about his personal life. The State

maintains that the evidence was proper to rebut evidence of mitigating factors presented by the

defendant.

The defendant asserts that the prosecution may not argue that the jury impose a death

sentence based on any factor that is not a statutory aggravating circumstance. See Cozzolino v.

State, 584 S.W.2d 765, 768 (Tenn. 1979). As the State points out, however, the prosecution is

permitted to rebut any mitigating factors relied on by a defendant. See Tenn. Code Ann. § 39-2-

203(c) (1982); Terry v. State, 46 S.W.3d 147 (Tenn. 2001). In this case, the defendant introduced

mitigating evidence of his family background, marriage, and two sons. The prosecution responded

by detailing the defendant’s relationships with several women. We agree with the Court of Criminal

Appeals that the trial court did not abuse its discretion in allowing the prosecution to rebut the 
9 We do observe, however, that the Court of Criminal Appeals incorrectly stated that the defendant

“himself testified that he had been married twice and was dating two women at the same time.” The record reveals that

the defendant did not testify at the re-sentencing.

-12-

mitigating evidence in this manner.9

 Moreover, there is no indication that the prosecution used the

evidence as a non-statutory aggravating circumstance or otherwise argued that the jury was permitted

to consider any non-statutory aggravating circumstance. 

In a related argument, the defendant contends that the prosecution engaged in misconduct by

calling him “sweetheart” several times during closing argument and by arguing that the defendant

was seeing another woman despite having “moved in” with Donna Lovett. The State contends that

the prosecutor’s closing argument was properly based on the evidence.

This Court has often observed that closing argument is a valuable privilege that should not

be unduly restricted. See State v. Bigbee, 885 S.W.2d at 809. We have likewise recognized that the

prosecutor may not engage in derogatory remarks or name calling. State v. Bates, 804 S.W.2d 868,

881 (Tenn. 1991) (referring to defendant as a “rabid dog”). The trial court has wide discretion in

controlling the course of arguments and will not be reversed absent an abuse of that discretion.

Moreover, prosecutorial misconduct does not amount to reversible error absent a showing that it has

affected the outcome to the prejudice of the defendant. See Terry v. State, 46 S.W.3d at 156. 

In reviewing the record, we agree with the Court of Criminal Appeals’ conclusion that the

prosecutor’s closing arguments in this case were based on the evidence and were not designed to

assert a non-statutory aggravating circumstance. To the contrary, it appears that the arguments were

in response to the defendant’s frequent attacks on the credibility of Brian Lovett. The prosecutor

argued, in part:

Brian Lovett, whose sister committed suicide, who was not even in

school, could not even live with his father, ended up living with his

mother, Donna Lovett, and her ‘sweetheart,’ the defendant. . . .

Brian Lovett, because of the problems in his life, like a lot of young

kids got involved with drugs. After his sister’s suicide, [he] checked

himself into a hospital for help. He . . . attempted to commit suicide

by taking Tylenol, which may be a suicide attempt, it may just be a

cry for help. But he did it twice. And he ended up trying to get help

or maybe getting help because he did go to two mental institutions.

. . . 

He returned safe to the bosom of his mother and her ‘sweetheart’ over

here. And they sit around and talk about robbing somebody. His

mother is talking with her ‘sweetheart’ who has moved in with her

about robbing some old man. So he joins in on the conversation.

They practice their knockout drops on him. His mother and his
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mother’s ‘sweetheart’ practice knockout drops on him? Yeah, he’s

got a real good start, hasn’t he?

Accordingly, when viewed in context, there is no indication that the arguments were inflammatory

or intended for the jury to impose the death penalty based on a non-statutory aggravating

circumstance. Moreover, although the prosecution should refrain from engaging in any sort of

personal name-calling, the arguments in no way affected the verdict to the prejudice of the defendant.

Heinous, Atrocious, or Cruel Aggravating Circumstance

The defendant contends that the evidence was insufficient to support the jury’s application

of the “heinous, atrocious, or cruel” aggravating circumstance set forth in Tenn. Code Ann. § 39-2-

203(i)(5) (1982). Specifically, the defendant argues that the prosecution failed to prove “torture and

depravity of mind” because there was no evidence that the victim was alive when he was placed in

the bathtub full of water. The State maintains that the evidence was sufficient to support the jury’s

application of this aggravating circumstance.

