IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

August 25, 2009 Session

STATE OF TENNESSEE v. HUBERT GLENN SEXTON

Direct Appeal from the Criminal Court for Scott County

No. 7685 E. Shayne Sexton, Judge

No. E2008-00292-CCA-R3-DD - Filed December 7, 2010

A Scott County jury found the Appellant Hubert Glenn Sexton guilty of two counts

of first degree murder arising from the deaths of Stanley and Terry Goodman. Following

penalty phase, the jury found the presence of one statutory aggravating circumstance, that the

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

arrest or prosecution of the defendant or another, and that this aggravator outweighed any

mitigating factors. See T.C.A. § 39-13-204(i)(6). The jury imposed sentences of death.

Appellant Sexton seeks review by this court of both his convictions for first degree murder

and his sentences of death. He raises the following issues for our review:

I. Whether the trial court erred in denying a motion for change of venue;

II. Whether the trial court erred in failing to properly admonish the jury before

and during trial;

III. Whether the trial court erred in failing to adequately voir dire the jury

regarding extrajudicial information;

IV. Whether the trial court erred in failing to excuse certain jurors for cause;

V. Whether the trial court erred in admitting allegations of child sexual abuse;

VI. Whether the trial court erred in admitting testimony regarding the Appellant’s

willingness and later refusal to take a polygraph examination;

VII. Whether the trial court erred in admitting statements made by the Appellant’s

wife;

VIII. Whether the trial court erred in admitting evidence that was similar to the

murder weapon;

IX. Whether the trial court erred in admitting evidence of an unrelated speeding

arrest;

X. Whether the trial court erred in admitting evidence that Appellant alleges was

unlawfully obtained from his vehicle;

XI. Whether the trial court erred in admitting evidence relating to the preparation

of Appellant’s IRS tax forms;
XII. Whether individual and cumulative instances of prosecutorial misconduct

denied him a fair trial;

XIII. Whether the convicting evidence was sufficient to support his convictions;

XIV. Whether the verdict was contrary to the weight of the evidence;

XV. Whether Tennessee’s death penalty scheme is constitutional; and

XVI. Whether the trial court erred in denying the motion for new trial based on

cumulative error.

Following our review, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

CAMILLE R. MCMULLEN,J., delivered the opinion of the court, in which JOSEPH M. TIPTON,

P. J., and D. KELLY THOMAS, JR., J., joined.

Larry M. Warner, Crossville, Tennessee, and Leif E. Jeffers, Assistant Public Defender,

Huntsville, Tennessee (at trial); James A. Simmons, Hendersonville, Tennessee, and Richard

L. Gaines, Knoxville, Tennessee (on appeal), for the Defendant-Appellant, Hubert Glenn

Sexton.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael Moore, Solicitor General;

Mark E. Davidson, Assistant Attorney General; William Paul Phillips, District Attorney

General, John W. Galloway, Jr., Assistant District Attorney General, and Sarah H. West

Davis, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

In the late evening of May 20, 2000, Stanley Goodman and Terry Sue Goodman were

shot and killed in their home in Scott County, Tennessee. This occurred shortly after B.G.,

the Appellant’s minor stepdaughter, had reported to authorities that the Appellant had

sexually abused her. Stanley Goodman, one of the victims, was B.G.’s biological father.

The Appellant denied the allegations of sexual abuse and believed that Stanley Goodman was

responsible for B.G. falsely accusing him of sexual abuse. The proof at trial showed that the

Appellant shot and killed both victims while they were in their bedroom. The Appellant

admitted his actions to several witnesses who testified at trial.

Guilt Phase.

Hope Tharp, the Child Protective Services team leader in Cleveland, Tennessee,

responded to a courtesy request from the Scott County Department of Children’s Services

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to investigate allegations of sexual abuse of B.G. by her stepfather, the Appellant. During

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this investigation, Ms. Tharp was apprised that, on May 16, 2000, the Bradley County

Department of Children’s Services (DCS) was asked to respond to similar allegations B.G.

had made to personnel at Black Fox Elementary School. Ms. Tharp interviewed B.G. and

B.G.’s mother. As a result of the reports and the investigation, the decision was made to

remove B.G. and two other children from the Sexton home. Ms. Tharp instructed members

of B.G.’s family to come to her office that day at 4:00 p.m. The Appellant and one of the

children in the Sexton home did not come to Ms. Tharp’s office.

Ms. Tharp eventually went to the Sexton residence, where she encountered the

Appellant for the first time. Ms. Tharp informed the Appellant that B.G. had reported that

he had sexually abused her and “on that basis [DCS] had to file a petition for custody since

the mother was not believing her.” She informed the Appellant that he would have to return

to her office to complete necessary paperwork and to be interviewed regarding the

allegations. When confronted with B.G.’s allegations of sexual abuse, including forced

fellatio, the Appellant denied that any “of that stuff occurred.” The Appellant explained that

B.G. was getting this information from her sister and her father. The Appellant further stated

that B.G.’s father, Mr. Goodman, had telephoned him in February 2000 and had the

Appellant listen to a tape. On the tape, Mr. Goodman was telling B.G. to say things related

to her allegations against the Appellant. The Appellant stated that B.G. “made all this stuff

up. . . she’s got it from her dad. . . . he put her up to it.”

Bradley County Sheriff’s Deputy Jerry Kyle Millsaps assisted Detective Alvarez and

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DCS regarding the investigation involving the Appellant. Deputy Millsaps observed that the

Appellant was upset and was talking with his wife, Sherry Sexton, about “her family causing

them problems all the time.” Deputy Millsaps also overheard the Appellant state that “he

was not going to jail for child charges – a child abuse charge. If I was to go to jail for

anything, it would be murder.”

On May 16, 2000, Bradley County Sheriff’s Detective Tony Alvarez had responded

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to a complaint initiated by a teacher at the Black Fox Elementary School. Along with DCS,

Detective Alvarez spoke with B.G. regarding the allegation. He later spoke with the

Consistent with the policy of this Court, minor victims are identified by their initials. See State v.

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Schimpf, 782 S.W.2d 186, 188 n.1 (Tenn. Crim. App. 1989).

At the time of the Appellant’s trial, Jerry Kyle Millsaps was employed as a trooper with the 2

Tennessee Highway Patrol.

At the time of Appellant’s trial, Tony Alvarez was employed by the Department of Defense training

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military police officers for the United States Army Reserve.

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Appellant regarding the allegation. Detective Alvarez advised the Appellant of his Miranda

rights. The Appellant waived those rights and signed a written waiver to that affect. The

Appellant informed Detective Alvarez that B.G.’s biological father, Stanley Goodman, was

behind the allegations against the Appellant. The Appellant further advised Detective

Alvarez that “[the Appellant and his wife] had been staying up here with the Goodmans. For

one reason or another, they decided to transfer back to Bradley County. Mr. Goodman was

not too happy about that arrangement. And, as such, he was just getting the children to trump

up some false allegations of improper sexual conduct.”

Later that week, Stanley Goodman contacted Detective Alvarez. At some point after

Detective Alvarez’s conversation with Stanley Goodman, Detective Alvarez again met with

the Appellant. During this meeting, Detective Alvarez informed the Appellant of his

conversation with Stanley Goodman, including Stanley Goodman’s intent to file a petition

to take custody of the children. Detective Alvarez also asked the Appellant about taking a

polygraph test. The Appellant refused to take the polygraph test. The Appellant advised

Detective Alvarez that Special Agent Skip Elrod had informed him that such tests could be

fixed.

Preston Adams and the Appellant rode back and forth to work together for eight to ten

weeks while they worked on a construction project. The Appellant told Mr. Adams of the

pending child abuse charges and that the charges were initiated by Stanley Goodman, his

wife’s ex-husband. The Appellant asked Mr. Adams where he could purchase a handgun.

The Appellant told Mr. Adams that “he was going to try to take care of the matter before it

could escalate any further.”

On May 20, 2000, the Appellant and Mr. Adams went to work around 8:00 a.m.

While they were working, the Appellant told Mr. Adams that “[Stanley Goodman] was

coming down there and that he hadn’t had any sexual contact with the children. And that

– but he wasn’t going to let him come down there before he took care of that.” They left

work around 12:30 p.m. The Appellant drove Mr. Adams to the Budget Inn, where Mr.

Adams was living at the time. Around 6:00 p.m., the Appellant went to Maxi Muffler to

visit with Clinton Daniel Mason, a mechanic at the Cleveland store. The Appellant asked

Mr. Mason whether there was any extra work that needed to be done and he asked for his

gun, a .22 rifle. The Appellant had purchased the weapon from Mr. Mason the previous year

and the weapon was kept at the home of Mr. Mason’s mother. Mr. Mason, accompanied by

the Appellant, made the trip to his mother’s home to obtain the weapon. When they arrived

at The Muffler Shop, the Appellant informed Mr. Mason that he had to “take care of some

business in Scott County.”

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Vella Strunk lived near her brother, Stanley Goodman. Stanley Goodman had three

children, two daughters and a son. One of the daughters, E.G., lived with Stanley Goodman

in Scott County. B.G. and her brother lived with their mother and the Appellant in Bradley

County. Every Saturday night, Vella Strunk and her family attended the races in Scott

County. E.G. would usually accompany the Strunk family. They would not get back home

until sometime after 2:00 or 2:30 a.m. The Appellant was aware that E.G. attended the races

with the Strunk family and was also aware that the Goodman home would be unlocked in

order for E.G. to get back into the home. On May 20, 2000, E.G. accompanied the Strunk

family to the races. Due to rain, the races were cancelled and the family returned home

around 8:30 p.m. The Strunks took E.G. to her home around 11:00 p.m. Vella Strunk

observed that no lights were on in the house. Vella Strunk remained in her car while E.G.

went inside the house to get her some coffee. After E.G. returned with her coffee, Vella

Strunk went home.

The next morning, Vella Strunk telephoned her brother, Stanley Goodman. There was

no answer at the Goodman residence. Within ten minutes, E.G. telephoned Vella Strunk,

crying. E.G. told Vella that her father and stepmother were still in bed and that they had

blood on them. Vella Strunk drove to her brother’s home where she discovered the bodies

of Stanley and Terry Goodman. She then called the police.

Around 3:00 a.m. on the morning of May 21, 2000, Clinton Daniel Mason saw the

Appellant and his wife for about ten minutes at their apartment. He described the Appellant

as being “drunk or something” and his wife as being upset. Around 8:30 a.m. the same day,

the Appellant came to Mason’s house and asked Mr. Mason if he and his girlfriend wanted

to get something to eat. On the way to Denny’s restaurant, the Appellant confided to Mr.

Mason that he had killed Stanley Goodman. Mr. Mason stopped the Appellant from

revealing any more of the details of the murder.

Around 8:00 or 9:00 a.m., the Appellant and his wife visited Preston Adams at his

room at the Budget Inn. The Appellant told Mr. Adams that “the police had been there and

ransacked his house. And . . . that he did commit those crimes. . . .” The Appellant told Mr.

Adams the following:

[The Appellant said that] he stopped at the dollar store and he bought a hood

and he bought sweats and bought gloves. And he had disposed of all hair

follicles off of his body. And that after he had done the crime, he said that he

had burnt all the clothes and he said that he burnt the stock of the gun and

buried the rifle part. . . .

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He said he bought oversized shoes so that it would like that a bigger man had

committed the crime. He also changed the tires on his vehicle, too.

The Appellant told Mr. Adams that Stanley and Terry Sue Goodman were in their bedroom

when he killed them.

Christy Swallows lived in the same trailer park as the Sextons and occasionally

babysat their children. Ms. Swallows was also involved in an affair with the Appellant.

Sometime during the week of May 14, 2000, the Appellant questioned Ms. Swallows

regarding the investigation into the sexual molestation allegations. The Appellant told Ms.

Swallows that Stanley Goodman had played a tape to him. He stated, “That bastard in Scott

County did this.” He added that “he would kill him for this.” On the morning of May 21,

2000, Ms. Swallows was awakened by the Appellant beating and banging on her windows

and doors. She described the Appellant as being frantic and scared. He stated that his wife

had left him. He added that her car was at the police station. The Appellant eventually

admitted to Ms. Swallows that he had killed Stanley and Terry Goodman.

On Saturday, May 20, 2000, Detective Alvarez received a call at his home from the

911 Center stating that Tennessee Bureau of Investigation (TBI) officers or agents wanted

to speak with him because there had been a double homicide in Scott County. On

Wednesday, May 24, 2000, Detective Alvarez received a page from 911 that Sherry Sexton

was attempting to get in contact with him. He contacted Sherry Sexton and had the

conversation recorded. Sherry Sexton sounded desperate. She agreed to meet Detective

Alvarez at the south precinct. Detective Alvarez contacted Special Agent Barry Brakebill

and advised him of the scheduled meeting with Sherry Sexton. At 11:00 p.m., Detective

Alvarez and Special Agent Brakebill met Sherry Sexton.

Thirty minutes into their discussions with Sherry Sexton, Detective Alvarez and

Special Agent Brakebill were advised that the Appellant was at the door. The Appellant was

upset, agitated, and wanted to speak with his wife. He then informed Detective Alvarez that

Sherry was upset and that she did not know what she was saying. Detective Alvarez escorted

the Appellant to the side of the building, while Special Agent Brakebill removed Sherry

Sexton to another location. Sherry Sexton was transported to a safe harbor home to spend

the night. The following day, officers arrested the Appellant for the murders of Stanley

Goodman and Terry Sue Goodman.

Detective Wade Chambers discovered six shell casings throughout the residence on

the first day. He was unable to determine how many times the victims had been shot. He

later returned to the residence and discovered three more shell casings. Dinah Culag, a

forensic scientist with the TBI, examined the nine shell casings recovered by the Scott

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County Sheriff’s Department. Ms. Culag determined that all nine shell casings had been

fired from the same firearm. Although she was unable to determine what type of firearm was

used, she was able to determine that the firearm was not a revolver.

