# FILED
January 15, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE TENNESSEE COURT OF CRIMINAL APPEA LS AT NASHVILLE AUGUST 1997 SESSIO N
STATE OF TENN ESSEE, ) C.C.A. NO. 01C 01-9606-CR-00230 ) Appellee, ) DAVIDSON COUNTY ) (No. 87-F -168 2 Bel ow) VS. ) ) The Honorable Ann Lacy Johns DONALD RA

Y MIDDLEBROOKS, ) ) (RESENTENCING - DEATH PENALTY) Appellant. )

FOR APPELLANT: FOR APPELLEE: Lionel R. Barrett, Jr. John Knox Walkup Washington Square Two, Suite 418 Attorney General & Repor ter 222 Second Avenue North Nashville, TN 37201 Michael E. Moore Solicitor General Richard McGee 601 Woodland Street Kathy Morante Nashville, TN 37206 Deputy Attorney General 425 Fifth Avenue North Cordell Hull Buildi ng, Second Floor Nashville, TN 37243-0493 Victor S. Johnson III District Attorney General Roger D. Moore Assistant District A

ttorney General John C. Zimmerman Assistant District A

ttorney General Washington Square, Suite 500 222 Second Avenue North Nashville, TN 37201-1649
OPINION FILED: ____________________________

_ SENTENCE OF DEA

TH AFFIRME D

CURWOOD WITT Judge1 O P I N I O N

In this capital case, the

appellant, Donald Ray M iddlebrooks, was convicted bya jury in September 1989 of felony murder and sentenced to death by electroc ution

. The appellant’s convicti on was upheld by our su preme court; however, his sentence was reversed, and the case was remanded for a new sentencing hearin g. See State v. Middlebrooks , 840 S.W.2d 317 (Tenn. 1992), cert
. dismissed , 510 U.S. 805, 114 S.Ct. 651, (1993).

At a new sen tencing hea ring held upon remand, the jur y found that the murder was especially heinous, atrocious, or cruel in that it involved tor ture or depravity o

f mind. See Tenn. Code Ann. § 39-2-203(I)(5)(1982) (repealed 1989). T he juryfound there
were no mitigating circumstances sufficiently substantial t o outw eigh this aggrav ating circumstance and sentenced the appel lant to death by electrocution.

In this appeal, the appellant rai ses issues regarding alleged errors occurring during the resentencing hearing and challenging the cons titutionality of the death penal ty statutes. The Court having carefull y considered the appellant’ s contentions, we find that none has merit. According ly, we affirm the appellant’ s sentence of death.

I. BACKGROUND

The victim’s friend, Shannon St ewart, who

was twelve years o ld at the time, met the a ppellant on the Monday before the victim disappeared. The appel lant called himself “Debow.” The woman with the appellant, Tammy Middlebrooks, was i nt roduced
as “Debowa.” The two were selling junk at a flea mar ket in a vacant lot on Gall atin Road. When Stewart and the victim saw the appellant and Tammy looking through a dumpster on Sunday mor

ning, Apri l 26, 1987, St ewart int roduced them t o the victi m.

Around 4:30 or 5: 00 p.m. o n that da y, the victim, Kerrick Majors, walked w

ith2

his older brother, KellyVaden, to a friend’s house to shoot basketball. Around 7:00 p.m., Vaden and the victim were walking home when one of Vaden’s friends drove by and ask ed him to go riding. The v ictim said that he was going back to play more b asketball.

Lat er that evening, Stewar

t and the victim, along with some other frien ds , wentto the vacant lot wher e there was

a table with some items s et out on it. Stewart w

as the last to get there because he was stopped by

traffic while tryi ng to cross Gallatin Road. The woman who identified hers elf as Debowa

shouted “Hey, ya’ll

nigge rs leav

e our st uff alone.” The appellantand Roger Brewing ton, who was selli ng junk with the appell ant and Tammy Middlebrooks, started

chasing the boys. Tw

o of the boys managed to run ahead of the others. The three slower boys were Stewart, the victim, and Antonio Wat son. Stewart saw Brewington grab the victim in a head lock, and thevictim said “Hey man, you know me.” The appellant ran up and said, “Shut up, nigger.” He then smack ed the victim. S tewart and Wats on ran away. Later they met up with the other boy s and saw the appellant walking ar

ound like he was looking for them, but they never found the victim.

Sometime

after 9:00 p.m., three boys came to the home where the victim lived with Vaden and his mother, Deborah Majors. The boys told M ajors that a white man had grabbed and slapped the victim on Gallatin Road. When Vaden then retu rned home around 10:00 p.m., Majors called the police, who then came to the house. Vaden went out looking for the victim’s friends to g et information, but he was unsuc cessful. The police told Majors that the victim would probably be brought home for being out after curfew. If not, the police instru cted Majors to go to the Juvenile Depa rtment in the m orning.

The next morning, Major s reported her son missing , and she and the family continued to look for the victim. Vaden found one of the boys, Anthony Cov ington, who
was with the victim w

hen he was abducted. They, along with M ajors and her father, went to the vacant lot on Gallati n Road where Coving ton had last seen the vi ctim. Covington told the m about a p athway through a w ooded area behind the YMCA. V aden and Covington walked upthe path which came out at some railroad tracks,but they did not find3

anything. As Vaden was walki ng bac k, he notice d a foam mattress and saw some hair underneath it. When he raised the mattress, he s aw the victim ly

ing there.
Sergeant

Robert Moore was in charge of the investig ation into t he vict im’s murder. In the are a surroundi ng the victim’s body, he found a jacket and white tennis shoes which were identi fied as belonging to the victim. Two beer cans were also located nearby. The victim’s body w as in a drainage ditch covered by a large piece of foam. A pair of blue shorts were ly

ing beside his head. The victim was comple tely nude. A woven belt
was wound tightly ar

ound his left wrist. Sergeant Moore also obser ved a large lacerati on across the right wrist . Above the victim’s left ey e was a ga sh, and it was bloody and swollen. There were places about the nose where skin was missing , and it was burned. The victim’s lips

were swollen, and there was bleeding inside the mouth, with lacerati ons inside the mouth and around the lips. The nose w as also bloody and red. Tw o lacerations
were made by a sharp instrument th at went in an “X” s hape across the victim’ s chest. There were also two deep s tab woun ds int o the body a couple of inches apar t. The victim’s testicles were sw ollen, and there was a la rge amount o f blood on the legs. Bruises, scrapes, abrasions, and bur ns could be observed all over the victim’sbody. A tshirt was tie d in a hard knot around the vi ctim’s throat. Blood on the t -shirt, which w

as beginning to coagulate at the time Sergeant Moore investigated the scene, was consistent with blood coming from the mouth. The t-shirt was soaked in urine and th ere were s treams of urine on top of the blood on the v ictim’s body. Beside the victim’s head was a stick with blood on the end of it. Sergeant Moore did not find any evidence of drug use at the scene of the murder.

