1 “Pri or to the setti ng of oral argum ent, the Court shall review the record and briefs and consider all

erro rs assign ed. T he C our t ma y en ter an ord er de signa ting th ose issu es it wishes addres sed at ora l argument.” Tenn. Sup. Ct . R. 12.2. 

### IN THE SUPREME COURT OF TENNESS EE AT JACKSON November

14, 2001 Se ssion
STATE OF TENN ESSEE v. TIMOTHY Mc KINNEY Appeal fr

om the Court of Cr

iminal Appea

ls Criminal Court for Shelby County Nos. 98-01434, 98-01435 Joseph B. Dailey, Judge

No. W1999-00844-SC-DDT-DD - Filed March 26, 2002

The defendant, Timothy McKinney, was convicted of premeditated fir st

degree murder and attempted second degree

murder. The jury imposed a death sentence for the first degree murder after finding that evidence of an aggravating circumstance, i.e. , the defendant was previously convicted of a felony whose statutory elements involved the use of viol e nce to the person, outweighed evidence of mitigating circumstances beyond a reasonable do ubt. T he trial judge imposed a sentence of twelve ( 12) year s for the attempte d second

degree murder, to run con secutive ly to th e death sentence.
After the Court of

Criminal Appeals affirmed the convictions and the sentences, the c ase was automatic ally docketed

in this Cour

t. We ent ered an order sp ecifyin g six issues fo r oral a rgument, 1 and we now ho ld as follo ws: (1) the trial court did not commit error by denying the defendant’s motion to introduce expert testimony on the issue of eyewitness identifications; (2) the jury’s verdict form was sufficiently clear to demonstrate that the jury found the prior violent felony aggravating circumstance relied u

pon by the

prosecu tion; (3) t h e evidence was sufficient to sustain the prior violentfelony a

ggravat ing circ umstance

found by th

e jury; (4 ) the tria

l c our t’s refusal to allow defense counsel t o refer to evidence from the guilt phas e of the t

rial during his clos ing argum ent in the sentencing phase of

the trial did not affect the jury’s determination to the prejudice of the defendant and was harmless error; (5) the trial court did not commit error in admitting victim impact evidence durin g t he sentencing phase; and (6) the sentence of death was neither arbitrary nor disproportionate. We also conclude that the evidence was sufficient to support the jury’s findings that the prior violent felony aggravating cir cumstanc e had be en estab lished be yond a re asonable doubtand that

it outweighed evide

nce of mitigating f

actors b eyond a r

easonab le doubt. Finally, we agree with the Court of Cri minal Appe als’ conclusions w ith respe ct to the r emaining issues, the-2-

relevant portions o f which a

re inclu ded in

the appendix to this opinion. Accordingly, we affirm the judgment o f the Cour

t of Crimina

l Appeals

. Tenn. Code Ann. § 39-13-206(a)(1); Judgment of the Court of Criminal Appeals Affirmed
E. R ILEY A NDERSON , J., delivered the opinion of the court, in which F RANK F. D ROWOTA , III, C.J., and J ANICE M. H OLDER and W ILL IAM M. B ARKER , JJ., joined. A DOLPHO A. B IRCH , J R ., file d a concurring and dissenting opinion.
William Gosnell, C. Michael Robbins, and William D. Massey, Memphis, Tennessee, for the appellant, Timothy McKinney.
Paul G. Summers , Attorney General and Reporter; Michael E. Moore , Solicitor General; Gordon W. Smith, Associat

e Solicitor

Genera l; William L . Gibbons, District Attorney Genera l; Phillip Ge

rald Harris and Davi d Henry, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
BACKGROUND
Guilt Phase
The evidence in the guilt phase of the trial of Timothy

McKinne

y f or preme ditated f

irst degre e murder

and atte mpted sec ond deg

ree mur der is summarized a s follows:
On the night of December 25, 1997, the victims, Donald Wi lliams and Frank Lee, w ere working as security g

uards for Crumpy’ s, a nightclub in Memphis, Tennessee. Both Williams and Lee were off-duty Memphis police of ficers.
The defenda

nt, Timothy

McKinne y, w as atten ding a p arty

at the nig htclub. L ater tha t night, the defendant, who was wearing a black derby , multi-colored sweater, gold ve st, dark p ants, and gold
s hoes, left the club and became upset when he could not find his ca r in the parking lot. Althou g h Williams and Lee assured him that his car was in the parking lot, the defendant screamed, “My

car’s been stolen, so mebody ’s going to pay for it, or I’m g oing to c ome back and shoot up the club or blow it up.” Williams urged the defendant to calm down and stop making threats. The defendant replied that “he didn’t ca re about going to jail” because he

had just f inished se rving tw enty -three

months. Shortly thereafter, a friend of the de fendant’s, Yarron Young, ca me out of the club and found the defenda

nt’s car in the par king lot. While Young was outside, Lee separated thedefendant and Williams. Young testified that the defendant was speaking loudly and was drunk, and that he heard the defendant say

he would “be back.” Another witness, St

ephon Spe

ncer, ta lked to the defendant
near his car. The defendant told Spencer that “he had gotten into it with a security guard” and that the guard had hit him. Spencer did not see any sign that the defendant had been injured.-3-

The defendant then drove out of the parking lot, but later returne d and trie d to re-enter the club. Lee told the defendant that

he was not permitted back into the club and offered to g o inside and find his friends. The defendant refused the off er and instead waited outside the club beneath a light pole. Lee testified that the def endant “just sat there and looked at us all night.” Williams called the Memphis Police Depart ment a nd req ueste d that a patro l car i nvest igate. Alth ough the defendant eventually left, he

returned yet again and parked his car in the lot. Memphis police of

ficer Ro nald Ma

rshall arrived at the scene on an unrelate d matter, and Williams spoke to him about the defendant. When McKinney ag ain tried to enter the club, Officer Marshall stopped him, placed him in a patrol car, an d ask ed him why he had r eturned to the club. The defendant told Marshall that he “did not want any trouble.” Marshall took the defendant’s driver’s license

and gave it to Williams, who wrote down the defendant’s name, date of birth, and address

. When Williams said that he did not want an arrest to be made, Marshall told the defendant to leave the scene, and he complied. Joyce Jeltz testified that later, around 2:30 or 3:00 a.m. on the morning of December 26, she saw a man running toward Williams and Lee with agun ag ainst his right leg, and she saw the man shootWilliams “point blank in the b ack of hi s head.” Jeltz said that the man was wearing brown pants and an u n buttoned vest. She later selected two men from a photogra phic array

whom she believe d could ha

ve been the shoote

r; one of the men wa s the def

endant.
Lee testified that he heard the gun shot, saw Williams on the ground, and then saw the defendant “eye to eye” f rom a distance of five or six feet in the we ll-l igh ted area. Although the defendant had a gold bandana over the lower part of his face, he still

wore the multi-colored sweater and dark pants. Lee pursued the de fendant and exchanged

gunshots with him before the defendant drove from t he scen e in th e same v ehicl e he had been u sing throughout the e vening. Lee la ter identifie d the def

endant f rom a phot

ographic arr

ay , specif ically pointing to hi s “ la zy” or “d ro op y” ey es, and he te stified th at he had “no doubt

” that the defendant was the shooter and the man he had chased from the scene. Williams was given CPR at the scene andthen tra nsported to the hosp ital. The

gunshot to his neck had transected his spine, resulting in para lysis and a

n inability to breathe. Williams was placed on an art

ificial v entilator

and contr

acte d pneu monia and other infections. He died on January 29, 1998.
After the shooti ng, on D ecembe r 26, 1997 , the def

endant w ent to Stephon Spenc er’s hou se and told him, “They said I shot a police officer.” Thereaf ter the defendant telephoned his paren t s and two lawyers, but then le ft Spencer’s home. On Dece m ber 27, 1997, police officers found the defendant at a Memphis apartment. Later that da y, office rs found the

defenda nt’s hat, sweater , vest, and vehicle license plate inside his girlfriend’s house. B allistics tests later r ev ealed particles of gunshot residue on the defendant’s vest.2 The defenda nt has not cha ll enged t he suf fic iency of the evid enc e sup por ting th e con viction s in this Co urt. -4- Al thou gh the defendant did not introduce any evidence at trial, he challenge d t h e identification testimony

of Lee and Jeltz 2 and attempted to develop an al ib i d ef en se . T he ju ry, however, convicted the defendant of the first deg ree premeditated murder

of Donald Williams and the attempted second degree murde r of Frank Lee.
Sentencin g Phase
After the conviction of McKinney for the prem editated f

irst deg ree mur der of D onald Williams, the trial moved into the sentencing phase for the offe nse. In sentencing , the State relied upon the aggravating

circumstan c e in Tenn. Code Ann. § 39-13-204(i)(2) (1997), i.e. , that the defendant had a prior conviction for a felony whose statutory

elements involved the use of violence to a person . The State

introduc ed evide

nce to show that

the defendant had pled guilty to aggravated robbery on Ma

y 1, 1994 in Memphis, Tennessee.
Th e offense of aggravated r obbery, in per

tinent part, is the intentional or knowing theft of propert y from the person of another by violence or putting the person in fear, ac complished with a deadly weapon or by

display of any

article used or

fashioned to lead the victim to reasonably believe it to be a deadly

weapon. SeeTenn. Code Ann. § 39-13-402(a) (1997). The indictment to which the defendant pled guilty had c

harged that the defendant and a co-defenda nt “violently” robbed the victim.
In addition to evidence of the prior vio lent felo ny a ggra vating c ircumsta

nce, the State presented victim im

pact evidence. First, the victim’s widow, Sharon Williams, testified that the personal and financial loss suffered by her and her two daug hters had been “devastating.” The children were eight and ten y ears of age when the victim was killed. Memphis police officer Michael J. Clark then testified about the victim’s career as a police officer from 1982 until his death. Clark sai d that Willia ms spent mos t of his ca