Dr. Sandra Elkins, Knox County Medical Examiner and Director of the Autopsy

Service at the U.T. Medical Center, performed autopsies on the bodies of Stanley and Terry

Sue Goodman on May 22, 2000. Dr. Elkins determined that the cause of death of Stanley

Goodman was multiple gunshot wounds to the head. Stanley Goodman received “four

gunshot wounds to the head, all in the right facial region.” Dr. Elkins determined that the

cause of death of Terry Goodman was also multiple gunshot wounds to the head.

Based upon this proof, the jury returned verdicts finding the Appellant guilty of the

first degree murder of Stanley Goodman and guilty of the first degree murder of Terry Sue

Goodman.

Penalty Phase.

During the penalty phase, the State presented the testimony of Lamance Bryant, a

teacher in Scott County. Mr. Bryant testified that Terry Sue Goodman was his sister. He

explained that, at the time of her death, she was survived by her mother, two sisters, and

himself. Mr. Bryant described his sister as “a very friendly, outgoing person.” He said she

had a “sweet spirit.”

Mr. Bryant described Terry Sue Goodman’s injuries from a car accident in 1985 and

how she managed to overcome some severe physical hindrancesresulting from that accident.

He explained that she had to learn to walk and to talk again. As a result of this accident, she

was never able to work again; however, she was able to walk without a walker on good

terrain. Mr. Bryant stated that, since her death, there has been a void that was not able to be

described with words.

E.G., the fourteen-year-old daughter of Stanley Goodman, stated that she and her dad

were very close. The two of them spent time fishing and gardening together. E.G. also

stated that she was close with her stepmother, Terry Sue Goodman. Since the murders, E.G.

suffered from nightmares and had difficulties being alone. E.G. also blamed herself for the

murders because the door to the Goodmans home was left unlocked for her. She stated that

she no longer felt as if she had a home.

Vella Strunk, Stanley Goodman’s sister, testified that she was very close to her

brother. She explained that her life will never be the same without him. Vella Strunk

verified that E.G. was suffering from nightmares and that she was afraid to be alone.

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As mitigation proof, the Appellant presented the testimony of three witnesses. Lynn

Sexton, the wife of the Appellant’s first cousin and also the first cousin of Sherry Sexton,

testified that she had known the Appellant for about twelve to thirteen years. She explained

that the Appellant, Sherry, and their three children lived with her for about six months. Lynn

Sexton stated that, while his family lived in her home, she had no problems or difficulties

with the Appellant. The Appellant eventually moved his family from her home into a trailer

park in Winfield in Scott County. The family then moved to Bradley County.

Lynn Sexton described the Appellant as a hard worker. She stated that he was not an

alcoholic or a drug user. Lynn Sexton testified that she did not believe that the Appellant

was the type of person to commit murder. She described the Appellant as the type of person

who would come to someone’s aid if needed and the type of person who would listen and

give advice to someone with a problem.

Karen Cooper testified that she had known the Appellant since he was three or four

years old. She stated that the Appellant did not have a stable childhood environment. The

Appellant’ s parents were not always present. She explained that his parents divorced when

he was six years old and that, at the age of seven, he was left with her sister-in-law and her

husband. Ms. Cooper added that the Appellant moved a lot when he was growing up and that

the longest period of stability that the Appellant had was probably when he lived with her

sister-in-law and her husband. She estimated that the Appellant had lived with six to eight

different families before he reached the age of eighteen. Ms. Cooper recalled one incident

where the Appellant stepped off of the school bus and realized that the family with whom he

had been living had moved.

Ms. Cooper related that the Appellant had two older sisters and one younger brother.

She also stated that the Appellant’s father had been in poor health for several years and had

suffered from emphysema. Ms. Cooper said that she believed that the Appellant’s father had

done the best that he could with the Appellant but that he had been overwhelmed by the

entire situation. She conceded that the Appellant’s father had not always approved of the

Appellant’s lifestyle. Ms. Cooper said that she loved the Appellant and believed that he was

able to do some good for people. She also stated that the Appellant was “no genius, but he’s

not stupid either.” She added that, in her opinion, the Appellant was not a manipulative

person.

As its last witness, the defense presented the testimony of Dr. William D. Kenner,

a physician with specialty training in psychiatry, child psychiatry and psychoanalysis. Dr.

Kenner stated that he was contacted by the defense to evaluate the Appellant to determine

if he exhibited any mental health symptoms. He stated that the Appellant moved

approximately twenty-six times before he reached the age of eighteen. He explained that

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“one of the things that happens when you take a child and move him around like that is that

they lose the sense of attachment that they have with adults. . . .” Dr. Kenner continued:

. . . One of the . . . way[s] children learn what’s right and wrong and what’s

moral and even more basic things like, you better think some before you act

and a sense of trust that I can feel confident that . . . this is a fair and benign

world that not everybody is out to get me and things like that. You learn that

from the people that you care about. And your caring about them is not just

that they are reasonably nice people and treat you okay, but also that you’ve

got time on the job with them, that you have been with them long enough to

develop a sense that they’re gonna be around in your life and that they’re going

to be important to them [sic] and you can count on.

He stated that when the Appellant first started school, he was of average intelligence and

could work well with others and people liked him. Then the Appellant began moving. He

was unable to stay in one place long enough to develop friendships. Dr. Kenner stated that

the Appellant was unable to learn how to relate to others. Dr. Kenner testified that the result

of the Appellant’s childhood experiences was an attachment problem. It was his opinion

that the Appellant was unable to form a cohesive sense of who he was.

Dr. Kenner testified that the Appellant’s parents were divorced when he was six years

old. The Appellant’s mother left with another man. He added that the Appellant’s father

spent six months in an Army psychiatric hospital and later developed some heart disease and

chronic lung disease. Because of these health problems, the Appellant’s father was unable

to hold the family together. Dr. Kenner stated that “one of the things that happens to people

when they get hurt psychologically is that they will often repeat that, even though they don’t

mean to.” He explained that this was like the person who has an alcoholic parent. That

person makes a pledge not to marry an alcoholic. Dr. Kenner stated that often this person

will end up marrying an alcoholic. He described this as “reliving that kind of experience.”

Dr. Kenner testified that the Appellant’s younger brother suffered from “mental

retardation problems.” The Appellant’s mother favored this child and kept him and sent the

Appellant off on several occasions. Dr. Kenner stated that the Appellant was reliving this

experience in that the Appellant had a favorite daughter. He explained that people in the

Appellant’s position normally have very chaotic lives with regard to marriage and

employment. They end up repeating for their children the same nomadic-type existence they

had.

Dr. Kenner related that a number of the Appellant’s relatives have histories of mental

illness or substance abuse. He stated that impulsive behavior and mental illness will run in

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families. In families predisposed to mental illness, there will be an increased rate of

substance abuse, and the family environment will magnify these problems. Dr. Kenner

testified that studies in the 1940s revealed that human attachment and involvement was

critical to the well-being of babies.

Dr. Kenner stated that Stanley Goodman represented a threat to the Appellant’s

relationship with his children. This was “something that’s going to set [the Appellant] off

big time.” He explained that the Appellant had “trouble . . . . holding himself on the road

when the going gets rough, when it starts to rain.” Dr. Kenner opined that, regardless of the

veracity of the allegations of sexual abuse, the Appellant would still fear his children being

taken away from him, which would bring up the pain he felt when he lost his family.

Dr. Kennerstated that the Appellant was amenable to rehabilitation and would do well

in the prison setting. He explained that prison life provides a type of “family.” He stated

“you are contained, you know the rules, it’s consistent. . . .” He added that the Appellant

would be less likely to do harm to someone inside the penitentiary than outside. Dr. Kenner

stated that the Appellant would be able to do something positive for society if given a

sentence of life over a sentence of death. He explained that, if the Appellant was given a

sentence of life over a sentence of death, the Appellant’s children would not spend their lives

feeling responsible for their father’s execution.

Dr. Kenner affirmed that the Appellant does notsatisfy the legal definition of insanity.

He further agreed that the Appellant does not suffer from a mental disease or defect other

than a personality disorder.

The jury retired to deliberate at 12:05 p.m. Deliberations were stopped for a lunch

break. At 2:29 p.m., the jury returned to open court with its verdict. The jury found, as to

each count of first degree murder, that the proof established the aggravating circumstance

that the murder was committed for the purpose of avoiding, interfering with, or preventing

a lawful arrest or prosecution of the defendant or another. The jury determined that the

statutory aggravating circumstance outweighed any mitigating circumstances and, therefore,

imposed sentences of death for the murders of Stanley Goodman and Terry Sue Goodman.

I. Motion for Change of Venue.

The Appellant alleges that the trial court erred “by conducting the trial in . . . Scott

County because of its small population, the saturation of the publicity, and the clear impact

this had on the jury venire.” Prior to trial, the Appellant filed a motion to change venue to

a neutral county with an unbiased and uncontaminated jury pool, which was subsequently

denied. In this appeal, the Appellant argues that the trial court erred because the “offenses

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had been well-publicized by local and regional media outlets, and had been generally

discussed throughout the rural, sparsely populated Scott County (population approximately

20,000 citizens).” The Appellant asserts that many of the prospective jurors had received

information through local media sources which was outside the evidence later developed at

trial. He contends that the responses by prospective jurors to the jury questionnaires and voir

dire reflected undue excitement and other prejudice against the Defendant such that a fair

trial could not be had except in another neutral county. He adds that many of the prospective

jurors, including jurors who were ultimately selected to sit on the case, knew the victims and

their family members, who were life-long Scott County residents. The Appellant additionally

complains that many of the jurors personally knew the District Attorney General and the

members of his staff who prosecuted the case and/or the Scott County Sheriff and members

of his staff who investigated the case. The Appellant contends that these personal

relationships with the victims’ family and the investigating and prosecuting officials resulted

in prejudice to the Appellant. The State contends that the Appellant has failed to show that

any of the jurors were unduly influenced by any media coverage or were unable to be

impartial.

The decision to grant or deny a motion for a change of venue rests within the

discretion of the trial court and will only be reversed by an appellate court upon a clear

showing of an abuse of that discretion. State v. Rogers, 188 S.W.3d 593, 621 (Tenn. 2006)

(Appendix). A change of venue may be granted “when a fair trial is unlikely because of

undue excitement against the defendant in the county where the offense was committed or

for any other cause.” Tenn. R. Crim. P. 21(a). When ascertaining whether a trial should be

moved to another county, the court should consider the following factors:

1. The nature, extent, and timing of pretrial publicity;

2. The nature of the publicity as fair or inflammatory;

3. The particular content of the publicity;

4. The degree to which the publicity complained of has permeated the area

from which the venire is drawn;

5. The degree to which the publicity circulated outside the area from

which the venire is drawn;

6. The time elapsed from the release of the publicity until the trial;

7. The degree of care exercised in the selection of the jury;

8. The ease or difficulty in selecting the jury;

9. The venire person’s familiarity with the publicity and its effect, if any,

upon them as shown through their answers on voir dire;

10. The defendant’s utilization of his peremptory challenges;

11. The defendant’s utilization of challenges for cause;

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12. The participation by police or by prosecution in the release of the

publicity;

13. The severity of the offense charged;

14. The absence or presence of threats, demonstrations or other hostility

against the defendant;

15. The size of the area from which the venire is drawn;

16. Affidavits, hearsay or opinion testimony of witnesses; and

17. The nature of the verdict returned by the trial jury.

Rogers, 188 S.W.3d at 621-22 (citing State v. Hoover, 594 S.W.2d 743, 746 (Tenn. Crim.

App. 1979)).

In addition to these factors, the court must be mindful that “[t]he mere fact that jurors

have been exposed to pretrial publicity will not warrant a change of venue.” Id. at 621 (citing

State v. Mann, 959 S.W.2d 503, 531-32 (Tenn. 1997)). Likewise, “prejudice will not be

presumed on the mere showing of extensive pretrial publicity.” Id. (citing State v. Stapleton,

638 S.W.2d 850, 856 (Tenn. Crim. App. 1982)). “The test is whether the jurors who actually

sat on the panel and rendered the verdict and sentence were prejudiced by the pretrial

publicity.” Id. (citing State v. Crenshaw, 64 S.W.3d 374, 386 (Tenn. Crim. App. 2001); State

v. Kyger, 787 S.W.2d 13, 18-19 (Tenn. Crim. App. 1989)).

In support of his argument, the Appellant cites to the Thursday, June, 1, 2000, edition

of the Independent Herald, which reported:

• A spokesman of the Sheriff’s Department reported that the Appellant had been

the primary suspect from the beginning.

• The victims sustained multiple gunshot wounds to the face with a .22 caliber

weapon and were alone in their home when killed.

• Initial interviews with family members led officers to place the Appellant at

the top of the list of suspects.

• The Goodmans were to have traveled to Cleveland on Monday to seek custody

of Stanley Goodman’s other two children.

• One officer reported that the Appellant’s wife was cooperating with the

investigation.

• Sheriff Carson revealed that Goodman had made child abuse allegations

against the Appellant in an attempt to gain custody of the children and the

Appellant said he was coming to Scott County to “take care of the problem.”

He also reportedly told his wife that he had committed the murders.

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Following the preliminary hearing, the Thursday edition of the Scott County News

reported that the Appellant was bound over to the grand jury for the double homicide and

contained the following information regarding the case:

• The State produced testimony of the Appellant’s wife and friend indicating

that the Appellant had told them both that he had gone to Scott County and

killed the Goodmans.

• Cleveland family service worker Hope Tharp’s testimony established a

possible motive in that she provided detailed testimony concerning allegations

of child molestation against the Appellant.

• Deputy Jeremy Kyle Millsaps described his presence at the Appellant’s home

on May 16, 2000, regarding the alleged child sexual abuse charges.

• Deputy Millsaps testified that he overheard the Appellant and his wife

discussing a polygraph examination.

• Clinton Daniel Mason testified that the Appellant told him he killed his wife’s

ex-husband and current wife.

• Clinton Daniel Mason testified that the Appellant’s wife told him that the

Appellant murdered the Goodmans.

