# FILED
July 25, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE

AT JAC KSON FEBRUA RY 1997 SESSIO N

STA TE OF TENN ESSEE, ) ) C.C.A . NO. 02C01-9 605-CR-00170 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. JOSEPH B. BROWN, JR., KEVIN B. B URNS, ) JUDGE ) Appellant. ) (First -degr ee m urde r dea th pe nalt y; ) attempted fe lony murder)
FOR TH E APPEL LANT: FOR THE APPELLEE:
GLENN I. WRIGHT JOHN KNOX WALKUP 200 Jefferson Ave. Attorney Gen eral & Repor ter Suite 800 Memphis, TN 381 03 DA RIA N B. TA YLOR Asst. Attorney

General WILLIA M L. JOHNS ON 450 Jame s Rob erts on Pk wy. 50 N. Front S t. Nashvil le, TN 37243-0493 Suite 1150 Memphis, TN 381 03 JOHN W. PIEROTTI Distric t Attorney General THOMAS D. HEND ERSON

-andJOHN WHEELER CAMPBELL Asst. Dist rict Attor neys General 201 Poplar Ave. Memphis, TN 381 03

OPINION FILE D:____________________

CONVICTIONS FOR FIRST-DEGREE MURDER A ND DEATH PENALTY AF FIRMED; CO NVICTIONS FOR A TTEMPTED FELONY M URDER RE VERSED AN D REMA NDED JOHN H. PE AY, Judge2 O P I N I O N

The defendant was i ndicted on two counts of murder in the per petration of
a robbery (felony murder) , two counts of prem edit ated murd er, two counts of attempted first-d egree mu rder

dur ing the p erpe tration of arobbery (attempted felon y murder) and two counts of attempted preme ditated first-degree murder. A jury convicted him of t wo counts of felony murder a nd two counts of attempted felony mur der. After

a hearing, the jurysentenced th e defendant t o death for one of the murder s and to life impr isonment for the other murder . He was sentenced to twenty-five years for each of the attempted felony murders. In this appea l as of right, he raises the following issues:

I. The sufficiency of the convicti ng evidence; II. The trial cour

t’s refusal to suppress his statement; III. The trial cour

t’s instr uction to the j ury on flig ht; IV. The validit

y of his conv ictions for att empted felony murder ; V. The trial cour

t’s failure t o grant

a mistrial upon sobbing in the court room; VI. The admissibili ty of a cri me scene photogr aph; VII. The trial cour

t’s responses

to q uest ionsfr om the jury dur ing its deliberations; VIII. The sufficiency of the evide nce i n sup port of t he deat h pen alty; IX. Whether the d eath pena lty w as properly imposed in light

of the defendant’s rol e in the cri me; X. W hether the victims’ mothers were properly pe rmi tted to t esti fy during the sentencinghearing as to the impact of the murde rs; and XI. The constitutionality of T ennessee’s death pe nalty statutes.
Followi ng our review of the record in this matter, we affirm the defendant’s first-degree murder convicti ons and sentences, reverseand dismiss hi s convic tions for attempted felony murder, and remand this matter for r etria l of t wo counts of attempted premeditated3

first-degree murder.

FACTS

The proofat trial established that o n April 20, 19 92, at approx imately 3:15 in the afternoon, Eri c Tho mas, Damon d Dawson, Tommie Blackman and Trac ey Johnson gathered at Dawson ’s house in a residential neighborhood i n East Memphis. The four
men range d in a ge fr om si xteen to twe nty -one years old. They s at in Dawson’s sedan while it was pa rked in his driveway, the front of the car facing and perpendicular to the street. Dawson sat in the driver’ s seat, Jo hnson in the fro nt passe nge r seat, Thomas behind Dawson i n the back seat an d Blackman in theback seat behin d Johnson. W hile they sat there, they

smoked some marij uana and dr ank some gin. Johnson’s mother testified that shehad seen her son wearing a jewelr y chain that

morning.

Thomas testified that, fiv e or ten m inu tes after they had been in th e car, CarlitoAdamsand another male w alked up to its pass enger side. The other male pul led out a pist ol. Ca rlito Adam s exc h anged some words wi th Blackman and tol d him to get out of the car. Black man ini tially ref used, t hen got o ut of t he car an d bega n r unning. Thomas testified that C arlito Adams ha d then s aid, “G et him.” At th at point, accor ding to Thomas, t hree or four more men “came from around th e bushes and shot at [Blackman] about six or seven ti mes.” On cross-examination, however, Thomas stated that he had seen onl y one person actually fire at Blackman as he ran away.

Thomas tes tified that he, Dawson and Johnson had r emained in the car while the men then surrounded i t, poi nted pi stolsat them and ro bbed the m, taking money from him and jewel ry from Johnson and Daw son. After taki ng these items , according to Thomas, the men had begun s hooting at th em, hitting h im in the chest and stomach. Thomas testified that th ey had also been shooting D awson and John son and he ha d decided to “l ay dow n and tr y to p lay d ead.” At somepoint, he testified, “they ran off, and1 Thom as did not make an in- court ident if icat ion ofthe def endant. And whil e no proofwas in tr oduced as t o th e name of t he per son whos e phot ograp h was i dent if ie d as “ number fi ve, ” an FBI age nt tes tified tha t the ph otog raph app eare d to b e of th e de fen dan t. 4 I thought that w

as it. And then I heard some footsteps co ming back, so I laid back there again, and som ebody

came back and start ed shooting back again. ” On this r eturn vis it, Thomas testified, two people had sho t on his side of the car, hitting him in the upper leg and shooting Dawson ag ain. Someone said, “We got < em,” and the assailant s then left. When Thomas rose from his position, he s awDawson “messed up pret ty bad in th e front seat.” When he looke d across the street, he saw Johnson “ly ing wi th his head on the sidewalk and his body

-- the rest of his body i n the street.”

Tho mas tes tified that Car lito Adams had been the only ass ailant he had recogniz ed. However, on April 22, 1992, detecti ves showed him a photogr aphic spread from which he identified number five as the person w ho had shothim. 1 He also testified that thi s same person had taken his money and shot someone else. Thomas testif ie d that none of the occupants of the car ha d had any guns or knives.

On cross-examination, Thomas admitt ed to havi ng initially told the police that Carlito Ad ams had shot him. He explained that he had given the police Adams’
name when they

arrived on the scene and while he was st ill in the car after hav ing been shot. He testified that Adams h ad been “the only person I knew on the sce ne , and I thoughtI was g onna die. And the on ly way I was going to get them to com e to jus tice was to cal l out the only name that I knew

at that time, w hich was Carlito Adams .”

Tommie Blackman also te stified at t rial. He stated that, while he and his three friends had sat in Dawson’scar, Carl ito Ad ams and another man came up to the passenger

side of the car. Adams asked him to get out, Dawson told him not to, and the other male pulled a

pistol and went to the driv er’s side of the car. When the other male passed in front of the car going to the driver’s side, Blackman p ush ed the door open,5

hitting Adams and knocki ng him down. B lackman then got out of the car and ran behind it toward thehouse. He hear d Adams yell and turned to see two or thr ee other men coming from behind the bushes beside the dr iveway pointin g pistols a nd shoo ting. Blackman continued torun to the house, eventually mak ing it i nside. He testified that he ha d continued to hear shootin g after he was in the house. He received a minor bull e t wound to his rig ht arm as he ran. Blackman als o testified that he had recent ly gott en into an argument with Adams while they were playing basketball.

EricDeway ne Jones was fourteen in April 1992 and lived across the st reet from Dawson. On the day of the murders, he was playing basketball in Dawson’s yard with a coupl e of othe r boys. Hetesti fied that, as h e had be en on hi s way back h ome and approaching the front of Dawson’s house, he saw some men holding a gun on Daw son, Blackman, Johnson and Thomas as they sat in Dawson’s car. He testified th at he had
seen “about three of them ,” recogni zing onl y Carli to Adams. He testified that he had “stopped in my tra cks, and [Blac kman] was r unning my w ay.” As Blackman approach ed him, Jones testi fied, he told him to run. Jones di d so, precedingBlackman as they ran toward the house. He testified that, a s they had r un, someone had shot at them “severa l times.” He further testified that, while he and Blackman had been running, theboys w ith whom he had been pl aying bas ketball were also several feet away , in the line of fire.

After he had reached the house, Jones test ified, he heard sev en or eight
more shot s. He a lso te stif ied t hat, abou t two seconds before Bl ackman came runningat him, he had heard the man standing at Dawson’s door with a pistol say “Drop it off” and that the men insidethe car had been “ cooperating, taking off the jewelry and money out [of] their pockets.”

Mary J ones, Eric J ones’ mother, l ived in the house directl y across the streetfrom Dawson’ s. She testified that, on the afternoon of April 20, 1992, she had6

heard a gunshot and went to look out her door to see what was h appeni ng. As she looked out, she s aw two m en ru nnin g up Da wson’ s drive way toward the car in which Dawson and the others were sitting . She testified that thes e two men had had their g uns “down”as they were running. However, “as they approa ched the car, t he one on the driver’s side, he walked up to the car and started shooting.” Sh e testified that s he had also seen another

man run up to the pas senger si de of the car “w ith a gun in his hand. And he shot [Johnson] once in the chest. And the other guy that was on the driver’s side, he was shooti ng [Daw son] sever al times. And after he stopped for aw hile, he walked around in front ofthe car w ith the gun poi nted, and he slow ly walked on back ar ound on the driver ’s side ag ain and started shooting some more.” She testified that Dawson’ s car had been “direct ly facing my driveway and door” and that she could see w ho was si tting in the car.