At the time of this offense, this aggravating circumstance provided that the “murder was

especially heinous, atrocious, or cruel in that it involved torture or depravity of mind.” Tenn. Code

Ann. § 39-2-203(i)(5) (1982). In State v. Williams, we explained that the terms of the (i)(5)

aggravating circumstance must be given their plain and natural meaning as follows: “torture” means

the infliction of severe physical or mental pain while the victim is alive and conscious; “heinous”

means grossly wicked or reprehensible, abominable, odious, vile; “atrocious” means extremely evil

or cruel, monstrous, exceptionally bad, abominable; “cruel” means disposed to inflict pain or

suffering, causing suffering, painful; and “depravity of mind” means moral corruption, wicked or

perverse act. 690 S.W.2d 517, 527-30 (Tenn. 1985). Moreover, we have repeatedly rejected the

argument that this aggravating circumstance is vague, overly broad, or otherwise invalid. See Terry

v. State, 46 S.W.3d at 160; State v. Strouth, 999 S.W.2d 759, 764 (Tenn. 1999); State v.

Middlebrooks, 995 S.W.2d 550, 555-56 (Tenn. 1999). 

We now address whether the evidence in this case was sufficient to support the jury’s

application of the aggravating circumstance. Our analysis requires that we determine whether, after

viewing the evidence in a light most favorable to the State, a rational trier of fact could have found

the existence of the aggravating circumstance beyond a reasonable doubt. Terry v. State, 46 S.W.3d

at 160-61. 

In this case, the evidence revealed that the defendant Bane planned the robbery of the victim

along with Donna Lovett. The defendant repeatedly beat the 60-year-old victim, causing bruises and

injuries to the victim’s face, eyes, head, arms and hip, while the victim struggled for his life. The

victim was forcibly gagged, displacing his tongue to the back of his mouth; a plastic bag was placed

over his head and then tied around his neck with an electrical cord. The victim was then strangled,
10 Although the jury’s finding that the murder was “especially atrocious or cruel in that it involved torture

and depravity of mind” did not track the language of the statute, the defendant has not asserted the discrepancy as error.

We conclude, however, that by finding “torture and depravity of mind” the jury’s finding was even more comprehensive

than required by statute and, therefore, did not prejudice the defendant. 

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cutting off the blood supply and air supply to his body. Although the medical examiner could not

testify with complete certainty how long the victim may have remained conscious, it can be inferred

from the proof of numerous blows, the victim’s struggle, the gagging, the placing of a plastic bag

over the victim’s head, and the strangulation with the electrical cord that the ordeal lasted minutes

and that unconsciousness was not instantaneous. Moreover, the medical examiner testified within

a reasonable degree of certainty that the victim was still alive when placed in the bathtub full of

water. This is likewise supported by the fact that a plunger had to be used to hold the victim’s face

and head underwater and by Lovett’s testimony that the defendant stated he had beaten the victim

several times because the victim kept getting up. 

Accordingly, in reviewing the record in a light most favorable to the State, we conclude that

the evidence supported the jury’s finding that the murder was especially atrocious or cruel in that it

involved torture and depravity of mind.10 

Avoiding, Interfering With, or Preventing a Lawful Arrest or Prosecution 

The defendant asserts that the aggravating circumstance in Tenn. Code Ann. § 39-2-203(i)(6)

(1982) was improperly applied for several reasons. He contends that the aggravating circumstance

applies in every case in which the victim knows the defendant and therefore fails to narrow the class

of death-eligible offenders; that the prosecution should not have been allowed to use this aggravating

circumstance since it was not relied upon in the original sentencing proceeding; and that the evidence

was insufficient to support the jury’s application of this aggravating circumstance. The State

maintains that the aggravating circumstance was properly applied and that the jury’s finding was

supported by the evidence.

Constitutionality

At the time of this offense, this aggravating circumstance was applicable where “the murder

was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or

prosecution of the defendant or another.” Tenn. Code Ann. § 39-2-203(i)(6) (1982). We have

upheld the application of this factor in a number of circumstances. See Terry v. State, 46 S.W.3d

at 161. Moreover, we have previously rejected the defendant’s argument that the aggravating

circumstance is unconstitutional for failing to narrow the class of death-eligible offenders. State v.

Bush, 942 S.W.2d 489, 504-05 (Tenn. 1997). 

