# FILED

April 28, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE SUPREME COUR T OF TENNESSEE AT NASHVILLE

FOR PUBLICATION STATE OF TENNESSEE, ) Filed: April 28, 1997 ) Appellee, ) DAVIDSON COUNTY ) v. ) Hon. W alter C. Ku rtz, ) Judge HENRY EUGENE HODG ES, ) ) Appellant. ) Supreme Court ) No. 01-S01-9505-CR-00080

FOR APPELLANT : FOR APPELLEE: Brock Mehler Charles W. Burson Nashville, Tennessee Attorney General & Repor ter Donald Dawson Kathy Morante Bruce, Weathers, Corley, Dougman & Lyle Deputy Attorney General Nashville, Tennessee Nashville, Tennessee Michael E. Terry Victor S. Johnson, III Nashville, Tennessee District Attorney General Nashville, Tennessee Thomas B. Thurman Assistant District A

ttorney General Nashville, Tennessee Renee R. Erb Assistant District A

ttorney General Nashville, Tennessee



## O P I N I O N

TRIAL COURT AND COURT OF CRIMINAL APPEALS AFFIRMED. DROWOTA, J.1 The defendant plead ed guilt y to bot h premeditated and felony first-degree murder. The trial court merged the pleas and the defend ant was convicted of prem editated first-degree murder.

2 Altho ugh not p ertine nt to th is app eal, th e trial c ourt f oun d the defe nda nt to b e a m ultiple and dang erou s off end er an d im pos ed a f orty yea r sen tenc e for the c onvic tion o f esp ecia lly agg rava ted ro bbe ry whic h is to be se rved cons ecu tive to the d eath pena lty. -2- In this capital case, the tr ial court accepted pleas of g uilty entered by the defendant, Henry Eugene Hodges, to first-degree premeditate d murder 1 and especia lly aggravate d robbery. 2 The trial court conducted a c apital sentencing hearing to determine the sentence on the conviction for prem editated murder in accordance with Tenn. Code An n. § 39-13-204(1991 Repl. & Supp.1996). In the sentencing hearing, the j ury found three aggrav ating circumstances: ( 1) “[t]he defendant was previously convicted of one or more felonies , other than the present charge whose s tatutory elements invol ve the use of violence to the person;” (2) “[t]he murder was especially heinous, atrocious or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death;” and (3) “[t]he murder was committed while the defendan t was engaged in committing, or was an a ccomplice in the commission o f, or attempting to commit, or fleeing after committing a robbery.” Tenn. Code Ann. § 39-13-204(I)(2), (I) (5) and (I)(7) (1991 Repl.) . Finding that the three aggravating circumstances outweighed mitigating circumstances beyond a reasonable doubt, the jury sentenced the defendant to death by elec trocution.

On direct appeal to the Court of Criminal Appeals, the defendant challenged the sentence of death ra ising sixteen clai ms of error, each with numerous subparts. After fully considering defendant’s cl aims, the Court of Criminal Appeals affirmed the tr ial court’s judgment. Ther eafter, pursuant to3 "Whenever the death penal ty i s imposed for fi rst degree murder and when the judgment has become final i n the tri al court,the defendant shall hav

e the rig ht of dir

ect appeal f rom the trial court to the Court of Crim inal Appe als. The affirma nce of th e convic tion and the senten ce of de ath shall be aut

omaticall y revi ewed by the Tennessee Supr eme Court. Upon the affi rmance by the Cou rt of C rim inal A ppe als, th e cler k sh all doc ket th e cas e in the Sup rem e Co urt an d the cas e sha ll procee d in acco rdance with the T ennes see R ules of A ppellate P rocedu re.”

4 This ca se was originally argue d before this Cou rt with Justic e Penn y J. W hite participa ting. Review was li mited and the case r eargued before t his Court with Justi ce Janice H. Holde r partici pating.

5 Tennessee Supreme Court Rule 12 provi des in pert inent part as foll ows: “Prio r to the setting of oral argument, the Court shall review the record and briefs and c onsider all errors assigned. The Court may enter an order

designati ng those issues i t wil l revi ew. Selection of such issues will be base d on the c riteria of T.R .A.P. 11(a ).” -3- Tenn. Code Ann. § 39-13-206(a)(1) (1996 Supp.), 3 the case was docketed in this Court.

The defendant raised numerous issue s in this Court, but after carefully examining the entire r

ecord and the law, incl uding the thorough opinion of the Court of Criminal Appeals and the briefs of the de fendant and the State, this Court, on November 21, 1996, entered an Order limiting review and setting

the cause for oral argument 4 at the February 1997 term of C ourt in Nashville. See Tenn. S. Ct. R. 12. 5

For the reasons explain ed below, we have det ermined that none of the alleged errors affirmativ ely appear to have affected the s entence imposed. Moreover, the evidenc

e supports the jury’s findings as to aggrav ating and mitigating circumst

ances, and the sentence of death is not disproportionate or arbitrary. Accordingly, the defendant’s sentence of death by electrocution is affirmed.-4- FACTUAL BA

CKGROUND The defendant, Henry Eugene Hodg es, entered a guilty plea and was convicted of premeditated first -degree murder. Thereafter, the penalty phase of the trial commenced. The State pres ented proof of the circumstances of the offense through the testimony of Trina Bro wn, the defendant's fifteen-year-old girlfrien d. Brown te stified that one week befo re the mu rder she a nd the twe ntyfour-year-old defendant, who were living with the defendant's brother i n Smyrna, Tennessee, decided to move to Flo rida. To get money for the mov e, Hodges, a male homosexual prostitute, t old Brown that he woul d rob and kill the next person who propositioned him. H odges discussed with Brown how the cri mes would be carried out. Hodges repeated these statements on May 14, 1990, th e day of this murder.