On cross-examination, Ms. Jones admitted that sh e had been unable to iden tify the shooters from a photo spread shor tl y after the shooting. H owever , she explained this as a result of the photos be in g out of date. On redirec t, she stated unequivocallythat she recogni zed the defendant as “the one that shot [Dawson], ” and that he had been the person w ho had shot, gone to the front ofthe car, ret urned and shot again. She further stat ed on recross thatshe had gotten “a real good look in his face” a s he ran towar

d her after the shooting.

Kenneth Alan Shacke lford, aMemphis poli ce officer, testi fied that he had arrived on the c rime scene so soon after the shooting that

he “could st ill smell gunpowder in the air f rom the guns going o ff.” He found Johnson lying face down at the sidewalk, already dead. He checked the car, found Dawson and Thomas still alive, and called ambulances. He testified t hat he h ad checked the car and found no w eapons in it. Officer Frederick Louis Sansom also testif ied that he had fo und no weapons in the car, but had found numerous cartr idge casin gs in and near the car and one bullet in the car.7

He further testified that he had observed Johnson’s body and tha t he had seen no watch or jewel ry on it. No weapons were found at t he crime scene.

FBI agentScott M. Bak ken testified that, in June 19 92, his o ffic e in Chica go had received a request from the Memphis FBI office t o locate and apprehend the defendant. Subsequent to that request, he an d several other ag ents located the defendant at the apartment building where the defendant ’s brother a nd sister lived and took him into custody. He testified that th e defendant had cooperated and presented no probl em. Wh en the defend ant was delivered to the FBI office in Chicago, he was turn ed over to ag ents John Landman and Lee W. Harbaugh.

Agent Lee W. Harbaugh testi fied that the defendant had been advised of his rig hts in his presence and that the defendant ha d signed a waiver of those ri ghts

. AgentHarbaugh al so signed th e waiver as a w itness. He testified that the defendant had been very

cooperative and th at, after sig ning the waiver of ri ghts form, the defendant gave him a statement about the shooting. According to agent Harbaugh’s testimony, the defendant ’s account of the events was as follows:

The defendant had been living in West Memphis when he recei ved a phone call from Kev in Shaw tel ling him th at fourmen had jumped Sha w’s cousin in East Memphis, Tenness ee. The defendant and ano ther man went t o Sha w’s res iden ce whe re th ey me t Sha w a n d two other men. Shaw

explained t hat the five of them were going to go fightthe m en w ho ha d ju mped hiscous in. The fi ve m en th en l eft in two cars

and drove to

a residentia l area in East Memphis. When they got out o f the car s, Shaw and t wo of the other men pulled out handguns. Shaw had tw o extra handg uns whi ch he g ave to the defendant and the f ift h man. The defendant asked Shaw what the guns were for and was t old that the four men t hey were going to fight would be armed. The five men then began to walk toward Dawson’s car. A short distance from the car, the defendant and two of the men stopped while Sh aw and the fifth man continu ed t oward the car. Shaw appeared tobe convers ing wi th one of the men in the car. The defendan t the n heard a gunsh ot, one of the men got out of the car and began running , and Sh aw and the other man at the car beg an shooting at the man runningaway. Right after that, the defendant stepped toward thedrivewayand, from about ten to t wenty feet, fired the handg un he had been given at the man runnin g away . The defendant fired at this man three time s as he ran across the yard.2 This i s not a v erbat im account of Agent Harbaug h’s t ri al t esti mony. I t i s inden ted i n thi s opini on solel y as a matter of readi ng conveni ence. 8

Then there was a lot of shooting. He then ran back to the cars in which they had arr ived. The rest of the men ra n back as well, and they all left the scene in their cars. When the defendantlater lear ned that there had been a s hooting in Ea st Memphis, he thoughtit might have be en the on e in whic h he had been involved. Hethen got a friend of his to give him a ride to Chicago where his brother and sister lived. 2 AgentHarbaugh furt her testified that the photograp h identified by Eric Thomasfrom the photo spread appeared to be of the defendant.

Dr. O’Brian Cleary Sm ith performed the aut opsies on Johnso n and Dawson

. He testified that J ohnson had been shot once in the chest wi th the bullet going throu gh the hear t and int o theleft

lung. He testified that, with this type of wound, a person could live some minutes, maint ain conscious ness and be capabl e of movi ng for some amount of time . He testified that this gunshot wound ha d caused Johnson’s deat h. Dr . Smit h testified that Dawson had received five gunshot wounds: one to t he left upper a rm, one in the left chest, t

wo on the side ofthe left buttock an d one on the left hip. He further testified that Dawson had died “as a result of multiple gunshot wounds.”

The d efend ant offere d no p roof

.9 AN ALYSIS I. SUFFICIENCY OF THE EVIDENCE The defendant f irst challenges the sufficien cy of the evidence on which his murder convi ctions are bas ed. When a defendant challenges the s ufficiency of the convicti ng evidence, w e must revi ew the ev idence in the l ight most favorable to t h e prosecution in determining whether “ any rational trier of fact could ha ve found the essential elements of the cri me beyond a reasonable d oubt.” Jackson v. Virginia , 443 U.S. 307, 319 ( 1 9 7 9 )

. We do not rew eigh or r e-evaluate the evidence and are requi red to afford the State the str ongest leg itimate vi ew of the proof cont ained in the re cord as well as all reas onable and legi timate inferences which may be drawn ther

efrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).

Questionsconcerning the credibili ty of wi tnesses, the weight and value to be given to the evidenc e, as well as factual iss ues raised by the evidenc e are resolv ed bythe trier of fact, not this Cou r t. Cabbage , 571 S.W .2d 832, 835. A guilty verdict rendered by the jury an d app roved by t he t rial judg e accredits the testimony of the witnesses

for the State, and a presumption of gui lt replaces the p resumptio n of innocence. State v. Grace , 493 S.W .2d 474, 476 (Tenn . 1973).

These murders were committed on Apr il 20, 1992. At that time, the form of first-degree murder known as “fe lony murder ” consisted of “[a] reckle ss killi ng of another comm itted in the per petration of, or attempt to perpetrate any first degree murder, ars on, r

ape, rob bery , burgla ry , the ft, k idna ppin g or aircraft piracy. ” T.C.A. § 39- 13-202(a)(2) (1991 Repl). In this case, the murders were commi tted in the perpe tration of a robbery. Robberyis “the in tentional or knowing theft of property from the person of another by vi olence or putti ng the person in fear.” T.C.A . § 39- 13- 401(a) (1991 Repl). Furthermore, a person is criminally responsible for the conduct of another whe n th e per s on, “[a]cting with in tent to promote or assist the commission of the offense, or to10

benefit in the proceeds or results of the of fense, . . . solicits, directs, aids, or att empts to aid another person to com mit the offe nse.” T.C.A. § 39-11-402(2) (1991 Repl).

In his statement to agent Harbaugh, t he defendant indicated t hat he had accompanied Shaw

and three other men to the sceneof the crime and that their intent had been to confront the p eople who had “jumped” Shaw’s cousin. Once theyarrived in the genera l proximity, Shaw gave the defendant a handgun. Nothing in the reco rd demonstratesthat the defendant refused t he weapon or was for ced to carry it. The defendant further indicated in his statement th at he had willingly walked toward Dawson’s
car and t hat h e sub sequ entl y s hot thr ee times in the d irection of the fle eing occupant. Thus, since there appears to beno doubt thatthe defendant was present at the s cene of the crime, the pivotal question becomes whether the proof was sufficient to suppor t a finding that he kill ed Dawson and Johnson in the per petration of a robbe ry and/or that he was cri minally r

esponsible for th e conduct of another i n this respec t.

T he record establ ishes that Johns on, Dawson and Thomas were r ob be d
as they sa t in Daw son’ s car, and that they were all shot as soon as the r obbery was complete. Thomas testified that Carlito Adams and se veral othe r indiv iduals had surrounded the car, “[ p]ulled out their pi stols, had thei r pistols aimed at us. Took money from me; took jewelry from [J ohnson]; took jewelry from [D awson].” Upon being as ked whathappened nex

t, h e testified, “t hey opened fire, and they star ted shooting u s.” Shortlyafter the shooting s, Thomas identified o ne of the assailant s from a photo spread. He testified at

trial that this had been the man who had taken his prope rty and then shot him. Although Thomas di d not make an in-court identification of the defendant, this phot o spread was prov ided to the jury members and they we re ab le to dete rmin e with thei r own eyes whether or

not the photo was of the defendan t. Moreover, agent Harbau gh testified tha t th e pho to ap pea red t o be o f th e def end ant. Thu s, th e jury c ould prop erly ha ve concluded from Thomas’ testimony alone that

the defendantparticipated in the robbery11

and shot at the car’s occupants. However, the jury also had before it Mary Jones’ testimony

that she had seen t he defendant shoot Dawson, that she had be en “looking rightat him”

and t hat “ [a]s

[thedefen dant ] w as r unni ng d own the d riveway, aft er h e finis hed shooting [D awson], that ’s when I got a real good look in his face. ” And Eri c Jones’ testi mony corrob orated Thomas’ testimony that Thomas, Johnson an d Dawson had all been robbed and then fired upon. Johnson’s mother testified that she had seen her son wearin g a jewelr

y chain the morning of his murder. When he was found by the police, immediat ely after the shooting occ urred, there was no jewelry.