reer in uniform patrol and had served as interim vice-presiden t of the Memphis Police Association. Clark also said that Williams was a member of t he assoc iation’s n

egotia ting tea ms, and he

describ ed Williams a s a “mediator,” rather than a “big, let’s lock ‘em up, policeman.” Clark told the jury that Williams had worked to obtain a school security assignment, which required a four-y ear college deg

ree.
The de fe ns e t he n p re se nt ed th e t es ti mo ny o f numer ous family members and f riends who described the defendant’s ba ckground and characteristics. For example, Tawanda Waterman testified that she was pregnant with the defenda nt ’s child in D ecember of 1997, but had lost the child. Waterman said that the defendant had intended to marry her and “start his life over.”
The defendant’s mother, Ella Ty rus, testified that she was fifteen when she gave birth to the defenda nt. She said that the defendant was a good artist and was good at helping old pe ople, and she-5-

askedthe jury

to spare his life. T

he defe ndant’s s tepfather, J.C. Ty rus, testi fied tha

t the def endant,
one of thirteen children, was a normal boy who had cau sed no pro

blems and who got a long well with his siblings . Ty

rus said th at the defendant had drop ped out of

school in t

he eigh th or ninth grade, butwas a g ood artis t. When Ty rus also s tated tha

t the def endant ha d been tr yin g to turn

his life around, the prosecutor cross-examined him about the defe nd ant’s juvenile adjudications for aggravated assa

ult in 1991.
Steven andLinda Moshier testified that they were friends and co-workers of the defe ndant and that the defendant was a good worke r. Linda Moshier statedthat the d efenda nt was g reat wit h childre n and avo ided conf

rontation s. Zacharias Stewart, a childhood fr iend, also testified that the defendant had a grea

t personality and introduce d a drawing that the defendant had done

. Dr. John V. C iocca, a

clinical psy cholog ist, testified that he interviewed thedefendant and reviewed his school records. Dr. Ciocca said that the defendant ha d low learni ng abil ity in rea ding, writi ng, and mat hem ati cs. The def end ant had a “l ow a ver age ” IQ in the lo wer 90s and had been placed in specia l educat ion when h

e was nine. Acco

rding to Dr. Ciocc a, the defendant ’s le arning di sa bi li ty, lethargy , and despondency at a young

age revealed a ne

ed for psyc

hological help that he never received. The defendant

was expelled from school in the ninth grade, but later completed the requirements for a G.E.D. in 1994.
The defendant then took

the stand andtestifie d that he w as the fa ther of tw o childre

n, both of whom had d

ied. He a lso said tha

t he had le arning

problems in school and got bored easily. The defendant admitted that

he had been drinking and smoking marijuana on the da y of the offe

nses, but he denied that he killed Donald Williams and accused the S tate’ s wit nesse s of lyin g. Alt hough the defendant admitted that he served time for agg ravated robbery , he said that he had only dr iven a getaw ay car whil e a co-defendant committed the robbery . The defendant testified that he attained his G.E.D. while he was in prison in 1 994. He a dmitt ed that he had juvenile adjudications for aggravated assa

ult, but minimized his role in those incidents.
Afte r the evidence was completed, the case w as submitted to the jury for sentenc ing. Th e jury found that the defendant’s prior conviction for ag gravated robbery satisfied th e aggravating circumstance relied upon by the State, see Tenn. Code Ann. § 39-13-204(i)(2) (1997), and that the evidence of this aggravating c ircumstance outweighed evidence of mitigating circumstances bey ond
a reasonable doubt. Accordingly , the jury imposed the death sentence upon Timothy McKinney

for the first degree murder of Dona ld Williams. The defendant app e aled to the Court of Criminal Appeals , which affirmed the conviction and the death sen tenc e. Thereafter, the case w as automatically docke

ted in this Court.
ANALYSIS

Eyewitness Identification
The first issue raised by the de fen dant and select ed for oral argument by this Court is the issue of whether expert proof may be introduced regarding

eyewitness identifica

tion. The defendant3 Justi ce Holder, j oined by then Chief J usti ce Anderson, diss ented from the adoption of a per se rule

of excl usion in Coley and would have remanded the case for a hearing on admissi bili ty. Alt hough Justices Holder and Anderson adh ere to their d issentin g vie w e xpr essed in Co ley , they agree with t he res ult in t he pres ent c ase gi ven the defendant’s f

ailur e to make an offer of proof as to what t he proposed expert testim ony wo uld hav e sho wn
. See State
v. Si ms , 45 S.W.3d 1, 15 (Tenn . 2001).

4 The defendant ’s r eli ance upon State v . Dy le , 899 S.W .2d 607 (T enn. 1995 ), is clearly misplaced. In Dy le , t his Court de scri bed ide nti fic ati on tes ti mony as an expre ssi on of belief or impressi on and adopted an enhanced jury ins truc ti on to be us ed in c ases where i denti fic ati on is a mater ial is sue. 899 S.W.2d at 612. The maj orit

y in Coley spec ifically reli ed upon Dy le , and the enhanced jury i nstruct ion on eyewitness test

imony, in support of the per se rule of ex clusio n. See State v. Coley , 32 S. W.3d at 837.
-6- argues that the t rial court erred in deny ing his motion to permit expert testimony rega rding eyewitness identifica

tions and that the exclusion of this evidence denied his due process right to a fair opportuni

ty to present a defen se during

the guil t phase of the trial . The State

respondsthat this Courthas held that expert testimony reg arding eyewitness identifications is ina dmissible and that the exclusion of such evidence does not violate a defendant’s due process rig ht to present

a defense.
The State is co

rrect th at a major

ity of this Court has ruled that expert testimony on the issue of ey ewitnessidentific ations is per se inadmissible under Ten n. R. Evid. 702

. State v. Coley , 32 S.W.3d 831 (Tenn. 2000). 3 The Coley majority reasone d as follo ws: Eye wit ness testi mony has n o scie ntifi c or tec hnica l und erpin nings which would be outside th e c om mo n u nd er st an di ng of th e j ur y; therefor e, e xpert testimony is not necessary to help jurors ‘understand’ the ey

ewitness ’s te st im on y. Moreo ver, expert testimony about the eyewitness’s accuracy does not aid the jury

in determining
a fact in issue because the question whether an e yewitness should be believedis not a ‘fact

in issue’ but rather a credibility determination.

Id. at 833-34. The Court therefore concluded t hat “general and unparticularized e xpert testimony concerning the reliability of eyewitness testimony, which is not specific to the witne ss whos e testimony is in question, does not substantially assist the trier of fact” as required by Tenn. R. Evid. 702. Id. at 838. 4 Although conced

ing that Coley is controlling on the issue of a dmissibility

under Te nn. R. Evid. 702, the defendant argues that the exclusion of such evide nce violated his due process right to a fair opportunity to present a defen se. In ad

dressing and rejecting this i dentica l due proc ess argument in Coley , however, the Court considered (1) whether the excluded e vidence was critical to the defense; (2) whether the evidence was sufficiently reliable for a dmission; and (3) whether the interest supporting exclusion of the evidence was substantially important. The Court concluded that the expert testimony on eyewitness identification was no t cr itical to the defense and that the due process right was not violated. See State v. Coley , 32 S.W.3d at 838 n.14.5 The State also corre ctl y a rgues that the i ssue was waived because the de fense did not objec t t o the verdict form at tri al a nd did not li st the iss ue in his motion for a new tri al. Although we agree with the St ate, we elect to re ach and revie w th e m erits of th e issue to clarify the law in this re gard

. -7- In the present case, the defendant did not makea specific offer of proof as to the na ture of the proposed expert testimony and the need for such testimony in this case. See Tenn. R. Evid. 103( a)(2). The defendant’s motion was accompanied only by article s from secondary sou rce s regarding eyewitness identification and a copy of a motion for expert t estimony th at had ap

parentl y been used in an unrelated case. In short, the defe ndant failed to show whether the proposedevidence
was critical to the defense and whether it was sufficiently reliable for admission. The defenda nt also failedto address whether a substantially important interest existed for the exclusion of such evidence. See State v. Coley , 32 S.W.3d at 838 n.1 4; see also State v. Brown , 29 S.W.3d 427, 433- 34 (Tenn. 2000). Accordingly, the defendant is entitled to no relief on the basis of due process. Aggravating Circumstance Jury Verdict Form
The next issue raised by the d efenda nt is wheth

er the ju ry’s ver dict form was suff iciently clear to demonstrate that the jury found that the aggravating circumstance of a prior violent felony applied. The State relied upon a single aggravating circumstance in seeking the death penalty, i.e. , that the defendant had a prior conviction for a f elony whose statutory elements involved the use of violence to the person. See Tenn. Code Ann. § 39-13-2 04(i)(2 ) (1997) . The State specifically relied upon the defendant’s 1994 conviction for the offense of aggravated robbery.
The tr ial cour t instructed the jury on the precise statutory language of this aggrava ting circumstance and then added that “[t]he state is relying upon the crime of aggravated robbery, which is a f elo ny involving the use of violence to the person.” In imposing the death penalty, the jury’s verdict read in part: “We, the jury, unanimously find the following listed statutory aggravat ing circumstance or circumstances: aggra vated robbery.”
The defendant argues that the jury returned an incomplete and errone ous verdi ct beca

use it didnot recite the aggravating circu mstance verbati m and did not set out spe cifically the fa

cts constituting the aggravating circumstance. The State argues that the jury’s ver dict was sufficie

ntly clear to show that it found the elements of the aggravating circumstance relied upon by the State. 5
This Court has never held that the jury’s verdict m ust be a verbatim statement of the aggravating circumstance relied upon by the State. See State v. B land , 958 S.W. 2d 651, 661 n.6 (Tenn. 1997) (“The failure of the verdict to re peat the language o f