On the night of May 14, Brown and Hodges went to Centennial Park in Nashvill e. When the victi m, Ronald Bas sett, approa

ched, Hodge

s talked with him, and they left together in the victim’s vehicl e and went to the victi m’s residence at 3133A, Parthenon Avenue, across from Centennial Park. Ten or fifteen mi nutes later, Hodges returned t o the park on foot, and along w ith Brown, drove back to the victim’s residenc

e in his own car. Ho

dges told Brown to li e down in the backseat of the car so no one could see her. W hen they arrived at the victim’s residence, Hodges told Br own to wait in the c

ar. After an unspecified period of time, Hodges returned to the car, wearing gl oves, and asked Brown t o come into the house. Brown testified that when she arrived,Bassett was lying face down on the bed in his bedroom with a pillow over his head. Hodges had bound his feet together with duct tape and had handcuffed his hands. While-5-

Bassett lay helplessl

y, Brown and the defendant rans acked the house searching for items of value. After obtaini ng the personal identificati on number for the victim’s automatic teller card, Brown and the defendant "took a brea k," drank a coke, and discussed whether to kill Bassett. Brow

n testified that she told Hodg es to kill Bassett to prev

ent their arrest. Hodg es then went into the bedroom and, ignoring the vic

tim's pleas not to kill him, strangled Bassett to death with a nylon rope. Brown testified that she heard Bassett moan and make a chok ing sound and that it took about five minutes for Bassett to die.

In an attempt to remove any fingerprints, the defendant wiped off various items in the residence. After turning the air conditi oner in Bassett’s bedroom on high to prevent discovery of the body, Hodges and Brown left the victim's residenc e, taking the victim 's autom obile and several ite ms of pe rsonal pr operty, including jewelr

y, a gun, and a VCR. After using Bassett's automatic teller card to withdraw the tw

enty-four-hour maximum of four hundr ed dollars from his account, the pair returned to the house of the defendant's brother and went to bed. The next day, having learned that the victim's body had been discovered,Brown and the defendant abandoned the victim's c ar in rural Rutherford C ounty and drove to Georgia in

their own

car. They w

ere eventually arre

sted in Nor

th Carolin a. Items of the victim's personal pr operty were found in thei r possession at this time.Also, the defendant’s fingerprints w ere found on items inside Bassett’ s home, and Brown had been photographed w ithdrawing money w

ith Bassett’s automatic tell er card.

Testifying for the State at the s entencing hearing, Dr. Charles Harlan, the6 The defendant test ified only about his personal

history, parti cularly

his all eged sexual abuse at age twel

ve. In t his pre- Cazes procee ding, the trial co urt correc tly limited the Sta te to questions concerning personal history and did not a llow cross- examination on t he circumstances of the offen se. See State v. Cazes , 875 S.W .2d 253, 264-267 (Ten n. 1994). -6- chief me dical exam iner for M etropoli tan Nashvi lle and Da vidson Cou nty, confirmed that Bassett had died from li gature strangulation. Dr. Harlan opined that Bassett would have remained alive and consci ous for at least three and perhaps as long as five mi nutes during the strangu lation. Harlan also found abrasions on the victim's wrists consistent with handcuffs.

The Stat e proved th at the de fendan t had bee n convicte d of arme d robbery, attempted kidnaping and robbery in Hamilton County in 1984. The Sta te also establis hed that the def endant h ad been c onvicted of murde r in Fulton County, Georgia, in July 1990 . The record reveals that the Georgia killing

occurred when the defendant and Brown arriv ed in Atlanta after murdering Bassett. Hodges made arrangements with a man to engage in homosexual ac ts for an agreed price. Hodges accompanied the man to his motel room, but w hen the man was unable to pay

the agreed p rice, Hodg es murdered h im.

In mitigation, the defendant testified 6 and also presented the testimony of his mother, his brothers and Dr. Barry Nurcombe,a child psychiatri st. This proof showed that the defendant was the next to youngest of his mothe r's five sons. His mother and father were not marr ied. His father was actually married to another woman, but engaged in w hat one of the witnesses descr ibed as an "irregular union" with the defendant’s mother for eighteen years. The defendant's father abused the defendant’s mother and was strict with the defendant’s brothers, three-7-

of whom were the children of another man. The def endant, however, was his father' s favorit e and was sp oiled. Fin ancial di fficul ties for ced the f amily to m ove about f requentl y, and def endant' s father supporte d the fa mily only sp oradical ly.

The defense introduced proof to show th at Hodges seemed normal until he was tw elve y ears ol d. At tha

t time, h e began t

o associ ate with older boys, s niff glue and gasoline, be truant from school, and run away from home. He also engaged in sexual acti

vities with his

younger brother and atte mpted sexual activities with a female cousin. He became inv olved with the juv

enile authorities and was confined to a juveni le facility in Chattanooga.