Later that day, Sergeant Moore was notified that a person would meet him at a donut shop w

ith informati on about the pe rson or per sons who mur

dered the vi ctim. When Sergeant Moore arriv ed, Roger Brewing

ton told him that he should be look ing for Donald and Tammy Middlebrooks. Based on the information Brewington was giving him and because Brewington match ed descriptions given of a third suspect, Sergeant Moore determined that Brewington w as probably involved in th e murder. Brewington showed1 Brew in gton was eventuall y tri ed an as adult and convicted of first -degree murder, aggr av ate d kidnapping, and armed robbery, for which he was sentenced to consecutive sentences of lif e, 40 years, and 35 years, resp ective ly. See State v. Brewington , No. 89-232-I II (Tenn. Cri m. App., at Nashvi lle, June 20, 1990), perm. app . denied , (Tenn. Oct. 1, 1990). Tamm y pled gui lty to fir st-degree murder and was sent enced to life impris onm ent. 4 Sergeant

Moore t he murder weapon, a lock-bl ade knife with brass knuck les, which was hidden in a planter in front of the donut shop.

Subseque ntly, Sergeant Moore interv iewed Brewington at the poli ce station and obtained an a rres t warrant for Donald and Tammy Middlebrooks. Brew ington, although six feet tall and approximately 170-175 pounds, was only sixteen years old, so he was transported to juv enile court and charged w ith homicide. 1

A search of a wooded area near Gallatin Road resu lted in finding a small shackwhere theappellant and Tammy Middlebrook s were living . Officer

Allen Herald, with the canine division, opened the door and saw the two s ubjects lying on a mat. He ordered the two out of th e shack, and T ammy Middlebrooks jumped up and sta rted coming towards Officer Herald, whose K-9 partner grabbed her. Sergeant Moore was then able to seize Tammy Middlebrooks by the ar m and pull her

out. When the appellan t did not respond to the commands, Officer Herald sent his K-9 partner in t o apprehend him. A

kitche n knife and a potato were laying next to the a p pellant. Both the appella nt and Tammy Middlebrooks sustained dog bites and had to be taken to the hospital for treatment. W hile at the hospital, after being advised of his rights, the appellant told Sergeant Moore that he stabbed the victim twi ce to put an end to the torture.

At 12:30 p.m. that day, the appellant gave a leng

thy video-taped statement at the police station about his i nvolv ement in the victim’s death.The appellant admitted participatingin the beating and mistreatment of the victim but described his role as minor and depicted Brewingt on as the primar y perpetrator of the offens e. According t o th e appellant, around dusk, five or six “colored boys” came by th eir tabl e where they were selling junk. The boys started breaking a “bunch of stuff,” so the appellant and Brew ington chased t hem. Bre wington caught one of the boy s in a head lock. After the v ictim was5

caught, t he appel lant said Brewington suggested they "have some fun," and the three of them took the victim backinto the woods. The vi ctim’s hands were tied,and Brewington slapped him, beat him with brass knuckles, hit him with a stick, and urinated into his mouth, making him swallow. Any time the victim woul d flinch, Brewington would hit him again. When the victim started cr ying and begging , saying “all I w ant to do is go to school and get my education,” Brewi ngton responded “f_ you nig ger” and hit him some more.

At one point, the appellant and Brewi ngton left TammyMiddlebrooks with the victim while they went out looking for t he othe r boys. The appellant did not know what would have happened if they had found the others.

The appellant admitted striking the vic tim with his open hand and on the leg with a switch. Appellant said that Tammy sl apped the victim and burned hi s nose with a cigarettelighter as Brewi ngton u rged her on. Brewington hit th e victim’s testicl es with a stick, threatened tocut “it” open, stucka stick up the victi m’s anus, hit him some more w ith the brass knuckles, wi ped the victim's blood on himself, beat the victim’ s mouth and tongue with a stick, dropped the knife on him, gagged hi m, and slashed his wris t. While dropping the knife, Brewington told the victim he was taking him back to the days of “Roots.”

Finally, when the appellant asked Brewington to st o p because the victim's crying and plead ing were get ting on his nerves, B rewington gave the victim "the kiss of death" on the forehead. He also told the v ictim that he was in the mafia and the “KKK.” Brewington th en covered the victim’ s face with his clothes,handed the knife to the appellant, and told him to stab the vic tim. Accordingto the defendant’s statement, when he refused, Brewington stab bed the victim. The appellant the n r eluctantly stabbed the victim "to prove to Roger that I guess I was

cooler" a nd to put the victim out of hi s misery. The appellant admitted that in his previous statement at the hospital, he told police that he had stabbed the victim twice. The appellant sai d he did not stop Brewing ton from “putting the boy through hell” s ooner because he was afraid of Brewington and because Brewington had a knife. When asked why he did not stop it when Brewington gave him the6

knife, the appellant said he was “scared to fight. ” The victim's ordeal began around 7:30 p.m. and ended around 11:00 p.m. with the stabbing. The appellant admitted that bef ore beating and killing the victim, he and Brewington drank alcohol and smok ed marijuana.

