# FILED
February 10, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JANUARY SESSION, 1999

STATE OF TENN ESSEE, ) ) No. 02C01-9709-CR-00365 Appellee ) ) SHELBY COUNTY vs. ) ) Hon. John P. Colton, Jr., Judge DAVID M. KEEN, ) ) (Sentencing) Appellant ) FIRST DEGREE MURDER, CAPITAL CASE For the Appellant : For the Appellee : W. Mark Ward John Knox Walkup Asst. Shelby Co. Public Defender Attorney General and Repor ter 201 Poplar Avenue, Suite 2-01 Memphis, TN 38103 Michael E. Moore Solicitor General A C Wharton, Jr. Kenneth W. Rucker Public Defender ` Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493
William L. Gibbons District Attorney General
Thomas D. Henderson and Ms. Alonda Horne Asst. District Attor

neys General Criminal Justice Comple x, Suite 301 201 Poplar Avenue Memphis, TN 38103

OPINION FILED: AFFIRMED
David G. Hay

es Judge1 At the ti me of the offense the appellant was twenty-seven years ol d.
2 The appellant ’s guilty pl ea was entered on Februa ry 12, 199 1. Alth ough the record d oes not con tain a cop y of the guilty plea, a pparen tly the appellan t also pled g uilty to aggrava ted rape

. Howe ver, the ap pellant doe s not ch allenge this conviction in this instant a ppeal.

3 Contained wi thin t he appellant ’s twel ve general i ssues are other speci fic all egations of error set f

orth as sub-i ssues. 2 OPINION

In th is cap ital case, the appellant, Da vid M. Keen 1 , appeals as of right the imposition of his sentence of death by a Shelby County jury follow

ing his guilty plea to first degree murder in the perpetr ation of rape. 2 In his dir ect appeal to

the supreme court, see State v. Keen , 926 S.W.2d 727 (Tenn. 1994), the appellant’s conv iction was affirmed; however, th e court re ve rsed the sentence of death due to invalid jury instructions. The appellant’s case was remanded to the Criminal Cour t of Shelby County for a resentencing hearing at which he again received the death penalt y. On appeal, the appellant raises the following issues: 3 I. Whether the trial court erred in deny ing the appellant’s request to allow the jury to consider the sentencing option of life w ithout parole; II. Whether the tria l court erred by not i nforming the jury that the appellantwould h ave been eligi ble for parole af

ter ser ving 25 years

of a sentence of life imprisonment; III. Whether the evidence is suff icient to support the especially heinous, atrocious, or cruel a ggra vating circumstance pursuant to Tenn. Code Ann. § 39-13-204(i)(5); IV. Whet her the (i )(5) jury ins truction which charg ed in the disjunct ive “torture or

serious physical abus

e” denied the appellant

his constitutional right to a unanimous jury verdict and whether t he ins truction failed to narrow the class for death eligibility; V. Whether the trial court erred by r efusing the appellant ’s special request instruction for the especial ly heinous, atr ociou s, or cruel aggravati ng circumstance and the special request instruction r

egarding circumstantial evidenc

e; VI. Whether the trial court erred in denying the appellant’ s motion to instruct the jurythat it could consider sympathy based on the evidence presented as a mitigating circumstance; VII. Whether the prosec ution ex ercised its peremptory challenges in a racially discriminatory manner;3 VIII. Whether the trial court erredin refusing individual voir dire as to the prospect ive jurors’ exposure to pre-trial publicity and as to the jurors’ beliefs and attit udes abo ut the de ath pena lty; IX. Whether the appellant was prejudiced by the State’s introduction int o evidence of a photograph of the victim tak en during her lifetime and a morgue photo

graph of the v

ictim; X. Whether the trial court erred in all owing the State to make vic tim impact references during its closing argument; XI. Whether Tennessee’s death penalty statut es are constitutional; XII. Wheth er the jury imposed an arbitrary and disproportionate sentence

.

After a carefu l revi ew of the briefs and record in this appeal, we affirm the judgment of the trial court.

RESENTENCING HEARING

The proof at the sentencing hearing established that Ashley Nicole “Nicki” Reed,
an eight-year old, l ived with her grandparents, Mr. and Mrs. Wilson; her mother, Debbie Wilson; the appellant, Debbie’s li ve-in b oy friend; and three siblings in Millington in a three bedroom mobile home. The vic tim’s grandparents

left Millingtonaround 4 p.m. on the afternoon of March 17, 1990, to dine and play

bingo at theVFW Club in W est Memphis, Arkansas. The grandchildren were spending the night with various friends. In particular, Nicki had made plans to stay with the Abbotts, neighbors of the Wilsons.

While traveling to the VFW, Mr. Wilson and his w ife were met by

the appellant and Debbie Wilson. The appellant and Debbie followed her parents to the VFW. After arrivingat the club, Mr. Wilson became conce rned about Ni c ki’s overnight accommodations. The appellant volunteered to

return to Millington to check on Nicki, leaving around 5:30 p.m. in Mr. Wilson’s vehicle. Mr. Wilson testified that the appellant returned to the VFW around 7 :30 p.m. and told him that Nicki wa s staying at the Abbotts. The foursome concluded their games of bingo and returned to Mill ington later4

that evening.

Wilson testified that he had a green blanket that usua lly lay across his front seat; and that night whenhe returned home around 1 1 p.m., he not iced that it was miss ing. Wilson asked the appellant about the blanket, and the appellant stated that he placed it on the backseat. At

this time, Wilson noticed nothin g unusual about the appellant’s behavior.

When Nicki failed to return ho me the following morning, t he Wilsons became concerned. Mrs. Wilson contacted the Abbotts and lear ned that Nicki hadnot spent the nightwith them. Around 9:30 a.m. Sunday, the foursome, inclu ding the appellant, formed a search party fo r the vict im. After searching for hours , the appellant and Debbie went to the police stati on to file a missing person repo rt. Whe n they did not return, Mr. Wilson decided to go ass ist them. Upon opening the passenger’s door of his vehicle, he discov

ered Nicki’s underpants on the floorboard.
Sammy Wilson, a captain with the Millington Police Department, testified that he became suspicious of the missing person rep ort related by the appellant. Conseque ntly, the appellant was prov ided Miranda

warnings. In the ap pella nt’s first statementto the police, he denied any involvement in the crime. However, afterwards, the appellant told Captain Wilson, “I threw her [victim] in the river . . . dow n by the airport.”The appellant then ledthe off icers to th e Wol f River wher e he had t hrown the victim’s body off a boat ramp near Auction Str eet Bridge at

the north end of Mud Island. After an extensive search,the victim’s nude body , her shoesand clothing, all of which were wrapped tig htly in a green blank et, were discovere

d in the river.
Followingthe disco ve r y of the victim’s body, the appellant again admitted t o murdering the victim and provided additional details of her death. The appellant stated they had had an argument over Nick i’s seatbelt and that she hit her head on thedoor5

of the car. He stated that he put his “left hand on her throat, and my right

hand over her mouth.”
Sergeant

John Wilburn of the Memphis Police Department t estified that

he also took a statementfrom the appellant in which the appellant ad mitted to sexually abus ing the victim. I pulled o ff to th e side of the road a nd undre ssed Ashl ey, and undid my pants, and I held my hand over her thr oat and t ried to penetrate. I felt crap and I stopped, and Ashley tur ned blue in the f ace. She w asn’t breathing. I tied a shoe lace around her neck an d she still was not breathing. I untied the shoe lace, wr apped her up in a blanket, tied the blan ket togeth er, and dumped her off into the rive r. . . . I was on top of her with my hand on her throat.
Dr. Jerry Francisco, the Shelby County medic a l examiner, testified that the victim weighed approximately six ty-eight pounds. A li gature mark, caused by s trangulation with a shoestring, circl ed the neck and numerous scrapes and br uises surroundedthe mark. He testifie

d that the vi ctim had mu ltiple scrapes and bruises to her face and neck. He stated that those bruises on the face of the victim were exclusive from those related with the ligature strangulation. He also noted another contusion to the victim’s left arm.

Addition ally, the victim exhibit ed tears, bruises, and scr apes all received pri or to death to the posterior

area of the vaginal wall. Sperm heads were present within the victim’s vagina. The victi m also had fluid in her lungs indicating that

she was aliv e when she was submerged under water. Although ther e was evidence of drow ning, the doctor opined that the cause of death w as ligature strangul ation. The doctor stated

that ligature strangulation would have produced either death or uncons ciousness in a matter of seconds.

In mitigation, the defense presented the te st imony of Evelyn Brie schke, the appellant’s adoptive mother si nce he was f our ye ars old. She testified that the4 W e not e the appe llant h as go ne by s ever al nam es ov er his lifetim e as t estifie d to b y his ado ptive p aren ts an d siblin gs: D arryl Le e Ne ss, D arryl Le e Co le, Da rryl Lee Holid ay, Da rryl Brieschke, Darry

l Tooman, and his name under this indict ment, David Keen. 6 appellantand his brother Allen, during their early childhood, were malnouri shed, often nervous, unable to play or inter act socially wi

th others, h ad difficul ty sleeping, ran fevers, and constantly urinated w hile asleep. When the appellant started to school,the doctor placed the appellant on Rital in. In his teenage years, Ms. Brieschke stated that he often skipped

school and ha

d stolen a v

ehicle. She

noted a lette r from a psychiatrist, written just prior to her adoption of

the appellant, which stated that the appellantneeded help; however, she did not receive this letter until the appellant was sixteen.