the statute defining the aggravating circumstance does not invalidate the jury’s findings.”). Although a verba tim statement may be the preferred practice , the verd ict must be

sufficie ntly clea r to indicate that the jury has found the elements of

the aggravated circumstance or c ircumstances relied upon by theprosecution. If the jury has returned an

incorrect or imperfect verdict, the “trial court has both the power a nd the duty to redire ct the jur

y’s att en tion to the l aw and r

eturn the m to the jur

y room with

directio ns to reconsider

their verdict.” State v. H arris , 989 S.W.2d 307, 314 n.7 (Tenn. 1999). The jury’s finding6 The aggravati ng circumstance rel ied upon by t he Sta te i n Ha rris requi red a f indi ng that

the “murder
was especially heinous, atrocious, or cruel i n that it i nvolved torture or seri ous physical abuse beyo nd that necessary to produce death. ” See Ten n. Co de A nn. § 39- 13- 204 (i)(5) (1 997 ). -8- is nonetheless sufficient

where “the aggr

avating c ircumsta

nces fou nd are c learly

those allowed by the statute and permit effective appellate revie w of the sentence.” State v. Teel , 793 S.W.2d 236, 250 (Ten n. 1990); see also State v. Bland , 958 S.W.2d at 661 n.6.
We agree with the Court of Criminal Appeals’ conclusion that the verdict in this case was sufficie ntly clear to

in dica te that the jury found the aggravating circumstance re lied upon by the State, i.e. , that the defendant had a prior conviction for a felony whose statutory elements involved the u se of violence to a person. See Tenn. Code Ann. § 39-13-204(i)(2) (1997). The Stat e relie d upon – and the j ury was in structed upon – only

one aggr avatin g circu mstance. The trial court’s instruction tracked the statutory language of the aggrava ting circumstance and then identified the State’s reliance on theoffense of aggravated robber y. The jury’s verdict

specifically cited the prior offense of aggravated robbery, which wasreliedupon by the State and was part of the trial court’s instruction. Under the circu mstance s, we conclude tha t th e j ury’s ve

rdict for m suffici ently demonstrated that the jury found the aggravating circumstance relied upon by the State.
The defendant’s reliance upon State v. Harris , 989 S.W.2d 307 (Tenn. 1999), is misplaced. In Harris , which was a life without parole case, this Court held that a sentencing verdict wa s erroneous where the jury found that “‘the murder wa s especially heinous and atrocious.’” 989 S.W.2d at 314. 6 The statements of the jury forepe rson, however, revealed that the jury intended to omit the remaining critical languag e of the ag gravating circumst ance, i.e. , “torture or serious phy sical abuse beyond that

necessary

to produce death.” Id. Under th ose circumstances, it was clear that the verdict was inco mplete and errone ous and tha t the only issue for consideration was whether the error was harmless bey ond a reasonable doubt. See id.
As the Court

of Criminal Appeals observed, the decisions in State v. Carter , 988 S.W.2d 145 (Tenn. 1999), and State v. Stephenson , 878 S.W.2d 530 (Tenn. 1994), are likewise of no assistance to th e de fen dan t. In both Carter and Stephenson , the jury’s ver dicts were facially

void because the jury had not be en instru cted unde r the law applica bleat the time

of the of fense and the ve

rdict did notcomply with that sentencing law. Moreover, the errors reve aled that the jury may not have applied the proper standard of proof, i.e. , “beyond a reasonable doubt,” with regar d to whether the aggravating

circumstances had been proven and whe ther the aggravating circumstances outweighed miti ga ting factors. State v. Carter , 988 S. W.2d at 152 ; State v. Stephenson , 878 S.W.2d at 555. Unlike these cases, it is clear that the trial court in the case before us instructed the jury under the law in effect at the time of the offe nses. Accordingly , the defendant is not entitled to relief based on this issue. Sufficiency of Aggravating Circumstance7 The offense of rob bery is “the intention al or kn owing theft of pr opert y f rom th e pers on of an other by violen ce or putting t

he person in fear.” Tenn. Code Ann. § 39-13-40 1(a) (1997). The offense of aggravat ed robbery is a robber y “[ a]ccompl ish ed wit h a deadl y wea pon or by dis play of any article used or fashio ned to lead the victim to
reaso nab ly beli eve i t t o be a deadl y wea pon” or “whe re the vi cti m suf fer s se riou s bodi ly inj ury .” Tenn . Code Ann . § 39- 13-402(a) (199 7). -9- The defendant argues that the evidenc e was insuffic ient to support the jury’s finding of the aggravating

circu mstance

set forth in Tenn. Code Ann. § 39-13-204(i)(2), because ther e was no evidence that his prior conviction for aggrava ted robbery

involved violence to the person. 7 The State maintains th at the defendant’s argument is contrary to the plain meaning of the a ggravating circumstance, which requires on ly that the “statutory elements” of the offense “involve the use of violence to the per son.” The State also argues t hat the de fendant ’s argum

ent is factually unsupported given that he pl ed guilty

in 1994 upon an indictment alleging that he and a co-defendant “violently” robbed a victim.
This Court has hel d that a conviction for robbery supported the prior violent felony aggravating circumstance in that the offense, “by definition, [was] the felonious and forcible taking from the person of

another, goods or mo ney of an y value, b y violenc e or by pu tting the pe

rson in fear.” State v. Taylor , 771 S.W.2d 387, 398 (Tenn. 1989) (discussing prior definition of robbery under Tenn. Code Ann. § 39-2-501 (1982) (citations omitted)). The Court reasoned that the “f ear co nstituting an element of robbery is a fear of bodily injury and of present personal peri l fro m violence offered or impending.” Id. (citation omitted).
Our decision in Taylor does not necessarily control the present case, however, inasmuch as the aggravating circumstance at that time required that the prior felony conviction involved the use or the threat

of violence to the person. See id. at 398; se e also Tenn. Code Ann. § 39-2- 203(i)(2) (1982). In contrast, as we have already noted , the current version of the aggravating circumstance requires that the “statutory elements” of the prior felony involve the “use of violence to the person.” See Tenn. Code Ann. § 39-13-204(i)(2) (1997).
The critical issue therefore is whether the statutory ele ments of aggravated robbery involve the use of violence to the person by definition. We have observed in this regardthat the offense of robbery may be committed by “violence” or by “p utting the person in fear.” See State v. Fit z , 19 S.W.3d 213, 214 (Tenn. 2 000); see also Tenn. Code Ann. § 39-13-401(a) (1997). In Fitz , we applied the plain meaning of

“violence” as “phy sical force unlawfully exercised so as to injure, damage or abuse.” See State

v. Fr itz, 19 S.W.3d at 216 . Although we then recognized that the evidenc e in most cases will satisfy both “violence” and “putting the victim in fear,” our analysis revealed that there are two separate prongs by whic h the offense can be established. Id. at 215-217.
We recent

ly reached a simil ar conc lusion in holding tha

t pointing a

gun at a vi ctim

during a robbery constitutes violence in State v. Allen , ___ S.W.3d ___ (Tenn. 2002):8 The offen se of a ggr ava ted ass ault as r eleva nt in Si ms consi ste d of “i ntentional ly or knowingly c ausi ng

the v ictim to reas ona bly fe ar im min ent b odily injury by u se or d isplay of a d ead ly w eap on.” See Tenn. Co de A nn. § 39-13-10 1(a)(1) (1997). -10-

As demonstrated by decisions from other jurisdictions, the elementsof “violence” and “putting the person in fea r ” are not mutually exclusive. . . . We recognized in Fitz tha t some conduct may constitute

bothviolence and putting the person in fear. Pointing
a gun at a victim mee ts both d efinitions. This construction of the term“violence” does not render meaningless the conc ept of “putting the person in

fear.” There remain pure ly verbal threats and

conduct notrising to the level of violence that would place a person in f e ar. Similarly, conduct that is unperceived by a victim, such as striking a victim from behi nd to r ender th at victim u nconscio us, would constitute “violenc e” but ma

y be insuf ficient t o place th at perso n in fear.
Id. at ___ (c itati ons omit ted). In short, our decisions in Fitz and Allen reveal that the offense of robbery is not limited by definition to the use of violence to the person.
The offense of

aggrav ated rob

bery, ho wever, is a robbe ry “acc omplished

with a dea

dly weapon or by display of any article used or fashioned to lead the victim toreasona

bly believe it to be a deadly weapon” or “where the victim suffers serious bodily injury.” Tenn. Code Ann. § 39-13- 402 (1997). As we have said, our decisions revea l that the use of

a deadly weapon, such as pointing
a gun at the victim, constitutes violence, see State v. Allen , ___ S.W.3d at ___, and the use of physical force causing injury to the victim likewise constitutes violence, State v. Fitz , 19 S.W.3d at 216. While these de f

initions suggest that the large majority of aggravated robberies involve violence, we r ecogn ize that the offense may also be committed with an “article used or fashioned to lead the victim to reasonably believe it to be a deadly weapo n.” This statutory provision thus raises the question of whether an offense of aggra vated robbery committed in this manner constitutes violence. See State v. Allen , ___S.W.3d at ___ (“ There r emain pur

ely verb al threa

ts and conduct not rising to the level of violence that would place a person in fear .”).
We need not d

etermine the issue in this case, however, because we ha ve already developed
an appropr iate ana lytical framework in State v. Sim s , 45 S.W.3d 1 (Tenn. 2001). In Sims , we considered

the issue of whether the defe ndant’s p rior con victions f or aggra vated as sault 8 were sufficient to support

the prior violent felony aggravating circumstance in Tenn. Code A nn. § 39-13- 204(i)(2), and we adopted the following approac h:

In de termi ning whether the statutory elements of a prior felony conviction involve the use of violence against the person for purposes of § 39-13-204(i)(2), we hol d that th e trial ju dge must necessar ily examine the fac ts underl

ying the pr

ior felon y if the sta tutory ele ments9 For inst ance, Frank Lee te sti fied that the shoot er had not

been weari ng a vest

and Joyce Jel tz di d not mention whether the shoot er wore a vest in her ori ginal s tate ment to police. -11- of that felony may be satisfied either with or without proo f o f violence. To hold otherwise would yield an absurd result . . . .
Statev. Sims , 45 S.W.3d at 11-12. We held t

hat the tr ial cour t had prop erly dete rmined that the pri or violent fe

lony aggr avating c ircumsta

nce wasapplica

ble wher e the def endant’ s aggrav ate d assault convictions were based on his shooting of two victims. Id. at 11-12.
Here, the defendant testified during sentencing that he did not participate in the aggr avated robbery that

served as the basis of

the aggravating circumstance. The defe ndant admitted, however, that his co-de fendant was armed with

a weapon and

that he waited in the getaway car while the codefendant carried out

the robbery. See State v. Allen , ___ S.W.3d at ___. More over, asthe State observe s, the defendant

pled guilty to an indictment alleging that he and his co -defendant “vio lently by the use of a deadly weapon” robbed the victim

. See Tenn. Cod e Ann. § 39 -13-401 ( 1997). Th is Courthas frequently held that the entry of an informed and c o unseled guilty plea constitutes an admission of all of the facts and elements necessar y to sustain a conviction and a waiverof any nonjurisdictional defects or constitutional irregularities. See State v. Carter , 988 S.W.2 d at 148; State
v. Pettus , 986 S.W.2d 540, 542 (Tenn. 1999). Accordingly, we agree with the Court of Criminal Appeals ’ conclusion that the evidenc e su pported the jury’s finding of the prior violent felony aggravating circumstance.
Residual Do ubt Argume

nt
The defendant argues that the trial court erred in refusing to allow references to testimony elicited during the guilt phase of the trial du ring def ense counsel’s closing argument in the sentencing phase. Specifically, the defendant conte nds that because the State argued that gunshot residue found on his vest c onflicte d with his te stimony dur ing the se ntencing phase, d efense counsel should have been allowed

to argue that evid ence in t he guilt ph asedisputed whether the perpetrator had been we aring a v est. 9 The State concedes that the tr ial cour t erred in refus ing to allow

defense counsel’s argument, but it maintains that the error was harmless.
“Residual doubt evidence,” in gener al, may consist of proof admitted during the sentencing phase that indicates the defendant did not commit the offen se, notwit hstanding the jury’s verdict followi ng the guilt phase. State v. Hartman , 42 S.W.3d 44, 55-56 (Tenn. 2001). This Court ha s re cently held that under Tennessee law, a defe ndant is allowed “to present evidence at a re

sentencing hearing to establish residual doubt as a nonstatutory mitigating circumstance.” Id. at 55 (c itation omitted). While Hartman had not been decided at the time of the trial in this case, t h e decision relied in

part upon

statutory provision s governing eviden ce that ma

y be cons idered i n sentencing:10 We recogni zed i n Hartman , how ever, that m ost cases i nvolvi ng evidence of resi dual doubt willinvol ve rese ntenci ng proceedi ngs. 42 S.W.3d at 57-58. -12- In the sente

ncing pro ceeding , evidenc e may be p rese nte d as to any matter that the c ourt deems rel evant to the punishment and may include, but n ot be limited to, the nature and circumstance of the
cr i me; the defendant’s character, ba ckground history, and physical condition; any evidence tending to establish or rebut the aggravating circumstances enumerated . . . ; and a

ny eviden ce tending to esta

blish or rebut any mitiga

ting fac tors.
Tenn. C ode Ann. § 39-13-20 4(c) (1 997). Mor

eover, t he Court a

lso relie d upon the

follo win g rationale: [T]he defendant has the right to present at the sentencing h e aring,

whether by the jur

y which he ard the guilt p hase or by a jury on resentencing, evidence relating to the circumstances of the crime or

the aggravating or mitigating circumstances, including evidence which may mitigate his culpability.
State v. Hartman , 42 S.W.3d at 56 (quoting State v. Teague , 897 S.W.2d 248, 256 (Tenn. 1995)).
As the Court o f Criminal

Appeals observed, however, this case is not squarely on all fours with eith er Hartmanor Teague . In Hartman , for example, the defendant sought to intro duc e evidence at a

resentencing proceeding indicating that the prosecutor ha d purchased

the testimony of
a key witness at the original trial. 42 S.W.3d at 55. In Teague , the defendant tried to introduce evidence of an alibi at a resentencing pr oceeding. 897 S.W.2d at 256. In contrast, the present case does not involve a resentencing proc edure, nor does it involve
a defendant’s effort to introduce evidence of residual doubt. Instead, thedefenda nt only sought to argue evidence that had alrea dy been admitted by the trial cou rt and he ard by the

same jury

in the guilt phase of the trial. As the Stat e conced es, howe ver, this does not me an that the ration ale underlying Hartman and Teague is inapplicable. Our decisionin Teague specifically included cases in which the

sentenc ing jury is t

he same j ury that h

eard the evidenc e at the guilt p hase. See 897 S.W.2d at 256. 10 Moreover, as we said in Hartman :

While . . . not all impeachment proof

will be relevant to show residual doubt, it does not logically follow thatimpeachment proof will never be releva nt to estab lish resid

ual doubt a

bout the de

fendant ’s guilt. Where . . . the proffered residual doubt proof is impeachment of the testimony of the onl

y witn e ss who offered direct rather than circumstantial proof of the defendant’s involvement in the crime,-13- such proof

c learly is relevant and admissible to establish residual doubt as a mitigating circumstance.
42 S.W.3d at 57.
An argument

during se ntencing that ref ers to evidence f

rom the gu

ilt phase is not improper simply because

it has the e

ffect o f alluding

to residu al doubt. As we have long held, the manner and conduct of closing argument by the parties is left to the discretion of the trial court. Statev. Bigbee , 885 S.W.2d 797, 809 (Tenn.1994). Accordingly, where a defendant seeks to argue residual doubt based on the evidence introduced or in response to a n argument made by the prosecution, the trial court should exe

rcise itsdiscreti on by reso lving any d oubt i n f avor of t he defe ndant’s a rgument. See Hartman , 4 2 S.W. 3d at 58 (“doubts about the admissibility of reliable proof relevant to show residual doubt should be resolved in favor of admissibility”).

In this case , the def

endant’ s propose d argume nt was based on the e vidence, i.e. , the testimony of witnesse s Lee an d Jeltz

with regard to whether the defendant had been wearing a ve st. Moreover, it was in fair response to the prosecutor’s argument that the defendant’s testimony that he was not the shooter h ad not bee

n credib le beca

use gunsh ot residu e had be en found on the def

endant’ s vest. The trial cou

rt therefore er

red by re fusing to a

llow the a rgument s imply bec ause

it had the effect of alluding to

residua l or linger ing doubt.
The trial court’s error, however, do es not require a new sentencing proceeding. First, the proposedargument did not have the substance or weight of the evidence of prosecutorial misconduct and alibi defense sought to be introduced and argued in Hartmanand Teague , respectively. Moreover, given tha

t this was nota

resentencing hearing, the reality is that the sentencing jury had already heard

the testimony u

nderlyin g defens e counse l’s propo sed argu

ment and h ad reco nciled it in favor of the State’s theory of guilt and agains t the def endant’s theory of innocence. Thus, the argument was of du bious va lue either as residual doubt or in mitigation. Finally, the aggravating circ umstance found by the jury was strongly supported by the defendant’s prior conviction fo r aggravated

robbery . In sum, th

e defendant has n ot shown th at the tri al court’s error affecte d the jury’s ve rdict to hi s prejudi ce, and theref ore the e rror wa s harmles s. Victim Impact Evidence
The defenda

nt argue s that the t

ria l court erredby allowing the State to introduce the testimony of a Memphis police officer as victim impact evidence dur ing the sentencing phase of the trial. Officer Michael Clark testified that the victim, Donald Williams, had been a Memphis police officer since 1982, and he described many of Williams’ duties and activities as a police officer. The Statemaintains that the evidence was properly introduced and was accompa nied by the

appropr iate limiting instructions from the trial court.
The introduction of

“victim imp act” evidence and prosecutorial argument is not prec luded by either th

e United S tates Consti tution or the Tennessee Constitution in a capital sentencing-14-

proceeding. See Payne v. Tennessee , 501 U.S. 808, 827, 111 S. Ct. 2597, 2609, 115 L. Ed. 2d 720 (19 91); State v. Nesbit , 978 S.W.2d 872, 889 (Tenn. 1998). As the United States Supreme C our t has explained:
We are n ow of the view that a State may properly conclude

that f or the j ury to assess meaningfully the defendant’s moral culpability and blameworthiness, it should hav e befo re it at the sentencing phase evidence of the specific harm caused by the defenda nt. “[T]he

Statehas a leg itimate

interest in counteracting the mitigating evidenc e which th e defen dant i s entitle d to put in, by reminding the sent encer t hat just as the murderer should be considered

as an individual, so too the victim is an individual who se death represents a unique loss to society a nd in part

icular to his family .”

Payne v. Tennessee , 501 U.S. at 825, 111 S. Ct. at 2608 (alteration in original) (emphasis added) (citation omitted).
Th is C ourt has provided guidance on the nature and extent of e vidence that may be introduced under the theory of “victim impact” evidence :

Generally, victim impact evidence shou ld be limited to information designed to show those unique characteristics which provid e a bri ef glimpse into the life of the individual who has been killed, the conte

mporane ous and pr

ospecti ve circumstances surrounding the individ

ual’s deat h, and how those circumstances financially, emotion ally, psycholog ically or physical

ly impact ed upon members of the victim’s immediate family.