The Appellant asserts that, through these newspaper articles, many of the prospective jurors

received information about the case that was outside the evidence developed at trial. He

contends that the responses of the prospective jurors reflected the undue excitement and the

prejudice against the Appellant.

In support of this issue, the Appellant refers to the responses of the following

prospective jurors listed in detail below: (1) Gerald Lewis, (2) Jeanna Jeffers, (3) Linda

Underwood, (4) Thelma Kidd, and (5) Craig Creech.

(1) Gerald Lewis stated that he had “met” the victim, Terry Sue Goodman, through

Goodman’s brother, Lamance Bryant. He explained that he did not know Terry Sue

Goodman well, but stated that “[s]he seemed pleasant when I was around her. . . .” Gerald

Lewis stated that the fact that he had met Terry Sue Goodman and knew her brother would

prevent him from being fair in this case. The trial court then questioned Mr. Lewis, who

clarified his previous statement by declaring, “If I was under oath, I would have to follow the

law, but I don’t think I could be fair.” He added, “I could not be impartial.” The trial court

excused Mr. Lewis for cause.

(2) Linda Underwood stated that she knew the sheriff. She explained that she was not

related to the sheriff and that there was nothing regarding her knowledge of the sheriff that

would keep her from being a fair juror in this matter. A peremptory challenge was exercised

-13-
against Ms. Underwood. The record fails to indicate which party exercised the challenge.

Ms. Underwood did not serve on the jury.

(3) Jeanna Jeffers stated that she knew the sheriff. Ms. Jeffers stated that she knew

the victim Terry Sue Goodman and the victim’s sister, Sharon Lawson. Ms. Jeffers

explained that her relationship with the victim and the victim’s sister was that they were

acquaintances. Ms.Jeffersfurther explained that defense counsel had previously represented

her son. Ms. Jeffers stated that there was nothing regarding her knowledge of the Sheriff,

the Sheriff’s Department, the victim, or the victim’s sister that would cause her difficulty in

serving as a juror in this case. Ms. Jeffers served as a juror. The record reveals that

peremptory challenges were exercised after Ms. Jeffers was empaneled on the jury.

(4) Thelma Kidd stated that she knew the sheriff. She stated that she was not related

to the sheriff and that there was nothing regarding her knowledge of the Sheriff’s Department

which would prevent her from being fair in this case. Ms. Kidd stated that she went to school

with the District Attorney but did not know him other than just knowing who he was. Ms.

Kidd served as a juror. The record reveals that peremptory challenges were exercised after

Ms. Kidd was empaneled on the jury.

(5) Craig Creech stated that he used to work with the victim’s stepbrother Ray. He

explained that he saw Ray in the hallway and asked why he was off work. Ray told him that

he was part of the victims’ family. The trial court excused Mr. Creech for the

communication with the family member.

Other than the two newspaper articles and these statements, the Appellant does not

explain how the trial court erred in denying the motion for change of venue. As such, we

agree with the State that the Appellant has failed to demonstrate that any juror exhibited bias

or prejudice against him based on pretrial publicity. While the record does reflect that

prospective jurors were exposed to pre-trial publicity or knew someone associated with the

case, “the mere exposure of jurorsto newspaper publicity is not constitutional error.” Lackey

v. State, 578 S.W.2d 101, 103 (Tenn. Crim. App. 1978) (citing Murphy v. Florida, 421 U.S.

794, 798, 95 S. Ct. 2031, 2035 (1975)). “One who is reasonably suspected of a serious crime

cannot expect to remain anonymous.” Id. (citing Dobbert v. Florida, 432 U.S. 282, 303, 97

S. Ct. 2290, 2303 (1977)). The Appellant has failed to establish actual bias or prejudice of

any of the jurors who heard the case. The record shows that the Appellant failed to challenge

jurors Thelma Kidd and Jeanne Jeffers peremptorily or for cause. In addition, the Appellant

has failed to show that the trial court’s failure to order a change of venue was an abuse of

discretion. Accordingly, the Appellant is not entitled to relief on this issue.

II. Failure to Admonish the Jury Before and During Trial.

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Citing Rule 24(f) of the Tennessee Rules of Criminal Procedure, article I, § 9 of the

Tennessee Constitution, and the Sixth Amendment of the United States Constitution, the

Appellant argues that the trial court failed to adequately admonish the jury before and during

the trial. Specifically, he argues that “the prospective jurors were not given any

admonishments about their behavior in the week, while they were at home and not

sequestered, between their filling out the juror questionnaire and the beginning of voir dire.”

The Appellant asserts that the “failure to properly admonish the prospective jurors resulted,

among other things, in prospective jurors communicating about this case between themselves

and with other citizens present in the courthouse.”

In response, the State contends that this issue is waived because the Appellant “simply

makes a general allegation” and fails to provide any supporting argument, authority or

citation to the record. Upon our review, we agree with the State, and conclude that the

Appellant has failed to cite to any portion of the record to support his allegation. See Tenn.

R. App. P. 27(a)(7). Moreover, the extent of the Appellant’s argument is that “[t]he failure

to properly admonish the prospective jurors resulted, among other things, in prospective

jurors communicating about this case between themselves and with other citizens present at

the courthouse.” The Appellant fails to specify the “communications” or identify any

improper conduct. Consequently, in our view, any notion that the venire engaged in

improper conduct or were in any way biased or prejudiced by any communication is mere

speculation. The Appellant has not demonstrated any supporting authority for this allegation

and is not entitled to relief.

III. Failure to Adequately Voir Dire the Jury Regarding Extrajudicial Information. 

The Appellant also argues that the trial court failed to adequately voir dire the jury

regarding the content of extrajudicial information. Specifically, the Appellant contends that

eight of the twelve sitting jurors admitted during voir dire to having received extrajudicial

information about the case prior to trial. He submits that only one was asked the nature of

the prior information. In response, the State contends that the Appellant fails to establish that

any juror possessed extra-judicial information.

“The ultimate goal of voir dire is to [ensure] that jurors are competent, unbiased, and

impartial, and the decision of how to conduct voir dire of prospective jurors rests within the

sound discretion of the trial court.” State v. Howell, 868 S.W.2d 238, 247 (Tenn. 1993). A

trial court is granted wide discretion in ruling on the qualifications of the jurors, and a trial

court’s decision in this regard will not be overturned absent an abuse of discretion. State v.

Kilburn, 782 S.W.2d 199, 203 (Tenn. Crim. App. 1989). Unless there has been a clear abuse

of discretion, the trial court’s discretion is not subject to review. See Lindsey v. State, 225

-15-
S.W.2d 533, 538 (Tenn. 1949). A trial court’s finding of impartiality [may] be overturned

only for manifest error. Patton v. Yount, 467 U.S. 1025, 1031-32, 104 S. Ct. 2885, 2889

(1984); Howell, 868 S.W.2d at 247.

 Rule 24, Tennessee Rules of Criminal Procedure, provides: “If the trial judge, after

examination of any juror, is of the opinion that grounds for challenge for cause are present,

the judge shall excuse that juror from the trial of the case.” The rule continues:

. . . Any party may challenge a prospective juror for cause if:

. . . .

(2) The prospective juror’s exposure to potentially prejudicial information

makes him unacceptable as a juror. Both the degree of exposure and

the prospective juror’s testimony as to his state of mind shall be

considered in determining acceptability. A prospective juror who states

that he will be unable to overcome his preconceptions shall be subject

to challenge for cause no matter how slight his exposure. If he has seen

or heard and if he remembers information that will be developed in the

course of trial, or that may be inadmissible but is not so prejudicial as

to create a substantial risk that his judgment will be affected, his

acceptability shall depend on whether his testimony as to impartiality

is believed. If he admits to having formed an opinion, he shall be

subject to challenge for cause unless the examination shows

unequivocally that he can be impartial.

Implicit in Rule 24 is the recognition that jurors do not live in a vacuum. Because certain

cases are by their very nature apt to generate publicity, it may be that some jurors will have

formed an impression or opinion concerning the case. In addressing this problem, the United

States Supreme Court has observed:

It is not required . . . that the jurors be totally ignorant of the facts and issues

involved. In these days of swift, widespread and diverse methods of

communication, an important case can be expected to arouse the interest of the

public in the vicinity, and scarcely any of those best qualified to serve as jurors

will not have formed some impression or opinion as to the merits of the case.

This is particularly true in criminal cases. To hold that the mere existence of

any preconceived notion as to the guilt or innocence of an accused, without

more, is sufficient to rebut the presumption of a prospective juror’s

impartiality would be to establish an impossible standard.

-16-
Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S. Ct. 1639, 1642-43 (1961). Accordingly, jurors

may sit on a case, even if they have formed an opinion on the merits of the case, if they are

able to set that opinion aside and render a verdict based upon the evidence presented in court.

In interpreting Rule 24, prospective jurors who have been exposed to information which will

be developed at trial are acceptable, if the court believes their claims of impartiality. State

v. Shepherd, 862 S.W.2d 557, 569 (Tenn. Crim. App. 1992).

In the present case, eight jurors revealed that they had either read or heard something

about this case prior to trial. While questions to ascertain the content of any publicity to

which jurors have been exposed may be helpful in assessing impartiality, such questions are

not constitutionally mandated, and the trial court’s failure to delve into the jurors’ exposure

is not reversible error, unless the Appellant’s trial was rendered fundamentally unfair. State

v. Cazes, 875 S.W.2d 253, 262 (Tenn. 1994). The jurors all stated that they had read

information in a newspaper. However, each of these jurors also asserted that they could

follow the law and the court’sinstructionsthereon. Accordingly, the Appellant is not entitled

to relief on this issue.

IV. Failure to Excuse Certain Jurors for Cause.

The Appellant also contends that the trial court erred by failing to excuse certain

jurors for cause in violation of Rule 24(b), Tennessee Rules of Criminal Procedure. The

Appellant asserts that the trial court should have excused each of the jurors challenged in the

previous section prior to trial. Specifically, the Appellant complains that the trial court failed

to excuse for cause (1) juror Divine Crabtree, (2) prospective juror Sharon Hughett, (3)

prospective juror Loretta Terry, (4) prospective juror Judith Autry, (5) prospective juror

Jimmy Chambers, (5) prospective juror Tina Sexton, (6) prospective juror Peggy Frogge, (7)

prospective juror Sara Angela Jeffers, (8) juror Pamela Webb, and (9) prospective juror

Daniel Murley. In response, the State maintains that the Appellant has failed to establish that

the trial court erred in conducting the voir dire.

A criminal defendant is guaranteed the right to a trial by an impartial jury. See U.S.

Const. amend. VI; Tenn. Const. art. I, § 9. To that end, parties in civil and criminal cases are

granted “an absolute right to examine prospective jurors” in an effort to determine that they

are competent. State v. Kiser, 284 S.W.3d 227, 279-80 (Tenn. 2009) (citing T.C.A. §

22-3-101). The “proper standard for determining when a prospective juror may be excluded

for cause because of his or her views on capital punishment . . . is whether the juror’s views

would ‘prevent or substantially impair the performance of his duties as a juror in accordance

with his instructions and his oath.’” Id. (citing Wainwright v. Witt, 469 U.S. 412, 424, 105

S. Ct. 844, 852 (1985)). The juror’s biases need not be proven with unmistakable clarity.

-17-
Id. However, the trial court must have a “definite impression” that the prospective juror

cannot follow the law. Id. (citing State v. Hutchinson, 898 S.W.2d 161, 167 (Tenn. 1994)).

Here, all of the prospective jurors challenged by the Appellant in the instant appeal

maintained they could be fair and impartial. Only two of the challenged jurors sat on the

final jury and both maintained they could be fair and impartial and could consider only that

evidence introduced during the trial. Regardless of whether the trial judge should have

excluded the challenged jurors for cause, any possible error is harmless unless the jury who

actually heard the case was not fair and impartial. Howell, 868 S.W.2d at 248; State v.

Thompson, 768 S.W.2d 239, 246 (Tenn. 1989). The failure to correctly excuse a juror for

cause “is grounds for reversal only if the defendant exhausts all [of his] peremptory

challenges, and an incompetent juror is forced upon him.” Ross v. Oklahoma, 487 U.S. 81,

89, 108 S. Ct. 2273, 2279 (1988); State v. Jones, 789 S.W.2d 545, 549 (Tenn. 1990). Here,

the record does not support a conclusion that the jurors impaneled were incompetent.

Moreover, the record before this court fails to reveal the allocation of the peremptory

challenges. Each side had fifteen peremptory challenges, and only twenty-two peremptory

challenges were exercised at the time the final jury was empaneled. Accordingly, the

Appellant is not entitled to relief on this issue.

V.

A. Admission of Allegations of Child Abuse.

The Appellant challenges the trial court’s admission of testimony regarding

allegations of child abuse. Prior to the trial, the State sought to introduce evidence of

specific allegations of sexual abuse, arguing that such evidence established a motive for the

murders of Stanley and Terry Sue Goodman. The State argued that the evidence was not

used to prove prior bad acts of personal violence but rather to prove strong motive. The

evidence of sexual abuse was to be admitted through the testimony of Hope Tharp, an

investigator with the Department of Children’s Services (DCS). After hearing argument on

the issue at a pre-trial hearing, the trial court made the following findings of fact and

conclusions of law:

. . . Based on everything . . . that this is not about a child sex case, that lends

me to caution the State about evidence – graphic evidence concerning those

allegations. I just don’t think they’re necessary.

I think everything that I have heard this morning tells me that you’re

seeking primarily to introduce [the effect of] these allegations . . . on the

Defendant. And that’s what I want to stay with. You should caution your

witnesses that . . . I really don’t think it’s necessary that they say anything

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graphically – in a graphic manner . . . as to what the accusations are. . . . That

simply is not necessary and I think that we border on undue prejudice when we

get into that area.

. . . .

So – but I think Moss is on point. . . . Mr. Sexton is facing the greatest

possible punishment that we have. And I’m going to make sure that any

prejudicial effect is limited to just what it has to be and not more. . . .

