### IN THE SUPREME COURT OF TENNESS EE AT NASHVILLE Februar y 5, 2002 Se ssion
STATE OF TENN ESSEE v. WILLIAM R. STEVENS

Automat ic Appeal f

rom the C ourt of C riminal Appe als Criminal Court for Davidson County No. 98-A-825 Hon. Steve Dozier, Judge

No. M1999-02067-SC-DDT-DD - Filed May 14, 2002

The defendant was found guilty by a Davidson County jury of hiring eighteen year- old Cor ey Milliken to murder his wife, Sandra Jean Stevens, and his mother-in-law, Myrtle Wilson. He was also convicted of especially aggravated robbe r y. The jury found t

wo aggra vating ci rcumstan ces: (1) The defendant was previously convicted of one or more felonies, other than the present charge, whose statutory elements invo lve the u se of violence to the person, Tenn. Code Ann. § 39-13- 204(i)(2); and (2) the defendant employed another t o commit

the murders for the promise of
remu neration, Tenn. Code Ann. § 39-13-204(i)(4). Finding that the aggravating circum stance s outweighedthe mitigating circumstances beyond a reasonable doubt, the jury sentenced the defendant to death for the murder of

each victim. On the especially aggravated robbe ry conviction, the court sentenced

the defendant to life without parole as a repea t violent offender with the sentence to run consecutively to both death sentences. The Court of Criminal Ap pea ls affirmed the defendant’s convictions and sentences of death. On automatic appeal to this Court, we affirm and hold as fol lows: ( 1) the trial court did not abuse its discretion in limiting the testimony of defendant’s crime sceneexpert to his analysis of the evidence at the crime scene; (2) the trial court’s exclusion of th e testimon y of Core y Milliken’ s foster f

ather r egardin g Milliken’ s prior ba d acts constituted harmless error; (3) the trial court applied hea rsay and othe r evidentiary rulings in an unbiased and eve

n-hande d manner ; a nd (4) the sentence of death is not disproportionate to the sentence imposed in similar cases. For all other issues not specifically discussed in this opinion, we agree with and af

firm the j udgment of

the Court o f Criminal

Appeals

. Tenn. Code Ann. § 39-13-206(a)(1) Automatic Appeal; Judgment of the Court of Criminal Appeals Affirmed

W ILLI AM M. B ARKER , J., delivered the opinion of the court, in which F RANK F. D ROWOTA , III, C.J., and E. R ILEY A NDERSON and J ANICE M. H OLDER , JJ ., joined. A DOLPHO A. B IRCH , J R ., J., filed a concurring and dissenting opinion.1 It is und ispute d tha t M illiken k illed the victim s. He pleaded guilty to first de gree mu rder shor tly be fore his

trial wa s set to b egin and wa s sente nce d to life imp rison me nt. -2- Brock Mehler and F. Michie Gibson, Nashville, Tennessee, for the appe llant, William R. Stevens.

Paul G. Summers, Attorney General and Report er; Michael E. Moore, Solicitor General; Jennifer L. Smith, Assistant Attorney General, Nashville, Tennessee, for the appe llee, State of Tennessee.

OPINION
FACTS Guilt Phase

On December 22, 1997, police were dispatche d t o th e defendant’s, William Richard Stevens’ s, mobile home

in Nashville in resp onseto a 911 call made by the defendant and eighteen year-o ld Corey Milliken. When the police arrived, they found the murdered bodies of forty- fi ve year-o ld Sandra (Sandi ) J ean Steve ns, the de

fendant ’s wife, and seve nty-five year-o ld Myrtle Wilson, the defendant’s mother-in-law. After further investigation, the police concluded that Corey Milliken was hired

by the defendant to kill the women and to make the murders look like they were committed in furtherance of a burglary. 1

The record reveals that the defendant

and Millike

n had known each o ther for approximately
one year. Milliken and his then fifteen year-old brother, Shawn Austin, lived with their mother and step-father

three trailers down from the defen dant. B oth boys of ten work ed for th e defendant, assisting him

in his job of putting underskirting on mobile homes. Austin testified at trial that his brother had a clo se rela

tionship with the defe

ndant and that he a nd his brot

her spen t a lot of th

eir free time at the defendant’s trailer.

Austin testified that in the fall of 1 997, t he defendant approached both brother s and asked themif they wo

uld kill the

defenda nt’s ex- wife, Vi ckie Stev ens. The defenda nt instruc ted them to “get a rifle” and shoot

her when she came out of her trailer . He told themthat if she were dead, he would get full custody of his then nine year-old son, John. He would also get “her car, her trailer and her land.”
However, around Thanksgiving, the defendant changed his mind and offered to pay Milliken and Austin $2,500 apiece if they would instead kill his current wife, Sandi Stevens, andhis motherin-law, Myrtle Wilson. The defendant and his wife were having marital problems, and he knew that another divorce would “wipe him out.” He told the boys that he would get the money either

from the proceeds of Ms. Wilson’s life insurance policy or from the p

roceed s of a yar

d sale. A ustin would act as a “lookout,” while Milliken killed the victims in their trailer. The defendant preferred that the victims be shot; however, if the boys could not find a gun with asilencer, Milliken was to kill them-3-

using a knife. Austin ev entually decided that he di d not want to be the “ lookout,”but agre ed to provide an alibi for

the defendant. He would not be paid for this participation, and therefore the entire $5,000 would be paid to Milliken. Although the defendant had not yet set a date for

these mur

ders, he took grea

t pains in planning and instructing Milliken on exactly how the murders were to take place . For instance, he told Milliken to

kill his mother-in-law first because his wife would not hear a nything: she kept her door shut and th

e fan ru nning in her bedroom. Healso told Mi lliken tha t on the ev e of the m

urders, the tr ailer would be unlocked, and the burglar alarm would not be se t; as an extra p recaution , Milliken would be given a key to the trailer.

The defendant further instructed that afte r Milliken killed the victims, he was to ste al certa in items, including some of Mrs. Stevens’s jewelry, and then “destroy” the trailer to make it look like
a robbery had

occurred. In fact, he took Milliken on a walk-through of the trailer, and he specifie d which items were to be stolen, which items were to be “trashed,” and which items wer

e to rema in untouched, such as “the TV and the dishes and [his] Star Tre k collection.”

The defendant al so instructed Milliken on how he was to get rid of the evidence. For instance, Milliken was to take the stolen jewelry and put it in a bag. He would then throw the murder weapon on top of a nearby school building and throw the bag of stolen items into the river. Once all the evid

ence wa s disposed

of, he would go to hisgirlfrie nd’s house

to establi sh an alib i. According to the defendant’s plan, on the morning of the murders, he and Austin would leave toge th er to go to work. Milliken would commit the crimes while they were gone. The defendant told A ustin that i f he was questione d by the po lice, he was to tell them that

he saw Mr s. St even s wave to them that morning as they left for work. The de fendant also tol d the brot hers tha t if anybody gotcaught, “ everybo dy was on t heir own.” Fur

thermore , he instr

ucted the m not to take

lie detector tests or “snitch on the other person.” Finally, a few days before Dece mber 22, 19 97, the defendant told the brothers that the murders needed to be committed on the twenty-s econd. H e explained that h is ex-wif e was goi ng to have back surg e ry at tha

t time, and

he would h ave his nine year -old son, J ohn, staying with him. John would act as another alibi. Milliken agreed to commit the murders on that date.

At approximately 4:4 5 on the mor ning of Monday, Dec ember 22 , Austin we nt o ver to the defendant’s trailer where

the defendant and his young son were waiting for him. Milliken was still asleep because he had stayed up late the night before after having had an

argument with his mother and step-father. Mrs. Stevens and Ms. Wilson were also still asleep in their rooms and did not see the defendant and the two boys leave for work.2 On the day of his ar rest , the def

endant consented t o a taped interrogati on during which he stat ed that t hey drove to New Johnsonville t he morning of Decem ber 22. However, Shawn Au sti n testifi ed that they dro ve to W hite Bluff. In ei ther

case , bot h indi vidual s cons ist entl y st ated that

it took appr oxi ma te ly an hou r and a half to reach their dest ination.
-4- The threeso me drove approximately ninety miles to their jobsite at New Johnsonville, 2 stopping for breakfast along the way. After the y arrived, the defenda nt decided that it was too muddy to work on the trailer, so they returned home, arriving bac k at the trailer

park at around 8:30
a.m.
In a taped statement given on the day of his arrest, the defendant said that when he walked up to the fro nt door of his trailer, he observed that the door was ajar . When he stepped inside, he noticed that the Christmas tree was lying on its side and that “stuf f was laying all over,” and he “knew something

was wrong.” He lo oked towa rds his be droom, sa

w his wife’s leg “laying across the bed,” and immediately assumed that both his wife and his mother-in-law were dead. The defendant said that he never went into

either bedroom to actually check on the women, nor did he
ever see his mother-in-law’s body. Instead, he just “ran out” with his son andAustin and went to Austin’s trailer to call the police.

Officers Gary Clements and John Donnelly o f the Me tro Police Departm ent were the first officers to arrive at the crime scene. After entering the trailer and finding the two bodies, the officers sealedoff the crime scene and then began c a nvassing the a rea for witnesses and searching the grounds for physi cal evid ence. O fficer

Clements s oon met Cor

ey Millike

n in his trailer and started talking to him. During their conversation, he noticed blood spots on Milliken’s t-shirt, blood under his nails, and fresh gouge marks on his cheek and wrist. Offic er Clem ents eve ntuall y turned Milliken over to detectives for further questioning. Milliken confessed to committing the murders by himself and provided a detailed description of the murders and the c rime scene. Continuing his search for evidence, Officer Clements soon discovered that the underpinning
on a nearby trailer had been pulled loose. When he looked under that trailer, he found a gree n canvas bag. The contents of the bag included the following: a white, blood-stained Miami Dolphins t-shirt; several pieces of jewelry; an eight-inch long but cher knife or kitchen knife; prescription medication lying loosely in the bag; a thirty-five millimeter camera; and a black ca mera bag.

Detectives Pat Postiglione and Al Gray, members of the Metro Police Department assigned to investigate the homicides, found no sign of forced entry. In fact, aside from the appeara nce of a struggle “inand about the

bed are a” in Ms. W

ilson’s ro om, the cr

ime scene looked, for the mo st part, “staged.” For

instance, Detective Gray explained that dre sser drawers were pulled open, but nothing in them appe ared to b e disturb ed; clothes were taken out of th e closet and d umped onto the floor wh ile still on their hangers; and the Christmas presents were unwrapped, but nothing a ppeared t o have been stolen. Even the Christmas tree looked as if it were“gently pushed over,” because none of the glass ornaments wer e broken or scattered on the floor, which would most likely have3 The evidence is undisputed that Mrs. St evens normally sl ept in t he nude.

4 Serology tests determined that the blood on S andi Stevens’s body was cons ist ent with t

hat of Myrtle Wilson.

5 Se ve ra l l aw en fo rc eme nt of fi ce rs t es t i fi ed t ha t i t i s s t an da rd pr oc ed ur e t ha t whe n f

ema l e h omi ci de vi ct

i ms
are found nude with genital s “dis played,” t he crimes are to be init iall y investi gated a s possible sex -related crim es. Consequent ly, oral, anal, and vaginal swabs were taken from each victim, and a rape suspect kit was perf ormed o n Corey Mill iken. Serol ogy tes ts disc los ed n o sperm o n any of the sw abs taken from Ms. W ilson. However, sperm consistent w ith the DN A of th e defen dant w as detected on the v aginal sw ab taken from Mrs. S tevens. -5- happened had there been a struggle. He also testified that ce rtain rooms, which “looked like . . . very valuable area[s] of the trailer,” remained undisturbed.

Bothvictims we

re found lying in the

ir beds. Ms. Wilson was wearing a nightgown, which had been pulledabove he

r waist. Her underwear was on the floor. The re was a substantial amount of blood on her body, on the bed, and on severa l items in the

room. Dr. Emily War

d, a patho logist withthe Davidson County Medical Examiner’s Office, perfor med autopsies on the victims. Her examination of Ms. Wils on revea le d that sh e died from stab wounds and manual strangulation. Although her stab wounds were relatively superficia l and did not pierce any vital organs, they resulted in a considerable amount of lost blood.

Mrs. Stevens was completely nude 3 and left in a “displayed” position, that is, lying on her back with her legs spread apart. She died as a result of ligature strangulation. However, there wa s blood on her knees, indi cating th at the murdere r had killed Ms. Wilson first and then transferred
some blood onto M

rs. Stevens. 4 There were also pornographic maga zines placed around

her body,
as well as a photo album containing nude photos of the victim, presumably taken by the defendant during the

ir marri age. The

re was n o evidenc e of blood on these items.