Taken in the lig ht most favorabl e to the Stat e, this proof was more than sufficientto establish beyond a reas onable doubt that the defendant had partici pated in
a robberyof Thomas, Johnson and Daw son and that, immedi ately follow ing the ro bbe ry, he shot and kil led Dawson. And although ther e was no di rect proof that the defendant shot at and kill ed Johnson, the evidence established that Joh nson had been shot while in the car follow ing the robbe ry in w hich the defendant part icipated. Thus, although o ne or more of the other me n surrounding the car and robbing its occ u pan ts ma y have actuallyfired the bull et that killed John son, the defendant remai ns responsibl e for Johnson’s murder:

The Tennessee offense [offelony murder during the perpetrati on of a r obbery] ex

tends both to the k iller and hi s accomplices . A d efend ant who is a willing and active participant in a robbery becomes acco untable for all of the cons equences flow ing from the robberyand may be convicted of first-degree m urder wh ere a coperpetrator of the f elony is the actual killer. State v. Middlebrooks , 840 S.W .2d 317, 336 (Tenn . 1992).

The felony murder statute dea lt with in Middlebrooks wasslightl y different from the oneat is sue in this case, prov iding , “Every mu rder . . . committed i n the perpetrati on of, or attempt to pe rpetrate, any murder in the first degree, arson , ra pe , robb ery, burglary , larceny , kidnapping , a ircraft pir acy, or t he unlawful thr owing, placing12

or discharg ing of a destru ctive dev ice or bomb, i s murder in t he first degree.” T.C.A. § 39-2-202(a) (1982). In 1989, the statute was amended to prov ide that the ki lling i n the perpetration of the enumerated felonies be “reckl ess.” T.C.A. § 39-13-202(a) (2) (1989 Supp). “Reckles s” in turn refers to a pers on who, alth ough aware of a subs t antial and unjustifiable risk that a person or persons wil l be killed as a result of his

conduct, nevertheless consciously disregards that risk and engages in the conduct. See T.C.A. § 39-11-106(31) (1991 Repl) . This Court has previ ously held that this addi ti on of the word “reckless” to the felony murder statute “doe s not alter th e principlethat an accomplice to the underly ing felony may a lso be guil ty of felony mur der even thoug h the killing has b een comm itte d by a co-felon. The jur y need only find that

the defendant was
a participant in the perpetration o f the underlying felony and that his c onduct a s to the killing was <

reckless.’ ” State v. Timothy D. Harris , C.C.A. No. 02C01-9211- CR-00258, Shelby County (Tenn. Crim

. App. filed Apri l 13, 1994, at Jac kson), rev’d on ot her grounds (1996). And, as our Sup reme Court noted in M iddleb rooks , “one who purposely undertakesa felony that results in a death, alm ost always can be found reck less.”840 S.W.2d at 345.

In this case, the str

ongest leg itimate vi ew of the proof in favor of the S tate is that the defendant approac hed Dawson’ s car w ith a loaded pistol, parti cipated in a robbery in which other armed individuals were also participati ng, and then shot several times into the car. The defe ndant’s actions satisfy the statu torydefinition of “reckless .” Acco rdin gly, the proof at trial was sufficien t to prove beyond a reasonable doubt that the defendant murdered Dawson in the perpetration of a robbery, and that he was criminally responsi ble forJohnson’s murde r in the perpe tration of the same r obbery. Bot h convicti ons are support ed by the ev idence and this issue is the refore wit hout merit.

II. SUPPRESSION OF DEFENDANT’S STA TEMENT The defendant next compl ains that the trial court erred when it denied his13

motion to suppress his statement. The defendant was apprehended in Chicag o by FBI agents. He testified a

t the suppressi on hear ing that he had been read his rights w hen he was first arrested and handcuffed. He also testified that he had understood his rig hts before making his

state m ent, that he had not been promised anything in return fo r his statement, and that he had not bee n threatened into making his statement . How ever, when asked att he suppression hearing, “ you knew

you didn’t

have to tal k to [the agent]?”, the defendantresponded, “I didn’t reall y understand, but I did becaus e he was asking me qu esti ons. ” Thi s is th e cru x of t he de fen dan t’s co nten tion that he di d not waive his constitu tional rig hts freely an d voluntari ly.

It is the duty

of the trial j udge to determi ne the volunta r in ess and the admissibili ty

of a defendant’s pre-t rial statement

. Stat e v. Pursley , 550 S.W.2d 949, 952 (Tenn. 1977). More over, the t rial court ’s determinati on that a confession was gi ven knowingly

and voluntar ily is

binding on the appellate courts unless the appellant can show tha t the e vidence preponderates agai nst the trial court’s r uling. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). In the i nstant case, the defendant has failed todemonstrate how the evid ence pre ponde rates aga inst the trial cour t’s ruling.

At the conclusi on of the testimony at the suppression h earing, the trial court stated the fo llowing:

The defendant says th e person that handc uffed him ga ve him his rightson the scene --he didn’t read them fro m a card, but he said them to him. He said he understood his ri ghts. He doesn’t remember

all ofthem, buthe knows t hat he was adv ised, < You h ave a right to remain silent and anythin g you say can and wi ll be used against you.’ He doesn’t recal l the one about r ightto counsel, as is complai ned of in the motion; but he, to o, does not deny that he was not [sic] told this. He admits , fre ely, that he was advised of hi s rights

when he was initiall y handcuffed. Thro ugh h is own statement, he was advised of his rig hts; he understoo d them; he’s a hi gh-school graduate; he was not coerced; hewas no t pressured; he was not t hreatened; nobod y promised him anyth ing.14 . . . . But from what thecourt has . .

. seen here, it woul d appear that, on all fou rs, th e def end ant f reel y and vo lunt arily, unde rsta ndin gly, knowi ngly, advisedly , and intelli gently w aived his rights free from any coercion, thre ats, pres sure s of any kin d tha t woul d have induced him or caused him to have abando ned his rights. He claims he under

stood th em, and from his testimon y, the court would have to find that even if his recall is more accurate than that of AgentLandma n, through his own evidence, the statemen t that is purporte dl ygiven by the defendant to Ag ent Landman would be admissible into evid ence. The motion to suppress, respectfully, will be denied. This rulingby the tri al court was proper. Alt hough he clai ms in his br ief that he “did not understand hi s righ ts,” the defendant admi tted during the suppressi on hearing th at he had under s tood the wai ver form and that he had freely and voluntar ily tal ked to the agents. There is nothing before this Court which preponderates against the trial court’s findings. Ac cordingly , this iss ue is wi thout merit.

III. INSTRUCTION ON FLIGHT In his next issue, the defendant contends that thetrial court erred when it instructed the jury

on flight. He further con tends that this error was not harmless because of the “heavy emphasis” the p r o s e c u t o r p l a c e d o n i t d u r i n g c l o s i n g a r g u m e n t

. We disagree and find this issu e to be wit hout merit.

AgentHarbaugh testified that, in his statement, t he defendant had admitted to leavingthe crime scene i mmediately after the shootings . Later, heheard something about a shooting in East Memphis and thought it might be the onein whic h he had been involved. He then left his residence and went to C hicago w here he remained until he was apprehended by the FBI in June 1992. He now contends that a jury instructi on on flight
was not warr

anted because he “n ever committ ed any act of hiding out, evasion or concealment of his pe rson in the community.”3 Our rul ing t hat t he tr ial court ’s i nstru cti on to t he jury on f li ght was noterror renders moot the defendant ’s cont enti on thatthe “ error ” was not harmless. 15 The defendant misapprehends the c ircumstances nece ssary to justify a jury instruction on flight. Thi s Court has p reviousl y recog nized that there is evidence s ufficient to support a jury instruction on flight where there is proof of “ < both a leavi ng the scene of the difficulty and a subsequent hiding out, evasion, or concealment in the c omm unit y, ora leavin g of t he co mmu nity f or pa rts un known .’ ” State v. Pay ton , 782 S.W.2d 49 0 , 498 (Tenn. Crim. App. 1989) (citations omitted ) (emphasis added). And the trial court in this case char

ged the jury

according ly, stati ng, inter alia , The law makes no nice or refined distinc tion as to the manner

or method of a flight; it

may be open , or it may be a hurried or concealed departure, or it ma y be a concealment w ithin the jurisdict ion; however , it takes b oth the l eaving t he scene of the difficulty and a subsequent

hiding out, evasi on, or concealment in the comm unit y, or a leav ing of the community for parts unknown, to constitute flig ht. (emphasis added). Here , the defendant both ran from the crime scene and subsequen tly left his home in W est Memphis for Chicago. Such evidence sup ported a juryinstructi on on fl ight, and the tr ial court di d not err in so instruct ing the jur y. This i ssue is w ithout merit. 3

IV. A TTEMPTED FELONY M URDER In addition to bei ng convi cted of two countsof felony murder, the defendant
was convicted of two counts of attempted fe lony murder. The State correctly concedes that attempted felony mur der does not constitute a cri me in Tennessee. Stat e v. Kimbro ugh , 924 S.W.2d 888 , 892 (Ten n. 1996). Accordingly, we reverse and dismiss those two conv ictions. H owever , we are l eft with theissue of whet her the defendant may
now be retried on the charges of atte mpted premedita ted murder. The precise issue is whether a defendant may be retried under an alternativ

e count on whi ch the jury made
no finding w here the count of w hich the defendant was convicted fails to state an offense. We f ind this is sue to be a matter of first impressi on in Tennessee.16 A defendant m ay be retried for an off ense when his conviction is set aside because of an error in the proceedings rather than because the State failed in its effort to prove him guilty

. Burks v. United States , 437 U.S. 1 ( 1978); State v. Hu tcherson , 790 S.W.2d 532, 535 (Tenn. 19 90). For instan ce, retrial is appropri ate where the convicti on is rev ersed due t o the “incorrect receipt or rejection of evidence, incorrect instructions,
or prosecutori al misconduct.” Burk s v. United States , 437 U.S. 1, 15 (197 8). Si mila rly,
a defendant m ay be reindic te d and tried on other off enses where his conviction is reversed because the underl ying statute is l ater deemed unconstitutio nal. State v. Hale , 840 S.W.2d 307, 308 (Tenn. 1992). In the i nstantcase, the defendant’s convicti ons for attempted felony murder are being reversed because our Supreme C ourt has rul ed that
no such offense exists. That is, dueto a fundam ental error in the proceeding s, the defendant wastried for a crime w hich is impos sible to commit . Obvious ly, he cannot be retried for attempted felony murder. We must determine, then, whether he can be retr ied forattempted premeditat ed first-deg ree murder. We hold thatBurns has been ne ither convicted nor acquit

ted of these crimes

and principl es of double jeopardy do not therefore prohibit his retrial.

