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Henry Eugene HODGES

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Male homosexual prostitute - Robberies
Number of victims: 3
Date of murder: 1989 / May 14/16, 1990
Date of arrest: May 18, 1990
Date of birth: August 16, 1966
Victim profile: Barry McDonald / Michael Whisnant, 32 / Ronald A. Bassett, 37
Method of murder: Strangulation with a nylon rope
Location: Davidson County, Tennessee / Fulton County, Georgia, USA
Status: Sentenced to death in Tennessee on January 30, 1992
 
 
 
 
 

The Supreme Court of Tennessee

 

State of Tennessee v. Henry Eugene Hodges

 
 
 
 
 
 

Henry Eugene Hodges was convicted of the May 1990 strangulation and robbery of Nashville phone repairman Ronald Bassett. He received another life sentence in December 1992 after pleading guilty in the 1989 stabbing death of Inglewood nurse Barry McDonald.

 
 

COURT OF CRIMINAL APPEALS OF TENNESSEE, AT NASHVILLE

May 18, 1995

STATE OF TENNESSEE, APPELLEE,
v.
HENRY EUGENE HODGES, APPELLANT.

Davidson County. Walter C. Kurtz, Judge. (First Degree Murder and Especially Aggravated Robbery).

Joe B. Jones, Judge, Concur: Gary R. Wade, Judge, Penny J. White, Judge (Not Participating).

The opinion of the court was delivered by: Jones

The appellant, Henry Eugene Hodges, was convicted of murder in the first degree and especially aggravated robbery following his pleas of guilty to these offenses. A jury of his peers set his punishment at death by electrocution for the murder in the first degree. The jury found three aggravating circumstances: (a) the appellant was previously convicted of one or more prior felonies involving the use of violence to the person, (b) the murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death, and (c) the murder was committed while the appellant was engaged in committing, or was an accomplice in the commission of, or attempting to commit or was fleeing after the commission of a robbery. The trial court found that the appellant was a multiple offender and imposed a Range II sentence of confinement for forty (40) years for the especially aggravated robbery. The appellant was also found to be a dangerous offender within the meaning of Tenn. Code Ann. 40-35-115(4). The trial court ordered that the sentences imposed for murder in the first degree and especially aggravated robbery in this case are to be served consecutive to each other as well as consecutive to the life sentence imposed for murder in the first degree in Fulton County, Georgia. In other words, the death sentence, the sentence of forty (40) years, and the life sentence are all to be served consecutively.

This Court has thoroughly reviewed the record, the briefs of the parties, and the law governing the issues presented for review. It is the judgment of this Court that the appellant's conviction for murder in the first degree and the death sentence should be affirmed.

On the evening of May 15, 1990, the Metropolitan Police Department received a call from Curtis Sims, a neighbor of the victim, Ronald A. Bassett. Sims told officers that he had not seen the victim's motor vehicle since May 13th, and the front door to the victim's residence was slightly open. The police officers entered the residence and found the victim laying face down in a bed. A pillow was over the victim's head and a nylon rope was wrapped around his neck. His legs were bound together with duct tape. An autopsy revealed that the cause of death was strangulation.

The appellant and a fifteen-year-old female companion, Trina Brown, were arrested in Shelby, North Carolina on May 18, 1990. The officers recovered several items of personal property that had been stolen from the victim's apartment.

The investigation revealed that approximately one week prior to the murder of the victim, the appellant and Trina Brown went to Florida to visit a friend. During the trip, they decided to move to Florida. However, they needed money if they were going to move. While enroute to Tennessee, the appellant, a male prostitute, told Brown that he was going to kill and rob the next person who propositioned him. He repeated this statement on the day the victim was murdered. Brown stated that on both occasions the appellant was serious when he made the statement. He did not show any emotion.

The appellant and Brown were living with his half-brother, Mitchell D. Mackie, in Smyrna. On the night of May 14, 1990, the appellant and Brown went to Centennial Park in Nashville. When the victim approached, the appellant talked with him, got into the victim's motor vehicle, and left with the victim. Shortly thereafter, the appellant returned to the Park in the victim's motor vehicle, Brown got into the vehicle, and they went to the victim's residence. When Brown arrived, the victim was alive. He was laying on the bed, a pillow covered his head, his legs were held together with duct tape, and the victim was handcuffed behind his back. The handcuffs belonged to the appellant.

The appellant and Brown ransacked the victim's residence. The appellant told Brown to look for items of value that could be easily converted to cash. The appellant obtained the victim's secret code for his automatic teller machine card. Later, the appellant and Brown discussed killing the victim. The appellant knew that if the victim was permitted to leave, he could identify the appellant. When the appellant returned to the bedroom, the victim pled for his life. The appellant placed the nylon cord around the victim's neck and strangled him.

The appellant wore gloves while he was inside the victim's residence. He wiped Brown's fingerprints from the door and other objects that she touched. One of the appellant's fingerprints was found on a unicorn paper weight that was on the coffee table in the living room. The appellant took the victim's motor vehicle when he left.

The appellant and Brown went to several automatic tellers to withdraw money from the victim's account. They could only withdraw $400, the maximum amount the victim could withdraw within a twenty-four hour period. The security cameras recorded Brown withdrawing the money. The appellant and Brown returned to Smyrna, parked the victim's vehicle in an apartment parking lot, and went to the Mackie home where they spent the night. When they awoke, they took their possessions, moved the victim's vehicle to a remote rural area, and left Tennessee.

When the appellant and Brown arrived in Atlanta, the appellant made arrangements with a man to engage in homosexual acts for an agreed price. They went to the appellant's motel room. When the person revealed that he did not have sufficient funds to pay the agreed price, the appellant murdered him. The appellant was subsequently convicted of murder in the first degree in Fulton County, Georgia, on July 31, 1990.

The state proved that the appellant had been previously convicted of robbery with a deadly weapon, simple robbery, and attempt to commit a felony, namely, kidnapping. The appellant was convicted of these offenses on January 26, 1984 in Hamilton County. The state also proved the conviction on July 31, 1990 for first degree murder in the Fulton County, Georgia case. This established the aggravating circumstance embodied in Tenn. Code Ann. 39-13-204(i)(2).

The state also established that the murder was committed during the commission of a felony: robbery. As indicated, the victim was handcuffed and his legs taped, rendering him helpless. The appellant took several items of personal property from the residence. This established the aggravating circumstance embodied in Tenn. Code Ann. 39-13-204(i)(7).

The appellant presented evidence to mitigate his punishment for this murder. He presented evidence of his childhood, his family life, the sexual abuse he suffered when he was twelve years of age, his mental illness or disturbance, Brown's alleged dominance of him, his immaturity, and his drug abuse.

The appellant's mother and father maintained a "common law" marriage that lasted eighteen years. The appellant and one brother were born to this relationship. The appellant's mother was the victim of severe spouse abuse during the relationship.

According to family members, the appellant was his father's favorite. The appellant was never punished while his brother and two half-brothers were the subject of harsh punishment. If the appellant's mother punished him, his father would become angry at her. The appellant's mother and half-brother described the appellant as "spoiled." The half-brother stated that the appellant could do whatever he desired without fear of punishment.

The record reveals that the appellant lived a normal life until he was twelve years of age. When he reached this age, he refused to go to school, began to associate with older men, and started sniffing glue -- anything that would make him "high." He frequently ran away from home and occasionally would stay away for weeks before returning home. Although the appellant's mother moved the family frequently, the appellant's lifestyle did not change. He was in custody of juvenile authorities on sixteen different occasions. While confined to a juvenile treatment facility in Chattanooga, the appellant escaped. He subsequently committed several serious offenses, which resulted in his convictions for robbery with a deadly weapon, simple robbery, and an attempt to commit a felony: kidnapping.

The appellant's maternal grandfather was an alcoholic. One of the appellant's half-brothers is a recovering alcoholic. The appellant has a history of abusing marijuana. He smoked as many as eight marijuana cigarettes in a twenty-four hour period.