Through his mitigation pr oof, the defendant attempted to establish that a catalyst and major contr ibuting cause of his delinq uent and later criminal behav ior was his rape and sexu al abuse by a stranger when he was twel

ve years old. According to the defendant, he acc epted a stranger’s offer of a ride home when he was playing a s hort distance from his home on Fess ler’s Lane in Nashvi lle. Rather than driving Hodges home, the stranger drove Hodges to his home and raped him. Fearing rej ection by his homophobic father and driven by guil t, the defendant told no one of this incident unti l he was arrested in 1 990.

Dr. Nurcombe testified that, while the defendant suffered from an antisoc ial personality disorder, low self-esteem, and subst ance (marijuana) abuse, the ki lling was motivated by a s ubconscious desire for rev enge for the sexual abuse infli cted on him when he was tw elve, coupled with H odges’ fear that his family might discover that he was engaged in homosexual prostitution since Brown had told-8-

Hodge's sister-in- law shortly before the killing that he w

as a homosexual prostitute. The defense also intr oduced testimony that Brow n dominated and manipulated the defendant.

In rebuttal the State called Dr. James Kyser, a forensic psychiatrist, and Dr. Leonard Morgan, a clini cal psychologist. Both had examined the defendant and concluded that he suffered from an antisoci al personality disor der. They described persons with this disorder as having “no conscience,” being “self centered,” being “notoriously dishonest and untruthful,” and having “very little regard for the feelings of other s and . . . willing

to use any means to get w hat they want, no matter who it hurts.” While acknowledging the complicated f actors involved in antisocial personality dis orders, the State’s exper ts discounted the singular importance of the one incident of alleged sexual abuse in causing the defendant's actions. Dr. Mor gan concluded that the defendant "w as in complete control of his behavior" and not suffering from mental illness or emotional disturbance.

Based on the evidence presented,the jury determined that the State had proven the existence of three aggravating circumstances beyond a reasonable doubt: (1) “[t]he defendant was previously conv

icted of one or more felonies, other than the present charge w hose statutory elements inv olve the use of violence t o the person;” (2) “[t]he murder was especially heinous, atrocious or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death;” and (3) “[t]he murder was committed while the defendan t was engaged in committing, or was an a ccomplice in the commission o f, or attempting to commit,7 The jury was i nstructed t o consider t he foll owing miti gating ci rcumstances: (1) Histor

y of chi ldhood. (2) Vict im of child sex abuse. (3) Mental i llness or

mental or emotional disturbance

. (4) D om inanc e by an othe r pers on an d/or im ma turity. (5) Drug abuse. (6) Any ot her aspect of t he defendant’ s background or character or the ci rcumstances of the offens e which yo u believe re duces the defe ndant’s b lame -worthine ss. -9- or fleeing after committing a robbery.” Tenn. Code Ann. § 39-13-204(I)(2); (I) (5) and (I)(7) (1991 Repl.) . In addition, the jury found that the aggravating circumstances outweig hed the mitigating cir cumstances 7 beyond a reasonable doubt and, as a result, sentenced the defendant to death by electrocution. The trial court entered a judgment in accordance with the jury’s verdict and the Court of Criminal Appeals affirmed. After r eviewing the rec

ord and considering the errors alleged by the defendant, we affirm the judgment of the trial court and Court of Criminal Appeals.



### I.

JURY INSTRUCTION S - MITIGATI ON In this case, the defendant contends tha t he is entitled to a new sentencing hearing because the trial court’s instructions on mitigating circumstances: (1) erroneously infor

med the jury that their dut y to consider mitiga

ting circumstances was dis cretionary and conditi onal upon their being prov en; (2) failed to adequately state defendant’s requested miti gating circumstances;and (3) inappropriately distinguished between s tatutory and nonstatutory mitigating circumstances in viol ation of Tenn. Code Ann. § 39-13-204(e) . The State responds that any error in the trial court’s c harge was harmless.-10- We emphasize at the outset , however, that none of the alleged errors are of constitutional magnitude. This Court previously

has held that jury ins

tructions on specific non-statutory mitigating circumstances are not constitutionally mandated. State v. Odom , 928 S.w.2d 18, 30 (Tenn. 1996); State v. Hutchison , 899 S.W.2d 161, 17 3-74 (Tenn. 1994). Therefore, the right to such instruction s, as well as the form and content of the instructions, deriv es solely from the statute. Second, it is not vio lative of the fed eral cons titution to require a defen dant to p rove mitigating circumst

ances by a preponderance of the ev idence. Walton v. Arizona , 497 U.S. 639, 649-51, 110 S.Ct. 3047, 3055-56 , 111 L.Ed.2d 511 (1990). Thus, assuming that the trial court erred by instructing the jury to consider those “proven” mitigatin g circumstances, the err or is statutory only. Therefore, the question for consideration i n this case as to each allegation of error is whether the trial court’s failure to strictly adhere to the statute constitutes error which affirmatively appears to have affected the verdict. Tenn . R. Crim. P. 52(a).