The appellant said that, the next morning, he

covered the victim with a piece of Styr ofoam. Then , he and Tammy met Brewingto n at the Holy Name Churc h for breakfast. Brewingto n commen ted on how much fun they had the ni ght before, and he asked the appellant to help him go a fter an entire family. Brew ington and the appellant sharpened their knifes on the railroad tracks, and Brewington showed the appell a nt the potential victims’ hous

e, but eventually, the appellant said he would not d o it.
During the time the appellant was in custody, Sergeant Moore testified that he did not observe any

signs that the appellant was under the influence of drugs or alcohol. The appellant’s demeanor never changed, he did not appear delusi onal, nor did h e give inappropriate responses.

The autopsy of thevictim indicated that the victim was 4 feet, 11 inches tall, and weighed approximatel y 112 pounds. There was a large abrasion on the l eft side ofthe forehead, a c ontusion o n the out side cor ner of th e left ey

e, and a c

ontusio n on the l eft
corner of the mouth. The two stab wounds to th e anterior chest occurred within a short period of time. The murder weapon had been plunged a depth of 3.3 inches. T here were superficial linear

incisions on the

anterior chest that cri sscrossed each other. There w as an incision of the right wrist that was 1.7 inc hes in length. The cause of death w as a stab wound to the chest, which punctured the left lung andpulmonary artery. The victim died from b lood loss. The superficial l inear incisions on the v ictim’s chest were made befor e the stab wounds. The minimum time from infliction of the stab wounds to the time ofdeath
was e stimated a t between five to six minutes, although the vi ctim could have liv ed up to 30 minutes. The linear inc isi ons would have been painful w ounds; however, it w

as impossible to say with medical certainty whether the victim was cons cious at the time they were inflicted.7 Both Majors and Vaden described the victim, who was fourteen years old at the time of the murder, as being a “B” and “C” student who

loved school. He w

as small for his age and was the smallest in his group of friends. The vi ctim was not violent in nature and did not carry a w

eapon.

Since the murder of her son, Majors’ health has deteriorated. She has been
on medication and will not leave the house except for doctor appointments. She has had
a nervous breakdown, suffers from panic attacks, and has not been able to sleepat night since the murder. Vad en testified that since the m urder he has suf fered from m ood swings and blames himself for his brother’ s death.

For the defense, the appellant’s cousi ns, James and Carol Sue Little, and the appellant’s half-sis ter, Sharon Fuchs, testified concerning the appella nt’s difficult childhood

. The ap pellant grew up around several small town s in Texas. His father di ed of a he ar t attack when the appellant was four years old. After that, the appellant’s mother remarried, and Fuchs was born. Eventually, the appell ant’s step-father had a nervous breakdown and
was committed to a mental institution, and the appellant’s mother divorced him. After the divorce, the appellant’s mother work ed and went out

regularly in the evenings. During the evenings, the children would either stay with rel atives or go with their mother to bars. Sometimes their mother would leav e the children by themselv es at a bar while she l eft with
a man for a couple of hours. Men often spent the night at the house, a nd the children could sometimes hea r their moth er having sexual re lations with them. The mother would not stop if the children came in th e room, and Fuchs was someti mes forced to participate while her mother wat

ched.

An unc le, who was a pedophil e, sometimes babysat the chil dren. The appellant’s mother continued to let the uncle babysit ev en though she knew this. One time, Fuchs saw the uncle rape the appel lant. She went to get her mother, but the incident wa s never discussed. The mother woul d sometimes grab the appellant between his legs and8

would wat

ch him use the

bathroom.

After being raped by his uncle, the appellant alway s appeared ang ry an d would get in tr

ouble . He started running away from home and walking the streets. Eventually, the

appellant was sent to a home for children and was later

sent to prison on two different occasions. After the appellant returned from prison, he was more angry and strange. He started having seizu res abou t every three days, and he lived in a shack behind the hous e. The ap pellant wa s sent to a s tate mental institution after he c limbed a water tower and thr

eatened suicide.

The appellantmet Tammy Middlebrooks when she was seventeen years old. They dated for two or three months and got married in early 1986. The relationship was strange, and both seemed to be unstable. For a brief time, the couple liv ed with Fuchs and the appellant’s mother. The appellant did not have a job, so he and Tammy would sometimes spend the day having s ex or walking around tow

n. Fuchsidentified a document titled “Debow’s Revenge” as being in the appellant’s handwritin g. The document was found in the appellant’s room, and Fuchsturned it over to the police at their request. This handwritt en document told in detail how “Debow” would seek revenge against certain people.

A psychologist, Dr. Jeffrey L. Sm alldon, testified that he performed a psychologicaland neuropsycho logi cal evaluation on the ap pellant at the request of defense counsel. From his inte rviews and testing of the appellant and hi s review of numerous
rec ords d ocumenting the appellant’s co ntact with a wide v ariety of mental health professionals, the appellant’s educational records, and his r ecords fr om the Texas Departmentof Correction, Dr. Small don determined that the appe llant had a severe borde rline per sonality disorder, which is marked by an inconsistency in behavior. Dr. Smalldon found that the characteristics of borderline personality di sor der, including instability

of mood, seeing either the best or the worst in other

s, marked identity disturbance, impulsive and reckless behavior, poor control over ang er, recurring suic idal9

or self-destructive ges

tures, and intense fea r of aband onment, were either observ ed or documented in the appellant’s historical records.

Dr. Smalldon also found significant antisocial and schizotypal traits, a history of mixed substance and alcohol abuse, an organic pers onality change, and a seizure disorder. The appellant also has a mild funct io nal brain impairment, which would cause the appellan t to have a greater degree of impuls ivity and an inabil ity to delay some of his
res ponse s. A significant number of mental heal th professionals who ex amined the appellantfound signs of malingering. Dr. Smalldon testified that this was not necessarily inconsistent with having a mental illness, describing the appellant as a chronic liar.

From his rev

iew of the app ellant’s social histor y, Dr. Smalldon noted as significant

the lack of parental superv ision while the appell ant was growing up and sexual and physical abuse by hi s mother and other relativ es. Dr. Smalldon observ ed t hat th e appellant exhibited

many of the characteristic s seen in adults who

were sexually

abused as children.

As to the appellant’s account of his involvement in the murde r, Dr. Smalldon testifi ed that the appellant claimed more r esponsibility in his

interview wi

th him than the appellantdid in his video-taped statement to the police. The appe l lant never expressed any remorse to Dr. Small don.