The appellant testified that he was sexually abused by a complete stranger when he was twelve years of age. However, he never revealed this abuse to any member of his family. Nor did he tell the juvenile authorities or the Tennessee prison officials that he had been sexually abused. The sexual abuse did not surface until he had been arrested for the Fulton County, Georgia murder. He related this to an official at the Georgia Diagnostic Center. The appellant refused to tell his parents about the sexual abuse because his father was homophobic and the appellant felt his mother would blame him for the occurrence. He did not tell the juvenile authorities because he knew they would tell his mother.

Shortly after the sexual abuse incident, the appellant made his brother perform fellatio on him. He took a young female cousin into a closet for the purpose of engaging in sexual conduct. When the murder occurred, he was living with Trina Brown. He was also engaging in homosexual male prostitution.

The appellant's mother opined that fifteen-year-old Trina Brown completely dominated the appellant. Trina Brown testified that the appellant did not want to kill the victim and that it was she, not the appellant, who made the decision to kill the victim. She was afraid that if the victim was permitted to live, he would have the appellant arrested, and as a result, she would lose the appellant. Therefore, she told the appellant to kill the victim. The appellant admitted on cross-examination that both he and Brown tried to manipulate each other. He admitted that he had previously stated that Brown "would jump off a building" if he asked her.

Dr. Barry Nurcombe, a child psychiatrist, testified as an expert for the defense. He described the appellant as having an anti-social personality disorder. He outlined the appellant's family life, his childhood, the incident involving sexual abuse, his drug dependence, the murder, his relationship with Brown, his difficulty coping with stress, his poor judgment, which was aggravated by the use of marijuana, and other facts prior to expressing his professional opinion. He concluded that the appellant had a low self-esteem. He also concluded that although a grown man, the appellant reacts the same as a seven or eight-year-old child. He found that the appellant had established the rudiments of psychological disturbance prior to the incident involving sexual abuse.

According to Dr. Nurcombe, the appellant wanted revenge for the sexual abuse that he encountered in his childhood; and he viewed homosexuals as a class rather than individuals. Nurcombe related that Brown had told the appellant's sister-in-law the appellant was a homosexual. This was related by the sister-in-law to the appellant's half-brother, who confronted the appellant with this fact. Dr. Nurcombe opined that the stress resulting from this incident, coupled with the fear that the appellant's family might discover his homosexual lifestyle, motivated the appellant to kill the victim -- the next homosexual that propositioned him.

The appellant told Dr. Nurcombe that "he did not wish to be thought [of as] crazy, that he felt that he did things deliberately [on the night in question, and] that any attempt to explain what he had done on psychological grounds was hogwash." The following colloquy occurred during Nurcombe cross-examination:

Q. Henry Hodges told you exactly why he killed Mr. Bassett but you think that you have a better grasp on why he did it than Mr. Hodges does, himself, is that correct?

A. Yes, I do.

The state called Dr. James G. Kyser, a psychiatrist, and Dr. James Morgan, a psychologist, in rebuttal. These two expert witnesses had examined the appellant for the state. Both experts had talked to the appellant on several occasions, reviewed certain medical records, and viewed an interview the appellant gave a television station concerning the murder and the appellant's background.

Dr. Kyser concluded that the appellant had an anti-social personality disorder. He stated that people with this disorder have "no conscience", are "self-entered," are "notoriously dishonest and untruthful," "have very little regard for the feelings of others," and are willing to use any means to get what they want, no matter who it hurts, and they "know how to work the system real well." The appellant "essentially meets all [these] criteria."

Each time Dr. Kyser talked to the appellant about the Bassett murder, the appellant would contradict what he had previously stated during interviews. Dr. Kyser explained that his evaluation of the appellant was necessarily predicated upon what the appellant told him. Due to the many contradictions related by the appellant, Dr. Kyser did not believe him. Dr. Kyser stated: "He is at high suspicion for being untruthful; for, in fact, lying, malingering, [and] attempting to distort the truth." He stated that Dr. Nurcombe's psycho-dynamic theory is not universally accepted by other psychiatrists.

Dr. Morgan also concluded that the appellant had an anti-social personality disorder. According to Dr. Morgan, one episode of sexual abuse, as in this case, will not cause a person to have an anti-social personality disorder. He concluded that the appellant was in complete control of his behavior when he murdered the victim.

I.

The appellant contends that the conduct of the voir dire proceedings resulted in the denial of his constitutional right to a fair and impartial jury, which is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 6, 8 and 9 of the Tennessee Constitution. He argues that the trial court abused its discretion in the following particulars: (a) unduly restricting the scope of questioning, (b) imposing a fifteen minute limitation during individual voir dire, which was limited in scope to the prospective jurors' views on the death penalty and pretrial publicity, (c) imposing a double standard regarding the rehabilitation of prospective jurors, and (d) denying his motion for permission to personally participate in propounding questions to the prospective jurors.

When the prospective jurors initially reported to the courtroom, the trial court gave each prospective juror an information sheet. The sheet contained a brief explanation of the procedure peculiar to capital cases.

The trial court bifurcated the voir dire proceedings. Initially, the prospective jurors were questioned individually about their respective views toward capital punishment and exposure to pretrial publicity. Additionally, the trial court questioned each prospective juror to determine if the juror could follow the law regarding capital punishment. If the prospective juror could follow the law, counsel for each party questioned the prospective juror. Thirty-five prospective jurors who would follow the law as to capital punishment and were not infected with the pretrial publicity that appeared in the media were tentatively selected.

The trial court required each prospective juror to answer a detailed questionnaire. Counsel were furnished with a copy of the questionnaire before group voir dire commenced.

The clerk was directed to select twelve of the prospective jurors. These individuals were seated in the jury box; and counsel for the respective parties were permitted to question the prospective jurors on any subject without time constraints. Thereafter, the parties were afforded an opportunity to exercise their peremptory challenges. This procedure continued until twelve jurors and two alternate jurors were seated.

Since several issues have been raised concerning the voir dire proceedings, the law governing voir dire proceedings will be reviewed. Thereafter, each issue raised will be addressed on the merits.

The constitutional right to a fair and impartial trial is recognized as a fundamental principle of Anglo-American law because of its vital importance "to the security of the life, liberty, and property of the citizen." In Hyatt v. State, the Tennessee Supreme Court stated that "the constitutional guaranty of trial by an impartial jury requires the jury be free of even a reasonable suspicion of bias and prejudice." Later, the Supreme Court expanded its definition of an "impartial jury." In Houston v. State, the Supreme Court said:

The "impartial jury" guaranteed by constitutional provisions is one which is of impartial frame of mind at the beginning of trial, is influenced only by legal and competent evidence produced during trial, and bases its verdict upon evidence connecting the defendant with the commission of the crime charged."

The Court also stated that "impartiality requires not only freedom from jury bias against the accused and for the prosecution, but freedom from jury bias for the accused and against the prosecution." In other words, both the accused and the state have the right to a fair trial by an impartial and unbiased jury.

Voir dire is the method utilized for selecting prospective jurors who are fair and impartial. The questioning of prospective jurors, the right to challenge for cause, and the right to exercise peremptory challenges permits the removal of jurors who are not qualified, who will not follow the law, or who have a bias or prejudice against a party.

A party does not have the right to select a particular juror. As the Supreme Court said in State v. Smith:

No one, in a case at trial loses jurors. The jury is the property of neither a defendant nor the State. Defendant's only right is to have a fair trial at the hands of an unprejudiced, unbiased and impartial jury. He has no right to select certain jurors. He has only the right to excuse prospective jurors tendered who are biased and prejudiced.

The control of voir dire proceedings rests within the sound discretion of the trial court; and an appellate court will not interfere with the exercise of this discretion unless clear abuse appears on the face of the record. Thus, the method of voir dire, i.e. individual or group, the questions that may be asked, and the scope of inquiry are all within the discretion of the trial court.