Burns was indi cted for both attempted felony murder a nd at tempt ed premeditated first-degr ee murder, and both counts were sent to the j ury. However, the trial court instructed the jury in this case to first consi der Count 1 of theindictments which charg ed the offense of attempted felony murder. The jur y was instructed th at if th e y found the defendant guil ty of attempted felony murder, they

would so report. The jury
was further instr ucted that if they found the defendant not gui lty of that offense, they would then proc eed to inquire as to his gui lt of attempted premedi tated first-deg ree murder as charged in Count 2 of the i ndictments. In other wor ds, th e jury was no t to consider attempt ed premeditated fir st-degreemurder if they found the defendant g uilty of attempte d felony murder.17 Typ i cally, when a jur

y is g iven a multi -count charg e and returns a special verdict convicti ng the defendant of one of the charges but which is silent as t o the other charges, the defendant is deemed acquitted of the other cha rges. See, e.g., Conn er v. State , 531 S.W.2d 119,12 6 (Tenn. Crim

. App. 1975). The Stat e is then prohi bited from retryi ng the defendant on the acquitt ed charges ev en if the convi ction is later r eversed. Id

. As this Court held in State v. Arnold , however, “we are of the opinion that this rule is not applicable to

the situation i nvolved in the present case.” 637S.W.2d 891, 895 (Tenn. Crim. App. 1982).

In Arnold , each of the defendants had bee n charged w ith a conspiracyto engage in the p rotracte d and rep eated sales of controll ed subs tances , with bein g a habitual drug offender, and with s pecific drug transactions as separate and additional offenses. The controlling statute (and the jury instructions) limited th e juryto finding the defendants guilty

of either being habitual drugoffenders or of committin g the s peci fic drug deals, but not

both. The jury

found each of the defendants gu ilty of bein g a habitual drug offender. On appeal, thi s Court found the ev idence to have been insuf ficient to support the habitual dr ug offender convictions. Nevertheless, the case was remanded for a new trial on the specific drug transactions.

I n so holding, this Court acknowled ged the gener al rule that “a specia l verdict upon one count of an indictment oper ates as an acq uittal upon the other cou nts to which the jury

did not respond.” Arnold , 637 S.W.2d at 895. In disting uishing the case before it, this Court reasoned that

[i]mplicit in the jury’s

verdict finding the appel lants guil ty under the first count of be ing h abitual drug offen ders is a finding of their guilt of the transactions sepa rately charged in the fourth and fifth counts; yet, because of the restrict ions in the stat ute, the j ury, once it found the appel lants guilty under the first count, w

as precluded from r

eporting a verdictof guilt on the sepa rate offenses charged i n the fourth and fifth counts.4 U.S. Const . amend. V. 18 Therefore , w e con clud e tha t bec ause of t he re stric tive language contained in the habitual dr ug offender statute, the jury’s failure to report a v erdict on the fourth and fifth counts did not operate as a verdict of acquittal on tho se charges, and a remand fo r trial on those counts would be in order. Arnold , 637 S.W .2d at 8 95. Alth ough we are not dealing w ith a statutor

y restr iction in th e case sub judice , we find the trial court’s instru ctio ns to the jury to have operated to the
same effect. Once the jur y found Burns g uilty of attempt ed felony murder, itsinstructi ons were to move on and make no report on th e charges of att empted premeditated mur der and its lesser offenses. Yet, impli cit in the convictions for attempted felony murder was a finding that th e defendant had indeed attempte d to kill t wo people. While we cannot know whether th e jury w

ould h av e convicte d the defendant of attempted premedi tated murder or one of its lesser off enses had it been given the opportunity to consider those charges, th e evidence w as certainl y sufficient for it to have d one so.

The Uni ted States Sup reme Court hasalso spoken on implied acquittals, finding them to bar retrial under the f ederal Double Jeopardy Clause 4 when the jury has been given “a fu ll opport unity to re turn a verd ict” on a ch arge and instead found the defendant guilty

of a lesser char

ge. Price v. Georgia , 398 U.S. 323, 329(1970)(footnote omitted). See also Gree n v. United States , 355 U.S. 184 (1957). Tha t is, “[o]nly where the jury i s give n the full opportuni ty to retur n a verdic t eith eron the gre ater or, alternatively , on the lesser included offense does t he doctrine of impl ied acquitt al obtain.” United States v. Re ed , 617 F.Supp. 792, 80 0 (D.C.Md. 1985) (emphasis in original). W hile we reali ze that attempted premeditated murder is not a les ser offense of attempted felony murder, we are convinced that the same ana lysis is appropriate

. See Schi ro v. Farley , 510 U.S. 222, __, 114 S.Ct. 783, 792 (1994) (“The failure t o return a verdict does not have col lateral estop pel effect . . . unless the record establ ishes that the i ssue was actuallyand necessarily decided in the def endant’s favor.”) Here, the j ury was notgiven the full opportunity to return a verd ict ei ther on at tem pted felo ny mu rder or, al tern ative ly,5 Cf. Sayl or v. Cornel ius , 845 F. 2d 1401 (6t h Cir. 1988). In Sayl or , t he defendanthad been indi cted on on e count ofmurder, whi ch count en compassed m urder as a pri ncipal , as an a ccomplice, and by conspir acy. The tri al court i nstru cted t he jury onl y on t he theory ofthe def endant’ s inv olv ement as a conspi rato r. The prosecuti on did not obj ect t o the i nstru cti ons nor r equest a ch arge on accompli ce liability. Th e jury c onv icted th e de fen dan t and the c onv iction w as late r reve rse d for insuf ficient e viden ce. Altho ugh there was “con side rable evide nce ” sup portin g the defe nda nt’s ro le as a n ac com plice, the 6th Circuit Court of Appea ls held that double jeopardy principl es barred retrial on that ground. The C ourt stated, “Once the jury ret urned its verdict, t he failure to i nstruct on the acco m plice l iabil ity theory ter m ina ted Sa ylor ’s je op ar dy . . . . T o d en y this pro po sitio n w ou ld m ea n th at th e p ro se cu tion co uld proceed on sev eral theor ies ofli abil it y t hroughouta tr ial , and, simply by wi thhol ding i nstru cti ons on any one of the m , rese rve th at the ory for re trial at a later date .” 845 F.2d at 14 04. T he C ourt late r limite d its holdi ng in Sayl or , sta ting tha t its s ign ific an ce wa s “ lim ited by th e u nu su al s itua tion we we re ad dr es sin g in thatcase: be cause of pr osecutor ial absent- mindedness, Mr. Sayl or’ s tr ial ended wi thoutan acqui tt al or a conviction on a charg e that had been properly presented in an indictment and em phasized at trial .” U .S. v. D av is , 873 F. 2d 900, 9 06 (6t h Cir. 1989). This case i s clear ly dist ingui shable from Sayl or , alt hough both cases i nvol ve unfortunat e jury i nstru cti ons. I n Sayl or , t he tr ial court ’s act ion was t he functi onal e quiv alent of a di smissal of the accompli ce theory, in whi ch the pr osecuti on acqui esced. The defendant , on t he other hand, ha d object ed to pr oceeding on the conspir acy t heory . I n the pr esent case, the t ri al court di d submit t he alt ernat ive count t o the j urybut, in e ffect , r eli eved i t of it s duty to consi der thatcount upo n it s fi nding Burns gui lt y ofatt empted fel ony murder. The prosecut ion was i n no way try ing t o “reser

ve a t heory ” for

lat er use i n the ev ent t he jury acqui tt ed the de fendant of at tempted fel ony m urde r. 19 on attempted premeditat ed murder and its lesser offenses. Becaus e the jury was not given that opportunity , its verdict did not necessa rily r

esolve in Burns’ favor

the issue of his guilt of the al ternative crimes and the d octrine of implied acquittal should not a pply. 5

Fina lly, our Su preme Court has made i t clear that a defendant may be retried for lesser offen ses following reversal of his or her convic tion for t he greater offense. State v. Maupin , 859 S.W.2d 313, 317 (Tenn. 1993). In Maupin , the defendant had been ch arge d in a sin gle count i ndictment wi th aiding and abetting first-degree murder of a child res ulting from repeated child abus e. The jury waschar ged wi th the indicted offense as well as with the lesser offenses of aiding and abet ting second- degree murder, aiding and abetting aggravated child abuse and aiding and abetting child abuse. nThe jury

convicted the defendant of the aidingand abetting fir st-degree murder charg e. Howeve r, t he statute creat ing that g rade of first-deg ree murder, T.C .A. § 39-2- 202(a)(2)( Supp. 1988), was later found unconst itutional. State v. Hale , 840 S.W.2d 307 (Tenn. 1992). Accor

dingl y, ou r Supreme Court reversed Maupin’ s convic tion but ruled that she could be retried on thelesser offenses. In so holding , the Court stated:

Maupin was not acquitted of any of the lesser offenses as the jury was not re quired to pa ss jud gment upon the m.

. . .20 [D]ouble jeopardy s hould not bar a r etrial w hen the trier of fact does not pass upo n lesser offenses one w ay or the other. There havingbeen no factual res olut io n of Maupin’s guilt or innocence o n the lesser offenses, she can be tried for thos e of fen ses wit hou t viola ting d oub le jeo pard y.