In rebuttal, the state presented the testimony of Dr. Michael McElr oy, the Director of Psychological Serv

ices for the Stateof Tennessee at Middle Tennessee Mental Health Institute (MTMHI). Dr. McElroy testified that based on the results of the Minne sota Multiphasic Personality Inventor y (MMPI) administered on the appellant by Dr. Smalldon, it was his opinion that the appellant was exaggerating his mental state. While Dr. Smalldon testified that the appellan t may have been overreporting some of his symptoms, he did not believe that the profil e was obviously i nvalid. Dr. McEl roy acknowledged that borderline personality

disorder is a mental illness and that all of the appellant’s re cords i ndicate he10

has some form of personality disorder.

Dr. Willis Marshall testified that he examined the appellant while he w as at MTMHI in 1987 and determined that the appellant was competent to stan d trial, that he did not have an insanity defense, and that he was

not committable. Dr. Mars hall further stated that there was no finding of mental i llnes s and that he generally did not consider personality

disorder as a mental ill ness. Dr. Marshall found s everal indications that

the appellantwas trying to

convince them he had more of a mental problem than he really did.

On cross-examination, D r. Marshall admitted t hat t he Diagnostic and Statistical Manual of Mental Disorders , Fourth Revised Editi on, includes bo rderl ine personality

disorder as a diagnosabl e form of mental illness. He also admitted that every mental health professional who ex amined the appellant fou nd someform of diagnosable mental illness.

Based on this proof, the jury s entenced the appellant to death for the murder of Kerrick Majors.

II. CONSTITUTIONALITY OF “HEINOUS, ATROCIOUS, A ND CRUEL” AGGRAVA

TING CIRCUMSTANCE

The appellant contends that the trial court’s i nstruct ion on the heinous, at rocious, or cruel agg ravating ci rcumsta nce was unc onstitu tional. R elying prim arily o n Houston v. Dutton , 50 F.3d 381 (6th Cir.), cert
. denied , --- U.S. ---, 116 S. Ct. 272 (1995), Rickman v. Dutton , 854 F.Supp. 1305 (M.D. Tenn. 1994), and Maynard v. Cartwright , 486 U.S. 356, 10 8 S. Ct. 1853 (1988), the appellant argues that the term “heinou s” is unconstitutionally vague on its face, and this vaguenes s was not cured either

through the use of the qualifier “especially” or by the use of “depravity of mind.”

At the sentencing hearing, the trial court charged the jury on this agg ravating2 Tenness ee Code annotated sect ion 39-13-204( I)(5), effecti ve November 1, 1989, states that the murder was especiall y heinous, atrocious,or cruel i n thatit i nvolved torture or se rious phy sical abuse

beyond that necessary to

produce death. Although t he sent encing hearing was hel d in 1995, t he murder was committed in 1987. Accor dingly , the jur

y was properly

charge d as to the “ torture or depravi ty of mind” standard in exist

ence at the time of the crim e. See State v. Cazes , 875 S.W.2d 253, 267 (Tenn . 1994), cert
. denied , 513 U.S . 1086, 11 5 S. Ct. 74 3 (1995 ); State v. Sm ith , 893 S.W .2d 908, 9 20 (Te nn. 1994 ), cert
. denied , --- U.S.---, 116 S. Ct. 99 (1995). 11 circumstance as it is set forth in Tennessee Code Annotated section 39-2-203(i)(5)(1982), 2 which provided that the murder was heinous, atrocious, or cruel in that it involved torture or depravity of mind. The t rial court gave the following jury i nstruction:

No death penalty shall be imposed unless you unanimous ly find that the State ha s proven be yond a rea sonable doubt th e followi ng spec ified statutory aggrav

ating circumstance: The murder

was especially heinous, atrocious, or cruel, in that it involved torture or

depravity of mind. In determining whe

the r or not the State has prov ed the aggravating circumstance, you are governed by the following definitions: Heinous means grossly wicked or reprehensible, abominable, odious, vile. Atrociousmeans extr emely evi l or cruel , mo ns trous, exceptionally bad, abominable. Cruel mean s disposed to inf lict pain or suff ering, causing suf fering, painful. Torture means the infliction of severe phy sical or mental pain upon the victim while he r

emains alive and conscious

. Depravity means moral corruption, wicked or perverse act.

Our supreme court has consistently held that the language of Tennessee Code Annotated section 39-2-203(I)(5)( 1 982) (repealed 1989) is not unconstitutionally vague or overbroad. State v. Dicks , 615 S.W.2d 126, 131-32 (Tenn. 198 1 ). See also State v. Black , 815 S.W.2d 166, 181 (Tenn. 1991); State v. Barber , 753 S.W.2d 659, 670 (Tenn. 1988).

In State v. Wil liams , 690 S.W.2d 517 (Tenn. 1985), our supreme court reversed the sentence of death and remanded for a new sentencing hearing after finding "that the court did not instruct the ju ry con cerning the legal si gnificance of the words 'heinous,' 'atrocious,' 'cruel, ' 'torture,' or 'deprav ity of mind' as those terms ar e used in the12

aggravating

circumstance defined in T.C.A. § 39-2-203(i)(5)." Id . at 532. The court found the statute to be constitutional "so long as the abstract t erms e mployed therein are construed and interpreted as we hav e done in this opinion and other opinions of this Court." Id . at 533. Jury i nstructions on the definitions are necessary to precl ude "a basicallyuninstructed jury" that "cannot lawfully impose the death penalty," Id

. (cit ing Godfrey v. Georgia , 446 U.S. 420, 429, 100 S. Ct. 1759, 1765 (1980) ). In the present case, the trial court cl early instructed the j ury in accordance w ith Williams

.
Furthermore, the

appellant’s reliance on federal case law is unfounded. In Houston v. Dutton , the trial court d i d not instruct the jury on the definitions of any of the termsset forth in the heinous, atrocious, or cruel aggrav ating circumstance. Houston , 50 F.3d at 387. In Rickman v. Dutton , the trial c ourt defined the terms

“heinous,” “atrocious, ” and “cruel” for t he jury but did not define the t erms “torture” or “depr avity of mind.” Rickman , 854 F.Supp. at 1309-10. The distr ict court held t hat the “es pecially heinous” instruction, even as limitedby the definition of heinous as “extremely wicked or shockingly evil,”was unconstitutional ly vague. I d . at 1310. The district court also held that the instruction was vague despite the inclusion of the te rm “depravity of mind,” which it also found to be unconstitutionally v ague. Id . In contrast to the facts of these cases, the trial court in the present case instructed the jury on all the definitions required under Williams

.

