# FILED

September 28, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk 

### IN THE SUPREME COURT OF TEN NESSEE AT JACKSON (HEARD AT DYERSBURG)

FOR PUBLICATION STATE OF TENNESSEE, ) Filed: September 28, 1998 ) Appellee, ) SHELBY COUNTY ) v. ) Hon. Arthur T. Be nnett, ) Judge CLARENCE C. NESBIT, ) ) Appellant, ) Supreme Court ) No. 02-S01-9705-CR-00043

FOR APPELLANT : FOR APPELLEE: A.C. Wharton John Knox Walkup District Public Defender Attorney General & Reporter 201 Poplar Ave., Suite 201 Memphis, Tennessee Michael E. Moore Solicitor General W. Mark Ward John P. Cauley Assistant Public Defender Assistant Attorney General 147 Jefferson, Suite 900 450 Jam es R obe rts on P kwy. Memphis, Tennessee Nashville, Tennessee (Ap peal Onl y) William Gibbons Ronald S. Johnson District Attorney General Betty J. Thomas 30th Judicial District Assistant Public Defender 147 Jefferson, Suite 900 Thomas D. Henderson Memphis, Tennessee Jennifer Nichols (Tri al O nly) Assistant District Attorneys General 201 Poplar Avenue Memphis, Tennessee1 "Whenever the death penalty i s imposed for fi rst degree murder and when the judgment has become final i n the trial 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.”



## O P I N I O N

TRIAL COURT AND COURT OF CRIMINAL APPEAL S AFFIRMED. DROWOTA, J. In this capita

l case, the defe

ndant, Clarence

C. Nesbit, was conv

icted of premedi

tated first degree murder. At the sentencing hearing, the jury found one aggravating circumstance: (1) “[t]he murder was especially heinous, atrocious or cruel in that it involved torture or serious physical abuse beyond that nece ssary to produce death.” Tenn. Code Ann. § 39-13-204(i)(5) (1991 Repl.). Finding that the aggravating circumstance outweig hed mitigating circumstances beyond a reasonable doubt, the jury sentenced the defendant to death by electrocution.

On direct appea

l to the Court of Crimin

al Appeals, the de

fendant challen

ged both his conviction and sentence, raising eleven claims of error, some with numerous subparts. After fully considering the defendant’s claims, the Court of Criminal Appeals affirmed the trial court’s judgment. Thereafter, pursuant to Tenn. Code Ann. § 39-13-206(a)(1) (1997 Repl.), 1 the case was docketed in this Court.2 Ora l argu me nts w ere h eard in this c ase on M arch 4, 19 98, in Dyers burg , Dyer Cou nty, Tenn essee , as part of this Cou rt’s S.C.A.L .E.S. ( S upreme C ourt A dvancing L ega l E ducation fo r S tudents ) project.

3 Tennessee Supreme Court Rule 12 provides 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 wishes addressed at oral argum ent.” The defendant raised numerous issues in this Court, but after carefully examining the entire record and the law, including the thorough opinion of the Court of Criminal Appeals and the briefs of the defendant and the State, this Court, on September 30, 1997, entered an Order limiting oral argument to five issues, and setting the cause for oral argument at the April ter m of Court in Jackson. 2 SeeTenn. S. Ct. R. 12. 3

After hearing oral argument and carefully reviewing the record, we have determined that none of the assignments of error require reversal. Moreover, the evidenc e supports the jury’s findings as to the aggravating and mitigating circumstance s, and the sentence of death is not arbitrary or disproportionate to the sentence imposed in similar cases, considering the nature of the crime and the

defendant. Acc

ordingly, the judgment of th

e Court of Criminal A

ppeals upholding the defendant’s conviction for first degree murder and sentence of death by electrocution is affirmed.

FACTUAL BACKGROUND It is und isp ute d th at t he n ine tee n-yea r-o ld d efen dan t, C lar ence Nes bit , ki lle d th e tw ent yyear-old victim, Miriam Cannon, by shooting her onc e in the head on the afternoon of May 20, 1993. While Nesbit admitted that he shot the victim, he claimed that the shooting had been an accident.4 At the ti me of the tri al in 1995,the ages of t he victi m’s children ranged from three t o seven years. The proof introdu

ced at the guilt p

hase of this trial e

stablished that the

victim lived with her five young children 4 at the Pershing Apartments in Memphis, Tennessee. She had known the defendant for approximately one month prior to her killing. The victim’s sister, Constance Cannon, testified that around 1:00 p.m. on the day of the murder, she and a friend stopped by the victim’s apartment to drive the victim to the grocery store. Although Cannon knocked a t the door for several minutes, no one answered. As they were leaving, Cannon’s friend noticed one of the victim’s children looking out the window. By the time Cannon returned to the door, the victim had opened i

t. The victim told Can

non that she was not

ready to g

o and asked Cannon

to return at 3:00 p.m. Contrary to her usual practice, the victim did not ask Cannon to come inside. Nonetheless, from the back door, Cannon saw the defendant sitting on the living room couch with one of the victim’s children. Cannon had seen the defendant once before the day of the murder, but knew him only by his nickname “Red.” Cannon r ecalled that the victim had been barefoot on the day of the murder, although otherwise fully clothed. Cannon also recalled seeing a horizontal mark on the victim’s neck that she had not seen the day before the murder . Cannon left, as the victim

requested, but la

ter telephoned th

e victim around 3:0

0 p.m. to confirm the

ir plans. Upon receiving no answer, Cannon assumed the victim had made other arrangeme nts and did not return to he

r sister’s apart

ment.

James Shaw, a boyfriend of the defendant’s aunt, lived in the victim’s apartment complex. Shaw testified that he had been sitting outside his apartment on the afternoon of the murder when he heard a gunshot in a nearby a partment unit. Shortly afterward, Shaw saw thedefendant leave the area from which the gunshot had sounded, casually walk to his car, a blue Oldsmobile, and drive away from the apartment complex at a normal rate of speed. Shaw described the de

fendant’s beha

vior as normal, exc

ept for the “funn

y look” Shaw

had observed in the defendant’s eyes. Shortly af ter the defendant departed, Shaw saw the victim’s children crying in the parking lot of the complex. When Shaw inquired about their mother, one of the children responded, “She’s dead.”

Tracy Davis, the victim’s close friend and neighbor, testified that on the da y of the murder she had heard children crying in the victim’s apa rtment and had seen three of the victim’s children walking toward her apartment. The children told Davis that their mother was asleep and could not be woken. As a result, Davis went to the victim’s apartment and found the victim lying in a pool of blood in front of the kitchen door. The victim’s youngest child was on the floor beside her mother trying to wake her. Davis returne d to her apartment and called the police.

When the police arrived, they first spoke with the victim’s children who told them that “Red” had shot their mother. “Red” was one of the defendant’s nicknames. When the police entered the victim’s apartment, they found her body lying face up, fully c

lothed, with sandals on her feet. Next to he

r body police

found a cigare

tte butt, a match, a

book of matches, a

nd a hair barrette. Four cartridges were found on top of the refrig erator and a lead bullet fragment on the kitchen floor at the door to the living room. A hot curling iron lay on the kitchen counter. A ricochet mark ma

de by a bulle

t was found approxim

ately 4'8 " above the gr

ound on the wall behind the stove.Dr. O. C. Smith, assistant medical examiner for Shelby County, performed the autopsy on the victim. Dr. Smith testified that the victim had died from a single gunshot wound to her head. Dr. Smith opined tha

t the gun inflictin

g the wound had be

en approximately

twelve to thirty

-six inches from the victim ’s head when it was fired . The bulle t entered th e victim’s body through her left ear, about 5'0" above the floor, traveled in a downward tra jectory through the victim’s skull and brain, an

d exited behind her r

ight ear at a he

ight of 4'11" a

bove the floor. Ac

cording to Dr. Smith, the guns

hot wound would hav

e instantly in

capacitated the

victim.

Dr. Smith also had observed burns on the victim’s chin, neck, abdomen, and forearm. The burns had been inflicted at various points in time from six hours to mere minutes before the victim had died. Dr. Smith described the burn on the left side of the victim’s neck as in the shape of the numeral one (“1"). Upon viewing photographs of the victim’s body , Constance Cannon testified that the horizontal bar at the base of that burn appeared to be the mark she had seen on her sister’s neck the afternoon of the murder. Dr. Smith testified that soot and blistering on another triangular burn under the victim’s chin indicated that it had been caused by an open flame. Although the other burns had also been thermal in origin, Dr. Smith could not identify the precise cause o

f those burns.

Dr. Smith also found bruising and scraping on the soles of the victim’s feet during the autopsy. He opi ned that th ese injuri es had been ca used by striki ng the victi m’s feet wit h a long, hard, thin object such as a rod or a coat hanger. Dr. Smith found no defensive wounds on the victim’s body.With respect to the d efendant’s act

ions on the day

of the murder, the

proof showed that

, after the shooting, Nesbit left the Pershing Apartments and drove to the Royal Oa ks Motel, where his uncle Ashley Nesbit, had a room. Once there, he spoke privately with his uncle, and hid the murder weapon, a .357 Magnum revolver, in the bathroom of the motel room. After the victim’s body had been found the defendant returned to the Pershing A partments in his cousin’s green pickup truck. The defendant encountered James Shaw and told him that the victim had shot herself while pla

ying Russia

n Roulette. Upon Sha

w’s advice to tell

the truth, Nesbit a

dmitted to Shaw that he shot the victim, but claimed it was an accident. The defendant also told Shaw that he had left the gun at the motel. Shaw and the defendant were preparing to drive out of the apartment complex to retrieve the gun when police stopped their vehicle and apprehended the defendant. A search of the defendant’s person revealed a bee per and $602 in cash. With police permission Shaw proceeded to the motel, retrieved the gun, and surrendered it to police.

