# FILED
March 23, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE SUPREME COURT OF TENNESSEE AT JACKSON

FOR PUBLICA TION STATE OF TENNESSEE, ) Filed: March 23, 1998 ) Appellee, ) ) GIBSON CRIMINAL ) (Transferred from Montgomery Co.) v. ) ) ) HON. DICK JERMAN, JUDGE RONNIE MICHAEL CAUTHERN, ) ) Appellant. ) No. 02-S-01-9612-CC-00108

For Appellant: For Appellee: Hugh R. Poland, Jr. John Knox Walkup POLAND & POLAND Attorney General & Repor ter Clarksville, Tenness

ee Michael E. Moore Robert T. Bateman Solicitor General BATEMAN, BATEMAN & DARNELL, P.C. John P. Cauley Clarksville, Tenness

ee Assistant Attorney Gener al Nashville, Tennessee At Trial: Clayburn Peeples District Attorney General Trenton, Tennessee John Carney District Attorney General Clarksville, Tenness

ee Steve Garrett Assistant District A

ttorney Clarksville, Tenness

ee


## O P I N I O N

CONVICTION AND SENTENCE OF DEATH AFFIRMED. ANDERSON, C.J.1 “Whenever the de ath penalty

is imposed for

first degree

murder and w

hen the judgme

nt has become final in the trial court, the def endant shall have the right to direct appeal from the trial court to the court of criminal appeals. The affirmance of the conviction and the sentence of death shall be automatically re viewed by the Tennessee Supreme Court. Upon the affirmance by the co urt of criminal appeals, the clerk sha ll docket the case in the supreme court and the case shall proceed in accordance with t he Tennessee Rules of Appellate Procedure.” Tenn. Code Ann. § 39-13-206(a)(1)(Supp . 1996).

2 The defendant was also conv icted of first-degree burglary , for which he was sente nced to ten years, and aggravated rape, for w hich he was sentenced to forty years; the forty-year

sentence is to run consecutively to the death sentence. A co-defe ndant, Brett Patterson, receiv ed a life sentence for each murder. -2- This case is before the Court for automatic review of the C ourt of Criminal Appeals’ affirmance of a convicti on for first-degree murder and a sentence of death imposed upon the defendant, Ronnie M. Ca uthern, in a Gibson County resentencing hearing. 1 In addition to the death sentence imposed f or the murder of Rosemary Smith, the jury returned a life sentence for the murder of Patri ck Smith. In imposing the death sentence, the jury found that the evidence of one aggr avating circumstance, “[t]he murder was especially heinous, atrocious or cruel in that it involved torture or

serious physical abus

e beyond that necessary t o produce death,” outweighed the evidenc e of mitigating circumst ances beyond a reasonable doubt. See Tenn. Code Ann. § 39-13-204(g) and (i)(5)(1991).
Although the defendant’s 1988 convictions fo r first-degree murder were affirmed on direct appeal by this Court, the case was r

emanded for resentencing because the trial court fail ed to suppress portions of a stat ement given by the defendant after he rescinded his waiver of the Fifth Amendment right to remain silent. State v. Cauthern , 778 S.W.2d 39 (Tenn. 1989), cert. denied 495 U.S. 904, 110 S.Ct. 1922, 109 L.Ed.2d 286 (1990) . In the 1988 Clarksvi lle trial, the defendant
was con victed of murder

ing Pat rick an d Rosema ry Smith in the perpetra tion of a felony. 2 The jury imposed the death sent ence for both murders after finding that the evidence of two aggravating circumstances, the murders were “especially heinous, atrocious or cruel, in that [they] involv ed torture or depravity

of mind,” and the murders were committed dur ing the perpetration of a felony , outweighed the3 Tenn. Code Ann. § 39-2-20 3(i)(5) & (7)(1982)[Now Tenn. Code Ann. § 39-13- 204(i)(5) & (7)(1991 & Supp. 1996)]. -3- evidence of any mitigating factors. 3 After a remand for resentencing, the Clarksville trial court granted a motion for change of venue to Gibson County, Tennessee.
The defendant alleges that a number of err ors occurred in the rese ntencing hearing in the Gibson Count y trial court, including but not limited to the sufficiency of the evidence and the jury instruction as to the heinou s, atrocious or cruel aggravating ci rcumstance, the jury in struction as to the penalty of life without parole, prosecutorial misconduct, and whether the death penalty was disproportionate. After reviewing the record, the issues raised, and the Court of Criminal Appeals’ opinion, we have determi ned beyond a reasonable doubt that none of the alleged errors affected the sentence imposed by the jury; moreover, the evidence supports the jury’s sentence of death an d the sentence is not dispropor tionate or arbitrary

as applied to the defendant. According ly, we affirm the sentence of death by electrocution.

FACTUAL BA CKGROUND A summary of the State’s evi dence offered at the resentencing hear ing begins on the morning of January 9, 1987, when police responded to a “burglary in progress” at the home of Patri ck and Rosemary Smith in C larksville, Tennessee. Upon arriving at the Smiths’ home, the police dis covered that a back door had been kicked in, a window

had been broken, and the phone lines had been severed.
Inside, police discove red the body of Patrick Smith partially lyi ng across the bed in the master bedroom; abrasi ons and marks on his neck indi cated that he had been strang led. The body of Rosemary

Smith was d iscovered in another bedroom; her underclothes were nex t to her body and her nig htgown was in the c orner of the-4-

room. A scarf had been tied around her neck and knot ted, with a small vase inserted between the nape of the neck and the knot, creating a t ourniquet.

The master bedroom was in dis array, indicating that a violent strugg le had taken place. The bedrail had splintered away from the headb oard and the mattress was on the floor. Credit cards, electronic gea r and a videocassette rec order appeared to be missing from the hous e. Police found costume jewel ry in the house, but no jewelry of v

alue. A slip of paper containi ng the name of the defendant, Ronnie Cauthern, was al so found.

The medical examiner, Dr. C harles Harlan, concluded that the victims died of ligature strangulati on. Neither victim di ed instantaneously and could have lived for as much a

s three to six

minutes from the time the

blood su pply w

as cut of f; however, they may

have been rendered unconsciou s in approximately thirty seconds. There was evi dence that someone had unsuccessfully attempted to strangle Rosemary Smith with the scarf, and finall y accomplished the strang ulation by using a vase as a tourniquet to increase pressure. The medical examiner also found evidence that Rosemary Smith had attempted to relieve the pressure on her neck when the strangula tion instrument was being applied. There were abras ions on her neck and face, and the thyr oid cartilage surroun ding her larynx had been fractured.
In addition to the foregoing, other evidence offered at the res entencing hearing was as follow

s. James Phillip Andrew testified that he was w ith the defendant, Ronnie Cauthern, and Brett Pa tterson shortly after the offenses. W hile watching televis ion, they all saw an account of the Smiths’ murders i n which a reward was offered for informati on. Cauthern told Andrew that he had worked for the Smiths in the past and that he br oke into their home and made the w oman get into the closet, while

he and Patterson strangled the man. Cauthern told Andrew4 There was evidence of a wet, cl oudy substance on the bed in whi ch Mrs. Smith was found, as w ell as o n Mr s. Sm ith’s fa ce an d thig h. Po lice als o disc over ed tw o bot tle ca ps fr om wine coole rs in the hall way outsi de the bedroom. -5- that he raped the woman once and that he had stolen a wedding r ing, a VCR, and some credit cards. Andrew testified that Cauthern seemed pro ud of what he had done, and that he threatened to kill Andrew if he repeated anything about the murders.
Joe Denning, Andrew’s roommate, also testified that Ronnie Cauth ern admitted his role in the ki llings. Cauthern tol d Denning that he had cut the telephone lines to the house, had br oken in through the back door, had shined flashlights in the victims’ faces in order to wake them, and had placed Rosema ry Smith in a closet. He admitt ed to Denning that he had raped the woman and poured wine coolers over her, 4 and then attempted to kill her. He said he tried to strangle the woman by tying a scarf around her neck, but did not have the strength to kill her, so he used the vase to create a tourniquet. Denning testified that Cauthe rn’s demeanor was “hyper” and “excited” when he related what he and Patters on had done. He said that he was going to be famous and that he woul d not be caught alive. He showed Denning credit cards, a checkbook, and some stolen jewelry which he intended to giv e to his girlfriend.
Cauthern’s former girlfr iend, Jackie Pigue, testi fied that on Thursday night, January 8, 1987, Cauthern and Patterson were “solemn” and “quiet.” The next day Cauthern gave her a watch and a wedding ring. He told her that someone owed him money an d he was hol ding the it ems as col lateral. When she later saw a news report re garding th e murder s and Caut hern’s ar rest, she went to the police an d gave them the jewelry.
Cauthern and Patterson were arrested on January 12, 1987. Search warrants were obtai ned for Cauthe rn’s car an d Patterson’ s house. Among the items-6-

found we re the vict ims’ cred it cards, identif ication c ards, rec eipts, ch ecks and t wo key rings containi ng keys which unl ocked the Smiths’ home and automobiles . The police also found two ski masks, several handguns,a roll of 880 military cord, and Patrick Smith’s jacket.
Initially, Cauthern gave several statements to the police, all of which were admitted into evidence at the s entencing hearing. In th e first statement, he denied knowing the Smiths or anything about the murders.In a later statement, whi ch was recorded and transcribed, C authern admitted that he was i n the Smiths’ home, but denied that he had raped or murdered anyone. Claiming that he and Mrs. Smith were having an affair, h e contended that she had called and i nvited him to come to the Smith house and enter through the back door. He said that bo th he and Patterson had consensual sex with Mrs. Smith, and he denied that he participa ted in the murders, raped the vic tim, or removed any it

ems from the house.
In the mitigation portion of the resentencing hearing, Cauthern testified that he was nineteen years o ld at the time of the murders. He stated that he never knew his birth father and saw his birth mother approximately three times during his entire life. His birth mother di ed, and he was adopted by hi s maternal grandmother and step-grandfather who mov ed to Clarksville in 1973. The defendant attended Northeast High School, but dropped out to care for his g randmother who had Parkinson’s disease, so that his step-grandfather coul d continue to work. He was married at the age of eighteen and at the time of the hearing, had an eight-year-old son. Although he had divorced his son’s mother, he continued to see his son every three to five months. Since hi s incarceration he had remar ried. His wife, w

ho lived in Canada, was not at the hear ing. He testified that he hel ps his parents by w riting letters for them.-7- Cauthern also said he had comple ted the Graduate Equivalen cy Examination and a paralegal course si nce being incarcerated, an d he serves as a teacher’ s aide to the unit prison teacher. He has achieved “A” st atus at Riverbend Max imum Security Institution for privilege purposes, which is the highest status available for a prisoner. He introduced letters of appreciation from a cor rectional officer and the prison teacher. A Unit R eview Panel Hearin g form containing positiv e comments concerning his behavi or and attitude was also introduced. He makes extr a money by drawing gr

eeting cards and sellin g them to other prisoners.Charles Tracy, a teacher for the Department of Correction, testif ied that he chose Cauthern as a teacher’s aide because he get s along well with others and has good communic ation skills.