. . . We find no double jeopar dy impediment i n allowi ng Maupin, like Hale, to be tr ied for lesser offen ses simplybecause she was convicted of the greater offense under a flawed statute. 859 S.W.2d at 318-19.

Simi larly, in the case at bar, the jury was not required to pa ss on th e alte rnat ive counts of attemp ted premeditated m urder and its lesser o ff enses and there has therefore been no factual r esolution of the de fendant’s guilt or innocence of those crimes. Indeed, t he on ly factual resoluti on made by the j ury on the at tempted murder counts wasthat the defendant did attempt to murder two people. Analog ously to M aupin, the defendant in this case was co nvicted of an offense under a flawed legal interpretati on of the attempt and felony murder statutes . The jury was not g iven an oppor tunity to
con vict B urns of the cogni zable cri mes of attempted premeditat ed murder or i ts lesser offenses. Double jeopardy should not, theref ore, bar his retri al for thes e offenses. Accordinglywe hold that this matter is to be remanded for the defendant to be retried on two counts of attempte d premeditated mu rder.21 V. SP EC TAT OR DI SP LAY The defendant also contends t hat he should be g iven a new trial because of an “outburst” by members of the victi ms’ families dur ing testimony. He argues that this “outburst”was “pr

ejudicial and designed to g ain the juror s’ sympathy .” How ever, upon his lawyer’s object ion, the tria l court found as foll ows:

What you have here is two indivi duals invo lved -- the mothers of the de ceased two ind ividu als. It was n ot a gr eat o utbu rst. I t wa s something the court would characterize more as a sob, and that was closelycontiguous with test imony that t he deceased, [Johnso n], somehow

gotout of the car; he stopped to see if traf fic was coming -- car was coming ; he got acr oss the street ; he was hol ding his han ds out. The witness

demonstrated say ing “Hel p me, help me,” then he stumbled and fell. At that point, I believeone of the ladies, w ho was a parent of that deceas ed, and one other w ho was the par ent of the other deceased, got up and left the court room. They did n’t slam the door or anythi ng like th at. I w ouldn’t say there was

a great hubbub or anything like that. One of them sobb ed. I would not say it was a particular ly loud one. It was n oticeable, but t hat’s about it.

. . . . I don’t think i t’s unexpec ted by any

of the jurors t hat someone would not have some emoti onal reaction to a descript ion of their chi ld.

. . . Under the circumst ances, as they existright now , the court does not think it’s somethi ng that’s g oing on, on an o n-going basis. It does not appear to be any calcu lated display of histrionics or anythi ng like th at forthe purpose of inf luencing the jury or soliciti ng or eliciting their passions.

. . . . It was not any

thing that was done overtly

. It was a s ob, and the partiesimme diat ely removed themselves witho ut undue display when theiremotions got o ut of control. Now, I don’t believe there are going to be any other

witness es that would testify to bei ng eyew itnesses to these events. So, I don’t thi nk the problem i s going to rise ag ain.

. . . I don’t think t hat the behavi or exhibi ted by the tw o ladies in q uestion is outrageous or

anything like that or

particu larly offensive. I don’t think it’s li kely to happ en agai n, so I d on’t think we will have any further problem. But in any event, looking at the jury’s r eaction -- I always do that -- it did not appear that the y were unduly disturbed by the thin g.22 We f irst note th at defens e couns el did not move for a mi stri al at t he time this incident occurred. Rather, he objecte d and requested that the m others re move themselvesfrom the courtroo m if the testimony was “g oing to be too painful for them to sit [there] without an outburst.” D efendant then raised for the first time in his motion for
new trial the ar

gument, again presented here, thatthe trial court should have sua sponte granted a mistrial.

We disagree. As this C ourt has stated earlier, The entry of a mistrial is appropriate w hen the trial cannot continue, or, if the trial does continue, a miscarriage of justice will occur. Whether an occurrence during the course of a trial warrants the entry of a mistrial is a matter whi ch addresses i tself to the sound discretion of the trial court; and this Court will not interfere with the exercise of this di scretio n abs ent c lear abus e app eari ng o n thefaceof t h e record. State v. McPherson , 882 S.W.2d 365, 370 (Tenn. Crim. App. 1994). In McPherson , the defendant was on tr ial for aggravated rape. In recounting the crime on the witness stand, the vic tim became upse t. The court called a rece ss, bu t beforethe ju ry h ad left the ro om, the vic tim-wit ness coordinat or for the distr ict attorney ’s office came into t he courtroom and began hugg ing the v ictim. The defendant requested a mistrial , which t he trial court den ied on the grounds that it was “ < satisfied beyond a reasonable do ubt that it did not change the outcom e o f [the] trial.’ ” Id. This Court affirmed the trial court’s deci sion, finding n o a buse of discreti on. Similarl y, in State v. Adk ins , the mi nor v icti m became upset and cried while on th e witness st and in a n aggr avated s exual batter y case. The jurywas not s ent out ofthe courtroom un til two to four minutes had passed. On ap peal, the defendant c ontended that he was entitled to a mistrial and new trial on this basis. Our S upreme Court held, “W e do not believe the behavior of the witness was so prejudicial that the defendant could not receive a fair trial.

. . . The grant ing of a mistr ial is with in the discretion of the trial court. A r eviewi ng court w ill not disturb tha t actio n absent a finding of abuse of that discretion .” 786 S.W .2d 642, 644 (Tenn . 1990).23 In the instant case, althoug h no motion for mistr ial was made, it is cl ear from the cou rt’s remar ks in respons e to defense counsel’ s objection th at it had determined the defendan t suffered no p rejudice from the vic t ims’ mothers’ conduct. Defense coun sel d eclin ed to reque st a cu rative instructi on and appeared satisfied w ith the trial cour

t’s response to his objecti on. No abuse ofdiscretion has been demonstrat ed in the trial court’s refusal to declare a mistrial sua sponte . This issue is wit hout merit.

VI. A DMISSION OF

PHOTOGRA PH In his next issue, the defendant contends that the tr ial court er red by admitting into evid ence a photogra p h of th e driver’s seat in w hich Dawson had been sitting. The photograph de picts bloodst ains on the seat as well as a small amount of unidentified material w hich the defendant desc ribes as“what could be consi dered guts.” He argues that the photograph w as not probativ

e of any issue and that it was prejudici al and served merely to “ inflame the jury .” The State res ponds that the photog raph was offered in order to prove that Dawson “ di d not have a weapon in the front se at, and to show the force from the close range shots that threw [him] over to the armrest, where he bled considerably .” At trial and upon the defe ndant’s objection to the int roduction of this photograph, the trial cour t found, There is some smearing of blood. I don ’t believe -- well, in the court’s opinion, looking at that, it’s not unduly prejudicial. It doe sn’t elicit any particular

revulsi on in ligh t of what’s commonly on telev ision for adult view ing these day s. . . . It’s not

particularly bloody. Now, I don’t think any adults or any ordinary jury is goin g to get particularly revolted or so distressed by looking at so me mode rate to small amount of dried blood on a front seat. Under our r ules of evidence, the test for determining whether evidence is “relevan t” is easy to pass: “evidence having any tendency to make the existence of any fact that is of conse q uence to the determin ation of the action m ore probable or less probable than it would be wi thout the evidence”is relev ant. Tenn. R. Ev id. 401. As the State poi nts out i n it s br ief, the d efe nda nt had been charg ed with premeditated firstdegree murder. In or

der to prove this offense, the State had to pr ove that the defendant6 Even i f th e photogr aph were notrel evant, we deem its admissi on to hav e been harmless er ror in light of th e oth er ev iden ce a gain st the defe nda nt. 24 killed Daw

son intentional ly, deli berately an d with premeditation. See T.C.A. § 39 -13-2 02(a)(1) ( 1989 Supp). The amount of bl ood depicted in t he photograph, together with the implied posit ion of the vic tim’s body, satisfies the d efinition of relev ant evidence insofar as tendi ng to prove that the defendant shot Dawson i ntentionally

and/or deli bera tely. That is, the phot ograph was probat ive asto the effect of the gunshots upon Dawson’s body and, therefore, as to the is sue of whethe r th e defe ndant shot him accidentally

or intentional ly and/or deliberately . The phot ograp h was a lso p roba tive as to the State’s theo ry of how the victi m was kil led. The refore, we di sagree w ith the defendant that the photog raph was not relevant

.

W hile rel eva nt, a

phot ograph m ay b e ex clu ded “ if i t s probative value is substantially outweig hed by the dang er of unfair prejud ice.” Tenn. R. Evi d. 403. However, this balanci ng test is commi tted to the sound di scretion of the t rial court , and its decision w ill not

be disturbed on appeal absent a showingof clear abuse of di scretion. State v. Stephenson , 878 S.W.2d 530, 542 (Tenn. 1994). No such showi ng has been made here. This i ssue is acco rdingly without mer it. 6

VII. TRIAL COURT’S RESPONSE TO JUROR QUESTIONS In hi s next issue, the defendant asserts that the trial court erred i n its response to the jury

when thejury as ked certain q uestions during i ts deliberati ons in the penalty phase of the trial. Those questio ns propounded by the jury to the trial court were as follows: (1) How many years for l ife? (2) W hat does <

life sentence’ mean? (3) Can we ask for

life witho ut pa role ? Can we stipulate l ife plus so many years? (4) Can we ask for consecutive life sentences?25 (5) What does it mean if you’re sent enced to death and l ife? In response to t hese questions , the trial court stated, “All ri ght. You’re di rected to refer to the charges

an d i nstructions that are contai ned in the jacket. Thank you. You may retire to continue your deliberat ions.” The defendant contends thatthe questions posed indicated that the jury

was consi dering impr

oper matters, and that the trial court “should have directed the j ury that th e questions posed were not p roper consideration s in the determination of the sentence.” The defendant concedes that t here is no author ity for the requirement

that the trial court gi ve this di rection pri or to referringthe jury

to the cha rge and instructi ons given initiall y. The State responds, first, that this is sue is waived because the defendan t did not object to the trial court’s response to the jury’s questions at the time it was given, and second, that the trial court’s response was proper and th at this issue i s therefore w ithout merit ev en if we shoul d consider i t.