Regardless, this court is not bound by these federal rulings. Instead, we are only required to follo

wthe applicable constitution al rulings of the United Stat

es Supreme Court. See State v. Bush , 942 S.W.2d 489, 521 n.11 (Tenn. 1997); State v. McKay , 680 S.W.2d 447, 450 (Tenn. 1984); State v. Bowers , 673 S.W.2d 887, 889 (Tenn. Crim. App. 1984); see also State v. Vickers , 159 Ariz. 532, 768 P.2d 1177, 1188 n.2 (1989) (Ar izona SupremeCourt ref uses to f ollow N inth Ci rcuit's invalidati on of Arizona death penalty statute).
Finally, although not rai sed b y the appellant, the jury’s application of this aggravating

circumstance is clearl

y supported by

the record. The appellant admitted in his13

statement to police that the victim was slapped, beaten with brass knuckles, and hit with
a stick in his mouth and on his testicles. A stick was jabbed into the victim’s anus, his nose was burned with a cigar ette lighter, a knife was dropped on his che st, his wrist w

as slashed, and he was forced to swallow uri ne. Superficial linear inc isions in the form of an “X” were slashed across the victim’s chest before the fatal stab wound. Accordi ng to the medical examiner, the victi m could have lived from 5 to 30 minutes after being stabbed. From the victim ’s capture to the time of the fatal stab wound, approximately fo ur hours elapsed.

Based on these fact s, the proof of torture is gruesom e and overwhelming, depicting acts that are abhorrent and unspeakably cruel. In essence, the facts of this case define torture. Cf

. State v. Smith , 868 S.W.2d 561, 579-80 (Tenn. 1993) (multip licity of wounds, infliction of gratuitous violence on victims, and needless muti lation); State v. McNish , 727 S.W.2d 490, 494 (Tenn. 1987) (victim beaten s everal times andremaine d alive and at least partially conscious throughout ordeal ); State v. Zagorski , 701 S.W.2d 808, 814 (Tenn. 1985) (infliction of gratuitou s violenc

e and needless

mutilation of victims who were already helpless from fatal wounds).

III. INTRODUCTION OF EVIDENCE OF VICTIM’S RACE AS A M OTIVE FOR THE COMMI SSION OF THE CRIME

The appellant contends that the state w as i mproperly allowed to introduce irrelevant

and inflammatory evidence te nding to ex ploit its belief that the murder of the victim was based upon the appellant’s racist beli efs. Specifically, the appel lant objects to the testimony of Shannon Stewart,who testified that he had conversations w ith the appellanton the morning of the crime in which theappellan t expresse d racial an imosity. The appellant contends that the prosecutor’s closing argument also improp erlycalled on the jury to impose the death penalty beca use of the appellant’s racist beliefs. We f ind this issue to be without merit.

Prior to the sentencing hearing , the appellant filed a motion in limine seeking14

e xclusion of this evidence of racial belief. At the hearing on the moti on, the appellan t argued that while this testi mony was relevant at the first trial to show premeditation, the state was not required to prove the elements of firs t-deg ree murder at the resentencing hearing, and the prejudicial impact of this testimony w ould be extreme. The trial court took the matter under advisement until Stewart was call ed as a witness, at whic h time it made the following rulin g: What I needed to do and did do is read the transcript so I could understand exactly what the questions and answers were, and it appears to me that it is relevant, and I have conductedthe requisite balancing test and find it to be admissible, if the State chooses to introduce it. In response to your

argument that the

stated basis of admissibility previously was to prove premeditation. You have to put that in the context. That was in a ca se where bo th phases were being tr ied, and the proof was being introduced in the guilt or innocence phase, so the State would not have been addressing that at senten cing. For purposes of this hearing, where this jury is just hearing all thi s for the first time, the eval uati on has to be made independentof that totally, whic h, you know, for the reas on I just stated, did not address before, but it is re levant and admissible for se ntencing. That is the evaluation I have conduc ted, not based on what

was done the last time, because it is apples and oranges.

St ewart t hen testified before the jury about his conversations w ith the appellant prior to the night of the murder: [The appellant] w

as telling me stuff, you know, that I real ly didn’t, you know, care to listen to at that age, y ou know, telling me l ike he was KKK and h e said a nigger walked up to him and said, Hi, and he hit him in his mouth and he had a little ring on , a tiger head, and he show ed me some blood in the creases of his r ing, an d stuff.

Based on this

proof, the state made the following ar gument during the final closing argument: The testimony in this case tells you more about Donald Middlebrooks from the days it happened, from ShannonStewart, than all the ps ychologists that you can bring in this courtroom, from 1989 to the present. Shann on Stewart told you more about this man than any Ph[.]D. could ever do. * * * * And when we found out from his psy chologist that the

psyc hologist had conveniently neglected to dictate on the transcription words such as we [sic] used racial epithets. The co mplexity of this murder dealt with race. * * * * You decide this case on evid ence. W e’ve said that, a nd there are some pretty ugly things in this case that are embarrassing and frighten ing to many of you on the ju ry. What h appened in this case is every mother’s worst15 nightmare, but even so, in this case, because, no doubt , Kerrick Majors had been told thatthere were a small g roup of people in this worl d who will never like you, no ma tter what yo u do, wh at you become, or how yo u treat them. They will only see your skin.

We note that on di rect appea l, the supreme court held that Stewart’s testimony was admissi ble: The testimony is clearly relevant to show premeditation and a motive for the victim’s brutal s layi ng. The testimony is als o relevant to contradict the defendan t’s sta tement that Roger Brewi ngton was the leader in the commission of the o ffense. In addition, given the r elevancy of the statements, we find that the prejudici al effect did not substantially ou tweigh theirprob ative value. State v. Banks , 564 S.W.2d 947, 95 1 (Tenn. 1978). Accordin gly, we hold that the trial court correctly admitted Shannon Stewart’s testimony about these statements. Middlebrooks , 840 S.W.2d at 330.