To resolve that question,we must scrutiniz e the statute and our recent decision in Odom which interpreted the s tatute. We begin our analysis wi th Tenn. Code Ann. § 39-13-204(e)(1) (1991 Repl. & 1996 Supp.), which, as amen ded in 1989, provides as follows:

After closing arguments i n the sentencing hearing,the trial judge shall i nclude in the instructions for the jury to weigh and consider any of the statutory aggrav ating circumstances set forth in s ubsection (i) whic h may be raised by the evidenc

e at either the guilt or

sentencing hearing, or both. The trial judge shall also include in the instructions for the jur y to weigh and consi der any mitigating circumstances raised by the evidence at either the guilt or sentencing hearing or both which shall include, but not be li mited to, those circumstances set forth in subsection (j) . No distinction shall be made-11- between mitigating circumstances as set forth in subsection (j) and those oth erwise raised by the evidence which are specifically requested by either the state or the defense to be instructed to the jury. These instructions and the manner of arriving at a sentence shall be given in the oral charge and in writing to the jury for its delibera

tions. (Emphasis added.)

Recently, in Odom , supra , this Court interpreted that statute to require jury instructions on non-statutor y mitigating cir

cumstances raised by the ev idence and proffered by a defendant as having mitigating value. In addition, we stated that instructions on nonstatutory mitigating circums

tances must not be fact specific and imply to the jury th at the judge had made a finding of fact. Instead, we stated that instructions on nonstatutory mitigating circums

tances must be “drafted so that when they are considered by the jury, the statutory mitigating circumstances are indistinguishable from the non-statutory mitigating circumstances.” Id . at 32. Finally, in Odom , we interpreted the “no distinction” portion of the s tatute as precluding the trial j udge from revealing to the jury that a request was made and from identifying the party making the request. Id

.
Generally, in determining whether instructions are erroneous, this Court must review the char

ge in its entirety and read it as a whole. State v. Stephenson , 878 S.W.2d 530, 55 5 (Tenn. 1994). A charge should be considered prejudicially erroneous if it fails to fairl y submit the legal is

sues or if it misleads the j ury as to the applicable law. State v. Forbes , 918 S.W.2d 431, 447 (Tenn. Crim. App. 1995); Graham v. State , 547 S.W.2d 531 (Tenn. 1977). The United States-12-

Supreme Court has observed that in evaluating claims of error in jury instructions, courts must remember that

[j]urors do not sit in s

olitary isolation boo

ths parsing instructi ons for subtl e shades of mean ing in the s ame way that lawyers might. Differences among them in interpretation of instructi ons may be thrashed out in the deliberative process, with commonsense understanding of the instructi ons in the light of all that has taken place at the trial likely to prevai l over technical hairsplitti ng. Boyde v. California , 494 U.S. 370, 380-81, 110 S.Ct.1190, 1198, 108 L.Ed.2d 316 (1990); see also State v. Van Tran , 864 S.W.2d 465, 479 (Tenn. 1993). Applying that standard t o the instructions in thi s case, a majority of this Court has concluded that none of the assigned errors affirmatively appear to have affected the verdict.

A. Erroneous Burden of Proof At the con clusion o f the sen tencing h earing, Ju dge Kurtz ch arged the jury, in pertinent part, as follow s: * * * The evidence and arguments in this hearing have been completed, and it is my duty now to instruct you as to the law, the l aw applicable to this c ase as stated in these instruction s; and it is your duty to carefully consider al l of them. The order in which these i nstructions are giv en is no indication of their r elative importance. Y

ou should not single out one or more of them to the exclusion of another or other s, but should consider each one in light of and in har mony with the others. * * * In arriving at the p unishment, you, the jury , shall consider, as-13- heretof ore indic ated, an y proven mitigating circumstances, which shall include th e following: Any mitigating factor which is raised by the evidence produced by either the pros ecution or the defense at the sentenci ng hearing; that is, you shall consider any aspect of the Defendant’s character or record or

any aspect of the circumstanc es of the offense favorable to the Defendant, which is supported by the evidence. In determining mitigati ng factors, you are to con sider the above. In addition, the defense has submitted the following issues for your co nsiderat ion. The y are to be c onsidere d, if you b elieve they have been proven and are mitigating or favorable to the Defendant or reduce his blamew orthiness. (1) History of chil dhood; (2) Victim of child sex

abuse; (3) Mental illness o r mental or emotional distur bance; (4) Domina nce by ano ther pers on and/o r immatu rity; (5) Drug abuse; (6) Any other aspect of the Defendant’s background or character or the circums tances of the offense, which you believe reduces the Defendant’s blameworthiness. As to a determination of mitigating circumstances, y ou may deliberate as a -- as a bo dy about mitigating c

ircumstances; but you are not required to reach a unanimous verdict as to their existence or weight, n or are you t o gauge whe ther the ir existen ce is shown beyond a reasonable doubt. Instead, when you consid er mitigating cir cumstances, each of you must decide for yours elf whether mitigating

circumstances may exist and, if so, how muc h weight each deserv

es. If you conclude that any evidence support s a mitigating cir

cumstance, then you should consider that mitigating circumstance to be es tablished and then determine the weight to which it is entitled. In considering aggr

avating and mitigati ng circumstances, you must not weigh the two in a mechanical fashion. Do not merely compare the number of circumstances in aggravation to the number in mitigation, or arbitrarily assign different weights to be gi ven the factors. Instead, you should personally determine the c onvincing force of each circumstance.-14- You may find that the State has pr oved multiple aggrav

ating circumstances, and that only one mitigating circumstances -- circumstance exists, and still find that life is appr opriate, due to the convincing force of the si ngle mitigating ci rcumstance. (Emphasis added.)