In the meantime, the defendant was interrogated by police and stated that he spent the night before the killing at the victim’s apartment. At first, Nesbit told police that the victim had been “playing” with the gun when it discharg ed and killed her. Later, the defendant related that he accidentally shot the victim, claiming that he had pulled the trigge r believing the gun to be unloaded.

At trial Nesbit testified that he had been visiting his uncle’s motel room on the night before the killing when police officers arrived at the motel and began a se arch of the premises. Observing a g

un on the dresser

, Nesbit removed it

from the room bef

ore the search a

nd placed it under the seat of

his car. After r

eceiving a mess

age from the vic

tim on his beeper, N

esbit went toher apartment, arriving at approximately 3:00 a.m. Nesbit carried the g un inside, removed the bullets, and placed them on top of the refrigerator. He and the victim talked for awhile before he fell asleep on the living room sofa. Nesbit awoke at 10:00 a.m. on the day of the murde r and talked to the victim

until her sister ar

rived at 1:00 p.m. N

esbit heard the vi

ctim tell her sister

to come back at 3:00 p.m. and was preparing to leave in anticipation of Cannon’s arrival when the shooting occurred.

According to Nesbit, he had retrieved the gun from the refrige rator and was holding it as he looked outside through the blinds covering the window next to the kitchen door. As he turned away from the window, he held the gun in both hands and pointed it sideway s to his left. As he “fumbled” with the

gun, it discharg

ed. According

to Nesbit, the victi

m, who was standing

to his left, was hit by the bullet when the pistol accidentally dischar ged. The defendant said that he panicked and left the apartment. Nesbit admitted that his route of departure through the front door had taken him past the victim’s dead body and allowed him to retrieve his cap from the sofa. Nesbit did not call for emergency assistance eve n though he knew that he was leaving four young children in an apartment with their mother’s dead body . The defendant denied inflicting the burn and bruis

e injuries upon the

victim.

On cross-examination, the State attempted to emphasize the inconsistencies between Nesbit’s several pretrial statements and his trial testimony. The State also elicited an admission from Nesbit that he had been alone with the victim and her children on the day of the murde r. Based upon the proof summarized above, the jury found the defendant g uilty of premeditated first degree murder. The trial proceeded to the sentencing phase.The State relied u pon the evidence

presented during

the guilt phase of

the trial and, in addition, recalled Dr. Smith to testify about the burns and the bruises found on the victim’s body

. Dr. Smith again stated that these injuries were inflicted as long as six hours, or as little as mere minutes before the victim’s death. He said the burns on the victim’s body ranged fr om severe first degree t

o moderate secon

d degree burns

and were compar

able to a severe

sunburn or scald burns caused by touching something hot. Dr. Smith opined that the victim would have suffered “moderate” pai

n from the individua

l burns.

According to Dr. Smith, the scrapes and bruises found on the victim’s feet were consistent with a r

elatively r

are type of

torture called “

falanga,” wh

ich involves forc

efully striking the sole

s of a person’s fe

et with a rod or some

similar instrument,

and which ty

pically is inflicted in a milita

ry context, a

nd, to a lesser exte

nt, in child abuse c

ases. While none of

these injuries were severe enough to require hospitalization, Dr. Smith said the amount of force
necessary to cause bruising

on the soles of a pe

rson’s feet would

cause “grea

t pain,“ and if applied to any

other part of the

body, such f

orce would be suf

ficient to break

the skin. With respect to both the burns and the bruises, Dr. Smith testified that the victim would have suffered a great deal of distress anticipating the injuries since they ha d been inflicted over an extended period of time. Although Dr. Smith found no marks on the victim’s body indicating that she had been restrained, he opined that soft ligatures would have left no marks. Additionally, he stated that the victim might have been restrained by mental intimidation. Dr. Smith found no defensive wounds on the victim’s body and no signs of sexual assault or activity. Finally , the doctor opined that torture is not ordinarily inflicted to produce death.The only other witness for the State was the victim’s mother who described the impact of

the victim’s death on her family, including her parents and siblings and par ticularly the victim’s children.

In mitigation

, the defendant p

resented proof t

hat he had partic

ipated in the Shelby

County Jail choir. Nesbit’s brother and sister asked the jury to spare the defendant’s life and te stified that he is a nice, k

ind brother who pr

eviously had

given them good

advice and helpe

d them to correct mistakes they had made. The defendant’s mother a nd grandmother testified Nesbit had been a good, kind, and well-behaved person. They de scribed him as an honest and sincere young man who had always told the truth and followed the right path. Nesbit had dropped out of school in the tenth grade and moved to Nashville to care for his grandmother who had been experiencing he

alth problems. While

there, he had obt

ained several jo

bs to assist his grandmother in meeting her financial obligations. Both the defendant’s mother and g randmother asked the jury to spare the defendant’s life.

Testifying in his own behalf, Nesbit, nineteen-y ears old when the offense had been committed, told the jury of his plans to improve himself and expressed remorse for what had happened. While the defendant admitted to having a juvenile record for trespass, driving on a revoked license, and assault, he explained the circumstances of those convictions and minimized his criminal culpa

bility for ea

ch one. The defe

ndant had no adult c

riminal record. N

esbit also related that he had dropped out of school in the tenth grade to care for his grandmother who lived in Nashville. Nesbit had not been steadily employed at the time of the killing, but he explained that the $602 cash found on his person when he had been arrested consisted of money he hadsaved or had been given.

Based upon the proof, the jury found that the State had proven the existence of the aggravating

circumstance be

yond a rea

sonable doubt: (1)

“[t]he murder was e

specially h

einous, atrocious, or cr

uel in that it involve

d torture or serio

us physical a

buse beyond

that necessary

to produce death.” Tenn. Code Ann. § 39-13-204(i)(5) (1991 Repl.). Finding that the agg ravating circumstance outweighed mitigating circumstances bey ond a reasonable doubt, the jury sentenced the de

fendant to death b

y electroc ution. The trial co

urt entered a jud

gment in accordance with the jury’s verdict and the Court of Criminal Appeals af firmed. After reviewing the record and considering the errors assigned by the defendant, we affirm the judgment of the trial court and the

judgment of the Co

urt of Criminal Appe

als.

WAIVER As in the Court of Criminal Appeals, the State in this Court first argues that the defendant’s failure to timely file his motion for new trial precludes appellate re view of all issues except those related to the sufficiency of the evidence or sentenc ing. We disagree.

The Sta te i s co rrec t th at i n th is c ase t he m oti on f or n ew t ria l wa s fi led beyo nd t he t hir tyday period provided by Rule 33(b), Tenn.R.Crim.P. The motion was indeed late and, in a noncapital case, appellate review would be limited. SeeTenn. R. App. P. 3(e ); State v. Givhan , 616 S.W.2d 612, 613-614 (

Tenn. Crim.App. 198

0). However, bot

h the Court of Crimina

l Appeals and this Court have

a statutory

obligation under

Tenn. Code Ann. § 39

-13-206 (1997 Rep

l.) to review the defendant’s conviction of first degree murder and sentence of death. Moreover, our5 "If t he defendant has been convicted of first degree murder and sentenced t o death but does n ot appea l the convic tion of first de gree m urder, the n the trial cou rt shall certify, within n inety (90) days af

ter the j udgment has become final, the record rel ating t o punishment and the same shall be transmitted by the clerk of

the trial court t

o the Court of

Criminal Appeals. . . . ” Tenn. Code Ann. § 3 9-13-20 6 (1997 Repl.) statutory duty to review the sentence of death exists even in the absence of an appeal by the defendant. 5 In light of thi s clear statutory

directive, it woul

d be anomalous, in o

ur view, to hold that review is precluded because the motion for new trial was not timely filed. By so holding, we do not by any

means approve or

suggest that a

ttorneys in c

apital cases mak

e a practice of

late filing the defendant’s motion for a new trial. To the contrary, a ttorneys representing capital defendants shoul

d diligently

comply with a

ll filing deadline

s. Indeed, the

failure to do so in some circumstanc

es could support a

claim of ineffec

tive assistance o

f counsel. We simply

hold that in light of our statutory duty to review capital c ases, this Court has jurisdiction to review the issues raised in thi

s appeal despite t

he defendant’s

failure to timely

file his motion for n

ew trial. Cf

. State v. Bigbee , 885 S.W.2d 797, 805 (T enn. 1994); State v. Martin, 702 S.W.2d 560, 564 (Tenn. 1985); State v. Duncan , 698 S.W.2d 63, 67-68 ( Tenn. 1985); State v. Strouth, 620 S.W.2d 467, 471 (Tenn. 1981).

IMPEACHMENT OF CHARACTER WITNESS - RULE 405 The defendant ne

xt contends that the tr

ial court errone

ously permitt

ed the State to examine a character witness about his knowledge of the defendant’s alleged sa tanic beliefs and practices. Spec

ifically, th

e defendant ass

erts that no reas

onable factual b

asis for the spec

ific instance of conduct existed because the alleged rumor surfaced after the killing, the que stioning did not properly address the credibility of the witness’ s testimony, and the probative value of the inquiry did not outweigh its prejudicial effect. The State responds that the inquiry was proper6 Rule 405(a) pro vides as fol lows: In all ca ses in whic h evid enc e of c hara cter o r a tra it of ch arac ter of a per son is admissible, proof ma y be by testimony as to reputation or by testimony in the form of an opinio n. Aft er ap plicat ion to the c ourt, inquir y on cr oss -exa min ation is allowabl e into re levant speci fic inst ances of conduct. The conditi ons which must be satisfied before allowing inqui ry on cross- examination about specifi c instances of conduct are: (1) The court upon r

equest must hold a hearing outsi de the jury ’s presence, (2) T he co urt m ust d eterm ine th at a re aso nab le fac tual b asis exist s for the inq uiry, and, (3) The court must determine that the probative value of a specifi c instance of conduct on the char

acter witness’s credi bility out weighs it

s prejudicial effect

on substantive issues. under applicable

evidentiary

standards.