Dr. Ward’sexamina

tion of Mrs . Stevens r

eveale d a small, s uperficial tear in her vagina. Dr. Ward testifie d that she

thought it w as a post- mortem ch ange in th e skin, wh ich likely occurr ed while the body was being movedfor examination. Although she conceded on cross-examination that the decedent could have been sexually assaulted after de ath, she d id not beli eve this to be the ca se because there was no bruising, swelling, or hemorrhaging a round the tear. 5

The State introduced the testimony of Chris Holman, a friend of Milliken’s, as additional evidence that the defendant hired Milliken to commit these crimes. Mr. Holman testified that around the end of October, Milliken approached him and asked him if he knew where Milliken could get
a gun with a silencer. Mr. Holman told him that he “wasn’t into that anymore.” Three weeks prior to the murder, Milliken approached Mr. Holman again and a sked if he would help murder the defendant’s wife and

mo th er-in-law. He told Mr. Holman that they would go into the house and “make it look like it was a burglary,” and that he would “sp lit even”the $5,00 0 he was s upposed to be paid. Mr. Holman refused.-6-

Lane Locke, an inmate at the West Tennes see State Penitentiary, testified that he was the defendant’s cellmate at the Davids on County Crimina l Justice C enter f or appro ximately t

hree weeks. During that time, the defendant, who knew that Locke was formerly a police office r anda certified parale gal, discussed his case at great length because the defendant wanted to benefit from Locke’ s “legal knowledg e.” The

defenda nt descr ibed his ma

rital problems and t old Locke that he did not want to go throu gh anothe

r divorc e becau se he had “his life in order and felt like . . . a divorc e would wipe him out.” T

he defe ndant als o discusse d his rela tionship with Milliken , descri bin g himas a “big, dumb kid” who was a source of conflict between him and his wife . Based o n what the defendant told him, Locke stated that it appeared that the defendant “led Core y around quite a bit.”

Locke a lso testif ied that th

e defendant did

not want to

attend hi s wife’s funeral and that he
ne v er showed any remorse or emotion over his wife’s dea th. However, Locke testified that the defendant was ver y upset when he re

turned f rom his preliminary hearing. He quoted the defendant
as saying, “Shawn [Austin] is just as guilty as the rest of us, and he’s the only one that’s gonna get away with it. I can’t believe those idiots thought I was gonna pay them.”

Michael Street, a

noth er inmat e at the Criminal Justice Center, testified that the defendant askedhim if h e would “int imidate Corey Milliken or have him killed in one form or fashion,” because, as the defendant

said, “Co rey was the only

person that could put [him] in prison for the r est of [his] life.” The defendant told Street that he had hired anothe r inmate to “try to do it,” but the plan fell through. Stree

t refuse d the def

endant’ s reques t.
The State also

introduced letters between the defendant and Charles Randle, another inmate, in which the defendant

offered Randle money to harm or intimidate Milliken in jail. Evidence was introducedthat the defendant had obtained several hundred dollars in money ord

ers made payable to Charles Randle.

The State also

presented evidence indicating that the defe ndant wa s taking mo ney from his mother-in-law, Myrtle Wilson. Ms. Wilson’s son, Larry Wilson, testified that for over three years before the murders were committed, he ha d been investing and otherwise monitoring her finances totaling $83,000. A month before she was killed, his mother expressed concern that she “didn’t have the funds that she though t she shoul d.” Shortl

y after the murde

rs, Mr. W ilson was e

xamining h

is mother’s financial information, and he discovered a check written on June 10, 1997, made payable to the defenda

nt for four thousa

nd dollar s. He exp lained th at the ch eck was questiona

ble for several
reasons : first, the check was printed rather than handw ritten, and his mother never p rint ed her checks; second, the printing was “w ay too cle ar” to be his mother’s because she had grown “feeble” and her hand was “rather shaky” when she wrote; and finally, Ms. Wilson had recorded the amount for that c heck as forty

dollars, not four thousand.

Ad dit ionally, Doris Trott, the victims’ hairdresser since 1992, testified to several conversations she had with Ms. Wilson early in the fall of 1997, during which Ms. Wilson complainedthat

the defendant never repaid her any of the money that he often borrowed. Later that6 O n t he es pe ci al l y a gg ra va t ed r ob be ry co nv i ct i on , t he co ur t s en t en ce d the de fe nd an t t o l i fe i mpr i s on me n t withou t parole as a rep eat violent o ffende r, with the sen tence co nsecu tive to both death sen tences.
-7- fall, Ms. Wils on told Ms. T rott that t he defe ndant had asked he r to sign a ten-thou sand dolla

r lif e insurance policy, which she refused to do.

Evidence was also present ed rega rding the marital p roblems th at the defendant and Mrs. Stevens were having. In

Mrs. Steve

ns’s diar y, she de scribed

her unha ppiness in the marriage and her increa sing distru st

of her husband’s fidelity. Although she still lovedthe defendant, she wanted to “get out” of the marriage. William Byers, Sandi Stevens’s ex-husband, testified that he ta lked to her shortly before she died, and she told him that the defendant explicitly refuse d to gi ve h er a divorce. She also expressed her dislikefor Corey Milliken and described him as the source of many heated arguments between the defendant and her self. She wrote that he was the “wedge” driving her and the de

fendant apart.
The defense

present ed evide nce of Co rey Millik

en’s sex ual infa tuation with Sandi Stevens. Shawn Austin tes tified tha t his b rother told hi m that the d efenda nt had shown him pictur

es of his wife in lingeri e and in th

e nude, and that the defendant told Milliken that she wanted to have sex with both of them at the same time.

The defense theory was that Milliken committed sex ual mur der as an act of aggression precipitated

by an argument with his mother and step-father the night before the crime s. Milliken’s step-father, Billy Stevens (unrelated to the defendant), testified that he and Milliken did argue the nightbefore the crimes, and that at one point he “grabbed” Milliken a fter Milli ken “got s mart with his mother.” Milliken ran out of the house, but had returned home by the time Mr. Stevens left for work early the next morning. Mr. Stevens also testified that he and Milliken had argued in the past, and that o n severa

l occasi ons Millike

n had run out of the

house following an

argumen t.
As evidence that these murders involved a sexual component, the de fense introduced the te stimony of crime

scene e xpert, G regg McCrary. Mr . McCrar y testifie d that the

displa y o f pornogra phic m agaz ines around Mrs. Stevens could “best be interpreted as an a ttempt to further humiliate or degrade” the victim, which “goes to the motive of a sex crime.” He defined a sex crime
as primarily a crime of violence in which the perpetra tor uses sex to punish, humiliate, and degrade the victim.

Based upon the p

roof as s ummarized above, the jury f ound the d

efenda nt guilty of

two count s of premeditated first degree murder a nd one count of especially aggravated robbe ry. 6 Penalty P

hase The State first presented evidence of the defendant’s conviction in 1977 for second degree murder. The State

also presented as victim impact evidence the testimonies of the victims’ fami ly-8-

members, who each discussed the devastating effect of the murders of Myrtle Wilson and San d i Stevens on their lives.

In mitigation of

the sentenc e, the defense pr esented testimony f

rom the de

fendant ’s family members, co-wor

kers, and neighbo

rs. The d efenda nt was adopted into

a fami ly of five children. Chris Baumann, the defe

ndant’s s ister, te stified th at the defendant ha d a good childhood and was part of a “normal family.” She als o testified to the defendant’s close relationship with his son, John. Robert Rasmus, the defendant’s foster brother, a lso testified to the “great family upbringing” that all five childrenenjoyed. He further stated that the defenda nthad done

a wonder ful job ra ising his
son John, and that he was proud of how the defendant had turned his life around after his first conviction in 1977. On cross-examination, Mr. Rasmus admitted that the defendant had also been convicted of felony escape during his incarc eration for second degree murder

. Vickie Stevens, the defendant’s ex-wife, testified that the def endant was a good husband and father during most of their marriage. After the divorce , he made

all of his c

hild support pa

yments and remained a loving and supportive father. She also expressed her wish that the defendant be spared the death penalty for the sake of the ir son. Roger Cooper, the sales manager of a mobile home company, testified that he employed the defendant in 1989 for approximately one year. During that time, he knew the de fendant to be a

hardworking and dedicated employee, and he trusted the defendant enough to give him a keyto his own home.

Several of the defendant’s neighbors testified to how helpful the defe ndant was to othe

rs in the community. Specific ally, the defenda nt loaned money tohis neighbors, checked in on neighbors who were elderly , sick, or

alone, a nd volunta

rily fixe d their tr

ailers w ithout req

uiring pa yment.
At the close of the proof, the jury was instructed on the following statutor y aggravating circumstances for each

of the two counts of murder: (1) the defendant was pre viously convicted of the felony of second degree murder; and ( 2) the defendant employed another to commit the murders of his wife and mother-in-law for the pro mise of remuner ation. The

jury was a

lso instructed to consider all m itigating evidenc e, includ ing the defendant ’s work h istory, the

defenda nt’s fami ly history and close familial relationships, his positive role in the community, any other aspect of the defendant’s backgro

und, cha racter , or rec ord, and

any aspe ct o f the circumst ances of the offe nse favorable to the defendant and supported by the e vidence.

The jury found that

the State had proven the two statutory aggravating circumstances be yond
a reasonable doubt and that these two aggravating circ umstances outweighed the mitigating circumstances beyond a reasonable doubt. Consequently, on July 23, 1999, the defendant was sentenced to death for each of the two murder con victions. Th e trial c ourt ente red a jud gment in accordance

with the ju

ry’s ver dict, and the Court o f Criminal

Appeals affirmed the defendant’s convictions and his sentences of death.7 See Tenn . Code Ann . § 39-1 3-20 6(a)(1) (1 997 ) (“W hene ver the d eath pen alty is impo sed for first degree

murder and when the judgment has become final in t he tr ial court , t he defendant shal l have the right of di rect appeal from the tri al c ourt to the c ourt of cri minal a ppeals . The af fir mance of t he convi cti on and the sen tence of de ath shall be autom aticall y reviewed b y the Tenn essee supreme co urt.”).
-9- The case was automatically docketed in this Court for review of the death se ntences

. 7 We requested additional briefing and argument on the following issues: (1) whether the trial court erred in limiting the testimony of defendant’s crime scene expert, Gregg Mc Crary, to his analysis of the evidence found at the crime scene; (2) whether the trial cou rt abuse d its discr

etion in excluding the testimony of Barry

Morris, Co

rey Milli ken’ s former foster parent, regarding Milliken’s prior ba d acts; (3) whether the trial court violated the defe ndant’s c onstitution al right to present a defense by failing to apply the hears ay and oth er evide ntiary ru les in an even-handed

manner; and (4) whether the death se

ntence i s an excessive and disproportionate punishment given the nature of the defendant and the circumstances of this case.

After reviewing the record and considering the issues ra ised by the defendant, we f ind n o revers ible err

or and af firm the j udgment of

the trial court and of the Court of Cri minal Appe als.
I. NON-SCIENTIFIC EXPERT TESTIMONY

The defenda

nt first contends that the trial court erred when it refuse d to allow crime scene investigator, Gregg McCrary, to testify to the behavior and motivation of the offender based

on his analysis of the physical evidence fo und at the crime scene. The defense off ered Mr. McCrary’s testimony to prove t

hat Mi ll iken committed sexually motivated murder as a violent response to a fight with his mother and step-father just hours before the crime.

In a jury-out hearing, Mr. McCr ary testified that he had worked as a specia l agent for the Federal Bureau of Investigation (FBI) for approximately twenty-five ye ars. During tha t ti me, he took several graduate courses in criminal justice, and he received a Master’s degree in Psychological Service s. He served his last ten years with the F B I in the Behavioral Science Unit, investigating
cases and conducting research on violent criminal behavior to improve the oper ational e ffectiv eness of the law enforcement community. He receive d basic andadvanced training in crime analysis, and he also received training in sex crimes investigations, becoming an FBI expert in this field of law enforc ement. Moreover, Mr. McCrary testified that as an FBI agent , he participated in the investigation of over a

thousand c ases, mos t of which were “ se xually violent” homicides. At the time of th e trial, h e had retired from the FBI and was curre ntly managing his own consulting business in behavioral criminology.

Mr. McCrary had been contacted by the defense to conduc t a

criminal investigation of the crime scene in this case. He explained that the FBI used criminal investigative analysis to discern the probable motive of the criminal by analyzing the evidence f ound at the crime scene “ primaril y8 Mr. McCr ar y di stin gui sh ed t he u se of beh avi or al ana ly si s, whi ch d et er min es th e pr oba bl e mot iv e of a k nown suspec t, from the use of profi li ng, whic h dete rmines the phys ical charac ter ist

ics and per so nal it

y t ra it s o f a n un kno wn susp ect.
9 Accordi ng to Mr. M cCrary , a “bli tz at tack” i s “an immediate appli cati on of an injuri ous physical force.