Robert Brieschke, the appellant’s adoptive father, testified th at when they adopted the appellant they changed his name from Darryl Tooman to Darryl Brieschke 4

. He r eiterated the appellant’s ear ly childhood problems. He stated that the appellant
saw school counselors, priv ate counselors, andother county servi ces. While in school, the appellant was diagnosed with minimal brain dy

sfunction. When he was eighteen, the appellan t entere d the Navy becoming a medical corpsman. After the appe llant l eft the Brieschke’s home, he chang ed his name to David Keen.

Allen Brieschke, the appella nt’ s natural brother, testified that the children suffered under a physically abusive, alcoholic father, Serge Tooman. The Toomans, who originally were from Illinois, relocated periodically due to their fail ure to pa y bills and conflict s with the lo cal autho rities. T he fami ly k ept several a nimals in the house with them, and their father would kill them i n front of the children threatening to do the
same to the children if they misbehaved. Allen stated that his n atural mother had abandoned all the children when Allen was four years old and the appellant was three. Subseque ntly, Allen and the appellant were placed under foster care where they were subjected to various forms of corporal punishment and physi cal abuse.7 Darlene Krone, the step-sister of the appellant, testified that she and her brothers lived in very “spartan” condition s in houses, apartments, and farmhouses during the first three years of the appellant’s life. She also recounted incidents

of her step-father

killing animals and other abuse of burning her older

sister. Eventually, the Tooman children were placed in different foster care homes. She testified that sh e had been sexually abused by her older

brother Willis when she was fifteen and has been receiving counseli ng for her childhood exper iences and this sexual abuse. However, she testified that she has had minimal contact with the appellant since he was two and
a half and that the appellant was not around for most of her experienc es. She stated that the appellant was two and a half when he last was exposed to the abusive stepfather, and she never saw her step-father strike the appellant.

Linda Gehringer, the oldest step-sister of the appellant, testified that the f amily moved twenty-six times in two years. She stated that both her fath er, Willis Sr., and step-father, Serge, were abusive. Her step-father would beat them w ith electrical cords and two by

fo ur boards . She had seen h er step-fathe r abuse the app ellant although she recalled no specific instances. She stat ed that the appellant was tak en to the hospital at one point for malnutrition. She took care of theappellant fr om the time

he
was six months old until they w ere separated when he wa s three. She testified that she
was sexually abused for a year by the appellant’s gr

andfather Barney when she w as nine years old. Then, she w as sexually abused by

the appellant’s father Serge when she was eleven. She described their childhood as “an environment of terror.” As a result, she has been in counsel ing for the majority of her life.

Dr. John Ciocca, a clinical psychologist, testi

fied that the appellant’s IQ ranged between 105 and 110. Based up on interviews and ps ychological eval uations, he opined that the appellant suffered from int ense dep ression, disorien tation f rom reali ty, personality problems, post-traumatic stress disorder, suicidal tendencies, pedophilia, and attention-deficit disorder. One o f t he tests demonstrated the “prese nce of8

psychotic-like symptoms;”however, Dr. Ci occa felt that he was certainly competent to stand trial.

Also, he interviewed the appel lant’s adoptive parents, his brother, and two stepsisters. He testified that the appellant hashad “memories, dreams, and recol lections of being anally raped,”

by his first foster father. However, none of the records indicate that any such abuse occurred. At th e age of four , the appellant was diag nosed with “hyperkinetic syndro me,” com monly k nown to day as a ttentio n-defi cit d isorder, for which the app ellant was placed on Ritalin. He testified that the appellant’s enuresis o r bedwetting, eat ing behav ior, and hid ing from vi sitors car ried over into his new

home environment

with the Brieschkes.Ciocca related that the appe lla nt was placed in Winneb ago State Hospital, a facili ty in Wisconsin for treating teenagers w ith psychologicalproblems, when the appellant was seventeen after his involvement w ith marijuana, alcohol, and a stol en vehicle.

Dr. Ciocca had reviewed the findings of Dr. Hutson, another psychologist , who determined t hat the a ppellant was either ex tremely emotionally ups et or was “faking bad” based upon his MMPI test results and that “he [appellant] was sti ll manipulating.” Dr. Ciocca also testified that his results on the MMPI test could poss ibly indicate that the a ppellant was “faking bad” or that the appellant was “in distress.” Therefore, Dr

. Ciocca testifie d tha t he based none of his findings upon the MMPI, but rather upon other administered psychological tests.
Upon completio n of their deliberations, the j ury unanimously found (1) the murder was committed against a person less than twelv e years of

age and the defendant was eighteen years of age, or older, see Tenn. Code Ann. § 39-13-204(i)(2), and (2) the murder was especiallyheinous, atrocious, or cruel in that it involved torture
or serious physical abus

e beyond that necessary to produce death. See Tenn. Code Ann. § 39-13-204(i)(5). Finding no mitigating circumstances sufficiently substantial to5 W e not e the availa ble pu nish me nts fo r first- deg ree m urde r follow ing th e am end me nt are (1) death ; (2) imp risonm ent for life witho ut the pos sibility of parole; or (3 ) impriso nme nt for life. Tenn. Code Ann. § 39-13-2 02(b) (1993 Supp. ). Also f ollowi ng this dat

e, the l egislat ure requir es that ju rors be ins truct ed “th at a d efen dan t who rece ives a sent enc e of im priso nm ent fo r life sh all not b e eligib le for p arole cons idera tion u ntil the defe nda nt ha s se rved at leas t twen ty-five (25) f ull calendar y

ears of such sentence. ” Moreover, t he jury must be i nstructed t hat “a defendant who rece ives a sent enc e of im priso nm ent fo r life wit hou t the p oss ibility of p arole shall n ever be elig ible for releas e on par ole.” Ten n. Code Ann. § 39 -13-204 (e)(2) (19 93 Sup p.). 9 outweigh the statutory aggr avating circumstances , the jury returned a v erdict of death by electrocution.

I. Life without Parole Instruction

First, the appellant contends that the trial court erred by denying his request to instruct the jury regar

d ing the sentencing option of life without parole. Therefore,he asserts that the death penalty as applied in this case violates the Eighth and Fourteenth Amendments to the United States Constituti on and Article 1, Sections 8 and 16 of the Tennessee Constitution. The State responds that no constitutional v iolation occurred because the appellant ’s offense p redated the ad ditional sente ncing o ption of life without the possibility of parole.
The presentoffense occurred on March 17, 1990, p rior to the effective date of Tenn. Code Ann. § 39-13-204(f)(2) ( Supp. 1993) 5 ; however, his res entencing hearing occurred in August of 1997. The effective date of the sentencing option of life without the possibility of parole became applicable to all offenses committed on or after July 1, 1993. (Emphasis added). Before the effec tiv e date of this amen dment, o nly two punishments were available for those co nvic ted of fir st-deg ree murd er, life imprisonment or death. See Tenn. Code Ann. § 39-13-204 (amended 1993)

.

In a similar issue, the supr eme court in State v. Cauthern , 967 S.W.2d 726, 734- 736 (Tenn. 1998), reh’g denied , (May 18, 1998), cert. denied , -- U.S. --, 119 S.Ct

. 414 (Nov. 2, 1998), in which the relevant offense occurred prior to the effectiv e date of the sentencing option, held that the trial court lacked the statutory authority to instruct the10

jury with this option and that the statute did not apply retroactiv ely. See also State v. Bush , 942 S.W.2d 489, 503 n. 8 (Tenn. 1997), reh’g denied , (Apr. 28, 1997), cert. denied , -- U.S. --, 118 S.Ct.376 (Nov. 3, 1997); State v . Carte r , No. 02C01-9601- CR00002, (Tenn. Crim. App. at J ackson, May 5, 1997).
However, the appellant contends that the present case is disti nguishable from Cauthern(1) because Cauthernonly presented a statutory

challenge and the supre me court failed to address the constitutional issues presently raised by this appellant and (2) because Cauthernspecifically objec ted t o such an instruction at tr ial where the presentappellant specifically requested such an instruc tion. Therefore, the appellant
c ontends that limiting the applic ation to crimes committed on or after July 1, 19 93 , violates the federal and state constitutions.

We agree with the State th at Cautherncontrols. The trial judge instr ucted the juryappropriately based upon th e existing senten c ing options under the law of Tennessee at the time the offense. See Cauthern , 967 S.W.2d at 734-736; Carter , No. 02C01-9601-CR00002. At the time of the appellant’s offense, ther e was no constitutional requirement that a state hav e th e se ntencing option of life without the possibility

of parole. The legislature chose pr ior to the 1993 Amendm ent to on ly have two options of punishment for first -degree murder, those being life and death.

Because the jury was not pr ovided the option of considering as punis hment life without the possibility of parole, the appellant contends that the de ath penalty in this
case constitutes crueland unusual punishment. The appellant cites State v. Black , 815 S.W.2d 166, 189 (Tenn. 1991) for the proposition that the death penal ty in theinstant
case is cruel and unusual punis hment because without an option o f life without the p ossibility

of parole instruction it does not conform to “ contemporary standa rds o f decency,”and it “results in an excessive sentence ba sed on an illegitimate penolog ical interest.”However, the death pena lty in th e state of Tennessee has been found11

constitutional even without the sentencing option of life w ithout the possibility of parole. See e.g. , Black , 815 S.W.2d at 185-191; State v. B oyd , 797 S.W.2d 589, 597-599 (Tenn. 1990); State v. Thompson , 768 S.W.2d 239, 252 (Tenn. 1989).