Pursuant to Rule 405(a), Tenn. R. Evid., a witness offering testimony about the defendant’s character may be impeache d by questions which test the character witness’s knowledge of “relevant specific instances of conduct.”6 The purposes served by such inquiries has been explaine

d as follows:
Specific instances of conduct are permissible on cross-examination for several reasons. First, they test the credibility of the c haracter witness by providing information on the underlying data upon which the opinion or reputation was formed. If a

n opinion witness, wh

o testifies that the

defendant was a

n honest person at the critical time, did not know that the defendant had a prior embezzlement conviction, the opinion may have been formed on the basis of inadequate information or a careless (and therefore suspect) approac h to assessing a person’s reputation. Second, the specific acts help the trier of fact assess the standards used by the character witness. For example, if a witness who g ave the opinion that the defendant is an honest person also knew that the defendant had ten shoplifting convictions, the trier of fact may choose to discount the opinion evi den ce be caus e of t he ch arac ter wit nes s’s low sta nda rds for mea sur ing h one sty. Cohen, Sheppeard, Paine, Tennessee Law of Evidence , § 405.3, p. 195 (3rd ed. 1995 & Supp. 1997) (hereinafter “Evidence , § __, p. __.”).Though inquiries into specific insta

nces of conduct s

erve valid impea

chment purposes,

to prevent the jury from hearing inadmissible and potentially prejudicial allegations about the defendant’s character, Rule 405 includes certain procedural prerequisites which must be sa tisfied before such inquiries are permissible. First, an attorney must make application to the cour t before utilizing a

specific instanc

e of conduct to impe

ach a charact

er witness. Since

the rule provides no time limi

t, application may

be made immediate

ly before t

he question is aske

d, but if opposing counsel is unable to respond because of surprise, a recess may be appropriate. Evidence , § 405.3, p. 197.

Second, Rule 405 mandates that the trial court, upon request, conduct a hearing outside the jury’s presence to determine whether inquiries into specific instance s of conduct are permissible. Duri

ng this jury

-out hearing, th

e trial court must d

etermine whethe

r the specific instance of conduct about which inquiry is proposed is relevant to the character trait about which the witness has testified. For example, this Court held in State v. Sims , 746 S.W.2d 191 (Tenn. 1988), that questions regarding the defendant’s prior arrests for bad chec ks and shoplifting were permissible to impeach the character witness who had testified that the defendant had a good reputation for truthfulness in the community. However, we held impermissible questions regarding th

e defendant’s p

rior arrests for

assault and batte

ry becaus e they wer

e not relevant to the characte r trait abou t which the witness ha d testifie d -- the defen dant’s tru thfulness . Though the decision in Sims was rendered be fore the adoption

of the Tennessee

Rules of Evidence

in 1990, it is an accu

rate interpreta

tion of the langua

ge of Rule 405 whi

ch permits inquirie

s into

“ relevant specific instances of conduct.” (Emphasis added.)If the relevancy standard is satisfied, the trial court must next determine whether a “reasonable factual basis” exists for the specific instance of conduct. Rule 405 provides no specific guidance with respect to the nature of evidence or the showing re quired to establish the existence of a “reasonable factual basis.” Nonetheless, we agree w ith the Court of Criminal Appeals that when

ever possible, extr

insic proof should b

e offered at the

jury-out he

aring to establish the “reasonable factual basis.” If the realities of trial make it impossible to do so, the attorney proposing to ask the question should, at a minimum, clearly sta te on the record the source and origin of the information underlying the specific instance of conduct about which inquiry is proposed. Evidence , § 405.3 at p. 197.

In evaluating whether a “reasonable fac tual basis” has been established, the trial court should be mindful that the purpose of this requirement, as noted by the Court of Criminal Appeals in this case, is to ensure that such questions are proposed in good faith, rather than in an effort to place

before the jury

unfairly pr

ejudicial informa

tion supported only

by unreliab

le rumors. Though we have not previously addressed the “re asonable factual basis” requirement of Rule 405, this Court, long ago, decided that reports of a defendant’s bad character whic h do not arise until after

the crime for whi

ch he or she is bein

g tried are inhe

rently suspe

ct.

For example, in Powers v. State, 117 Tenn. 363, 97 S.W. 815, 817 (1906), during the defendant’s trial for first degree murder for stabbing his school teacher to death, a witness for the prosecution testified on cross-examination as to the good character of the defendant. Purporting to test the witness’s credibility, the prosecution, on redirect, asked the witness if he had heard that the defenda

nt had “run his step

father from home

with a knife, and h

ad threatened to

killanother school-t eacher, and ha

d lain in weight [sic

] for him with a shotg

un.” The witness responded that he had heard these reports after the killing had occurred. Power s was convicted, and before this Court argued that reports of a defendant’s alleged misconduct whic h arise after the commission of the crime should not be used by the prosecution to impeach a character witness. T his Court agreed with t he defendant , stating:
The reputation which a defendant has made upon the subject of quietness and good citizenship a

vailable for or a

gainst him in a cr

iminal cause when

he puts his character in issue is that which he bore at and before the taking place of the a ct for which he is upon trial, not a reputation subsequently acquired or created for or against him. A different view would put a premium on the manufacturing of evidence. Powers , 97 S.W. at 817. This Cou rt reversed the

conviction beca

use the “matter te

stified to came to the knowledge of the witnesses after the commission of the homicide which was the subject of investigation,” and, therefore was not a subject upon which the character witness could be impeached. Id ; see also Tucker v. State, 149 Tenn. 98, 257 S.W. 850, 856 (1924); Wanda E. Wakefield, Annotation , “Cross-Examination of Character Witness,” 13 A.L.R.4th 796, § 8 (1982 & Supp. 1997) (citing cases limiting cross-examination to specific instances of conduct which occurred before commission of the crime on trial).

While our decisions in Powers and Tucker predate the adoption of the Tennessee Rules of Evidence, the logic and rationale of those decisions are consistent with, and reflected by , the “reasonable factual basis” requirement of Rule 405. Because of the potential for e vidence manufacturing, and because a person accused of a crime is more likely to be the subject of rumor and innuendo, reports of specific instances of conduct which do not arise until after a crime has been c ommi tted a re inh erent ly susp ect an d may no t form the ba sis fo r inqu iry und er Rul e 405. Inaddition, a trial court should exercise caution in permitting inquiry under Rule 405 if the

character witness subject to impeachment first heard reports of the specific instance of conduc t after the crime occurred. Under those circumstances, to establish a reasonable f actual basis, the prosecution must offer some proof at the jury-out hearing that the spec ific instance of conduct had been reported before the crime occurred.

If a specifi

c instance of con

duct is relevant a

nd supported by

a reasonable fa

ctual basis, the trial court must next determine whether the probative value of a “specific instance of conduct on the character witness’s credibility outweighs its prejudicial effe ct on the substantive issues.” In recognition of the uniquely prejudicial impac t of allegations of instances of bad conduct, the evidentiary

rules place a tig

hter restraint on

the permissibility

of inquiries about

relevant specif

ic instances of cond

uct than is placed

on the admissibility

of other releva

nt evidence. I

ndeed, Rule 403, Tenn. R. Evid.,

provides that rel

evant evidence

is excluded only

if its probative va

lue is “substantially outweighed” by its prejudicia l effect. In contrast, inquiries into specific instances of conduct under Rule 405 are precluded if probative value and prejudicial effect a re of equal weight, or if the

prejudicial eff

ect of the specif

ic instance of co

nduct on substantive

issues merely “outweighs” its probative impeachment value. See alsoTenn. R. Evid. 404(b) (same weighing standard governs admission of proof of prior bad acts).

Even when a trial

court determine

s that an inquiry

is permissible unde

r the previously delineated procedural safeguards of Rule 405, Tennessee law require s the trial court to instruct the jury that the specific acts of conduct were admitted for the limited purpose of e valuating the credibility of the character witness. Sims , supra .Having set out the governing leg

al principles, we

must now apply

these rules to the

facts of this case. Her

e, the alleged

error arose dur

ing the guilt pha

se of the trial whe

n defense counsel, at the end of his cross-examination of James Shaw, a witness for the State, asked Shaw if he was familiar with the defendant’s reputation in the community for peace fulness and violence. Shaw, w

ho had dated the de

fendant’s aunt a

nd known the defe

ndant for twelve

years, responded, “Yeah. He didn’t bother nobody. You know, he’d help y ou if he could, but he never did - he never did bother nobody. He seemed like to me he alway s tried to stay away from, y ou know, trouble.”

At the beginning of redirect, the prosecutor, during a bench confe rence, advised the trial court that to test Shaw’s basis of knowledge the State proposed to ask Shaw whether he had heard that the defendant claimed he worshiped Satan and had to kill two people to get power. The defense re

quested a jury

-out hearing, a

t which Shaw admitte

d that he had hear

d these allegations af

ter the murder wa

s committed from the

defendant’s “a

untie and them,” a

nd again before trial fr

om the prosecuting

attorney. T

he prosecutor the

n remarked that h

e had heard this information “from two or three people as well” and argued that, with Shaw’s having also hea rd it, a “factual basis” existed for asking the question. The prosecutor explained to the trial court that “Ms. Cannon [the victim] is the one who told several of them that the defendant told her that.” Shaw then in

dicated that the d

efendant’s aun

t had heard the a

llegations of sa

tanic worship from the victim’s family after the murder. No other evidence conc erning this allegation of satanic worship was offered. Based upon this information, the trial court allowed the inquiry

. The fol low ing e xch ange occu rred in t he p res ence of t he j ury:Prosecutor: In forming your opinion of his reputation in the community in which he works and lives for peacefulness and quietude, had you heard that the defendant had told others that he worshiped Satan and needed to kill t

wo people in order

to get some power? Shaw: No, I had not he

ard that. Prosecutor: You had not heard that? Shaw: I had not hear

d that. Prosecutor: Didn’t you testify just a few moments ago out of the

hearing of the jury that y

ou had heard that from Cynthia Nesb

it? Shaw: Oh, yeah, but I thought y ou was talking about had I heard it from him. Prosecutor: No, no. I’m not talking about that. Let me be

careful. You’ve heard it from - - at least from Cynthia Nesb

it; is that correc

t? Shaw: Right. Prosecutor: That’s what he sa id; is that correc

t? Shaw: No, I heard that that’s what she had heard. Prosecutor: And did you take that into account in forming your

opinion of his reputation for peacefulness and quietude? Shaw: What do you mea n by that? Prosecutor: Does that sound peaceful and quiet to you? Shaw: Well, I stil l don’t’ un derstand wh at you are saying. Prosecutor: If somebody said that they

needed to kill two p

eople to get power, wo

uld that sound peac

eful and quiet to you? Shaw: No, it wouldn’t, but I ain’t heard nothi

ng from him like tha

t.Prosecutor: I understand . Thank you.