JURY INSTRUCTION - AGGRA VATING CIRCUMSTANCE (i)(5) - TORTURE The defendant first argued that the jur y instruction as to Tenn. Code Ann. § 39-13-204(i)(5)(1991) - the heinous, atrocious, o r cruel aggrava ting circumstance - was reversible e rror because the 1989 amendment w as instructed to the jury rather than the statute as it exis ted at the time of the offense in 1987.
At the time of the offense, the aggrav ating circumstance set out in Tenn. Code Ann. § 39-2-203(i)(5)(1982) provided that “[t]he murder was especially heinous, atrocious, or cr uel in that it involv

ed torture or depravity

of mind.” In 1989, the statute was amended to provide as follows: “[t]he murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death.” Tenn. Code Ann. § 39- 13-204(i)(5) (1991). At the resentencing hearing, the trial judge instructed the jury in accordance with the 1989 amendment, rather than in accordance with the statute as it existed in 1987 at the time the offense was committed.Neither the defendant nor the State objected at trial.-8- This Court has decided that a resentencing hearing must be condu cted in accordance with the law in effect at the time of the offense. State v. Brimmer , 876 S.W.2d 75, 82 (Tenn.), cert

. denied , 513 U.S. 1020, 115 S.Ct. 585, 130 L. Ed.2d 499 (1994). We have also held that the 19 89 amendment to aggravating circumstance (i)(5) is “a subst

antive change whic

h imposes not a different level of proof upon the State, but different factors of proof.” State v. Bush , 942 S.W.2d 489, 50 5 (Tenn.), cert

. denied , ___ U.S. ___, 118 S.Ct. 376, 139 L. Ed.2d 293 (1997). Obviousl y, the amended version substitutes the phrase “serious phy sical abuse beyond that necessary to produce death,” for the words “depravity of mind.” It is therefore obvious that the trial j udge committed error in cha rging the jury w ith the 1989 version of the statute, rather than the statut e as it existed at the ti me of the commission of the offense in 1987. Id

.
Assuming there is error, as we must, the next question is whether the error is harmless. We faced a similar position in Bush , a case where the vi ctim was beaten and stabbed forty-three times in the face, neck, shoulders, and chest. Although the offense occurred before 1989, the trial court committed error by instructing the jury as to the law as changed in 1989, i.e., that the appropri ate aggravating circumstance was set out in Tenn. Code Ann. § 39-13-204(i )(5), “torture or s erious physical abuse beyond th at necessary to produce death,” instead of Tenn. Code Ann. § 39-2-203(i)(5), “torture or depravity of mind.” In spite of the error, we held that the defendant’s treatment of the vi ctim constituted “torture, ” independent of the depravity prong i n -203(i)(5) or the se rious physical abuse pr ong of -204(i)(5). Moreover, we found that the evidence was sufficient to establish “depravit y of mind” beyond a reasonable doubt, ev en though the jury w

as not instructed with regard to the definition of “depravity of mind.” Accordingly , we held that the trial court’s error in failing to instruct on the pre-1989 version of the aggravating ci rcumstance was harmless beyond a reasonable doubt. Id . at 506.-9- Following the Bush analysis, we must r eview the evidence

in this case to determine whether it is sufficient to support the “tortu re” prong of the aggrav ating circumstance, independent of the dep ravity or serious physical abuse prong. In this case, the trial court cor rectly instructed th e jury as to the terms “heinous, atrocious,” and “cruel” as defined in State v. Willia ms , 690 S.W.2d 517, 529 (Tenn. 1985). The trial judge also cor

rectly instructed th e jury that “torture” means “the infliction of severe physical or

mental pain upon the victim w hile he or she remains ali ve and conscious.” Id . at 529.
Applying these principles, we find that there is sufficient evidence in this record to establish the tor ture factor under Tenn. Code Ann. § 39- 2-203(i)(5) or Tenn. Code Ann. § 39-13-204(i)( 5), independent of the depravity or serious physical abuse prongs of the aggrav ating circumstances. The v ictim, Rosemary Smith, w as placed in a closet, first end uring the mental anguish o f her husband’s murder in the next room. She then was r aped twice, ridiculed , suffered through a bungled attempt at strangulation and stran gled to death with a tour niquet device placed ar ound her neck that caused massive damage to her throat and larynx. There was evidence that the victim strug gled to save herself w hile still alive and conscious by attempting to release the pressure w hich was applied to her neck. After the blood supply was finally cut off at the end of the strug gle, she may have los t consciousness in thirt y seconds but remained alive for three to six minutes. See , e.g. , State v. Hodges , 944 S.W.2d 346 (Tenn.), cert

. denied , ___ U.S. ___, 118 S.Ct. 567, ___ L. Ed.2d ___ (1997) (mental and physic al pain suffered by victi m of strangulation constituted torture). Thus, we conclude that the proof of torture establi shes beyond a reasonable doubt that the jury would have sentenced the defendant to death, even had no weight been given to the invalid criteria of “serious physical abuse.”

We also determined in Bush that had the jury been properly instructed, it would have found the evide nce sufficient to establish deprav ity of mind beyond a5 When this offense was committed, Tenn. Code Ann. § 39-2-203( g) requir ed the jury

to find that no miti gating fact ors were suffi cientl y substant ial t o outweigh t he statuto ry aggravating circumstance. The tr ial cour t here charged t he jury wi th the statute as amended in 1989,which provides t hat the j ury must fi nd that t he aggravati ng circumstances proven by the State outwei gh any mitigating circum stance s beyond a reaso nable do ubt. Ten n. Code Ann. § 39 -13-204 (g)(1)(B )(1991)

. Obviou sly, the 1989 version is m ore favo rable to the defend ant.

6 In Tison v. Ari zona , 481 U.S. 137, 158, 107 S.Ct. 1676, 1688, 95 L. Ed.2d 127 (1987), the Sup rem e Co urt he ld tha t the E ighth Am end me nt to th e Un ited S tates Con stitutio n doe s not proh ibit impositio n of the deat h penalty where a defendant is a major part icipant in a fel ony, and hi s mental state is on e of reck less indiffe rence to hum an life. See also State v. Branam , 855 S.W.2d 563 (Tenn. 1993). -10- reasonable doubt. “[D]eprav ity is inherent in th e state of mind of a murderer who willfully inflicts

severe phy

sical or me ntal pain on a victim pr

ior to death or at a time very close to the victim’s death.” Bush , 942 S.W.2d at 506; Williams , 690 S.W.2d at 529. The evidence outlined abov e is sufficient to conclude in this case that had the jury been properly instructed regarding depravity of mind, it w ould have found the evidence sufficient to establi sh this factor. See also State v. O’Guinn , 709 S.W.2d 561 (Tenn.), cert

. denied , 479 U.S. 871, 107 S.Ct. 244, 93 L. Ed.2d 169 (1986) (ligature strangulation constituted depravity of mind).

SUFFICIENCY OF EVI DENCE TO SUPPORT DETERMINATION THAT MURDER WAS “HEINOUS, A TROCIOUS OR CRUEL” In addition to the instructi onal error claimed, the defendant ar gues that the proof is insufficient to support the “heinous, atrocious or c ruel” aggravati ng circumstance and is insufficie nt to support a finding that thi s lone factor outweighs the mitigating circ

umstances presented in this ca se. 5 The defendant contends that the evidence implicated hi s co-defendant as the actual murdere r and that the evidence failed to show “ torture” because the vi ctim lost consciousness thirty seconds into the act of killi ng her. The defendant also relies on State v. Odom , 928 S.W.2d 18 (Tenn. 1 996), in which a majority of this Court found the evidence insufficient to support this ag gravating factor. We reject each o f these contentions.

The evidence established that the defendant Cauthern was a major participant in the crimes. 6 Cauthern and his co-defendant ki cked in the door to the-11-

victims’ home in the middle of the night and cut the phone lines. They woke Rosemary Smith and the defendant plac ed her in a closet whil e her husband was murdered in the next room. The defendant raped the victim, poured alcohol on her, and atte mpted to strang le her t o death, an act th at ulti mately requir ed the use of a tourniquet. Although the victim may have lost consciousness in thirty seconds, there was evidence of an earlier unsuccessful attempt at strangulation af ter which a vase was used as an aid to incr ease pressure on the neck before th e blood supply was finally cut off. Other evi dence demonstrated that she tried t o relieve the pressur

e on her neck as her larynx was being crushed and that she survived for three to six minutes after th e blood s upply w as cut of f.

The evidence of torture in this case is remarkably s imilar to State v. Hodges , supra . There the victim was bound and handcuffed to a bed while the defendant ransacked his home for property and money. After discussing with a co-defendant whether the victim s hould be killed, the defendant stra ngled the victim to death . As to the torture prong, w

e commented and held:
[T]he victim suffered considerabl e mental pain as the defendant, along with [a co-defendant], ransacked his home, looking for valuable property and money. The helpl ess victim’s mental pai n, no doubt, increased when the defendant and [a c o-defendant] . . . discussed whether or not they sh ould kill the victi m. The evidence surrounding the murder itself shows that the victim pleaded . . . for his life. Dr. Harlan te stified that the killing woul d have tak en betwee n three to five minutes to accomplish and that the victim would hav e been conscious for most of this period. [The co-defendant] t estified that she heard the victim moaning and making a choking sound. The facts and circumstances surrounding this murder, including the strangulation, are clearly sufficient to estab lish torture as that term has been defined . . . and to support the jury’s finding that this murder was heinous, atrocious, or cruel, in that it involved torture or serious physical abuse beyond that necessary to produce death

.
944 S.W.2d at 358 (emphasis added); see also State v. Shepherd , 902 S.W.2d 895 (Tenn. 1995)(asphyxiati on and suffocation of victim constit uted (i)(5)); State v. Johnson , 743 S.W.2d 154 (Tenn. 1987), cert

. denied 485 U.S. 994, 108 S.Ct. 1303,-12-

99 L.Ed.2d 513 (1988)(suffocation, taki ng four minutes for victim t o die, was sufficient to prove (i)(

5)). Accordingly , we conclude that the ev idence was sufficient to support the jury’s finding of this aggravating circumstance under the facts of this
case.
In making th is determin ation, we d istinguis h this case fr om State v. Odom , which is relied upon by the defendant. In Odom , the defendant accosted the victim, stabbed her three times, raped her, and took her purse. A ma jority of this Court found that the circumstance of that rape did not constitute torture and that, according to the majority, such a holding would have permitted every

murder in the perpetration of a rape to be automatic ally classified as a dea th eligible offense and would not narrow the class of death eligible offenders as required by the Ei ghth Amendment to the United States Consti tution and Article I, § 16 of the Tennessee Constitution. In contrast,the defendant in the present case w as also convicted of first-degree burglar

y, which, when c

oupled with the murder of the v ictim’s husband, the multiple rapes and strangulations of the victim, and the other evidence of to rture as outlined above, not only is sufficient to prove the ag gravating circumstance but also serves to narrow the class of death eligible offenders and distinguish this case from Odom . Thus, Odom does not support the defendant’s arg ument that the evidence was insufficient to support this aggra

vating circumstance.
Finally, the jury was instructed to consider several statutory mitigating factors: 1) the defendant had no significant c riminal history; 2) the murders were committed while the defendant was under the influence of extreme mental or emotional disturbance; 3) the youth of the defendant; 4) the defendant’s capacity to appreciate the wrongfulness of his condu ct or to conform his conduct to the requirements of the law was substantial ly impaired as a resul t of mental disease or defect or into xication which was insufficient to establish a defense as a matter of law but which substantially affected his j udgment through the ingest ion of drugs; and 5) any oth er7 The trial co urt ins truct ed th e jury o n the law as to m itigatin g circ um stan ces as am end ed in 1989, which r

equires i nstructi ons on statut ory and al so non-statut ory fact ors if r aised by t he evidence and sp ecifically reque sted. See Odom , 928 S.W.2d at 30. The statute at the ti me of this offense required i nstructi ons only on statutor y mitiga ting fact ors raised by

the eviden ce. Tenn. Code Ann. § 39-2-203(e)( 1982)[now Tenn. Code Ann. § 39-13-204(e) (1991)]. Again, t he differ ence in the instruction s favore d the def endan t. -13- mitigating evidence

which was rais

ed by the evidence. See Tenn. Code Ann. § 39- 13-204(j)(1991). The trial court also instructed the jury on several nonstatutory circumstances: 1) the defendant w as an enterprising y

oung man at the time of the crimes; 2) the defendant has a minor child; and 3) the defendant is mar ried. 7 The jury found beyond a reasonable doubt that the aggravating circumstance outweighed the mitigating circumstances in this case, and, as discussed above, the evidence was sufficient to support this finding.