Tennessee Code Annotated section 39-2-203 has been interpreted as only permitting introdu ctio n of evidence relevant to p unishment at the sentencing phase

. Evidence is relevant to p unishment only if it is relev ant to a statutory agg ravating circumstance or to a mitigating ci rcumstance raised by the defendant. Cozzolino v. State , 584 S.W.2d 765, 767-68 (Tenn. 1979); see also State v. Adkins , 653 S.W.2d 708, 715-16 (Tenn. 1983).
Regardless, at a resentencing hearing , both the state and the defendant “are entitled to offer evidence relating to the circumstances of the cri me so that the sentencing jurywill have essenti al background information ‘to ensure that the jury act s from a base of knowledge in sentencing the defenda nt.’” State v. Adkins , 725 S.W.2d 660, 663 (Tenn. 19 87) (quoting State v. Teague , 680 S.W.2d 785, 788 (Tenn. 1984)); see also Sta te v
. Bigbee , 885 S.W.2d 797, 813 (Tenn. 1994); State v. Nichols , 877 S.W.2d 722, 731 (Tenn. 1994), cert

. denied , 513 U.S. 1114, 115 S. Ct. 909 ( 1995).

In State v. Teague , 897 S.W.2d 248 (Ten n. 1995), the supreme court held that “[e]vidence that is admi ssible as being relev ant to the issue of guilt or innocenc e may also be admissible at a resentencing hearing in support of a mitigating circumstance.” Id

.16

at 253. The issue raised on appeal in Teague was whet her th e defendant should be allowed to present

proof of innocence at a resentencing hearing. The supreme court not ed that the “test for admissibility is not whether the evidence tends to prov e the defendant did not commit the crime, but, whether it relates t o the circumst ances of the crime or the aggravating or mitigating circumstances.” Id . at 252.

In the present case, St ewart’s testimony at the resentencing hearing was relevant to the nature and circumstances of the murder, especially to show theappellant’s motive and intent. From the record,it is clear th at race was an i ntegral dynamic of the circumst ances surrounding this murder, and the jury was entitled to have this base of knowledge in sentencin g the appellant.

Moreover, Stewart’s testimony was relev ant to rebut

the statutory mitigating circumstances

raised by the appellant. Among others, the appellant r aised these statutory mitigating circumstances: (1) the appellant acted under extreme duress or under the substantial domination of another person, and (2) the capacity of the appel lant to appreciate the wrongfulness of his conduct, or to conform his conduct to the requirements of the law was substantially impaired as a result of mental disease or defect or intoxication, which was insufficient to establi sh a defense to the crime, but whic h substantially affected his judgment. Tenn. Code Ann. § 39-2- 203(j)(6), (8)(1982)

(repealed). These mitigating circumstances

were raised to offer an ex planation for the appellant’s par t icipation in the murder. Therefore, although Stewart ’s testimony was pr

esented during the state’s case-inchief rath er t han in rebuttal, it was still relevant to rebut the mitigating circumstances. Stewart te stif ied after the jury was shown the appellant’s v ideo-taped statement to the police. In this statement, the appellant depi cted Brewington as the primary perpetrator o

f the offense and attributed the racist remarks to Brewington. Clearly, Stewart’s testimony was offered to rebut these clai ms by the appellant in his statement to the police.

The state was also properl y allowed to ad dr ess this proof during cl osing arguments. It is well established that closin g argument must be temperate, must be3 Although not affect ing the sent ence in thi s case, based on our revi ew of the recor d, we encourage prosecutors to refrain fro m us ing antiqua ted and in approp riate terms when referri ng to those whoare m enta lly ill or challen ged. W e offer thi s suggestion i n light of our supreme court’ s appointment of the Commission on Racial and E thnic Fairness i n 1995. Terms s uch as “ crazy” and “retarded,” especially when used by officers of the court

in a deri sive context , refl ect poorly on the enti re judici al system. 17 predicated on evidence introduced during the trial of a cas e, and must be pertinent to the issues being tried. State v. Sutton , 562 S.W.2d 820, 823 (Tenn. 1978). The prosecutor maystate an ultimate conclusion which would necessa rily foll ow if the testimony of the prosecution witnesses were bel ieved by the jury

. State v. B rown , 836 S.W .2d 530, 55 2 (Tenn. 1992). Moreover, both pa rties must be given the opportunity to argu e not only the facts in the record but any r easonable inferen c es therefrom. See Russell v. State , 532 S.W.2d 268, 271 (Tenn. 1976).

Based in great measure upon the role o f the prosecutor in the criminal justice system, more restrictions are placed on the state than the defendant. Coker v. State , 911 S.W.2d 357, 368

(Tenn. C rim. App . 1995). Accord ingly , “the s tate mus t refr ain fro m a rgumentdesigned to inflame the jury and should restrict its commentary to matte rs i n evidence or

issues at trial.” Id . Here, the prosecutor’s argument was based on proo f of the appellant’s racial animosity and the reaso nable inference that it played a significant role in the appellant’s participation in this murder.

Finally, even if it was

error to admit Stewar

t’s testimony

and to allow the state to address this proof during closing argument, suc h error was harmless in that the proof
was cumulative of other admissib le evidence. See Hartman v. State , 896 S.W.2d 94, 100- 101 (Tenn. 1995). The appellant made several racia l comments dur ing h is v ideotaped
s tatemen t to the police, which w as viewed by the j ury. Furthermore, Dr. Smalldon, the defens e’s expert witness, admitted that the appellant used several racial epithets whil e being interviewed by

him. Dr. Smalldon also tes tified that the appellant told him all three, “[the appellant] and Roger and Tammy, made racial taunting remarks at the victi m.”