We agree w ith the State on both c ounts. As a general rule, “[a] party cannotwitness

misconduct on th e part of the court , await th e result of thever dict, and the n, if i t is against him or her, object to the alleged miscond uct.” State v. Tune , 872 S.W.2d 922, 930 (Tenn. Crim. App. 199 3). The trial court in thi s case took thequestions from the jury after recalling counsel, the defend ant, the court reporter and the jury back into open court in order totake the matter u p on the record. Thus, defense counsel had every opportunity

to object at th e time the tri al court gave its response. Defense counsel chose not to do s o. The defendant will not now be hear d to complain. See T.R.A.P. 36(a) (“Nothingin thi s rul e shall be construed as req uiring relief be grante d to a party responsible for

an error or who failed to take whatever action was reasonably available to prevent or nullify the harmful ef fect of an error.”)

Even if the defendant had notwaived this “err or,” how ever, thi s issue has
no merit. As the defenda nt acknowledges, the trial court follow ed the proper method of fielding the jury’s questions. See Stat e v. Mays , 677 S.W.2d 476, 479 (Tenn. Crim. App.26

1984) (“The proper method of fielding q uestions propound ed by the j ury dur ing deliberations

is to recall the jury, counsel, the defenda nt(s), and the court reporter back into open court and to take the matter up on the re cord .”) Ad diti ona lly, contrary to the defendant ’s contention, the trial court responded pr operly to the jury’s

inquiry

. See, e. g. , State v. Johnson , 698 S.W.2d 631 (Tenn. 1985). In Johnson , a capital case , our SupremeCou rt addres sed a situatio n in whic h one of the jurors had asked questions regardingparole duri ng voir dire

. The Court stated, “the pref erable response to a juror’s inquiry about parole is to in struct the j ury to li mit their del iberations to the instruct ions given them at the close of th e evidence.” Id. at 633. That is exactly what the trial court did in this cas e. In State v. Smit h , 857 S.W.2d 1 (Tenn. 1993), another capi tal case, our SupremeCourt again addressed the pr oper response t o jury i nquiriesabout sentencing and parole. The trial court had ref used to supplement i ts origi nal instruc tions. The def endant argued that information about parole eligibility might operate as mitig atin g evidence and t he trial cour t’s refusal to give addi tional instr uctions “somehow create[d]
a non-statutory

aggrav ating factor of future dangerousness .” 857 S .W.2d at 11 . The Court rejec

ted this arg ument, opining “that to prov ide a jury with the sort ofinformation requested by defendant coul d result in sentences ofdeath based on sheer speculation and on factors other than those enumerated in T.C.A. § 39- 2-203 and sanctioned unde r either [the Tennessee or United States] Constitution.” Id. The trial cour t did not err

in its response to the j ury’s q uestions in th is case, and t his issue i s therefore w ithout merit.

VIII. SUFFICIENCY OF AGGRA VATOR EVIDENCE The jury s entenced the defendant todeath for the felony murder of Damond Dawson, finding as an a ggravating circumstance that he had knowing ly creat ed a great risk of death to two or more persons othe r than the v ictim murdered during the act of murder. See T.C.A. § 39-13- 204(i)(3) (1991 Repl) . The defendant contends t hat the evidence was ins ufficient to support this aggrav ating circumstance, alle ging that “no facts
were introduced dur ing the tri al to prove that [he] knowin gly crea ted a risk o f de ath t o two7 The defendant was also convi cted ofthe f elony murder of one ofthese t wo other peopl e (“t he Johnson fel ony murder” ). However, because ther e is n o dupl icat ion be tween t he ele ments of fel ony m urder and the ag gravator for putting two or mo re other people at great risk of death du ring the mu rder, the J ohn son felon y m urde r con viction d oes not c reate a ba r to us ing the facts on w hich it is base d to prove an aggravat ing ci rcumstance in supportof t he death penalty f or t he Dawson fel ony murder. That is, no Mid dl ebr ooks -type e rror is th ereb y com m itted. Cf

. Sta te v. Mid dl ebr ooks , 840 S. W .2d 317, 346 (T enn . 199 2) (w hen defe nda nt is co nvicte d of f elon y m urde r, the fe lony m urde r agg rava tor, T .C.A

. § 39 -13- 204 (i)(7), m ay not b e us ed a s an agg rava ting circ um stan ce in s upp ort of th e de ath p ena lty because, due to t he broad def ini ti on of fe lony murder and the dupli cati ng lan guage of t he fel ony murder aggravat ing ci rcumstance, t here i s no narr owing ofthe cl ass of deat h-el igi ble de fendant s as requi red by the f ederal and Tennessee consti tut ions) . Nor i s a doubl e jeopar dy pr oblem ther eby cr eated: in u sing the same facts ( toget her wi th t he presence ofthe t hir d occupant in t he car) to est abli sh both t he Johnson fel ony murder conv ict ion an d the agg ravat ing ci rcumstance for the Dawson fel ony murder, the def end ant is n ot be ing pu nish ed tw ice fo r the s am e crim e.

8 The defendant ’s own st atement al so indi cates t hat he sho t atBlackman whil e Eri c Jones and two ot her boy s were i n the l ine offi re. However, because we deem the aggrav atorto hav e been su ffic ien tly pr ov en by th e d ef en da nt’s sh ots into the ca r, w e d ec line to a dd re ss the iss ue of w he the r th is prior conduct by the defenda nt occurred “during the ac t of mu rder” as required by the aggravator.

9 W e also note t hat t he other assail ants sur roundi ng the car were putat gr eat r isk fr om the defendant ’s bul let s. 27 or more p ersons .” How ever, the pr oof at trial est ablished that th e defendant shot Damond Dawson repeatedly, from close range, while Dawson sat in a stationary car wi th two other people. The risk to these two other people is more tha n obvious. 7 The defendant ’s contention that h e did not “knowingly” create this risk is ludicr ous. A person acts “knowi ngly”with respe ct to his c onduct when he is aware of the nature o f his conduct. T.C .A. § 39 -11-302(b)( 1991 Repl). The p roof at trial established that the defendant pointed a loaded pistol into a car in w hich threepeople sat, fire d the pistol i nto the car seve ral times, w alked away

and then wal ked back and shot some more. 8 Clear ly, the defendan t was

“aw are” of the “n ature of his conduct .” Th is i ssue is w holly w ithout merit. 9

The defendant also arg ues th at the State imp roperly relied on the attempted felony murder conv ictions dur ing its c losing argument during the pe nalty phase of the trial. Specifically, he contends that, “In sup port of this agg ravatingcircumstanc e, the State argue d tha t the two (2) companion convicti ons for criminal attempt felony mur der establi shed thi s ag gra

vat ing circums tanc e.”The d efend ant t hen c ites a por tion of th e prosecutor’s closing argument referenc ing the attempted murder verdicts. H owever , the record reveals the entirety of the prosecut or’ s argument i n support of this aggravating10 In fac t, Eric J one s tes tified tha t he h ad b een playing b ask etba ll with two o ther b oys, no t three

. Thus, i n addi ti on to Bl ackm an, t here were thre e other persons i n the l ine offi re, not f our as ar gued by the St ate. This er ror i n reci ti ng the f acts dur ing ar gument was harmless. 28 factor on initial closing argument as fo llows:

In this p articular case, the state has alleged that there are t w o aggravating factors, and I’m going to talk about them briefly . Both of them have been prov

en, I submit, by proof that is put on during the guilt phase of the trial ; and the judg e wi ll instru ct you that you may use what proof has

been put on in the trial to consider at this phase of the trial - - in sentenci ng -- both as to aggr avating factors and as to any mitig ating factors

also.

. . . . Now, the two ag gravati ng factors that we i ntend to go int o -- or that the state submits ha[ve] been pr oven to you is, first of all, that the defendant caused risk o f great bodil y harm to tw o or more other persons other than the intended v ictims of this crime. Now, what we’re tal king about i s when Mr . Blackman was running from the car, Eri c Jones wa s in the way of the shooti ng. Eric Jones confronted Tommie Blackman as he ran from the car and was cau ght in this gu nfire. Now , fortunately he wasn’t hit. But also there were three other young men playing basketball on the side of the yard. All three of thos e you n g men were also caught in the gunfire of the i ndividual shooting at Tommie Blackman. That is risk of death or gre at bodily i njury to persons other than the intended victims in this case

. Now, we’ve proven there were fourpersons -- in addition to Tomm ie Blackman, there were four pe rsons 10 that were in the line of fire. That is one of the agg ravating facto rs i n this case, l adies and gentlemen. And then on final cl osing arg ument:

[As to the] risk

of death to two o r more people. How about -- h ow about Eric Thomas w ho caught threerounds in hi s body fired not by one of [the defendant’s] co- defendants but bythat man rig ht there. He shot him and shot

him and shot h im. That’s a prett y good r isk of death. How about

Tommie Blackman who’s running? There’s a risk of death to two people righ t th ere, no t even counti ng the chil dren playing bask etba ll. W e have n’t p roven a risk of d eath to two or more people? My God, you’ve return ed a verd ict that he atte mpted to murder two other people. It is established, beyond a reasona ble doubt, and already

been found as a ver

dict t h at there wa s a risk of death to two o r more people. It is this very latte r portion of the p rosecutor’s closing argument about w h ich the defendant now complains.29 We first note that the defendant raised no objection to the prosecu tion’s argumentat trial. According ly, any argument of pros ecutorial mi sconduct h a s been waived

. State v. Ki llebrew , 760 S.W.2d 228, 231 n.11 (Tenn. Crim. App. 1988); T.R.A. P. 36(a). Even if the defendant’ s objection had not been waived, however, the prosecutor’s argument, when taken i n its entirety, was not i mprop er. T he pr osec utor told the j ury, corre ctly, that it could relyon evidence which had been admitted during the guilt phase of the trial. He then went on to ar gue a couple of

different ways in whi ch he thought th e proof su ppor ted the aggravating factor. He did not empha size one over the other. He did not tell the j ury that i ts verdi cts of attempted felony murder meant thatthe aggravating factor had already

been establ is hed or that it did not have to follow the trial court’s instruction s about its duty to determinethe exist ence of one or more ag gravati ng factors. And the court did not instruct the j ury t hat its attempted mur der verdi cts constitu ted or were the equivalent of a finding of the aggravating factor.