LIFE WITHOUT POSSIBILI TY OF PAROL E - JURY INSTRUC TION The defendant also contends that the trial court erred by not ins

tructing the jury that life with out the possibility of par ole was a possible punis hment. The State responds that the punishment of life without th e possibility of parole was statutorily inapplicable to the defendant’s cas e and that the defendant expressly asked the trial court not to charge it. We agree with the State that the defendant has clearly waived this issue,but we also find that the opti on was unavailable to the defendant in this case.
Prior to 1993, the only pun ishments available for a person convicted of firstdegree murder were li

fe imprisonment or death. Tenn. Code Ann.§ 39-13- 202(b)(1991). The legisl ature later amended the statute to ad d life without possibility of parole as

a sentencing option. Tenn. Code Ann. § 39-13-202(c) (Supp. 1996). The amendment was specifical ly made applicable to offenses commit ted on or after July 1, 1993. See 1993 Tenn. Pub. Acts, ch. 473, § 1.
Conceding that this offense occur red well before July

1, 1993, the defendant argues that life without parole was a viabl e sentencing alternativ e because of Tenn.-14-

Code Ann. § 39-13-204(k)(Supp. 1996), which provides that if a defe ndant is granted a new trial, “either as to guilt or punishment or both, the new trial shall include the possible punishment s of death, imprisonment for life without possibility of parole or imprisonment for life.” Because life without par ole is a lesser penalty than death, the defendant also relies upo n Tenn. Code Ann. § 39-11-112 (1991), which provides:

Whenever any penal statute or penal leg islative act of the state is repealed or amended by a subsequent legislative act, a ny offense, as defined by the statute or act being repealed or amended, committed while such statute or act was in full force and effect shall be prosecuted u nder the act or statute i n effect at the t ime of the commission of the offense. Except as provided under the provisions of § 40- 35-117, in the event the subsequent act provides for a lesser penalty, any punishment imposed shall be in ac cordance with the subsequent act

. (Emphasis added).
First, the defendant clearly waived this iss ue prior to trial w hen he filed a motion in which he specific ally requested that the

trial court “not . . .submit to the jury the possible sentence of ‘Life W ithout Parole.’” Comments prior to jury selection by the trial

court and counsel make it abundantly clear that the defendant did not want the jury

to be charged on the option of li fe without the possibilit y of parole. Furthermore, there is no indication that the St ate objected to this procedure

. Under these circumstances, the issue is waiv ed. Tenn. R. App. P. 36(a). Nevertheless, we w

ill address the issue on the merits to provide furthe r guidance on these statutory provisions.

This Court’s role in co nstruing a statute is to determine and to “give effect t o the legislative inte nt without undul y restricting or expand ing a statute’s co verage beyond its intended scope.” Owens v. State , 908 S.W.2d 923, 926 (Tenn. 1995). We must determine the legislative int ent from the plain language of the s tatute,-15-

“read in context of the entire statute, without any forced or subtle construction which would extend or limit its meaning.” State v. Davis , 940 S.W.2d 558, 561 (Tenn. 1997). As a matter of statutory construction, a specific statut ory provision will control over a more ge neral statutory prov ision. Matter of Harris , 849 S.W.2d 334, 337 (Tenn. 1993). Moreover,a statute is generally presumed to operate prospectively, unl ess the legislature i ndicates a specific intention otherwise. Brimmer , 876 S.W.2d at 82.
We conclude that the spe cific enabling provision of the 1993 act, which clearly states that the

amendment applies to all offenses committed on or after July 1, 1993, controls, as a matter of statutory construction, over the more general provisions of Tenn. Code Ann. § 3 9-13-204(k) or Tenn. Code Ann. § 39-11-112. The defendant’s crime occurred w ell before July 1, 1993. The st atute in effect at that time, Tenn. Code Ann. § 39-2-203( k), provided that upon the g rant of a new trial, the available sentencing options wer e life imprisonment and death. There i s no indication that the legislature intended that the option of life without parole apply retrospectively to offenses occurring before July 1, 1993. See , e.g. , White v. State , 589 A.2d 969, 974 (Md. Ct. App. 1991)(trial judge lacked authority to charge the jury on life without parole becaus e the offense was committed prior to the effective date of the statute adding the sentencing option). Accordingly, even had the defendant not waived this issue, the trial court lacked the statutory authority to instruct the jury that life without possibi lity of parole was a sentencing option in this case.

PROSECUTORIAL MISCONDUCT The defendant next argues that pros ecutorial argument led to a rbitrary and unreliable sentencing i n violation of the Eighth a nd Fourteenth Amendments to the United States Constitution and Article I, §§ 8 and 16 of the Tenness ee Constitution. Contending that the prosecutor’s references to him as “the evil one,” comp aring him to other notoriou s murdere rs, and ca lling for ge neral det errence p rejudice d the jury,-16-

the defendant as

serts that these errors

required a new senten cing heari ng. To place the issue in contex t, we recite the relev

ant portion of the closing ar gument:
Yes, we are asking

for the death penalty. Why? Why should Ronnie Cauthern die? I once heard an interpretation of the Lord's Pr ayer. "Deliver u s from evil," originally trans lated and actually read, "Deliver us from the evil one"--far more personally [sic], far more graphic, and far more intense--the evi l one. In the 1960's, the Rolling Stones came out with a song

. The refrain after each chorus w as, "Pleased to meet you. Hope you guess my name." And, I suggest to you it was a song about the evil one ap pearing in person throug hout the ages i n many dif ferent g uises. Mr. Poland sa ys civilized society--in civilized society, we don't kill. But in civilized soci ety, we must address--we must stand up to, we must confront the realiti es of our daily exist ence and our daily surviv

al not only of ourselves but of our children and their children. It came to dawn on me after I thoug ht about, "Pleased to meet you, hope you guess my name"--that on January 8th and January 9th, 1987, the ev il one descended upon Patrick and Rosemary Smith, and the evil one is smar t, the evil one is skil led, the evil one is w ily, and the evil on e is manipulative. A si mple little demonstration of that, ladies and gentlemen, is thi s. The evil one appeared today and produced greetin g cards--"Merry Christmas," "Happy Holidays." But on January the 8th, 1987, the evil one appeared at the door of 351 Hampshire Drive, a home not unlike yours in a neighborhood not unlike yours--the evil one appeared there in disguise--a mask, a black jacket,a pistol, strangling

rope, and the evil one is capable of taking advantage of what was available inside their house. Yes, whether you l ike it or not--whether you volunteered or not, you are engaged in the ultimate battle in ev eryday combat with the evil one, and he's not going to go away. He appeared in Minnesota in the form of Jeffrey Dahlmer [sic]. He appeared in Uni on, South Carolina, and on January the 9th, he appeared i n the door of Patrick and Rosemary Smith. You cann ot negotiate with the ev il one, ladies and gentlemen. You c annot deal in good faith with the evil one. You hav

e got to destroy and destr oy, or he and his benefactors will destroy you. He'l l destroy us. He'll destroy our c

hildren. The evil one took the name of Ronnie C authern on that day. That was his name, and he's beyond redemption. He's beyond rehabilitation. There is no treatment for this individual posing i n a mask and taking human form.-17- There is no treatment for this per son. This person has been around through the ages and will appear again. You cannot cure him. Don't try to save him. Engage him in combat and destroy him. Do your duty. When you open that paper and you find that the S tate has carried out your instruction, you will have s caled the ramparts at least one time, and you will have been a part of bri nging back peace and tranquility in your community and i n our community, and you wi ll send a message to the ev il one. You will send a message that we stand ready- -armed, and ready to fight for all i n the world, for every thing that you believe in, for the s anctity of your home, the bl essing of seeing your childre n reach adulthood and have y our grandchildren, and you will take that step and leave a legacy to your ch ildren that they someday will not have to grapple with what

the Smiths had to deal with and what Karen Rivetna and her mother have to deal with. "Holiday Greetings"--a time for loved ones to g et together. Horrible c

haos has been reaped and racked on this family. I'm asking

you to do your duty.Stand tall. Thank you.
We have recognized that closing argument is a valuable privilege for both the State and the defense and have allowed wide latitude to counse l in arguing their cases to the jury. State v. Bigbee , 885 S.W.2d 797, 807 (Tenn. 1994). Nonetheless, closing ar gument is subject to the dis cretion of the trial judge , and must be temperate, predicated on ev idence introduced during the trial, and relevant to the issues being tri ed. State v. Keen , 926 S.W.2d 727, 736 (Tenn. 1994).
Here, it is evident that the prosecutor’s argument, in several respects, violated these well -established standards. F irst, the prosecution’s reference to the Lord’s Prayer and its

requests for the jury

to “combat and destroy” the “evil one,” amounted to the use of biblical passa ges that the Court repeatedl y has held to be improper and inflammatory. State v. Stephenson , 878 S.W.2d 530, 541 (Tenn. 1994); State v. Bates , 804 S.W.2d 868, 881 (Tenn.), cert

. denied 502 U.S. 841, 112 S.Ct. 131, 116 L.Ed.2d 98 (1990). Second, the frequent references to the defendant as the “evil one,” used as epithets to characterize the def endant, were also improper and potentially appealed to the bias and passion of the jury. Darden v. Wainwright , 477 U.S. 168, 179, 106 S.Ct. 2464, 91 L.Ed.2 d 144 (1986)(“animal”);-18-

Bates , 804 S.W.2d at 881 (“rabid do g”). Third, the statements that the jury should “do its duty” and that its verdict should send a message to the community constituted a plea for general deterrence, which w

e have held has no applicati on to either aggravating

or mitigating factors. Keen , 926 S.W.2d at 737; State v. Irick , 762 S.W.2d 121, 131 (Tenn. 1988), cert