I think – the General . . . says that we’ll not be dwelling on the actual

– the statements made by an agent or the Department of Human Services, the

DCS agent. I will let the jury hear it once. I’m going to give them a limiting

instruction as to how they’re to take it and then I don’t want to hear anymore.

I don’t ever want anybody to go back to what that allegation was [sic]. And

if I do, then their testimony is subject to be stricken from the record entirely.

. . .

. . . .

. . . I find that the evidence the State seeks to admit is material, I find

that the probative value outweighs the substantial – any substantial prejudice

that might exist. And I’m going to allow the State to introduce evidence with

the understanding that it’s simply to set the stage as to why the Defendant –

explain the Defendant’s reactions upon hearing these allegations. I’m going

to give a limiting instruction as soon as the testimony is over. And I will also

give a limiting instruction within the final instructions as to how the Jury is to

take the evidence.

. . . .

The initial witness[, Ms. Tharp,] will get to say . . . what she told him

and his response thereof. And then any further statements made by the

Defendant would be prefaced on “well, I talked to him about this.” But not

specifics. . . .

. . . .

[Ms. Tharp] will be able to testify as to what she told him. She will be

able to say, I said – I asked him about this. And I essentially want a quote, if

-19-
she can do it. I mean she can say, I told him A, B, C, and he said D, E, F. I

mean . . . rather than going into summaries, I think the best way to handle this,

if we’re going by what the State is trying to get it in and for the purpose then

they need to be very clear about what this witness said to him exactly and what

his particular response was. And that’s where I’m limiting. I don’t want any

summary. I don’t want anything going outside of [these limitations].

. . . Ms. Tharp will testify when it comes – when it certainly comes

down to the more graphic type allegations, she needs to testify to exactly what

she said to him. And then she may say exactly what he said to her. And then

she may go farther and explain the area around that. But then that . . . would

be it, as to any graphic testimony. . . .

During the trial, Ms. Tharp testified that she told the Appellant that the alleged victim

said that the Appellant told her, “[C]lose your eyes and open your mouth,” that she obeyed,

and that when she opened her eyes, “she saw the bad spot.” She further testified that she told

the Appellant that the alleged victim said that “she was made to put her mouth onto his penis

and suck it . . . [and that [he] made [her] put her hand on [his] penis and move it up and down

. . . .”

The Appellant submits that the graphic evidence of alleged sexual abuse and the

prejudicial hearsay should have been excluded from evidence in this case. He asserts that

this evidence was inadmissible under Rule 404(b), Tennessee Rules of Evidence, and its

admission denied him his right to a fair trial. The State argues that the trial court properly

admitted the testimony because it established a motive for the murder of the victims in this

case. We agree with the State.

At the time of the Appellant’s trial in 2001, Tennessee Rule of Evidence 404(b)

(2000), which set out the circumstances under which proof of other acts was admissible in

a criminal prosecution, provided:

Other Crimes, Wrongs, or Acts. – Evidence of other crimes, wrongs, or acts

is not admissible to prove the character of a person in order to show action in

conformity with the character trait. It may, however, be admissible for other

purposes. The conditions which must be satisfied before allowing such

evidence are:

(1) The court upon request must hold a hearing outside the jury’s presence;

(2) The court must determine that a material issue exists other than conduct

conforming with a character trait and must upon request state on the

-20-
record the material issue, the ruling, and the reasons for admitting the

evidence; and

(3) The court must exclude the evidence if its probative value is

outweighed by the danger of unfair prejudice.

The Rule was drafted in accord with the Tennessee Supreme Court’s pronouncements

in State v. Parton, 694 S.W.2d 299 (Tenn. 1985). See Advisory Comm’n Comments, Tenn.

R. Evid. 404. Under Parton, the trial court must also find “clear and convincing” evidence

that the other crime, wrong, or act occurred. Id. In 2003, Rule 404(b) was amended by

moving (b)(3) to (b)(4) and including the “clear and convincing” standard to (b)(3). Rogers,

188 S.W.3d at 612.

Generally, this rule is one of exclusion, and evidence is not admissible that an accused

has committed some other crime or bad act independent of that for which he is charged, even

though it may be a crime or act of the same character as that for which the accused is on trial.

See Howell, 868 S.W.2d at 254. If, however, evidence that a defendant has committed a

crime or bad act separate from the one for which he is being tried is relevant to some matter

actually in issue in the case on trial and its probative value is not outweighed by the danger

of its prejudicial effect, the evidence may be admitted. See id. “Only in an exceptional case

will another crime, wrong, or bad act be relevant to an issue other than the accused’s

character. Such exceptional cases include identity, intent, motive, opportunity, or rebuttal of

mistake or accident.” State v. Drinkard, 909 S.W.2d 13, 16 (Tenn. Crim. App. 1995). We

review a trial court’s ruling on evidentiary matters under Rule 404(b) under an abuse of

discretion standard, provided the trial court has substantially complied with the prerequisites

of the rule. State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997).

The Appellant contends that the trial court failed to “substantially comply” with the

procedures of Rule 404(b). The trial court held a 404(b) hearing outside of the jury’s

presence. The trial court determined that a material issue existed other than conduct

conforming to a character trait and stated the material issue, the Appellant’s motive, its

ruling, and its reasoning for the ruling on the record. The trial court further found that the

probative value of the information outweighed the prejudicial impact. However, the trial

court failed to determine whether there was clear and convincing evidence that the prior bad

act occurred. As noted by the Appellant, the trial court recognized its error in the order

denying the motion for new trial:

This court did inadvertently fail to specify on the record that the evidence

presented . . . established by clear and convincing evidence the conduct

referred to in the motion to exclude. However, despite the absence of the

appropriate language at the motion hearing, this court found and still finds that

-21-
the state’s burden of proof was met by clear and convincing evidence. The

evidence was probative and relevant to a material fact in this case, specifically

motive and intent. That probative value sufficiently met the standards of

admissibility under Rule 404(b) as previously ruled upon by this court.

Regardless of the trial court’s subsequent statement of his findings, the trial court had

an obligation at the time of the hearing to state on the record whether the prior act was

proven by clear and convincing evidence. Additionally, the trial court failed to receive the

proposed testimony of Ms. Tharp in its 404(b) hearing. Given the trial court’s failure to

make a clear and convincing evidentiary determination based on the facts in this case, we

conclude that the trial court did not substantially comply with the procedural requirements

of Rule 404(b). Compare State v. Albert Eugene Pleasant, No. M1998-00653-CCA-R3-CD,

2001 WL 741932, at *7-8 (Tenn. Crim. App., at Nashville, July 3, 2001) (stating that the trial

court did not substantially comply with Rule 404(b) requirements when it did not make a

clear and convincing evidence determination or weigh the probative value of the evidence

against the unfair prejudicial effect), with State v. Ray Anthony Nelson, No. 03 C0

1-9706-CR-00197, 1998 WL 694971, at *8-9 (Tenn. Crim. App., at Knoxville, Sept. 9, 1998)

(stating that the trial court substantially complied with Rule 404(b) when it met all the

requirements of the rule except for the need to make a clear and convincing evidence

determination and the record showed that there was “no real question” that the alleged act

occurred) and DuBose, 953 S.W.2d at 652 (stating that the trial court did not substantially

comply with Rule 404(b) when the trial court failed to state the prior acts’ relevance to a

material issue on the record and failed to determine that the probative value of the evidence

outweighed the unfair prejudicial effect). Therefore, we review this issue without deference

to the trial court’s finding and conclusion.

We acknowledge that no direct testimony was introduced at the 404(b) hearing.

However, Hope Tharp testified at the preliminary hearing in this case. The State submitted

a transcript from the preliminary hearing to the trial court for its consideration in ruling on

the 404(b) motion. Hope Tharp’s preliminary hearing testimony was substantially similar

to the State’s proffer of her testimony to the trial court. Accordingly, we conclude that clear

and convincing evidence was presented to establish that the prior bad act occurred.

In State v. Moss, the appellant argued that the trial court erred in permitting the State

to introduce evidence of prior acts of misconduct between the defendant and his minor

daughter. 13 S.W.3d 374, 382 (Tenn. Crim. App. 1999). The State asserted that the

evidence was relevant to establish a motive for the murder. Id. The trial court admitted the

testimony of the minor daughter, and this court affirmed the trial court’s decision. Id. at 383-

84. Specifically, this court held that the trial court complied with the procedural

requirements of Rule 404(b), Tennessee Rules of Evidence, and that the record supported the

-22-
trial court’s determination that the evidence was material to a matter in issue at trial, that

being the defendant’s motive and intent to shoot the victim. Id. The State’s theory in Moss

was that the defendant shot his wife in order to collect insurance proceeds and to regain

access to his minor daughter. Id. Specifically, this court held:

The prior bad acts evidence supplies a motive and an intent for the

murder. It was offered to explain the defendant’s focus on MM, her reluctance

to return to Tennessee, and an ongoing conflict between the defendant and the

victim. The evidence was unrefuted and the defendant admitted that his

daughter had testified truthfully. In our view, the trial court properly ruled that

the evidence had strong probative value. While there is obviously a risk of

unfair prejudice, particularly when allegations of sexual misconduct are

involved, the trial court had provided the jury with limiting instructions

immediately following the testimony at issue and did so a second time in the

general charge. It is our conclusion that the probative value of this evidence

was not outweighed by a danger of unfair prejudice and that the trial court did

not abuse its discretion by admitting this evidence.

Id. at 384.

We conclude that the testimony of Ms. Tharp delineating the prior bad acts by the

Appellant was relevant to establishing a motive for the murders of Stanley and Terry Sue

Goodman. Considering, however, the numerous admonitions of the trial court to abstain

from graphic testimony regarding the nature of the alleged act, the trial court clearly intended

to specifically limit Ms. Tharp’s testimony regarding the details of the alleged incident.

While this information was indeed prejudicial, we cannot conclude that the danger of unfair

prejudice outweighed the probative value of this testimony. Moreover, the trial court

provided a curative instruction to the jury stating that the jury was only to consider Ms.

Tharp’s testimony for the limited purpose of determining whether it provided a motive. The

Appellant is not entitled to relief on this issue.

B. Alleged Violation Crawford v. Washington.

The Appellant also argues that pursuant to Crawford v. Washington, 541 U.S. 36, 124

S. Ct. 1354 (2004), the statements made by B.G. and introduced through the testimony of Ms.

Tharp violated his right to a face-to-face confrontation of B.G. He asserts that since he did

not have the opportunity to cross-examine B.G., he is entitled to a new trial.

Generally, the admissibility of evidence rests within the trial court’ssound discretion.

Absent a clear abuse of that discretion, the appellate court will not interfere with the trial

-23-
court’s ruling. State v. Franklin, 308 S.W.3d 799, 809 (Tenn. 2010) (citing State v. Lewis,

235 S.W.3d 136, 141 (Tenn. 2007)). A trial court abuses its discretion when it applies an

incorrect legal standard or makes a ruling that is “‘illogical or unreasonable and causes an

injustice to the party complaining.’” Lewis, 235 S.W. 3d at 141 (quoting State v. Ruiz, 204

S.W.3d 772, 778 (Tenn. 2006)). However, “[w]hether the admission of hearsay statements

violated a defendant’s confrontation rights is, however, a pure question of law.” Franklin,

308 S.W.3d at 809 (citing Lilly v. Virginia, 527 U.S. 116, 125, 119 S. Ct. 1887, 1894

(1999); Lewis, 235 S.W.3d at 141-42). “The proper application of that law to the trial court’s

factual findings is likewise a question of law, subject to de novo review.” Franklin, 308

S.W.3d at 809.

As previously discussed, the State presented the testimony of Hope Tharp, a team

leader for the Department of Children Services. Ms. Tharp testified that, on March 17, 2000,

she received a request by the Scott County Department of Children’s Services to interview

B.G. This investigation was ongoing for two months. Then, on May 16, 2000, the Bradley

County Department of Children’s Services received a request to respond to Black Fox

Elementary School to speak with B.G. regarding her reports of alleged sexual abuse. Based

upon information received by a case manager who had responded to the school, Ms. Tharp

felt it necessary to request permission for the removal of B.G. Ms. Tharp’s testimony

revealed that she had a conversation with the Appellant, in which she informed him that B.G.

and two other children in the home were already in the custody of the Department of

Children’s Services and that the reason for this was based on information provided by B.G.

She explained that B.G. had “stat[ed] that [the Appellant] had sexually abused her and on that

basis we had to file a petition for custody since the mother [did] not believ[e] her.”

Ms. Tharp was then asked about the conversation she had with the Appellant and his

wife regarding the allegations of sexual abuse. Ms. Tharp stated that the Appellant’s

statements and the statements of the three children “were identical” with the exception that

the Appellant omitted “the explicit sexual details that [B.G.] gave me.” Ms. Tharp

continued:

THARP: . . . I had B.G. demonstrate for me what had happened. So, I

explained to him, you know, B.G. demonstrated to me that you

called her down the stairs; she came down the stairs; you said

something, she couldn’t hear what you said, so she walked over

to the couch; and that you were sitting on the couch smoking a

cigarette, watching TV, had on a gray shirt and blue jogging

pants. And B.G. told me that he grabbed her by the arms and sat

her on the couch.

-24-
. . . .

THARP: . . . I told Mr. Sexton that B.G. had told me that he had grabbed

her by the shoulders and sat her down. And I told him, I said,

you know, as I talked to her, she told me some things that didn’t

make a lot of sense to me. So, I had to have her show me what

she was talking about. . . .

So, I told him, I said, I had B.G. show me exactly on the couch

how she was sitting. Because I told him, B.G. told me her feet

were on the floor, but she was laying on the couch. And I didn’t

understand how that could occur, which made me think, well,

maybe something is not right. So, I told him, I said, I had B.G.

showed [sic] me, and B.G. showed me that she was sitting

facing him, which would have been in this direction, her feet on

the floor, and she was leaning down this way onto the couch. I

told him I asked her why she was, and she – and if he had said

anything to her. And I told him, B.G. told me you said, “Close

your eyes and open your mouth.” And B.G. – I told him, I said,

B.G. said that she closed her eyes and she opened her mouth.