In this case, the defendant Bane was charged with the felony murder of the victim in the

perpetration of a robbery. See Tenn. Code Ann. § 39-2-202(a) (1982). The offense required the 
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-16-

State to establish that the victim was killed in the perpetration or attempt to perpetrate the robbery

of the victim. Obtaining a conviction for felony murder did not require evidence that the killing was

for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution. Instead,

that additional evidence was necessary to establish the aggravating circumstance for sentencing. See

Tenn. Code Ann. § 39-2-203(i)(6) (1982). Thus, the aggravating circumstance did not duplicate the

elements of the underlying offense and sufficiently narrowed the class of persons eligible for the

penalty of death. See State v. Bush, 942 S.W.2d at 505 (upholding (i)(6) aggravating circumstance

as applied to premeditated murder). 

Prosecution’s Reliance in Re-sentencing

We also conclude that the prosecution was not barred from relying on this aggravating

circumstance for the re-sentencing. In State v. Harris, we held that where a defendant is sentenced

to death and then receives relief on appeal, the prosecution is not prohibited from again seeking the

death penalty at re-sentencing. 919 S.W.2d 323, 330 (Tenn. 1996). Moreover, we concluded that

under the so-called “clean slate” rule, the prosecution is free “to introduce proof of any aggravating

circumstance which is otherwise legally valid.” Id. We explained that a death sentence is not a

series of “mini-trials” on each aggravating circumstance and that there is no such thing as an

“acquittal” of an individual aggravating circumstance. Id. (citing Poland v. Arizona, 476 U.S. 147,

106 S. Ct. 1749, 90 L. Ed. 2d 123 (1986)). Finally, we observed that there was no other legal

impediment precluding the prosecution from relying on any aggravating circumstance and

strengthening its case in any way it can “by the introduction of new evidence.” Id. at 331.

The defendant’s reliance on State v. Phipps, 959 S.W.2d 538 (Tenn. 1997), is misplaced.

In Phipps, the defendant was convicted of first-degree murder and sentenced to life imprisonment

following a trial at which the State did not seek the death penalty. After the defendant successfully

appealed his conviction and obtained a new trial, the prosecution filed notice of its intent to seek the

death penalty. We held that since the prosecution had not sought the death penalty at the original

trial, its decision to do so after the defendant’s successful appeal created a presumption of

vindictiveness. 959 S.W.2d at 546. Moreover, we held that the prosecution would have to rebut the

presumption of vindictiveness with clear and convincing evidence that its decision was motivated

by a legitimate purpose. Id. at 547. 

In contrast, the prosecution in the present case filed notice of its intent to seek the death

penalty at the defendant’s initial trial, and the jury did in fact impose a death sentence. After the case

was remanded for re-sentencing, the prosecution again sought the death penalty, which it was

entitled to do. Although the prosecution did not rely on the (i)(6) aggravating circumstance at the

initial sentencing proceeding, our decision in Harris makes it clear that the “clean slate” rule applied

to re-sentencing. Thus, the prosecution was not barred from relying upon the aggravating

circumstance in Tenn. Code Ann. § 39-2-203(i)(6) (1982) in re-sentencing.
-17-

Sufficiency of Evidence

As discussed above, when considering the sufficiency of the evidence supporting an

aggravating circumstance, we must review the evidence in a light most favorable to the State and

determine whether a rational trier of fact could have found the existence of the aggravating

circumstance beyond a reasonable doubt. 

In this case, the defendant planned the robbery of the victim with Donna Lovett, who was an

acquaintance of the victim. The defendant said that the victim would have to be killed because he

knew Donna Lovett and could report that she was involved in the offense. In committing the

murder, the defendant and Donna Lovett robbed the victim of over $700 and various personal

property. In short, a rational trier of fact could conclude that the defendant killed the victim to avoid,

interfere with, or prevent a lawful arrest or prosecution of himself and Donna Lovett. Accordingly,

we conclude that the evidence was sufficient to support the jury’s application of this aggravating

circumstance.

Proportionality

Where a defendant has been sentenced to death, we must undertake a comparative

proportionality review pursuant to Tenn. Code Ann. § 39-13-206(c)(1) (1997). The analysis is

designed to identify aberrant, arbitrary, or capricious sentencing by determining whether the death

penalty in a given case is “disproportionate to the punishment imposed on others convicted of the

same crime.” State v. Bland, 958 S.W.2d 651, 662 (Tenn. 1997) (quoting Pulley v. Harris, 465 U.S.