No further quest

ions, Your Honor. JUDGE: Ladies and gentlemen, the Court charges the jury

that if you find that specific instances of bad character of t

he defendant ha

ve been brough

t out in the trial, then you can consider it only for the purpose of testing the accuracy and cre dibility of the character witness, and that evidence thus developed is not substantive evidence of the defendant’s good or bad character. All right. You may, if y ou have recross-examination. Defense: What is your opinion of his peacefulness and

quietude now? What is y our opinion of him? Shaw: Well, in my opinion, he’s a nice young man. L ike I said, you know, in my opinion, you know, he didn’t bother nobody. Like I said, he always helped me. I go to him, tell him I need him to do some work for me; h

e do it, you kn

ow. He just the ty

pe he didn’t, you know, he respected his aunties and things and every body else, you know, his

elders. Defense: So you never heard this opinion directly from

anybody? I mean, y

ou don’t know of your personal knowledge abou

t anything o

f that; is that corr

ect? Shaw: No, I don’t. No, I don’t.
The final charge to the jury in this case repeate d the admonition that “specific instances of bad character of the defendant” are only to be used to test the accuracy and credibility of the character witness and not as substantive evidence of the defendant’s good or bad character.

In our view, the record in this case indicates that the requirements of Rule 405 were satisfied. The prosecutor sought the trial court’s permission before questioning the character witness about the defendant’s alleged satanic worship. At defense counsel’s request, the trial court held a hearing outside the jury’s presence to c onsider the issue. The specific instance of7 According to the verdict form, the jur

y specifically

found that “[t]he murder was hei nous, atrocious an d cruel i n that it invol ved tortur

e and serious physical ab use be yond that n ecess ary to produce death.” (Em phasis supplied.) conduct about which inquiry was proposed was relevant to the issue about which the witness had testified -- the defendant’s reputation in the community for peacefulness a nd quietude. A reasonable factual basis was established. The prosecutor identified the source and origin of the specific instanc

e of conduct on the

record at the jur

y-out hear

ing. Though the

character witn

ess said he had not heard the allegations of satanic worship until after the murder, the prosecutor’s statement identifying the victim of the murder as the source of the report obviously is some proof that the incident had been reported before the murder occurred. A review of the record does not demonstrate that the prejudicial effect of the specific instance of conduct on the substantive issues outweighed its probative impeachment value. The inquiry was directly relevant to the character tra

its of peacefuln

ess and quietude a

bout which the witne

ss had testified. I

mmediately following the inq

uiry and ag

ain in its final cha

rge, the trial c

ourt properly

instructed the jur

y as to the permissible limi

ted use of the evid

ence. The jury

is presumed to have

followed those instructions. State v. Walker , 910 S.W.2d 381, 397 (T enn. 1995); State v. Lawson , 695 S.W.2d 202, 204 (Tenn. 198

5). The defenda

nt’s claim that the

trial court erre

d in allowing the in

quiry is without merit.

AGGRAVATING CIRCUMSTANCE (i)(5) A. Sufficiency of the Evidence In this case, the jury imposed the death penalty upon its finding 7 that “[t]he murder was especially heinous, atrocious, or cruel in that it involved torture or serious phy sical abuse beyondthat necessary to produce death.” Tenn. Code Ann. § 39-13-204(i)(5) (1991). On appeal, the

defendant challenged the sufficiency of the evidence to support this aggravating circumstance. The Court of Crimina

l Appeals held tha

t because the vic

tim died instantane

ously from a

single gunshot wound to the head, the proof was not sufficient to show that the murder involved serious physical abuse beyond that nece ssary to produce death. Relying upon decisions of this Court defining torture as “the infliction of severe physical or mental pa in upon the victim while he or she remains alive and conscious,” State v. Williams , 690 S.W.2d 517, 529 (Tenn. 1985), the Court of Criminal Appeals also held that the proof in case was not sufficient to establish physical torture because

Dr. Smith had testif

ied that the individu

al burns caused th

e victim only “moderate,” rather than “severe,” phy sical pain. Nonetheless, the intermediate court found the proof showed mental torture, sufficient to support the aggravating circumstance be cause Dr. Smith testified that the victim had suffered a “great degree of distress” anticipating the inf liction of the repeated

burns and bruises

.

In this court, the defendant agrees with the decision of the Court of Criminal Appeals as to physical t

orture and serio

us physical a

buse, but asserts t

hat the intermedia

te court erred i

n upholding the aggravating circumstance on the basis of mental torture bec ause Dr. Smith’s testimony that the victim suffered a “great degre e of distress” is speculative.

In contrast, the State agrees with the intermediate court’s decision with respec t to mental torture, but aver

s that the Court of Cr

iminal Appeals er

red in finding the

evidence insuff

icient to establish physical torture and serious physical abuse since the evidence of numerous “moderately” painful injuries considered cumulatively is sufficient to support findings ofphysical torture and serious physical abuse

.

As previously stated, torture has been defined as “the infliction of severe physical or mental pain upon the victim while he or she remains alive and conscious.” Williams , 690 S.W.2d at 529. The proof in this case clearly is sufficient to show that the victim was alive and conscious when the injuries were inflicted. Dr. Smith testified that examination of the burns and bruises revealed that they had been inflicted before the vic tim’s death. The victim’s sister testified that she had seen the victim alive and conscious at 1:00 p.m. on the day of the murder. The defendant confirmed that testimony. The victim’s sister said that she had observed a burn

mar k on the vic tim ’s n eck a t th at t ime whi ch h ad n ot b een t here the prev iou s da y. Ob vio usl y, this testimony reveals that the victim was conscious at least when some of the injuries were inflicted. The defendant consistently maintained that the victim had been conscious until he shot her. Considered in conjunction with Dr. Smith’s testimony that the burns and bruises were inflicted before death, the defendant’s testimony indicates that the victim was alive and conscious during

the infliction of e

ach and every

burn and bruise. I

n our view, the pro

of in this record is sufficient to support a finding that the victim was alive and conscious when the injuries were inflicted.

We must next consider whether the proof is sufficient to support a finding that the infliction of these injuries caused the alive and conscious victim “severe physical or menta l pain.” In evaluating the sufficiency of the proof on this issue, we are mindful of two longstanding r

ules in this State. F

irst, [t]he jury may use their common knowledge and experienc e in deciding whether afact is logically deducible from the circumstances in evidence , or in making reasonable inferences from the evidence, and may test the truth and weight of the evidence by their own general knowledg e and judgment derived from experience, observation, and reflection. . . . Trousdale v. State

, 168 Tenn. 210, 76 S.

W.2d 646 (1934); Fairbanks v. Stat e , 508 S.W.2d 67, 69 (Tenn. 1974); State v. Meeks , 876 S.W.2d 121, 131 (T enn. Crim. App. 1993). Second, while expert testimony may embrace an ultimate issue to be dec ided by the trier of fact, State v. Shuck , 953 S.W.2d 662 (Tenn. 1997); Tenn. R. Evid. 704, the jury is not bound to accept the testimony of an expert. Indeed, “the weight and value of expert testimony is for the jury” to determine. State v. Sparks , 891 S.W.2d 607, 616 (Tenn. 1995).

There is no except

ion to this rule for c

apital cases. The

prosecution is not r

equired to offer expert testimony as to the precise level of pain inflicted upon a victim. Even if such testimony is offered, as previously stated, jurors a re not bound to accept the testimony of expert witnesses. Indeed, jurors are free to use their common knowledge and judgment derived from experience, observation, and reflection to decide whether a fact is logically deducible or reasonably inferred from the evidence.

In finding the proof in this record insufficient to support a finding that “severe phy sical pain” had been in

flicted upon the a

live and consciou

s victim, the Court of

Criminal Appeals cited only that portion of Dr. Smith’s testimony indicating that the victim had suffere d “moderate” pain from the individual burns. The intermediate court apparently considered the jury bound by

that testimony. In evaluati ng the sufficie

ncy of the p

roof, an appella

te court must consider the entire body of evidence in the light most favorable to the State. Apply ing thatstandard to the facts in this case, we conclude that the proof is sufficient to support the jury’s

finding of phy

sical torture bey

ond a reasonable

doubt.

Beginning six hours before the victim’s death and lasting up until minutes before she actually died, the defendant inflicted first and second degr ee burns on her body in six places. Dr. Smith compared these burns to a severe sunburn or a scald burn. One burn had resulted when the defendant held an open flame under the victim’s chin. On the left side of the victim’s neck, the defendant carefully burned the numeral one ( “ 1"). The defendant also beat the soles of the victim’s feet with sufficient force to cause bruising, and according to Dr. Smith, “gre at pain.” Given the detailed description, both of these injuries and the methods by which they were inflicted, certainly the jurors, using their common knowledge and experienc e, could have assessed the degree of pain resulting from these injuries.