And when she opened her eyes she saw the bad spot.

And I told him I didn’t know what she meant by that, so I asked

her to describe that for me. And I told him, she described that

for me as the place that he pees and it has a hole in it. And I told

him I said, B.G., if you’re telling me that you can see his place

that he pees but he has on clothes, I don’t understand how you

can do that. And I told him, B.G. explained to me that you

pulled your penis out of your jogging pants and she saw it when

she opened her eyes.

And I told him, I said, I asked B.G., well, what happened after

that. And I explained to him that B.G. told me that she was

made to put her mouth onto his penis and suck it. And I told

him that B.G. – I told him, I said I asked her if anything else

happened. And B.G. told me that you made her put your hand

on your penis and move it up and down like this.

And I told him I asked B.G., can you tell me anything else about

this that would help me understand what happened. And I told

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him that B.G. told me that it tasted yucky. And I told him, I

asked B.G. if anything had come out and I told him that B.G.

told me no, nothing had come out, but that she could taste it. 

I also told him that B.G. told me that he had pushed her off the

couch and that B.G. told me he told her if she ever told, she

would never see her dad again.

Ms. Tharp then related that the Appellant denied these allegations and stated that B.G. was

“getting this information from . . . her sister . . . and her father.” The Appellant advised Ms.

Tharp that in February 2000 he had received a telephone call from Stanley Goodman during

which Stanley Goodman played a tape on which “Mr. Goodman [was] telling B.G. to say

these things and B.G. was saying these things.”

Subsequent to Ms. Tharp’s testimony, the trial court issued the following instruction

to the jury:

Ladies and gentlemen, during this trial there may be times that I give

you what we call a jury instruction. During the trial, it would be called a

curative instruction. What that means is, I am going to give you a legal

definition or an instruction concerning some evidence that you may or may not

have heard. This is, at this time, a curative instruction concerning some of the

evidence that Ms. Tharp gave you today. Please listen carefully. This will also

be included at the final stage. . . .

You have heard evidence that the Defendant was accused of sexual

abuse of a child. The Defendant is not on trial for any offenses associated with

child sexual abuse. You may not consider this evidence to prove the

Defendant’s disposition to commit the act of premeditated murder. This

evidence can be considered by you only for the limited purpose of determining

whether it provides motive. In other words, you may consider the accusation

only as it tends to show a motive of the Defendant to commit the crime

charged in this case. Such evidence of the accusation, if considered by you for

any purpose, must not be considered for any purpose other than motive.

The Appellant’s trial was held in June 2001. At the time of the Appellant’s trial, Ohio

v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2539 (1980), provided the applicable standard

regarding the introduction of testimony and the Confrontation Clause. After the Appellant’s

trial but before the hearing on the motion for new trial, the United States Supreme Court

overruled Roberts by issuing its opinion in Crawford v. Washington, 541 U.S. 36, 124 S. Ct.

-26-
1354 (2004). The new rule of law announced by Crawford, although not in existence at the

time of the Appellant’s trial, is applicable to the Appellant’s case while the matter is still on

direct appeal. See generally Whorton v. Bockting, 549 U.S. 406, 127 S. Ct. 1173 (2007).

In Crawford, the Supreme Court held that the Confrontation Clause of the Sixth

Amendment to the United States Constitution prohibits admission in a criminal trial of

testimonial statements by a person who is absent from trial, unless the person is unavailable

and the defendant had a prior opportunity to cross-examine the person. However, out-ofcourt statements made by someone other than the declarant while testifying are admissible

if the statement is not hearsay. Indeed, in Crawford, the Supreme Court explicitly stated that

the Confrontation Clause does not bar the admission of testimonial statements that are

admitted for purposes other than proving the truth of the matter asserted. Crawford, 541 U.S.

at 59, n.9, 124 S. Ct. at 1369, n.9. Thus, in order for Crawford to apply in the instant case,

B.G.’s statements to Hope Tharp must, in fact, constitute testimonial hearsay.

Hearsay is an out-of-court statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

Tenn. R. Evid. 801(c). When an out-of-court statement is offered for some purpose other

than to establish the truth of the matter asserted, the statement is not hearsay and is

admissible. Hearsay is present only if the out-of-court statement must be true to be relevant.

Neil P. Cohen, et al., Tennessee Law of Evidence § 8.01[4][i], at 8-16 (5th. ed. 2005). Thus,

to constitute hearsay, it is important whether the declarant is telling the truth. If the

declarant’s credibility is irrelevant because it does not matter whether the declarant is telling

the truth, the dangers of hearsay are not present and the statement is not viewed as hearsay.

Id.

The trial court determined that the statements of B.G. to Hope Tharp were not hearsay

as they were admitted to establish the Appellant’s motive for the murder of B.G.’s father and

his wife. We agree. Here, the record shows the State’s theory at trial was that the Appellant

murdered the victims in retaliation for his belief that the victim had induced the minor B.G.

to make false allegations of sexual abuse against the Appellant. While B.G.’s statements to

Hope Tharp may have been testimonial in nature, the statements were not admitted to prove

that the Appellant actually perpetrated the sexual acts against B.G. Rather, the statements

were admitted to establish the Appellant’s motive for the murders of B.G.’s father and

stepmother. This court has repeatedly upheld the admission of similar statements as nonhearsay because they were offered to prove the defendant’s motive. See State v. Williams,

977 S.W.2d 101, 108 (Tenn. 1998) (upholding declarant’s statements recounting nontestifying witness’s version of assault as non-hearsay because it demonstrated defendant’s

motive for killing the victim); State v. Coker, 746 S.W.2d 167, 173 (Tenn. 1987) (citing State

v. Venable, 606 S.W.2d 298, 301 (Tenn. Crim. App. 1980)). The impact of B.G.’s

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statements upon the Appellant, not their veracity, was relevant as the motive for the murders

in this case. Indeed, the truth of B.G.’s statements was immaterial. Because the statements

were not admitted for the truth of the matter asserted, the statements were not hearsay and

cross-examination was not required to test their veracity.

As previously determined, we reiterate that the probative value of the statements was

not outweighed by the danger of unfair prejudice. Indeed, the falsity of the accusation in this

case increased its probative value. When a statement is admitted for a legitimate, nonhearsay purpose, that is, not to prove the truth of the matter asserted, the statement is not

hearsay under the traditional rules of evidence and the non-hearsay aspect raises no

confrontation clause concerns. See Tennessee v. Street, 471 U.S. 409, 417, 105 S. Ct. 2078,

2083 (1985) (holding that Street’s confrontation clause rights were not violated by the

introduction into evidence of accomplice’s confession for nonhearsay purpose of rebutting

Street’s testimony that confession was coercively derived from accomplice’s statement); see

also Crawford, 541 U.S. at 59, 124 S. Ct. at 1369 (citing Tennessee v. Street for proposition

that the Confrontation Clause does not bar the use of testimonial statements for purposes

other than establishing the truth of the matter asserted). Accordingly, the Appellant’s

argument that the admission of B.G.’s statements through the testimony of Hope Tharp

violated his rights under the Confrontation Clause fails.

VI. Admission of Testimony Regarding the Appellant’s Willingness and Later

Refusal to Take a Polygraph Examination.

The Appellant contends that Deputy Millsaps and Detective Alvarez were improperly

permitted to testify that the Appellant stated that he would take a polygraph examination and

then decided not to take the test. On direct examination, Deputy Millsaps testified that he

had a discussion with the Appellant about taking a polygraph test while he was at the

Appellant’s apartment. The Appellant agreed to take the polygraph test. On

cross-examination, defense counsel again brought up the fact that the Appellant agreed to

take the polygraph test. On re-direct, the State asked Deputy Millsaps whether he was aware

that the Appellant later refused to take a polygraph test. An objection was made by defense

counsel, which was overruled by the court. Detective Alvarez testified that he had

discussions with the Appellant regarding some polygraph examinations. He stated that the

test was offered, but the Appellant refused to take the test. No objection was made to

Detective Alvarez’s testimony.

“[P]olygraph examination results, testimony on such results, or testimony regarding

a Defendant’s willingness or refusal to submit to a polygraph examination is not admissible

during capital or non-capital sentencing hearings.” State v. Stephenson, 195 S.W.3d 574,

599 (Tenn. 2006); State v. Pierce, 138 S.W.3d 820, 826 (Tenn. 2004). In this case, the

-28-
testimony was elicited by the prosecution. Regarding the admissibility of incompetent

evidence, “the correct practice is to reject such evidence at once, and not permit it to go to

the jury.” Stokes v. State, 64 Tenn. 619, 621 (1875). Any potential error, however, resulting

from unsolicited testimony that offers otherwise inadmissible testimony may be cured by a

proper instruction to the jury to disregard the comment. See State v. West, 767 S.W.2d 387,

397 (Tenn. 1989); State v. Foster, 755 S.W.2d 846, 849 (Tenn. Crim. App. 1988).

In its order denying the Appellant’s motion for new trial, the trial court conceded that

admission of testimony regarding the polygraph testing was inadmissible. Notwithstanding,

the trial court noted the defense’s failure to make a contemporaneous objection to the direct

testimony of Deputy Millsaps. In fact, no objection was made to the testimony until defense

had already cross-examined Deputy Millsaps as to the polygraph examination and the State

was asking additional questions on re-direct. The trial court determined that because the

testimony was either neutral or favorable to the defense, any error in admitting this testimony

was harmless.

We agree with the trial court’s ruling pertaining to the testimony of Deputy Millsaps

and Detective Alvarez regarding a polygraph examination. Reversible error may not be

predicated upon a ruling admitting evidence unless a substantial right of a party was affected

and unless a timely objection was made. Tenn. R. Evid 103 (a). No objection was made by

the Appellant to this testimony until after defense counsel had already questioned Deputy

Millsaps on cross-examination as to the polygraph examination. A party may not later seek

relief from an error to which he acquiesced or failed to take a reasonable action to nullify the

harmful effect of the error. Tenn. R. App. P. 36(a). We further note that the testimony

revealed that the Appellant’s ultimate decision not to take the polygraph test was based upon

information from a TBI test examiner that the test could be fixed. Moreover, we cannot

conclude that the admission of this testimony regarding a polygraph test more probably than

not affected the judgment or resulted in prejudice to the judicial process. Tenn. R. Crim. P.

52(a); Tenn. R. App. P. 36(b).

VII. Admission of Statements Made by the Appellant’s Wife.

During the trial, the State presented testimony which indicated to the jury that the

Appellant’s wife, Sherry Sexton, implicated him in the murder for which he was on trial.

The Appellant contends that this testimony violated his right to confront witnesses. He

contends that “the jury only heard the prejudicial account from the prosecution and law

enforcement authorities about the circumstances of the prior statements and testimony of the

Appellant’s wife, and did not know whether the [Appellant’s] wife would have willingly

appeared and testified; and if she appeared, to what she would have testified.” He further

-29-
argues he was denied the opportunity to challenge through cross-examination his wife’s

motivation or the truthfulness of her testimony.

The Appellant fails to provide citation to the record directing this court to the

testimony to which he now objects. Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R.

10(b). Issues not supported with appropriate references to the record shall be treated as

waived. Additionally, upon review of the appellate record, it appears that the Appellant

failed to make contemporaneous objections to the testimony and argument of which he now

complains. He cannot now seek relief from an error to which he acquiesced or failed to take

a reasonable action to nullify the harmful effect of the error.

In any event, we have reviewed the testimony at issue. The officers testified that they

received a message that Sherry Sexton was attempting to contact them. Detective Alvarez

contacted Sherry Sexton. He reported that she sounded desperate. He further related thatshe

agreed to meet him at the police station. Detective Alvarez contacted Special Agent

Brakebill and advised him of the meeting. The officers met Sherry Sexton at the south

precinct. The officers stated that within thirty minutes of their discussion with Sherry

Sexton, the Appellant arrived, upset and agitated, and he wanted to speak with his wife. The

Appellant informed the officers that Sherry Sexton was upset and confused. Detective

Alvarez escorted the Appellant to the side of the building while Agent Brakebill moved

Sherry Sexton to a safe harbor home for the night.

Initially, we conclude that no rights of confrontation were infringed. The Appellant

had the opportunity to cross-examine the officers as to the extent of their testimony. No

statement made by Sherry Sexton was introduced through the testimony of the officers.

Rather, the officers related their first hand observations of what occurred on May 24, 2000.

The statements were not hearsay. The Appellant’s contention that officers’ testimony

encompassed the testimony of Sherry Sexton is misplaced. The testimony of the officers

was relevant to show that the Appellant believed that his wife could incriminate him. The

Appellant is not entitled to relief on this issue.

VIII. Admission of Rifle Similar to the Murder Weapon.

At trial, the State introduced as an exhibit an inoperable rifle retrieved from the

Appellant’s home. This rifle was not the murder weapon. The Appellant did not render a

contemporaneous objection to the introduction of the rifle during the trial. In its order

denying the motion for new trial, the trial court found:

The evidence at trial established that the weapon referred to in the defendant’s

home did not work and that this was the reason that he had acquired another

-30-
gun from witness Clinton Daniel Mason. Under these circumstances, this

court finds no error in the admission of the weapon.

The “determination of whether evidence is relevant is within the sound discretion of

the trial court.” State v. Dellinger, 79 S.W.3d 458, 485 (Tenn. 2002) (citing State v. Griffis,

964 S.W.2d 577, 594 (Tenn. Crim. App. 1997)). While there is a natural tendency to connect

the weapon introduced into evidence at trial and the weapon actually used to commit the

murder, there is no such connection in the present case. The testimony was clear that this

rifle was not the murder weapon. The testimony was clear that this rifle was inoperable. The

trial court concluded that the inference was made that, since this rifle was inoperable, the

Appellant needed to obtain another weapon from Clinton Daniel Mason. There was no

attempt to suggest that this rifle was the murder weapon. Thus, little possibility existed that

the jurors, without proof, would prejudicially associate this rifle as the murder weapon used

by the Appellant. The Appellant is not entitled to relief on this issue.