A trial Judge has a right to participate in voir dire examination. Rule 24(a), Tenn. R. Crim. P., provides in part: "The court may put to the respective jurors appropriate questions regarding their qualifications to serve as jurors in the case. . . ." This rule contemplates that the trial Judge will make the necessary inquiries to determine whether a juror can be fair and impartial. Consequently, when a juror becomes confused or does not understand the nature of his or her undertaking as a juror, the trial court may address the juror, explain the duties of a juror, and ask any questions that might be necessary to determine whether the prospective juror understands the duties of the jury, will follow the law, and can be fair and impartial.

A.

When defense counsel asked the first prospective juror during individual voir dire if it would be difficult to sit in judgment of the accused if "aspects of homosexuality" were established by the evidence, the assistant district attorney general objected on the ground the inquiry exceeded the scope of the individual voir dire. During a jury-out hearing, defense counsel stated that he intended to inject into his voir dire the fact the appellant had been previously convicted of murder in the first degree. The trial court, referring to the United States Supreme Court's decision in Murphy v. Florida, advised defense counsel not to tell "these jurors that he's got some prior problems with the law, and then come in here and turn around and then try to knock out because they say they've got a problem, because that particular strategy was just -- I mean, that doesn't go." Later, the trial court noted that defense counsel was essentially seeking a pledge from the prospective jurors as to how they would vote regarding aggravating circumstance concerning the prior conviction involving violence to the person.

When the question arose again, the trial court advised defense counsel that he could pose a hypothetical question that did not involve the facts of the case on trial. The court suggested that counsel use the killing of a child and whether the prospective juror could consider mitigating circumstances if these facts were present. Counsel continued to question the prospective juror. Counsel posed the question concerning the death of a child and asked the prospective juror whether the juror could consider mitigating circumstances if the appellant was found guilty of a capital offense.

The appellant complains that the trial court refused to permit him to ask the prospective jurors whether the appellant's homosexual activities would affect their ability to be fair and impartial. Defense counsel knew that the individual voir dire was limited to the prospective jurors' views on capital punishment and their exposure to pretrial publicity. On the other hand, the trial court did not limit the group voir dire; and the trial court advised defense counsel he would be permitted to make such an inquiry at that time. Thus, the trial court did not limit the area that defense counsel wanted to probe.

The appellant also complains that the he should have been permitted to ask the prospective jurors whether they would consider a life sentence if the appellant had been previously convicted of murder in the first degree. Each prospective juror who was tentatively selected had stated that he or she could follow the law. Each stated that he or she could consider a life sentence as well as a death sentence; and each juror stated that he or she would weigh the aggravating circumstances and the mitigating circumstances in determining the proper sentence to be imposed.

The question posed by defense counsel could not be answered by the prospective jurors without knowing more about the facts surrounding the case, the aggravating circumstances, and the mitigating circumstances that might be submitted during the sentencing hearing. Also, the question was intended to obtain a pledge from the prospective juror. That is not permissible.

The trial court did not abuse its discretion in denying defense counsel the right to probe the appellant's homosexual tendencies during the individual voir dire, or ruling that defense counsel could not inquire about the previous murder conviction in Georgia.

This issue is without merit.

B.

The appellant contends that the trial court committed error of prejudicial dimensions by limiting the individual voir dire of prospective jurors to fifteen minutes per party. He argues that the time constraints prohibited defense counsel in their effort to "question jurors directly about areas of possible bias, e.g. homosexuality and defendant's prior murder conviction, and . . . to clarify what first degree murder was not in order to elicit relevant responses. . ., grounds for cause challenges and the intelligent exercise of peremptory challenges."

As previously stated, the individual voir dire examination was limited to two areas of inquiry, namely, the prospective jurors' exposure to pretrial publicity and their respective views regarding the death penalty. The group voir dire was not limited in either the scope of the questions or in the length of time allowed for questions. Moreover, the trial court asked the initial questions of the prospective jurors to make sure each could be fair and impartial. Counsel for the parties had the benefit of these questions and answers before questioning each prospective juror. The length of time spent by counsel asking questions or making explanations was in addition to the trial court's inquiry. Consequently, the contention that counsel did not have sufficient time to question prospective jurors is not supported by the record.

During the individual voir dire, defense counsel began asking questions beyond the scope of the individual voir dire. This resulted in needless delay. The individual voir dire began on January 21, 1992. The following day, the trial court entered the order setting a time limit of fifteen minutes on counsel's voir dire. The order stated in part:

In this death penalty case, the Court is allowing individual voir dire on the issue of the ability of the juror to follow this Court's instruction on the death penalty and exposure to pretrial publicity.

The Court first questions the jurors on whether they are appropriate jurors under the standards of Wainwright v. Witt,. . .and Witherspoon v. Illinois,. . ., and their exposure to pretrial publicity. See Rule 24(b) Tenn. R. Crim. P. Then counsel questions the jurors.

Counsel are having difficulty in restricting questions to reasonable limits, and the individual voir dire is becoming burdensome and does not contribute to the selection of fair and impartial jurors. The Court believes that a time limit should be imposed on the individual voir dire. The Court will first question each individual juror and then the State will be given fifteen (15) minutes and then the defense shall be given fifteen (15) minutes. This means that each juror will be individually questioned for at least thirty (30) minutes.

It is important to keep in mind that once through the individual voir dire each juror will still be required to fill out a detailed questionnaire, a copy of which will be given to counsel and each juror will participate in group voir dire. Certainly, by the end of the entire voir dire process counsel will have been given a full opportunity to exercise [peremptory] challenges....

The objective of individual voir dire related to the death penalty is to insure that jurors can follow their oath.... It is not to proselytize the jury and to gather extraneous information.

The trial court did not abuse its discretion by imposing time constraints on counsel during the individual voir dire. The individual voir dire lasted four days. It is obvious that the trial court did not unduly restrict counsel in asking questions of the prospective jurors concerning their respective views towards capital punishment. The trial court thoroughly covered the exposure of the prospective jurors to pretrial publicity. Defense counsel had the opportunity to devote the entire fifteen minutes to pose questions concerning capital punishment.

This issue is without merit.

C.

The appellant contends that during the individual voir dire the trial court, using close-ended questions, rehabilitated jurors that were subject to a defense challenge. However, the "same courtesy was not extended to those jurors who were subject to cause challenges by the State." He argues that this "disparate treatment of prospective jurors...violated the [appellant's] right to due process."

The appellant addresses the individual voir dire of four prospective witnesses, Bonnie L. Cash, Patricia K. Williams, Wyman F. Creech, and Arvilla Harris. Only one of these prospective jurors, Creech, was a member of the jury that sat in judgment of the appellant. This Court opts to consider all of the prospective jurors that were challenged for cause during the individual voir dire.

Bonnie L. Cash candidly stated that she, like the members of her family, believed in the death penalty. However, she also stated that she did not "disagree with a life sentence;" and, before she would impose a death sentence, she would consider the imposition of a life sentence. She also stated that she would follow the law. Cash was subsequently called as a prospective juror during group voir dire. While the record is silent, it appears that defense counsel used a peremptory challenge to strike her from the panel.

Patricia K. Williams stated that she could impose either a death sentence or a life sentence. However, before imposing a death sentence, she would have to have a "clear mind," meaning that the state would have to convince her that a death sentence was appropriate; and the aggravating and mitigating circumstances must be "weighed out" to determine the appropriate sentence. She subsequently told the trial court that she became confused after listening to defense counsel's questions and explanations of the law. A reading of the questions propounded and explanations made by defense counsel reveals why Ms. Williams became confused. The trial court subsequently asked questions to make sure that Ms. Williams could be fair and impartial. It then allowed further questioning by defense counsel. Ms. Williams constantly stated that the factors would have to be "weighed out" in order to determine the appropriate sentence.

Wyman F. Creech stated that he had seen news reports of the murder on television. However, he had not formed an opinion as to the appellant's guilt or innocence, and he would require the state to prove its case beyond a reasonable doubt before he would vote to convict the appellant or impose a death sentence. He stated he could consider both a life sentence and a death sentence, and he would have to weigh the aggravating factors before determining that sentence. If he had any doubt, he could not vote for a death sentence. He also stated that he would follow the law given by the trial court. Mr. Creech also became confused by the questions and explanations made by defense counsel. The trial court simply made sure that he could be a fair and impartial juror. The trial court again gave defense counsel, not the state, time to propound additional questions to Mr. Creech.