Moreover, while we agree with the intermediate court’s conclusion with rega rd to the sufficiency of the proof to support a jury finding that severe mental pain was inflicted upon the victim, we again

do not base our con

clusion solely

upon Dr. Smith’s test

imony that the

victim would have suffered “a great degree of distress” a nticipating the infliction of the various injuries. Utilizing their common knowledge and experience as members of the human race, the jurors were capable of evaluating the proof and determining whether the victim suffered severe mental pain when, over the course of a six hour time period, her body was burned and be aten in her own home, with four of

her young

children presen

t. The sufficienc

y of the evid

ence to support a jury’s finding of torture does not depend upon whether an expert witness utters the mag ical words “severe physical or mental pain.” The releva nt question for an appellate court is whether,after reviewing the evidence in the light most favorable to the State, any rational trier of fact could have found the existence of the aggravating circumstance bey ond a reasonable doubt. State v. Cazes , 875 S.W.2d 253 (Tenn. 1994). Apply ing this standard

, we conclude tha

t the proof is sufficient to support a jury finding that both severe phy sical and mental pain was inflicted upon the victim while she remained alive and conscious.

Moreover, in our view, the evidence is also sufficient to support a finding of “serious physical abuse beyond that nece ssary to produce death” even though the cause of the victim’s death was a single gunshot wound to the head. There is no requirement that the cause or mode of death also be the cause or mode of the “serious physical abuse be yond that necessary to produce death.” In this case, burns and bruises were inflicted upon the victim over a period of six hours. “[S]erious physical abuse beyond that necessary to produce death” means just what it says; there must be serious physical, not mental, abuse, i.e., “an act that is ‘excessive’ or which makes ‘improper use of a thing,’ or which uses a thing ‘in a manner contrary to the natural or legal rules for its use.” State v. Odom , 928 S.W.2d 18, 26 (Te nn. 1996). Certain

ly, the abuse

of the victim in this case qualifies. The defendant burned the victim’s body in various places and bea t the soles of her fee

t before he shot he

r in the head. Consi

dering this proof

, we conclude tha

t a rational jury could have found that this murder involved serious phy sical abuse beyond that necessary to produce death.

B. Jury Instruction The defendant also attacks as confusing the language of the a ggravating circumstance --“[t]he murder was especially heinous, atrocious, or cruel in that it involved torture or serious

physical abuse beyond that nece ssary to produce death.“ Without a clarify ing instruction, the defendant contends that the aggravating circumstance fa ils to sufficiently channel the jury’s discretion and meaningfully narrow the class of death elig ible defendants. Specifically, the defendant contends that the phrase “in that” misleads the jury to believe that any act of torture or serious phys

ical abuse bey

ond that necessa

ry to produc

e death is “espec

ially heinou

s, atrocious, or cruel,” and he contends that without an instruction setting out the two-step analysis, a jury may inappropriately find the circumstance based only on proof of torture or serious physical abuse.

We disagree. The jury in this case was properly instructed in accordance with the language of the statute and the definitions provided in Williams , supra . We have repeatedly and recently upheld the constitutionality of this agg ravating circumstance. See e.g. Odom , 928 S.W.2d at 18. Accor

dingly, this

issue is without meri

t.

VICTIM IMPACT EVIDENCE The State at the sentencing hearing, in its case in chief, through the victim’s mother, presented evide

nce of the victim’ s character an d the “very

devastating” im

pact the victim’s d

eath had imposed upon he

r family. Th

e defendant obje

cted to this testimon

y as irrele vant and highly inflammatory. On appeal, the defendant argues that a dmission of the victim impact evidence viol ates t he Eig hth an d Four teent h Amen dment s of th e Unit ed Sta tes Co nsti tuti on and Artic le I, Section 16 of the Tennessee Constitution. In addition, the defendant argues that victim impact evidence is immate

rial and irrelev

ant under Tennessee’s capital se ntencing statute

, and even ifrelevant, the prejudicial effect of this evidence substantially outweig hs its probative value.

On the other hand,

the State argue

s that both this Court a

nd the United State

s Supreme Court have recog

nized that victim impa

ct evidence is re

levant to punishmen

t and admissible under both the fe

deral and state c

onstitutions. Beca

use it is relevant t

o punishment, the Sta

te argues that victim impact evidence is admissible under the Tennessee statutory sc heme which provides that evid

ence may b

e presented “a

s to any matte

r the court deems

relevant to punishment.” The State also argues that the probative value of the evidence in this case was not substantially

outweighed by

its prejudicial ef

fect.

The constitutional standards governing victim impact evidence and argument at a capital sentencing proceeding have varied greatly over the past eleven years. In Booth v. Maryland, 482 U.S. 496, 504, 107 S.Ct. 2529, 2534, 96 L.Ed.2d 440 (1987), the Supreme Court held that introduction of vic

tim impact evidenc

e at the penalty

phase of a capita

l trial violates a defendant’s Eig

hth Amendment rig

hts because the e

vidence “may

be wholly unr

elated to blameworthiness of a particular defendant,” and may diver t the capital sentencer’s attention from relevant information about the crime and the defendant’s background and recor d. In South Carolina v. Gathers , 490 U.S. 805, 811-12, 109 S.Ct. 2207, 2211, 104 L.Ed.2d 876 (1989), the Supreme Court reaffirmed Booth and extended it to pr

eclude comments b

y the prosec

ution, in final argument, about the victim and victim impact. As in Booth , the majority in Gathers held that the prosecution had focused upon considerations which were not relevant to the defendant’s “personal responsibility and moral guilt.”Against this jurisprudential background, this Court rendered our decision in State v.

Payne , 791 S.W.2d 10 (Tenn. 1990). In that case, the defendant had been convicted of the stabbing murder of a twenty-eight-y ear-old mother and her two-and- one-half yea r old daughter. The victim’s three-and-one-half year old son also had bee n severely injured in the assault, but managed to survive. At the sentencing phase of Payne’s trial the mother and grandmother of the deceased victims briefly testified about the impact of the murders on her surviving grandson. The prosecutor utilized the victim impact evidence in his closing argument. In this Court, the defendant argued that the evidence and argument reg arding victim impact violated Booth and Gathers . While acknowledging the technical irrelevance of victim impact evidence under Booth , this Court held that the evidence and argument in Payne “did not create a

constitutionally unacceptable risk of an arbitrary imposition of the death penalty , and was harmless beyond a reasonable doubt.” Id ., 791 S.W.2d at 18. With respect to the prosecutor’s arguments in Payne , this Court held, “[w]e

are of the opinion

that the prosecut

or’s argument i

s relevant to this defendant’s personal responsibility and moral guilt.” Id ., 791 S.W .2d at 19. In s o concludi ng, we stated,
It is an affront to the civilized members of the human race to say that at sentencing in a capital case, a parade of witnesses may praise the background, character and good deeds of De

fendant (as was

done in this case), without limitation a s to relevancy, but nothing may be said that bears upon the character of, or the harm imposed, upon the vi

ctims.

Id

.

The United States Su preme Court gra

nted the defenda

nt’s appeal from

our decision in Payne , and overruled Booth and Gathers to the extent that those decisions had held the Eight8 How ever , left un distu rbed by Payne was the rule of Booth holding that admission of a victi m’s family members’ characterizations and opi nions about the crime, the def endant, and the approp riate sente nce violate s the Eigh th Am endm ent. Payne , 501 U.S. at 830, n. 2, 111 S.Ct. at 2611, n. 2

. See also Payne , 501 U.S . at 832, 11 1 S.Ct. at 2 612 (O ’Conno r, J., conc urring); Payne , 501 U.S. at 835, n. 1, 111 S.Ct. at 2614, n.1 (Souter, J., concurring). Amendment precludes admission of victim impact evidence and prosecutorial argument on the evidence. 8 Payne v. Tennessee, 501 U.S. 808, 111 S.Ct . 2597, 115 L.Ed

.2d 720 (1991). Fi

rst, the Court, explained that, “it was never held or even suggested in any of our cases preceding Booth that the defendant, entitled as he was to individualized consideration, was to receive that consideration wholly apart from the crime which he had committed.” Payne , 501 U.S. at 822, 111 S.Ct. at 2607. According to the Court in Payne , th e rul e ann oun ced b y Booth and Gathers , “unfairly weighted the scales in a capital trial” by placing virtually no limits on the relevant mitigating evidence a capital defendant may introduc e, while barring the State from “either offering a g

limpse of the life w

hich a defendan

t chose to extinguis

h or demonstrating

the loss to the victim’s family and to society which have re sulted from the defendant’s homicide.” Payne , 501 U.S. at 822, 111 S.Ct. at 2607 (internal citations and quotations omitted). The Payne Court reiterated that, “justice, though due to the accused, is due to the accuser also. The conce pt of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.” Payne , 501 U.S. a t 827, 111 S .Ct. at 260 9, (quotin g Snyder v. Ma ssachusetts , 291 U.S. 97, 122, 54 S.Ct. 330, 338, 78 L.Ed. 674 (1934)).

Therefore, in overruling the decisions of Booth and Gathers , the Court in Payne stated: We are now of the view that a State may properly conclude that for the jury to assess meaningfully the def endant’s moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm c

aused by the

defendant. The S

tate has a legit

imate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as anindividual, so too the victim is an individua

l whose death rep

resents a unique l

oss to society a

nd in particular to

his family. By turning th e victim into a fac

eless stranger at the penalty phase of a capital trial, Booth deprives the State

of the full moral force of its evidence and may prevent the jury from having before it all the information necessary to determine the proper punishment for a first-deg ree murder.
Payne , 501 U.S. at 825, 111 S.Ct. at 2608 (internal citations and quotations omitted). Therefore, the Court held that if a State chooses to permit the admission of victim impact evidence and prosecutorial argument, “the Eighth Amendment erects no per sebar.” Payne , 501 U.S. at U.S. at 827, 111 S.Ct. at 2609.

However, Payne

did not authorize admission of any and all victim impact evidence and argument. I

ndeed, the Court no

ted that in the eve

nt victim impact evid

ence is introduce

d “that is so unduly prejudicial that it renders the trial fundamentally unf air, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.” Payne , 501 U.S. at 825, 111 S.Ct. at 2608.