IV. PROSECUTORIAL MISCONDUCT 318 The appellant contends that his r ight to dueprocess asguaranteed by both the Tennessee and United States Consti tut ion s was violated becaus e the prosecutor argued that the victim’s family and the district attorney ’s office wanted a death sentence imposed and bec ause th e prosecutor argued that the Bible supported imposition of the death penalty. We find th at any improper closing argument was harmless error.

The standard of review in determini ng whether counsel was allowed too much latitude during closing argument is abuse of discretion. Sutton , 562 S.W.2d at 823. As previouslystated, closing argument must be temperate, must be predicated on evidence introduced during the trial of a case, and must be pertinent to the issues b eing tried. Id

. Based in great measure upon the rol e of the prosecutor in the crimi nal justice system, the most restrictions are plac ed on the state. Coker , 911 S.W.2d at 368. Accordingly, “th e state must refrain from argument designed to inflame the jury and should restr ict its commentary to matters in evidence or issues at trial.” Id

.

In reviewing the pr

opriety of argument

in a capital sentencing proc eeding, the reviewing

court must determine whethe r th e prosecutor's comments affected the sentencing decision. State v. Irick , 762 S.W.2d 121, 13 1 (Tenn. 1988). "If the Court cannot say the comments had no effect on the sentencing, then the jury's decision does not meet the standard of reliability required by the Eig hth Amendment." Id . (citing Caldwell
v. Mississippi , 472 U.S. 320, 341, 105 S. Ct. 2633, 2646 (1985)). This court has set forth five factors to consider in determining whether any improper conduct was prejudicial: (1) the conduct complained of viewed in the contex

t and in light of the facts and circumstances of the case, (2) any curative measures undert aken by the court and the prosecution, (3 ) the intent of the prosecutor in makin g the imp roper statement, (4) the cumulativ e effect of the improper conduct a n d any other errors in the record, and (5) t he relati ve strength or w eakness of the case. Judge v. State , 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976). The adoption of these considerations

was approvedby our supreme court in State v. Buck , 670 S.W.2d 600, 609 (Tenn. 1984).

While the prosecutor ’s comments du ring closing a rg ument were improper,19

we find that such error di d not affect the jury’s decis ion.

The prosecutor made the followi ng com ment, without objection, during his final closing argument concer ning the desire of the victim’s family and the district a ttorney general’s office for the ju ry to impos e the dea th penal ty: His family asks you to impos e the death penal ty. The Sta te asks you to impose the death penalty. The facts suppor t it. He de serves it. Justice demand s it on the facts an d the law. Overruling

the decisions in Booth v. Maryland , 482 U.S. 496, 107 S. Ct. 2529, and South Carolina v. Gathers , 490 U.S. 805, 109S. Ct. 2207 (1989), the Supreme Court held in Payne v. Tennessee , 501 U.S. 808, 111 S. Ct. 2597 (1991), that if a st ate “chooses to permit the admission of vic tim impact evidence and pros ec utoria l argument on that subject, the Eight Amendment erects no per se bar. A State may legitimatel y conclude that evidence about the victim and about the impact of the mu rder on the victim’s family is relevant to the jury’s decision as to whether or not the death penalty should be imposed.” Payne , 501 U.S. at 827, 111 S. Ct. at 2609 . The holding in Payne was adopted by our supreme court in State v. Brimmer , 876 S.W.2d 75, 86 (T enn.1994).

The Supreme Court in Payne stated in a footnote: Our holding today is li mited to the holdings of Booth v. Maryland , 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed .2d 440 (1987), and South Ca rolina v. Gathers , 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989), that evidence and argument relating to the victim and the impact of the victim's death on the victim's family are inadmissible at a capital senten cing hearing. Boo th also held that the admission of a victim's family members' characterizations

and opinions about the crime, the de fendant, and the ap propriate sentence violates the Ei ghth Amendment. No evidence o f th e latter sort was pres

ented at the trial in this case. Payne , 501 U.S. at 830, n.2, 111 S. Ct.at 2611, n.2.

Here, th e prosecutor improperly argued tha t the victim’s family members were asking the jury to impose the death penalty. No objection w as made, and t herefore, no curative measures were taken. Acc ordi ngl y, the appellant has wai ved this issue. See Tenn. R. App. P. 36(a). In any event, under Judge , there was no prejudice to the appellant. There was no testimony presented during the resent encing hearing concern ing the opinion of the victim’s family as to theappropriate sentence. Moreover, this was the20

onlysuch comment made by the state. Accordingly, in l ight ofthe overwhelming s trength of the state’s case, the prosecutor’s statement, albe it improper, was not pr ejudicial. See also State v. Ricky Thompson , No. 03C01-9406-CR-00198 (Tenn . Crim. App. Jan. 24, 1996), perm. app. denied concurring in results only(Tenn. July 1, 1996).

As to the prosecutor’s arg ument that his office was asking the jury to impose
a death sentence, this type of argument has also been he ld improper. See Broo ks v. Kemp , 762 F.2d 1383, 1410 (11th Cir. 1985). In Brooks , the prosecutor argued that it was the practice of the district attorney general’s office to seek the death penalty in only a few
cases. Here, theprosecutor merely stat ed that his office was asking for a death sentence. As pointed out by the state, the j ury already knew that the district attorney general’s office
was seeking the death p enalty. Be cause the prosecutor did not further qualify his argumentby indicating

that his office only sought the de ath penalty in a limited nu mber of cases, as in Brooks , this argument was not error. Applying the criteria set forth in Judge , this single statement did not affect the jury’s decisi on.