Mr. Creech was one of the initial jurors that was called at the beginning of the group voir dire. The appellant had fifteen challenges at that time. Neither the appellant nor the state peremptorily challenged him. Thus, he was a member of the jury that returned the death sentence.

Arvilla Harris expressed her opposition to the death penalty. She first stated that she had mixed views about the death penalty. She then stated that she guessed she could set aside her views. She also stated that she did not know if she could set aside her views regarding the death penalty. Later, she proclaimed that she did not think she could impose a death sentence under any circumstances. Finally, she stated that she would not consider imposing a death sentence regardless of circumstances. Her views were based on religious convictions. The trial court granted the state's challenge for cause.

When the trial court questioned Susan G. Whitman, she stated that she saw the program featuring a television personality interviewing the appellant about the murder he committed. She also stated he had admitted killing the victim, but his sexual molestation as a youth "drove him to do what he did." Ms. Whitman opined that the appellant deserved the death penalty for the murder. Although she stated she could follow the law, her initial inclination was to impose the death sentence. The trial court excused Whitman before either the state or the defense had the opportunity to question her. Neither party objected when Ms. Whitman was excused.

Bill R. Bennett was also familiar with the facts surrounding the prosecution of the appellant. He stated the appellant had escaped from jail, and he was charged with murder. However, Bennett stated that he had not formed an opinion as to the appellant's guilt. Bennett, like Harris, vacillated during questioning. When asked about the death penalty, he stated: "I don't actually believe in it. I don't actually believe in the life sentence, either." Later, he stated: "I don't know if I could [impose the death penalty] or not. I'm not sure about that." Finally, he stated: "I don't really believe I probably could even do it. I don't know. I have to say no." He stated that his feelings against the death penalty were "pretty strong." The trial court gave defense counsel the opportunity to rehabilitate Bennett. He continued to say he could not impose a death sentence. The trial court granted the state's challenge for cause.

Lyz N. Diaz had heard the appellant's name mentioned at work, and she knew that he had killed someone. However, she did not know the details surrounding the murder. Diaz stated that she would go by the law a "hundred percent." She also stated she could consider a life sentence and a death sentence. Defense counsel challenged Diaz for cause. Counsel contended that she did not "have a minimal understanding of what she's about to engage in." The trial court denied the challenge.

Diaz, like Creech, was one of the initial jurors called at the beginning of the group voir dire. The appellant had fifteen challenges at that time. Neither the appellant nor the state peremptorily challenged her. Thus, she was a member of the jury that returned the death sentence.

Defense counsel challenged Leroy Thompson for cause for the same reason given when challenging Ms. Diaz. The trial court denied the challenge. Mr. Thompson was called and questioned during the group voir dire. He was peremptorily challenged. Thus, he did not serve on the jury that returned the death sentence.

Patsy A. Hedgepath stated that she probably could not consider mitigating circumstances; and, if the accused was guilty, she would vote for a death sentence. The defendant challenged Hedgepath for cause during the individual voir dire. The trial court granted the challenge because Hedgepath was not "open-minded."

This Court has reviewed the entire voir dire proceedings. The record reveals that the trial court did not attempt to rehabilitate any prospective juror. When it was obvious that a prospective juror became confused, the trial court attempted to alleviate the confusion as well as to determine if the prospective juror was prone to impose the death penalty without regard to the evidence. In doing so, the trial court was fair to both parties. However, assuming arguendo that the trial court was biased during the individual voir dire examination, there are several reasons why the appellant is not entitled to relief on this ground.

The right of an accused to a fair and impartial jury in a capital case prohibits the inclusion of jurors who will impose a death sentence without regard to the law or the facts. In this case, no juror who sat in judgment of the appellant and returned the death sentence stated that he or she would automatically return a death sentence if the appellant was convicted of a capital offense.

Two prospective jurors that the appellant challenged, Lyz N. Diaz and Wyman F. Creech, were two of the twelve jurors who were called when the group voir dire commenced. The appellant had fifteen (15) peremptory challenges at his disposal when these two prospective jurors were seated. The appellant chose not to challenge these prospective jurors, and they were members of the jury that returned the death sentence. Since the appellant did not use peremptory challenges to strike these prospective jurors, he cannot now complain that the trial court denied his challenge of these two individuals for cause.

The denial of the appellant's challenges of Cash, Williams and Thompson are equally without merit. Peremptory challenges were used to strike these prospective jurors. The record does not reveal who challenged them. If the appellant challenged these prospective jurors, he cannot now complain that the challenges for cause were denied. These three people were not members of the jury that returned the death sentence. Consequently, an incompetent juror was not thrust upon him.

The trial court properly excused Arvilla Harris for cause. It is obvious from a reading of her voir dire examination that she had views towards capital punishment which "would 'prevent or substantially impair the performance of [her] duties as a juror in accordance with [her] instructions and [her] oath." In addition, a trial court's determination that a prospective juror does not meet the Wainwright v. Witt standard is presumed to be correct. The burden rests upon the shoulders of the appellant "to establish by convincing evidence that the determination was erroneous." The appellant has failed to establish that the trial court's determination as to Harris was erroneous.

This issue is without merit.

D.

The appellant filed a motion prior to trial for the entry of an order permitting him to pose questions to the prospective jurors. Defense counsel states in their brief that they wanted the appellant to ask a few questions for the purpose of "humanizing the [appellant] in the eyes of the jury." In other words, the appellant sought hybrid representation.

The Tennessee Constitution provides that an accused has the "right to be heard by himself and his counsel." A Tennessee statute provides in part that "the accused is entitled. . .to be heard in person and by counsel." The United States Constitution provides that "the accused shall enjoy the right...to have the assistance of counsel for his defense." Neither the United States Constitution, the Tennessee Constitution, or the applicable statute grants the accused the right to hybrid representation. Furthermore, the courts "are not willing to extend the reach of the Sixth Amendment to include such a right."

In State v. Burkhart, the accused moved the trial court prior to trial for the entry of an order permitting him to cross-examine the witnesses and make a statement to the jury without taking the witness stand or taking an oath to tell the truth. The Tennessee Supreme Court held that an accused in a criminal prosecution "does not have a constitutional right under the State or Federal Constitution to participate in propria persona in his own defense and simultaneously to be represented by participating counsel." The Court explained that "the [Tennessee] Constitution of 1796 was written at a time when a criminal defendant did not have the right to testify in his own behalf, and when the right to counsel was not firmly entrenched in American jurisprudence." The Court also said that "it was the purpose and intent of the framers of our Constitution to recognize and protect these two basic rights, but not to establish their simultaneous enjoyment in a single criminal trial."

The question of whether hybrid representation should be permitted in a criminal case rests within the sound discretion of the trial court. However, the grant of this right should be limited to cases that present exceptional circumstances. The Tennessee Supreme Court has urged trial courts to exercise this discretion "sparingly and with caution."

The Tennessee Supreme Court pretermitted the question of what constitutes "exceptional circumstances" in Melson. The Court said: "We shall not set forth what would constitute exceptional circumstances." However, in Franklin the Court stated that "what constitutes exceptional circumstances cannot be defined; they must be determined on a case by case basis." Some courts have indicated that the accused may be entitled to hybrid representation when there is a showing of a "special need." The length of a trial or the involvement of the death penalty does not per se constitute "exceptional circumstances." As the Supreme Court said in Melson: "These factors are present far too often to be 'exceptional.'"

In this case, the trial court did not abuse its discretion by denying the appellant's motion. The appellant failed to allege facts constituting "exceptional circumstances" in the trial court and has failed to establish this prerequisite on appeal.

This issue is without merit.

II.

The appellant contends that the evidence presented by the state is insufficient, as a matter of law, to support aggravating circumstance Tenn. Code Ann. 39-13-204(i)(5), namely, "the murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death."