Statev. Nesbit

, 978 S.W.2 d at 891 (c itations om itted). T here is no “bright-l ine test, and the admissibility of speci fic type s of victim impact evidence must be de termined on a case -by-ca se basis.” Id. We have cautioned, however, that such evidence, and prosecutorial argument based on the evidenc e, should

be closely scrutinized and restrained so as not to be unduly prejudicial or appeal to the emotions or sympathies of the jury. Id. at 891-92 ; see also State v. Smith , 993 S.W.2d 6, 14 (Tenn. 1 999); State v. Burns , 979 S.W.2d 276, 282 (Tenn. 1998).
The defendant correctly observes that the statutory provision on the issue of victim impact evidence limits such evidence to the testimony of members of the victim’s family:

The co urt may permit a member or members, or a repre sentative o r representatives of the vi ctim’s f amily to testify at the sentencing11 The defen dant also a rgues tha t the error w as ma gnified b y the pro secutor’s reference to the def endant’s

juve nile adjudica tions for ag grava ted assa ult, which apparently i nvolved police off icers . As the Court

of Criminal Ap pea ls held, however, t he evidence was used to imp each witnesses who had testifi ed about the defend ant’s character. -15- hearing about the victim and about the i mpact of the murder on the family of the victim and other relevant persons. Tenn. Code Ann. § 39-13-204(c) (1997).
The principles outlined in the above case law, however, a re not categorically restrictive. In Nesbit , for example, we identified three types of victim impact evidence: (1) information designed to prov ide a “brief glimpse” into the life of the victim; (2) the contemporane ous and pro spectiv e circumstances surrounding the victim’s death; and (3) the financial, emotional, psychological, and physical effects on the victim’s family. State v. Nesbit , 978 S.W.2 d at 891; see also Pa yne v. Tennessee , 501 U.S. at 825, 111 S. Ct. at 2608 (“the victim is an individua l whose de ath repr

esents a unique los s to socie

ty and in pa

rticular to his fami ly.”). Th

e statutor y provisio n ess entially identifies the third o f these categories. See Tenn. Code Ann. § 39-13-204(c) (1997). We ther efore agree with the Court of Criminal Appeals’ conclusion that the statute does notexpressly restrict or limit the introd

uction of other typ es of vic tim

impact evidence authorized by law developed in our prior ca ses.
In this case , Office

r Clark r elated f actual in formatio n about the

victi m’s career as a police officer, including his duties, functions, and type of work. Clark described the victim’s role as a police officer as a “mediator.” Clark’s testimony was limited to factual background – he did not testify about the effect of the victim’s death on himself, o t her off icers, s ociety, o

r the Memp

his Police Departm

ent. Acc ordingly, we agree with the Court of Cr

iminal App eals’ c onclusi on tha t Officer Clark’s testimony was limited to providing a “brief glimpse” into the life of the victim and that such a glimpse did not violate the defendant’s right to due process or equal protection.
The defendant also argues, however, that allowing Clark’s testimony was unduly prejudicial in that it emphasized the victim’s status as a police officer and there by permitted the jury to consider
an additional aggravating circumstance that was not applicable u nder the fa cts of this case. See Tenn. Code Ann. § 39-13-204(i )(9) (1997) (aggravating circumstance if the victim is a law enforcement

officer killed while on duty). 11 The defendant further asserts that

the evidence was used improper ly in the Sta

te’s clos ing argum

ents: [The v ictim] was a giant in our community. [The defendant] took him from us. He took him from his family, from hi s co-work ers. This community

is less of a place now, because Don Williams isn’t here anymore.-16- You heard

the testim

ony about his family

life, about his professional life, what type of law enforcement officer he wa s. This is not about vengeance. It is about justice.
We agree with the defendant that there wa s a potential risk that Clark’s t estimony c ould

have been considered by the jury as evidence of an a dditional aggravating circumstance that was not relied upon by the State or applicable to the facts of this case. The record reflects, howeve r, that both the Stateand the trial court took reasonable steps to reduce or eliminate the r isk. For example, the State didnot argue

that the e

vidence constituted an addit

ional agg ravatin g circum stance; inde ed, on several occ asions, the prosecutor told the jury that it was relying on a single aggravating circumstance, i.e. , the defendant’s prior violent felony conviction. The prosecutor’ s argument also
re minded jurors tha

t “victim im

pact evi dence c annot and should not b e confus ed with th e aggravating circumstance.” Similarly, the trial court charged the jury on only one aggrava ting circumstance, i.e. , the defendant’s prior conviction for a felony whose statutory elements involved violence to the person. Moreover, the trial court gave the jury the limiting instruction this Court formulated in Nesbit , which advises the jury of the following: (1) that the jury may not consider victim impact evidence as a n aggravating circumstance; (2) that the ju ry may not

consider victim impa

ct evide nce unle ss it

first finds that one or more aggravating circumstances have bee n established beyond a

reasona ble doubt; and (3) that t

he jury ma

y not consi der vict

im impact e

vidence unless it first finds that the evidence of aggravating circumstances outweighs evidence of mitigating factors beyond a reasona ble doubt. See 978 S.W.2d at 892. The jur y is presum ed to have followed these instructions. See State v. Keen , 31 S.W.3d 196, 232 (Tenn. 2000). Accordingly, we conclude that the trial court did not ab use it s discretion in allowing the testimony of Officer Clark to be considered by the jury a s victim impact evidence during t he sentencing phase of the proceeding. Proportionality
Where a defendant has b een sent enced to death, w e must app ly a compa rative p roportio nality analysis pursuant to Tenn. Code Ann. § 39-13-206(c)(1 ) ( 1997 & Supp. 2001). Th e analys is identifies aberrant, arbitrary, or capricious sentencing by deter mining whe

ther the death se ntence i s “disprop ortionate

to the punishment imposed on others convicted o f the same crime.” State v. Bland , 958 S.W.2d at 662 (quoting Pulley v. H arris , 465 U.S. 37, 42-43, 104 S. Ct. 871, 875, 79 L. Ed. 2d 29 (1984)).

In conducting this ana l ysis, this Court employs the precedent seeking method of comparative proporti onality

review, in which we compare a cas e with cases involving similar defendants and similarcrimes. State v. Bland , 958 S .W.2d at 667. While no d efenda nts or cr imes are precise ly alike, a death se ntence i s dispropor

tionate if a case is “plainly lacking in circumstances consistent with those in cases where the death penalty has bee n imposed.” Id. at 668

.12 Given our detai led and consider ed treat ment of this iss ue, the di ssent’ s asse rti on that our r eview “ignor ed” the fi rst degree murder cas es cited in the d issent in wh ich th e State did n ot seek the d eath p ena lty is unf oun ded

. -17- We have re

peatedl y held tha t the pool o f casesconsider ed by this Court in its p

roportio nality review includes those first degree murder cases in which the State seeks the death penalty, a capital sentencing hearing

is held, a nd the sen

tencing j ury dete

rmines wh

ether the sentence should be life impr isonment, life imprisonment without the possibility of parole, or death. State v. Godsey , 6 0 S.W.3d 759, 783 (Ten n. 2001). A lthough the dissent a rgues tha t the pool s hould incl

ude all f irst degree murder cases, we

recently explained that the pool does not include first degree murder cases in which a

plea bargain is reached with respect to the punishment or in which the State does not seek the death penalty:

[C]onsideration of cases in which the State, for whatever reasons , did notseek the

death penalty w ould nece ssarily require us to scrutinize what is ultimately a discretionary p rosecutorial decision. . . . We previo usly have declined to review the exerc ise of prosecutori a l discretion

. . . , and it w ould be pa rticular ly inappr opriate to do so in conducting comparative proportionality review, where our f unction i s li mited to identifying aberrant death sentences, not identifying potentialcapital cases . . . . Suc h a cours e could potentially discourage the State both from exercising its discretion to not seek the death penalty and from engaging in plea bargaining with a defe ndant charged with first degree murder. Indeed, such a course could re sult in the State

seeking t he ultimat

e penalt y in every first degree murder
case.
Id. at 784 (citations omitted). 12 Accordingly, our comparative proportionality review o f t he applicable pool of cases considers numerousfactor s regar ding the of

fense: (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 absenc e or presence of provocation; (8) the absence or presenc e of justification; and (9) the injury to and effect upon nondecedent victims. W

e also co nsider nu

merous f actors a bout the de

fendant : (1) prior criminal record, if any; (2) age, race, and gende r; (3) mental, emotional, a nd physical condition; (4) role in the murder; (5) cooper ation with authorities; (6) level of remorse; (7) knowledge of the victim’s helpless ness; and (8) potential for rehabilitation. State v. Bland , 958 S.W.2 d at 668; see also State v. Bane , 57 S.W.3d 411, 428-29 (Tenn. 2001).
The circumstances of

this case reveal that

the defendant, Timothy McKinney, was attending
a party at a club in Memphis, Tennessee. Upon leaving the club, the defendant became extreme ly upset because he could not find his car in the parking lot. One witness described him as drunk. He-18-

rebuked the victim’s efforts to assurehim that h is car wa s still in the lot, and he

immediate

ly threatened

to “come back and shoot up the club or blow it up.” The defenda nt had to be separated from the officer who later beca me his victim, yet threatened that he would “be back.”
The defendant left the scene, only to return on two occasions. After his second return, he was detainedby Memphis police officer Ronald Marshall and again told to leave the ar ea. Despite t

hese warnings and an ample time for “ cooling of f,” the defendant returned a third time and shot the unarmedvictim in the back of the ne ck from close range. The defendant’s threa ts, his repeated departures and reappearances at the sc ene, an d the pass age of ti me overwhelmingly supported the jury’s finding that the killing was intentional and premeditated. Moreover, neither the defendant’s anger regard ing the whereabo