. denied , 489 U.S. 1072, 109 S.Ct. 1357, 103 L.Ed.2d 825 (1989). Finally , the argument impermissibl y suggested to the jur

y that the defendant, as an incarnation of "the ev il one," should be sentenced to death not only for the offense charged but al so for other heinous offenses committed by "the evil one" in the form of other notor ious murderers. Cf

. Bigbee , 885 S.W.2d at 812 (argument that imposition of the death penalty in the cases befor e the jury would be an appropriate way to punish defendant for other crimes he had committed is improper). In summary, we find that the State's argument was highly improper.
Where argument is found to be improper the establi shed test for determining whether th ere is rever sible erro r is "wheth er the imp roper con duct cou ld have affected the verdict to the prej udice of the defendant." Harrington v. State , 215 Tenn. 338, 385 S.W .2d 758, 759 (1965). We m ust consider: 1) the conduct complained of, viewed in l ight of the facts and circumstanc es of the case; 2) the curative measures undertak en by the court and the prosec ution; 3) the intent of the prosecutor in making the i mproper statement; 4) the cumulati ve effect of the improper conduct and any other errors in the record; and 5) the relative str ength or weakness of the case. Bigbee , 885 S.W.2d at 809; State v. Buck , 670 S.W.2d 600, 609 (Tenn. 1984).
Application of these factors indicates that the argument, while highly improper, did not affect the verdict to the prejudice of the defendant. The remarks in question were only a p ortion of the prose cutor’s su mmation . Althoug h no curat ive measures were taken by the trial court or the prosecution, this was primarily8 We note, however, that the prosecutor

began his rebut

tal by discussing t he videotape of the murder scene. When the defense objected to the scope of the rebutt

al, t he prosecutor st

ated that

he "intend [ed] to make it relevant to counsel' s remarks . . ." The trial court overruled the obj ection. The prosecutor t hen launched i nto the argument set forth above.No further obj ections were made. -19- because the defense failed to object. 8 We suggest, however, that this is a case in which the sua sponte

intervention by the t rial court would hav e been appropriate. See Sparks v. State , 563 S.W.2d 564, 567 (Tenn. Crim. App. 1978). It appear s that the prosecution’s motivation in making the argument was to respond to def ense counsel’s assertion that the defendant should not receive a d eath penalty in a civilized so ciety and a lso to reb ut the de fendan t’s eviden ce of his rehabili tative potential. Finally, the misconduct must be viewed together with the overall record and the overwhelming strength of the State’s case. The evidence supported the aggravating factor

relied on by the State, as well as a finding that this factor outweighed the evidence of mitigating factors.
Accordingly, while we find that the prosecution's argument was patently imprope r and caut ion prose cutors aga inst simi lar argume nt in the f uture, we nevertheless hold that in this case, the argument did not affect the sentence or render the jury's deci sion arbitrary or unreliable under the Eighth and Fourteenth Amendments to the United States Cons titution or Article I, §§ 8 and 16 of the Tennessee Constitution.

EXCLUSION OF MITIGATION EVIDENCE The defendant argues that the trial court committed reversi ble error by excluding evidence

offered in mitigation, specific ally, a note writ

ten to the defendant by his son, which r

ead: Dear Dad, I Love you Dad. I hope I come again gen [sic]. Some time. we went to Ch uck [sic] Cheese. We went to Wall [sic] Mart and we had fun. Love always, Ry an-20-

The trial court excluded the letter, finding that it was of negligible pr obative value and was cumulative to the other evidence presented. The State contends that the ruling was not an abus

e of the trial court’s dis cretion.
The United States Supreme Court has repeatedly held that the Ei ghth and Fourteenth Amendments to the United St ates Constitution requi re states to allow the sentencer in a death penalty case to consider mitigat ing evidence. McKoy v. North Carolina , 494 U.S. 433, 442, 110 S.Ct. 1227, 1233, 108 L.Ed.2d 369 (1990). Mitigating evi dence includes “any aspec t of a defendant’s character or rec ord and any of the circumstances of the offe nse that the defendant proff ers as a basis for a sentence less than death.” Lockett v. Ohio , 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978). Accordingly, “states cannot limit the sentencer’s consideration of any relevant circumstance that could cause it to decline to impose the [death] penalty.” McCleskey v. Kemp , 481 U.S. 279, 306, 107 S.Ct. 1756, 1761, 95 L.Ed.2d 262 (1987).

We have also stressed that Article I,§ 16 of the Tennessee Constitution requires that the jury not be precluded from hearing evidence about the def endant’s background, record, and cha racter, and any circu mstances about the offense that may mitigate against the death penalty. Odom , 928 S.W.2d at 30; State v. Teague , 897 S.W.2d 248, 255 (Tenn. 1995). Similarly, the statutory scheme in effect at the time of this offense provided:

In the sentencing proceeding , evidence may be presented as to any matter that the court deems relevant to the punishment and may include,but not be limited to , the nature and circumstances of the crime; the defendant’s character, backgr ound history, and physi cal condition; any evidenc

e tending to establish or rebut the aggravating circumstances enumerated in subsection (i) below; and any evide nce tending to establish or rebut any mitigating factors . Any such evidence w hich the court deems to have probativ e value on the issue of punishment may be received.

. . .9 As discussed earl ier, t he statute in effect

at the t ime of this of fense did not

require t he trial court to char

ge the jury

on non-statut

ory miti gating fact

ors. -21- Tenn. Code Ann. § 39-2-203(c)(1 982)[now Tenn. Code Ann. § 39-13- 204(c)(Supp. 1996)]. The st atute also con tained specif ic statutory mitiga ting factors incl uding, “any other mitigating

factor which is rais

ed by the evidence produc ed by either the prosecution or defense at either the guilt or sentencing hearing.” Tenn. Code Ann. § 39-2-203(j)(1982)[now Tenn. Code Ann. § 39-13-204(j)( Supp. 1996)].
In light of these controlling principles, it is our view that the trial court erred in excluding the letter written to the defendant by h is son. The defendant’s family and young son who have expressed love and suppor t are arguably rele

vant to the defendant’s background and charact er, and a potential basis upon w hich a juror could decline to impose the death penalty. Although constitutional and nonconstitutional error i s a line frequently blu rred, the exclusion of miti gating evidence potentially undermines the reliabilit y of the sentencing determination, and is an error of constitution al magnitude. See Skipper v. South Carol ina , 476 U.S. 1, 4, 106 S.Ct. 1669, 1671, 90 L.Ed.2d 1 ( 1986). Thus, the burden is on the S tate to prove that the error di d not affect the verdict and, ther efore, was harmless beyon d a reasonable doubt. Satterwhite v. Texa s , 486 U.S. 249, 258, 108 S.Ct. 1792, 1798- 1799, 100 L.Ed.2d 284 (1988); Chapman v. California , 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).

A review of the recor

d reveals that the essence of the excluded evidence w as presented to the jury in other forms. The defendant testified that he had an eight year old son who v

isited him every thr

ee to five months. A photograph of the defendant with his son was introduced into evidence in mitigation. Based on this evidence, the trial cour t instructed the jury that it could consider the fact that the defendant has a minor son as a non-statuto ry mitigating factor. 9 According ly, we-22-

conclude that the error in excluding this ev idence did not affect the jury’ s verdict and was harmless beyond a r easonable doubt.

PROPORTIONAL ITY ANA LYSIS The defendant argues that his sentence is disproportionate to the penalty imposed in similar cases, considering the nature of the crime and the defendant. A statutory comparative

proportionality rev

iew, which we must undertake pursuant to Tenn. Code Ann. § 39-2-205(c)(4 )(1982) [now Tenn. Code Ann. § 39-13- 206(c)(4)(Supp. 1996)], “presupposes that the death penalty is not disproportionate to the crime in the traditi onal sense [and] purports to i nquire instead whether the penalty is nonetheless unac ceptable in a particular c ase because disproportionate to the punishment imposed on others convicted of the same crime.” State v. Bland , ___ S.W.2d ___ (Tenn. 1997)(quoting, Pulley v. Harris , 465 U.S. 37, 42, 104 S.Ct. 871, 875, 79 L.Ed.2d 29 (1984)). Al though not constitutionally required, comparative proportionality review “serves as an additional safeguard against arbitrary or capricious sentencing.” Bland , ___ S.W.2d at ___; see Gregg v. Georgia , 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (19 76).

In Bland , we identi fied two a pproach es to stat utory com parative proportionality rev

iew: the frequency method,which employs a stat istical analysis t o identify the various factor s leading to the impositi on of the death penalty and the frequency with w

hich the punishment is imposed i n similar circumstances ; and the precedent seeking method, which compares the case at issue with other cases in which def endants were convict ed of th e same or similar cri mes. W e have consistently employed the precedent method under our statut ory scheme, and the method, while not rigi d or objective, serv es the essential purpose of “i dentifying aberrant sentences.” Id . at ___.-23- Although no crimes are pr ecisely alike in the

applicable pool of cases, i.e. , those in which a capital sentencing hearing is

held, we have identified numerous factors for consideration reg arding an offense: “(1) the means of death; (2) the manner of death (e.g., violent, tortuous, etc.); (3) the motivation for the kill ing; (4) the place of death; (5) the similar ity of the victims’ c

ircumstances including age, physical and mental conditions, and the victims’ treatment during the killing; (6) the absence or presence of premeditation; (7) the absence or presence of prov ocation; (8) the absence or presence of justification; and (9) the injury to and effects on nondecedent victims.” Id . at ___. We have also identified factors to con sider regarding a particul ar defendant: “(1) the defendant’s pr ior criminal record o r prior criminal activity; (2) the defendant’s age, race, and gender; (3) the defendan t’s mental, emotional, or physical condition; (4) the defend ant’s involvement or role in the murder; (5) the defendant’s cooperation with autho rities; (6) the defendant’s remorse; (7) the defendant’s know ledge of helplessness of vic tim(s); and (8) the defendant’s capacity for rehabilitation.” Id . at __.

Here, the means of death was li gature strangulation and the manner of death, as we have held, w as tortuous under the aggr avating circumstance in Tenn. Code Ann. § 39 -2-203(i) (5). The moti vation for the killings was to r ob the vict ims and to burglarize thei r home. The victim was awakened in the middle of the nig ht, placed in a closet wh ile her hu sband was strangled to death , raped twi ce by two perpetrators, and then herself strangled to death. Th ere was extensive evidence that the crimes had been planned in advance, and there was no provocation or justification for the offenses. Althoug h the defendant, who was 19 at the time of the crimes, had no criminal r ecord, there was little evidence as to his mental , emotional or physical condition

at the time of the offenses. There is no q uestion that the defendant played the major role i n the planning and executi ng of the offenses.-24- Analysis of precedent in c ases involving s imilar murders and defendants reveals that the death penalt y is not arbitrary

or disproportionate. In State v. Hodges , supra , the defendant, having decided t o rob the victim, bound and handcuffed the victim to a bed whi le he ransacked his apartment. After discussing whether to kill the victim, the defendant then strangled the victim to death. As in this case, one aggravating

factor found by the jury w as that the killing had been “heinou s, atroci ous, or cru el” becau se it involve d torture . Althoug h there wer e two other aggravating factors, there was also extensive psychological proof offered in mitigation: the defendant had an antis ocial personality di sorder and he had been raped as a child. We held that the penalty was not disproportionate . 944 S.W.2d at 358-59.