The defendant first asserts that the instru ction is erroneous because it charges the jury to consider only “proven” mitigating circumstances. While acknowledging that the trial court’s use of the t erm “proven” was no

t appropriate under the statute, the State, nonetheless, argues that the error was harmless.

We agree with the defendant’s contention that the trial court erred by including the term “prov en” in the jury charge. The statute requires ju rors to conside r those st atutory o r nonstat utory miti gating circ umstanc es which ha ve been “raised by the ev

idence.” Tenn. Code Ann. §39-13-20 4(e)(1) (1991 Repl. & Supp. 1996). The statute does not impos e a burden of proof as to mitigating circumstances. Therefore, to comply precisely with the statute, the trial court should have only instructed the jury to consider those statutory and nonstatutory mitigating circumst

ances which had been “rai sed by the evidence.”

Nevertheless, rea d in context and a s a whole, it is clear th at the jury charge given in this case fairly informed the jury of the legal issues and the applicable law. The erroneous term “p roven” was clar ified by the trial court

’s subsequent instructions to the jury advising it to consider as mitigating any circumstance “raised” or “supported” by the evidence. In addition, the trial court advised the jury8 That statute provides as f ollows: “(a) No person may be conv icted of a n offense unless each of the fol lowing i s proven beyond a reasonable doubt . (3) The negat ion of any defense to an offense defin ed in th is title if a dm issib le evid enc e is intr odu ced supp orting the d efen se.” ( Em pha sis added .) -15- that “[i]f you conclude that any evidence supports a mitigating circumstance, then you should consider that mi tigating circumstanc

e to be established. . . .” Further clarification of the term w as provided when the tr ial court told the jury

that as to mitigating circumst

ances, it was “not req uired to reach a unanimous v erdict. . .nor are you to gauge whether their existence is shown beyond a reasonable doubt.”

Though the term “proven” s hould not be used because the statute contains no burden of proof and because the term is potentially misleading , in this case, the trial court’s further

explanations eliminated any potential confusion, and the error does not affirmatively appear to have affected the verdi ct. We do not agree with the defense contention that the error can not be harmless because the charge is contradictory. Though we agree with the dissent that the trial court’s use of the term “proven” was not appropriate, it was given contextual meani ng by the subsequent explanatory instructions which

fairly informed the jury to consider any mitigating circumst

ances “raised by the ev idence.” Therefore, the error was harmless and this issue is without merit.

Relying upon the Tennessee Pattern Jury Instructi ons and certain general statutory provisi ons, the defense, during oral ar gument before this Court, asser ted that the trial court shoul d have instructed the jur y that the State has the burden to disprove any mitigating circumstances beyond a reasonable doubt. First of all, Tenn Code Ann. § 39-11-201(a)(3) (1991 Repl.) 8 and § 39-11-203(d) (19919 That statute provides as f ollows: “(d) If

the issue of

the exist

ence of a defense i s submitted to the ju ry, t he court shal l inst ruct the j ury that any reasonabl e doubt on the issue requires the defendant to be acquitted.”

-16- Repl.) 9 do not support the defendant’s claim. The se are general statutes which govern the prosecution of criminal offenses. They have no application in the context of a capital sentenci ng proceeding whic h is controlled by Tenn. C ode. Ann. § 39-13-204 (1991 Repl). It is an elementary principle of statuto ry construction that a specific statute on a particular subject will prevail over a general statute. State v. Black , 897 S.W.2d 680, 683 (Tenn. 1995). There is no provision in the capit

al sentencing scheme to suppor t the defendant’s claim that the State must disprove miti gating circumstances beyond a reasonable doubt. Indeed, it is difficult to imagine how the State could meet su ch a burden. Jurors individually cons ider mitigating ci rcumstances and need not unanimously agree to any certain one. Accepti ng the defendant’s argument w ould impose upon the State the untenable task of disprov ing the existence of each mitigating circumstance to twelv

e different individuals. This duty has not been imposed by statute and we refuse to judic ially impose it.

Moreover, the defendant’s reliance upon §7.04(d) of the Tennessee Pattern Jury Instructions is misplaced. As we have previously stated, pattern jury instructions are not officially approved by this Court or by the General Assembly and should be used only after car eful analysis. They are merely patterns or suggestions. While previously printed forms may be conveni ent, they must be revised or supplemented if necessary in order to full y and accurately conform to applicable law. State v. Martin , 702 S.W.2d 560, n. 4 (Tenn. 1985). To the10 The pertinent portion of that pat

tern inst ruction pr

ovides as fol lows: “The defen dant does not have the burd en of pro ving a m itigating circum stance

. If there is so me e vidence that a mitigati ng circumstance exist s, then t he burden of proof is upon the st

ate to prov

e, beyond a reason able dou bt that the m itigating circum stance does n ot exist. ” 7 T.P.I. -Crim. § 7.04( d) (West 4th ed. 1995) (emph asis added).

-17- extent that §7.04(d) 10 purports to require that the jury be instruc ted that the State must disprove mitigati ng circumstances, it does not conform to applicable law and is hereby expressl

y disapproved. This i ssue is without merit.