Finally, the appe llant complains about the prosecutor ’s references to the Bible: Mr. Barrett has asked you to consider something else. He has asked you t o consider the book where the words of our L ord a re written, vengeance is mine. This lady

has come to this courtroom, not for vengeance, but to

turn this over to you, the law . If she was after vengeance , this cas e would ha ve never made it here. The same book that

says vengeance is

mine says whoever

sheddeth man’s blood, whoever sheddeth man’s blood, then by man shall his blood be shed. The Lord meant for the system of law s and justice to gover

n societies wherever they are, and you are that tool of the Lord, that part of justice--
At this point, defense counsel objec ted. The trial judge did not agree with defense counsel that the state had gone beyond the scope of rebuttal; how ever, she stated “I do believe that I’ll

ask the General to move on to something else.”
Previously, duri ng defense counsel’s closing argument, he had argued:21 We do not apologize for aski ng for mercy, asking for leniencyor sympathy forDonald Middlebrooks. Our life is given by our creator, and it is n ot to be taken lightly by man or

our government using the guise of due process and the judicial system as

a thinlyveiled guise for vengeance; vengeance, which I think our creator says is his and not ours. * * * * What is the reason you are her e? It is to decide, very simply, whether this man is going to live or

die, and I submit to you, l adies and gentlemen of the jury, that when Donald Middlebrooks arriv es at his inevitable r

endezvous with death, even in a prison cell , it should beat the tim e and discretion of his maker, in whose image we are all made, and not at the artificial time selected bythe State of Tennessee, when a lever is pul led and the sanctity of human life, in this day and time, is even further

diminished by an action of the State of Tennessee, and I submit to you, based upon all the evidence and facts in this case , the on ly verdict that c an be returned consistent w ith the law and consistent

with what the vi ews of our society shou ld be is that this young man should meet his maker in a cel l by the C umberland River, Riv erbend Prison, and not at the artificial time w hen the State of Tennessee chooses to usurp the prerogativ e of our Lord.
It is well establish ed tha t i t is inappropriate to make r eferences to Biblical passages or religious law durin g a criminal trial. See State v. Stephenson , 878 S.W.2d 530, 541 (Tenn.1994) (judge's referenc es to Biblical passage) ; State v. Harrington , 627 S.W.2d 345, 350 (Tenn. 1981) (foreman read biblical pa ss ag es to other jury members); Kirkendoll v. State , 198 Tenn. 497 , 521 -22, 281 S.W.2d 243, 254 (1955) (prosecutor's reference to Mosaic law). Such references, however, do not constitute reversible erro r unl ess the appellant can clearly establish that they had some effect on th e verdict

. Stephenson , 878 S.W.2d at 541; Kirkendoll , 198 Tenn. at 522, 281 S.W.2d at 254.

In Kirkendoll , the prosecutor referred to the Mosaic Law during the voir dire examination. The supreme court commented that unless such a remark clearly would have had some effect on the verdict it did not constitute reversible error, particularly where the trial judge remonstrated wit h the di strict attorney gene ral and told him not to use a reference of that kind again. Kirkendoll , 198 Tenn. at 522, 281 S.W. 2d at 254; see also , Stat e v. Keen , 926 S.W.2d 727, 73 6 (Tenn. 1994) (prosecutor’s quote from Bible an d interjection of religious law w as trivial, at most, in relationship to remainder of ar gument and did not effect verdict).

Upon examining the above-q uoted remarks in light of the entire closing4 While the tri al court f iled a report wi th the supreme court clerk in Nashvi lle as r equired by Rule 12, Tennessee Sup rem e Co urt R ules , after the a ppe llant’s first tria l, it failed to file a new report with the Clerk or includeone in the t

echnical r

ecord after the appell ant was resentenced. H owever, our suprem e court has h eld that the absence of this repo rt does not necessarily preclude adequate appe llate and comparative proportio nality review. Sm ith , 893 S.W.2d at 927. 22 argument, defense counsel’s religi ous references, the facts and circumstances su rroundin g the case, and the overa ll strength of the state's case, this court finds that the improper comments made during the state's argument did not affect the verdict to the prejudi ce of the appellant.

V. CONSTITUTIONA

LITY OF THE DEA

TH PENALTY

STATUTES

The appellant raises sever al challenges to

the constitutionality of Tennessee Code Annotated section 39-2-203 and - 205 (1982) (repealed1989). As acknowledged by the appellant, our Supreme Court has repeatedly rejected these arguments. See , e.g ., Bigbee , 885 S.W.2d at 813-14; Brimmer , 876 S. W.2d at 87-88; Cazes , 875 S.W.2d at 268-69; State v. Hutchison , 898 S.W.2d 161, 173-74 (Tenn. 1994), cert
. denied , ___ U.S.

___, 116 S. C t. 137, 13 3 L.Ed.2d 84 (1995); State v. Bane , 853 S.W.2d 483, 488-89 (Tenn. 1993); State v. Smith , 857 S.W.2d 1, 21-24 (Tenn. 1993); Black , 815 S.W.2d 166, 181, 185; State v. Melson , 638 S.W.2d 342, 36 6-68, (Tenn. 1982).

As an intermediate appell at e court, it is beyond our statutory function to overrule the holdings of our supreme cour t. See Reimann v. Huddleston , 883 S.W.2d 135, 137 (Tenn. App. 1993), perm. app. denied (Tenn. 1994). Thus, we decli ne the invitation to revisit these iss ues which have prev iously been decided.

VI. PROPORTIONALITY REVIEW 4
Although not raised b y the parties, this cou rt is required to r eview death sente nces in the manner mandated by Tennessee C ode Annotated section 39-13- 206(c)(1). Here, the sentence was not imposed in an arbitrary manner. Additionally, the evidence presented in support of the vali d agg ravating circumstan ce outweighed the23

evidence in troduced to establish any mitigating circumst ances beyond a reasonable doubt.

"No two cases are alike,and no two defendants are alike. " Barber , 753 S.W.2d at 665. However, a comparative proportiona lity review , which considers both the nature of the crimes and of the defendant, revea ls thatthe death sentence in this case was neither excessive nor dis proportionate. Irick , 7 62S. W. 2d 1 21; State v. O’Guinn , 709 S.W.2d 561 (Tenn. 1986); State v. Coe , 655 S.W.2d 903 (Tenn. 1983).

VII. CONCLUSION

We have carefully consi dered the issues raised by the appellant as to the resentencing hearing and have determine d that none has merit. Accordingly, w e affirm the appellant’s sentence of death. The sentence of de ath will be carrie

d out as provided by law on the 27th day of Apri l, 1998, unless otherwi se ordered by our supreme c ourt.

_________________________________ CURWOOD WITT, JUDGE
CONCUR:

_________________________________ JOE G. RILEY, JUDGE

_________________________________ JOE H. WALKER, III, SPECIAL JUDGE