Within this issue, the

appellant c

ontends that a ny statutor y sentenci ng scheme that omits the sentencing option of life without the possibi lity of parole where the death penalty is an option affects the reliability of the verdict and effect ive appell ate review. The appellant ass erts tha t a capital sentencing jury is often concerned with parole consi derations citing statistics contained within var

ious articles and law

review s . However, the record is void of ev ide nce wit h regard to any of the appellant’s contentions. See State v. Hall , 958 S.W.2d 679, 715 n. 6 (Tenn. 1997), cert. denied, -- U.S. --, 118 S.Ct. 2348 (1998); State v. Smith , 857 S.W .2d 1, 23 (Te nn. 1993). Moreover, as the State contends, neither the federal nor state constitutions requir e or forbid that par ole information or other sentenci ng information be given t o a capital sentencing jury. See Smith , 857 S.W.2d at 11 (citing State v. Bates , 804 S.W.2d 868 (Tenn.), cert. denied , 502 U.S. 841, 112 S.Ct. 131 (1991) and California v. Ramos , 463 U.S. 992, 103 S.Ct. 3446 (1983)). The Supreme Court allowed the states to determine whether the sentencing jury could consider parole cons ideration s. Ramo s , 463 U.S. at 1014, 103 S.Ct. at 3460. Tennessee has declined to ex tend such information to the jury.

Next, the appellant

again attempts to enter the back door to challenge the death penalty under the “ evolvingstandards of decency” in the state of Tennessee because of the omission of a life without the possibility of parol e instruction. In support of hi s contention the ap pellant cite s other states recently adding a life without parole as a sentencing option. The appellant mistakenly relies upon the provis ions of Utah Code A nn. § 76-3-20

7.5 (1995) wher

e the leg islatu re added the sent

encing option o

f life without the poss ibility of parole in which the requisite date applies to the defendant’s date of sentencin g. Th e Tennessee statute differs because our r equisite date is the12

date of the offense. See Tenn. Code Ann. § 39-13-204(f)(2) . The appellant also relies upon Miss. Code Ann. § 97-3-21 (1994) where the Miss issippi legislatur e a dded th is sentencing option which applies to resentencing proceedin gs following July 1, 1994. The State citescases from Maryland and Indiana w hich have statutes simil ar to that in Tennessee applying the option to those offenses occurring after a requisite date. Booth v. State , 608 A.2d 162, 173-174 (Md. 1992); Colli n s v. State , 568 A.2d 1 (Md. 1990); State v. Alcorn , 638 N.E.2d 1 242, 1246 (Ind. 1994). Both states found their statutes presented no constitutional v iolations tothe defendant or renderedtheir verdict any less reliable. Collins , 568 A.2d at 15; Boo th , 608 A.2d at 173-174; Alcorn , 638 N.E.2d at 1246.

We conclude that our sentencing scheme before the introdu ctio n of the l ife without possibility of parole option in no manner violates the appellant’s constituti onal rights, renders his jury v erdict any less rel iable, or hinders his appel late rev iew. The onlyoptions available for the appellant were instru ctions for death and life with parole,

and the tria l court w as without authority to instruct otherwi se. See Cauthern , 967 S.W.2d 726.

Next, the appellant argues that the de ath sentence rendered for purposes of incapacitation constitu tes excess ive punishment, especia lly without the benefit of a lif e without possibility of parole instr uction. Other factors in support of a death sentence include gen era l deterrence and retributi on. Those factors are appropriate for consideration by the legislature and not this court. B lack , 815 S.W.2d at 190. As stated previously, the se ntencing scheme u nder which this appellant w as sentenced has been repeatedly upheld by the Tennessee Supreme Court. Id. ; Smith , 868 S.W.2d 561 (Tenn. 1993).

The last cont ention of the appellant within this issue is that the trial court’s6 The defendants and thei r requisite date of of fenses are as fol lows: Jonat hon Stephenson (Cocke County #5012 -December 3, 198 9); Steven Lewis (White County # 9289F- March 30, 1992); Wayne Adkins (Washington County #13627 - March 30, 1992) ; and Bruce Reliford (Shelby Coun ty #93064 37- De cem ber 24, 1 992). 13 refusal of the life without the possibility of parole option violated the appell ant’s equal protection rightsunder the Fourteenth Amendment. The appellant claims that four defendants 6 who committed their offenses pri or to the July 1, 1993 date were “allowed the benefit of the life without parole sentence.” However, the appellan t has failed to sufficiently demonstrate, document, or cite that the juries in these cases were instructed
on life without the possibility of parole. Tenn. R. App. P. 27(h); Tenn. R. Crim. P. 10(b) and 19(c)(4). Nor hav e we found any evidence th at they were so inst ructed

. Moreover, if the juries

in these cases had been so inst ructed, the sentencing opti on of lifewithout the possibili

ty of parole was not y

et in effect. See Tenn. Code Ann. § 39-13- 204(f)(2) (amended 1993); Cauthern , 967 S.W.2d 726.

In addition, to bring an effectiv e claim for an equal protecti on violat ion, the appellantmust prove that the legi slature enacted the life wi thout pa rol e amendment with a discriminatory pur pose. McCleskey

v. Kemp , 481 U. S. 279, 107 S.Ct. 1756 (1987); State v. Irick , 762 S.W.2d 121, 129 (Tenn. 1988); Sta te v. Porterfield , 746 S.W.2d 441, 451-452 (Tenn. 19 88). H ere, the appellant has failed to meet the standar d impos ed upon him. For the above sta ted reasons, this issue, as well as its numerous sub-issues, are mer itless.

II. Failure to Infor

m Jury of Parol e Eligibility in Twenty-Five Y

ears

The appellantasserts that the trial court’s failure to inform the jury that he would be required to serve twenty-five years for a life sentence violated his federal and state constitutional rights under the Eig hth and Fourteenth Amendments of the United States Constitution and Article I §§ 8 and 16 of the Tennessee Constitution. Also, he ar gues that the omission of such an instruc tion violates due process under Simmons v. South14

Carolina , 512 U.S. 154, 114 S.Ct. 2187 (19 94). Spec ifically, he contends that such an omission allow

s the ju ry to s peculat e and unde restima

te the am ount of t ime a defendant must serve.

In essence, this appellant inv ites us to overrule our supreme court which we are unable to do. See Keen , 926 S.W.2d at 73 8; Smith , 857 S.W.2d at 11; Bates , 804 S.W.2d at 881-82. Regarding the extension of du e process under Simmons, we decline the appellant’s invitation for the same reason. See Bush , 942 S.W.2d at 502- 503; State v. Caughron , 855 S.W.2d 526, 543 (T enn. 1993); State v. Payne , 791 S.W.2d 10, 21 (Tenn. 1990), aff’d , 501 U.S. 808, 111 S.Ct. 259 7 (1991). Accordin gly, the issue is without mer it.

III. Sufficiency

of the Agg ravating Circumst ance

The appellant challenges the s ufficiency of the evidence to support Tenn. Code Ann. § 39-13-2 03(i)(5) (1 989 Supp .) in that “[t]he mu rder was esp ecially hein ous, atrocious, or cruel in that it involv ed torture or serious phy sical abuse beyond that necessary to cause death.” Specifica lly, he c ontends that the evidence did no t establish torture or serious physica l abuse. The State contends the agg ravating circumstance was establ ished beyond a reasonable doubt.

Our standard of appellate revie w for t he sufficiency of an aggrav ating circumstance is whether the aggravating factor has been established beyond a reasonable doubt. See State v. Willia ms , 690 S.W.2d 517, 530 (1985) (citing Jackson
v. Virginia , 443 U.S. 307, 317, 99 S.Ct. 2781, 2789 (1979)). “Torture” has been defined
as “the inflic

tion of seve re physic

al or mental

pain upon the victim wh ile he or she remains alive and conscious.” Williams , 690 S.W.2d at 529; see also State v. Blanton , 9 75 S.W.2d 269, 280 (Tenn. 1998), petition for cert. filed , (Dec. 2, 1998 ); State v

.15

Odom , 928 S.W .2d 18, 2 6 (Tenn. 1996). “[ S]erious physical a buse beyo nd th at necessary to produce death” means just that ; the re must be serious physi cal, not mental, abuse, i.e. , “an act that is ‘excessi ve’ or which makes ‘improper use of a thing’
or which uses a thing ‘ in a manne r contra ry to the natural or legal rules for its use.’” Odom , 928 S.W.2d at 26 (quoting Black’s Law Dictionary 11 (6th ed. 1990 )).