B. Specificity of Instructions At an appropriate time in the s entencing hearing, the defendant submitted the following proposed j ury instructions w ith respect to nonstatutory mitigating circumstances. 1. The defendant had a disturbed childhood due to the irregular nature of the relationship of his pa rents, the conflicts that ex isted between them, and the financial har dships experienced by

the family. 2. The defendant’s psychologic al and social development w as severely impacted by

the trauma of being abducted and homosexually raped at the age of 12, an experience w hich he was afraid to reveal to others for fear that he would be blamed and rejected; 3. The after effects of the trauma, in combination with a genetic predisposition to alcoholi sm, led to the defendant’s becoming dr ug and alcohol-dependent during h is adolescence; 4. The defendant’s drug and alcohol dependency, in combination with the psycholog ical impairments resulti ng from his disturbed childhood and preadolescent sex ual abuse, contributed to the defendant’s becoming truant from school and to his delinquent, and later criminal, behavi or; 5. As a result of his distur bed childhood and preadolescent s exual abuse, the defendant developed a severe conf lict regarding his sexual identity which he felt compelled to keep secret from his family;-18- 6. When the defe ndant’s sexual conflicts were revealed to his family he suffered a mental and emotional disturb ance. 7. The intent to commit murder w as formed while the defendant was under the influence of this mental and emoti onal disturbance. 8. The defendant did not wish to ki ll the victim and w as persuaded to commit the murder by his juvenile accomplice, Tr ina Brown, who was permitted to plead g uilty and receive a sentence of incarceration in a juvenile correc

tional institution until

she is twenty-one y

ears of age; 9. The defendant was an immature and emoti onally dependent person at the time of the offense, and his jud gment was impaired by alcohol and drugs; and 10. The murder of the victim i n this case added to the mental and emotional disturbance the defendant w as experiencing and contributed to the commission of the homicide in Atlanta whic h has been listed as one of the statutory aggravating factors.

The trial court refused to give the instructions requested by the defense and instead, instructed the jury as to six general categories of nonstatutory mitigating circumst

ances, as follows (1) hi story of childhood; (2) v ictim of child sex abuse; (3) mental illness or mental or emotional distur bance; (4) dominance by another person and/or immaturity; (5) drug abuse; (6) any other aspect of the defendant’s background or character or the circumstances of the offense, which you believe reduces the defendant’s blameworthiness. In this Court, the defendant claims that the trial c ourt erred by refusing

to give his requ ested instructions and he contends that the instructions given were erroneous because they lacked specificity

and failed to convey the defendant’ s theories of mitigation to the jury. The State responds that the trial court fully complied with this Court’s decision in Odom , which was render ed afterthe trial of this case. We agree.11 The statutory mitigating circumstances are codified at Tenn. Code An n. §39-13-204(j(1)- (9) (1991 Repl.& 1996 Supp.), whi ch provides as f ollows: (1) T he de fend ant h as no signif ican t histo ry of pr ior cr imin al act ivity; (2) The murder was committed whil e the defendant was under the i nfluence of extreme mental or emotional disturbance ; (3) The victim wa s a particip ant in the de fendan t’s condu ct or con sented to the act; (4) The murder was committed under ci rcumstances which the def endant reason ably believed to provide a mora l justification for the defe ndant’s c onduc t. (5) The defendant was a n accomplice in the murder committed by another person and the defendant’s participation was relatively minor; (6) The defendant act ed under extreme duress or under the substantialdomination of another per

son; (7) The youthor advanced age of the defendant at the ti me of the crime; (8) T he ca pac ity of the defe nda nt to a ppre ciate the w rong fulne ss o f the d efen dan t’s conduct or to conform the defendant’ conduct to t he requirements of the law was substanti ally

impaired as a resul

t of mental di sease or defect or intoxi cation whi ch was insuffi cient to establi sh a defense to t he crime but which substanti ally affected the defendant’s judgment; and (9) Any ot her mitigat ing factor which is r

aised by the evidence produ ced by either the prosecuti on or defense at either the guilt or sentenci ng hearing. -19- In Odom , supra , the defendant claimed that the trial court erred by refusing to submit to the jury his requested fact specific instructions on nonstatu tory mitigating circumstances. We rejected that claim , concluding that the fact specific instructions advocated by the defense implied to the jury that the judge had made findings of fact in contraventi on of Article VI, § 9 of the Tennessee C onstitution. Id ., 928 S.W.2d at 32. W e held that specificity in the charge on nonstatutory mitigating circumst

ances is inappropriate and c autioned that instructions mus t be drafted “so that when they are considered by the jur y, the statutory miti gating circumstances are indistinguishable from the non-statut ory mitigating circumstances.” Id . Though not explicitl y stated in Odom , the clear implication is that instructions on nonstatutory mitigating circumstances must be phrased in general categories similar to the statutory mitigating circumstances. 11 Finally, we emphasized in Odom , that under the statute, a tri al court has no duty, absent a timely and proper requ est from the defense, to include instr uctions on nonstatutory mitigatin g circumstances. Id. , 928 S.W.2d at 31. However, when the defense proffers a requested instruc tion which is over

ly specific, it is i ncumbent-20-

upon the trial court to rev ise and generalize the instruction to conform to the evidence and the law. Id

.