. . . [T]h e attack is sudd en. T here is no lea ding up to the attac k.” H e com pare d this to those sit uations i n which
an argument a ris es between the vi cti m and the off ender t hat s tar ts with pus hing, shovi ng, s lappi ng, and hit ti ng, and may escala te to a ho mic ide. In a blitz atta ck, h ow eve r, “ther e is no ne o f that an teced ent b eha vior . It sta rts with t he imm ediate attack on th e victim with out a ny– any build up o r any of tha t antec ede nt be hav ior.”
-10- from a behavioral pe

rspectiv e, looking

at what th

e offender has d

one in the commission

of the cr ime to understand the potential motive for the crime as well.” 8

In this case, Mr. McCrary reviewed the cr ime scene photos, the medic al examin er’s re port, Mrs. Stevens’s diary, and a video tape of the crime scene. Howeve r, he specifically asked not to be given any information on the suspect so as to be

able to pr ovide an o

bjective analysis . Based on

his review of this evidence, Mr. McCrary categorize d the crime scene in this case as a “di sorgan ized sexual homicide scene.” He explained that in a disorga nized scene,

the victim and location are known to the offender; . . . there is minimal conversa tion,
a minimal interpersonal conflic t–contact betwee n the vict imand the offender during the course o f the cr

ime. It’susually

a blitz attack 9 or a sudden violence that’s used. The crime sceneis quite sloppy and in great disarray. There isminimal use of r estraints. The sexual acts tend to occur after de ath; so, there is pos t-morte m injury to the victim . . . indication of post-mortem sexual activity. The body is left at the death scene . . . and is typically left in view. There’s
a good dea l of physic al evide

nce that ’s–that’ s left at t

he scene . And, any

time just a weapon of opportun ity t hat the of fender uses, and by that, I mean a w eapon tha

t is containedat the scene, uses it and, then, it’s not uncommon for the offender to leave that weapon either at or near–near the scene.

Mr. McCrary testified that criminals usually commit disorganized violent crimes as a

result of some “precipitating stresser, [or] stressful event” in the criminal’s life. Such an event invokes a lot of anger in the offender, and that anger–transfe rred onto the victim–tri ggers this violent behavior. Moreover, he state d that it wa s common in disorgan ized sce nes to fin d evid enc e of post-mortem sexual activity, including insertion of a foreign object.

In contras t to his desc

rip tio n of a disorganized crime scene, Mr. McCra ry testified to the characteristics of a typical contract murder crime sce ne. Usually, the offender

spends ve ry little time at the crime

scene. A firear m is normally the wea

pon of ch oic e, and the “kills are quick [and the offender is] out of

there . . . right after the murders are c ommitted.” However, hetestified that the perpetrator

in this case spent a fair amount of time at the crime scene “ trashing” the place to make10 Mr. McC ra ry de fi ne d “ s t ag i ng ” a s “t he pu rp os ef

ul al t er at i on of t he cr i me o r cr i me scene by the offender to provide a fal se moti ve for inves ti gator s, which wil l t ake t he focus off t hat pa rti cular

kil ler and onto .

. . a non-exi ste nt offe nde r.”
-11- it look like

a burgla ry or a “ for prof

it” motive. 10 Mr. McCrary also testified to the possibility that
more than one p erpetr

ator com mitted the se murders based on the use of different murder we apons and the lack of blood transference on se veral items throughout the trailer.

On cross-examination, Mr. McCrary testified that the FBI had cond ucted astudy to determine the accuracy r

ate of itscrime sc ene ana

lysis. The

results of that study yielded aseventyfive to eighty percent acc uracy r ate. He present ed as fur ther evi dence o f the reliability o f crime
scene analysis the FBI’s increased number of trained agent s in this field from seven to forty. Although Mr. McCrary acknowledged that crime sce ne analysis “is not hard science where you can do controlled experiments and come up w ith ratiosin all this,” he said th at “the p roof [th at] ther

e is validation and reliability in the process is that it’s being accepted. It’s being used and the de mand is just outstripping our resources to provide it.”

At the close

of the jur

y-out off er of pr oof, the t rial cou rt f ound that Mr. M cCrary had demonstratedexpertise in his ability to analyze the evidence found at the crime scene, and therefore he was permitted to testif y to the staging of the crime scene, to any omissions in the police investigation, and to the possibility that the homicides were committed by more than oneoffender. However, the court refused to admit any testimony indicating an interpretation of

criminal behavior, including Mr. McCrary’s description of the characte ristics of a typical contract murder crime sce ne and his opinion regarding what motivatedthe killer in this case. Although the court deemed such evidence to be “spec ialized knowledge” and a “tremendous asset as an inve stigation tool in law enforcement,” the court de termined that such evidenc e did not c omply with Ru le 702 “in terms of substantia lly assisting the [trier] of fact because there is no trustworthines s or relia bility.” I n its order denying the defendant’s motion for a new trial, the trial court stated that it was not “c onvinced that thi s type of analysis has been subject to adequate objective testing, or that it is based upon longstanding, reliable, scientific principles.”

The Court

of Crimina

l Appealsaffirmed the trial court’s decision and held that the factors set f orth in McDaniel v. CSX Transportation, Inc. , 955 S.W.2d 257, 264-65 (Tenn. 1997), are applica ble not only

to scientific evidence, but also to “te

chnical ” or “specialize d” knowle dge as we ll. Citing the United States Supreme Court’s decision in Kumho Tire Co. v. Carmichael , 526 U.S. 137, 150 (1999) (holding that trial courts may consider the Daubert factor s to determine the reliability of nonscien tific expert testimony), the i nterm ediate c ourt conc luded tha t despite t

he nonsc ientific evi dence at issue, the trial court did not apply an incorrect legal standard by looking to McDanie l to determine the reliability o f th is expert testimony. The issues now before us are whether nonscien tific expert testimony must not only meet the fundamental requi r ement of relevance, but
a lso th e requirement of reliability, and, if so, whether or how McDaniel applies when making an assessment of reliability.11 Tenn essee Ru le of Ev idence 702 prov ides: If scientifi c, technical, or other s pecialized knowledg e will substanti ally assi st the trier of fact t o underst and the e vidence or to determine a fa ct i n issue, a witness qualif ied as an exper t by knowledge, skil l, exper ience, trai ning, or educat ion may testi fy in t he form of an opinion or other wise.

Ten nessee R ule of E viden ce 703 prov ides:

The facts or data in t

he particular case upon wh ich an expert bases an opini on or i nfere nce may be those perc eived by o r m ade kno wn to the e xpe rt at or befor e the hea ring . If of a ty pe re ason ably reli ed upo n by exp erts in the part icular fiel d in forming opinions or inference s upon the s ubject , t he facts or data need not be a dmissi ble i n evide nce. The court shal l di sal low te sti mony in the f orm of an op inion or in ference if the und erlying fac ts or data indica te lack of trustw orthiness.
-12- Questions regarding the qualifications, admissibility, relevancy, and competency of expert testimony are matters left within the broad discretion of the trial court. See McDaniel , 955 S.W.2d at 263-64; State v. Ballard , 855 S.W.2d 557, 562 (Tenn. 1993). On appellate review, the trial cour t’s ruling shall notbe overturned absent a finding that the trial court abused its discre tion in admitting or excluding the expert testimony. Ballard , 855 S.W.2d at 562. “[ A]n appe

llate cou rt should find
an ab use of dis cretion when it appears that the trial court applied an incor rect legal standard, or reached a decisi on which i s against logic or r

easoning that cau sed an inj ustice to t he party complaining.” State v. Shuck , 953 S.W.2d 662, 669 (Tenn. 1997).

Reliability Determination of Nonscientific Evidence

In Daubert v. Merrell Dow Pharmaceuticals, Inc

. , 509 U.S. 5 79 (1993) , the United St ate s Supreme court held that Fede

ral Rule o f Evidenc e 702 impos es a “gatekeeping” obligation on the trial court to “ensure that any and all scientific testimony . . . is not only relevant, but reliable.” Id. at 589. Several

years la ter in McDaniel v. CSX Transportation, Inc. , 955 S.W.2d 257 (Tenn. 1997), this Court addressed the admissibility of scientific evidence under Tennessee Rules of Evidence 702 and 703 11 and, citing Daubert , similarly held thatevidence and expe rt testimon

y regar ding scie ntific theory must be bot

h releva nt and re liable be fore it could be admitted. McDaniel , 955 S.W.2d at 265. We also listed several nonexclusive factors that courts could consider in deter mining the r

eliability of scientific expert testimony, including (1) whether the scientific evidenc e has been tested and the methodology with whi ch it has been tested; (2) whether the evidence ha s been subjected to peer review or publication; (3) whether a potential rate of err or is known; (4) whether the evide nce is genera lly accepted in the scientific community; and (5) whether the expert’s resea rch in the field has been conducted independent of litigation. Id.

The testimony a

t issue in th

is case, however , is not base d on scientific theory and methodology, but rather, is based on nons c ientific “specialized knowledge,” that is, the exper t’s experience. See Simmons v. Sta te , 797 So. 2d 1134, 1151 (Ala. Crim. App. 1999) (“Crime-scene analysis , which involves the gathering and analysis of physical evidence, is generally recogniz ed as
a body of specialized k

nowledge .”); s ee also United States v. Meeks , 35 M.J. 64 , 68 (C.A. A.F. 1992). The tria

l court c orrect

ly reaso ned that s uch nonsc ientific testimony m

ust stil l m eet the fundamental requirements of relevance and r eliability. Indeed, nothing in the language of Rules 702-13-

and 703 suggests that sci ent ific testimony should be treated any differently than expert opinions basedon technical or nonscientific specialized knowledge. “If the mention of scientific knowledge suffices to mandate reliability standa rds for s c ientific testimony, a fortiori the mention of nonscien tific expert knowledgeshould com pel the c ourts toseek to formulate reliability standards for that type of expert evidence as wel l.” Edward J. Imwinkelreid, The Next Step After Daubert : Developing a Similarly Epistemological Approac h to Ensu ring the Re liability o f Nonscie

ntific Expert Testimony , 15 Cardozo L. Rev. 2271, 2281 (1994).

In this case, the trial court found that Mr. McCrary’s testimony failed to pass the McDaniel test of scientific reliability. The defendant argues that the trial court erred in applying McDaniel in this case because McDaniel applies only to scientifi c testimony. Mr. McCrary’s testimony, on the other hand, was based on his extensive experience a s a former agent with the FBI, hi s trainin g in crime scene a nalysis, a

nd his persona

l i nvestiga

tion of ove

r a thousa

nd violent

crimes. C onsequently, the defendant argues, such testimony, which would have substantially assisted th e trier of fact to under stand what motivated Milliken to commit these crimes, should have been admitted under Rule 702 simply by virtue of the witness’s experience, training, and educ ation.

We agree with the de

fendant ’s asser

tion that not all disci

plines ar e amena ble to emp ir ica l verification but may nevertheless substantially assist the trier of fact. Consequently, we are reluctant to measure

the relia bility of e xpert t estimony t hat is not based on scientific methodology under a rigid application of the McDaniel factors. However, we are equally r eluctan t to admit no nscientif

ic expert testimony based on an unch allenged acceptance of the e xpert’s qualifications and an unquestioned reliance on the accuracy of the data supporting the expert’s conclusions.

In resolving the evidentiary issue bef ore us, the United States Supreme Court’s recent decision in Kumho Tire Co. v. Carmichael , 526 U.S. 137, 147 (1999), provides useful guidance. In that case, the Supreme Court was asked to determine whethe r a trial court “may” consider Daubert ’s factors when determining the admissibil ity of an engin eering expert’s testimony based on specialized knowledge. The Court

first hel d that Daubert ’s “gate keeping o bligation, ” requir

ing an inqu

iry into boththe relevance and the reliability of the evidenc e, applies not only t o expert te stimony characterized

as scien tific, but to all e xpert tes timony. See Kumho Tire Co. , 526 U.S. at 147. Moreover, the Courtconcluded that when assessing the reliability of nonscientific expert testimony, the trial court may consider t he D aubert

factors “where they are r easonable measures of the reliability of expert testimony.” Id. at 152. However, the Court cautioned that the

“factors identified in Dau bert may ormay not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular expertise, and the subject of his testimony.” The conclusion, in our view, is that we can neither r

ule out, nor rulein, for a

ll cases a nd for all time the a

pplicabi lity of the

factor s mentione d in Daubert , nor can we now do so for subsets of cases categorized by category of expert
or by kind of

evidence. Too much depends upon the particular c ircumstances of the particular case at issue.-14-

Id. at 150 (c itations om

i tted ). The Cou

rt concl uded that the trial court ma intains “c onsidera

ble leeway” in deciding whether to consider the specific factors in Daubert “as reasonable measures of the reliability of expert testimony.” Id. at 152.