IX. Admission of Evidence of an Unrelated Speeding Arrest.

The Appellant next complains that the trial court erred by allowing the admission of

evidence of an unrelated speeding arrest that was not a conviction. During the trial, defense

counsel presented Randall Boston, an employee of defense counsel. The purpose of Mr.

Boston’s testimony was to establish the time it took to drive from the Muffler Shop in

Cleveland, Bradley County, to Huntsville, in Scott County. Mr. Boston’s testimony reflected

that, although he drove the shortest route, he observed all posted speed limits. On

cross-examination, Mr. Boston conceded that he was unaware that the Appellant had

received a speeding ticket for driving 97 miles per hour on the same route two days after the

murder. Mr. Boston was questioned about the speeding ticket without objection.

In its order denying the motion for new trial, the trial court found:

The defense presented proof of the distance and the amount of time that it

would take to get from Cleveland to Huntsville through an employee of

defense counsel, Randall Boston, who admittedly had driven in a very prudent

manner and had observed all speed limits. On cross-examination, the state

asked the witness, without objection, about the speeding ticket received by the

defendant. Under these circumstances, this court finds that this issue does not

support a new trial.

The Appellant failed to make a contemporaneous objection. A party is not entitled

to relief when the party fails to take whatever action was reasonably available to prevent or

nullify the harmful effect of the error. Tenn. R. App. P. 36(a). Waiver notwithstanding, in

-31-
our view, the testimony proved only that people can drive above the speed limit. The

Appellant is not entitled to relief.

X. Admission of Evidence Obtained from Appellant’s Vehicle.

The Appellant contends that it was error to admit evidence retrieved during an illegal

search of his automobile taken in violation of his Fourth Amendment rights. The Appellant

argues that his due process rights were violated when the State failed to correct Agent

Brakebill’s testimony that he saw a typed statement for the Appellant which contained the

express consent to search his automobile.

The Appellant fails to provide citation to the record directing this court to the

testimony to which he now objects. Tenn. R. App. P. 27(a)(7); Tenn. R. Ct. Crim. App.

10(b). Issues not supported with appropriate references to the record shall be treated as

waived. Additionally, upon review of the appellate record, it appears that the Appellant

failed to make contemporaneous objections to the testimony and argument of which he now

complains. He cannot now seek relief from an error to which he acquiesced or failed to take

a reasonable action to nullify the harmful effect of the error. In any event, our review of the

record shows that the Appellant consented to the search of the automobile. He is not entitled

to relief.

XI. Admission of Evidence relating to the Preparation of Appellant’s IRS Tax

Forms.

During the guilt phase of the Appellant’s trial, the State called Shera Crowley as a

witness. Ms. Crowley testified that she operated a tax service and had prepared the

Appellant’s tax return for two or three years. When Ms. Crowley prepared the Appellant’s

taxes on January 31, 2000, she stated that the Appellant had removed his daughter B.G. and

added E.G. as a dependant. Ms. Crowley noted this action was unusual and asked the

Appellant if Stanley Goodman, E.G.’s father, was claiming her as a dependant. She stated

that the Appellant initially responded that Goodman was not claiming E.G. When Ms.

Crowley told the Appellant that she believed E.G. lived with Stanley Goodman, the

Appellant responded, “[I]f the son of a bitch ever tried to claim her or take her, he would

blow his G.D. brains out.” No objection was made to this testimony by defense counsel.

On cross-examination, Ms. Crowley testified that “someone . . . claiming their

stepchild and they’re claiming they don’t live with the mother, that is a red flag for me.” She

stated she was required to ask questions, but she was not required to conduct an

investigation. Ms. Crowley testified that she took the Appellant’s threat seriously enough

-32-
to convey the threat to Terry Sue Goodman. Ms. Crowley related that Terry Sue Goodman

was not concerned about the threat since the Appellant had made similar threats in the past.

Ms. Crowley also stated that the Appellant would probably receive an additional $1200 as

a tax refund for claiming E.G. as a dependant on his taxes.

The Appellant complains that it was error for the trial court to admit evidence and

argument regarding the Appellant’s alleged intent to defraud the Internal Revenue Service

in the preparation of his tax returns. He adds that this argument was compounded by the

closing arguments of the prosecutor. Again, there was no contemporaneous objection made

at trial. Furthermore, the defense extensively cross-examined Ms. Crowley on the issue. A

party is not entitled to relief when the party fails to take whatever action was reasonably

available to prevent or nullify the harmful effect of the error. Tenn. R. App. P. 36(a). The

Appellant is not entitled to relief on this issue.

XII. Whether Individual and Cumulative Instances of Prosecutorial Misconduct

Denied Appellant a Fair Trial.

The Appellant argues that instances of prosecutorial misconduct individually and

cumulatively prevented him from receiving a fair trial. These incidents of alleged

misconduct include (1) the prosecutor’sremarks during opening statementsthat B.G. told her

teacher and the Department of Children Services worker that the Appellant was sexually

molesting her; (2) the prosecution’s questioning of Deputy Millsaps regarding the

Appellant’s willingness to take a polygraph regarding the allegations of child sexual abuse

and then his refusal to take the test when given the opportunity; (3) the prosecution’s

questioning of TBI Agent Brakebill regarding his interview with Sherry Sexton which

implied that she had implicated her husband in the murder allegations; (4) the prosecution’s

statements made during closing argument at the guilt phase including repeated statements

that the Appellant had sexually molested his stepdaughter, the repeated out-of- court

statements of Sherry Sexton, improperly vouching for prosecution witnesses, and the

suggestion that the Appellant would have killed E.G. had she come home at the wrong time;

and (5) the prosecution’s statements during closing argument at the penalty phase.

Regarding whether prosecutorial misconduct based on improper comments amounts

to reversible error, a reviewing court must determine whether the alleged conduct was so

improper or the comments so inflammatory as to affect the verdict. See State v. Reid, 164

S.W.3d 286, 344 (Tenn. 2005); Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965);

State v. Goltz, 111 S.W.3d 1, 5 (Tenn. Crim. App. 2003); State v. Seay, 945 S.W.2d 755, 763

(Tenn. Crim. App. 1996). In making its determination, the court must consider five factors:

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1) The conduct complained of viewed in context and in light 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 statements[;]

4) The cumulative effect of the improper conduct and any other errors in

the record[; and]

5) The relative strength or weakness of the case.

Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).

The allegations of misconduct raised by the Appellant relating to the admission of

evidence, the Appellant’s issues V through XI, have been previously addressed in the above

sections of this opinion. Accordingly, our review will focus upon those allegations of

misconduct alleged to have occurred during the guilt and penalty phase of closing argument.

Five areas of prosecutorial misconduct related to argument are recognized: (1) it is

unprofessional conduct for the prosecution to intentionally misstate the evidence or mislead

the jury as to the inferences it may draw; (2) it is unprofessional conduct for the prosecutor

to express his personal belief or opinion as to the truth or falsity of any testimony or evidence

of guilt of the defendant; (3) the prosecutor should not use arguments calculated to inflame

the passions or prejudices of the jury; (4) the prosecutor should refrain from argument which

would divert the jury from its duty to decide the case on the evidence by injecting issues

broader than the guilt or innocence of the accused under the controlling law or by making

predictions of the consequences of the jury’s verdict; and (5) it is unprofessional conduct for

a prosecutor to intentionally refer to or argue facts. See State v. Goltz, 111 S.W.3d 6 (Tenn.

Crim. App. 2003).

Tennessee courts “have traditionally provided counsel with a wide latitude of

discretion in the content of their final argument” and trial judges with “wide discretion in

control of the argument.” State v. Zirkle, 910 S.W.2d 874, 888 (Tenn. Crim. App. 1995).

A party’s closing argument “must be temperate, predicated on evidence introduced during

the trial, relevant to the issues being tried, and not otherwise improper under the facts or

law.” State v. Middlebrooks, 995 S.W.2d 550, 557 (Tenn. 1999). Tennessee Rule of

Criminal Procedure 29.1(b) allows a closing argument to address any evidence introduced

at trial. In addition to addressing the evidence, parties may also argue “reasonable

inferences.” State v. Chico McCracken, No. W2001-03176-CCA-R3-CD, 2003 WL

1618082, at *8 (Tenn. Crim. App., at Jackson, Mar. 24, 2003), perm. to appeal denied (Tenn.

Sept. 2, 2003). When there is improper argument, the court must determine whether the

inflammatory statement negatively impacted the defendant.

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A. Alleged Improper Opening Statement and Closing Argument During Guilt

Phase.

The Appellant complains that the prosecutor repeatedly and improperly made

statements that B.G. told the Department of Children Services that the Appellant was

molesting her. Specifically, the prosecutor made the following statement during closing

argument:

Five days before the crime. On that day, something happened in the Sexton

home that caused [B.G.], the . . . stepdaughter of Hubert Glen Sexton, the

daughter of Stanley Goodman . . . to tell her . . . teacher . . . that Hubert Glen

Sexton molested me. . . . The children were taken into the custody of the

Department of Children’s Services. . . . Hubert Glen Sexton was then

confronted with his world starting to crumble. . . .

We acknowledge that the Appellant failed to object to this argument. Moreover, the proof

presented at trial established this fact. Accordingly, we cannot conclude that this argument

was improper.

The Appellant next complains that the prosecutor repeatedly referred to the

out-of-court statements of Sherry Sexton, his wife. During the opening statement, the

prosecutor stated that a wife may not testify against her husband. He further related how

4

Sherry Sexton went to the police station. The statement continued as follows:

She’s given an interview. And she later even testifies against him. But

through his manipulation, she’s back on his side now. And of course, you

can’t testify . . . you can’t force a wife to testify against her husband.

Again, the Appellant failed to object to this statement during the trial. When a prosecutor’s

statement is not the subject of a contemporaneous objection, the issue is waived. Tenn. R.

Crim. P. 33, Tenn.R.App.P.36(a); State v. Thornton, 10 S.W.3d 229, 234 (Tenn. Crim. App.

1999); State v. Green, 947 S.W.2d 186, 188 (Tenn. Crim. App. 1997); State v. Little, 854

S.W.2d 643, 651 (Tenn. Crim. App. 1992).

Next, the Appellant complainsthat the prosecutor improperly vouched for prosecution

witnesses Mason and Chambers. During closing argument, the prosecutor commented that

witnesses Preston Adams, Danny Mason, and Christy Swallows “are far from perfect.”

The Appellant asserts that this argument was made during the State’s closing. The record reveals 4

that it occurred during the opening statement and not closing argument.

-35-
However, he equated their testimony to that of a three-legged stool. In other words, he asked

the jury to take the testimony of these three unacquainted witnesses and put them together

to form a solid foundation of the Appellant’s guilt.

In his rebuttal argument, the Appellant acknowledged that Danny Mason was scared

and that the police had threatened to put his mother in prison. He asked the jury to consider

the trial court’s instruction on disregarding certain testimony and added, “If you feel like

these folks are lying to you, you have the right to disregard their testimony.” The defense

also poked holes in the testimony of Detective Chambers. Specifically, the defense

capitalized on the relationship of Detective Chambers and the deceased and focused on his

initial finding of only six casings.

Again, this court first acknowledges that no contemporaneous objection was made to

the above comments during the prosecution’s argument. Waiver notwithstanding, in our

view, the above comments do not amount to the prosecutor improperly vouching for the

credibility of these witnesses. We cannot conclude that the prosecutor’s conduct during

closing argument was improper. The Appellant is not entitled to relief.

Finally, the Appellant complains that the prosecution improperly suggested that the

Appellant would have killed E.G. had she been home at the wrong time. During closing

argument, the prosecutor commented:

And the fate of the rain almost made three victims here. Had E.G. gone home

and not decided to stay at Vella’s a while, had she been a fourth person in that

house between 8:45 and 11:00, she would have been the third victim.

Fortunately, she wanted to stay with her aunt a while and she wasn’t there.

And the intervening fate of the rain didn’t cause her to be a victim.

The State argues that this argument was not improper as the Appellant murdered Terry

Goodman to prevent his detection and arrest for the murder of Stanley Goodman. The State

argues that it follows that had E.G. been home, she may have suffered the same fate. Again,

there was no contemporaneous objection made by the Appellant. While we do not condone

this argument made by the prosecution, we cannot conclude that it affected the verdict. The

Appellant is not entitled to relief on this claim.

B. Alleged Improper Closing Argument During Penalty Phase.

The Appellant objects to various statements made by the prosecution during closing

argument at the penalty phase. He complains of statements allegedly commenting on the

weight of the aggravating and mitigating circumstances:

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• You must look at the mitigating factor, as well you should, because

sometimes a crime may be bad, but there may be some really

compelling mitigating factors that would change that, and you should

do that.

• It involved no other felonies. Well, it wasn’t in the course of a bank

robbery or something like that, but in effect, there were other felonies

involved. It is a crime of aggravated burglary for a person to, without

your permission, enter your house with the intent to commit an assault.

Of course, normally, we think of burglary as people break in

somebody’s house to stealsomething but they could commitsome other

crime. So there [are] other crimes involved. Of course, no need to

charge that in this case, as certainly, there was more than ample

opportunity to impose the proper punishment with the things he was

charged with. But that is another crime.

• He’s responsible for these two deaths, he’s responsible for any damage

to his children, and he is responsible for the fact that you are

considering the death penalty.

• I submit to you it is just as likely as children in Scott County or children

involved in this case would be offended if he didn’t get justice.

• He used these children to get money back from the income tax, and he

used these children in the course of the child abuse allegation, and now

he gets to use these children as the reason to escape the ultimate

punishment.

• She didn’t have her mama to support her, so she had her daddy. Mama

was under control of the defendant.