37, 42-43, 104 S. Ct. 871, 875, 79 L. Ed. 2d 29 (1984)). If a case is “plainly lacking in

circumstances consistent with those in cases where the death penalty has been imposed,” then the

sentence is disproportionate. Id. at 668; see also State v. Burns, 979 S.W.2d 276, 283 (Tenn. 1998).

This Court has consistently employed the precedent-seeking method of comparative

proportionality review, which compares a case with cases involving similar defendants and similar

crimes. State v. Bland, 958 S.W.2d at 667. We consider numerous factors regarding the offense:

(1) the means of death; (2) the manner of death; (3) the motivation for the killing; (4) the place of

death; (5) the victim’s age, physical condition, and psychological condition; (6) the absence or

presence of premeditation; (7) the absence or presence of provocation; (8) the absence or presence

of justification; and (9) the injury to and effect on non-decedent victims. Id. We also consider

multiple factors about the defendant: (1) prior criminal record; (2) age, race, and gender; (3) mental,

emotional, and physical condition; (4) role in the murder; (5) cooperation with authorities; (6) level

of remorse; (7) knowledge of the victim’s helplessness; and (8) potential for rehabilitation. Id. Since

no two defendants and no two crimes are precisely alike, our review is not mechanical or based on

a rigid formula. See id. at 668.

In reviewing the facts and circumstances of the offense, the evidence shows that the

defendant actively planned the robbery of the victim, who was an acquaintance of the defendant’s

girlfriend, Donna Lovett. The defendant said that the victim would have to be killed because he
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would recognize Lovett and report the offense. The defendant discussed stabbing or choking the

victim. On the day of the murder, Bane, Lovett, and Lovett’s two teenage sons drove past the

victim’s home several times, waiting for the victim to arrive home. When the victim arrived home,

Donna Lovett approached his house while Bane left the scene with Lovett’s sons. When Bane later

returned, he waited for a prearranged signal from Donna Lovett before entering the victim’s home.

Bane repeatedly beat the 60-year-old victim as the victim tried to resist. The victim suffered

bruises and injuries to his head, eyes, hip, and arm. Bane and Lovett eventually gagged the victim

with a cloth, placed a plastic bag over his head, tied the bag around his neck with an electrical cord,

and strangled him. The victim was placed in a bathtub of water and a plunger was used to hold his

head under the water. There was evidence of fluid in the victim’s lungs consistent with a finding that

the victim had been alive when placed in the water. The cause of the victim’s death was ligature

strangulation with asphyxia.

Bane presented witnesses in mitigation who testified that he formerly worked on a farm and

was a good worker. The defendant has two sons by a former marriage. He also has a wife who he

married while incarcerated for the conviction in this case. Although Bane’s precise age is not in the

record, one witness said that the defendant was “in his twenties” or much younger than the 60-yearold victim. There was no evidence that the defendant had any medical, emotional, or mental

problems. Bane played a major role in the offense and did not cooperate with authorities or express

remorse for the victim. The main theory of the defense in mitigation was impeaching the testimony

of Brian Lovett and attempting to raise doubts about the defendant’s involvement in the offense. 

As the State asserts on appeal, this Court has upheld the death penalty in many cases bearing

similarities to this one. In the following cases, for example, the victims were killed in the course of

a robbery. State v. Chalmers, 28 S.W.3d 913, 919 (Tenn. 2000); State v. Smith, 993 S.W.2d 6, 18

(Tenn. 1999); State v. Burns, 979 S.W.2d 276, 283 (Tenn. 1998); State v. Howell, 868 S.W.2d 238,

262 (Tenn. 1993); State v. Bates, 804 S.W.2d 868, 883 (Tenn. 1991); State v. Boyd, 797 S.W.2d

589, 595 (Tenn. 1990); State v. King, 718 S.W.2d 241, 245 (Tenn. 1986). In several cases, the

victim was known to the defendant or an accomplice. See, e.g., State v. Bush, 942 S.W.2d 489, 507

(Tenn. 1997); State v. McNish, 727 S.W.2d 490, 491 (Tenn. 1987).

Several cases involve facts and circumstances of a killing similar to the present case. In the

following cases, the victim was beaten by the defendant. State v. Hall, 8 S.W.3d 593, 606 (Tenn.