We find this analysis reasonable, and consequently, we reject the defendant’s argume nt that McDaniel applies o nly to scientific testimony. Distinguishing scientific evidence from other areas of expert t estimony istoo diffic

ult a dete rmi na tion in many instances. Consequently, to restrict McDaniel to scientific evidence w ould be to impose upon the trial court the undue burden of classifying the legions of

expert witnesses as scientif ic or nons cientifi c. We do not believe that Rul e 702 “crea

tes a schematism th at segregates expertise by type while mapping cer tain kinds of questions to certa

in kinds of

experts.” Kumho Tire Co. , 526 U.S. at 151. Accordingly, we hold that the McDaniel factor s may apply, subject to the discretion of the trial court, “as reasonable measures of the reliability” of all expert testimony described in Rule 702.

In properly exercising its discretion, the trial court must first make a determination that the witness is qualified by knowledge, skill, experience, training, or education to expre ss an opinion within the limits of

the expert’s expertise. Tenn. R. Evid. 702. The determinative factor is whether the witness’s qualifications authorize him or her to give an informed opinion on the subject at issue

. See, e.g. , United States v. Starzecpyzel , 880 F. Supp. 1027, 1043 (S.D.N.Y. 1995) (presenting as an example of unrel iable an d inadmissi

ble evide nce the t estimony o f a wee

kend rec reation al sa ilor professing ex pertise a s a harbo r pilot); see also Wilson v. Woods , 163 F.3d 935, 937-38 (5th Cir. 1999) (finding an expert in fire reconstruction unqualified as a n ex pert in aut o accident reconstruction).

The trial court must next ensure that the basis for the witness’s opinion, i.e. , testing, research, studies, or exper

ience- based ob servatio ns, adeq uately su pport s that expert’s conclusions. For example, in General Electric Co. v. Joiner , 5 22 U.S. 136 (1997), Joiner, an electrician diagnosed withsmall-cell lung cancer , introduc ed expe rt testimon

y to demonstrate that his workplace exposure to certain chemica ls and othe

r toxins c ontribute d to his dise ase. The experts , in giv ing thei r opinions, cited to se

veral s tudies that wer

e either so dissimila

r to the fa cts of the case or failed to make the requisite

link between canc er and chemical e xposure. The Supre

me Court he

ld that t h e studies relied on were an insufficient basis for the expe rt opinions and, therefore, the testimony was inadmissible. In so holding, the Court said, [N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence whichis connected to existing data only by the ipse dixit of the expe rt. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffere d.

Id. at 146.

This “connection” between the expert’s conclusion and the underlying data supportingthat conclusion is of especial importance when determin ing the reliability of experience-based testimony,12 Th e follo win g w ell-kn ow n hy poth etical d em ons trates o ur p oint:
[I]f one wanted to prove t

hat bumble bees a lways t ake off in to the win d, a b eek eep er w ith no sc ientific tra ini ng at all would be an a cceptab le expert w itness if a proper found ation we re laid f or h is
conc lusions. The foundat ion would not rel ate to hi s for mal tr aini ng, but to his firsthand o bserva tions. In other words, the beekeepe r does not know any more about fli ght pri ncipl es than the juror s, but he has seen a l ot more bumb lebees t han they have.
Berry v. City of D etroit , 25 F.3d 134 2, 1350 (6th C ir. 1994) (emph asis in ori ginal). The basis for the beekeeper’s opini on is his experi ence obs ervi ng bees. In det ermini ng whether thi s expert’ s tes timony is re liabl e, the tri al court can look at t he connect ion bet ween the be ekeeper ’s obs ervations and h is conclusio ns extrap olated from these ob servations. The conclu sions sho uld be su fficiently straightforw ard to assist the jury’s un derstand ing of the take-off h abits of bee s. “Th e straig htfo rwa rd ch aracte r of th e testim ony is essen tial to its reliab ility bec ause it perm its the jury to unders tand, and thus w eigh , the be eke epe r’s co nclu sion w ithou t the ne cessity of an exp lanatio n of the scie ntific pri nciples that account for bees always taking off into t he wind.” J. Bro ok L athra m, The “Same Intellect ual Rigor” Test

Provides an Effect ive Method for Det ermini ng the R eliability of A ll ExpertTest imony, Wit hout Regar d to Whether the Tes ti mony Comp rise s “Scienti fic Knowledge” or “Technical or Other Special ized Knowledge” , 2 8 U. Mem. L. Rev. 1053, 1066-67 (19 98)

. 13 Sim ilarly, in State v. Roquem ore , 620 N.E.2d 110, 113 -14 (Ohio C t. App. 1993), the exp ert witness, also
a crim e scen e ana lyst, cla ssi fie d cri me scene ass essment as part of a la rger “ profi li ng” revi ew. He des cri bed “prof il ing” (con tinue d...)
-15- because observations and experiences are not easily verifiable by the court. However, the court may make a finding

of relia bility if the

expert’ s conclus i ons are sufficie ntly str aightforward and supported by a “rational explanation which reasonable [ persons] could accept as more correct than not correct.” Wood v. Stihl , 705 F.2d 1101, 1107-08 (9th Cir. 1983). 12 Consequently, wh en the exp ert’s reliability is challenged, the court may consider the following nondefinitive factors: (1) the McDaniel factor s, when they are reasonable measur es of the reliabil ity of expert

testimony; (2) the expert’s qualifications for testifying on the subject at issue; and (3) the straightforward connection between the expert’s knowledge and the basis for the opinion such that no “a

nalytica l gap” ex ists between the da

ta and the opin ion offered. Subject to the trial court’s discreti on, once

the evide nce is ad mitted, “it will th ereafter b e tested with the crucible of vigorous cross-examination and countervailing proof.” McDaniel , 955 S.W.2d at 265.

Inadmissi bility of Be havioral Cr

ime Sce ne Analy

sis Turning to the facts in this case, we cannot conclude that the trial court

erred i n refusi ng to admit Mr. McCrary’s expert opinion regarding the behavior of the perpetrator

of these cr imes. This type of crime

scene a nalysis, developed by the FBI as a means of criminal investigation, relies on the expert’ s subject

ive judgme

nt to draw conclusions as to the type of individualwho commit

ted this crime based on the physical evidence found at the crime sc ene. Althou gh w e do not doubt the usefulne ss of behavioral analysis to assist law enforcement officials in their criminal investiga tions,
we ca nnot allow an individual’s guilt or innocence to be determined by such “opinion e videnc e connected

to existing data only by the ipse dixit ” of the e xpert. 13 Essentially, the jury is encouraged13 (.

.. conti nued)

as bas ically a method of examinat ion whi ch looks at the i ssue of motive . It ti es t o cri me scene
assessm ent, which basically exam ines the evidence set fo rth or t he evidence known, which may incl ude the pho tograp hs, the auto psy rep orts, the pol ice report s, avail able infor mation, and then one analyzes that

based on pr obabil it y for pa tt ern i n ter ms of developm ent. Is t

here a sequence, is there
an ord er, is that c onsist ent with what has ge ne ra l l y b ee n e s t ab l i s he d a s r ec og ni ze d p at t er ns i n c ri me behavior?

Id. at 11 4 ( emp ha s i s ad de d)

. Th e c ou rt he l d tha t t he t es t i mon y s ho ul d h av e b ee n e xc l ud ed be ca us e, amo ng o ther
reason s, “ther e is little indic ation in the r eco rd tha t [pro files] can be sa id to be re liable for the purpose s for which they were used by the st ate i n the ins tant ca se.” Id. (citat ions omitted).
-16- to conclude that because this crime scene has been identified by an expert to exhibit certain patterns
or telltale clues co nsistent w ith previo us sexual homi cides triggered by “preci pitating stressors,” then it is more tha

n likely that this crime was similarly motivated. Cf. State v. Ballard , 855 S.W.2d 557, 561 (Tenn. 1993) (rejecting as unreliable expe rt testimony concerning pers onality profiles of sexually abused children). Indeed, Mr. McCrary himself acknowledged that his analysis involves
some d egree of

speculation, and he further negated the suffic iency of his own analysis when he conceded that each case is “unique” and that crim inals are often dr iven by an

y number o f motives.
Moreover, we find that

the FBI’s s tudy reve aling a se venty-f ive to eighty percent accuracy rate for crime scene analysis lacks suffi cient tru st worthine ss to const itute evid

ence of this technique’s reliability. Although the frequency with which a technique lea ds to accurate or erroneous results is certa

inly one important factor to determine reliability, equally important is the method for determining that rate of accuracy or error. In

this case , there i s no testimo ny regar ding how th

e FBI determinedthe accuracy rate of this analysis. For example, was accuracy determined by c onfessions
or convictions, or both? Even then, the absence of a co nfession do es not indicate the offender’s innocence and thus an inaccuracy in the technique. Clearly, the a ccuracy rate alone, w ithout any explanation of the methodologies used in the study, is insufficient to serve as the foundation for the admission of this testimony.
Therefore, becaus e the b ehavioral analysis portion of Mr. McCrary’s testimony does not bear sufficient indicia of reliability to substantially assist the trier of fact, we conclude that this testimony was properly excluded.

II. EVIDEN CE OF PRIOR BAD ACTS OF

A NON-PA RTY WITNESS

The defendant next argu es tha t the tria l court a bused its d

iscretio n when it im

properl y excluded the testimony of Barry Morris, Milliken’ s former foster p arent. T

he defe nse sough

t to introduce this testimony to corroborate the defendant’s theory that Milliken committed the murders
as a violent

reactio n to an ar

gument t hat Milliken h ad with his mother and step-father the night before the crimes.14 Rule 40 4(b) p rovide s: Evidence of ot her cr imes, wrongs, or act s i s notadmiss ibl e to pr ove the character of a person i n order to show actio n in conformity wit h the charact er tr ait. It may, however, be admiss ible f or other purposes. The condit

ions which must be sat isfi ed before all owing such evidence are: (1) The court upon request must hold a heari ng outside t he jury’s presence; (2) The cou rt must det ermine that a m aterial issu e exists o ther th an co ndu ct con form ing w ith
a character

trai t and mu st u pon reques t s tat e on the recor d the mat eri al i ssue, the r uli ng, and t

he
reas ons for

admitt ing the evi dence; and (3) The c ourt m ust exclude the evi dence if i ts probative value i s outweighed by the danger of unfair pr ejudice.
-17- Mr. Morr is testified in a jury -out off er of pr oof that in

1996 he ha

d been Milliken’s f

ost e r parent. On several occasions during the course of that ye ar, Milliken would argue with his mother
over the telephone and then vent his frustration by throwing things an d damaging furniture. Although Milliken never

physically assaulted anyone, Mr. Morris stated that Milliken had warned him once or twice to be careful when he w ent to sleep.

The trial court rejected the proposed testimony, finding such testimony inadmissible under Tennessee Rule of Evidence 404(b) because it showed Milliken’s propensity for violenc e after argumen ts with his pa

rents. 14 The inter

mediate court affirmed the trial court’s decision, holding that such evidence was propensity evidence prohibited by Rule 404(b) a nd further concluding that any connection between Milliken’s violent behavior in 1995-1996 and the murders in 1997 “issimply too tenuous” and therefore, irreleva nt to Milliken’s motive for murd ering Mrs. Steve ns and Ms. Wilson.

It is well established that in a criminal trial, evi dence of a defendant’s prior misc onduct is inadmissib le to establi sh the accused’s bad character or criminal propensity. See State v. Mallard , 40 S.W.3d 473, 480 (T enn. 2001 ); St ate v. Parton , 694 S.W.2 d 299, 302 (Tenn. 198 5); Mays v. State , 145 Tenn. 118, 140- 41, 238 S. W. 1096, 1102 (1921); see also Tenn. R. Evid. 404(b). The freque ntly enuncia

ted ratio nale for

this rule i s that evid

ence of other cr imes “ ma y tend to c onfuse the jurors, predispose them to a belief in the defendant’s guilt or prejudice their minds against the defendant.” Sessoms v. St ate , 744 A.2d 9, 15 (Md. 2000) (citations omitted).
However, in this cas e, the ev idence a t issue invo lves previous “cr imes, wro ngs, or ba

d acts” committed by one other

than the defendant. Such evidence clear ly was not being offered

to show that the defe ndant had a crimina

l disp osit ion and tha

t he could

be expe cted to a

ct in conf ormity therewith, but w as instead offered by the defendant to show that Milliken committed the murders outof anger, and not because he had been hired to do so by th

e defendant. Bec ause

there is n o risk of prejudic e to the de

fendant , Rule 404(

b) is inap plicable in th i s situation. Indeed, this Court recent ly held in State v. D uBose , “Evidence of crimes, wrongs or acts, if relevant, [is] not excluded by Rule 404(b) if [the acts] were committed by a person other than the accused.” 953 S.W.2d 649, 653 (Tenn. 1997).-18-

Neverth eless, while the court

erred in excluding this testimony, we look at the effect of that error on the trial by evaluating that error in light of all of the other proof introduced at trial. State
v. Gilliland , 22 S.W.3d 266, 274 (Tenn. 2000). “Themore the proof exceeds that which is necessary to support a finding of guilt beyond a reasonable doubt, the less likely it becomes that an er ro r affirmatively affected the outcome of the trial on its merits.” Id.