Applying those principles to the facts in this c ase, it is clear that the trial court appropriately deni ed the defendant’s requested instr uction. A fair reading of the defendant’s requested instr uctions leaves the disti nct impression that the tri al judge has made findings of fact w hich is impermissible und er the Tennessee Constitution. Moreove r, by their specifici ty, the requested instr

uctions on nonstatutory mitigatin g circumstances wer e clearly disting uishable from the statutory mitigating

circumstances which is not permissible under the statute and our decision in Odom . Therefore, the trial court c orrectly refused to gi

ve the defendant’s proffered instruction s.

The defense claims also that the rev ised instructions gi

ven by the trial court, by their lack of specificity, defeated the purpose of the instructions and did not convey to the jury

a fair picture of the mitigati on proof. We do not agree. As was previously recognized, unlike lawyers, jurors do not parse jury instructions in an attempt to find subtle shades of meaning . Jurors interpret the instructions in a commonsense manner and in light of the evidence presented at the tr ial. Boyde , 494 U.S. at 380-81, 110 S.Ct. at 1198. The defense assertion ignor es the reality that these jurors had heard s pecific evidence during the sentencing hearing about the defendant’s childhood, his immatur ity, alleged sex

ual abuse, drug abuse, mental illness and emotional di sturbance, as well as the dominance by Trina Brown. By their br

eadth, the instructions on nons tatutory mitigating

circumstances encompassed all the evidence presented by the defense at the sente ncing-21-

hearing. Under this C

ourt’s decision in Odom , trial courts have a d uty to m odify proffered instructions to remove factual specif icity. The trial court in this case fulfilled that responsibilit y long before the Odom decision was rendered.For that he deserves commendation, and the d efendant’s claim of error is w ithout merit.

C. Distinction Between Statutory - Nonstatutory Mitigation Finally, the defendant clai ms that the trial court impr operly distinguis hed between statutory and nons tatutory mitigating

circumstances in vi olation of the statute and our decision in Odom . The only distinction er ror alleged is the tr

ial court’s preface of the charge on non-statutory mitigating circumstances w ith the phrase, “the defense has submitted the f ollowing issues for your consideration.” Without question, the phrase was improper under this Court’s subsequent interpretation of the statute in Odom , supra , in which we stated that a “trial court is prohibited from revealing to the jury that a req uest was made and from identifyi ng the parties making the req uest. Id ., 928 S.W.2d at 32. However, in this case, the error does not affirmatively appear to have affected the verdi ct in light of the trial court’s prior instr

uction cautioning the jur y that [t]he order in which these instructions are g iven is no indication of their relati

ve importance. You should not single out one or more of them to the exclusion of another or others, but should c onsider each one in light of and in harmony with the others. (Emphasis added.) Therefore, the defendant’ s claim that this error was prejudicial requiring a new sentencing hearing is without merit.



### II.-22- SUFFICIENCY OF EVI DENCE - AGGR AVATI NG CIRCUMSTA NCES Pursuan t to Tenn . Code Ann . § 39-13- 206(c)(1 )(B) (1991 Repl.), we h ave examined the evidence to dete rmine whether it is s ufficient to support the three aggravating circumstances found by the jury. We conclude that th e evidence is clearly sufficient to support these findings.

The State introduced proof to establi sh that the defendant had been previously convicted of armed robbery, attempted kidnaping and robbery in Hamilton County in 1984. I n addition, the State establish ed that the defendant had been convicted of murder in Fulton County, Georgia in July of 1990. This evidence is clearly

sufficient to support the jury ’s finding that the “[t]he defendant was previously convicted of one or more felonies, oth er than the pres ent charge whose statutory elements involve the use of vi olence to the person.” Tenn. Code Ann. § 39-13-204(I)(2) ( 1991 Repl.). Moreover, we do not agree wi th the defendant’s claim that the Georgi a conviction for murder sh ould not have been admitted to establish this aggravating circumstance because the killing in that case occurred after the offense in thi s case. We have previously hel d on numerous occasions that so long as a defendant is convicted of a violent felony prior to the sentencing hearing at which the previous conviction is introduced, this aggravating ci rcumstance is applicable. State v. Nichols , 877 S.W.2d 722, 736 (Tenn. 1994); State v. Caldwell , 6 71 S. W.2 d 4 59 , 4 64 -6 5 ( Te nn . 1 98 4) . We decline the defendant’s invitation to overrule this precedent; the refore, this issue is without merit.

Next, the defendant contends that the evidence presented by the State was12 The State in this case specif ically reli ed only uponthe tort ure aspect of t he aggravati ng circumstance. Pri or to the sen tencing hearing in r esponse to a defense moti on to stri ke the aggravati ng circrumstance, General Thurman stated as fol lows: “I ’m not sayi ng it was phy sical damage beyond that necessar y to cause death. The State i s relyi ng, as I sai d in my bri ef, on the torture aspect.” Transcript Vol ume 12 of 18 at page 1632. Fur thermore, the St

ate argued only the torture prong of the aggr avating ci rcumstance at the concl usion of t he sentencing hea ring.