In th e case sub judice , the victim suffered at the hands of her moth er’s li ve-i n boyfriend. The appellant took the victim for a drive lasting approximately thirty minutes to a remote location. A struggle ensued within the car in which the victim’s head hit the
cardoor. The appellant totally undres sed the victim. By hi s own admission, t h e appellant, while lying o n top of the sixty-eight pound victim, penetrated and manually strangled the victim. The m ed ical examiner testified that the victim suffered from multiple scrapes and bruises to her face which had nothing to do wit h the ligature strangulation. More over, she experienced tears, bruises, and scrapes to her vaginal
area while alive. The appellant’s brutal rapeof his helpless victi m stopped only after she began t

o defe cate and turn ed blue. He then proceeded to strangle her with his shoestring until she slowly suffocated to death. Her lifeless bod y was then thrown

into the river. The medical ex aminer testified that deathwould have occurred in a matter of minutes and if not, then unconsciousness. Given the manner in which this eight-year old endured the final minutes of her life, certa inly a ra tional juror could infer from the above evidence that the vic tim wassubjected to torture and that the murder involved serious physical abuse beyond that necessary to produce dea th. See Cauthern , 967 S.W.2d at 733-34 (holding e vidence su fficie nt of (i)( 5) aggravat or wh en victim was unconsciousthirty seconds into at tack); State v. Shepherd , 902 S.W.2d 895 (Tenn. 1995) (holding evidence sufficient of (i)(5) aggrav ator where victi m died of asphyxiation and suffocation); Caughron , 855 S.W.2d at 543-44 (evidence sufficient to suppor t (i)(5) aggravator

where defendant beat, attempted to rape, and strangled victim); State v

. Johnson , 743 S.W.2d 154 (Te nn. 198 7), cert. denied , 485 U.S. 994, 108 S.Ct. 1303 (1988) (evidence sufficient for (i )(5) aggravator where victim died from suffocation four16

m inut es into attack). According ly, we conclude that there is sufficient evidence from which a rational juror could find this aggravati ng ci rcumstance beyond a reasonable doubt. This issue is wi thout merit.
IV. Heinous, Atrocious, or Cruel Jury Instruction

In his initial challen ge to the (i)(5) jury instruction, the appellant claims it denied his constitutional right to a unanimous jury verdict. The trial court instructed the jury as follows: [T]he murder was especial l y heinous, atrocious, or cruel, in that it involved torture or serious p hysic al abuse beyond that necessar y to produce death. The appellant asserts that becaus e the instruction was

given in the “disjunctive” i n that the jury could find“torture” or “phy sical abuse,” then there i s no way to determine if all twelve jurors unanimously ag reed on the facts to support or its basis for fin ding this aggravating

circumstance. The

appellantmistakenly relies upo n State v. Shelton , 851 S.W.2d 134 (Tenn. 1993) and S tate v. Brown , 823 S.W.2d 576 (Tenn. Crim. App. 1991) to support his contention. H owever, as the State as serts, both S he lton

and Brown involved separate criminal actions on separate dates a nd n ot one continuous criminal occurrence as in the instant case. Addition ally, the t rial court instruct ed the ju ry, Tennessee law provides that no death penalt ie s shall be imposed by a jurybut upon a unanimous finding that the State h as proven beyond a reasonable doubt the existe nce of o ne or more of the statutory aggravating ci rcumstances. . . And each of the jurors signed the unanimous verdict indic ating their approval

of both aggravating

factors. We conclude that the trial court prope rly instructed the j ury under the law as to the aggr

avating circumstance. See T.P.I. § 7.04(a) (4thed. 1995); Tenn. Code Ann. § 39-13-204(i)(5). The refore, no supplementary i nstructions were necessary in this case, nor was the appellant’s constitutional right to a unanimous jury verdict abridged. This issue is without merit.17 Second, the appellant asserts that the j ury instruction of the ( i)(5) aggravating circumstance fails to narr ow the class of persons el igible for the death penalty in that the instruction fails to contai n a specific intent to tortur e or to inflict serious

bodily inju ry. In support of his contention, he cites Wade v. Calderon , 29 F.3d 1312 (9th Cir. 1994). The State contends that the issue i s waived because the appel lant failed to request a specific instruction requiring specific intent to the trial court , and also for the appellant’s failure to raise this issue within its motion for a new sentencing hearing under Tenn. R. App. P. 36(a) and Tenn. R. App. P. 3(e). Notwithstanding waiver of this issue, dueto the qualitative differences be tween death and other sentences, the appellat e courts of this state consider issues oc curring during the sente ncing hearing in a capital c ase. See State v. Bigbee , 885 S.W.2d 797, 805 (Tenn. 1994); State v. Duncan , 698 S.W.2d 63, 67-68 (Tenn. 1985), cert. denied , 475 U.S. 1031, 106 S.Ct. 1240 (1986). Thus, we elect to consider the issue on the merits.

The Tennessee SupremeCourt has held that the lang uage of Tenn. Code Ann. § 39-13-204 (i)(5) is

sufficient to narrow the cl ass of those o ff enders eligible for the death penalty. Odom , 928 S.W.2d at 26. Moreover, the supreme co urt has held that the defendant ’s intent in causi ng the torture was irre levant under this aggr avatin g circumstance. Blanton , 975 S .W.2d at 281; see also Odom , 928 S.W.2d at 25 n. 5 (declining to extend specific intent to serious p hysical ab use pron g). Accord ingly, this issue is without meri

t.
V. Special Request Instructions

The appellant contends that the jur y instruction rega rding the (i)(5) aggravating circumstance should require a two-step process. The appellant made an oral special request forsuch an instruction corr ecting the language of the s tatute at the sentencing hearing. The trial court instructed the jury a s follows, “the murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abus

e beyond7 First , the S tate c onte nds the a ppe llant h as w aived this is sue base d upo n Te nn. R . Crim

. P. 30 because the appel lant fai led to fi le a wri tten copy of the speci al request citi ng State v. Mackey , 638 S.W.2d 830, 836 (Tenn. Cr im. App. 1982). However, appel lant’ s counsel did file a motion in l imine prior to tri al requesti ng this speci al inst ruction. Second, the State clai ms the appellant

has waived th is issue under Tenn. R. App. P. 3 (e) for its fail ure to speci ficall y state the issue wit hin it

s motion for a new sent encing heari ng. Certai nly, the appell ant could hav e been more specific st

ating hi s issue wit h more particul arity ; however, the argument at the t rial l evel and at the m otion for the new se ntencing hearing u nder this h eading a ddress ed this distinc t issue. 18 that necessary to produce death.” (Emphasis added). The appel lant asserts that the ins truction should read as follows, “ the murder was especiall y heinous, atrocious, o r cruel and that it involved tor ture or serious physi cal abu se b eyond that necessary to produce death.” (Emphasis added). 7

As stated previously, the Tenness ee Supreme Court has held this particular aggravator

sufficient to narrow the class of death eligible defenda nts, see Odom , 928 S.W.2d at 26. Moreover, the tr ial court charged the j ury on th e a pplicabl e law, therefore the court ’s refusa l to give the special request is not error

. State v. Story , 608 S.W.2d 599, 603 (Tenn. Crim. App. 1980). This iss ue is without merit.

Next, the appellant contends that the tr ial court erredb y failing to charge a separate special request instr uction rega rding circumstantial evidence. Thus, he argues this failure resulted in a violation of state law, due process, equal protection, and “heightened reliability require m ents” under the Sixth, F ourteenth, and Eighth Amendments to the United States Constitution respec tively. The

trial judge instruc

ted the jury as follows that: [a]ny fact required to be proved may be established by direc t evidence, bycircumstantial eviden ce, or by both combined. Di rec t evidence is defined as evidence which pr oves th e existenc e of the fact in issue without infer ence o r presumption. Direct ev idence may consist of testimony

of a person who has

perce ived by the means of his or her senses the existence of a fact sought to be prov ed or dispr oved. Circumstantial evidence consists of proof of collateral facts and circumstances

which do not directly prove the fact in issue but from which that fact may be logicall y inferred.
Because the appellant pled guilty to the charge of first-deg ree murder in perpetration of a rape, the appellant request ed the following special instruction be19

charged: When evidence o f a fact re quired to be proved is made up entirely of circumstantial evidence, then before you would be justified in finding the fact required to be proved,you must find that all of the essential facts are consistent

with the finding of the fact required to be proved,and the facts must exclude every other reasonable theory ex cept that of the fact required to be proved.
The appellant claims the special request instruction is simply a modified vers ion of the optional supplemental language provision of T.P.I. Crim. 42 .03 (4th ed. 1995), omitting any reference to innocence or guilt in an effort to comply with the sentencing phase. Although the appellant concedes that the evidence in support of the “heinous, atrocious, or cruel” aggrav ator consisted of both direct and circumstantial evi dence, he contends that the evidence in support of the “torture prong” w as entirely circumstantial thereby justifying the specia l request “alternativ e instruction”

citing State v. Thompson , 519 S.W.2d 789 (1975).

However , in the appellant’s brief, he ig nored the direct evidence from the appellant’s own admissions from which the jury could have found “torture.” See Monts
v. State , 379 S.W.2d 34, 40 (Tenn. 1964) (holding defendant’s confession to crime as direct evidence). A case is not based solely upon circumstantial evidence simpl y because the jury had to reach their decision dr awing inferences

from direct evidence established by the facts of the case. See State v. Curtis , 1987 WL 26370 (Tenn. Crim. App. at Jackson, Dec. 9, 1987), perm. to appeal granted on other grounds , (Tenn. April 4, 1988). At

oral argument, the appellant conceded that there was direct evidence from which the jury could have found “torture;” however, he argued that the jury could have disregarded the direct evidence and been left wit h so lely circumstantial evidence. The refor e, he argues under Thompson , that since both direct and c ircumstantial evidence existed and the request was made, the trial court’s failure to instruct the jury regarding the wei ghing of circumstantial evidence constitutes rev ersible error.
Initially, we note

it is theduty of the trial court to giv e a complete charge of the20

law germane to thefacts of the case. Thompson , 519 S.W.2d 789, 79 2 (Tenn. 1975). When the evidence in the case is entirelycircumstantial, the trial court must instr

uct the jury regarding

the law of weighing

circumstantial eviden ce even without a request for that instruction or rev

ersible error is committed. Id. However, when th e evidence consistsof both d irect and circumstantial evidence, such an instr uction must only be given if the defendant makes a request; w ithout that request, no err or is committed. Id. (citing Monts , 379 S.W.2d at 40).