1999); State v. Mann, 959 S.W.2d 503, 516 (Tenn. 1997); State v. Bush, 942 S.W.2d at 507; State

v. Barber, 753 S.W.2d 659, 668 (Tenn. 1988); State v. McNish, 727 S.W.2d at 491. In numerous

cases, the victim has been beaten and strangled. State v. Carruthers, 35 S.W.3d 516, 527 (Tenn.

2000); State v. Keen, 31 S.W.3d 196, 208 (Tenn. 2000); State v. Vann, 976 S.W.2d 93, 99 (Tenn.

1999); State v. Cauthern, 967 S.W.2d 726, 732 (Tenn. 1998); State v. Mann, 959 S.W.2d at 507;

State v. Hodges, 944 S.W.2d 346, 350 (Tenn. 1997).

The Court has upheld similar death sentences in which one of the aggravating circumstances

was that the killing was heinous, atrocious, or cruel in that it involved torture or depravity of mind,
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see Tenn. Code Ann. § 39-2-203(i)(5) (1982), or the killing was heinous, atrocious, or cruel in that

it involved torture or serious physical abuse beyond that necessary to produce death, see Tenn. Code

Ann. § 39-13-204(i)(5) (2000). See State v. Carruthers, 35 S.W.3d at 531; State v. Keen, 31 S.W.3d

at 211; State v. Hall, 8 S.W.3d at 606; State v. Vann, 976 S.W.2d at 98; State v. Cauthern, 967

S.W.2d at 729; State v. Mann, 959 S.W.2d at 507; State v. Bush, 942 S.W.2d at 507; State v. Barber,

753 S.W.2d at 668; State v. McNish, 727 S.W.2d at 491. The Court has likewise upheld similar

death sentences where the killing was committed to avoid arrest or prosecution. See State v. Bush,

942 S.W.2d at 504; State v. Smith, 857 S.W.2d 1, 14 (Tenn. 1993); State v. Thompson, 768 S.W.2d

239, 252 (Tenn. 1989); State v. Carter, 714 S.W.2d 241, 250 (Tenn. 1986). 

Finally, in considering characteristics regarding this defendant, it appearsthatwe have upheld

the death sentence in several cases where the defendant has presented similar mitigating evidence,

such as an employment record, a marriage, or children. See State v. Burns, 979 S.W.2d at 283; State

v. Cauthern, 967 S.W.2d at 740-41; State v. Hall, 958 S.W.2d 679, 700 (Tenn. 1997); State v.

Bland, 958 S.W.2d at 670; State v. Van Tran, 864 S.W.2d 465, 482 (Tenn. 1993). 

In sum, our review requires a determination of whether a case plainly lacks circumstances

found in similar cases where the death penalty has been imposed. See State v. Burns, 979 S.W.2d

at 285. The defendant has cited no specific case as authority for his argument that the death penalty

is arbitrary or disproportionate as applied in this case. Likewise, although the dissent asserts that the

comparative proportionality analysis is flawed, it fails to assert or establish that the sentence of death

is either arbitrary or disproportionate as applied in this case to this defendant. Moreover, a majority

of the Court has already addressed and rejected the views of the dissent and has consistently adhered

to the proportionality analysis carefully detailed in Bland. See State v. Keen, 31 S.W.3d at 223-24.

Finally, as we have discussed, the similarity of the facts and circumstances of this case to numerous

cases in which the death penalty has been upheld reveals that the death sentence is not arbitrary or

disproportionate as applied in this case. 

CONCLUSION

In accordancewith Tenn. Code Ann. § 39-2-205(c) (1982) and the principles adopted in prior

decisions, we have considered the entire record and conclude that the evidence supports the jury’s

finding of the statutory aggravating circumstances; that the evidence supports the jury’s finding that

the aggravating circumstances outweigh the mitigating circumstances; and that the sentence is not

arbitrary, excessive, or disproportionate. 

We have reviewed all of the issues raised by the defendant and conclude that they do not

warrant relief. With respect to issues not addressed in this opinion, we affirm the decision of the

Court of Criminal Appeals authored by Judge David H. Welles and joined by Judge Jerry L. Smith

and Judge James Curwood Witt, Jr. The relevant portions of that opinion are attached as an

appendix to this opinion. The defendant’s sentence of death is affirmed and shall be carried out on
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the 6th day of November, 2001, unless otherwise ordered by this Court or other proper authority.

It appearing that the defendant is indigent, costs of the appeal are taxed to the State.

___________________________________

RILEY ANDERSON, CHIEF JUSTICE