In State v. Brimmer , supra , the defendant handcuffed the victim to a tr ee and strangled him to death with a wire slipknot. He was sentenced to death solely because the killing occurred in the course of a felony . Tenn. Code Ann. § 39-2-203 (i)(7)(1982) [now

Tenn. Code Ann. § 39-13-204(i)( 7)(1991)]. There was sub stantial mitigating evidence

indicating that the defendant had a borderline personality disorder, which res ulted in impulsive and unpr edictable behavior. We held, however, that the ev

idence was sufficient to find that the single aggrav

ating factor outweighed evidence of mitigating factors and that the penalty, as applied to the defendant under the facts and circumstanc es of the case, was not dispr oportionate. 876 S.W.2d at 88.

In State v. Keen , supra , the defendant received the death pena lty for raping the eight-year-old victim and then strangl ing her to death with a shoelace. The evidence indicated that the victim may have been u nconscious in a few seconds but died in a few minutes. The jury found three aggravating factors: the victim was less than twelve years

old, the killing w

as heinous, atrocious, or cruel, and the killing occurred during a felony. The defendant introduce d evidence of his post-traumatic-25-

stress disorder and dependant personality disorder, as well as evide nce of his good behavior in prison. Al

though the case was remanded for resentencing on an unrelated issue, we stat ed that the penalty was no t disproportionate as appli ed to the defendant. 926 S.W.2d at 743. See also State v. Caughron , 855 S.W.2d 526 (Tenn.), cert

. denied , 510 U.S. 979, 114 S.Ct. 475, 126 L. Ed.2d 426 (1993)(death penalty not disproportio nate applied to defendant who sev erely beat and strangl ed the victim); State v. Teel , 793 S.W.2d 236 (Tenn.), cert

. denied , 498 U.S. 1007, 111 S.Ct. 571, 112 L.Ed.2d 577 (1990)(death pen alty not disproportionate where victim suffered “neck trauma,” includi ng possible strangula tion); State v. Coe , 655 S.W.2d 903 (Tenn. 1983), cert

. denied , 464 U.S. 1063, 104 S.Ct. 745, 79 L. Ed.2d 203 (1984)(death penalty not di sproportionate where defendant r aped, stabbed and strangled the victim).
Our precedent also reveal s that the punishment in this c ase is not arbitrary

or disproportionate merely because the defendant was 19 year s of age at the time of the offenses. In State v. Van Tran , 864 S.W.2d 465 (Tenn. 1993), cert

. denied , 511 U.S. 1046, 114 S.Ct. 1577, 128 L.Ed.2d 220 (1994), a 19-year-ol d defendant shot and killed a 74-year-old victim during a robbery. The defendant offered evidence of his good employment recor d and lack of a prior crimi nal record. As in the pre sent case, the jury imposed the death penalty, finding that the murd er was heinous, atrocious or cruel purs uant to Tenn. Code Ann. § 39-2-203(i )(5). In State v. Taylor , 771 S.W.2d 387 (Tenn. 1989), cert

. denied , 497 U.S. 1031, 110 S.Ct. 3291, 111 L.Ed.2d 799 (1990), a 21 year old defendant assaulted the vict im with a knife and the victim died from interna l bleeding. The jury imposed the death penalty based on three factors, including that the murder was heinous, atrocious or cruel purs uant to Tenn. Code Ann. § 39-2-203(i)( 5). In Bland , supra , the 19-year-old defendant chased, shot and killed the v ictim. The jury imposed the death sentence on the basis that the murder had been heinous, atrocious, o r cruel in that it involved torture or serious physical

abuse beyond that necessary to produce death. Tenn. Code-26-

Ann. § 39-13-204(i)(5). In each of these cases, we held that the dea th sentence was neither arbitrar

y nor disproportionate, notwithstanding the y outh of the offenders.

The defendant’s main contention is that hi s punishment was dispropor tionate because his co-defendant received a life sentence for the offense. A disparity in sentencing may exist if there is a rational basis for the decision of the jury to impose the death penalty on one perpetr ator and not another. State v. Henley , 774 S.W.2d 908, 918 (Tenn. 1989), cert

. denied , 497 U.S. 1031, 110 S.Ct. 3291, 111 L .Ed.2d 800 (1990); State v. Poe , 755 S.W.2d 41, 49 (Tenn. 1988), cert

. denied , 490 U.S. 1085, 109 S.Ct. 2111, 104 L.Ed.2d 671 (1989); State v. Carter , 714 S.W.2d 241, 251 (Tenn. 1986), cert

. denied , 479 U.S. 1046, 107 S.Ct. 910, 93 L. Ed.2d 860 (1987). Here, we sai d in the initial appeal of this case: [t]here was sufficient evidence of other factors in supp ort of the jury’s verdic t to giv e Cauthe rn the de

ath penal

ty and Patterso n life imprisonment that would enabl e this Court to find that the sentence of death was not imposed on Cauther n in any arbitrary

fashion, or was excessive or disproportionate to the penalty imposed in similar cases.
State v. Cauthern , 778 S.W.2d at 48 n.1 . The defendant clearly was the leader in the perpetration of this crime;he knew the victims and planned the offenses. Patterson’s testimony at the sentencing proceeding expressed remorse, and, unlike Cauthern’s, was consi stent with the vers ion of the offenses that he gave to investigating officer

s. Patterson presented ext ensive evidence of mitigation regarding his military service, background, and family support. In sum, there was a basis for the different sentences impos ed by the jury.
Similarly, there w

as a discernible basis for imposing a lesser sentenc e in the factuall y simi lar case of State v. James Lloyd Jul ian, II , No. 03C01-9511-CV-00371 (Tenn. Crim. App., July 2 4, 1997, Knoxville).There, the defendant was convi cted of felony murder for strangli ng the victim in the c ourse of a kidnapping and rape. The-27-

jury, after a capital se ntencing proceeding, impos ed a sentence of life without parole. The defendant, unlike Cauther n in the present case, offered substantial mitigating proof in his defense. A clinical psychologist related the defenda nt’s history of substance abuse, dep ressive disorder, a nd mixed personality d isorder with borderline features. There was evidence that the defenda nt had been sexually abused as a child and that he had a hi story of violence w hen under the influence of alcohol and hallucinogens.This proof of mitigation evi dence, as well as the factual proof of the offense, distinguishe s Julian from the present case.
Although no two cases ar e identical, our revi ew of the facts and circumstances of this case, as well as relevant

precedent, indicates that the death penalty has been imposed in si milar cases involv ing rapes and strangul ation of the victim. According ly, we conclude that the death penalty is neither arbitrary nor disproportionate as applied in this case. See Tenn. Code Ann. § 39-2- 206(c)(1)(1982)[now Tenn. Code Ann. § 39-13-206(c)( 1)(1991 & Supp. 1996)].

CONCLUSION We ha ve conside red the er rors claim ed by the d efenda nt and ha ve determi ned beyon d a reason able dou bt that n one aff irmativel y appear to have affected the sentencing proceeding. W ith respect to issues not specifically addressed herein, we affirm the thorough and well-r easoned decision of the Court of Criminal Appeals, authored by Judge David H. Welles and joined in by Judge David G. Hayes and Judge Cornelia A. Clark. Relevant portions of that opinion are published hereafter as an appendix . The defendant’s sentence of death by electrocution is affirmed. The sent ence of death will be carr ied out as provided by law on the 23rd day of June, 1998, unless otherwise or dered by this Court, or

other proper authorities.-28- Costs of this appeal are tax ed to the defendant for which exec ution may issue.

_______________________________ RILEY ANDERSON, CHIEF JUSTICE

CONCUR: Drowota, Birch, and Holder, JJ. Reid, J. - see separate C oncurring Opinion

## A P P E N D I X-30- IN THE TENNESSEE COURT OF CRIMINAL APPEALS AT JA CKSON JULY 19 96 SESS ION STATE OF TENNESSEE, ) ) Appellee, ) C.C.A. NO. 02C01-9506- CC-00164 ) VS. ) GIBSON COUNTY (TRANSFERRED ) FROM MONTGOM ERY COUNTY) ) RONNIE MICHA EL CAUTHERN, ) HONORABLE DI CK JERMAN, JR. ) Appe llant. ) (Sentencing -Death Pe nalty)
For the Appell ant For the Appell ee Hugh R eid Poland, Jr. Charles W. Burson 408 Franklin Street Attorney Generaland Reporter Clarksvi lle, TN 37040 450 Jam es Robe rtson Pkwy. Nashvill e, TN 37243-0493 Robert T. Bateman John P. Cauley 221 South Third Str

eet Assistant Attorney General Clarksvi lle, TN 37040 450 Jam es Robe rtson Pkwy. Nashvill e, TN 37243-0493 Clayburn Peeples Distri ct Attor ney General 109 E. First

Street Trenton, TN 38382 John Carney Distri ct Attor ney General 204 Franklin Street, Suite 200 Clarksvi lle, TN 37040 Steve G arrett Assistant Distri ct Attor ney General 204 Franklin Street, Suite 200 Clarksvi lle, TN 37040 OPIN ION F ILED: December 2, 1996 DEATH PENALTY AFFIRMED DAVID H. WELLES JUDGE-31- 

## OPINION CONSTITUTIONALIT

Y OF THE ESP ECIALL Y HEINOUS, A

TROCIOUS, OR CRUEL AGGR

AVATOR Next, the appellant contends that the language of the aggravatin g circumstance found in Tennessee Code An notated section 39-13-204(i)(5) is too vague to satisfy constitution al standards. This aggravating circumstance can be imposed in the death penalty context if the jur y determines beyond a reasonab le doubt that “[t]he murder was especially heinous, atrocious, or cruel in that it involved torture or serio us physical abuse beyond that necessary to produce death.” Id. Furthermore, the appellant claims the definitions of the terms in the statute given by the trial court are themselves too va gue as well. The Suprem e Court recently addressed this issue in Odom . The Court upheld the v alidity of the aggravatin g circumstance under constit utional attack s. See Odom , 928 S.W.2d at 25-26. Accordingly , the appella nt’s issue is without merit.

ADMISSION OF THE VIDEOT APE The appellant claims that the trial judge abused his discretion by allowing i nto eviden ce a videot ape depic ting the crime sc ene. Spec ificall y, the appellant argues that those segments of the tape showing the officers turning the bodies over onto their backs in order to obtain an ante rior view were highly inflamm atory and irrelevant. The appellant places great w eight upon the fact that the original trial judge redacted from the jury ’s view during the guilt phase of the trial those scenes depicting the moving o f the-32-



### bodies. In response, the State argues that the video was releva nt to show the heinous, atrocious, or cruel nature of the crime.
The admissibility of relev ant videotapes of the crime scene a nd victims has long been wi thin the sound discretion of the trial j udge, and his or her ruling on admissibility will not be disturbed on a ppeal absent a clear showing of a n abuse of tha t discretion. State v. Ban ks , 564 S.W.2d 947, 949 (Tenn. 1 978). See also , State v. Bigbee , 885 S.W.2d 797, 807 (Tenn. 1994); State v. Van Tran , 864 S.W.2d 465, 477 (Tenn. 1993). Mor eover, the recent trend is to vest more d iscretion in the trial judge's ruli ngs on admissibilit

y. See Banks , 564 S.W.2d at 949; State v. Bailey , No. 01C01- 9403-CC-00105, Dickson County (Tenn. Crim. App., Nashvi lle, July 20, 1995); perm. to appeal denied , id ., (Tenn. 1996).