The record

in this cas e contains subst a ntial, indeed overwhelming, evidence of the defendant’s guilt. Acc ording to t he State’ s theory, the defe ndant hir ed his eighteen ye ar-old neighbor, Corey Milliken, to murder his wife and mother-in-law. The evidence clea rly showed that the defendant

was having marital problems but refused to go through another divorce. He had also been taking substantial sums of money from his mother-in-law, and he believed that he wo

uld inher it
a portion of t he procee ds from her life insurance policy. Several witnesses testified a bout the d efendant’s extensiv e plannin g for the commission

of the mur

ders. Sha

wn Austin, Millik en’ s brother, who had also been asked to assist in the murders but refused, tes tified t hat the defendant took Milliken on a tour of

the trailer to show him what to do to make the crimes look like they were committed in furthe

rance o f a burgl ary. The

defenda nt instruc ted Millike

n to shootthe victims, but if he could not acquirea gun, he was to use a knife from the defendant’s tra iler. Chris Holman, one of Milliken’s friends testified that Milliken asked him if he could finda gun with a silencer; when he refused to do so, Milliken explained his purpose for the request and off ered to “spl it even” the money if he helped

murder the victims. Milliken’s girlfriend also testified that the defendant offered to pay Mil liken five thousand dollars, and she stated that she was supposed to provide Milliken’s alibi once the murders were completed. Finally, Lane Loc ke, the defendant’s former ce llmate , testified that the d

efenda nt frequ ently discussed his case with him, and he quoted the defendant as saying, “I can’t believe those idiots thought I was going to pay them.” The defendant pre sented no evidence refuting these allegations.

We have long recognized that “‘the line betwee n harmless andprejudicial error is in direct proportion to the degree . . . by which proof exceeds the standard required to convict . . . .’” Spicer
v. State , 12 S.W.3d 438, 447-48 (Te nn. 2000) (citation omitted). After considering the overwhelming evidence o f t he defendant’s participation in these murders, we c onclude that the exclusion of Barry

Morris’stestimo ny regarding Milliken’s ten dency to become violent after arguing withhis mother

did not af

firmativ ely aff

ect the outcome

of the trial on its merits. Accordingly, the error isharmless

. III. APPLI CATION OF EV IDENTIARY

RULES

The defendant next argues that the trial court ap plied hea rsay and other evidentiar

y rules in
an unfair and biased manner, which the reby den ied the de fendant his due pr

ocess ri ght to present

a15 The Sta te c ontends that thi s i ssue is waived bec ause t he defenda nt did not

incl ude thi s cl aim in hi s moti on for a new trial. Alth oug h w e agr ee w ith the S tate, in the i nter est of “enha nc[i ng] .

. . the s earch f or just ice, ” Johnson v. H ardin , 926 S.W .2d 2 36, 2 39 ( Ten n. 19 96) , we e lect to d ecide this is sue on t he me rits pur suan t to Te nne ssee R ule of Appell ate Procedur e 2: For good cause , i ncludi ng the i nter est of expedi ti ng deci sion upon any matt er, the Sup re me Court . . . may susp end the req uirem ents o r pro visio ns of any of thes e rul es i n a part icul ar cas e on motion of

a par ty or o n its m otion and ma y or der p roce edin gs in a cco rdan ce w ith it s di scre ti on, exce pt that this rule shall n ot pe rm it the ex tensio n of time for filing a no tice of a ppe al pre scribe d in Ru le 4,
an app lication for p erm ission to app eal pr escrib ed in Ru le 11, o r a pe tition fo r revie w p rescrib ed in Rule 12.

16 W e reitera te the w ell-estab lished rule th at a tri al c ourt r uli ng excl uding evi dence may not be chal lenged on appeal “unless a substant ial right o f the p arty is af fected ” and an o ffer o f pro of is co ntain ed in the r ecord. Tenn. R. Evid. 103(a)(2). The purpose of an of fer i s t wo-fold: Fir st, the pro of m ust de mo nstrate the subst ance, purpose, and relevance of the e xcluded evidenc e to “inform[] t he t rial cou rt wh at the p arty in tend s to pro ve so that the cou rt ma y ru le intellige ntly.” Alley v. State , 882 S. W.2d 810, 815 (Tenn. Crim. Ap p. 1994). Second, an offer “create s a record s o that an ap pellate cou rt can deter min e w heth er the re w as rev ersible error in excluding the evidence.” Id. ; see also Stat e v. Goad , 707 S.W.2d 846, 852-53 (Tenn. 1986) (“ When [exclude d evide nce] cons ist s of oral testim ony , it is essent ial that
a prop er off er of p roo f be m ade in ord er tha t the ap pellate cou rt can deter min e w heth er or n ot e xcl us io n wa s reversible.”).
-19- complete defense at trial. 15 He points to six specific instances of alleged judicial misconduct. We shall consider each incident separately.
Testimony

of Doris Trot

t
The defenda

nt’s firs tperceived trial court bias in favor of the State involves the testimony of the State ’s witnes s Doris Tr ott, Ms. Wilson’s hairdresser. The defendant ar gues that the State was allowedto eli cit “state of mind” hearsay testimony, Tenn. R. Evid. 803(3), over the defenda nt’s objection, but when the defendant sought to elicit similar testimony on cross-examination, the trial court unfairly sustained the State’s hearsay objection. 16

The defenda

nt sought to

elicit te stimony fr

om this witne ss regarding wh ether Ms. Wilson had
ever expressed concern about Corey Milliken making sexual comments and gestures in the presence of Ms. Wilson and her daughter, Mrs. Stevens. The State raised a hea rsay objection. During a bench conference, the defenda

ntargued that such testimony should be allowed to show Milliken’s intent to commit rape.

We disagre e with

the defendant’s argument that the trialcourt’s ruling was improper or onesided. After careful review of the record, we find that the trial court gave defense counsel numerous opportunities during his offer of proo f to demonstrate the admissibility of the excluded evidence. For instance, when counsel argued that Ms. Wilson’s statement went “to the theor y of the crime . . . Milliken’s intent to rape these two women,” the trial court said, “[T]he hearsay exception is the declarant’s intent, or motive, [Tenn. R. Evid. 803(3)], no t C orey Milli ken’s. I ’m trying t

o follow your reasoning for it coming in.” Defense counsel concluded the conference by insisting that-20-

“it’s a hearsay exception cause it shows the intent of Corey Milliken when he went in there . . .was to rape the se women .” Clear ly, the defendant

sought to in

troduce this evidenc e not to prove Myr tle Wilson’s state of m

ind, but Cor

ey Millike

n’s state of mind. Th

is testi mony do es not fit within a hearsay excepti on and wa s proper ly exclud ed at t rial. Co nsequently, the hearsay objection was correctly sustained.

Excluded Testimony Indicating Milliken’s Independent Motive for Murder

The defendant next complains that the tr ial cour t acted u nfairly in prohibiting the defendant from eliciting statemen

ts on cros s-examin ation tha t tended t o show Milliken’s independent motive for committing murder. First, the defendant suggests that the trial court erred in refusing to allow the cross-e

xaminatio n of Shawn

Austin re garding Milliken’salleged sexual c omments t hat purporte dly resulted in his being requested to leave the defendant’s trailer. The trial court sustained the State’s hearsay

objectio n after

the defe ndant simp ly argu ed that this testimony should be admitted to show Milliken’s sexual infatuation with Sandi Stevens. We can discern no appro priate hearsay excepti on suppor ti ng the adm

i ssion of this testimony. Moreover, the defendant had previous ly been all owed to elicit Austin’s knowl edge of h is brother ’s sexua

l infatua tion with Mr s. Stevens over the State’s objection. Tenn. R. Evid. 403. Therefore, the defendant has failed to show how the refusal to permit Shawn Austin to answer this question constituted unfair prej udic e, and therefore, we find this claim to be without merit.
Second, the defendant argues that the trial court improperly proh ibited Ms. Suttle, the defendant’s girlfriend, fr om testifying that Milliken did not tell her whether he sexually assaulted the victims when he described how he killed them. However, our r eview of the record indicates otherwis e. Indeed, the def endant w as able t

o elicit, without objection, Ms. Suttle’s testimony that Milliken had neith

er expr essed a d esire to r ape the v ictims in thi s case

nor desc ribed any acts of sexual assault a

fter the murders had bee

n committe d. The Sta

te objectedonly after the defendant insisted that Milliken “left [the sexual assaults] out, didn’t he?” The question clearly required the witness to assume facts not in evidence.

In Bearden v. Memphis Dinettes, Inc. , 690 S.W.2d 862, 868 (Tenn. 1984), this Court stated that “hypothe tical que stions are

improper and of no value when they a ssumefacts not supported by the evidence at trial.” Here, the def endant has failed to point

out any evidence from the record that would support the assumption that Milliken either raped the victims or sexually assaulted them, and we have found none. Accordingly, the objection was c orrectly sustained.
Third, the defendant complains that Shawn Austin should have been allowed to testify, over the State’s hearsay objection, that Milliken “lied to make himself a bigger man.” The re is n o evidence that Austin had personal knowledge of his brother’s reasons for lying. A rev iew of the record fails to reveal whether Austin’s knowledge on the subject, if any, was based on his personal knowledge or speculation. Ac cordingl y , his testimo ny was pr

operly e xcluded u nder Te nnessee Rule of Evidence 602.-21-

Finally, the defendant argues that he was improperly precluded from questioningDetective Postiglione rega rding his k nowledge of whether Sandi St

evens ha d “any dis putes, or

argumen ts” withMilliken. T

he State o bjected to this evidence as hearsay. The defe ndant presented no offer of proof demonstr ating tha t the answ er to this q

uestion wo

uldlead to relevant

or admissible evidence. Furthermore, throughout the trial, overwhelming evidence was presented to p rove Mrs. Stevens’s dislike for Corey Milliken, including excerpts from her own diary, and this evide nce would h ave been cumulative. Tenn. R. Evid. 403. Consequently, the defendant has not demonstrated how the trial cou rt’s ruli ng constit

uted unfa ir prejud ice, and thus, this c laim is with out merit.

Detecti ve Gray ’s Relian ce on Milliken’s S tatement s During cross-examination, the defendant quest ioned the officer about why he failed to pursue certain investiga tive proc edures. Detecti ve Gray sta ted that he conducted his investigation of the crimes based on Milliken’s description of how the murders were committed. He testified tha the did notneed to pu

rsue ce rtain inve stigative

procedu res bec ause Milli

ken told him about “things in that trailer only the person that did it could know.” To rebut the inference of Milliken’s credibility and truthfulness, defense counsel argues before this Court that Stevens sho uld ha ve been allowed t

o introduce Milliken’s inconsistent confessions. During his investigation, Detective Gray obtained two confessions from Milliken regarding the crimes. In his first confession, Milliken stated that he had killed the victims because he was angry after arguing with his mother and step-father. Later, he said that the d efenda nt had hir ed him tokill Ms. Wilson and Mrs. Stevens, an act for which he was to receive five thousand dollars.