In the case sub judice , we conclude t hat the e vidence regarding “torture” was both direct and circumstantial. The court erred in failing to instruct the jury

on weighing circum s tantial evidence as requested. See Thompson , 519 S.W.2d at 792. Nonetheless, we hold this error to be harmless. In Deal v. State , 541 S.W.2d 807 (Tenn. Crim. App.), cert. denied , ( Tenn. 1976 ), the trial court failed to charge the reque sted circumstantial evidence instruct ion and citing Thompson held the error harmless. This court recited as follows: Under the facts here, however,where the pl ain tiff-in-error , through testimo ny, inculpates himsel f in the burglary, w e find the error to be harmless. The deducible fact to have been determined by the secondary facts was his participation. This was convenientl y made directly ev

ident by his testimony. The only element left for the jury was his intent under these facts. To have given the charge would no t have bee n of any necessary aid to the jury in ev aluating the evidence i n view of the testimony

as given by the plaintiff-in-error. Deal , 541 S.W.2d at 808 (citation omitted).
We conclude that from the appellant’s own admissions the jur y could have clearlyinferred acts of “torture” upon the victim thereby renderi ng this instruction of minimal assistance to

the jury in determining the validity of this aggravator. Fi nding the error to be harmless, thi s issue is without mer it.
VI. Sympathy Instruction

The appellant challenges the tr ial cou rt’s denial of the appellant’s motion to instruct the jury tha t it could consider sympathy as established by the proof as a8 "You should i n no case all ow mere sympathy or prej udice solel y to i nfluence y

our verdict but should l ook to the l aw and all the facts and ci rcumstances proven in the evidence to determine the verdict.”

9 As th e Sta te po ints o ut, the appe llant o nly cha llenge s the dism issa l of thr ee ju rors in his motion for a new trial. Although th e challen ge to the fo urth juror h as bee n waived , this Cour t opts to consider this ju ror because of t he qualit ative di fference between a death penalt y sentence and other se ntence s. See Bigbee , 885 S.W .2d at 805

. 21 mitigating circumstance cit ing Parks v. Brown , 860 F.2d 1545 (10th Cir. 1988). He cites
no authority from this state on this issue. In addition, he asserts that the combined antisympathy

charge 8 given by the judge in combinati on with this denial w as a violation of the Eighth Amendment by limiting his mitigation ev idence.

This very issue w

as rejected in the appellant’ s first direct appeal. See Keen , 926 S.W.2d at 739 (citing Californ ia v. Brown , 479 U.S. 538, 107 S.Ct. 837 (1987)); Saffle
v. Parks , 494 U.S. 484, 110 S.Ct. 1257 (1990) ; Boyd , 7 97 S. W.2 d a

t 5 98 . We

conclude the trial court properly

instructed the jury that it could not consider s ympath y. This issue is without meri

t.
VII. Batson Challenges

The appellant contends th a t the State excluded four African-American jurors 9 with its peremptory challen ges in violation of Ar ticle I, Section 8 of the Tenn es see Constitution and the Fourteenth Amendment to the United States Constitution. Und er the authority of Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712 (1986 ) , he urge s reversal of the se ntence. The appel lant cha llenge s the di smissal

of Juror s McVay, Humphreys, Wilkes, and Houston.

To invoke

the prot ections of Batson , the defendantmust establish a prima facie
case that a juror is being challenged on the basis of race or gender. Batson , 476 U.S. at 94, 106 S.Ct. at 1721; Purkett v. Elem , 514 U.S. 765, 767, 115 S.Ct. 1769, 1770-71 (1995); State v. Jones , 789 S.W.2d 545, 54 8 (Tenn. 1990). Once the defendant has presented a prima facie ca se, the trial court shall r equire the State to giv e a race-22

neutral reason for the challenge. Batson , 476 U.S. at 94, 106 S.Ct. at 1721; Purkett , 514 U.S. at 767, 115 S.Ct. at 1770-71. See also State v. Bell , 759 S.W.2d 651, 653. “The race or gender neutral explanation need not be persuasive, or even plausible

. .

. . Unless a discriminat

ory intent is inherent

in the [proponent’s] expl anation, the reason offered will be deemed race neutral.” Purkett , 514 U.S. at 767, 115 S.Ct. at 1770-7 1. If a race or gender neutral explanation is given, the court must then determine, given all the circumstances, whether the defendant has estab lished purposeful discriminatio n. Batson , 476 U.S. at 96-98, 106 S.Ct. at 1723 -24; see also Purkett , 514 U.S. at 767, 115 S.Ct. at 1770-71. Although a tri al court must accept a faciall y race-neutral expl anation forpurposes of determining whether the propon ent has satisfied his burden of production, this does not mean that the Court is bound to believe the ex plana ti on in making its determination. In other words, while the co urt may f ind that a proffered explanation is race-neutral, the cou rt is not required, i n the final analysis, to find that the proffered explanation w as t he actual reason for striking the juror. If the court determines that a race or gender based motive w as behind the challenge, the juror may not be excluded. Woodson v. Porter Brown Limestone Co.,Inc. , 916 S.W.2d 896, 903 (1996).

In making its determination , the trial court must look to the totality of the circumstances

for rarely will a party admit that its purpose in strikin g the j uror was discrimin atory. Accor dingly, the trial court may infer discri minatory intent from circumst antial e vidence. “The factfinder’s di sbelief of the reasons put forth by the defendant (particularly if disbelief is accompanied by a suspicion o f men dacity) ma y, together with the elem e nts of a prima facie case, suffice to show intentional discrimination, and .

. . no additional proof of discrimination is required.” St. Mary’s Honor Center v. Hicks , 509 U.S. 502, 511, 113 S.Ct. 2742, 2749 (1993). Addition ally, the court may consider whether similarly situated members of another race were s eated
on the jury or

whether the race-neutral explanation proffered by the strikes’ proponent is so implausible or

fantastic that it renders the explanation pretextual.The trial court10 We note, at this j uncture, t hat the recor d reflect s two juror

s named Houston. The app ellant does not s pec ifically in dica te wh ich Ju ror H ous ton h e is ch alleng ing. In his br ief, it appears that h e is chall enging the f irst Jur or Houston. However,the State refers to the second Juror Houston when exercising it s peremptory chal lenge. The recor d reflect s that th e challenged 23 mayalso consider the

demeanor of the attorney who exercises the challenge which is often the best evidence of the credibility of his

proffered explanations. See Hernandez v. New York , 500 U.S. 352, 365, 111 S.Ct. 1859, 1868-69 (1991).

B ec ause a trial record alone can not provide a legiti mate basis from which to substitute an appellate court opinion for a trial court’s findings, the trial court must carefully articulate its f indings on the record. The trial court has the opportunity to both visually and audi torially ob serve the demeanor of both prospective jurors and counsel, and ac cordingly, eval uate their credibility

. See State v. Smith , 893 S.W.2d 9 08, 91 4 (Tenn. 1994), cert. denied , 516 U.S. 829, 116 S.Ct. 99 (1995) (citing State v. Ellison , 841 S.W.2d 824, 827 (Tenn. 1992)). On appe al, the trial court’s findings are to be accorded great deference and are not to be set as id e by this court unless clearly
erroneous. S ee Wo odson , 916 S.W .2d at 906 (citin g In re A.D.E. , 880 S.W.2d 241, 243 (Tex. App. 1994); Smith , 893 S.W.2d at 914.

In the present case, in a hearing outside the presence of the jury, the trial court found that defense counsel had not demonstrated a pattern of discrimination; however, the court had the State place their reasons into the record. W it h regard to Juror McVay, the State challenged her because of her initial re s ervations about the death penalty. Juror Humphreys was chal lenged because of her relationship with defense counsel and her

c oncern for the care of her child and mother. Juror Wilkes was challenged because he sm il ed and laughed inappropriatel y when asked about the factors used in determining whether to impose the deat h penalt y. He also stated that he would “rather be out roofing.”
Concerning Juror H ouston, the appellant contends that the Stat e’s reason forexercising its challenge was simply unfounded. 10 The State contend s that Jurorjuror was Rosie H ouston

. 24

Houston was uncertain in her r espons e to impose the death penalty. M oreover, the State felt she was garrulous and would be an irritant in the jury room. The trial court did not “find any basis for any gender or race problems in the Batson matter and will overrule your

objection.” (Italics added). We agree with the trial court that the appellant has failed to establish a prima facie case of purposeful discrimination. In addition, the record r eflects the trial court’s finding that the proffered reasons for the peremptory strikeswere not racially motivated and the tr ial court’s finding was not clearly erroneous. Thus, this issue is without merit.

VIII. Individual Vo ir Dire

Due to the trial court’s deni al of individual voir dire, the appellant

contends that his right to an impartial jury and dueprocess were vi olated as guaranteed by the Six th and Fourteenth Amendment of the United States Constituti on because it impaired his right to use his p eremptory challenges. The State contends the trial court acted appropriately.