-23- insufficient, as a matter of law,to support the jury’s finding that “[t]he murder w as especially heinous, atr

ocious, or cruel in that it involved tortur e or serious physical abuse beyond that necessary to produce death.” W e disagree. The trial court correctly instruc

ted the jury as to the definitions of the terms “heinous,” “ atrocious,” and “cruel” in accordanc e with this Court’s

decision in State v. Williams , 690 S.W.2d 517, 529 (Tenn. 1985); see also Odom , 928 S.W.2d at 26. Also in accordance with Williams , the trial court instr ucted the jury that “tor

ture” means “the infliction of severe ph ysical or mental pain up on the victim while

he or she remains alive or conscious.” Id . The proof introduced by the Stat e during the trial clearly established t

orture. 12

Hodges handcuffed the victim, bound his feet with duct tape and l eft the victim lying on

the bed with a pillow

over his head. No doubt, the victim suffered considerable mental pain as the defenda nt, along with Trina Brown, ransacked his home, looking for valuable property and money. The helpl ess victim’s mental pain, no doubt, increased w hen the defendant and Brown, took a br eak, and over a coke, discussed whether or not they should kill the victim. The evidence surrounding the murder itself shows that the victim pleaded with Hodges for his life. Dr. Harlan te stified that the killing woul d have tak en betwee n three to five minutes to accomplish and that v ictim would have been c onscious during most of this period. Brown testified tha t she heard the victim moaning an d making a-24-

choking sound. The facts and cir cumstances surrounding thi s murder, including the strangulation, are cl early sufficient to establi sh torture as that term has been defined in State v. Williams , supra , and to support the jury’s finding that this murder was heinous, atroc ious, or cruel, in that i

t involved torture or serious physical abuse beyond th at necessary to produce death. Tenn. Code Ann. § 39- 13-204 (I)(5) (1991 Repl.). Finally, the jury

’s finding that “[t]he murder was committed while the defendant was engaged in commit ting, or was an accompl ice in the commission of, or attempting to commit, or fleei ng after committing a robber y”, Tenn. Code Ann. § 39-13-204 (I)(7) ( 1991 Repl.), is clearl y supported by the ev

idence. The defendant entered a guilty pl ea to one count of especially aggravated robbery. In addition, the State introduced pr oof during the sentencing hear ing to establish that the defendant had several items of persona l property belonging to the victim in his possession at the time he w as arrested. The evidence i s clearly sufficient to support this aggrav

ating circumstance.



### III. PROPORTIONALITY REVIEW In accordance with the mandate of Tenn. Code Ann. § 39-13- 206(c)(1)(1991 Repl.),we have considered the entire record in this cause and find that the sentence of death was not i mposed in any arbitrary fashion; that the evidence supports, as previously discussed, the jury’s findings of the statutory aggravating ci rcumstances; and the jury ’s finding that the aggr

avating circumstances outweig h mitigating circums tances beyond a reasonable doubt.-25-

Tenn. Co de Ann. § 39-13-20 6(c)(1)(A )-(C)(199 1 Repl.). Finally, co mparati ve proporti onality re view convinc es us that the sent ence of death is n either exc essive nor disproportionate to the pen alty imposed in similar cases considering the nature of the crime and the defenda nt. Tenn. Code Ann. § 39-13-206(c)(1)(D) (1991 Repl.).

Our 1977 statute created a compara tive proportionality

review to serv

e as an additional safeguard again st arbitrary or capricious sentencing. S uch review of death cases insures rational ity and consistency in the imposition of the death penalty. We have studied, compared, and anal yzed cases and conducted a meaningful proportionality review as outlin ed in State v. Barber , 753 S.W.2d 659, 663-68 (Tenn. 1988). We have reviewe d Rule 12 reports from trial judges submitted over the past eig hteen years in all cr iminal trials for first degree murder in which lif e impriso nment or a senten ce of dea th has be en impos ed. W e have made an indepen dent, co nscienti ous and t horough r eview of th is case, a s we have in every other

capital case that has come before this Court. As a result of that review, we

are of the opinion that the calcul ated and premeditated killing of this victim warr

ants imposition of the death penalty. The defendant rendered the victim helpless by

binding his feet and hands and then proceeded to ransack the victim’s home, whil e the terrified victim po ndered his own fate. The defendant ignored the victim’s

pleas for mercy and proceeded to strangle the victim to death. The victim remained aliv e and conscious for most of the three t o five minutes required for the defendant to accompl ish this task. This murder places the defendant Hodges into the class of defendants deserving capital punishment and is not disproportionate to the sentences imposed in simila r cases. See State v.-26-

Brimmer , 876 S.W.2d 75 (Tenn. 1994); State v. Harris , 839 S.W.2d 54 (Tenn. 1992); State v. Caughron , 855 S.W.2d 526 (Tenn. 1993); State v. West , 767 S.W.2d 387 (Tenn. 1989); State v. Thompson , 768 S.W.2d 239 (Te nn. 1989); State v. Poe , 755 S.W.2d 41 (Tenn. 1988); State v. House , 743 S.W.2d 141 (Tenn. 1987).

CONCLUSION We have considered the defendant’s assignments of error and determined that none affirmatively appear to have affected the sentence imposed. With respect to issues not speci fically addressed herein , we affirm the decision of the Court of Criminal Appeals, a uthored by Judge Joe B. Jo nes and joined in by Judge Gary Wade. The defe ndant’s sentence of death by electrocution is affirmed. The sentence of death will be carried out as provid ed by law on the 28 day of July, 1997, unless otherwise ordered by this Court, or other pr

oper authorities. Costs of this appeal are adjudged agains t the defendant.

_____________________________________ Frank F. Drowota, II I Justice

Concur: Anderson, Holder, JJ. Birch, C. J., - separa

te dissenting opinion. Reid, J. - separate diss enting opinion.