uts of his car nor his anger toward the victim provided any provocation or justifi cation f

or retur ning to the

scene a nd shooting

the unar med victim

. The defendant was 23 years of age a t the time of the offense. He had a prior conviction for aggravated

robbery as an adu lt and adj udicatio ns for ag gravate d assault as a juvenile. The defendant
was told to leave the club several times and had ample time to cool off; yet he kept returning and ultimately

shot the unarmed victim at close range. The defenda nt made no cl aim that he was too impaired to act with intent and premeditation, although he had been drinking and smoking marijuana
on the day of the murder. The def endant in troduce d mitigatin g evidenc e about hi s family background, personality, and lea rning d isabilities. There was no evidence, however, that the defendant had a phy sical, me

ntal, or emotion al condit

ion that imp aired hi s judgment or condu ct in any manner. Moreove

r, the defendant

did not t urn him self in af

ter the o ffense , cooper

ate with authoriti es, or express any remorse for the offe nse. Accordingly, the evidence regar ding the defenda nt’s pote ntial for rehabilitation wa s dubious a t best.
This Court has upheld the death penalty in numerous first degree murder c ases involving similarshooting offenses. In State v . Sims , the d efendant, acting alone, was convicted of premeditated

murder for burg larizing

the victim ’s home a

nd shooting

the victim

in the back of the headwithout provocation or justification. 45 S.W.3d at 19. In State v. Henderson , the defendant
was convictedfor pre medit ated murder after shooting a deputy sheriff in the hea d at close range. 24 S.W.3d 307, 313 (Tenn. 2000). In State v. Bland , the defendant was convicted of premeditate d murder for pursuing and shooting the unarmed victim. 958 S.W.2d at 670; see also State v. Stout , 46 S.W.3d 689, 707 (Tenn. 2001) (defendant was convicted of felony murder for kidnappi ng a victim and shooting her

once in the back of the head without provocation or justification); State v. Smith , 993 S.W.2d 6, 11 (Tenn. 1999) (defendant was convicted of felony murder after

shooting an unarmedvictim in the head w ithout pro vocation or justifi cation) ; State v. Cribbs , 964 S.W.2d 773 (Tenn. 1998) (defendant shot victim in thehead dur ing a robb ery); State v. H arris , 839 S.W.2d 54 (Tenn. 1982) (the defendant shot a hotel security guar d).
The Court has upheld the death penalty in numerous cases in which one of the aggravating circumstances was a prior violent felony whose statutory elements involved the use of vio lence to the person, seeTenn. Code Ann. § 39-13-204(i)(2) (1997), including many cases in which the prior violentfelony was similar to the defendant’s prior conviction for aggr avated robbery. See State v.13 For the reas ons previousl y explained, we do not consider t he cases ci ted by the dis sent that are not in the app licable poo l. -19- Stout , 46 S.W.3d a

t 707 (esp ecially a

ggravat ed robbe ry); Statev. Sims , 45 S.W.3d at 19 (aggravated assault); S tate v. Chalmers , 28 S.W.3d 913, 919 (Tenn. 2000) (attempted especially aggrava ted robbery and attemptedfirst deg ree mur der); State v. Cribbs , 967 S.W.2d at 790 (attempted second degree murder, aggrava

ted robbe ry, and second deg

ree mur der); Statev. Taylor , 771 S.W.2d 387, 398 (Tenn. 1989) (r

obbery) ; State v. Harries , 657 S.W.2d 414, 421 (Tenn. 1983) (armed robbery and kidnapping). Moreove

r, this Cour

t has uphe ld the dea th penalt y in several cases in which the prior violentfelony was the sole aggravating circumstance relied upon by the jury. See State v. Chalmers , 28 S.W.3d at 919; State v. Keough , 18 S.W.3d 175, 184 ( Tenn. 200 0); State v. Smith , 993 S.W.2d at 19; Statev. Adkins , 725 S.W.2d 660, 662 (Tenn. 1987). Indeed, the prior violent felony factor is an aggra

vating ci rcumstan ce that th is Court has described as “more qualitatively persuasive and objectively reliable than others.” State v. H owell , 868 S.W.2d 238, 261 (Tenn. 1993). Finally, this Court h as upheld the deat h penalty in sever al case s in which the defendant was approximatelythe same age or pre sented si m ilar or even stronger mitigating evidence. See , e.g. , Statev. Stout , 46 S.W.3d at 708; State v. Chalmers , 28 S.W.3d at 919-20 ; State v. Henderson , 24 S.W.3d at 318; State v. Smith , 993 S.W.2 d at 19; State v. Bland , 958 S.W.2d at 670.
Notwi thstandi ng the above analysis , the disse

nt argue s that the d

eath sen tence is dispropor tionate because the facts and circumstance s in this case are not as sev ere a s those in the
cases we have considered and are mor e similar to first degree murder cases in which the defendant received a life sentence. We believe that the dissent’s arguments are misplaced a nd unfounded. Although we recognize and have considered that

there are first degree murder cases in the applica ble pool 13 in which the defendant received a sente nce less than death, see Statev. Overbay , 874 S.W.2d 645 (Tenn. Crim. Ap p. 1993); State v. Welch , 836 S.W.2d 586 (Tenn. Crim. App. 1992); S tat e v. Bell , 690 S.W.2d 879 (Tenn. Crim. App. 1985), our analysis does not require a determination of whether a give n case issubjectiv ely “more or less” like other “death” ca ses or other “life” cases. Instead, our review require s that we identify aberrant death sentences by de termining whether a case “plainly lacks” circumstance s found in similar cases in whichthe deat h penalty has been imposed. S ee St ate v. Godsey , 60 S.W.3d at 787 (finding death sentence disproportionate). As we have explained, the facts and circ umstances regarding this offense and this defendant reveal that this case does not plainly lack circumstances consistent with those

in the numerous similar cases in which a death sentence has been uphe ld. Accordingly, the death sentence is not arbitrar y o r disproportionate as applied in this case.
CONCLUSION
For all of the foregoing reasons we conclude as follows: (1) the trial court did not com

mit error by denying the defendant’s motion to introduce exper t testimony on the issue of eyewitne ss-20-

identific ations; (2) the jury’s verdict form was sufficiently clea r to demonstrate that

the jury found the prior violent

felony aggravating circumstance relied upon by the prosecution; (3) the evidence
was sufficient to sustain the prior violent felony aggravating circumstance f ound by the jury; (4) the trial court’s refusal to allow defense counsel to refer to evidence from the guilt phase of the tria l during his closing argument in the sentencing phase of t he t rial did not affect the jury’s deter mination to the prejudice of the defendant and was ha rmless error; (5) the trial court did not commit error in admitting victim

impact evidence during the sentencing phase; and (6) the sentence of death was neither arbitrary nor disproportionate

. We also conc lude that

the evide

nce wassufficie

nt to s upport the jury’s findings that the aggravating circumstance had been established beyond a reasonable doubt and that the aggravating circumstance outweighed evidence of mitigating factors beyond a rea sonable doubt. S ee Tenn. Co de Ann. § 39-13-206 (1997 & Supp. 2001). Finally, we agree w ith th e Court of Criminal A

ppeals’ conclusions with respect to the remaining issues, the relevant portions of which are included in the appendix to this opinion. Accordingly, we affirm the judgment of the Court of Criminal Appeals and set the date of execution for

the 26th day of July, 2002. As it appears that the defendant is indigent, the costs are assessed to the State of Tennessee.

___________________________________ E. RILEY A

NDERSON, JUSTICE-21- 

## APPENDIX (Excerpts from the Court of Criminal Appeals’ Decision)

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Novem ber 7, 2000

Session
STATE OF TENN ESSEE v. TIMOTHY MC KINNEY Appeal from the Criminal Court for Shelby County Nos. 98-01434, 98-01435 Joseph B. Dailey, Judge

No. W1999-00844-CCA-R3-DD - Filed Mar ch 28, 2001

We affirm the defendant’s convictions of first degree murder and attempted second degree murder and the death sentence imposed on the murder charg e, despite the defendant’s claims that: (1) the trial court
errone ously

disallowed expert testimony on the reliability of ey

ewitness identification; (2) the jury ’s capital sentencing verdict

was infir

m; (3) the

trial cou rt erron eously allowed t

he impea chment of

a defen se character witness during the penalty phase of the trial; (4) the trial court erred in allowing victim impact evidence that related to the impact of the victim’s death on persons or institutions other than the victim’s fa mi ly; (5) the trial court erroneously limited the defendant’s argument to the jury during the penalty

phase; (6) cumulativ e error s requir e rever sal of the

death se ntence; (7) the T ennesse e death penalty statute is, for various reasons, unconstitutional. We find no error and hold t h at the death penalty

in this case was proporti onate

to the dea

th penalt y imp osed in

similar cases, the sentence was not arbitrarily

imposed, and the evidence supports the jury ’s findi ng o f a statutory ag gravating circumstance and its finding that the aggravating

circumstance outwe ighs any mitigating circumst ances. S ee Tenn. Code Ann. § 39-13-206(c)(1) (1997). Tenn. R. App.P. 3; Co nvictions a nd Sentence

of Death Affir

med.
J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in which D AVID H. W ELLES and T HOMAS T. W OODA LL , JJ., joined.
William Gosnell, M emphis, TN (Trial & Appea

l);W illiam D. Massey, Memphis, TN (Appea l), for the Ap pe ll an t, Ti mo th y Mc Ki nn ey.
Michael E. Moore , Solicitor Genera l; Kathy Morante , Deputy

Attorney Genera l; William L . Gibb ons, Dist rict Atto rney

Genera l; Phillip Ge

rald Har ris and Da

vid Henr y, A ssistant D istrict At

torney s Gener

al, for the Appellee, State of Tennessee.