Evidence is relevant if it has "any tendency to ma ke the existence of any fact that is of consequence to the de termination of the action more probable or less probable than it would be without the evidence." Tenn. R. Evid. 401. However, rel evant evide nce "may be excluded if its pr obative value is substantially outw eighed by the danger of un fair prejudice, confusion of the issues, or misleading the j ury." Tenn. R. Evid. 403. Along these lines, the trial court should be gu ided by the following matters in determining

the admissibi lity of rel evant vi deotape ev idence: the acc uracy and clarity of the video and its value as evid ence; whether the video depicts the body as it was foun d; the adequacy of testimonial e vidence in-33-



### relating the facts to the jury; and the need for the evidence to establish a prima facie

case of guilt or to rebut th e defendant' s contentions. Banks , 564 S.W.2d at 951.
Prior to the sentencing hearing on r emand, the trial judge heard arguments regarding the admission o f the videotape and ruled th at the probative value of the

evidence in regards to the a ggravating factor outweighed any unfair prejudicial effect. The court also orde red that the sound be turned off so as to avoid any improper influence fr om the comments of th e officers. See State v. Van Tran , 864 S.W.2d 465, 477 (Tenn. 1993). The segments of the videotape at issue in this appea l deal with the camera shots of the victims. Those portions showing the general layout of the house and the ev idence of the burglary, while arguably irrelevant for purposes of sentencin g, are not at issue.

Both victims were found l ying face down. Mr. Sm ith’s body was wrapped in the covers knee ling against and on the bed, and Mrs. Smith’s body was nude on the fl oor. The video show s close-ups of both victims as they were found. The video then shows the officers r emoving the covers from around Mr. Smith’s body , turning his body onto his ba ck, and examining his neck, arms and l egs. The video zooms in on the wounds around his neck and face. Likewise, th e video shows the officers rem oving the scarf from around Mrs. Smith’s neck and flipping her body ov

er. Again, the video zooms in on th e wounds ar ound her neck and face.-34- 

### Both bodies exhibit a bluish tint to the skin and lips, as well as the effects of lividity and r

igor mortis. While the appe llant may be correct to argue that these postmortem features are i rrelevant to any aspect of the heinous, atro cious, or cruel aggravato r, the nature of the vari ous wounds t o the neck do appear relevant. E ach victim was strangled with a different object, and thus received different ty pes of strangulation marks around the neck. Moreover, as the exp ert testimony demonstrated, the pictur es of what are probably fin gernail scratches indicate that the vi ctims attempted to free the pressure from around their necks. Because of the position in which the victims wer

e found, it was necessary for th e officers to turn the bodies over to examin e the wounds to the neck. As the foren sic pathologist stated, the bluish color of the skin, i.e. cyanosis, is a natural consequence of this type of killing. The stiffness of the bodies resulting from the rigo r mortis is al so common afte r death, and n ot in and of i tself so inflammator

y. See State v. Bigbee , 885 S.W.2d 797, 807 (Tenn. 1 994). As the trial court noted, though the conditi on of the bodies is not pleasant by any means, it is “no t so gruesome as to . . . shock the conscience of the Court or of the jury.”

We believe the videos w ere relevant to the jury ’s determination of whet her t he mu rder

s wer e esp ecia lly

hein ous, atro ciou s or c ruel . We conclude that the probative v alue of the videotape outw eighs any unfair prejudicialeffect, and the trial judge

therefore act

ed appropria

tely. Contrary to the appellant’s a rgument, the fact that the judge on rem and-35-



### allowed more of the video to be shown than did the original trial judge is irrelevant to this Court’s inq uiry into the issue. The ori ginal judge’s ruling was based in part on showi ng the video during the gu ilt phase of the trial rather than th e sentencing p hase. This iss ue is witho ut merit.

EVIDENCE OF UNRELA TED CRIMES The appellant also argues that rev ersible error occurred when th e State introduced evidence concernin g a different robbery for which the appellant had been tried and acqu itted. In response, the State argues the appellant has waived th e issue because he permitted the introdu ction of the evidence and denied the court’s offer of a curative instruction.
The appella nt was origi nally indi cted on eight counts in this c ase. Three of those charges pertained to cri mes unrelated to the incident at the Smiths’ residence, and they w ere severed from the indictme nt. The appellant w

as subsequentl y tried and acquitted on those three cou nts. Prior to the resentencing hearing, the trial judge granted the appellan t’s motion to kee p the separate charges from the jury an d warned th e State that a mistria l could follo w if evid ence of them su rfaced.
During th e State’ s proof i n the hear ing, the State as ked Dete ctive Charles Den ton to read on e of the appel lant’s stateme nts into evi dence. This statement was obtained duri ng the first interview with the appellant on January 12, 1987. The appe llant objected to the introduction of this-36-



### statement because it was not a v erbatim recording of the conve rsation between t he offic er and the appellan t, but ra ther con sisted of Detec tive Denton’s annotations from the interv iew. The court overru led the objection and allowed the jury

to review copies of the statement while the officer read it aloud on the stand. The following question and answer appea r in this statement: “Question - Do you know who committed the armed ro bbery at the Hornbuckle 66? Answer - No.” This reference was to on e of the three charges on which the appellant was acquitted. After this portion of the statement was read, the appellant v oiced another objection. The court informed the witness not to read one further question in the statement pertaining to the Hornbuckle robber y. The appellant, how

ever, moved for a mistrial because the jury w as in fact reading along with the officer and could see the n ext questio n: “Question - Do you kno

w if Joe com mit [sic] the burglary - robbery

with Pat? Answer - I thi nk so.” The court overruled the motion for mistrial, and the fol lowing exchange occurred: “Court - What instruction do

you suggest

I give? . . . [Appellant’ s counsel] - We’l l just stand on the M otion for Mis trial.”
This situation is quite similar to tha t in State v. Smi th , 893 S.W.2d 908 (Tenn. 1994). In Smith , one of the St ate’s witne sses made refe rence to the defendant’s prior jail time. The defendant moved for a mistrial, which the court de nied. The court, h owever, gave the jury a c urative instruction to disregard the statement and n ot to consider it for any purpose. Id. at 923. The Supreme Court h eld that it must assume the jury-37-



### followed th e trial court’ s instruction. Id. Moreover, the Court noted that given the record as a w hole in that capital case, the statement, though improper, co uld not hav e prejudicia lly affected

the jury. Id. (citing T.R.A.P. 36(b)). Likewise, in State v. Harris , 839 S.W.2d 54, 72 (Tenn. 1992) (citing T.R.A.P. 36(b)), the Supre me Court, inconsidering the effect of sta tements concerning prior criminal activity on the jury’s v erdict in a capital case, stated that the admission of the evid ence was harmless beyond a reasonable d oubt when v iewed in co ntext of the

entire recor

d. See also State v. Baker , 751 S.W.2d 154, 164 (Tenn. C rim. App. 198 7); State v. Lawson , 695 S.W.2d 202, 204 (Tenn. Crim. App. 1985).

The decisions in the above-cited cases were based in part upon the appella te court ’s assu mption t hat the j ury obeyed t he trial court’s curative instruction pertaining to the inadmissibl e evidence. In the case at hand, the trial cour

t gave no cu rative inst ruction. How ever, as the

State notes, the appellant refused to entertain the trial court’s offer to give such an instruction. The decisions in the abov e-cited opinions also relied upon the rationale of T.R.A.P. 36(b): “A final judgment from which relie f is available and otherwise appropriate shal l not be set aside unless, considering the whole record, error inv olving a substantial right mo re probably than not affected the judgment or would result in prejudice to the judicial process.” The first part of that same rule states, in pertinent part, that “Nothing in this rule shall be construed as requiring relief be granted to a party responsible10 The appellant objected to the int roduction o f the stat

ement, but his objectio n was grounded upon something other t han the refer ence to the pr ior acqui ttal;he objected because the statement was not an exact t ranscript of the i ntervi ew which was conducted.

-38- 

### for an error or who failed to take whatever action w as reasonably availabl e to prevent or nullify

the harmful effect of an er ror.” T.R.A. P. 36(a).
Accordingly, although the trial court seemed willing to enterta in a request for an instruction, the appellant r efused to recommend an instruction and decided instead to stand on his motion for mistrial. The record indicates that the appellant also had an opportunity to review the statement before it was introduced, an d did not object to the improper references. 10 

### We believe Rule 36(a) contro ls our decision here. Moreov er, considering the whole record a s mandated by 36(b), we find the error to be harmless beyond a reasonable doubt. The improper statements w ere brief, and given the contex t in which they we re made, added no “‘new dimension to

the jurors’ v

iew of [the appellant]’”

. State v. Harris , 839 S.W.2d 54, 72 (Tenn. 1992) (quoting State v. Carter , 714 S.W.2d 241, 247- 48 (Tenn. 1986)). The statements d o not associate the appellant with any other criminal activity or legal proceedings. Furthermo re, before the hearing, the trial judge stated that a mistrial could be warranted i f any improper ev

idence concern ing the prior acquittals w

ere introduced. Since he overruled the appellan t’s motion, the judge must have been satisfied that no preju dice resulted from these im proper statem ents. We agree. This issue, the refore, is w ithout merit.-39- 

### ADMISSION OF TRANSCRIPT OF RECORDED STATEMENT Next, the appellant contends it w as reversible error for the trial court to allow a transcript of a tape-r ecorded statement into evidence w hen the State was unable to produce the o riginal recording. The State ar gues that the original has been lost and that the transcript was properly admitted under the exception to the best ev idence rule.