When the appellant arrived at the victim's home, he handcuffed the victim and bound his legs with duck tape. He placed a pillow over the victim's head. The appellant left, obtained Brown, and returned to the victim's residence. Both Brown and the appellant ransacked the residence looking for valuable personal property and money. The victim asked the appellant not to kill him. The victim told the appellant he could have anything that he owned, but asked that his life be spared. The victim obviously realized that being murdered was a distinct possibility after he was handcuffed, taped, and had a pillow placed over his head. This thought lingered while the appellant left to get Brown, while the residence was being ransacked, and while Brown and the appellant sat on the sofa drinking Coca-Cola as they discussed killing the victim.

The evidence surrounding the death of the victim is not disputed. The appellant murdered the victim by ligature strangulation. Trina Brown testified that it took the appellant "about five minutes" to kill the victim. She heard the victim plead "please don't kill me" and then moan as he was being strangled. Dr. Harlan testified that it would take three to five minutes to kill the victim. Dr. Harlan said the victim would have been conscious during most of this period. The appellant told a psychiatrist he was fascinated with the way the body functioned during strangulation and indicated that it took ten minutes to choke the victim.

Strangulation causes a victim to suffer. The pressure to the neck interrupts the blood flow to and from the brain. There is a lack of oxygen entering the body and a lack of oxygen-rich blood going to the brain.

There are three similar cases where our Supreme Court found that this aggravating factor was established. In State v. King, the accused shot the victim in the back of the head with a high-powered rifle as she laid on her stomach. Before the victim was murdered, she pleaded for her life, and she offered the accused money if he would permit her to leave without injury. In State v. Johnson, a large plastic bag was forced into the victim's mouth. This resulted in strangulation and asphyxiation. The doctor who performed the autopsy testified that it would have taken from one to four minutes for the victim to die; and that she would have been conscious during this ordeal. In State v. Teel, the autopsy revealed that the cause of death was either manual strangulation, ligature strangulation, a blow to the neck, or a deep cut that reached the bones in the neck. The pathologist could not give an exact cause of death because the victim's body was badly decomposed. The appellant stated that he had drowned the victim in a creek. Before the victim was killed, she begged the appellant not to hurt her.

Strangulation alone does not establish the heinous, atrocious and cruel aggravating factor. However, based upon the facts presented and the aforementioned cases, the state established this factor beyond a reasonable doubt. Thus, the jury was justified in finding the existence of this aggravating circumstance.

This issue is without merit.

III.

The opinions expressed by Dr. Nurcombe were predicated upon personal interviews with the appellant, the appellant's relatives, the records of three hospitals where the appellant had been treated in the past, school records, a television interview with the appellant conducted by a reporter for a local television station, and other information furnished by defense counsel. Dr. Nurcombe never mentioned or alluded to any medical examinations, physical testing, or that the appellant suffered from an organic condition that affected his mental or emotional well-being. In summary, Dr. Nurcombe's testimony was predicated mainly upon hearsay; and much of what he considered would not have been admissible as evidence.

When Dr. Nurcombe completed his direct examination, the state requested "any Jencks material, notes or whatever. . . . The state would be entitled to them." The appellant asserted that the state was not entitled to the notes of interviews conducted by Dr. Nurcombe, particularly the notes taken during nine hours of interviews with the appellant. The trial court, relying upon Tenn. R. Crim. P. 26.2 and Tenn. R. Evid. 705, ordered the appellant to produce all of the interview notes, including the notes made during the interviews with the appellant.

The appellant contends that the trial court committed error of prejudicial dimensions in ordering the appellant to produce the notes. He argues that the "clinical notes" did not constitute a "statement" within the meaning of Tenn. R. Crim. P. 26.2; and the "clinical notes" were not producible under Tenn. R. Evid. 705. He also argues that requiring the appellant to produce the notes of interviews with him violated his constitutional privilege against self-incrimination.

When scientific, technical, or other specialized knowledge will "substantially" aid the trier of fact in understanding the evidence adduced or resolve a factual issue raised by the parties, a qualified expert may express an opinion regarding the evidence or factual issue to be resolved. The opinion given by the expert may embrace the very issue which the trier of fact must resolve.

An expert witness may predicate an opinion upon (a) facts that have been perceived through the expert's senses, (b) facts which have been related to the expert, and (c) facts and data that are not admissible evidence, if the information considered by the expert is trustworthy and "reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject" matter in controversy. The information considered by Dr. Nurcombe fits into each category although most of the information was hearsay.

An expert witness may express an opinion and give reasons for the opinion without prior disclosure of the facts and circumstances that form the basis of the opinion "unless the court requires otherwise." In other words, counsel does not have to pose a hypothetical question to the expert to elicit the desired opinion unless the trial court requires counsel to ask a hypothetical question. In addition, the trial court has the discretion to require that the underlying facts and data used by the expert to formulate the opinions be provided to the other party. As a general rule, a trial court will require disclosure of the underlying data of the expert's opinion when the court "believes that the party opponent will be unable to cross-examine effectively and the reason for such inability is other than the prejudicial nature of such facts or data...."

The underlying facts and data that are elicited during the cross-examination of the expert are not admitted as substantive evidence. They are admitted "for the limited and independent purpose of enabling the jury to scrutinize the expert's reasoning." The trial court is required to give a limiting instruction as to how the jury is to consider the data and facts elicited during cross-examination.

The trial court did not abuse its discretion in requiring the appellant to produce Dr. Nurcombe's clinical notes. It would have been extremely difficult, if not impossible, for the assistant district attorney general to cross-examine Dr. Nurcombe effectively without access to the notes. The trial court gave a limiting instruction to the jury. The jury was instructed in the following words: "Expert witnesses have testified as to what other persons have told them. This testimony may be considered only as a basis for the expert's opinion and not for the truth of these statements."

The appellant's contention that providing the assistant district attorney general with the statements he made to Dr. Nurcombe violated his constitutional privilege against self-incrimination is devoid of merit. The appellant, not the state, called Dr. Nurcombe as a witness. Furthermore, the appellant knew, or should have known, that (a) Dr. Nurcombe would rely on his interviews with the appellant to formulate his opinion, and (b) the state would have the opportunity to test Dr. Nurcombe's controversial theory. For instance, the appellant admitted that he acted deliberately. He stated that attempting to justify his actions through a psychological theory was sheer "hogwash." Also, Dr. Nurcombe testified that he had a better insight into why the appellant committed the murder than the appellant himself.

The appellant's reliance upon Estelle v. Smith is misplaced. Estelle and this case are factually distinguishable. In Estelle, the person conducting the examination was appointed by the trial court to determine the competency of the accused for trial. Here, the doctor was selected by the appellant or his counsel. Also, the evidence was admitted as substantive evidence in Estelle. The evidence in this case was introduced solely for the purpose of testing the reasonableness of Dr. Nurcombe's opinion.

Since the "clinical notes" were properly provided to the assistant district attorney general pursuant to Tenn. R. Evid. 705, and the ruling of the court was a reasonable exercise of its discretion, it is not necessary for this Court to decided whether the "clinical notes constitute a "statement" within the meaning of Rule 26.2, Tenn. R. Crim. P.

This issue is without merit.

IV.

A.

Before the group voir dire commenced, Phyllis Bassett, the victim's mother, sat next to the assistant district attorneys general at the state's counsel table. Defense counsel objected. The state advised the trial court that Mrs. Bassett had requested to sit with the prosecutors and participate in the trial. The trial court ruled that Mrs. Bassett could sit at counsel table. However, if she was going to testify, she would have to remain outside the courtroom until she completed her testimony. In ruling, the trial court said:

I think it's been customary to allow the State's chief prosecuting witness to sit at counsel table. . . . The State's chief prosecuting witnesses oftentimes have an interest in the case that makes them. . .more than just a regular witness.

When defense counsel stated that Mrs. Bassett's presence at counsel table would "inflame the jury" so that they would return a death sentence "based upon arbitrary and capricious reasons," the trial court stated:

Well, there's going to be no testimony in this case that the family is supportive of the death penalty. That's not what I'm asked to rule on.