OPINION

[Deleted: Summary of F acts and Testimony]-2- I. [Deleted: Eyewitness Expert Testimony]

II. [Delet ed: Ju ry Verd ict Form]

III. [Impea chment - Juvenile

Adjudicat

ion]
In his third is sue, the d

efenda nt argu es that the

trial court erred b y pe

rmitting the state to attempt to use his juveni le adjudication for aggrava ted assault to impeach the testimony of his step-f ather, J.C. Tyus.
At

sentenc ing, the

defenda nt’s step- father , J.C. Ty

us, testified on the defendant’s behalf. His testimony reflecte d that he had been married to the defendant’s mother over twenty -five ye ars and was the only father

the defendant had ever known. Ty us testified that as a small child, the defendant “wasn’t
a real ro wdy

son . . . [h]e w asn’t re ally running around li ke a row dy s on he wasjust like any other c

hildren, you know, but he really w asn’t bad, or nothing like that.” Ty us also stated that the defendant “wouldn’t get real angry , but if he gets angry he wasn’t, like no violence.” Ty us denied that the defendant h ad any outbursts or discipline problems while living at home.

Prior to cross-e

xamination, the state

sought permission at a bench conferenc e to impeach Mr. Tyu s. The sta

te argued that Ty

us was portray ed by the def ense as a someone who knew the defenda nt well and who charact

erized the defenda nt as a pe aceful , non-viol ent individ ual. I n its proff

er, the s tate submitted a copy

of the juv enile court rec ord ref lecting the defe ndant’s A pril 1991 g

uilty plea in juvenile court to aggravated assault. The trial court granted the state permission to use the adjudication for impeach ment purp oses.
On cross-examination, Mr. Tyus reiter ated that the defendant

di d not have

any problems withanger

or violence growing up. In response to the state’s quer ies regarding the def

endant’s April 1991 juvenile adjudication, Tyus denied knowing that the defendant was involved in a drive-by shooting or that he had leveled and

fired a shotgun at the arresting officers. The state, however, did not attempt to prove the aggravated assa

ult adjudication. Actual evidence of the prior offense wa s not admitted into evidence until the defendant testified about it on direct examination later in the penalty phase.
The defenda

nt argu es that the

trial cou rt erred in allowin g cross -examinat ion about h

is juvenile a djud ication to impeach Tyus a nd in failing to give a limiting instruction to the jury that the evidence was introduced for impeachment purposes only . The state counters th at the tri al court properl y followed the dictates of State v. Nesbit , 978 S.W.2d 87 2 (Tenn. 1998), in p ermitting Tyu s’ impeach

ment,-3-

and while conceding that the trial court erred by failing to give a limiting in struction , the state asserts that the err or was ha rmless.
Evidence Rule 405 governs the impeachment of chara cter witnesses. Tenn. R. Evid. 405. It provides that in “cases in which ev idence of c haracter or a trait of char acter of a person is admissible, proof may be made

by testimony as to reputation or by testimony in the form of an opinion,” but it requires adherence to specif ic proce dures and conditio ns befor e cross- examinatio n inquiry may be made “into relev ant specific instances of conduct.” Id. First , coun sel mu st app ly to the court before intro ducin g a specific instance of condu ct to impeach a character witness; second, the trial court must conduct

a hearing to determine the relevancy of the proposed inquiry; third, the tria l court must determine a reasonable factual basis for the inquiry exists; and fourth, the trial court must deter mine that the probative value of the instance of conduct outweighs its prejudicial effect. Nesbit , 978 S.W.2d at 881-83. In addition to these Rule 405- basedrequirements, our

supreme court has said that the trial court mus t instruct

the jury “that the specific acts of condu ct were

admitted f

or the limited purpo se of evalu ating the credi bility of the character witness.” Id . at 883.
At

this junctu

re, we recog

niz e that there are two different trial c ourt actions being challenged here. Th e Rule 405 requirements for cross-examining a cha racter witness about specific instances of misconduct

are designed to assure that the cross-examination is itself a ccepta ble and not neces sarily

to assure that evidence is acceptable. See Tenn. R. Evid. 405(a) (establishing conditions for “allowing inquiry
on cross-examination about specific instances of conduct”). On the other hand, Nesbit requires that the trial court must instruct the jury

“that th e specif

ic acts o f conduc t were admitted for the limited purpose of evaluating the cre dibility

of the ch aracte

r witness.” Nesbit , 978 S.W.2d a t 883 (emphasis add

ed). This requirement

is gear ed to addr essing t he jury ’s use

of admitted evidence. See Tenn. R. Evid. 405, Advisory Comm’n Comme

nts. First, we consi der the d

ecision to allow the impeachment. Prior to cross-examination, the state sought permission to introduce evidence of that specific instance of the defendant’s conduct in order to demonstr

ate the f allibility of Mr. Ty us’ opinion, and the trial court conducted a bench confer ence outside the jury’s hear

ing. See Tenn. R. Evid. 405(a)(1). The state presented a c opy of the defendant ’s juveni le court adjudication for aggrava

ted assault which unequivocally established a “reasonable factual basis” for the spec ific instance of conduct to be used for impeachment. See Nesbit , 978 S.W.2d at 883. The trial court considered the basis for the state’s request and then pe rmitted use of

the adjudication on the basis that it showed bias by the

witness and knowledge (or lack t hereof ) of th e defen dant a nd hi s acti viti es. Al thou gh notexplicitly

finding that the p robative value of the evide nce outw eighed

its prejudicial effect, the court implicitly determined that probative value out weighe d prejudi ce. This determination is amply supported by the rec ord. Id. The dec ision to all ow the impe aching cross-e xamination w as not er

roneous.
Now we must determine whether the fa ilure to give a limiting

instr uctio n was erro

r. We notethat, in Nesbit , the evide nce wasadmitted into evide nce whe n the cro ss-examined chara cter wit ness acknowledged

hearing about tales of Nesbit’s misconduct. Id . at 884. I n the pre sent case, h owever, the character witness did not admit knowing that the defendant had assaulted an office r or had received a juvenile adjudication resulting from this assault, nor did the state introduce independent proof of theassault14 As an e xercise in witnes s impeachment, the s tate may have been limited to “tak ing th e w itness’s a nsw er.”

If so, it could not

have off ered i ndependent

evide nce of t

he aggrava ted a ssaul t or the r esul ti ng adjudi cati on. N. Cohe n, et al ., Tennessee Law of Evidence, § 4 .05[4][d], at 4-108 (4 thed. 2000). -4- or resu lti ng adjudication. 14 Under these circumstances, we question, there fore, whether the Nesbit requirement

of a limiting instru ction is imp licated. Neverth eless, we recog nize

that the cross-examination raisedthe specter of the defendant’s prior c ommission of aggravated assault, and we will review the effect of the trial court’s failure to give a limiting instruction as if the evidence was introduce d. See Tenn. R. Evid. 405, Advisor y Comm’n C omments (implying that mere c ross-examination about “rumors,” as opposed to the witness acknowledging the “r umors,” may require the limiting instruction).
In our view , if the fa

ilure to give the lim

iting inst ruction w as erro

r, it was har mless. See Tenn. R. Crim. P. 52(a). E vidence of the defendant ’s prior a

ggra vated as sault wassubstantiv ely admissible to contradict

the defendant’s temperate nature, a material fact shown by

the character witnesses. When “fact contradiction” involves c ontrover ting the testimony

of a witne ss, it is some

times viewed a s a process of witness impeachment. See N. Cohen, et al. , Tennessee Law of Evidence, § 6.07[4], at 6-57 through -62 (4 th ed. 2000). In a broade r sense, however, when evidence contradicts material, adjudicative facts, the rea l efficacy of the evidence is substantive fact rebutta l that incident

allyimpeaches a fact or fact witness. See State v. Electroplating, Inc. , 990 S.W.2d 211 , 23 1, n .17 (Te nn. Cri m. App . 19 98) . In other words, when “fact contrad iction” e vidence is releva nt to the iss ues on tri al, it is ge ne ra ll y admissible as substantive evidence. Id. ; see Tenn. R. Evid. 402. Thus, when Mr. Ty us te stified about the defendant’s y outhful normalcy and peacefulness, the state’s cross-examination of him ca n be view ed not only

as a cha llenge to his efficacy

as a character witness, but as a contra diction of the asserted fact. Even though the state may have been required to “take” Ty us’ a nswer a s a function of impeachment, we believe that the evidenc e would logically ha

ve been probative on

the issue of the defendant’s peaceful depor tment as a teenager and could have been independently presented. For all we know, the state only declined to pre sent it in rebuttal when the defendant himself presented the evidence on direct e xami nation. Moreover, had the character witness acknowledged the defenda nt’s prior offense or adjudication, the evidence would have functioned substantially, in which event no limiting instruction would have been necessary
.

To reach the conclusion that the defendant’s juvenile aggravated assa

ult is relevant to issues
on trial in the sentencing phase of the present capital case, we need only look to Tennessee Code Annotated section 3 9-13-204 (c), wh ich provi des:
In the sen t encing proceeding, e vidence may

be presented as to any

matter that th e court deems relevant to the punishment and may include . . . the d efendant’s character, backg round history, and phy sical condition; any evidence tend ing to establish or rebut the aggr avating circumstances enumerated

in subsection (i); and any e vidence tending to establish or rebut any mitigati ng fac tors. Tenn. Code Ann. § 39-13-204(c) (Supp. 2000).