The evidence at issue here con sists of a transcript of a tape-recorded interview between

the appellant and Detectives D enton and Griffy. On the initial dire ct appeal of th is case, the Sup reme Court r eversed the

death penalty ba

sed upon the i mproper intr oduction of a portion of the interview

. In accordance with the Supreme Court’s opinion, that portion of the statement was not introduced during the hearing on remand. On re mand, a redacted transcript was read into evidence which omitted a ny mention of Brett Patterson. As part of his complaint, the appellant argues that he was “forced into the untenable position” o f subsequently having to i ntroduce the unredacted portions of the statement w hich referred to Patterson’s involve ment.
Prior to the introduction of the transcript into evidence, there was some discussion among the parties and the judge concerning the whereabout

s of the origi nal taped rec ording. Appa rently, the tape was lost or misplaced by the Supreme Court sometime during the prio r proceedings. The trial judge ma de the following ruling:-40- 

### All right. An d, the Tennessee Supreme Court’s alread y seen it. It’s been authenticated by the Tri al Court in Montgomery County and the Tennessee Sup reme Court. I’m going to let them read that portion which th e Supreme Court said was admissible . . . As an officer of the Cou rt, I’m saying that [the state] properly has this transcribed fro m the original tapes, and over you r objection a nd after notin g your ex ception, I’m g oing to allow its admission . . . It’s just tha t the tape is now gone and has been lost by the Tennessee S upreme Court . . . and I’m assuming that this transcript . . . is proper. According to the record before the Cou rt, the transcript of the recorded interview w

as authenticated and introduced during the original trial of this c

ase. See also State v. Cauthern , 778 S.W.2d 39, 41 (Tenn. 1989). Duri ng that trial, the trial ju dge ordered the State to redact those portions of the statement that referred to Pa tterson before the statement was introduced. Moreover , the trial judge on remand acknowledged the fact that the taped recording has been lo st. Rule 1004 of the Tennessee Rules of Evidence provides that other evidence of the o riginal recording is admissible if the original has bee n lost or destroyed. Accordingly , the introduction of the transcri pt was prope r.
Neither is there any meri t to the appellant’s claim that he w as prejudiced by the introduction of both the redacted and unredacted transcripts. The appellant seems to suggest tha t the evidence of the redacted statement placed undue emphasis on his involvement i n the crimes. The trial judge, how ever, allowed the witness to take the stand again and read the unredacted por tions into evidence. Any harm caused-41-



### by the redacted statement, therefore, w as cured by the additional evidence. Accordingly , this issue is w ithout merit.

NONSTATUTOR

Y MITIGATING CIRCUMSTANCES The appellant claims the trial j udge should have instructed the j ury it could consider as mitigating factors the fact that the appellant’s codefendant received a life senten ce, and that the appellant has been a model prisoner and has helped o thers inside and outside the prison. T he State argues that neither the state nor fede ral constitution require the judge to instruct the jury on nonstatuto ry mitigat ing circumstan ces.
The trial judge instructed the jury concerning the following statutory mitigating circumstances: 1) the appellant has no significant criminal history; 2) the murder w as committed while the appell ant was under the influence of extreme mental or emotional disturbance; 3) the y outh of the appellant at the time of th e crime; 4) th e capacity o f the appella nt to appreciate th e wrongful ness of his cond uct or to confor m his conduct t

o the requirements of the law w as substantially impaired as a result of mental disea

se or defect or

intoxicati on which w

as insufficien t to establish a defense as a matter of law bu t which substantially affected hi s judgment through the i ngestion of drugs; and 5) an y other mi tigating evidence whi ch is raised by the eviden ce. The judge also instructed the jur y on the following nonstatutory circum stances: 1) the appellant was an enter prising young man at the time of the crime; 2) the appellant has a mi nor child; and-42-



### 3) the appellant is married. T he trial judge refused, howev er, to instruct the jury that Patterson received a life sentence, the appellant has been a model prisoner, and the appellan t has helped others while in prison.

In State v. Odom , the Supreme Court recently addressed the issue of instructions on nonstatutory mitigators u nder the death penalty statute as amended in 1989. Although the Court recognized that the trial court is not constitutionally mandated to instruct th e jury on nonstatutory m itigating factors, the Co urt did construe the 1989 a mendments, see Tenn. Code Ann. § 39-13-204(e)(1) (Supp. 19 95), to require the judge to giv e the jury specifically requested instructions on m itigating circumstances that are raised by t he evidenc

e. See Odom , 928 S.W.2d at 29 -30. In its discussion, however, the Cour t also acknowledged that under the law as it previously

existed, see § 39-13-203(e) (1982), there w as no statutory provision requiring the tri al court to instruct the jury specificall y on nonstatutory

mitigators: [T]he only

mandatory

instructions with respect to mitigating circumstances are that those statutory circumstances which are raised by the evidence shall be expressly charged, and the jury must be told tha t they shall weigh and consider any other facts or c ircumstances th at are raised by the evidence that they find to be mitigating circumstances, in making the determination of which circumstances, a ggravating or mitigating, outweigh the other. Odom , 928 S.W.2d at 29 (quoting State v. Hartman , 703 S.W.2d 106, 118 (Tenn. 1985) ). See also State v. Cazes , 875 S.W.2d 253, 268 (Tenn. 1994); State v. Smi th , 857 S.W.2d 1, 15 (Tenn. 1993); State v. Wright , 75611 Prior t o the 1989 amendments, the t rial co urt was not r equired to

inform the ju ry that

no distinction shall be made between statutory and specifically requested nonstatutory mitigati ng factors

. See § 39-13-203(e) (1982). The j udge here inst ructed the jury not to dist inguish bet

ween the two type s of facto rs. See § 39-13-204(e) (1) (Supp. 1995.). -43- 

### S.W.2d 669, 674 (

Tenn. 1988); State v. King , 718 S.W.2d 241, 249 (Tenn. 1986).
The trial judge in this case instructed the jury on the law g overning mitigating ci rcumstances as a mended in 19 89. See Tenn. Code Ann. § 39-13-204(e)(1) (Supp. 1995). 11 

### The judge also instructed the jur y on three specific nonstatutory mitigating factors. As d iscussed previously, the general provision s of § 39-1 1-112 and the princ iples ag ainst re troact ive application of statutes mandate that an offense committed under a repealed or amended law shall be prosecuted under that law , unless the new law p rovides for

a lesser pena lty. See State v. Smi th , 893 S.W.2d 908, 919 (Te nn. 1994); State v. Brimmer , 876 S.W.2d 75, 8 2 (Tenn. 1994). The amendments to those sections of the death penalty statute addressing mitigating ci rcumstances, ho wever, do

not pertain t

o lesser pena lties.
Accordingly, the trial judge w as not compelled to instruct the jury on specific nonstatutory mitigating factors, and should have instructed the jury under the law

as it existe d at the time of the commiss ion of the offe nse. However, because the instructio ns on the several nonstatutory mitigating circumstances inured to the benefit of the ap pellant, any errors in the tri al court’s actions

were harm less. See supra note 3. Furt hermore, beca use-44-



### the prior law did not requ ire the judge to instruct on nonstatutory mitigating circumstances, the trial judge’s refusal to instru ct on the requested mitigating factors at issue here was p roper. This issue, therefore, is without mer

it.

COMPETENCY OF JUROR FOREPER SON The appella nt next conte nds that the ju ror foreperso n’s inabilit y to read the verdict form wi thout the assistance of the trial judge effectiv ely denied him the right to an im partial jury. Specifically , the appellant suggests that since the foreperson had difficulty reading the verdict form aloud in open court, she probably encountered difficulty understandin g the legal instructions contained in the w ritten charges. The State contends that although

the foreperso n experien ced some troub le reading th e verdict form, there is no evidence in the record which indicates she coul d not understand the spoken word of the o ral charges given by th e judge.
The trial judge read the charges to the jury in open court be fore allowing them to retire. On ce the jury returned from the ir deliberations, the following exchange ensued: THE COURT: All right. I’m going to ask you to read that for me if you wil l. With regard to the first count of the indictment which alleges th e murder of Patrick Smith, what is y our verdic

t? MS. VALERIE CLARK: Life imprison ment. We, the jury -- THE COURT: Will you read it -- read that for me? MS. CLARK: We, t he jury -- okay -- w hat’s that?-45- 

### THE COURT: Unanimou sly. MS. CLARK: Unanimously determine that one -- THE COURT: Statuto ry. MS. CLARK : Statut ory. THE COURT: Aggravati ng. MS. CLARK: Aggravating -- THE COURT : Circumstances. MS. CLARK: Circumstances has been pro ven by the Stat e beyond a r easonab le doubt . We, th e jury, therefore, find the sentence shall be im prisonment for life. THE COURT: And, you’ve each affixed your name to that. Is that

right? MS. CLARK: R ight. THE COURT: With regard to the second count of the indictment which alleges the death of Rosemary Smith, what

is your v

erdict? MS. CLARK: Punishment of death. THE COURT: Will you read that for me, please? MS. CLARK: We, the jury -- THE COURT: Unanimou sly. MS. CLARK: U nanimously find that the following list -- listing -- THE COURT: Statuto ry. MS. CLARK : Statut ory. THE COURT: Aggravati ng. MS. CLARK: Aggravating. THE COURT : Circumstances. MS. CLARK: Circumstances of -- THE COURT: Do you

want to list this for me? Ca n you read that, please? MS. CLARK: The murder w as especially human -- THE COURT : Heinous. MS. CLARK: -- heinous -- THE COURT : Atrocious. MS. CLARK: -- atrocious, and cruel, in that is involved -- THE COURT: Torture. MS. CLARK: -- torture -- THE COURT: Or serious -- MS. CLARK: -- or serious phy sical abuse beyond that necessary to prove -- THE COURT: -- produce death. MS. CLARK: -- produce death. THE COURT: All right. Will y ou continue to read? MS. CLARK: We, the jury -- THE COURT: Unanimou sly.-46- 

### MS. CLARK: -- unanimously find that the State has been proven beyond a rea

sonable doubt that the circumstances are-- THE COURT: Statuto ry. MS. CLARK: -- statutory -- THE COURT: Aggravati ng. MS. CLARK: - - aggravat ing circumstan ce or circumsta nces so to list above outweigh a ny other -- THE COURT: Mitigating. MS. CLARK: -- mitigating circum stances. Therefore, we, the jury, unan imously fi nd that the pu nishment for the defendant , Ronnie -- THE COURT: Cauthern. MS. CLARK: -- Cauthern shall be death. THE COURT: Be seated please.
The Supreme Court dealt with this very issue in Kirkendoll v . State , 281 S.W.2d 243 (Tenn. 1955), a case wh erein the death penalty w as affirmed. The Court held it w as not error for the trial judge to accept a juror who could n ot read the w ritten charges given by the court. Id. at 255. The Supreme Cou rt reasoned a s follows: We think though that other jurors if necessary could read this to that juror who could not read while in the jury room. The purpose of ha

ving the w ritten charge before them . . . was to prevent and keep the jury from having to keep runni ng backward and forward into court getting the court to recharge them on var ious and sundry lit tle thin gs that t hey might h ave forgotten. It seems to us that as long as this w ritten charge is in the jury room that there are others there who can read that this would satisfy that question. Consequently this assignment must be overruled. Id. We believe that the holding and r easoning in Kirkendoll is dispo sitive of the issue before us here. The app ellant has failed to point to any thing in the record, apart from the d ifficultly i n the reading of the verd ict form, wh ich-47-



### suggests Ms. Cl ark did not un derstand the o ral charges g iven by the judge. Nor has the a ppellant dem onstrated that he suffered a ny prejudi ce as a result of the Ms. Clark’s reading skills. Accordingly, we conclude that this issue is with out merit.