I think there has to be some balance, and courts strive for this, to balance the rights of the criminal defendant, and there has to be sensitivity to that and sometimes that's not understood by the general public nor the family of the deceased, but I think there does [have] to be some sensitivity to the family of the deceased, a recognition of their special interest in the case....

I think my ruling strikes the correct balance. And I'll also say this, that you are free during the group voir dire to broach that subject. I mean, that the mother of the deceased will be at the counsel's table and will that affect your impartiality.

So, I'll continue to adhere to the ruling I made.

Immediately after the jury had been selected, an incident occurred in a hallway adjacent to the courtroom. Defense counsel moved for the entry of a mistrial. While making the motion, defense counsel made the statement that "the entire purpose of this woman [Mrs. Bassett] being here at all" is to "prejudice this jury against the Defendant." The trial court denied the motion. However, the trial court stated:

Since I've been a lawyer and a Judge nineteen years, it's always been the custom to have. . .a deceased's family member at the State's table.

And those are most often cases where the death penalty doesn't have anything to do with it, but it's just been the custom. Now, where that custom came from, I don't know.

But, to say that they've come up with this out of the blue in this one case, ignores the custom that's been in effect in this...courthouse, for twenty years and is also the custom I've observed in several other counties where I've sat as a Judge. So, I don't think. . .this isn't a new problem.

*****

I also remind counsel that, when you originally made this motion about Mrs. Bassett sitting at counsel table, I invited you to address this subject in voir dire to the jurors, and you --I don't recall a single question being asked about it.

Once the defense completed its proof, defense counsel stated:

We'd like to renew our motion to exclude Ms. Bassett from the counsel table. I'd also at this point make a motion for a mistrial in this matter.

I observed during the testimony of Dr. Nurcombe, . . . that obviously when he was discussing, or when Mr. Thurman was examining him about the comments about viewing somebody die, it was very hard on Ms. Bassett, understandably. But also there were several jurors that were looking at her at that point.

I think again this is inflaming this jury. It's bringing sympathy for the victim in as a relevant criteria, which is not admissible in Tennessee, and therefore I think this process is tainted, and would at this time [move] for a mistrial.

I would also observe, Your Honor, again for the record, that Ms. Bassett has not participated in any way in assisting counsel for the government in this trial and has merely sat at counsel table more or less as the prosecution's Exhibit One, not as a relevant participant in the trial process.

The trial court denied the motion. In ruling the court said:

Well, I've already ruled on your objection. And I continue to adhere to the ruling that she is allowed to stay. I appreciate Ms. Bassett's efforts at self-control under difficult circumstances, and I know she'll continue to do her very best.

Immediately after the appellant was sentenced, defense counsel announced the parties would stipulate that Mrs. Bassett offered no technical assistant to the prosecution while seated at counsel table. An assistant district attorney agreed. However, the assistant stated that "we did discuss certain testimony with her."

The appellant contends Mrs. Bassett's presence at the state's counsel table "amounted to a statement by the victim's family that death was the appropriate sentence." He further contends that her presence "created an unacceptable risk that the jury's verdict was based on vengeance and sympathy." He argues that her presence resulted in the deprivation of several state and federal constitutional rights.

As the trial court stated, there is a common law rule which permits the prosecutor or an interested witness to sit at counsel table with the assistant district attorney general prosecuting the accused. This has been the practice for many years.

In Hughes v. State, the accused was tried and convicted of murder in the first degree. He was previously tried for murder in Arkansas. The widow of the Arkansas victim was permitted to sit at the state's counsel table. The accused contended that he was "deeply prejudiced by the mere presence of Mrs. Scott in the courtroom. . . ." In holding that the accused was not entitled to relief on this ground, the Supreme Court said:

It does not appear that she was placed by the Attorney-General for the purpose of influencing the jury, and in the absence of such fact it was not improper that the Attorney-General should have the benefit of such suggestions as he hoped to obtain from her with respect to the life of the plaintiff in error in Arkansas, as to which he was cross-examining the plaintiff in error. In addition, it appears that plaintiff in error was tried in Arkansas and acquitted for the killing of Dr. Scott, and the jury were instructed that they were to pay no attention to the evidence with respect to that homicide.

In Smartt v. State, one defendant was convicted of giving or administering medication for the purpose of producing an abortion. The other defendant was convicted of using an instrument for the purpose of producing an abortion. The victim of the offense was Emma Emerson. The prosecutor listed on the face of the indictment was T. M. Emerson, obviously a relative of the victim. T. M. Emerson was permitted to stay in the courtroom to assist the attorney general pro tempore during the course of the trial. He subsequently testified as a witness for the state. The accused complained about this practice in the appellate court. In holding that the accused were not entitled to relief on this ground, the Supreme Court said:

The attorney for the State has the right to such assistance as the prosecutor can give him in the management of the State's case, and, upon his request, it is not error to permit the prosecutor to remain in the courtroom after the rule has been called for; but the court should impose as a condition that the State, if it desires to use the prosecutor as a witnesses, should examine him first. The action of the court in the present case in declining to pursue this course was error, but, inasmuch as we cannot see that any substantial injury was done to the defense of the plaintiffs in error in the court below by such action, it cannot be treated as reversible error.

In Brooks v. State, the accused was convicted of murder in the second degree. The husband of the victim was permitted to sit "in the vicinity of the counsel table." In holding that the accused was not entitled to relief on this ground, this Court said:

Defendant lastly contends the trial court erred in allowing the husband of the deceased to sit in the vicinity of the counsel table and to testify without being sequestered. We hold that this matter of control of witnesses is within the discretionary authority of the trial court and that in this matter in this case the trial court did not abuse his authority. . . . The testimony of the deceased's husband was cumulative and the defense chose not to cross-examine the witness.

In Sloan v. State, this Court simply stated that it found no merit in the defendant's assignments regarding a witness who had been seated at counsel's table. The opinion does not elaborate as to who the witness was or why the witness was sitting at counsel table.

The question of whether a layman should be permitted to sit at the state's counsel table is a matter which addresses itself to the sound discretion of the trial court. In this case, the trial court did not abuse its discretion by permitting Mrs. Bassett to sit at the state's counsel table. Contrary to the position asserted by the appellant, her presence at counsel table was not tantamount to the victim's family expressing the view that a death sentence was appropriate. Nor did her presence create an unacceptable risk that the jury's verdict would be predicated upon vengeance and sympathy.

The trial court advised defense counsel they could voir dire the jury regarding Mrs. Bassett's presence at counsel table. No questions were asked. The trial court instructed the jury prior to the commencement of the trial. The instruction given stated:

It would be impermissible to decide any issue in this case based upon prejudice, sympathy or passion. And I want to make sure that anything that you observed or saw or read before this case, even in and around the courthouse, would not affect your ability to do that. So, again, I instruct you that nothing in this case is to be decided by you based on sympathy, prejudice or passion.

The trial court instructed the jury at the Conclusion of the trial that "you cannot consider sympathy toward the victim or the victim's family" in determining whether to return a death sentence. It is an elementary principle of law that jurors are presumed to follow the instructions given by a trial court.

Problems can arise with relatives and friends of the victim regardless of where they may be seated in the courtroom. However, such problems did not occur in this case. Mrs. Bassett maintained her composure during the sentencing hearing. There was no emotional outburst. The record does not reflect that she cried during the hearing or exhibited any other emotion. Before the pathologist testified, Mrs. Bassett left the courtroom. This precaution prevented Mrs. Bassett from exhibiting her emotions in the presence of the jury.

B.

The appellant also complains that an assistant district attorney general, a victim-witness coordinator, and a friend were consoling Mrs. Bassett while the jury passed through the hallway enroute to the jury room. Defense counsel moved the trial court for the entry of an order declaring a mistrial. The trial court denied the motion. However, the trial court advised counsel that he was going to question the jurors about the incident. Defense counsel advised the trial court that the appellant did not want the court to quiz the jurors about the incident.