A close re ading of t

he reco rd, however, fa

ils to ref lect that Stevens actua lly attemp ted to introduce the inconsistent confessions. The trial court, therefore, wa s never given the opportuni

ty to rule on th

eir admis sibility. Al

though we

have elected to c onsider i ssues not i nclude d in the defendant’s motion for new trial, this specific complai nt o f an unfair and biased trial court
e vid entiary ruling is clearly not properly before this Court because it was neve r raised in the trial court.
IV. WHETHER T HE CUMULA TIVE EFFECT O F ALL ERROR S VIOLATES THE DEFENDAN T'S CONSTITUTI ONAL RIGHT TO PRESENT A DE FENSE

The Defendant contends that the cum ulative effect of all errors alleged both a t trial and at sentencing violates h

is constit utio nal rights. However, all errors with respect to the def endant’s prior issues have been d eemed h armless, and, aft er car eful con siderati on, we hol d that, se parately or in the aggregate, these er

rors did n ot prejud

ice the d efenda nt. Conseque

ntly, this is sue is with out merit.
V. SUFFICIENCY OF EVIDENCE SUPPORTING AGGRAVATING

AND MITIG

ATING CIRC UMSTANCE S

Pursuant to Tennessee Code Annotated section 39-13-206(c)(1), we now determine whether the evidenc e is suffi c ie nt to support the two aggravating circumstances found by the jury and-22-

whether these aggravating circumstances outweigh any mitigating circumstance s beyo nd a reasona ble doubt. In determining whether the evidence supports the applica tion of the aggravating circumst ances, the proper standard to consider is whethe r, aft er reviewing the evidence in a light most favorable to the State, a rational trier of factcould have found the existence of the aggravating circumstances beyond a reasonable doubt. See, e.g. , State v. Henderson , 24 S.W.3d 307, 313 (Tenn. 2000).
First, the pro of supports ap plication of the (i)(2) aggravating circumstance , that the defendant had previously been convicte d of second degree murder, Tenn. Code Ann. § 39- 13-204(i)(2). During the penalty phase of the trial, Lieutenant William M. Bowers of the Montgomery County sheriff’s office testifie d that in

1977, he worked

as an agent with the Tennessee Bureau of I nvestigation and
was the prosecuting witness and investigator in the trial against th e defendant. He further testified that on May 16, 1977, the defendant was convicted of sec ond degree murder. A copy of the judgme ntin that case was then placed into evidence. As the e vidence of the defendant’s forme r conviction is undisputed, we conclude that a rational trier of fact could have found the e xistence of this aggr avating c ircumsta

nce bey ond a rea sonable d oubt.

The jury also found the evidence sufficient to support the aggravating circ umstance that the d efendant hired Cor

ey Millike

n to murde

r Sandi Ste

vens and Myrtle Wi lson for th

e promise o f remuneration, Tenn. Code Ann. § 39- 13-204(i )(4). Th e eviden ce in this c aseis that the defendant
was having marital problems, but did not want to endure the financial hardship of another divor ce. Milliken’s girlfriend and brother testified that the defendant promised to pay Milliken five thousand dollars to kill the defendant’s wife and mothe r-in-law. To corrobo rate the proof tha

t this was a murder for hire, the State also introduced evidence that the def endant offered to pay several prison inmates to kill Core

y Milliken, and did ar

range to have mone

y sent to a fellow pr ison inmate

for this purpose. Viewed in a light most favorable to the State, we conclude that a ra tional tri er of fa

ct could have co ncluded t

hat this ag gravati ng circu mstance was prov en beyon d a reas onable do ubt.
Moreover, the evidence is sufficient to support the jury ’s fin ding that the statutory aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt. In mitigation of his offense, the defendant presented evidence of his good relationship with his young son, his r eputation as a hard-working individual, his concern for the we lfare of his neighbors and friends , and his ch arity on b ehalf of those less fort unate tha n himself. There isno evidence that the defendant suffered from a me

ntal def ect or suffere d abuse a s a

child. Based on our extensive review of the record, we conclude that the evidenc e is sufficient to support a finding that the aggravating circumst ances ou tweighed any mitiga

ting circumstance s beyond a reasona ble doubt.
VI. PROPOR

TIONALITY R

EVIEW Finally, we conduct statutory comparative proportionality review as a final s afegua rd to determine whether the defenda nt’s sente nce of de ath for f

irst degr ee murde r is “disprop ortionate

to the sentences imposed for similar crimes and similar defendants.” State v. Bland , 958 S.W.2d 651, 664 (Tenn. 1 997); see also Tenn. Cod

e Ann. § 39 -13-206( c)(1)(D). Our f unction in perfor ming this-23-

review is to ensure that the death penalty is not applied arbitrarily or capriciously, but is instead applied consiste

ntly with other ca ses in

which capitally-sentenced defendants we re convicted of the
sameor similar crimes. Bland , 958 S.W.2d at 664. In conducting this analysis, we look at the facts and circumstances of the crime, the chara cteristics of the defend ant, and the aggravating and mitigating circumst

ances in volved, a nd we com

pare thi s case w ith other c ase s in wh ich the defenda nts were c onvicted

of the sa me or similar crimes. See State v. Godsey , 60 S.W.3d 759, 782 (Tenn. 2001). Included in this pool of similar cases a re only th ose first degree murder cases in which “the State seeks the death penalty, a capital sentencing hea ring is held, and the sentenc ing jur y determines whether the sentence should be life imprisonment, life imprisonment without the possibility

of parole, or

death, r egardle ss of the sentence actually imposed.” Id. at 783. Because no two cases involve identical circumstances, our objective is not to “search for

proof that a defendant’s de ath se ntence i s perfe ctly symme trical, but to identi fy and to invalidat e the abe rrant de ath sentence.” Bland , 958 S.W.2d at 665. If the case is “plainly lacking in circumstances consistent withthose in cases where the death penalty has bee n imposed,” the sen tence of death is disproportionate. Id. at 665. Recently, in Statev. Godsey , this Court found the sentence of death dispropor tionate to the pen alty imposed in similar cas es and thus modified the sentence to life imprisonment without the possibility of parole. 60 S.W.3d at 793.

In conducting our

review, we look to numerous factors relevant to the process of ide ntifying and comparing similar cases, which include the following: (1) the means of death; (2) the manner of death ( e.g. , violent or torturous); (3) the motivation for the killing; (4) the place of death; (5) the similarity of the victim’s circumstances including age, race, a nd physical andmental conditions; and the victim’s tr

eatment d

uring the killing; (6 ) the abs ence or presenc e of pre

meditatio n; (7) t he absence or presence of pr ovocation; (8) the absence or presenc e of justification; and (9) the injury to and effects on nondecedent victims. Bland , 958 S.W.2d at 667. Moreover, we h ave ide ntified several nonexclusive factors relevant to the comparison of the characteristics of defe ndants: (1) the defendant’s prior criminal record or prior criminal activity; (2) the defendant’s age, race, and gender; (3) the defendant’s mental, emotional, or physical condition; (4) the defendant’s involvement or role in the murder; (5) the defendant’s cooper ation with authorities; (6) the defendant’s remorse or lack thereof; (7) the defendant’s knowledge of the helplessness of the victim(s); and (8) the defendant’s capacity for rehabilitation. Id. Applying these factors, we notethat the evidence in this case establishes that seventy-five year-ol d Myrtle Wilson was stabbed repeatedly and manually strangled. Sandi Stevens , th e defendant’s wife, was strangled with an electric cord. The re is no evidence of

provocation; indeed, the evidence indicates that both women were aslee p in their beds at the time Corey Milliken murdered them. The evidence indicates that the defendant wa s motivated, at least in part, to k ill his wife in order

to get out o f a troub led marr iage without having

to undergo the trouble a

nd expen se of a divorce. Moreover, the evidence indicates that the defendant believed that he would inherit the proceeds of his mother-in-law’s life insurance policy. For several we eks, the defendant planned how the victims would be killed, how to dispose of the evide nce, an d what ali

bis each particip ant would have. For instance, he took Milliken on a walk-through of the trailer to show him what ite ms to “trash,” what item s to “stea l,” and w hat items t

o leave un touched. He also to ld him wher e to dispos e17 This Court af firmed the co nvic tions, b ut rem and ed fo r resen tencin g du e to a fundament al i nstr ucti onal e rror that occurr ed duri ng the s entenc ing pha se of th e trial. Id. at 556. On remand, the parti es reached an agre ement on which the senten ce w as red uce d to life with out p arole . Rece ntly, th is Court r evers ed the dis missa l of the de fendant ’s pe ti ti on for habeas corpus rel ief and remanded t

he cas e, f

indi ng the “li fe without par ole” sent ence il legal and void beca use it
was not a legal

sentenci ng option at t

he t ime of the offen se. See Stephens on v. Car lt on , 28 S. W.3d 910, 912 (Tenn. (con tinue d...)
-24- of the murder weapon, where to get rid of the stolen jew elry, and where to go after the murder s were completed. Finally, he established an alibi for himself by ensuring that he would be miles away at a jobsite with his young son and Shawn Austin.

The defendant, a middle-aged, high school educated Cauc asian male, has previous convictions for second deg ree mur der and felony escape. After be ing released from prison, he workedprimaril

y as an inde

pendent c ontract

or to repair mobile homes. When he was taken in for questioning, h e co operate d with authorities by giving a ta

ped state ment, but he has con sistently refused to admit any involvement in the murders of his wife and mother-in-law. Furthermore, the record indicates that he showed little sign of remorse, and he never requested to be allowedto attend his own wife’s funeral. However, he sent many letters to his ex-wife asking if they could get back together as a couple. The proof also demonstrates that the defe ndant tried to hire several other inmates whom he befriended to kill Corey Milliken, thereby indicat ing very l it tle potential for rehabilitation.

This Court has upheld the death penalty in several first degree mur der cases involvi ng “murders for hire.” In State v. Por terfiel d , 746 S.W.2d 441 (Tenn. 198 8), the defe ndants, G ail Owens–the victim’s wife–and Sidney Porterfield were each c onvicted of f irst de gree murder and sentenced to death. Mrs. Owe

ns had hir

ed Porter field to ki ll the vi ctim because she, like the defendant in this case, wanted to get out of a bad marriage

. She had previously offered between five and ten thousand dollars to three other men to kill her

husband, but she ult

imately hi red Porte rfield and promised to pay him seventeen thousand dollars. Consequently, one Sunda y, while the victim
was alone in his house, Porterfield entered the house through the back doo r, which he found partiall y open, and he blu dgeoned

the victim

to death with a tire iron. The jury found that the (i)(4) and (i)(5) aggravating circumstances had been pr oven bey ond a rea sonable d oubt with r

espect t o both defenda nts, as well

as the (i)(2) aggravating circumstance with respect to Porterfield. On appea l, this Court affirmed the convictions and the sentences. Id. at 452.

In Statev. Stephenson , 878 S.W.2d 530 (Tenn. 1994), the defendant, who had been having
an affair, had on several occa sions offered to some of his acquaintances five thousand dollars from the proceeds of a life insurance policy on his wife if they would kill her. He was afraid that she was going to divorce him and “take everything.” Ralph Thompson agreed to do so and shot the victim through the windshield of her car with a high powe r ed rifle at close range. The defe ndant was convictedof premeditated first degree murder a nd conspiracy to commit murde r. The jury found beyond a reasonable doubt the existenc e of the (i)(4) ag gravati ng circu mstance and, find ing that it outweighed any mitigating circumstances, subsequently sentenced the defe ndant to death. 1717 (.

.. conti nued)

2000).

-25- In State v. Hutchison , 898 S.W.2d 161 (Tenn. 1994), the defendant bought a large insurance policy on the victim’s life, intending to hire others to kill the victim in order to collect the proc eeds. The de fend ant even

tually hir ed someon

e to lure the victim

on a fishi ng trip an d then dro wn him. The jury found the defendant guilty of premeditated first degree murder, and it sentenced the defendant to death after finding the (i)(4) aggravating circ umstance beyond a reasonable doubt. On appeal, this Court affirmed the conviction and the sentence. Id. at 175.

In State v. Coker , 746 S.W.2d 167 (Ten n. 1 987), the defenda nt had bee

n having a

n affai r withhis former mother-in-law. For several months, he had suggested several possible methods for how to “get[] rid of her hus band.” Fi nally, he request ed five t housand d

ollars to h

ire someo ne to shoother blind husband, and she agreed. The jury found the defenda nt guilty of

first degree murder and sentenc ed him to de ath afte r finding the (i)( 2) and (i )(4) ag gravati ng circu msta nces beyond a
reasona ble doubt. The defend ant su bsequently petitioned for post-conviction relief, alleging ineffective assistanc e of coun sel. Post- convicti on relief was gra nted as to his s entence, and in a resentencing hearing, he was sentenced to life imprisonment. See Coker v. St ate , No. 01C01-9804- CC-00152 (Tenn. Crim. App. 1999).