• If, however, the aggravating circumstance is out – is not outweighed by

the mitigation beyond a reasonable doubt; in other words, if you find

that the bad aggravation of this murder – or these murders are not

outweighed beyond a reasonable doubt by the mitigation in his favor,

then death can be the punishment.

• [M]any many people experience childhoods and go on to lead

productive lives, but you know that some of our greatest leaders

experience this much childhood deprivation. . . . Some of our greatest

leaders. What about Abraham Lincoln? Did Abraham Lincoln suffer

from poverty? I believe he experienced a lot more poverty than Glen

Sexton did. Did he suffer from disruptive relationships? Well, he lost

his mother when he was little, and then he lost his stepmother when he

was a little older. . . . Did he suffer from academic underachievement?

. . . Glen Sexton was shuttled around from school to school. Abraham

Lincoln had no school . . . . Did he suffer from lack of social support?

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. . . growing up in frontier America there was a whole lot less social

support than there is today. So I believe Lincoln qualifies there. Did

he suffer from parental absence? Yes he did. . . . What about a lack of

emotional bonds? We know from history that Abraham Lincoln had a

remote father. . . . What about the fact that he had an environment

lacking in productive employment. . . .

• [Y]ou should not choose to allow him to hide behind these children

anymore.

The Appellant submits that these statements, taken as a whole, prevented him from receiving

a fair trial. He asserts that these statements permitted the jury to consider as an aggravating

factor facts or circumstances other than thatstatutory circumstance mandated by law, namely

that “[t]he murder was committed for the purpose of avoiding, interfering with, or preventing

a lawful arrest or prosecution of defendant or another.”

Examination of the transcript of closing argument reveals that the Appellant made no

objection to the prosecutor’s argument, with the exception of the analogy between the

Appellant’s situation and that of Abraham Lincoln. It is well settled that without a

contemporaneous objection to a prosecutor’s statements, the error is waived. Stephenson,

195 S.W.3d at 601 (citations omitted). “Moreover, the prosecution is expressly permitted to

rebut any mitigating factors relied on by a Defendant.” Id.

Waiver notwithstanding, we have reviewed the record and agree with the Appellant.

Some of the prosecutor’s statements, including statements that the Appellant committed

aggravated burglary and income tax fraud, constituted an attempt to improperly sway the

jury. However, when viewed in overall context, these statements were not so inflammatory

as to require reversal. The evidence presented at the penalty phase clearly established the

presence of the statutory aggravating circumstance. Evidence of mitigating circumstances

was scant. The sentencing statute generally permits all evidence deemed relevant to the issue

of punishment to be admitted in a capital sentencing proceeding. Any improper conduct by

the prosecutor was far outweighed by the strength of the evidence supporting the jury’s

finding that the aggravating circumstance outweighed proof of any mitigating circumstances.

Based upon the proof presented at the penalty phase, it is clear that the prosecutor’s

comments did not affect the jury’s sentencing decision.

XIII. Sufficiency of the Convicting Evidence.

The Appellant argues the evidence was insufficient to support his convictions. In

response, the State contends that this issue is waived because the Appellant simply lists the

issue without any supporting argument. Although we agree with the State’s contention, due

-38-
to the severity of the sentences, this court will review whether the proof presented at trial is

sufficient to support his two convictions for first degree premeditated murder. See Tenn. R.

App. P. 27; Tenn. Ct. Crim. App. R. 10(b) (The failure to provide argument, citation to the

record, and citation to authority results in waiver of the issue on appeal.).

When the sufficiency of the convicting evidence is challenged on appeal, the relevant

question of the reviewing court is “whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781, 2789 (1979); see also Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions

whether by the trial court or jury shall be set aside if the evidence is insufficient to support

the findings by the trier of fact of guilt beyond a reasonable doubt.”); State v. Evans, 838

S.W.2d 185, 190-92 (Tenn. 1992). Questions involving the credibility of witnesses, the

weight and value to be given the evidence, and all factual issues are resolved by the trier of

fact. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict

by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State

and resolves all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d

474, 476 (Tenn. 1973). “A jury conviction removes the presumption of innocence with

which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal a

convicted defendant has the burden of demonstrating that the evidence is insufficient.” State

v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

First degree murder, as implicated in the present case, is defined as an unlawful,

premeditated and intentional killing of another. T.C.A. § 39-13-201, -202(a) (Supp. 2000).

Tennessee Code Annotated section 39-13-202(d) provides that:

[P]remeditation is an act done after the exercise of reflection and judgment.

“Premeditation” means that the intent to kill must have been formed prior to

the act itself. It is not necessary that the purpose to kill pre-exist in the mind

of the accused for any definite period of time. The mental state of the accused

at the time the accused allegedly decided to kill must be carefully considered

in order to determine whether the accused was sufficiently free from

excitement and passion as to be capable of premeditation.

T.C.A. § 39-13-202(d) (1997). Whether the evidence was sufficient depends on whether the

State was able to establish beyond a reasonable doubt the element of premeditation. See

State v. Sims, 45 S.W.3d 1, 7 (Tenn. 2001); State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999).

The presence of premeditation is a question of fact for the jury to determine based

upon a consideration of all the evidence. See State v. Suttles, 30 S.W.3d 252, 261 (Tenn.

-39-
2000). Premeditation may be inferred from circumstantial evidence surrounding the crime,

including the manner and circumstances of the killing. See State v. Pike, 978 S.W.2d 904,

914 (Tenn. 1998); State v. Addison, 973 S.W.2d 260, 265 (Tenn. Crim. App. 1997). Facts

from which the jury may infer premeditation include the use of a deadly weapon on an

unarmed victim; the lack of provocation on the part of the victim; the defendant’s

declarations of his intent to kill; the defendant’s failure to render aid to the victim; the

establishment of a motive for the killing; the particular cruelty of the killing; the defendant’s

procurement of a weapon, preparations to conceal the crime, and destruction or secretion of

evidence of the killing; and a defendant’s calmness immediately after the killing. State v.

Thacker, 164 S.W.3d 208, 222 (Tenn. 2005); State v. Leach, 148 S.W.3d 42, 54 (Tenn.

2004); State v. Lewis, 36 S.W.3d 88, 96 (Tenn. Crim. App. 2000) (citations omitted).

Viewed in the light most favorable to the State, the proof at trial showed that the

Appellant had a motive for the killing because he blamed Stanley Goodman for the

accusation of child sexual abuse. The Appellant had threatened to kill Stanley Goodman

prior to the murder and procured a gun substantially similar to the murder weapon just before

the murder. Finally, the Appellant confessed to killing the victims to several witnesses. This

was sufficient evidence from which a rational jury could find beyond a reasonable doubt that

the Appellant committed the premeditated killing of the victims in this case. We conclude,

therefore, that the evidence was sufficient to sustain the Appellant’s convictions for two

counts of first degree premeditated murder.

XIV. Whether the Verdict was Contrary to the Weight of the Evidence.

The Appellant contends that the verdict was contrary to the weight of the evidence.

Again, the Appellant fails to make argument in support of this claim, fails to cite to the

appellate record and fails to cite to any authority. Waiver notwithstanding, as in the previous

section, we will review the issue on the merits.

Tennessee Rule of Criminal Procedure 33(f) provides, in part, as follows: “The trial

court may grant a new trial following a verdict of guilty if it disagrees with the jury about the

weight of the evidence.” In interpreting the rule, our supreme court has held as follows:

Rule 33(f) imposes upon a trial court judge the mandatory duty to serve as the

thirteenth juror in every criminal case, and that approval by the trial judge of

the jury’s verdict as the thirteenth juror is a necessary prerequisite to

imposition of a valid judgment.

State v. Carter, 896 S.W.2d 119, 122 (Tenn. 1995). “The purpose of the thirteenth juror rule

is to be a ‘safeguard . . . against a miscarriage of justice by the jury.’” State v. Moats, 906

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S.W.2d 431, 434 (Tenn. 1995) (quoting State v. Johnson, 692 S.W.2d 412, 415 (Tenn. 1985)

(Drowota, J., dissenting)). In the present case, the trial court found:

The defendant claims that the verdict was contrary to the weight of the

evidence. Again, this court disagrees and finds this issue to be without merit.

Only if the record contains statements by the trial court indicating disagreement or

dissatisfaction with the jury’s verdict or evidencing the trial court’s failure to act as the

thirteenth juror may the reviewing court reverse the trial court’s judgment. Carter, 896

S.W.2d at 122. Otherwise, our review is limited to the sufficiency of the evidence. State v.

Burlison, 868 S.W.2d 713, 718-19 (Tenn. Crim. App. 1993). We conclude that the trial court

properly exercised its role as the thirteenth juror; therefore, our review is limited to the

previously determined sufficiency of the evidence.

XV. The Constitutionality of Tennessee’s Death Penalty Scheme.

The Appellant makes multiple arguments challenging the constitutionality of

Tennessee’s death penalty scheme. First, he asserts that the imposition of the death penalty

violated due process of law because the aggravating circumstance was not set forth in the

indictment. In this regard, he contends that any fact that increases the maximum penalty for

a crime must be charged in an indictment, submitted to a jury, and proven beyond a

reasonable doubt in order to satisfy the 5th Amendment’s Due Process Clause and the 6th

Amendment’s notice and jury trial guarantees. With reliance upon Apprendi v. New Jersey,

530 U.S. 466, 120 S. Ct. 2348 (2000) and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428

(2002), the Appellant submits that he was denied due process of law because the indictment

returned by the grand jury did not include facts that would qualify him for the death penalty.

In other words, he maintains that first degree murder is not a capital offense unless

accompanied by aggravating circumstances. In order to elevate the crime to capital murder,

he alleges that the indictment must include language of the statutory aggravating

circumstance.

The Tennessee Supreme Court has consistently rejected this argument by holding that

aggravating circumstances need not be pled in the indictment. Reid, 164 S.W.3d at 312;

Leach, 148 S.W.3d at 59; State v. Berry, 141 S.W.3d 549, 562 (Tenn. 2004); State v. Holton,

126 S.W.3d 845, 863 (Tenn. 2004); Dellinger, 79 S.W.3d at 467. Our supreme court

explained, “[t]he focus in Apprendi, Ring, and Blakely was on the Sixth Amendment right

to trial by jury,” and “the Court expressly declined to impose the Fifth Amendment right to

presentment or grand jury indictment upon the States.” Berry, 141 S.W.3d at 560. The

Appellant is not entitled to relief on this issue.

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Secondly, the Appellant assertsthat the death sentence infringes upon hisfundamental

right to life and is not necessary to promote any compelling state interest. This complaint,

that his death sentence must be reversed because it violates his fundamental right to life is

contrary to settled precedent as reflected in Cauthern v. State, 145 S.W.3d 571, 629 (Tenn.

2004) (citing Nichols v. State, 90 S.W.3d 576, 604 (Tenn. 2002); Mann, 959 S.W.2d at 536

(Appendix); State v. Bush, 942 S.W.2d 489, 523 (Tenn. 1997)). Accordingly, the Appellant

is not entitled to relief on this issue.

Thirdly, the Appellant argues that instructing a jury to unanimously agree to a life

sentence violates the United States Supreme Court’s holdings in Mills v. Maryland, 486 U.S.

367, 108 S. Ct. 1860 (1988) and McKoy v. North Carolina, 494 U.S. 433, 110 S. Ct. 1227

(1990). This argument has been repeatedly rejected. See Kiser, 284 S.W.3d at 292-93; State

v. Ivy, 188 S.W.3d 132, 163 (Tenn. 2006) (citing State v. Brimmer, 876 S.W.2d 75, 87

(Tenn. 1994); Thompson, 768 S.W.2d at 250; State v. King, 718 S.W.2d 241, 249 (Tenn.

1986), superseded by statute as recognized by State v. Hutchison, 898 S.W.2d 161 (Tenn.

1994)). He is not entitled to relief.

Next, the Appellant argues that “[i]t was error for the trial court to allow a sentence

of death to be imposed in violation of international treaties and laws.” However, the

Appellant has failed to set forth any argument or citation to authority in support of this issue.

Accordingly, the Appellant has waived consideration of this issue. See Tenn. R. App. P.

27(a); Tenn. Ct. Crim. App. R. 10(b). Notwithstanding waiver, arguments that the death

penalty is unconstitutional under international laws and treaties have been rejected by our

supreme court. See State v. Odom, 137 S.W.3d 572, 600 (Tenn. 2004).

Finally, the Appellant makes several miscellaneous arguments challenging

Tennessee’s death penalty scheme. Because these arguments are either not supported by

citation or authority or have been flatly rejected by the Tennessee Supreme Court, we will

address them in short order. The Appellant contends that the trial court erred in failing to

conclude that the death penalty statutes violate the prohibition against cruel and unusual

punishment and violates due process. Specifically, the Appellant argues that the death

penalty statute “allows arbitrary and capricious imposition of the death penalty because it

fails to properly narrow those eligible for death.” The Appellant fails to support this general

claim with argument. However, we acknowledge that our supreme court has rejected the

argument that the prosecutors’ unlimited discretion in this state to decide whether to seek the

death penalty in a first degree murder case causes the system as a whole to be arbitrary and

capricious. See State v. Hines, 919 S.W.2d 573, 582 (Tenn. 1995). Similarly, our supreme

court has rejected the argument that the Tennessee death penalty statutes fail to properly

narrow the pool of death eligible defendants to the vagueness and broadness of aggravating

factors. See State v. Keen, 926 S.W.2d 727, 742 (Tenn. 1994).

-42-
The Appellant also argues that the Tennessee death penalty statute divests the jury of

its ultimate responsibility to determine the life and death decision because of the statute’s

mandatory language. This argument has been rejected. See Brimmer, 876 S.W.2d at 87;

Smith, 857 S.W.2d at 22. He further contends that the death penalty is imposed in a

discriminatory manner based upon location of the offense, race of defendant and victim,

gender of defendant and victim, and economic status of defendant and victim. This argument

has been rejected. See Hines, 919 S.W.2d at 582; Brimmer, 876 S.W.2d at 87; Cazes, 875

S.W.2d at 268; Smith, 857 S.W.2d at 23. He also challenges the death penalty alleging that

it unconstitutionally shifts the burden of proof to the defendant. The Appellant fails to

explain how the statute’s operation shifts the burden of proof to the defendant.