The ultimate goal of voir dire is to insure that ju rors ar e competent, unbiased, and impartial. Cazes , 875 S.W.2d at 262; State v. Howell , 868 S.W.2d 238, 247 (Tenn. 1993), cert. denied , 510 U.S. 1215, 114 S.Ct. 1339 (1994). “Indi vidual voir dire is mandated only when there is a ‘significant possibil ity’ that a juror has been exposed to potentially prejudicial material.” Harris , 839 S.W .2d at 65 (citing Porterfield , 746 S.W.2d at 447); Howell , 868 S.W.2d at 247. Here, the appellant does not allege the presence of any potentially prej udicial material. There i s no support i n the r ecord of prejudice regarding group voir dire of the jurors’ views of the death penalty. See Harris , 839 S.W.2d at 65; Cazes , 875 S.W.2d at 262. The Tennessee Supreme Court has repeatedly held that death qualification of jurors is not req uired to be conducted by individual, sequestered voir di re. See State v. Stephenson , 878 S.W.2d 530, 54025

(Tenn. 1994) (citing Smith , 857 S.W.2d at 19). The decision of the trial court denying individual voirdire of the venire remains within the sound discr etion of the court, and will not be reve rsed by thi s Court abse nt a finding of “ma nifest error.” Howell , 868 S.W.2d at 247-248.

The appellant filed a pre-trial motion requesting

individual voir dire for pre-tr ial publicity and the juror’s view

s on the death penalty. The motionwas renewed before the beginning of the proceedings. The trial court denied the motio n; however, the appellantconcedes, that if necessary, the cour t would have allow

ed questioning at the bench. The appellant has failedto demonstrate any prejudic e resulting from the trial court’s decision. Therefore, we con clude that the trial court did not abuse its discretion in denying the motion for i ndividual voir di re. This issue is without merit.

In addition, the appellant contends that his equal protection rights under the Fourteenth Amendment t o the United States Constitution were violated because individual voir dire is granted routi nely in counties other than Shelby County. The State contends this issue was waived pursuant to Tenn. Ct. Cr im. App. R 10(b) because the appellant’s brief and the record contain no evidence of these allegations. To prevail upon a claim of an eq ual protection violati on, the appellant bears the burden of proving “the existence of purposeful discrimination. . .” and that such discrimination had “a discriminatory effect on him.” Irick , 762 S.W .2d at 129 (citin g McCleskey , 481 U.S. at 279, 107 S.Ct. at 1766; see also Keen , 926 S.W.2d at 739. Here, the appellant has failed to carry the

burden imposed upon him. For the above stated reasons, this issue is meritless.
IX. Introduction of Photographs

The appellant contends that the trial court erred by allowing the State to introduce, over objecti on, two photographs of the victim, one taken before her death26

and the other a po stmorte m photog raph, be cause th e probat ive value was substantially outweighe d by the unfair prejudice. The first picture was identified by the victim ’ s grandfather which the court introduced solely for identification purposes. Thereafter, Officer Wilson identified the victim in the picture a s the same pe rson that was discovered in the Wolf River. The trial court admitted th e picture into evidence finding the picture relevant to the identity of the victim and to the nature of the crime.

Throu gh the testimony of Dr. Franc isco, the State introduced a pos tmorte m photograph of the victim. The picture corroborated the medical examiner’s testimony of the cause ofdeath and method of strangulation. The trial court admitted th is picture into evidence based upon its relevance to the heinous, atrocious, or cruel aggravator and the other circumstances of the murder.

The appellan t argues th at the pic tures sho uld have b een exc luded because identity and the cause of death were uncontested issu es. Moreover, he arg ues that the evidence of the second photograph was i nflammatory and cumulati ve of the medical examiner’s testimony.

Tennessee courts have followed a policy of libe ralit y in the admission of photographsin both civil and c rim inal cases. State v. Banks , 564 S.W.2d 947, 949 (Tenn. 1978). “The admissibility of photographs lies within the disc retion of the trial court.” Id. The court’s “ruling, in this respect, will not be overturned on appeal ex cept upon a clear showing of an abuse of discretion.” Id. (citations omitt ed); see also Stephenson , 878 S.W.2d at 542; State v. Bordis , 905 S.W.2d 214, 226 ( Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1995). However, before a photog raph may be admitted into evidence, it must be relevant to an issue that the jury must decide and the probative value of the photographmust outweigh any pr ejudicial effect that it ma y have upon the trier of fact. State v. Braden , 867 S.W.2d 750, 758 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1993) (citation omitted); see also Tenn. R. Evid. 401 and 403.11 This cour t has prev ious ly held th at a p hoto grap h of th e dec eas ed du ring h er lifet ime is admissible at the gui lt phase of the tri al to establ ish the corpus delicti in a homicide case when the question involves the subord inate issue of the iden tity of the dece ased n ame d in the indictm ent. See State v. Ne sbit , No. 0 2S0 1-97 05-C R-0 004 3 (T enn . Sep t. 28, 1 998 ) (for public ation ), app end ix at p. 10. 27 The record indicates that the first photograph was offered by the State to establish the victim’s identity. We agree with the appel lant that the identity of the victim was not a

t issue at the appellant’s resenten cing hea ring; and, therefore, we find that this photograph was irrelevant11 . However, we conclude that its ad mission, altho ugh erroneous, was without prejud icial impact upon the jury and constitutes harmless error. See Tenn. R. Crim. P. 52(a).

With regard to the postmortem photog raph, our supreme court has hel d tha t photographsmay be introduced in order to illustrate t estimony. Stephenson , 878 S.W.2d at 542. Moreover, t he decision to admit or limit cumulative evidence r ests within the sound discretion of the tri al court. State v. B rown , 836 S.W.2d 5 3 0, 553 (Tenn. 1992) (p hot ographs of victim’s body admissible despite oral t estimony “graphica lly” describing victi m’s injuries). See also State v. Van Tran , 864 S.W.2d 465, 477 (Ten n. 1993), cert. denied , 511 U.S. 1046, 114 S.Ct. 1577 (1994) (color photographsof deceased victims at scene of crime were admissible despite introduction of extensive color videotape showing v

ictims’ bodies as

they were found). In any event, a

relevant photograph is not rendered inadmissible merely because it is cumulative. Bigbee , 885 S.W.2d at 807; Van Tran , 864 S.W.2d at 477. See Smith , 893 S.W.2d at 924 (photographs of vi ctim appropriately admit ted for establishing “heinous, atrocious, crue l” aggravating factor).

All photographsof dead bodies, especially those involving de ath by a criminal agency, are disturbing to the average person. After view ing the postmortem photograph, we find nothing pa rticularly gr uesome in its nature beyond that which is accurately depicted. Here, the photogr aph was relevant to s upplementand clarify the testimony

of the medical examiner and the officer in establishing the

cause ofdeath,28

see Stephenson , 878 S.W.2d at 542, and to the show the brutality of the attack and extentof force used against the vi ctim, from which the jur y could in fer the “heinous, atrocious, or

cruel” aggravator. See Brown , 836 S.W.2d at 551; see e.g. , Payne , 791 S.W.2d at 19-20; State v. Miller , 771 S.W.2d 401, 403-404 (Tenn. 1989); Porterfield , 746 S.W.2d at 449-450; State v. McNish , 727 S.W.2d 49 0, 49 4- 49 5 ( Te nn . 1 98 7) . We conclude that the

probati ve val ue of this

photogr aph fa r outwei ghed its prejudicial impact. Therefore, this issue i s without merit.

X. Victim’s Impact Reference During Closing Argument

The appellan t argues that the prosec utor used improper victim impact references during his closing argument to the jury. The State contends that since appellant’s counsel offered testimony for the impact upon the appellant’s family as king the jury to spare his life, the prosecutor’s comment on the evide nce was not inappropriate because it merely show ed that the victim’s family had also suffered.

The trial court excluded victim impact evidence as irrelevant in the case-in-chief and rebuttal, but allowed th e State to argue inferences of proof in th eir closing argument. The contested portion of the argume nt is: The defendant’s family asks you to spare the defendant’s life. Don’t you think that Nicki Reed’s family would have g iven anything they had to be out on that boat dock begging this defendant not t o kill Nicki? Don’

t you think they would giv

e anything they had not to have to go to bed at night knowing that their little eig ht-year old baby died at the bottom of the Wo lf Rive r , naked, violated, cold and a lone? Don’t you think, l adies and gentlemen, they would give anything they had tobe able to say -- to tuck little Nicki in bed at night and say, honey, that monster wasn’t real. Specifically, the appella nt contends this argument was improper because only evidence relating to the aggravatin g or m itigating circumst ances is relevant in a sentencing hearing, and therefore “arg ument abo ut irrelevant matte rs is improper” citi ng Cozzolino

v. State , 584 S.W.2d 765, 76 8 (Tenn. 1979). Additionally, he states that this “inflammatory argument” caused the jury to impose the death penalty in an “arbitrary29

and capricious manner” thereby diminishing his rig hts underthe Eighth Amendment with an emotional appeal.

There exists no per se bar under

the Eighth Amendment to the admissi bility of victim’s impact evidence. Nesbit , No. 02S01-9705- CR-0004 3; Payne v. Tennessee , 501 U.S. 808, 111 S.Ct. 2597 (1991) ; Bigbe e , 885 S.W.2d at 811-812. Thus, the appellant’s constitutional challenge is excluded. As to the appellant’s challenge under
our sentencing

scheme, our s upreme court recently observed, “the impact

of the crime
on the victim’s immediate family is one of those myriad factors encompassed within the statutory language nature and circumstance s of the crime .” Nesbit , No. 02S01-9705- CR-00043; see Tenn. Code Ann. § 39-13-204(c). This holding in Nesbit permits only t hat victim i mpact evidence which i s not so prejudicial “that it renders the trial fundamentally unfair,” Nesbit , No. 02S01-9 7 05-CR-00043 (cit ing Payne , 501 U.S. at 825, 111 S.Ct. at 2608) o r that which should be exc lud ed under Tenn. R. Evid. 403. A s well, prosecutorial argument of victim impact evidence must be exercised wit h restraint. Nesbit , No. 02S01-9705-CR -00 043 (“inflammatory rhetori c that divert the jury’s attention from its proper rol e or invites an irr ationa l, purel y emotional response to the evidence is not permi ssible and should not be toler ated by the court.”).