In State v. A

ustin , 618 S.W.2d 738 (Tenn. 1981), the defendant and several of his employees
were served with arrest warrants for c onducting illegal gambling at the defendan t’s place o f busines s. The victim, a reserve deputy sheriff working underc over for the police department, recor ded
numerous incidents of illegal gambling a ctivity and, as a re sult of his testimony, the indictments and arrest warrants were

obtained. After this incident, the defendant had been heard on several occasions to expre ss his desire to see the victim dead. Soon thereafter, he hired an escaped convict to shoot the victim at th

e auto re pair shop where he worked. The jury found that the evidence established the (i)(4) aggravating circumstance and that this aggravator outweighed any mit

igating c ircumsta

nces. Consequently, the jury imposed the death penalty. However, the defendant’s sentence was vaca ted in a habeas corpus proceeding, see A ustin v. B ell , 938 F. Supp. 1308 (M.D. Tenn. 1996). At the defendant’s resente

ncing tria l, mitigating evidence portrayed thedefenda nt as a kin d, carin g, deeply respected individual, and a model prisoner. Despite this evidence, the jury again imposed a sentence of death, which was upheld by the Court of Criminal Appeals in State v. A ustin , No. W1999-00281- CCA-R3-DD (Tenn. Crim. App. 2001).
Moreover, we have upheld the death sentence based on the s ole aggravating circumstance of a pri or violent fe lony conviction, Te nn. Code A

nn. § 39-1 3-204 (i) (2), in the following cases : Statev. Chalmers , 28 S.W.3d 913 (Tenn. 2000); State v. Smith , 993 S.W.2d 6 ( Tenn. 199 9); State
v. Boyd , 959 S.W.2 d 557 (Te nn. 1998) ; State v. N

ichols , 877 S.W.2 d 722 (Te nn. 1994) ; State v

. Adkins , 725 S.W.2 d 660 (Te nn. 1987) ; State v. Goad , 707 S.W.2d 846 (Tenn. 1986).-26-

Even where the death penalty is not imposed in cases involving circu mst ances similar to those of the offense in this case, the defendant’sdeath se ntence i s not dispr

oportiona te if this Court
can ascert

ain some b asis for t

he impositi on of the l esse r sentenc e. See, e.g. , State v. H all , 958 S.W.2d 679, 699 (Tenn. 1997). For instance, in State v. Mosher , 755 S.W.2d 464 (Tenn. Crim. App. 1 988), the defendant hired two men to murder her husband. The jury sentenc ed her tolif e imprisonme

nt. Howeve

r, the tri al judge n oted that the “pas sio nat e plea by the defendant’s young daughter” probably resulted in her rece iving a life sentence.

The defenda

nt in State v. Teresa M. King , 01C01-9204-CR-00146 (Tenn. Crim. App. filed at Nashville, April 29, 1993), was also sentenced to life imprisonment after being con

victed f or first degree murder. The defenda ntin this case, who was involved in an extramarital affair , took out a life insurance policy on her husband severa l months pri or to the mu

rder. H er boyfr

iend knew

of this fifty thousand dollar

policy, and he subsequently made arrangements for the de fendant’s husband to be killed. Unlike the case curren tly before us, in King , the defendant acted under the instruction of her boyfriend. Indeed, it appears that her boyfriend hired himself to kill the victim, planned the murder, and dema

nded payment for i

t later. I n contra st, the defendant

in this case pai nstakingl y plannedevery de

tail of the murder a nd took ev ery mea sure to wa lk Milli ken through each step of the plan. He

constructed alibisfor himse lf and Mill

iken, and he even instructed both brot

h e rs on how to act should they be interrogated by the police. Neverthele ss, even if thi s case coul d not be distinguished, “the isol ated decision of a jury to afford mercy does not re nder a death sentence disproportionate.” State v. Keen , 31 S.W.3d 196, 222 (Tenn. 2000). Accordingly, we have

identified cases involving c ircumsta nces simil ar to the

crime in t

his case, i.e. , extreme premeditation, marital difficulties, life insurance proc eeds, and the defendant’s procurement of

another to physically kill the victim. Based on our review of these cases in which the death pe

nalty wasupheld, w e conclu de that the death sent ence imposed for the premeditated murder of Sandi Ste

vens and Myrtle Wi l son was neither dispropor

tionate to the deat h penalty imposed in similar cases, nor arbitrarily applied.
CONCLUSION

In conclusion, after a thorough review of the record and relevant legal authorities, based on the facts and circumstances of this case, we have determined that the defendant’s allegations of error
ar e witho ut merit. T

he expe rt testimon

y regar ding beha

vioral criminal a

nalysis wa s proper

ly excluded as being u

nreliab le; t

he exclusion of the prior bad acts of a nonparty witness, although admissible

under State v. D uBose , constituted harmless error in light of the overwhelming evidence supporting a verdict of guilt be yond a re asonable

doubt; and there is no evidence that the trial court applied the evidentiary rules in a biased and arbitrary manne r. Moreover, the evidence is sufficient to support the jury’s finding of two aggravating circumstances beyond a reasona ble doubt, an d its fin di ng that the aggravating circumstances outweigh any mitigating circumstance s beyond a
reasona ble doubt. With resp ect to issu es not spe cifically addre ssed in thisopinion, we agreewith and affirm the decision of the Court of Criminal Appeals, authored by Judge David H. W elles and-27-

joined by Ju dges Norma McG ee Ogle and Alan E. Glenn. Relevant portions of that opinion are attached as an appendix.

Therefor e, we h old that the sentenc e of dea

th was ne ither disp roportio nate, nor

arbitra rily applied. The conviction an d sentenc e of Willi am Richar d Stevens i s affirmed

and the se

ntence s hall be carried out

on the 13 th day of September, 2002, unless otherwise ordered by this Court or proper author ity. As the record reflects that the defendant is indigent, costs of this appeal are assessed against the State of Tennessee.

____________________________________ WILLIA M M. BARKER, JUSTICE-28- APPENDIX


### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE April 24, 2001 Session
STATE OF TENNESSEE v. WI LLIAM R. STEVENS Appeal from the Criminal Court for Davidson County No. 98-A-825 Steve Dozier, Judge

No. M1999-02067-CCA-R3-DD - F iled May 30, 2001

INTRODUCTORY PARAGRAP H [OMITTED] Tenn. Code Ann. § 39-13-206 Death Penalty Appeal; Judgment of the Criminal Court Affirmed

D AV ID H. W ELLES , J., delivered the opinion of the court, in which N ORMA M C G EE O GLE and A LAN E. G LENN , JJ., joined.
Brock Mehler and Michie Gibson, Jr., Nashville, Tennessee, for the appe llant, Willia

m R. Steven s.
Paul G. Summers , Attorne y Gener al and Reporter; Michael E. Moore, Solicitor General; Jennifer Smith, Assistant Attorney Gene ral; Vict or S. Johnson, Dist rict Attorney Ge

neral; and Tom Thurman, Assistant District Attorney Gene ral, for the appellee, State of Tennessee

.

OPINION
The Defendant was convicted of two counts of first degr ee premeditated murder fo r th e double murder of his wife, Sandi Stevens, and his mother -in- law, Myrt le Wilson. He was a

lso convictedof especially aggravated robbery o f Sandi Stevens, arising out of the same occurrence. BothSandi Stevens and Myrtle Wilson were fo und dead in their ho me in their

respec tive bedr

ooms on December 22, 1997. Sandi Stevens was foun d laying on her bed n

ude, with pornogra phic magazines around her head and a photo album containing nude photographs of he r on the bed. Myrt le Wilson was also found laying on her bed; her nightgown had been pulled up and he r underwear

was on the floor. The medical examiner determined that Myrtle Wilson died from stab
wo unds and m anual str

angulati on, and Sa

ndi Steven s died fr

om ligatur

e strangulation. Se

veral ite ms of Sandi Stevens’ were taken from the trailer, giving rise to the robbery charge. The Defendant’s-29-

convictions for these crimes were based on the theor y of criminal responsibility for the actions of another. The State’s proof at trial established that the Defendant hire d hi s eighteen- year-o ld neighbor and emplo yee, Cor

ey Millike

n, to kill his wife and mother-in-law and to make it look like
a robbery. The Defendant’s theory was that Corey Milliken fabrica ted a “murder for hire fantasy” and that he killed Sandi Stevens and Myrtle Wilson in the perpetration of a sexual assault.
FACTUAL BACKGROUND [OMITTED]
1. TESTIMONY OF GREGG MCCRARY [OMITTED]
2. TESTIMONY REGARDING INDEPENDENT MOTIVE [OMITTED]
3. REDACTED VERSION OF SANDI STEVENS’ DIARY

The Defendant argues that the trial court err ed by admitting aredacted version of Sandi Stevens’ diary. Th

e diary w as admitte d pursuan t t o Tennessee Rule of Evidence 803(3), which provides a

hearsay exception for statements of a dec larant’s “then existing state of mind, emotion, sensation , or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodi l y health).” In the diary, Sandi Stevens made statements concerning her unhappiness with her marriage and her life. She was upset about the physical and mental effects of menopause and the Defendant’s lack of understanding of her condition. She made references to multiple arguments that she and the Defendant

had, and she state d that she

was cons idering le aving the marriag e. The tr

ia l court admitted the diary to rebut the Defendant’s statements that there w ere no problems in their marriage. On appeal, the Defendant does not argue that the statements made in the diary do not fall within the “state of mind” exception to the hearsay rule, but instead asserts that the diary w as not relevant, and
even if the diary was relevant , its probative value was substantially outweighed by the danger of unfair prejudice. He also contends that the diary was cumulative of other testimony concerning the Defendant’s marriage to Ms. Stevens.

A trial court’s decision

to admit ev

idence b ased on it s releva nce will not be reversed absent
an abuse of discretion in admitting the evidence. Gilliland , 22 S.W.3d at 270. As previously stated, relevant evidence is “evidence having any tendency to make the exi stence of any fact that is of consequenceto the determination of the action mor e probable or less probable than it would be withoutthe evidence.” Tenn. R. Evid. 401. Our supreme court ha s previou sly held that state ments made by a victim expressing her fear of the defe ndant during the period of their separ ation w ere relevant to rebut th

e defendant’s a sserti ons that he and the victim were reconciling. See State v. Smith , 868 S.W.2d 561, 573 (Tenn. 1993). Similarly, this Court h as found t hat a vic tim’s state

ments tha t her husban d had abused her and threatened to kill her we re relevant to rebut the defendant’s assertion in opening statement that he andthe victim “had a good marriage and a happy marr iage.” See State v. John Parker Roe , No. 02C01-9702-CR-00054, 1998 WL 7107, a t *10 (T enn. Crim. App., Jackson, Jan. 12, 1998) perm. app. denied (Tenn. Jan. 4, 1999).-30-

The status of the Defendant’s relation ship with Sa ndi Steven s became

an issue i n this case when Shawn Aus tin testifi ed that the Defe ndant wa nted to kill

his wife and mother-in-law so that he would no lo nger hav e to pay th eir bills a nd listen to

their co mplain ts and beca use it would be easier to kill them than go through another divorce. Then, in the statement he gave to the police, the Defendant

claimed t hat he ca red “ve ry deepl y about [hi s] mother in l aw” and that he “ love[d] [his] wife.” He asserted that he and Ms. Ste

vens did not have an

y problem s in their marriage. Although he said that Ms. Stevens was always jealous and that she thought he cheated on her, the Defendant maintained, “It’s always been that way,” and he asserted that it was not a pr oblem in their marriage. Thus, we agree with the trial court that Sandi Stevens’ statements concerning fights she had with the Defend ant, unhappiness with her marriage, and thoughts of leaving the Defe ndant were relevant

to rebut the Defendant’s assertion that there we re no problems in their marriage.
Next, the Defe

ndant ass erts t

hat the prob ative value of the diary was outweighed by the danger of unfair prejudice. Under our Rules of Evidence, even relevant evidence may be excluded “if its probative value is substantially outweighed by the dange r of unfa ir prejudice, confusion of the issues, or misleading the jury, or by consider atio ns of undu e delay, waste of time, or ne

edless presentation of cumula

tive evid ence.”Tenn. R. Evid. 403. While we agree with the Defendant that Ms. Stevens’ emotional statements concerning her l ife and the problems in her marriage were prejudicial to the Defendant, we do not believe that they wer e unfair ly prejudicial. The Defendant claimedthat ther

e were no proble ms in the ma

rriage , making Ms

. Stevens’ own statements about the marriage the most probative evidence available to rebut the Defendant ’s claims. Moreover, we cannot agree t hat the di ary shoul d have been excluded because it wa s cumulative to other testimony concerning the status of the Defendant’s marr iage. The State had the burden of proving beyond a
reasona ble doubt that the Defendant was criminally responsible for the murder s of Sand i St evens and Myrtle Wilson, and the diary was the best evidence available to the State to show that there were problems in the marriage, supporting the State’s theory of motive. In essence, the probative value of the diary was not substantially outweighed by the danger of unfair pr ejudice. Finally, the Defendant argues that the trial court should have a dmitted the entire diary rather than admitting a

redact ed versi on, so that

the jury c ould get a co mplete picture of Sa ndi Steven s’ emotional state. At trial, when the trial court indicated that it would admit portions of the diary but redact the portio ns it found