In addition to

the character testimony

of J.C. Tyus, the

defense presented the testimony of three ot her witne sses at the

sentenc ing pha se in an effort to convey to the jury

a sense of the defendant’s15 Tawanda Waterman, the defendant’s girl friend, test ifi ed that t

he defendant tr eated her “real nice, r espect [sic]” a nd th at she n eve r witn essed him get an gry
.
Lin da M oshie r, t

he wife of t he defenda nt’s former work s upervi sor, tes ti fie d that she and he r husba nd develop ed a fri endshi p with t he defenda nt and t

hat s he never witnes sed any a ngry outbur sts or probl ems with the defe nda nt. Moshier also testi fied t hat she had “ seen hi m severalti mes jus t s tep a way from people who wanted to start problems with him” and that “[the def

endant] indi cated

. . . that he di d no t w ant

tr oub le in hi s l if

e, he had bee n do wn that ro ad.”

Zacharias Stewar t t est ifi ed tha t he ha d known the def endant for eighteen year s and that they had gro wn up in the same churc h. The def ense i ntroduc ed a dra wing g iven t o Stewart by t he defendant which Stewart descri bed as repre sent ing “tha t af

ter he was fi nishe d with hi s t ime [the defenda nt ] was l ooking to do . . . goo d an d be tter thing s.” Stewart stat ed that “[ the defendant] had a great per sonali ty . . . al l thr ough the years that we went to church t ogether we kind of had a t

ight bond

. . . he was li ke a brot her t o me.” On cros s-exa minati on, the wit ness agreed t hat hi s and t

he defendant’s c hurch did not te ach violence as a way t o res olve c onfli ct a nd that assa ssinatio n or vind ictive b eha vior is agains t the te achings of t he church. -5- non-violent

and non-confrontational character. 15 Pl ai nl y, the testimony of these witnesseswas offe red to present non-statutory mitigation evidenc e of the defendant’s peacef ul nat ure. Evidence of his previous juvenile court adj ud ic at io n o f a ggr av at ed as sa ul t w ou ld lo gi ca ll y se rv e t o r eb ut th at no n- st at ut or y mitigati o n evidence. See id.; State v. Vincent C. Sims , No. W1998-000634-CCA-R3-DD, slip op. at 24 (Tenn . Crim. App., Jackson, Mar. 14, 2000) (t estimony of defendant’s relatives that he was not an ag gressive person openedthe door t

o state’scross examination about defendant’s prior convictions; evidence was admissible under § 39-13-204(c) to rebut

mitigating circumstances). As such, the evide nce that was suggested in the
course of Mr. Tyus’ cross-e

xamination, had it been in troduce d by

the state , would ha

ve been admissible as substa ntive evi dence in

rebutta l or, in other wo rds, to contra

dict mitig ating evidence . If i t can be s aid th at the tri al court erred in not giving the instruction, in view of the e vidence being “sugg ested” but not “introduced” as to the substantive issue, then surely the error is harmless.
The harmle ssn ess of any e rror is further illustrated by pointing out again that it was the defendant himself wh o actually introduced evid ence of his juve

nile cour t adjudic ation of a

ggra vated as sault. On direct examination during the sentencing phase, he admitted this adjudication. It may well be that the defense intended to steal the state’s impeachment thunder by admitting the adjudication, and to that end, the defense

ma y have intende d that the use of thi s direct- testimony evidenc e would be

limited to impeachment

purposes. We observe , however, t hat the state would not have been permitted to use the adjudication to impeach the defendant. See Tenn. R. Evid. 609(d) (“Evide nce of juvenile

adjudica tions is gener ally not admissi

ble under this rule.”). Moreover, the defendant appare ntly made no reque st for limiting instruc tions. A ll in all, we conclude that, especially in the absence of a request for a limiting instruction, the evidence introduced by the defendant was avai la ble for unrestricted use by the jury. See State v. Smith , 24 S.W.3d 274, 279-80 (Tenn. 2000). Thus, for this additional reason, we conclude that the tr ia l c ou rt di d n ot er r w he n i t f ai le d t o g iv e t he li mi ti ng in st ru ct io n m an da te d b y Nesbit

.

As an adjunct to his arg ument that the tr

ia l court erred in failing to give a limiting instruction, the defe

ndant als o claims that the prosecution engaged in misconduct by arguing in closing that the conviction was substantive evidence of a pattern of conduct by

the defendant which justified imposition of the death penalty . In light of our conclusi on that the

evidenc e was ad

missible substantiv ely , this claim fails to discredit the sentence.-6- IV. [Deleted: Victim Im

pact Testimony]
V. [Deleted: Residual Doubt Argument]

VI. [Cumula tive Effect

of Errors]
In his sixth issue, the defendant complains that the cumulative effect of a ll errors at trial violated due process and his right to a constitutionally reliable, non-arbitrary

sentencing dete

rmina tion. We have examined, however, all issues raised by defendant and find no more than a single error, and we have ruled above in section II

I that the single err

or, if any, is har

mless. There are no errors to acc umulate.
VII. [Unanimous Jury Verdict] In his seventh issue, the defenda nt argues that requiring the jury to unanimously agr

ee on a life sentence and prohibiting informing the jury of the c onsequences of a non-unanimous verdict violated his constituti onal rig

hts pursua

nt to McKoy v. North Carolina , 494 U.S. 4 33, 110 S. Ct. 1227 (1990), and Mills v. M

aryland , 486 U.S . 367, 108 S. Ct. 1860 (1988). “In McKoy and Mills , the Court held that sentencing schemes that permit jurors to con si der only unanimous ly f

ound mitig ating c ircumsta nces in determining wheth er the a ggravati ng circums tances a re suff icient to j ustify

imposition o f death p enalty impermi ssibly

limi t the j urors ' consi derati on of m itiga ting ev idenc e in vi olati on of t he Eigh th Amendmen t. ” State v. H all , 8 S.W.3d 593, 602 (Tenn. 1999).
Th e trial court’s jury instructions in this case with regard to imposition of a life senten c e tracke d Code section 39-13 -204(f) . Subsecti ons (f)( 1) and (2 ) specif y in pertine nt part, (1) If the jury unan

imous ly determines that no statutory aggravating

circumstance has been proven by the state beyond
a reasona ble doubt, the sente

nce shall be imprisonment for life.

. . . (2) If the jury unanimously

determines that a statutory ag gravating circumstance or circ umstance s have be en prove n by the state beyond a reasonable d oubt, but that such circumstance or circumstanc es hav e not b een pro ven by the state to ou tweigh any mitigating circumstance or circu mstan ces beyond a
reasona ble doubt, the jury shall, in its considered discre tion, sentence the defenda

nt either to imprisonment for life without possibility of parole or imprisonment for life.-7-

Tenn. Code Ann. § 39-13-204(f)(1), (2) (Supp. 2000).

As best we can discern, the defendant actually pre sents three familiar issues regarding the constituti onality

of Tenne ssee’s d

eath pen alty

scheme. He attac

ks the re quireme

nts (1) that

a life
se ntence be based upon a unanimous verdict; (2) that the jury be deprived of knowledge that a life sentence would be the result of a non-unanimous verdict, see Tenn. Code Ann. § 39-13-204(h) (Supp. 20 00); and (3 ) that a find ing th at aggrav ating c ircum stanc es do n ot ou tweigh miti ga ting circumstance s be based upon a una

nimous ver

dict.
These arguments have been rejected b y the Tennessee Supreme Court. See State v. Cribbs , 967 S.W.2d 77 3, 796 (Te nn. 1998) ; State v. H

all , 958 S.W.2d 679, 718 ( Tenn. 199 7); State
v. Brimmer , 876 S.W.2 d 75, 87 (Tenn. 1994) (cases rejecting attack based upon requirement of unanimity

of life-sentence verdict). See also Cribbs , 967 S.W.2d at 796; Brimmer , 876 S.W.2d at 87 (cases rejecting claim that jury should be informed of effect of non-unanimous verdict). See also State v. Smith , 893 S.W.2d 908, 926 (Tenn. 1 994); State v. Ni chols , 877 S.W.2d 722, 735 (Tenn. 1994) (cases rejecting attack upon requirement of unanimity of fin ding that aggrava ting circumstances do not outweigh mitigating circumstances). The y avail the def

endant no relief. VIII. [Pros ecutori al Discre

tion]
In his eighth issue, the defenda nt argues that the unlimited discretion vested in the District Attorneys Gene

ral whether to seek the death penalty violates his Eighth and Fourt e enth Amendment constitutional rights.

This argum ent has been repeatedly rejected by

the Tennessee Supreme Court. See, e.g., State v. Smith , 993 S.W.2d 6 , 27 (Ten n. 1999) ( affirmi ng this c ourt’s c onclusio n tha t “[p]rosecutorial discretion used in selecting can didates for the death penalty does not result in any constitutional depriva

tion”); State v. Cazes , 875 S.W .2d 253, 268 (Tenn. 1 994); State v. Brimmer , 876 S.W.2d 75, 86-87 (Tenn. 1994).
IX. [Discriminatory Imposition of Death Penalty]
In h is ninth issue, the defendant charges that the discriminatory imposition of the deat

h penalty, based upon r

ace, geogra

phy and ge nder, vio lates his c onstitution al righ ts under t he Eigh th and Fourteenth Amendments.

Again, this arg

ument hasbeen re

jected r epeate dly by t he Tenne ssee Supr

eme Court

. See, e.g., State v. Cazes , 875 S.W.2d 2 53, 268 (T enn. 1994 ); State v. Brimmer , 876 S.W.2d 75, 87, n. 5 (Ten n. 1994); State v. S

mith , 857 S.W.2d 1, 23 (Tenn. 1993).

X. [Deleted: Proportionality]-8- CONCLUSIO N
Based upon the f

orego in g, th e judgme

nt of the tr

ial cour t and the s entence

of death imposed by the jury

in the above-captioned case is AFFI RMED.

_________________________________________ JAMES CURWOOD WITT, JR., JUDGE

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