Moreover, the jury did not have to accept the prosec utor’s inter pretations of the evidence: it was free to interpret the evidence i n any wa yit cho se with in th e con text of the court’s instruction s on the aggr avating factor. Indeed, the State di d not make the easiest argument in s upport of this factor : that by repeatedl y firing a pistol into a car in which three people si t, the shooter c learly creates a ri sk of death to every occupantof the
car and possibly

those outside i n the immediate are a. This argument is wi thout merit.

IX. PROPRIETY OF DEATH SENTENCE The defendant next cont ends that “his role was minor in this case, an d as such, requires

reversa l of the death sentence.” W e first note that the de ath penalty in this
case was impose d for the defendant’s felony murder of Damond Daw son. We also note,
as set forth above, that the ev idence was sufficientto support the j ury’s v erdict that

the defendant murdered Dawson in the perpet ration of a robber y. The defendan t’s role in this crime, as determined by the jury , was har

dly “minor .”30 The defendan t arg ues that, sinc e he was under the impressi on he was joining the other assai lants to parti cipate in a fight, and that he had no kn owledge of the robberyor intent to commit it, the sent ence impo sed i s disp ropo rtion ate t o his culp abil ity, relyingon Enmund v. Flo rida , 458 U.S. 782 (1982), a nd State v. Br anam , 855 S.W.2d 563 (Tenn. 1993). In Branam , our Supreme Court o utlined the controlli ng law addressing the def endan t’s claim , constru ing Enmund in the process:

In Enmund v. Flo rida , . . . the Unite d States Supreme C ourt held that death is a dis proportionate pe nalty and, t herefore, constitutescruel and unusual punishment under th e Eig hth Amendmen t, where it is imposed against a defendant < solely for participati on in a robbery in which another robber

takes life,’ without p r oof that the defendant himself attempted or inte nded to kill, or intended that let hal force be used. This constitutional standard was refined by the Court in Tison v. Arizona

. . . in which itwas held that the Eighth Amend ment does not prohibit the dea th p enalty in the case of a def endant whose participatio n i n a felony that results in murder is major and whose mental state at the ti me is one of reckl ess indifference to the value of human life -- even though the proof fails to show intent to kill. 855 S.W.2d at 570.

The defen dant’s argu me nt on this is sue assumes that t he evidence w as insufficientto prove that he is guilty of felony murder. As is seen above, however, the evidence does sufficientl y prov e h is guilt . Even if the defendant did not actual ly shoot Dawson, as the evidence indicates, t he defendant’s own statement that he s hot several times at Blackman demonst rated that he “attemp ted or intended to kill, or intended that lethal force be us ed. ” At the very least , this represents a “rec kless indi fference to the value of human li fe.” This issueis therefore w ithout merit.

We deem it appropri ate to consider within the context of this i ssue the propriety of the defendant’s death se n tence in light of the determinations which our legislature requires this Court to make in every direct appeal of death penalty cases. That is, we must deter mine whether the defendant’s sentenc e of death was i mposed in any arbitraryfashion; whethe r the e videnc e supports the j ury’s findi ng of the agg ravating11 The m it igat ion pr oof consi sted ofthe def endant’ s parent s’ t esti mony that he was a “good son” and thatthey

lov ed him; hi s brot her’ s test imony t hat t he defendanthad been a good e mployee and that he had never

known the def endant t o be vi olent ; t esti mony that the def endant had att ended church ser vices regu larly; and th at he had bee n we ll beha ved in jail.

12 The statutoril y required determination that the death penalty was not imp osed in an arbitrary fashi on was made withoutthe bene fi t of the “ Report ofTrial Judge i n Capit al Cases” as requi red by our Supreme Court i n it s Rule 12. The absence of t his r eport does not preventus from conducti ng the requ ired re view. See Stat e v. Cazes , 875 S.W .2d 253, 270 (T enn. 1994). 31 circumstance; whether th e evidence sup ports the jur y’s findingthat the agg ravating circumstance outweig hs the mitigatingcircumstanc es; and whethe r the defendant’s deat h sentence is excessive or disproportionate to the penalty imposed in similar cases,
c onsidering both the nature of the crime and the defendant. T.C.A. § 39-13- 20 6(c)(1 ) (1996 Supp).

As set forth above, we have determined that the evidence supports the jury’s finding of the aggrav

ating circumstanc e that the defendant know ingly created a great risk of death to two or more persons, other than Daws on, during hi s murder of Dawson. The evidence al so supports thejury’s finding that th is aggr

avating circumstanc e outweig hed the mitigatingcircumstanc es offered during the p enalty phase of the trial. 11 We further find, based upon our

review of the entire record of this cause , that the sentence of death
was not i mpo sed i n any arbitra ry fashion. Finally , we have determined that t he death sentence in this case i s neither excessive nor dispropor tionate to the penalty imposed in similar ca ses, consider ing the nature of this felony mur der and the defendant. 12

X. VICTIM IMPACT EVIDENCE In his penultimat e issue, the defendant claims that thetesti mon y of the
v ictims’ moth ersdur ing the p enal ty p haseof th e tr ial abou t theimpa ct o f the v icti ms ’ deaths was ir relevant t o any sentencing determination, hi ghly i nflammatory and admitted in vio lation of Tennessee’s death penalty

statutes; Tennesse e’s Rule of Ev idence 403 ; Article 1, §§ 8 and 16 of the Tenness ee Constituti on; and the E ighth and Four teenth Amendments to the United S tates Constit ution, and that hi s death sente nce ough t32

therefore be set as ide. We disagree.

Under our death penalty stat utes, during the sentencingproceeding evidence may beprese nted as to any matter that t he cour

t deems relevant to the punishment and may include, but

not be limited to, the nature and ci rcums tances of the crime; the def endant’s character, background histo ry, and physical condition; any evidence te nding to establish or rebut the ag gravati ng circumstances enumerated [herein]; and any ev ide nce tending to est ablish or rebut any mitigatingfactors. Any such evidence which the court deem s to h ave prob ative value on the issue of punishment may be received regardless of its admissibil ity under the rulesof evidence; provided, that the defendant is accor ded a fair opportuni ty to rebut any hearsay statements so admitted. However, this s ub section shall not be construed t o au thorize the introduction of an y evidence secured in viol ation of the constitution of the United States or of the st ate o f Tennessee. T.C.A. § 39-13-204(c) (emphasis added). Given the plain lan guage of this statute, the defendant ’s argument that victim impact evidence is inadmissible under T ennessee Rule of Evidence 403

is misplac ed. If the evidence i s properly admissible und er this stat ute, its inadmissibi lity under our rules of evidence is inapposite. If it is not properly admissible under this statute, then its inadmi ssibilit yunder 403 is s imply redu ndant. See also State
v. Odom , 928 S.W .2d 18, 28 (Tenn. 1996) (“This statu te expressly exempts evidence adduced in capital senten cing proceedings from the usual evidentia ry rules.”)

In 1979, our Supreme C ourt construed identical l anguage in t he thencurrent capital sente ncing prov isions of our C ode in Cozzol ino v. Stat e , 584 S.W.2d 765 (Tenn. 1979). It held:

O n its face secti on (c) would seem to permi t the introduct ion o f evidence <

relevan t to the punishment’ in addition to that < tending to establish or rebut the aggravating ci rcums tances’ or < tending to establish or

rebutany mitig ating factors .’ However, this interpretati on is one t hat we cannot accept. Wh en the statute is considered a s a whole, it is clear th at the only issues that the jury may properly consider in reachinga decision on the sentence to beimpo sed are whether the State has est ablished on e or mo re of the aggr avating circumstances

beyond a reas onable doubt and, if s o, whether any mi tigating factors have been shown that would outweigh tho s e aggr avating circumstanc es. Any evi dence that does not go to th e pr oof of one or the other of those issues i s irrelev ant to the jury’ s deliberation. We cannot b elieve that the legi slature inten ded that irrelevant evidence beplaced b efore the jury , fraught as su ch a procedure would be w ith the < subs tant ial ri sk th at [t he de ath p ena lty]33 would be infl icted in an a rbitr ary or cap rici ous ma nner, ’ Gregg v. Georgia , 428 U.S. 153, 188, 96 Sup. Ct. 2909, 2932, 49 L.Ed.2d 859 (1979), i.e., on the basis of factors other than those deemed by the legislature to be proper pr edicates for the s entencing determination. We think that a bet

ter interpretation of TCA § 39 -240 4(c), and one more in kee ping wi t h both the sense of the entire statute and the mandate of the United States Supreme Court, see, e.g., G regg v. Georgia , supra ; Lockett v. Ohio , 438 U.S. 58 6 , 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), i s that evidence i s relevan t to the pu nishme nt, and thus admiss i ble, only if it is rel evant to an ag gravati ng circumstance, or to a mitig ating factor r aised by thedefendant. Cozzol ino , 584 S.W.2d at 767-68 (emphasis added) . We note, h owever , that the evidence challenged as irrelev ant in Cozz olino wa s proof that the defendant ha d committed subseq uent crimes. Victim impact evidence was not at issu e.