to be irre levant or prejudic ial, t he Defendant requested that the entire diary be admitted into evidence. The parties then wen t through various discussions about what would and would not be admitted, and the trial court ultimately admitted a partia lly redacted version. After looking at

the reda cted por tions of the

diary, w e canno t say that t h e tr ial cour

t abused its discretion by redacting the diary. The redacted por tions concerned statements about the Defendant being “different” from the rest of society, statements about the Defendant lyingto Ms. Stevens and flirting with other women, statements about Ms. Steve ns’ negative view of men in general, and statemen ts about Ms . Stevens’ negative feeling s about he

rself. W e agree withthe court tha

t these statemen ts were e ither irr elevant or preju dicial to t

he Defe ndant.
However, i t does appear that the trial court inadvertently reda cted a portion of the d iar y concerning Ms. Stevens’ feelings toward Corey Milliken. At the request of the Defe ndant, the trial-31-

court admitted portions of the diary containing statements of Ms. Stevens’ dislike of Corey Milliken and of the fights she had with the Defendant abo ut Mr. Millike n. Although it is unclear from the record what ac tually tra

nspired, it appea

rs that the trial cou rt intended to admit a

ll the stat ements regarding Corey Milliken, but the following statement was omitted: And the way he (Cory) glares at me! Such hatred! He’s such a sick, troubled 18 yr. old! I once tr

ied to understa

nd him & help

him as Bill is doing but eventually gave up simply because he doesn’t want to be helped. Doesn’t want to make the effort because that take s work ! Constant ly skips sc hool. Last week dropped out! I can’t tolerate him anymore! Notwithstanding, we conc lude that the omissio n of this sta

tement, if error, was harmless. The trial court did admit the following excerpt of Ms. Stevens’ diary, which depicts her feelings toward Mr. Milliken: Hada big figh

t late las tnight about

Cory aga in! Bill con

tinues to st

ick up for him & I continu e to dislike

him more eve ry day! I’m seriously considering leaving. Things have gotten so bad it seems Bill & I argue about him constantly. I can see a time coming when the wedge he’s (Cory) driven between us will tear us apart

. Cory Milliken is bad new s! I’m sur e he woul d be quite

happy to mo ve in if he

can get m

e out. He’s such a prick. No one in this world stupider or more untrustworthy! He’s proven that time & time again.

An error will not be grounds for reversal unless it affirmatively appear s to have affected the result of the trial on the merits. SeeTenn. R. Cr im. P. 52(a

); Tenn. R . App. P. 36(b). In light of the other evidence concer

ning the r elationsh ip betwee n Corey Milliken and

Sandi Steve

ns, we cannot say that this omissio n would ha

ve affected the

result of the trial on the mer

its.
4. RULINGS ON HEARSAY AND OTHER EVIDENTIARY MATTERS [OMITTED]

5. COREY MILLIKEN’S STA TEMENTS TO SAR AH SUTTLE
Next, the Defe

ndant cla ims that the

trial cou rt erre d by failing to exclu de the sta tements Corey Mi l liken made to his girlfriend, Sarah Suttle, because those statements failed to qualify as statemen ts of a co-conspirator, which would have been excepted from the hea rsay rule. See Tenn. R. Evid. 803(1.2). Specifically, the Defendant asserts t hat those statemen ts were made in “casual conversation” and thus did nothing to further the alleged conspiracy in a ny way.
The Defend ant corr

ectly as serts tha

t Sarah Sut

tle was p ermitted to t estify in detail to the statem ents m ade by Corey Milliken regarding the murders. However , the Defendant made no objection to the test

imony at tr

ial. In fa ct, prior to calling Sa

rah Suttle as a witne ss, the Sta

te informedthe trial court that it intended to question Ms. Suttle about statements made by Mr. Milliken in furtherance of the conspiracy. At that time, the Defendant stated that he had no objection to the testimony, as evidenced by the following colloquy:-32-

MR. GI BSON [Def

ense cou nsel]: I’ m not trying

to keep ou

t Shawn Au stin ’s an d Sara Suttle’s testimony anyway. I – GENERAL THURMAN [ Prosecut or]: If they don’t have any objection, then that’s fine. . . . THE COURT: Well, I mean, the issue, Mr. G ibson, is [ --] General Thu rman is attempting to forew arn, or b ring up so w e won’t h ave to take so many breaks is, are you saying you’re n ot opposed to their te stimony; but , if their testimony [--] are you saying tha

t if their testimony consists of statements made by Corey Milliken about this alleg ed plan, t

hen you’ re not opp osed to tha t? MR. GIBSON : No, Your Honor, I ’m not. At no point during Ms. Suttle’s testimony d id the Def endant ob ject toany hearsay statements made by Corey Milliken.

In State v. Smith , 24 S.W.3d 274 (Tenn. 2000), our supreme court stated, “When a party does notobject to the admissibility of evidence, . . . the evidence becomes admissible notwithstanding any other Rule of Evide nce to the contrary, and the jury may consider that evide nce for its ‘natural probative effects as if it were in law admissible.’” Id. at 280 (quot ing State v. Harrington , 627 S.W.2d 345, 348 (Tenn. 1981)). Moreover, when a par ty decides to forg o objection t o the admissibility of evidenceas a deliberate, tactical decision, this Court may not even consider whether the admission of the evidence was plain error. See id. at 283-84. Here, when the State informed the Defendant

and the court that hearsay statements of Corey Milliken would be introduced, t he Defendant

indicated tha t he had no objection to that testimony. Accordingly, we find that he has waivedconsider

ation of w hether t he state ments were admissible

as an exc eption to th

e hears ay rule by failing to object to the statements at trial. See id. at 280; Tenn. R. App. P. 36(a).

6. CUMULATIVE EFFECT OF ERRORS [OMITTED]
7. INSTRUC TING JURY THAT IT MUST U

NANIMOU SLY AGREE

The De fendant as serts tha t the tria l court e rred by instructing the jury that it must unanimous ly agree t

hat the a ggravat i ng ci rcumstances do not outweigh the mitigating circumstances in order to impose a

life sentence, while prohibiting an instruction on the effect of a non-unanimous verdict

. The trial court’s instruction followed the mandates of Tennessee Code Annotated section 39-13-204(f)(1) and (h), but the Defendant argues that the statute violatesthe Eighth and Fourteen th Amendmen

ts to the United States Cons titution in that it is misleading and coercive and it causes the jury to arbitr

arilyarrive

at a unan imous ver dict in ord er to avo id the imagined adverse consequences of a fai lure to a

gree on p unishment

. This argument has been previously rejected by our supre me court. See Statev. Vann , 976 S.W.2d 93, 118 (T enn. 1998 ); Statev. Smith , 893 S.W.2d 908, 926 (Tenn. 1994). Thus, we find no
error.
8. APPLICATION OF AGGRAVATING CIRCUMSTANCE-33-

The Defendant

next argues that the application of the Tennessee Code Annota ted section 39- 13-204(i)(4) aggravating circumstance to his case dup licates a

n elemen t of the un derlying

offense and thus failsto fulfill i

ts constitu

tionally required function of narrowing the class of death el igible defenda nts. The Def

endant w as convicted of fir st degre e murder based up on his c rimina l responsi bility for the conduct of Corey Milliken. The s tatute de fining cr iminal re sponsibilit

y provides , in pertin

ent part : A pe rson is c riminally responsible for an offense committed by the conduct of another if:

. . . (2) Acting with intentto promote or assist the commission of the offense, or to benef it in the pr

oceeds o r resultsof the of

fense, t he perso n solicits, directs, aids, or attempts to aid another person to commit the offense[.]

Tenn. Code Ann. § 39-11-402. One of the aggravating factor s found to be applicable to the Defend ant then p

rovides: The defenda

nt committe d the murd er for r emunera tio n or t he promise of remunerationor employ ed anothe r to commi t th e murder for remuneration or the promise of remuneration[.]

Id. § 39-13-204(i)(4). The Defendant thus argues t hat he wa s unlawfu

lly convicted of first degree murder and sentenced to death based upon the same element: soliciting

another to commit the act.

In Zant v. Stephens , 462 U.S. 862 (1983), the United S tates S upreme Co urt state d that in order to complywiththe Eighth

Amendmen

t to the Cons titution, a

ggravat ing circ umstance s must “genuine ly narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Id. at 877. Our supreme court has maintained that “[a] pr oper narrowing device, therefore, provides
a principled way to di stinguish the case in which the death penalty was imposed from the many cases in which it was not.” State v. Middlebrooks , 840 S.W.2d 317, 343 (Tenn. 1992). In Middlebrooks , a majority of our supreme court held that when a defenda nt is conv icte d of first degree felony murder, application of the felony murder aggravating factor to the felony murder offense provides
no narrowing of

death-eligible defendants because the a ggravating factor duplicates the elements of the offense. Id. at 346. However, our supreme court has also exa mined the situation at issue in this case, and it hel d that the

“aggra vating ci rcumstan ce -- [ that] th e defendant empl oyed ano ther to commit th e murder for remuneration or the promise of r emuneration -- does not duplicate th e elementsof th e of

fense [ of first- degree

murder] , even inc orporat ing the cr iminal re sponsibilit

y statutes.” State v. Stephenson , 878 S.W.2d 530, 557 (Tenn. 1994). The court concluded, Constitutional narrowing is acc omplished because at the sentencing hea ring, the State
was required to prove that this defendant hired someone to kill his wife, or promised to pay someone to kill his wi fe . Obviously, not every defendant who is guilty of first-degreemurder pursuant to the criminal responsibility statutes has also hi red another or promised to pay a nother to c ommit the murder. Thus, the aggravating-34-

circum sta nce found by th e jury in th

is case n arrows t

he classof death -eligible defendants as required by State v. Middlebrooks

. Id. Acc ord ingly, we conclude that the aggravating circumstance w as properly applied to the Defendant in this case.

9. PROPORTIONALITY REVIEW [OMITTED]
10. UNLIM

ITED PROSECU TORIAL DISC RETION

The Defendant asserts that due to the unlimited discretion of prose cutors in Tenness ee as to whether or not toseek the

death pe nalty in a given ca se, the de ath pena lty is imposed in an arbitrary and dispropor

tionate ma

nner in vi olation of

the Eighth

and Fourteenth

Amendments to the United States Constitution. He further asserts that the prosecutor’s unfettered discreti on to seek

the deat h penalty is an improper delegation of judicial power in violation of Article II, section 2 of the Tennessee Constit

utio n. Both of th

ese arguments ha

ve been previous ly rejec ted by our supreme court. Applying the United States Supreme Court decision in Gregg v. Georgia , 428 U.S. 153, 198- 99 (1976), our supreme court has held that opportunities for

discretionary action occurring during the processing of a murder case, including the authority of the state prosecutor to select those persons for whom he wishes to

seek capital punishment do not render the death penalty unconstitutional
on the theory that the opportunities for discretionary action render imposition of the death penalty arbitrary or freakish.

State v. Cazes , 875 S.W.2d 253 , 268 (Te nn. 1994) ; see also State v. Brimmer , 876 S.W.2d 75, 86 (Tenn. 1994); State v. Hal l , 958 S.W.2d 679, 716 (Tenn. 1997) . Moreover, in Hall , our supr eme court expressly rejected the assertion that prosecutorial discretion to seek the death penalty violated the separa tion of pow ers doct

rine fou nd in Artic le II, section 2, of the Tennessee Constitution. Hall , 958 S.W.2d at 716-17. Thus, this issue has no merit.

11. DISCRI

MINATORY

IMPOSITION

OF DEATH PEN

ALTY Finally, the Defe

ndant ar gues that the deat h penalty is imposed in a discriminatory manner
on the basis of race, geography, and gende r in violation of the Eighth and Fourteen th Amendme

nts to the United States Cons titution. Th is argume nt has bee n rejec ted by our

supreme court. See Hall , 958 S.W.2d at

717; Brimmer , 876 S.W.2 d at 87 n.5 ; C azes , 875 S.W.2 d at 268. Fu rthermor e, in support of his argument, the Defendant cites genera l statistics which he says reflect the discri min atory imposition of the death penalty; yet, the record contains no evidence indicating improper discrimination regarding the sentencing of this Defendant. Statistics alone are insufficient-35-

to establish that the Defendant’s sentence was constitutionally deficient. See McClesky v. Kemp , 481 U.S. 27 9, 292-97 (1987); Hall , 958 S.W.2d at 717.
CONCLUSION

After a thorough review of the record, we f ind no reversible error

on the par

t o f the trial court. Additionally, we concludethat the D efenda nt’s sente nces of d eath are not d ispropor tionate to other cases in which the death penalty has been imposed. The Defe ndant’s convictions and his sentences of death are theref ore affirmed.

___________________________________

DAVID H. WELLES, JUDGE