The appellant cannot prevail on this issue for three reasons. First, the appellant waived this ground when defense counsel advised the trial court he did not want the incident pursued. Second, defense counsel did not establish what occurred. There is no evidence in the record to establish that the incident took place and that the jurors were in close proximity when it occurred. Factual statements made by lawyers during the course of a hearing or a trial are not evidence. When, as here, the record is incomplete, this Court is precluded from considering the issue; and it must presume that the trial court's ruling on the motion was correct. Third, the trial court gave a limiting instruction which specifically mentioned what the jurors may have heard about the facts of the case or what they may have seen outside or inside the courtroom. As discussed previously, the jury is presumed to follow the instructions of the trial court.

This issue is without merit.

V.

When the trial court and counsel discussed the charge to be given to the jury, defense counsel advised the court that the appellant did not want the applicable statutory mitigating circumstances included in the charge. Instead, defense counsel furnished the trial court special requests that included ten fact-specific, non-statutory mitigating circumstances. The trial court refused to include the special requests in the charge. Instead, the trial court instructed the jury in part:

In addition, the defense has submitted the following issues for your consideration. They are to be considered, if you believe they have been proven and are mitigating or favorable to the defendant or reduce his blameworthiness.

1) History of childhood;

2) Victim of child sexual abuse;

3) Mental illness or mental or emotional disturbance

4) Dominance by another person and/or immaturity;

5) Drug abuse;

6) Any other aspect of the Defendant's background or character or the circumstances of the offense, which you believe reduces the Defendant's blameworthiness.

The appellant contends that the language of Tenn. Code Ann. 39-13-204(e) is mandatory, not discretionary. Consequently, the trial court committed error of prejudicial dimensions by refusing to incorporate his special requests into the charge.

The appellate courts of this state have consistently held that a trial court is not required to include specific nonstatutory mitigating circumstances in the charge given to the jury. In State v. Hartman, our Supreme Court said:

Assuming, without deciding, that there were non-statutory mitigating circumstances raised by the evidence, we find no provision in the death penalty statutes requiring that such factors be expressly charged. The only thing in the statutes relevant to defendant's contention under Discussion is that mitigating circumstances are not limited to those expressly listed therein. . . . Accordingly, we have held that the jury may consider any non-statutory mitigating circumstances, on its own initiative, and that there is no requirement that they reveal in their verdict what mitigating circumstances, if any, were considered. . . . Therefore, we hold that the 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 that they shall weigh and consider any other facts or circumstances that are raised by the evidence that they find to be mitigating circumstances, in making the determination of which circumstances, aggravating or mitigating, outweigh the other.

In this case, the trial court was not required to mention the specific nonstatutory circumstances in the charge it gave the jury. However, the trial court, attempting to be fair to the appellant, brought the nonstatutory mitigating circumstances to the attention of the jury.

This issue is without merit.

VI.

The appellant presented Dr. Barry Nurcombe, a psychiatrist, to establish mitigating circumstances. The state countered by presenting Dr. James G. Kyser, a psychiatrist, and Dr. Leonard Morgan, a psychologist, in rebuttal. The appellant contends that the trial court committed error of prejudicial dimensions when Dr. Kyser "was permitted to testify to the defendant's lack of credibility and lack of remorse." He further contends that the testimony of Dr. Morgan "confused the issues and misled the jury."

As previously stated, when scientific, technical, or other specialized knowledge will "substantially" aid the jury in understanding the evidence adduced or resolve a factual issue raised by the parties, a qualified expert may express an opinion regarding the evidence or the factual issue to be resolved. The opinion given by the expert witness may embrace the very issue that the jury must resolve.

An expert witness may express an opinion and give reasons for the opinion without disclosing the facts and circumstances that form the basis of the opinion "unless the court requires otherwise." The expert may predicate an opinion upon facts that are perceived through the senses, facts that are related to the expert by others, and facts which are not admissible as evidence.

It is a well-established rule of law that the allowance of expert testimony, the qualifications of the expert witness, the relevancy and competency of expert testimony, the trustworthiness of the facts and data forming the basis of the expert witness's opinion, and whether the facts and data are the type reasonably used by experts in the same field in forming opinions are within the sound discretion of the trial court. This Court will not interfere with the exercise of this discretion unless clear abuse in exercising this discretion appears on the face of the record.

The trial court did not abuse its discretion in permitting Drs. Kyser and Morgan to testify as expert witnesses. Both witnesses were qualified to express their respective findings and opinions based upon their education, training, and practical experience.

Drs. Kyser and Morgan, like Dr. Nurcombe, found that the appellant had an antisocial personality disorder. Dr. Kyser related the symptoms of the disorder. He said that people who have this disorder are "notoriously dishonest and untruthful;" and these individuals "have very little regard for the feelings of others," they "have no conscience," "guilty feelings are. . .alien to these people," they are "very self-centered," "very domineering in relationships," and they "know how to work the system real well." According to Dr. Kyser, they tend to operate on a belief that "what I want is okay, and it's any means that I want to take to get it is okay, no matter who I hurt."

The appellant was interviewed by Drs. Kyser and Morgan on several occasions. Each time the murder of the victim was discussed, the appellant factually contradicted the statements he had made during prior interviews. Based on these contradictions, Dr. Kyser stated that the appellant "is at high suspicion for being untruthful; for, in fact, lying, malingering, [and] attempting to distort the truth." As Dr. Kyser stated, a psychiatrist must, as a general rule, predicate an opinion on what he is told by the patient. He concluded his direct testimony by labeling Dr. Nurcombe's opinion as a "controversial theory" which is not universally accepted among psychiatrists.

The appellant's argument overlooks the fact that the appellant made his credibility an issue when he testified to establish his theory of mitigation. Also, the appellant placed his credibility in issue when Dr. Nurcombe testified that he had interviewed the appellant for nine hours, he related much of what the appellant told him, and he predicated his opinion upon the appellant's statements during these interviews. Of course, much of what Dr. Kyser said related to the symptoms of the anti-social personality disorder.

Before Dr. Nurcombe could reach the opinion he expressed, he had to believe what the appellant told him. If the ultimate facts Dr. Nurcombe used to formulate his theory and opinion were untrue, his opinion would be based upon a false premise.

The appellant told Dr. Nurcombe that he was the object of a single act of child sexual abuse when he was twelve years of age. Dr. Nurcombe believed him. Yet, the appellant never told any member of his family that he was molested. Nor did he tell the juvenile authorities that he was molested. He was in the custody of juvenile authorities on sixteen different occasions. The appellant did not reveal this fact to the health care providers at the different hospitals where he was treated; and when he was confined to the Department of Correction, he did not tell any person in authority that he had been molested.

This single act of child sexual abuse first surfaced after the appellant was confined in Fulton County, Georgia, for murder in the first degree. The Georgia murder occurred approximately two days after the appellant killed the victim in this case. The state questioned whether the appellant was ever sexually molested. Of course, the fact that the incident did not surface until the appellant had committed three murders makes the revelation suspect. It is obvious that Drs. Kyser and Morgan did not believe what the appellant told them regarding the murder due to the numerous inconsistencies in his statements. Drs. Kyser and Morgan concluded that the appellant was in complete control of his behavior when he committed the murder.

The testimony of Drs. Kyser and Morgan was relevant because it undermined Dr. Nurcombe's explanation of why the accused murdered the victim. First, it was established that Dr. Nurcombe's opinion was predicated upon a controversial psycho-dynamic theory, a theory which is not universally accepted by psychiatrists. Second, what the appellant related to Dr. Nurcombe might not have been true -- if he was less than candid with Drs. Kyser and Morgan, he may have been less than candid with Dr. Nurcombe. Third, the appellant may have been malingering or created this theory as a means to avoid a death sentence. Fourth, the testimony of the appellant's mother and Dr. Nurcombe that Trina Brown dominated the appellant was also refuted. Drs. Kyser and Morgan explained that a person with an anti-social personality disorder dominates those around him.

The appellant's reliance on State v. Schimpf is misplaced. Schimpf is factually and legally distinguishable from this case.