Therefore, Payne

stands for the proposition that the Eighth Amendment does not preclude the admission of victim impact evidence or prosecutorial argument about the evidence. Moreover, decisions of this Court rendered subsequent to Payne , have also held th at victim impact evidence and prosecutorial argument is not precluded by the Tennessee Constitution. State v. Shepherd , 902 S.W.2d 895, 907 (T enn. 1995); State v. Brimmer , 876 S.W.2d 75, 86 (Tenn. 1994). Accordingly, the defendant’s contention that victim impact evidenc e and argument is bar

red by the f

ederal and state

constitutions is witho

ut merit.The defendant next contends that victim impact evidence is inadmissible under

Tennessee’s capital sentencing statute. The State responds that the statute permits all evidence relevant to punish

ment and victim impa

ct evidence is ad

missible because

it is relevant to punishment.

We begin our consideration of this issue with the language of the statute. Tenn. Code Ann. § 39-13-204(

c) (1997 Repl.) pr

ovides as follows: In the sentencing proceeding, evidence may be presented as to any matter that the court deems relevant to the punishment and may include, but not be limited to, the nature and circumstances of the crime; the defendant’s character, bac kground history, and physical condition; any evidence tending to establish or rebut the aggravating circumstances enumerated in subsection (i); and any evidence tending to establish or rebut any mitigating factors. Any such evidence which the court deems to have probative value on the issue of punishment may be received regardless of its admissibility under the rules of evidence; provided that the defendant is acc

orded a fair opp

ortunity to re

but any hea

rsay state ments so admitted. However, this subsection shall not be construed to authorize the introduction of any evidence secured in violation of the constitution of the United States or the constitution of Tennessee.
The language of the statute is broad. On its face the statute appears to authorize the admission of any reliable evidence that is relevant to punishment, with the only requirement being that the defendant be ac

corded a fair op

portunity to r

ebut hearsay

statements. The st

atute, consistent

with constitutional mandate, permits admission of all relevant mitigating evidence, whether or not the category of mitigation is listed in the statutory sc heme. State v. Cazes , 875 S.W.2d 253, 266 (Tenn. 1994 ) (discuss ing McKoy v. North Carolina, 494 U.S. 433, 442, 110 S.Ct. 1227, 1233, 108 L.Ed.2d 369 (1990) and Mills v. Maryland , 486 U.S. 367, 375, 108 S.Ct. 1860, 1865-66, 100 L.Ed.2d 384 (1988)). However, this Court repeatedly has held that the State may not rely upon nonstatutory aggravating circumstance s to support imposition of the death penalty, but is limitedto those aggravating circumstances listed in the statute. State v. Thompson , 768 S.W.2d 239,

251 (Tenn. 1989); State v. Cozzolino , 584 S.W.2d 765, 768 (T enn. 1979). I

ndeed, we stated

in Cozzolino that “evidence is relevant to the punishment, and thus admissible, only if it is relevant to an aggravating circumstance, or to a mitigating fac tor raised by the defendant.” Id . at 768.

Nonetheless, tha

t general state

ment, upon which the

defendant in this c

ase relies to support his content

ion that victim impac

t evidence is not a

dmissible, has not be

en literally applied to limit admission of evidence at a capital sentencing hearing. Even in Cozzolino , the case in which the rule was announced, the jurors heard proof at the sentencing he aring about how the crime had been committed which was not necessarily relevant to an a ggravating circumstance. M

oreover, in seve

ral subsequent de

cisions we have e

xpressly rec

ognized that a sentencing jury must be permitted to hear evidence about the nature and circumstances of the crime even though the proof is not necessarily related to a statutory aggravating circumstance. State v. Harris, 919 S.W.2d 323, 331 (T enn. 1996); State v. Teague , 897 S.W.2d 248, 251 (Tenn. 1995); State v. Nichols , 877 S.W.2d 722, 731 (T enn. 1994); State v. Bigbee , 885 S.W.2d 797, 813 (Tenn. 1994)(

citing cases).

Indeed, we h

ave recognize

d that evidence c

arefully li mited to allow an “individualized sentencing determination” based upon the defendant’s character and the circumstances of the crime is constitutionally required. Nichols , 877 S.W.2d at 731. We have also opined that onc

e a capital sente

ncing jury

finds that a defe

ndant falls within th

e legislatively defined category of persons eligible for the death penalty, the jury is free to consider a myriad of factors to determine whether death is the appropriate punishment to the offense and the individual defendant. Nichols , 877 S.W.2d at 731 (citing cases). In our view, the impact of the crime on the victim’s immediate family is one of those myriad fa ctors encompassed within the9 See Footno te 6, supra
.

statutory language nature and circumstances of the crime. To conclude otherwise would be equivalent to divorcing the defendant from the crime he or she has committed. As the United States Supreme Court recognized, a defendant is entitled to individualized consideration, but that consideration is not to occur “wholly apart” from the crime for which he or she has been convicted. Payne , 501 U.S. at 822, 111 S.Ct. at 2607.

The Tennessee statute delineates a procedure which enables the sentencing jury to be informed about the presence of statutory agg ravating circumstances, the presence of mitigating circumstances, and the nature and circumstances of the crime. The statute allows the sentencing jury to be reminded “that just as the murderer should be considered as an individual, so too the victim is an individua

l whose death rep

resents a unique l

oss to society

and in particular

to his family.” Payne , 501 U.S. at 825, 111 S.Ct. at 2608 (internal citations and quotations omitted). As this Court emphasized in its decision in Payne , it would be “an affront to the civilized members of the human race” to allow unlimited mitigation proof at sentencing in a capital case, but com ple tel y prec lud e pro of o f th e sp eci fic harm res ult ing f rom the hom ici de. Acco rdi ngly, the defendant’s claim that victim impact evidence is not admissible under the Tennessee capital sentencing stat

ute is without merit.

We emphasize, however, that not any and all victim impact evidence the prosecution wishes to offer at a capital sentencing hearing is admissible. Although such evidence is not entirely pr

ecluded by

the Eighth Amendm

ent, 9 victim impact evide

nce may be

introduced “that

is so unduly prejudicial that it renders the trial fundamentally unf air,” thus implicating the Due10 Rule 403 provides that “[a]lthough relevant, evidence may be exc luded if its probative value is substanti ally outweighed by

the danger of u nfair pr ejudice, confusion of the issues, or misleading the jury,or by consi derations o f undue delay , waste of time, or needless presentation of cum ulative evide nce.”

11 W e reite rate th at vict im im pac t evide nce of an othe r hom icide, even one c om mitte d by th e defend ant on trial, is no t adm issible. Bigbee , 885 S.W.2d at 812. Process Clause of the Fourteenth Amendment. Payne , 501 U.S. at 825, 111 S.Ct. at 2608. Moreover, as wit

h any other

evidence sough

t to be admitted, the

trial court may

exclude victim impact proof if its

probative value i

s substantially

outweighed by

its prejudicial ef

fect. Tenn. R. Evid. 403. 10 Therefore, vic tim impact evidenc

e which threate

ns to render the tr

ial fundamentally unfair or which poses a danger of unfair prejudice is not appropriate and should be excluded by the trial judge. Payne , 501 U.S. at 836, 111 S.Ct. at 2614 (Souter, J., concurring). To enable the trial court to adequately supervise the admission of victim impact proof, we conclude that the State must notify the trial court of its intent to produce victim impact evidence. Upon receiving notification, the trial court must hold a hearing outside the presence of the jury to dete rmine the admissibility of the evidence. The victim impact evidence should not be admitted until the trial court determines that evidence of one or more aggravating c ircumstances is already present in the record. Windom v. State, 656 So.2d 432, 438 ( Fla. 1995); Cargle v. State, 909 P.2d 806, 826 (Ok. Ct. Crim. App. 1995).

Generally, victim impact evidence should be limited to information designed to show those unique characteristics which provide a brief glimpse into the life of the individual who has been killed, 11 the contemporaneous and prospective circumstances surrounding the individual’s death, and how those circumstance s financially

, emotionally

, psycholog

ically or ph

ysically impacted upon members of the victim’s immediate family. Payne , 501 U.S. at 822, 111 S.Ct. at2607; Payne , 501 U.S. at 830, 111 S.Ct. at 2611 (O’Conn or, J. , concurring

); Cargle v. State

, 909 P.2d 806, 826 (Ok. Ct. Crim. App. 1995). Of these types of proof, evidence regar ding the emotional impact of the murder on the victim’s family should be most closely scrutinized because it poses the greatest threat to due process and risk of undue prejudice, particula rly if no proof is offered on the other types of victim impact. Cargle , 909 P.2d at 830; cf

. Saffle v. Parks , 494 U.S. 484, 493, 110

S.Ct. 1257, 108 L.

Ed.2d 415 (1990) (

“It would be v

ery diffic ult to reconcile a rul

e allowing the f

ate of a defend

ant to turn on the va

garies of part

icular jurors’ emotional sensitivi

ties with our longs

tanding recog

nition that, above a

ll, capital senten

cing must be reliable, accurate, and nonarbitrary.” ) However, there is no bright-line test, and the admissibility o

f specific ty

pes of victim impac

t evidence must be

determined on a c

ase-by-c ase basis.

Similarly, wh

ile victim impact ar

gument by th

e prosecution ab

out the evidence

is permissible, rest

raint should be exer

cised. This Court ha

s consistently

cautioned the Stat

e against engaging in victim impact argument which is little more than an appeal to the emotions of the jurors as such argument may be unduly prejudicial. State v. Shepherd , 902 S.W.2d 895, 907 (Tenn. 1995) (

“We caution the Sta

te to utilize such ar

guments advised

ly.”); State v. Bigbee , 885 S.W.2d 797, 808 (Tenn. 1994) (“[T]he State may risk reversal by eng aging in argument which appeals to t

he emotions and sy

mpathies of the jur

y.”) I ndeed, prosecut

ing attorney

s must remember that jurors are to base their decision upon a reasoned moral response to the evidence. See California v. Brown , 479 U.S. 538, 542-43, 107 S.Ct. 837, 839-40, 93 L.Ed.2d 934 (1987). The jury should not be given the impression that emotion may re ign over reason. In each case, the trial court mus

t strike a caref

ul balance. Arg

ument on relevant

, though emotiona

l,considerations is permissible, but inf

lammatory r

hetoric that dive

rts the jury’ s attention from its proper role or in

vites an irrationa

l, purely em

otional response t

o the evidence is n

ot permissible and should not be tolerated by the trial court.