Notwithstanding, we acknowledge that arguments complaining of the shifting of the burden

of proof have been rejected by the courts of this state. See State v. Austin, 618 S.W.2d 738

(Tenn. 1981); State v. Dicks, 615 S.W.2d 126 (Tenn. 1981).

The Appellant further argues that the death penalty statutes violate due process in that

the statutes permit the prosecuting attorney to make the final closing argument. This

argument has been rejected. See Brimmer, 876 S.W.2d at 87; Cazes, 875 S.W.2d at 269;

Smith, 857 S.W.2d at 24; State v. Caughron, 855 S.W.2d 526, 542 (Tenn. 1993). He also

submits that the death penalty statutes are unconstitutional in that they require that the

mitigating factors must outweigh the aggravating circumstances in order to avoid the death

penalty. This argument was rejected in State v. Bane, 853 S.W.2d 483, 488-89 (Tenn. 1993).

The Appellant next submits that the appellate review process in death penalty cases

is constitutionally inadequate in its application. He contends that the appellate review

process is not constitutionally meaningful because the methodology of review is flawed and

does not require the jury to make findings of fact as to the presence or absence of mitigating

factors. This argument has been specifically rejected by our supreme court on numerous

occasions. See Cazes, 875 S.W.2d at 270-71; see also State v. Harris, 839 S.W.2d 54, 77

(Tenn. 1992); State v. Barber, 753 S.W.2d 659, 664 (Tenn. 1988). Moreover, the supreme

court has recently held that “[w]hile important as an additional safeguard against arbitrary

or capricioussentencing, comparative proportionality review is not constitutionally required.”

State v. Bland, 958 S.W.2d 651, 663 (Tenn. 1997).

Because all of the Appellant’s arguments challenging the constitutionality of

Tennessee’s death penalty have been rejected by the above settled authority, we conclude that

he is not entitled to relief.

XVI. Whether the Trial Court Erred in Denying the Motion for New Trial

Based on the Cumulative Effect of the Errors at Trial.

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The Appellant argues that the trial court erred in failing to grant his motion for new

trial based upon the cumulative effect of the errors at his trial. Initially, we note that although

the United States Constitution and the Tennessee Constitution grant the right to a fair trial,

they do not grant the right to a perfect trial. State v. Gilliland, 22 S.W.3d 266, 273 (Tenn.

2000 (citing State v. Smith, 755 S.W.2d 757, 765 (Tenn. 1988)). In State v. Hester, the

Tennessee Supreme Court recently defined the doctrine of cumulative error:

The cumulative error doctrine is a judicial recognition that there may

be multiple errors committed in trial proceedings, each of which in isolation

constitutes mere harmless error, but which when aggregated, have a

cumulative effect on the proceedings so great as to require reversal in order to

preserve a defendant’s right to a fair trial.

— S.W.3d. — , No. E2006-01904-SC-DDT-DD, 2010 WL 3893760, at *61 (Tenn. Oct. 5,

2010) (citing Alvarez v. Boyd, 225 F.3d 820, 824 (7th Cir. 2000); United States v. Rivera,

900 F.2d 1462, 1469 (10th Cir. 1990); United States v. Wallace, 848 F.2d 1464, 1475 (9th

Cir. 1988); State v. Perry, — P.3d — , No. 34846, 2010 WL 2880156, at *20 (Idaho July 23,

2010); State v. Duffy, 967 P.2d 807, 816 (1998)). The Hester court also found that United

States v. Sepulveda, 15 F.3d 1161 (1st Cir. 1993), provided helpful insight regarding the

cumulative error doctrine. Hester, 2010 WL 3893760, at *61. In Sepulveda, the United

States Court of Appeals for the First Circuit provided guidance for appellate courts when

considering whether the aggregated errors at trial deprived a defendant of a fair trial:

Of necessity, claims under the cumulative error doctrine are sui generis.

A reviewing tribunal must consider each such claim against the background

of the case as a whole, paying particular weight to factors such as the nature

and number of the errors committed; their interrelationship, if any, and

combined effect; how the [trial] court dealt with the errors as they arose

(including the efficacy – or lack of efficacy – of any remedial efforts); and the

strength of the [State’s] case. See, e.g., [U.S. v.] Mejia-Lozano, 829 F.2d

[268,] 274 n.4 [(1st Cir. 1987)]. The run of the trial may also be important; a

handful of miscues, in combination, may often pack a greater punch in a short

trial than in a much longer trial.

Sepulveda, 15 F.3d at 1196.

Upon review, the errors in the Appellant’s trial “do not lend themselves to being

aggregated to show that he failed to receive a fair trial in either the guilt or capital sentencing

phase.” Hester, 2010 WL 3893760, at *61 (internal footnote omitted). Therefore, on this

-44-
record, there is no basis to conclude that the aggregated errors deprived the Appellant of a

fair trial. We conclude that the trial court properly denied the Appellant’s motion for new

trial on this basis.

XVII. Proportionality Review.

Pursuant to Tennessee Code Annotated section 39-13-206(c)(1), we are required to

review the application of the death penalty to determine whether:

(A) The sentence of death was imposed in any arbitrary fashion;

(B) The evidence supports the jury’s finding of statutory aggravating

circumstance or circumstances;

(C) The evidence supports the jury’s finding that the aggravating

circumstance or circumstances outweigh any mitigating circumstances;

and

(D) The sentence of death is excessive or disproportionate to the penalty

imposed in similar cases, considering both the nature of the crime and

the defendant.

T.C.A. § 39-13-206(c)(1).

A. Arbitrariness. Having thoroughly reviewed the record, we conclude that the

sentence of death was not imposed in an arbitrary fashion.

B. Sufficiency of Statutory Aggravating Circumstance Found by the Jury. The

jury found that the proof established the statutory aggravating circumstance that “the murder

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

prosecution of the defendant or another.” T.C.A. § 39-13-204(i)(6). The Appellant does not

challenge the imposition of this aggravating circumstance. This aggravating circumstance

focuses on a defendant’s motives in killing the victim. State v. Young, 196 S.W.3d 85, 116

(Tenn. 2006) (citations omitted); Ivy, 188 S.W.3d at 149. Although there must be some

“particular proof” supporting this aggravating circumstance, State v. Hartman, 42 S.W.3d 44,

58 (Tenn. 2001), the State need not prove that the defendant’s desire to avoid prosecution

was his sole motive in murdering the victim. Young, 196 S.W.3d at 116. However, we have

indicated that there must be some “particular proof” in the record to support this aggravating

circumstance, Hartman, 42 S.W.3d at 58, and mere plausibility of the theory that avoiding

arrest or prosecution was one of the motives of the murder is insufficient. State v. Powers,

101 S.W.3d 383, 399 (Tenn. 2003).

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The proof established that the Appellant made comments that he was not going to

prison for child sexual abuse but might go to prison for murder. The proof also established

that the Appellant blamed Stanley Goodman for the allegations of child sexual abuse made

by his stepdaughter. Accordingly, there was sufficient proof to support the aggravating

circumstance found by the jury.

C. Totality of Aggravating Factors Applied. With consideration of the evidence

before the jury, we conclude that the evidence supports the jury’s finding that the aggravating

circumstance outweighed any mitigating circumstances beyond a reasonable doubt.

D. Proportionality. This court is required by Tennessee Code Annotated section

39-13-206(c)(1)(D) and the mandates of Bland, 958 S.W.2d at 661-74, to consider whether

the defendant’s sentence of death is disproportionate to the penalty imposed in similar cases.

State v. Godsey, 60 S.W.3d 759, 781-82 (Tenn. 2001). The comparative proportionality

review “is designed to identify aberrant, arbitrary, or capricious sentencing.” State v. Stout,

46 S.W.3d 689, 706 (Tenn. 2001). It does this by determining whether the death penalty in

a given case is “‘disproportionate to the punishment imposed on others convicted of the same

crime.’” Bland, 958 S.W.2d at 662 (quoting Pulley v. Harris, 465 U.S. 37, 43, 104 S. Ct. 871,

876 (1984)). If a case is “‘plainly lacking in circumstances consistent with those in cases

where the death penalty has been imposed,’ then the sentence is disproportionate.” Stout, 46

S.W.3d at 706 (quoting Bland, 958 S.W.2d at 668).

In conducting our proportionality review, this court must compare the present case

with cases involving similar defendants and similar crimes. Id.; see also Terry v. State, 46

S.W.3d 147, 163-64 (Tenn. 2001). We select comparison cases only from those cases in

which a capitalsentencing hearing was actually conducted to determine whether the sentence

should be life imprisonment, life imprisonment without the possibility of parole, or death.

State v. Carruthers, 35 S.W.3d 516, 570 (Tenn. 2000); see also Godsey, 60 S.W.3d at 783.

This Court begins with the presumption that the sentence of death is proportionate with the

crime of first degree murder. Terry, 46 S.W.3d at 163 (citing State v. Hall, 958 S.W.2d 679

699 (Tenn. 1997)). However, this presumption applies only if the sentencing procedures

focus discretion on the “‘particularized nature of the crime and the particularized

characteristics of the individual defendant.’” Id. (quoting McCleskey v. Kemp, 481 U.S.

279, 308, 107 S. Ct. 1756, 1775 (1987)).

In comparing this case to other cases in which the defendants were convicted of the

same or similar crimes, this court looks “at the facts and circumstances of the crime, the

characteristics of the defendant, and the aggravating and mitigating factors involved.” Id.

at 164. Regarding the circumstances of the crime itself, numerous factors are considered,

including the following: (1) the means of death; (2) the manner of death; (3) the motivation

for the killing; (4) the place of death; (5) the victim’s age, physical condition, and

psychological condition; (6) the absence or presence of premeditation; (7) the absence or

-46-
presence of provocation; (8) the absence or presence of justification; and (9) the injury to and

effect on non-decedent victims. Stout, 46 S.W.3d at 706; Terry, 46 S.W.3d at 164.

Contemplated within the review are numerous other factors, including a defendant’s: “(1)

prior criminal record; (2) age, race, and gender; (3) mental, emotional, and physical

condition; (4) role in the murder; (5) cooperation with authorities; (6) level of remorse; (7)

knowledge of the victim’s helplessness; and (8) potential for rehabilitation.” Stout, 46

S.W.3d at 706. In completing our review, we remain cognizant of the fact that “no two cases

involve identical circumstances.” Terry, 465 S.W.3d at 164. Thus, our function is not “to

limit our comparison to those cases where a defendant’s death sentence ‘is perfectly

symmetrical,’ but only to ‘identify and to invalidate the aberrant death sentence.’” Id.

(quoting Bland, 958 S.W.2d at 665).

In the instant case, the facts at trial reveal that the Appellant entered the victims’ home

armed with a .22 caliber automatic rifle and fired nine shots, killing both Stanley Goodman

and Terry Sue Goodman execution style. The Appellant knew both victims; thus, making

it highly likely that he would be apprehended had either of them survived. The Appellant

had previously made threats against Stanley Goodman. He confessed to the crime to

numerous persons.

In State v. Carter, 714 S.W.2d 241 (Tenn. 1986), the jury found that the defendant’s

motive for the murder was to kill the victim to avoid arrest for another crime. The defendant

had been planning to steal an automobile and decided upon the victim’s truck. The defendant

shot the victim – a stranger to the defendant and completely unsuspecting of the impending

crime – and disposed of the body in a lake in an attempt to conceal the murder and to avoid

arrest. The jury imposed the sentence of death after finding the (i)(6) and (i)(7) aggravating

circumstances beyond a reasonable doubt.

In State v. Smith, 868 S.W.2d 561 (Tenn. 1993), the death penalty was imposed and

upheld for a forty-year-old defendant who murdered his estranged wife and two stepsons.

Witnesses testified that for several months prior to the murder, the defendant had publicly

plotted to kill his family. Expert testimony revealed that he mutilated two of the bodies

shortly after the victims’ deaths, and the jury concluded that the evidence was sufficient to

support the aggravating circumstance that the offense was “especially heinous, atrocious, or

cruel in that it involved torture or depravity of mind.” See T.C.A. § 39-13-204(i)(5).

Moreover, the jury found that the proof supported a finding that at least one motive for

killing the stepsons was the threat they posed of the defendant’s apprehension. See id. §

39-13-204(i)(6).

In completing our review, we need not conclude that this case is exactly like prior

cases in every respect, nor must this court determine that this case is “more or less” like other

death penalty cases. State v. Thomas, 158 S.W.3d 361, 383 (Tenn. 2005). Rather, this court

need only identify aberrant death sentences by analyzing whether a capital case plainly lacks

-47-
circumstances similar to those cases in the pool of cases in which a death sentence has been

upheld. The penalty imposed by the jury in the present case is clearly not disproportionate

to the penalty imposed for similar crimes.

CONCLUSION

In accordance with the mandate of Tennessee Code Annotated section

39-13-206(c)(1) and the principles adopted in prior decisions of the Tennessee Supreme

Court, we have considered the entire record in this cause and conclude that the sentence of

death was not imposed arbitrarily. The evidence supports the jury’s finding of the section

39-13-204(i)(6) statutory aggravating circumstance to the murders of Stanley Goodman and

Terry Sue Goodman. Moreover, the evidence supports the jury’s finding that the application

of the enumerated aggravating circumstance outweighed any mitigating circumstances

beyond a reasonable doubt. See T.C.A. § 39-13-206(c)(1). Moreover, a comparative

proportionality review, considering both “the nature of the crime and the defendant,”

convinces us that the sentences of death were neither excessive nor disproportionate to the

penalty imposed in similar cases. Accordingly, we affirm the Appellant’s convictions for

first degree murder and resulting sentences of death imposed by the trial court.

______________________________

CAMILLE R. McMULLEN, JUDGE

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