Our Supreme Court has neither overr ule d nor modified its decision in Cozzol ino

. It has, however, si nce indicated t hat, even wh ere “technically ir relevant,” victi m impact considerations may be relevant to a de fendant’s “persona l responsib ilit y and moral guilt.” State v. Pay ne , 791 S.W.2d 10, 18 and 19 (Tenn. 1990), aff’d 501 U.S. 808 (1991). In Payne , the Cour t co nsidered the br utal stabbing murders of a young mother and her daughter

and the simultaneo us stabbing of the wom an’s young son . Admitted into evidence w as the grandmoth er’s testi mony that the y oung son “cries for his
mom. He doesn’t s eem to understand w hy she doesn’ t come home. And he cries for his sister Lacie. He come to me many times during the week

and asks me, Grandmama, do you miss my Lac ie. And I tell yes. He says, I’m wor ried bout my Laci e.” On appeal, the Court was

not faced wit h the argument t hat this statement was not properlyadmissible under Tenn essee’s death pena lty statut e, but rather t he defendant argued that the testimony

violated his constitutional rights under Booth v. Mar yland , 482 U.S. 496(1987). The Court held t hat, “[w] hile tec hnic ally irrelevant, that statement d id not create a constitutionally unacceptable r isk ofan ar bitra ry imp osit ion o f th e dea th pe nalt y, and was harmless beyond a reasonable doubt .” Payne , 791 S.W.2d at 18. The Court made no reference to either Cozzol ino or the statutor y languag e construed therein.34 Also at issue in Payne was the pr osecutor’s us e of victim i mpact concerns in his argument to the jury. In response to the def endant’s assertion that th e State’s closing ar

gument viol ated his Eig hth Amendment rig hts, our Supreme Court stated: We are of the opinion that th e prosecutor’ s argument i s relevan t to this defen dant’s persona l respon sibility an d moral gu i l t

. Wh en a person deliberately picks a butcher knife out of a kitchen drawer and proceeds to stab to death a twenty-eigh t year old m othe r, he r two and one-half year

old daughter

and her three and one-half year old son, in the same room, the physical and mental condi tion of the boy he left for dead is surely relevant in determ ini ng his < blameworthi ness.’ It is an affrontto the civ ilized member s of the human race tosay that at sentencing in a capital case, a parade of witnesses may prais e the background, character and good deeds of Defendant (as was done in this case ), without limitati on as to relevancy, b ut noth ing may b e said that bears upon the character of, or the harm imposed, upon the victims.

. . . . [W]e are of the opinion that assuming the argument here viol ated the Eighth Amendment, as inte rpret ed by the Uni ted States Sup reme Court, we think it subject t o har mless error analysis . . . [and] the State’s arg ument was har mless beyond a reasonable doubt. Payne , 791 S.W.2d at 19.

On appeal, the Uni ted States Supreme Court affirmed our Supreme Court’s holding in Payne , thereb y overruling i ts earlier Booth decision. S pecifically , the United States Supreme Cou rt held in Payne that,

if the S tatechoo ses to pe rmi t theadmi ssi on of v icti m imp act evidence and prosecutor ial argument on that subject , the Eighth Amendment erects no per se bar. A State may legitimate ly concl ude that evidence abou t the vict im and aboutthe impact of the murder on the victim ’s fa mily is releva nt to the jury’ s decision as to whether

or not the death penalty

should be imposed. There is no reason to treat such evidence differently tha n other relev ant evidence is treated. Payne v. Tennessee , 501 U.S. 808, 827 (1991 ).

It is difficult to

reconcile our Supreme Cour t’s decisi ons in C oz zolinoand Payne

. While the Payne Court was not presented with the issue of the admiss ibility of35

the victim impact evidence under the death p enalty statute, it certainly had the power to comment upon the issue ha d it chosen to do so. See T.R.A.P. 13(b)

. See also Stat e v. Bigbee , 885 S.W.2d 797, 808 (Tenn. 1994) (v ictim impact evidence chal lenged on constitu tional grounds found har mless; no reference to the death penalt y statute or Cozzol ino ). Moreover , when aga in presented w ith the issueof prosecutoria l argument focusing on v ictim impact in State v. Shepherd , our S upreme Court held “ Such v icti mimpact argument is

not imprope r,” citing Payne : although it went on to caution the State “to utili ze such arguments advisedly.” 902 S.W .2d 895, 907-08 (Te nn. 1995). It appears, then, that the Court is not anx ious to find vic tim impact ev idence inadmiss ible; and, even when it is “technically” so, the Court appears prone to find its adm ission harmless.

In the present cas e, the State call ed the mothers of the tw o mu rdered vic timsto testify du ring the s entencing phas e of the trial. Dawson’ s mother testi fied that the shootings h ad had a negat ive effect on the neighborhood, ma king her neighbors “sc ared to look out the door;” that sh e had had to buy another house becaus e she couldn’t continue to live in the one in which herson had lived; that ever ything h ad changed and h er lif e wo uld never b e t he same; that she i s now div orced; and that s he “sure would like to know what it feels like to feel happy ag ain -- just to feel happy.” Johnson’s mother

testified that, s ince her son’ s death, “It’ s been hard tolet go . I kn ow I can’t see Tracey anymore. A day don’t pass I do n’t shed a tear .” She also t estified about the effects of he r s on’s death on her other childr

en, her father and Tra cey’s young daughter.

In lig ht of Cozzol ino , we fin d ourselves constrained to hold that th is evi den ce was “technically irrelevant.” However, following our Supreme Court’s lead in Payne , we also fin d thatits admissi on did not creat e a constitutionally unacceptable risk of an arbitrar

y impositi on of the death penalty and washarm less beyond a reasonable doubt. The jury found a s the sole agg ravator t hat the defendant had know ingly created36

a great ri sk of death to two or more persons ot her than the murder victim during the act of murder. There was more than su ffic ient pro of on t his poin t to supp ort the ju ry’s findi ng. Moreover, the trial j udge correc tly inst ruc ted t he jury as to the aggr

avating factors at issue, tell ing them that he had

read to you the aggravating cir cu mstances whi ch the law requires you to consider if you find, beyond a reasonable do ubt, that the evid ence wa s established. You should not take into accoun t any other facts or circumstances as thebasis for deci ding whe ther the death penalty would be appropri ate punishment in t his case, except as such fact[s] and c ircum s tances may establish miti gating circumstances or factors

. (emphasis added). Thus, the jury was instruc ted to not consider the victim impact evidence in decidingwhether to impose the death penalty. A jury i s presumed to foll ow its instructi ons. See, e. g. , State v. Bl ackmon , 70 1 S. W.2d 228, 233 (Tenn. Crim. App. 1985).

With respect to thedefendant’s argu ments that the adm iss ion of the evidence was unconstitutional, the discussio n above demonstrates tha t there is no per se Eighth Amendment ba r to the admissibil ity of victim impact evidence. And because
we find the admission of the e viden ce in this c ase t o have been harm less error , we also find that the evi dence did not ren der the defendant’s trial f undamentally unfair in v iolation of his due proces s rights under the Four

teenth Am endment. Cf

. Payne v. Tennessee , 501 U.S. 808, 831 ( 1991). (If such victi m impa ct evidence so infects the s entencing hearing as to render it fundame ntallyunfair , the defendant may tak e appropriate r

elief under the due process clause.) ( O’Connor, J. , concurring ). Finall y, the defendant has cited us to no authori ty holdingthat Articl e I, Sections 8an d 16 of the Tennessee Constitution afford him any gr eater protecti on. According ly, this issue is w ithout merit.

XI. CONSTITUTIONALITY OF DEATH PENA LTY In his last content io n, the defendant maintains that Tennessee’s d eath penalty statutes are unconstitutional. He acknow ledges that hi s challeng es have been37

rejected by

our Su preme Court, but reserves the issues for later review. This Court is, of course, bound by

our Supreme Cour

t’s prior holdings t hat Tennessee’s death penalty statutes are constitu tional. Acco rdingly , we hold w ithout further di scussion thes e issues to be meritless

. See, e. g. , State v. Smit h , 893 S.W.2d 908 (Tenn. 1994), cert. denied ,

__U.S. __ (1995) ; State v. Br immer , 876 S.W.2d 75 (Tenn. 1994), cert. denied , __ U.S.

__(1994); State v. Ca zes , 875 S.W.2d 253 (Tenn. 1994), cert. denied , __ U.S. __ (1995); State v. Smit h , 857 S.W.2 d 1 (Tenn. 1993), cert. denied , 510 U.S. 996 (1993); State v. Black , 815 S.W.2d 166 (Ten n. 1991); Stat e v. Bo yd , 797 S.W.2d 589 (Tenn. 1990), cert. denied , 498 U.S. 1074(1991); State v. Teel , 793 S.W .2d 236 (Tenn. 199 0), cert. denied , 498 U.S. 1007 (1990); State v. Thompson , 768 S.W .2d 239 (Tenn. 198 9), cert. denied , 497 U.S. 1031 (1990).

The defendant’s conv ictions for att empted felony murder are rever

sed and dismissed and this cause is r emand ed for further proc eedings on the two counts of attempted premeditated murder. The judg ment below i s otherwi se affirmed.

______________________________ JOHN H. PEA Y, Judge
CONCUR:

______________________________ JOE B. JON ES, Jud ge

______________________________ JOE G. RIL EY, Judge