Finally, to a

ssist the jury

in properly

utilizing victim impa

ct evidence, we

hereby sug

gest the following instruction, to be used in all future capital murder cases in which victim impact evidence is admitted: The prosecution h

as introduced wha

t is known as victim imp

act evidence. T

his evidence has been introduced to show the financial, emotional, psychologic al, or physical ef

fects of the victi

m’s death on the me

mbers of the victim’s immediate family. You m

ay conside

r this evidence in

determining an a

ppropriate punishment. However, your consideration must be limited to a rational inquiry into the culpability of the defendant, not an emotional response to the evidence. Victim impact evidence is not the same as an aggravating circumstance. Proof of an adverse impact on the victim’s family is not proof of an aggr avating circumstance. Introduction of this victim impact evidence in no way relieves the State of its burden to prove beyond a reasonable doubt at least one ag gravating circumstance which has been alleged. You may c onsider this victim impact evidence in dete

rmining the appr

opriateness of th

e death penalty

only if y ou first find that the existence of one or more aggravating circumstances has bee n proven beyond a reasonable doubt by e vidence independent from the victim impact evidence, and find that the aggravating circumstance(s) f ound outweigh the finding of one or more mitigating circumstances bey ond a reasonable doubt.

This instruction sho

uld be used in substa

nce in all future

capital murder tr

ials where victim impact evidence has been introduced and is effective from the date this decision is released. See Cargle , 909 P.2d at 828; see also Turner v. State, 486 S.E.2d 839, 843 (Ga. 1997)(citing other cases). Having concluded that victim impact is admissible at the sentencing phase of a capital trial in accordance with due process and evidentiary c onstraints, we must next determine whether the evidence ad

mitted in this case e

xceeded either of

those restriction

s.12 The victi m’s youngest chi ld had been l iving wi th his pat

ernal grandmother at the t ime of trial. At sentencing, the prosecution called the victim’s mother, Laura May Cannon, to testify about the impact of her daughter’s death on her family, pa rticularly the victim’s children. Cannon related that her daughter had been a kind, warmhearted person. Cannon said that the family had been very de

pressed as a result of the victim’s death and missed her very much. Cannon had obtained legal custody of four of the victim’s children. 12 Cannon had resigned her employment to care for the children. Cannon said that the four children in her c ustody had been receiving psychological therapy designed to help them cope with their loss. She also testified that the children had experienced nightmares and talked in their sleep since the murder, and often did not play well together. The children also had reenacte d the murder while at play.

In approximately five pages of transcr ipt, Cannon clearly and concisely re lated the financial, psychological, emotional, and phy sical impact of this murder on the victim’s family. Although she ment

ioned the emotiona

l impact of the murd

er, Cannon focus

ed upon the financ

ial, psychological, and physica l impact of the crime. Because the defendant in this case had been acquainted with the victim for about a month, he knew that she was a single mother of five y oung children. The defendant also knew that four of the victim’s children were in the apartment at the time of the murder.

The State is not req

uired to prove tha

t a defendant ha

s specific knowle

dge about a victim’s family

to secure admissib

ility of victim

impact evidence. As stated by Justice Souter ina concurring opinion in Payne :

Murder has foreseeable consequences. When it happens, it is alway s to distinct individuals, and after it happens other victims are left behind. Every defendant knows, if endowed with the mental competence for criminal responsibility, that the life he will take by his homicidal behavior is that of a unique person, like himself, and that th

e person to be kille

d probably h

as close associa

tes, “survivors,” who

will suffer harms

and deprivations f

rom the victim’s de

ath. Just as defendants kn

ow that they

are not facele

ss human ciphers, t

hey know tha

t their victims are not valueless fungibles and just as defendants appreciate the web of relationships and dependencies in which they live, they know that their victims are not human islands, but individuals with parents or children, spouses or friends or dependents. Thus, when a defendant chooses to kill, or to raise the risk of a victim’s death, this choice necessarily relates to a whole human being a nd threatens an association of others, who may be distinctly hurt. The fact that the defendant may not know the details of a victim’s life and character istics, or the exact identities and needs of those who may survive should not in any way obscure the furt

her facts that de

ath is alway

s to a ‘unique’ indi

vidual, and harm to some group of sur

vivors is a consequ

ence of a succe

ssful homicidal ac

t so foreseeable as to be virtually inevitable. Payne , 501 U.S. at 838, 111 S.Ct. at 3615.

While we are in com

plete agreeme

nt with that analy

sis, we are also o

f the opinion that a trial court may consider the defendant’s specific knowledg e about the victim’s family when evaluating the p

robative value of

victim impact proof

on the appropria

teness of the dea

th penalty and when determining if probative value is substantially outweighed by prejudicial effect. In our view, probative v

alue is particula

rly grea t, where the proo

f shows, as it did in th

is case, that a defendant had specific knowledge about the victim’s family whe n the crime was committed. Accordingly, we have no hesitation in holding that the probative value of the victim impact proof in t his case was not sub sta nti all y out wei ghed by th e dan ger o f un fai r pr eju dic e. T o th e con tra ry, the probative value of the proof in this case far outweighed the danger of its unfa ir prejudice. The victim impact e

vidence admitted

in this case violate

d neither the cons

traints of due pro

cess,nor the evidentiary strictures of Rule 403, Tenn. R. Evid.

However, the prosecutor’s argument about the purpose and function of the victim impact evidence was er

roneous. In p

ertinent part the

argument was a

s follows: There’s no p roof he did i t in front o f them. He ju st left her t here bleedi ng, knowing those four young babies were in the house with a de ad mother. He didn’t know, I guess, that they were g oing to try to wake mommy and try to shake her out of the blood

and the brains. No, maybe he d idn’t know. But y

ou saw his testimony. He didn’t care either. He didn’t care. How do you weigh this? Well, you have to look at the impact of the crime. That’s why the peopl

e are here to testi

fy about her life, M

iriam Cannon, becau

se [w]e sometimes forget in these trials that, while we’re here to take care of the defendant and prov

ide justice for him, there is someone e lse in this case, and

it is not just Miriam Cannon

. There are those ba

bies, those orphan c

hildren. There are the rest of her family. There is the rest of society that has been deprived of Miriam Cannon. There are lots of victims in this particular case. Now the defendant’s family would like to see him. All right. Balance that against, doesn’t everybody understand that little Terrica and the rest of the children would like

to see their mother

, too? Sure that balan

ces. Everybody knows that. They

would like to be abl

e to see them as we

ll. And the relatives

of the person who i

s facing death

by electro

cution will tell you to please spare his life. Wouldn’t it have been nice if Ms. Cannon and the rest [of the] family

could have been t

here to beg for

Miriam’s life? They

could have looked at him and said, “Please, don’t kill my daughter. Go ahead and torture her, but don’t kill her.” But they didn’t get the chance to. We give him that chance , but she doesn’t get that chance. So when you go to balance the aggravating circumstances against that mitigation, remember if it had been possible they would have been th

ere begging for the

ir daughter’s life. T

hose children would have begged for their mother’s life had they been given that opportunity. So you balance that against the mitigation. Defense counse

l says he show

s remorse. . . . He

has no remorse. T

here is no mitigating circumstance of remorse. There is only the aggravating factor of ours, of torture and pain and agony and the effect that this had on the family. (Emphasis added).Dissenting in the Court of Criminal Appeals, Judge Wade recognized that this argument

crossed the line beyond the permissible latitude afforded counsel in closing when the prosecutor characterized

the victim impact e

vidence as an ag

gravating ci

rcumstance and u

rged the jury

to weigh and bala

nce the victim impa

ct evidence ag

ainst the mitigatin

g proof. Althoug

h victim impact evidence is, as we have previously said, one of those my riad factors which the jury may consider in determining whether death is the appropriate punishment, it does not carry the force and effect of an aggravating circumstance in the sentencing calculation. The prosecutor’s argument in this case erroneously character ized the victim impact evidence as an aggravating circumstance to weigh against mitigation proof.

To determine whe

ther this errone

ous argument co

nstitutes grounds

for reversal, w

e must consider whether the impropriety “affected the ver dict to the prejudice of the defendant.” Bigbee , 885 S.W. 2d at 809 (q uoting Harrington v. Sta te , 215 Tenn. 338, 385 S.W.2d 758, 759 (1965)). Factors relevant to that determination include: (1) the conduct complained of viewed in light of the facts and circumstances of the case; (2) the curative measures undertaken by the court a nd the prosecution; (3)the intent of th

e prosecutor in ma

king the improper

arguments; (4) the cumulative effect of the improper conduct and any othe r errors in the record; and (5) the relative strength and weakness of the case.

Though the prosecutor’s argument mischaracterized the function of victim impact evidence, the argument was based upon proof properly admitted into evidence, and there is noindication that the prosecutor acted in bad faith. Moreover, the jurors were instructed by the trial court in the final charge at the sentencing hearing to apply the law as provided by the court. The trial court also in

structed the juro

rs that they

could not impose a de

ath penalty

without a unanimous finding that the statutory aggravating c ircumstance had been proven beyond a reasonable doubt and outweighed the mitigating proof bey ond a reasonable doubt. Again, the jury is presumed to follow the instructions of the trial court. Walker , 910 S.W.2d at 397. Considering the e

rror complained

of in light of the e

ntire case, incl

uding, as previo

usly discussed, the strength of the proof to establish the statutory aggr avating circumstance, we are of the opinion that the improper prosecutorial argument does not appear to have affected the ver dict to the defendant’ s prejudice. The refore, the er

ror does not requ

ire reversal.