In order to determine whether the prosecutor’s comment requires reversal, we must determine whet he r the argument “affected the ver dict to the prejudice of the defendant.” Bigbee , 885 S.W.2d at 809 (quoting Harrington v. State , 215 Tenn. 338, 385 S.W.2d 758, 759 (1965)). Our supreme court has outlined the following factors for us to consider: (1) the conduct complained of view ed in l i ght of the facts and circumstances of the case: (2) the curative measures undertaken by the court and the prosecution; (3) the intent of the prosecutor in making the improper argument s; (4) the cumulative effect of the improper conduct and any other errors in the record; and12 W ithin this i ssue the appellant challenges Ten n. Code Ann. § 39-13-2 04(i)(4), (i)(5), (i)(6) , and (i) (7). I n this case, the State only r elied upon Tenn. Code Ann. § 39-13-2 04(i)(2) and (i)(5) . Therefore, the appell ant is wi thout stan ding to chal lenge (i )(4), ( i)(6), and (i)( 7). The constitu tional ity

of (i) (5) is addr

essed previousl

y in t his opini on. 30 (5) the relative str

ength and weakness of the case. Nesbit , No. 02S01-9705-CR-00043. We conclude that the State di d not o ver emphasize the vi ctim impact evidence in i ts closing argument. Nothing in the record indicates that the prosecutor acted in bad faith

. Even though the trial court al lowed the prosecutor to argue v ictim’s impact inferences from the evidence, the trial court instructed the jury, the court has read to you the agg ravating circumstan ces which the law requ ires you to consider if you find that they have been establ ishe d b y the evidence beyond a

reasonable doubt. You shall not take account

of any other aggravating

facts or circumstances as the basis for decidi n g whether the death penalty

would be appropriate punishment in this case.
The jury was instr

ucted not to consider vic tim impact evidence to deter mine whether or not to im pose the death pe nalty. It is well settl ed in the stateof Tennessee that a jury is presumed to have followed a trial c ourt’s inst ructions. State v. Lawson , 695 S.W.2d 202, 204 (Tenn. C rim. A pp. 1985); State v. Blackmon , 701 S.W.2d 228, 233 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1985). In light of the strong evidence against theappellan t in support of the aggrav ating factors, we beli eve the prosecutor’s comment in no manner affected the verdict rendere d b y the jury. Therefore, this issue is w ithout merit.
XI. Constitutionality of the Death Penalty

The appellant concedes that the constitutionality of the death penalty has been upheld by the Tennessee Supreme Court, h o wever, he raises the following issues in order to preserve t h em for later review. The appellant contends that (1) the death pen alty statute fails to meaningfully narrow the class of eli gible defendants 12 ; (2) the prosecution has unlimited discretion in seeking the death penalty; (3) the death penalty is imposed in a discrimi natory manner based upon economics , race, geography, and13 We note that this of fense occurred pri or to the sup reme court’s deci sion in Bland, however, we bel ieve the sup reme court’s di ctate i n Bland that all parties a ddress proportion ality revie w in th eir brie fs ap plies t o all ap pea ls follo wing this d ecis ion, in clud ing th e app eal of this resente ncing he aring. To assist thi s Court in f ulfil ling our statutor

y duty , the Stat

e and the defendant in each case must fully brief t he issue by sp ecifical ly i dentify ing those si milar cases relevant to th e com parative p roportion ality inquiry. Bland , 958 S.W.2d at 667 (emphas is added). At oral ar

gument, appell ate counsel st ated that

he deemed it unnecessary to address proporti onalit

y revi ew because the supreme court on direct appe al had previ ously fo und impo sition of the d eath pen alty in this case proportion ate. See Keen , 926 S.W .2d at 743 -744. 31 sex; (4) there are no uniform standards for jury sel ection; (5) juries tend to be prone to retu rning guilty verdicts; (6) the defendant is denied the opportunity to address t h e jury’s popular misconceptions about parole eligibility, c ost of incarceration, deterrenc e, and method of execution; (7) the jur y is in struct

ed it mus

t unanim ously a

gree to a life sentence, and is preventedfrom being told the effect of a non-unanimous verdi ct; (8) courts fail to instruct the juries on the meaning and function of m itigating circumstances; (9) the jury is depriv

ed of making the final decision about th e death penalty; (10) the defendant is denied the final argument during the sentencing ph ase; (11) electrocution is cruel and unusual pu nishment; and (12) the appellate review process i n death penalty cases is consti

tutionally inadequate.

These issues have repeatedly been rejected by our supr eme court. See Smith , 893 S.W.2d at 908; Brimmer , 876 S.W.2d at 75; Cazes , 875 S.W.2d at 253; Smith , 857 S.W.2d at 1; Black , 815 S.W.2d at 166; Boyd , 797 S.W.2d 589; Sta te v. Teel , 793 S.W.2d 236 (Tenn. 1990); Thompson , 768 S.W.2d at 239. See also Keen , 926 S.W.2d at 741-44.
XII. Proportionality Review
Although the appellant makes no argument regarding the proportionality of his sentence to those imposed in similar cases in his brief 13 , this court is requi red by Tenn. Code Ann. § 39 -13-206 (c)(1) (D) (S upp. 1996 ) and und er the ma ndates o f State v. Bland , 958 S.W.2d 651, 661-674 (Tenn. 1997), cert. denied , -- U.S. --, 118 S.Ct. 1536 (1998), t o conduc t such a re view.32 Our review begins wit h the presumption that the sentence of death is not disproportionate

to the crime of first-degree mur der, State v. Mann , 959 S.W.2d 503, 513 (Tenn. 1997), cert. denied , -- U.S. --, 118 S.Ct. 2376 (1998); while the objective of this review is to pr

event the death penalty from being imposed by the jury in an arbitrary and capricious fashion. Bland , 958 S.W.2d at 665. As the supreme court has stated in Cazes , 875 S.W.2d at 270, and more recently in Bland , 958 S.W.2d at 665, th is review is “not a rigid, objective

test.” This court may consider cases in which different aggravating

circumstances were found applicable by the jury, and w e do not“employ
a mathematical formula or scientific grid.” Brimmer , 876 S.W.2d at 84. “[T]he sentence of death is not

disproportionate, unless, the case taken as a whole is plainly lacking in circumstances

consistent with those in cases where the death penalty has been imposed.” Bland , 958 S.W.2d at 668.

Under the gui delines

of Bland

, this court is to

co nsider the following factors under the first portion of its r eview: (1) the means of death; (2) the manner of death (e.g., violent, tortuous, etc.); (3) the motivation for the killing; (4) the pl ace of de ath; (5) th e similarity of the victim’s circumstances including age, physicaland mental conditions, and the victims’ tre atment during t he killing; (6) the absence or presence of premeditation; (7) the absence or presence of provocation; (8) the absence or presence of justification; and (9) the injuryto and ef fec ts on nondecent victims. Bland , 958 S.W.2d at 667.

In the case sub judice , the means of death was ligature str angulation, or as

the medical examiner

postulated, possibly dr owning. As

previously stated in this opinion, the victim’s deathwas tortuous both mentally and physic ally as an eight-y

ear old was taken to a remote, desolate location;raped unt il she defecated; manually strang led; strangled with a shoe

string; and thrown i nto the river. The victi m was taken from her home by the appellant whom she and her mother had trusted for her c are. There is no apparentmotive for

the killing. Evi dence was presented fromwhich a jury c ould have inferred premeditation from the appellant’s act of remov ing a shoestring from his shoe at the mobile home and his posse ssion of the shoe string when he drove his victim to33

the river. There is no ev idence of justification or prov ocation. This was a senseless murder of an innocent victim.
Regarding the particular defendant, we must consider, although not exclus ively: (1) the defendant’s prior cr iminal record or prior

criminal activity; (2)

the defe ndant’ s age, race, and gender; (3) the defendant’s mental, emotional, or physical conditi on; (4) the defendant’s involvement or role in the murder; (5) the

defendant’s cooperation with the author ities; (6) the defendant ’s remorse; (7) the defendant ’s knowledge of helplessness of victim(s); and (8) thedefendant’s capacity for rehabi litation. Bland , 958 S.W.2d at 667.
Although the appellant, twenty- seven at the time of the offense, had no prior criminal record as an adult, his home life after the age of four was a stable , loving environment. Prior to that time, the appellant, his brother, and sisters suffered froman impoverished, abusive environment at the hands of the ap pellant’s father. Subseque ntly, his father an d mother aband oned them, and the children were s ent to foster homes. The other mitigating evidence offered on his behalf from his family were occurrences

that the appellantdid not witness or for w hich he was not invol

ved. With regard to his mental health, there wa s equivocal evid ence of the appellant’s testing
scores that he was “faking bad,” i.e., manipulating the ev aluat ions . However, Dr. Ciocca diagnosed that the app ell ant demonstrated severe depres sion, personality problems, post-traumatic stress di sorder, pedophilia, and attentio n deficit disorder. The appellantdid assist the off icers in f inding th e body o f the vic tim, but he offered no remorse other than that of pleading guilty. The appellant abused his position of trust with the victim, and he was aware of her young ag e. Nothing in the recor d indicatesthe appellant’s capacity for rehabilitation.