INDIVIDUAL AND SEQUESTERED VOIR DIRE Next, the appellant claims the trial court erred when it den ied the appellant’s motion for individual and sequestered voir d ire. Specifically, the appellant contends the prospective j urors may have been aware of the facts of this case prior to the hearing. Th e State contends the trial court acted ap propria tely.
The appella nt filed a pre -trial motio n requesting permission to conduct individual and sequestered voir dire of the prospectiv e jurors. The trial court denied the motion. Du ring the voir dire, the pr osecutor asked, among others, the follow ing questions : Have any of yo u heard or read anything at all about this case? Have any of yo u heard anyone expr ess an opinion about what ought to happen in this case? There will be testimony that this crime occurred in Clarksville, Tennessee. This is a case, by the way, about two Army nurses, a husba nd, Patrick Sm ith, and his wife, Rosemary

. This crime occurred either on the n ight of January the 8th, 1987 or the early

morning hou rs of January the 9th. Mr. and Mrs. Smith -- Captain Smith and C aptain Smith were captains in the Army -- were at hom e asleep when two defend ants, Ronald Cauthern and another man, broke i nto their home, attacking both of them, raped Mrs. Smith, garro ted -- that’s a term you-48- 

### may not know the meani ng of right now, but if y ou’re chosen as a juror yo u will befo re this case is over -- an d left them bo th dead. Now, have any

of you ever heard anything about this fact situation? Is there anybody here w ho doesn’t think they can giv e the defendant a fair trial? The prospective jurors a ll responded negativel y to each of these question s.

Individual

and sequester

ed voir di re is required only wh en there is a “significant possibility”

that the prosp ective juro rs have bee n exposed to potentially

prejudicialmaterial be fore the trial

. State v. Howell , 868 S.W.2d 238, 247 (Te nn. 1993); State v. Harris , 839 S.W.2d 54, 65 (Tenn. 1992). The decision of whether to gra nt individual and sequestered voir dire of prospective jurors lies with in the sound discretion of the trial ju dge, and that decision will not be ov erturned absent a finding of “mani fest error.” Howell , 868 S.W.2d at 247-48; Harris , 839 S.W.2d at 65

.
The appellant has failed to dem onstrate in the case at hand any prejudice resulting from the trial court’s denial of his motion. All o f the prospective jurors indicated they had no knowledge of the facts or circumstances of this case. The fact that the jury knew the appellant was already convicted of first degree murder, contrary to the app ellant’s claim, is irrelev ant to this issu e. The natur e of the proce edings in a ca pital case necessarily creates a situation w here the sentencing jury w ill always know the guilt determination. The fact tha t this was a resentencing hearing does not present any substantial distinctions, especially when the jury was-49-



### unaware of the prior proceed ings. Accordingly, we find that the trial court did not abuse its discretion in denying the appellant’s motion.

MERCY INSTRUCTION The appellant claims the trial cou rt should have instructed the jury that it could recommend mercy when rendering its sentence. Th e Supreme Court has continually upheld the trial court’s decision in this respect. See State v. Bigbee , 885 S.W.2d 797, 813-14 (Ten n 1994); State v. Cazes , 875 S.W.2d 253, 269 n.6 (Ten n. 1994); State v. Hartman , 703 S.W.2d 106, 119 (

Tenn. 1985); State v. Melson , 638 S.W.2d 342, 366 (Tenn. 1982) . Accordingly , this issue is w ithout merit.

EVIDENCE OF THE UNDER LYING FELONIES The appellant also alleges that the trial court erred by deny ing his motion to prevent the State from introducing evidence of the u nderlying burglary and rape. He contends this evidence did not rel ate to either the aggravating or mitigating circumstances and thus was improperly before the jury. In response, the State asserts th at the trial court acted appropr iately.
Prior to trial, the appellant filed a motion to prevent the State from introducing evidence of the und erlying burglary a nd rape. The trial judge denied the motion, stating:-50- 

### This was all evidence that was originally in troduced at the original trial -- at the guilt p hase of the trial, and I think the jury is entitled to all the eviden ce from the guilt phase of the trial in making their determination as to what the proper punishment is. I think that’s the law. I don’t th ink that the rape itself could be an aggravating circumstance, bu t evidence of the rape could go to the proof of the aggrava ting circumstance that you’re alleging, and for that reason that’s why I’m going to allow the introduction. In his argume nt before the Court, the ap pellant seem s to suggest that the Supreme Court’s holding in State v. Mi ddlebrooks , 840 S.W.2d 317 (Tenn. 1 992) controls this issue. Middlebrook s stands for the proposition that the State cannot rely upon the underlying felony in support of the aggravating circumstance that th e murder was committed in th e perpetration

of a felony

when the ap pellant wa s convicted o

f felony mu rder. Id. at 346. In the instant case, howev er, the State sought to prove the existence of only one ag gravating circumstance, that the murd er was heinous, atrocious, or cruel. Thus, there is no duplication problem like tha t encountered in Middlebrook s
. Id.

Moreover, in State v. Cazes , 875 S.W.2d 253, 270 (Tenn. 1994), the Supreme Court, while conductin g a Middlebrook s harmless err

or analysi s, stated: “A sentencing jury may properly hear evi dence regarding the circumstances of the offense.” See also State v. Smi th , 893 S.W.2d 908, 925 (Tenn. 1 994). As the tr ial court imp lied, the jur y must be al lowed to consider the ci rcumstances sur rounding the murder in o rder to appropriately determine the existence of the heinous, atrocious, or cruel aggravating circumstance. The cir cumstances surrounding the murder-51-



### include evidence of the separate felonies. The trial court ruled, ho wever, that the State could not inform the jur y that the appellant had bee n convicted of burglary and rape. Because we believ e the trial court acted appropriately in this regar d, we find no merit to this issue.

EXCLUSION OF PROSPECTIVE J UROR The appellant maintains that the trial judge committed reversi ble error by excusing a pr

ospective juror because of his perceived views on capital punishment. During v oir dire, a prospective juror informed the prosecutor that he did not think he could “live with” the impo sition of the death penalty. Subsequently , the judge asked the prospective j uror if he could follow the law. H e responded by stating that “the Lord makes the decision on d eath,” and tha t he did not th ink he could i mpose the pen alty. The judge thereaf ter excus ed the man from the j ury.
The applicable standard for determ ining whether a juror w as properly excused for cause because of his belie fs on the death penalty wa s delineated in Wainwright v . Witt , 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985), and is as follow s: "whether the juror's views would 'prevent or substantially impair the performance of his du ties as a juror in accordance w ith his instru ctions and his oath.'" See State v. Alley , 776 S.W.2d 506, 518 (

Tenn. 1989) (Tennessee Su preme Court adopts Wainwright standard). Furthermore, the Uni ted States Supreme Court held that "this stand ard does not r equire that a

juror's bia

s be proved

with-52-



### 'unmistakabl e clarity.' " Wainwright , 469 U.S. at 424, 105 S.Ct. at 852. The Court also noted that "deference must be paid to the trial judge who sees and hears the

jurors." Id. at 426, 105 S.Ct. at 853.
We agree that the prospective juror’s an swers suggesting that he could not impose the death penalty "would 'prevent or substantially impair the performance of his duties as a juro r in accordance with his instructions and his oath.' " Id. at 424, 105 S .Ct. at 852. See also , State v. Smi th , 893 S.W.2d 908, 915-16 (Tenn. 1994). Although this determination might not be "unmistakably clear," it need n ot be. Moreover, as the Uni ted States Supreme Court has held, great de ference should be given to the trial judge, who is "left with the definite impression that a prospectiv e juror would be u nable to faithfully and i mpartially apply the law." Wainwright , 469 U.S. at 426, 105 S.Ct. at 853. T he trial judge's findings "shall be accorded a presumption of correctness and the burden shall rest upon the appellant to establish by conv incing evidence that [those finding s were] erroneous." State v. Alley , 776 S.W.2d 506, 518 (Tenn. 1989). The appellant has failed to meet his bu rden in this case.
The appellant also contends that ex cusing the prospective juror because of his religious beliefs furt her interferes with the appellant's constitutional rights. Our Supreme Court has ruled that because a juror's "'views on capital puni shment may have had a religious foundation does not necessarily transform the test mand ated by the United States Supreme-53-



### Court in [ Wainwright v . Witt ] into religious tests for . . . [constitutional purposes].'" State v. Jones , 789 S.W.2d 545, 547 (Tenn. 1990) (1990) (quoting State v. Bobo , 727 S.W .2d 945, 949 (Tenn . 1987)) . Accord ingly, Mr. Williams’ opposition to the death pena lty, though possibly based on religion, appropriately re ndered him unfit as a juror. T he trial judge acted properly, and this issue, therefore, is without me rit.

ADMISSION OF APPELLANT’S STAT EMENTS The appella nt, relying

on his brief submitted during the initi al direct appeal of this case, argues that the trial cou rt erroneously allowed the introduction of the appellant’s st atements into evidence. The Supreme Court previously add ressed this issu e on the orig inal appealof this case. See State v. Cauthern , 778 S.W.2d 39 (Tenn. 1989). The rem and of this case was based upon the Court’s de termination that a portion of the appellant’s s

tatement wa

s erroneously

introduced. Id. at 47. During the resentencing hearing, the trial court fo llowed the Supreme Cou rt’s mandate and exclu ded the ob jection able port ions of t he state ment. Ac cording ly, because the Supreme Court has alrea dy addressed this issue, the appellant’s argument must fail.

CONSTITUTIONALITY OF THE DEATH PENA LTY Finally, the appell ant asse rts the death penalty is cruel an d unusual pu nishment in violation of the state and federal constitutions. On d irec t-54-



### appeal, the Supreme Court rejected this argument. See State v. Cauthern , 778 S.W.2d 39, 47 (Tenn. 1989). Likewise, the Court has repeatedly up held the constitutionality of the death pena lty in the face of sim ilar challen ges. See State v. Smith , 893 S.W.2d 908 (Tenn. 1994); State v. Brimmer , 876 S.W.2d 75 (Tenn . 1994); State v. Cazes , 875 S.W.2d 253 (Tenn. 1994) ; State v

. Smith , 85 7 S.W.2d 1 (Tenn. 1993); State v. Bla ck , 815 S.W.2d 166 (Tenn. 1991); State v. B oyd , 797 S.W.2d 5 89 (T enn. 1990); State v. Teel , 793 S.W.2d 236 (Tenn. 1 990); State v. Thompson , 768 S.W.2d 239 (Tenn. 1989). Accordingly , this argume nt is withou t merit.

CONCLUSION Aftera thorough review o f the issues and the record before us as mandated by

Tennessee Code Annotated section 39-13-206(b) and (c), and forthe reasons sta

ted herein, w

e affirm the a ppellant’s se ntence of d e ath. We conclude that the sentence was not im posed in an arbitrary fashion , the evidence supports the jury’s finding of th e aggravating circumstance, and the evidence supports the jury’s find ing that the aggravating circumstance outweighs any mitigating circumstan ces. Moreover, a compara tive proportional ity

review, considering both the circumstances of the crim e and the nature of the appellant, convi nces us that the sentence of death is neither12 No execution dat e is set i n this opi nion. Tennessee Code Annotated secti on 39-13- 206(a)(1) provides for automatic revi ew by the Tennessee Supreme Court up on affirmance of the death penalty. If the sent ence of death i s upheld by the Supreme Court on review, that court

willset the execut ion date.

-55- 

### excessive

nor dispropo rtionate to th e penalty i mposed in sim ilar cases. 12


### Accordingly, the judgment of the trial court is affirmed.

_______________________________ _ DAVID H. WELLES, JUDGE
CONCUR:

_______________________________ ___ DAVID G. HAYES, JUDGE

_______________________________ ___ CORNELIA A. CLARK, SPECIAL JUD GE-56-