PROPORTIONALITY

REVIEW We must next consider w hether the defe

ndant’s sentence

of death is disprop

ortionate to the penalty imposed in similar cases, considering the nature of the crime a nd the defendant. Tenn. Code Ann. § 39

-13-206(c)(4)

(1997 Repl.). I

f this case is “pla

inly lacking

in circumstances c

onsistent with those

in similar cases in

which the death pe

nalty has pr

eviously been imposed,” the sentence of death is disproportionate. State v. Bland , 958 S.W.2d 651, 665 (Tenn. 1997). However, a sentence of death is not disproportionate merely because the circumstances of the offense are similar to those of another offense for which the def endant has received a life sentence. Id . at 665. Our role, in conducting pr

oportionality

review is not to assure that a sentence “less than death was never imposed in a case with similar character istics.” Id . Instead, our duty “is to assure that no aberra nt death sentence is affirmed.” Id

.In choosing and comparing similar cases, we consider many variables, some of which include, (1) the means of death; (2) the manner of death; (3) the motivation for the killing; (4) the place of death; (5) the similarity of the victim’s circumstances, including ag e, physical and mental conditions, and the victims’ treatment during the killing; (6) the absence or presence of premeditation; (7) the absence or presence of provocation; (8) the absence or pr esence of justification; and (9) the injury to and effects on nondecedent victims. Id . at 667. When reviewing the characteristics of the defendant, we consider: (1) the def endant’s prior record or prior criminal ac

tivity; (2) th

e defendant’s a

ge, race, and

gender; (3) the

defendant’s men

tal, emotional or physical condition; (4) the defendant’s involvement or role in the murder; (5) the defendant’s cooperation with authorities; (6) the defendant’s remorse; (7) the defendant’s knowledge of the helplessness of the victim; and (8) the defendant’s capacity for rehabilitation. Id . Comparative proportionality review is not a rigid, objective test. Id . at 668. We do not employ mathematical or scientific techniques. In eva luating the comparative proportionality of the sentence in light of the factors delineated above, we rely also upon the experienced judgment and intuition of the members of this Court. Id

.

Applying these factors, we note that the proof in this case ref lects that the victim died from a single g

unshot wound to her

head. She was kille

d in her own home af

ter undergoing

a six hour torturous ordeal during which she was burned and beaten by the defendant. Four of the victim’s five young children were present in the apartment during the time she was tortured and also when she was shot. There was no apparent motive for this premeditated murder. The defendant’s claim that the shooting was accidental obviously was not believed by the jury. There is also certainly no proof of provocation or justification for the offense. Having known thevictim for a month and having spent a portion of the night and day with her, the def endant obviously had knowledge that the victim was helpless. Though not extensive, the nineteen-yearold defendant had a prior juvenile criminal record. The record reflects that the defe ndant cooperated with police after his apprehension, and expressed remorse for the murder at trial. With respect to his c

apacity fo r rehabilitation,

the defendant tol

d the jury tha

t he planned to complete his high school education if sentenced to life imprisonment. Considering the nature of the crime and the

defendant, we c

onclude that imposi

tion of the death pe

nalty for th

e senseless, torturous, and cr

uel murder of this t

wenty-y ear-old woman is n

ot disproportionat

e to the penalty imposed in similar cases, and that this murder places Nesbit into the class of defendants for whom the death penalty is an appropriate punishment. Based upon our review, w e conclude that the following ca

ses in which the de

ath penalty

has been imposed h

ave many sim

ilarities with this

case.

In State v. Bland , 958 S.W.2d 651 (Tenn. 1997), the nineteen-year-old defendant, without provocation or explanation, shot an unresisting, retreating victim, chased him some 91 yards or more, and shot the helpless victim several times more after he had taken refuge undernea th a pickup truck. Like Nesbit, Bland was only nineteen y ears old when the crime was committed and had no adult cr

iminal record. Th

e jury sente

nced the defend

ant to death upon f

inding as in this case that the murder was especially heinous, atrocious or cruel in that it involved torture or serious physical abuse beyond that nec essary to produce death. Tenn. Code Ann. § 39-13- 204(i)(5) (1991 Repl.).

In State v. Van Tran , 864 S.W.2d 465 (Tenn. 1993), this Court a ffirmed the dea

thsentence of a nineteen-year-old defe ndant who killed a seventy-four-ye ar-old woman during the course of a robbery. The victim had already been shot once and was lying on the floor, when without provocatio

n or explanation, Va

n Tran, like the de

fendant in this ca

se, shot the victim in the head. As did the defendant in this case, Van Tran cooperated with the authorities and expressed remorse for the killing. As in this case, the jury imposed the death penalty upon finding a single aggravating circumstance, that the murde r was especially heinous, atrocious or cruel in that it involved torture or depravity of mind. Tenn. Code Ann. § 39-2-203(i)(5) (1982).

In State v. Hurley , 876 S.W.2d 57 (Tenn. 1993), the defendant killed the victim by shooting him once

in the head. Ther

eafter, he robb

ed the victim and bu

rned his body. As in this case, the assau

lt was entirely

unprovoked and un

explained. The jur

y found the d

efendant guilty of premeditated murder and imposed the sentence of death upon finding that the murder was committed while the defendant was engaged in committing a felony -- robbery. Tenn. Code Ann. § 39-2-203(i)(7) (1982).

In State v. Barber , 753 S.W.2d 659 (Tenn. 1988), the defendant without provocation, struck the elderly victim five times in the head with a crescent wrench. As mitiga tion, Barber, as did Nesbit, relied upon his capacity for rehabilitation and in his youth. As in this case , the jury found that the murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind. Tenn. Code Ann. § 39-2-203(i)(5) (1982). I n addition, the jury determined that the murder was committed during the course of a felony. See Barber v. State , 889 S.W.2d 185 , 189-90 (Tenn. 1994) (concluding that the jury’s consideration of the fe lony-murder aggravating circumstance was harmless error).In State v. McNish, 727 S.W.2d 490 (Tenn. 1987), the defendant beat the victim about

her face and head with a glass flower vase. The victim was alive when found, but died a short time later, so she suffered after the attack by McNish much as the victim in this case suffered before she was shot by Nesbit. Unlike the defendant in this case, McNish had no prior c riminal record even tho

ugh he was twent

y-nine y ears old. As in this c

ase, the jury

imposed the death penalty upo

n finding a sing

le aggravat

ing circumstanc

e -- that the murde

r was especially

heinous, atrocious, or cruel in that it involved torture or depravity of mind. Tenn. Code Ann. § 39-2- 203(i)(5) (1982).

In State v. Cooper , 718 S.W.2d 256 (Tenn. 1986), the thirty-three-year -old defendant shot his estranged wife four times while she was trapped inside a glass and brick cashier’ s booth. As did Nesbit, Cooper shot an unarmed, helpless victim without provocation. Cooper did not shoot his wife four times in rapid succession. Cooper shot once, walked away, then turned ba ck and resumed firing at her. The victim in Cooper had time to contemplate her fate and experience severe mental pain, as did the victim in this case during the six hours she was tortured. The jury imposed the death p

enalty, as i

n this case, upon f

inding that the mur

der was especia

lly heinous, atrocious, or cruel in that it involved torture or depravity of mind. Tenn. Code Ann. § 39-2-2- 3(i)(5) (1982).

No two cases are

identical, but the

above cases hav

e many simila

rities with Nesbit.

In all six cases, the murders were without explanation or provocation. Four of the five cases, involved the infliction of severe physical or mental pain upon the victim while he or she remained alive and conscious. I

n four of the case

s, death was caus

ed by a gun

shot wound. In f

our of the cases,13 State v. Caughron , 855 S.W .2d 526 ( Tenn . 1993); State v. Sm ith , 868 S.W.2d 561 (Tenn. 1993); State v. Bates , 804 S.W .2d 868 ( Tenn . 1991); State v. Payne , 791 S.W .2d 10 (Tenn. 1990); State v. West , 767 S.W .2d 387 ( Tenn . 1989). the victims were murdered either in their home or at their place of employme nt. Like Nesbit, two of the defendants were nineteen years old when the murders were committed. Also, three of the defendants, like

Nesbit, had no subst

antial prior crim

inal record. At le

ast one of the def

endants relied upon his capacity for rehabilitation, as did Nesbit. In five of the six cases, the jury returned a sentence of death upon the basis of a single aggravating circumstance. After reviewing the cases discussed herein, and other cases not herein detailed, 13 we are of the opinion that the penalty imposed by the jur y in this case

is not excessive or d

isproportionate to

the penalty imposed for similar

crimes.

CONCLUSION In accordance with the mandate of Tenn. Code Ann. § 39-13-206(c)(1) (1997 Repl.), and the principles ad

opted in prior dec

isions of this Court, w

e have consider

ed the entire re

cord in this cause and find that the sentence of death was not imposed in any arbitrary fashion, that the evidence supports, as previously discussed, the jury’s finding of the statutory aggravating circumstance, and the jury’s finding that the agg ravating circumstance outweighed mitigating circumstances beyond a reasonable doubt. Tenn. Code Ann. § 39-13-206( c)(1)(A) - (C) (1997 Repl.). We have considered the defendant’s assignments of error and determined that none have merit. With respect to issues not specifically addressed herein, we affirm the dec ision of the Court of Cr iminal App eals, autho red by Judge Dav id G. Hayes, and joined in f ully by Judge William M. Barker and joined in partially by Judge Gar y R. Wade Relevant portions of that opinion are published hereafter as an appendix. The defendant’s sentence of death byelectrocution is affirmed. The sentence shall be carried out as provided by law on the 29th day of January, 199

9 unless otherwise

ordered by

this Court or other p

roper authoritie

s.

_____________________________________ FRANK F. DRO WOTA, III, JUSTICE

CONCUR: Anderson, C. J., Holder , J. Birch, J. - See Separate Dissenting Opinion