First, we recognize that no two cases or defendants are identical. However, by comparing the precedentof similar cases and defendants, w e conclude that the death penalty in this case i s neither arbitrary nor disproportionate. 1. State v. Coe , 655 S.W.2d 903 (Tenn. 1983), cert. denied , 464 U.S. 1063, 104 S.Ct. 745 (1984) (imposi ng death penalty bas ed u pon (i)(1),14 We note that cases prior to the 1989 Sent

encing Act were convicted unde r the former language of t he (i)(5 ) aggravati ng circumstance which read, “The murder was especi ally heinous, atrocious, or cruel i n that i t invol ved tortur

e or depravi ty of mind. ” Tenn. Code Ann. § 39- 2- 203(i)(5) (repealed 1995). 34 (i) (5), (i)(6), and (i)(7) aggravating circumstances where eight-year old victim was taken to deserted ar ea fo ndled, raped, manually str angled, stabbed, and left in field; defendant prese nt ed dysfunctional family history, including sexual abus e of si blings committed by father in d efen dant’s presence; defendant was prev iously institutional ized for mental problems); 2. State v. Teel , 793 S.W.2d 236 (Tenn.), cert. denied , 498 U.S. 1007, 111 S.Ct. 571 (1990) (imposing de a th penalty under (i)( 5) 14 and (i)(7) aggravating

circumstances where v ictim, fourteen, died of

some type of strangulation, no conclusion of rape but spermatoz oa f ound in victim’s underpants along with defendant’s admission of rape; vi ctim was taken to remote location and knew defendant); 3. State v. Irick , 762 S.W.2d 121 (Tenn. 1988) (imposing death penalty based upon (i )(1), (i)(5), (i)(6) , and (i)(7) aggr avating circumstances where seven-year old v ictim was raped wi

th damage to her vagina an d died of asphyxiation and suffocation; defe ndant was twenty-six years old with no prior criminal his tory, although he had pri or institutionalization for mental treatment, and defenda nt knew victim); 4. State v. Hines , 919 S.W.2d 573 (Tenn. 1995) (imposing death penalty based upon (i)(2), (i)(

5), and (i)( 7) aggravating circumstances where defendant presented pr oof of troubled childhood, alcoholic moth er, abandonment from his parents, abused drugs and alcohol as teenager, self-de structive behavior, paranoid p ersonality disorder, dysthymia, chronic depression, after murdering a hotel maid by stabbing her to death);
5. State v. Brimmer , 876 S.W.2 d 75 (Tenn. 1994) (imposing death penalty based up on (i) (7) aggravating circumstance where defendant murdered victim by manual and l igature stran gul ation; defendant had psychologica l impairments from abuse and neglect, bo rderline personality disorder, emotional withdrawal, intense anger, inability to maintain enduring relationships; other psychologis t fel t he was exaggerating his mental condition); 6. State v. Smith , 868 S.W.2d 561 (Tenn. 1993) (imposing three death sentences based upon (i)(5), (i) (6), (i)(7), (i )(12) aggravati ng circumstances

in triple homicide wher e defendant had been hospitalized fordepression, pa ran oid perso nality dis order, ch ronic dep ressive neurosis, and paranoid delusional disorder, dysfunctional f amily). 7. State v. Shepherd , 9 02 S.W.2d 895 (Tenn. 1995) (imposing death penalty based upon (i)(2), (i) (5), and (i)(7)possible suffocation after being buried alive where sixteen-year old victim was r

aped and asphyxiated to her death; defendant possessed low IQ (88), im p overished family, emotionally scarred a s child, p rior admi ssion to m ental he alth fac ility, treated for depression and anxiety); 8. State v. House , 743 S.W.2d 141 (Tenn. 1987) (imposing death penalty b ased upon (i)(2), (i) (5), and (i)(7) ag gravating circumstances15 This case is prese ntly pending befor

e this Court . Oral argument was hear d on October 27, 1998, but

at thi s time, no opi nion has been rel eased. The Rule 12 repor t was discover

ed after a search through the Rule 12 Report Database. 35 where victim was stra ngled and received blow to t he head; defendant was from broken home with suicidal tendencies). 9. State v. Blanton , 975 S. W.2d 269 (Tenn. 1998) (imposing death penalty under (i)(2), (i) (6), and (i)(7) ag gravating circ umstan ce s for two counts of first-degree murder for defendant w ith impoverished childhood, alcoholic, abusive father); 10. State v. Cauthern , 967 S.W.2d 727 (Tenn. 1998) (imposing deat h p enalty under (i)(

5) aggrav

ating cir cumstance w

here vict im d ied o f ligature strangulation and vi ctim could have liv ed three to six minutes, but mayhave been rendered unconsciou s in thi rt y seconds and victim was raped; defendant was 19 years old,never knew his fat h er and was adopted by grandparents). 11. State v. Hodges , 944 S.W.2d 346 (Tenn.), cert. denied , --U.S.--, 118 S.Ct. 567 (1997) ( imp o sing death penalty based on (i)(5) aggrav ating circumstance suffered by victim of strang ulation whe re def endant exhibited antisocial personality disorder and was raped as a child); 12. State v. Caughron , 855 S.W.2d 526 (Tenn.), cert. denied , 510 U.S. 9 79, 114 S.Ct. 475 (1993) (death penal ty applied to defend ant wh o severely beat and strangled victim); 13. State v. Vann , 976 S.W.2d 93 (Tenn. Sept. 21, 1998), reh’g denied , (Oct. 19, 1998) (imposing death p enalty based upon (i)(1) , (i)(2), and (i) (5) agg ravating circumstan ces where eight-y ear old victim was

raped and strangled; defendant, father, came from impoverished background, had nervous breakdown, addi cted to medication, suffered physical abuse from his father, depression, and sui cidal tendencies);
But see State v. Julian , No. 03C01-9511-CV-00371 ( Tenn. Crim. App. at Knoxville, July 24, 1997), perm. to appeal denied , (Tenn. Apr. 20,1998) (givinglife without parole w here death penalty was s ought based upon (i)(1) and (i)(5) aggravating ci rcumstance; defendant, 22, was acq uainted with vict i m who was 3 years old, took her to remote locati on, raped, strangled, and tossed body into underbr ush; defendant, however, w as under influence of marijuana and alcohol at time of offense; defendant sexually abused by grandfather, alcoholic mother, prio r subst ance abuse, depressi ve disorder, mixed per sonality disorder, neglectful mother, dysfunct i onal family background); Vann , 976 S.W.2d at 108-109 (citing State v. Paul William Ware 15 , where twenty- four year old defendant raped and murdered four-year old victim dyin g fr om asphyxiation; life w ithout parole imposed although death penalty sought under ( i)(1) and (i)(5) aggravating

factors; def end ant under influence of intoxicant s at time of murder); see also Vann , 976 S.W.2d at 109 (citing State v. John Edward Allen , w h ere 17 year old defendant raped and strangled three-year old child; jury found oneaggravator (i) (7), although (i)(5 ) waspresented, and imposed life without parole).
In the abov

e cases of Ware

and Allen

in which sentences of death w ere not16 No e xec ution date is set . Ten n. Co de A nn. § 39-1 3-20 6(a) (1) pr ovide s for auto ma tic review by the Tenn essee Suprem e Cou rt upon a ffirma nce of th e death p enalty. If the dea th senten ce is uph eld by the high er court o n review, th e supre me c ourt will set the e xecution date. 36 imposed, the defendant wasnot acquainted with the victim. Moreover, in the cases of Julian and Ware , there was evidence presented that at the time of the offense the defendant was under t he influ ence of alcohol o r other in toxi cants . Although it would appear the appellant has offered substantial mitigation as

in these cases, the mitig ation
was properly rebutted by the prosecution with r

egards to the psycholog ical testing and evaluations

to which the jury could have given little weight. Here, the appellant was in
a place of trust with the v ictim as her caretaker. The cases in which the death penalty has been imposed are striking ly similar.

As stated previously,no two cases are identical in circ

umstances or defendants, however, as precedent reveals, the death pena lty has bee n imp os ed in analogous
cases involving rapes

and strangulation of

the victim. Therefore, we conclude that the death penal ty is neither arbitrary nor disproportionate as applied in this case. This issue is without meri

t.

CONCLUSION

After an extensive review of the record and the issues before us, as mandated byTenn. Code Ann. § 39-13-206(b), and (c), and for the re asons sta ted here in, we affirm the appellant’s sentence of death. We conclude that the sentence of death was not imposed in an arbitrary fashi on, the evidence supports the jur y’s finding of the aggravating

circumstances, and the ev idence supports the jury ’s finding that the aggravating

circumstances outweig h any mitigating ci rcumstances. Moreover, a compara tive proportionality rev iew, considering bo

th the “nature of the crime and the defendant,” Tenn. Code Ann. § 39-13-206(c)( 1)(D), convinces us that the sentence of death is neither excessive nor dispro porti onate to the penalty imposed in similar
cases. 1637 ____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

________________________________________ JOE G. RILEY, Judge

________________________________________ JOHN EVERETT W ILLIAMS, Judge