In Schimpf, the psychologist related the "signs and symptoms thought to be part of the post-incident experience of child victims of sexual abuse" as part of his direct testimony. The psychologist used the "signs and symptoms" in determining whether a child had been sexually abused. This Court found that "the jurors had no need for his [the psychologist's] testimony. . . . Couched in scientific terms as it was, it could only have confused and misled them." This Court also stated that the "testimony invaded the jury's province by offering testimony which ultimately went to credibility."

In this case, the anti-social personality disorder, unlike the child sexual abuse syndrome, has been a recognized diagnosis by psychiatrists for years. Furthermore, the three expert witnesses who saw the appellant agreed with this diagnosis. The question presented by the evidence was the validity of Dr. Nurcombe's opinion that the killing of the victim was traceable to a single act of sexual abuse when he was twelve years of age. As previously stated, this opinion was predicated upon what the appellant told Dr. Nurcombe; and it is apparent that Dr. Nurcombe believed what the appellant told him. Thus, the symptoms of the disorder became relevant; and the diagnosis and findings of the state's expert were also relevant.

Contrary to the position taken by the appellant, this testimony was not introduced to reflect upon his lack of remorse; nor was it introduced solely to influence the jury regarding the appellant's credibility. The testimony of Drs. Kyser and Morgan was in rebuttal to the "controversial theory" relied upon by Dr. Nurcombe.

This issue is without merit.

VII.

The appellant filed a motion seeking authorization to retain the services of Dr. Peter Martin, an expert on the effects of drug and alcohol abuse. The trial court denied the motion. In this Court, the appellant contends that the trial court's action in denying his motion violated his statutory and constitutional rights. He argues that this action violated the provisions of Tenn. Code Ann. 40-14-207(b), the Fourteenth Amendment to the United States Constitution, and Article I, 9 of the Tennessee Constitution.

Before an accused in a capital case is entitled to the assistance of an expert witness, the accused must establish a particularized need for the assistance. This requires the accused to establish that "a substantial need exists requiring the assistance of state paid supporting services and that his defense cannot be fully developed without such professional assistance." Whether such expert assistance is necessary to protect the constitutional rights of the accused is a question that addresses itself to the sound discretion of the trial court. Moreover, neither the statute nor the United States Supreme Court's decision in Ake v. Oklahoma requires "that a defendant have an expert of his choice appointed. The constitution requires that an indigent defendant be provided with the tools necessary to present an adequate defense."

In this case, the appellant was provided with the assistance of three court appointed attorneys, an investigator, a psychiatrist, and a clinical psychologist. The appellant was able to introduce what he wanted to establish through Dr. Nurcombe. The appellant's relatives testified that his maternal grandmother was an alcoholic; and one relative who testified was himself a recovering alcoholic. Moreover, the appellant has failed to establish how he was prejudiced by the trial court's denial of funds to hire Martin.

This issue is without merit.

VIII.

The appellant contends that the trial court committed error of prejudicial dimensions in ruling that "a computer report from the Tennessee Department of Correction which listed offenders having two or more homicide convictions, the degree of the homicides, the total number of convictions for each offender, the year of the last homicide sentence, and the total sentence received by each offender" could not be introduced as evidence at the sentencing hearing. He argues that the "proffered evidence goes to the weight to be given the subsection (i)(2) aggravating circumstance by showing the jurors that there have been many offenders with a previous homicide conviction who have received sentences less than death."

The appellant cites Tenn. Code Ann. 39-13-204(c) as authority for the admission of the proffered evidence. He does not cite any case that supports his argument.

The state argues that the trial court correctly ruled that the proffered evidence was not admissible because it "was totally irrelevant to establishing or negating that aggravating circumstance." The state does not cite any authority in support of its argument.

The argument advanced by the appellant is predicated upon a false premise. Many death penalty cases are settled pursuant to plea bargain agreements. If the agreement provides for a plea of guilty to a capital offense, the agreed punishment is life or life without parole. However, it is common for the state and the accused to agree that the plea may be to second degree murder, voluntary manslaughter, or a lesser included offense. Given this fact, the computer report was not an accurate assessment of "jury verdicts" in death penalty cases.

There is another false premise. The facts of the cases represented in the computer report may not have warranted the imposition of the death penalty. Also, it is common knowledge that assistant district attorney generals often waive a death sentence. This is commonplace. The reasons why a prosecutor may waive the death penalty are legion.

In summary, the computer report was neither relevant nor probative of a sentencing issue. The trial court did not abuse its discretion in ruling that the report could not be introduced into evidence.

This issue is without merit.

IX.

The appellant contends that the trial court committed error of prejudicial dimension in denying his pretrial motions for the introduction of evidence and the giving of jury instructions concerning "relevant and accurate sentencing information and the economic consequences of the death penalty." He argues that (a) the jury should have been informed of his eligibility for parole if the jury imposed a life sentence, (b) the jury should have been allowed to recommend whether the sentences should be served consecutively or concurrently, and (c) defense should have been permitted to introduce evidence regarding the economic consequences of imposing the death penalty. The Tennessee Supreme Court has held that an accused is not entitled to introduce evidence or a jury instruction on these topics.

In State v. Smith, the appellant contended that the jury should have heard evidence or received instructions regarding the meaning of a life sentence, parole eligibility, consecutive sentencing, and concurrent sentencing. The Supreme Court held that the accused was not entitled to introduce evidence or an instruction on these topics. In ruling, the Court said:

Neither the Tennessee Constitution nor the Federal Constitution prohibits or requires informing a capital sentencing jury of relevant and accurate sentencing information. See State v. Bates, supra 804 S.W.2d 868 (Tenn.), cert. denied, U.S. , 112 S. Ct. 131, 116 L. Ed. 2d (1991)]; California v. Ramos, supra [463 U.S. 992, 103 S.Ct. 3446,77 L. Ed. 2d (1983)]. We are of the opinion that to provide a jury with the sort of information requested by defendant could result in sentences of death based on sheer speculation and on factors other than those enumerated in T.C.A. 39-2-203 [now T.C.A. 40-13-204] and sanctioned under either Constitution. . . .

This issue is without merit.

X.

The appellant contends that allowing members of certain professions and occupations to claim an exemption from jury service denied him the constitutional right to be tried by a jury composed of a fair cross-section of the community. He argues that capital cases are more complicated than most cases; and the exclusion of those prospective jurors who are better educated and more intelligent than the average citizen deprived him of the right to have jurors who were "most likely to understand and appropriately apply the requirements of the death penalty statute, and who were most likely to understand the issues presented in his defense."

A state has the inherent power to exempt citizens from jury service. In Tennessee, the General Assembly granted exemptions to individuals who, because of health or other reasons, found it difficult to serve on a jury. It also granted exemptions to certain professions and occupations whose services are critical to the community's welfare. Requiring the latter individuals to serve on a jury might inconvenience or jeopardize the welfare of the general public. In Taylor v. Louisiana, the United States Supreme Court said:

The States are free to grant exemptions from jury service to individuals in case of special hardship or incapacity and to those engaged in particular occupations the uninterrupted performance of which is critical to the community's welfare. . . . It would not appear that such exemptions would pose substantial threats that the remaining pool of jurors would not be representative of the community.

An exemption for jury service is personal to the individual who is exempted by law, and this individual may either claim or waive the exemption. In other words, an exemption is a personal privilege -- it is not a disqualification. If the individual desires to serve, he or she is free to waive the exemption and become a member of the jury panel.

One of the elements the appellant must show to establish a violation of the fair-cross-section requirement of the Sixth Amendment is that the group alleged to be excluded is a "distinctive" group in the community. Whether a particular group or class of individuals constitutes a "cognizable group" or a "distinctive group" is a question of fact. In determining what constitutes a cognizable group, the following factors are to be considered: "(1) the presence of some quality or attribute which defines and limits the group, (2) a cohesiveness of attitudes or ideas or experience which distinguishes the group from the general social milieu; and (3) a community of interests which may not be represented by other segments of society."

While the groups that were exempted share the same profession or occupation, there is no evidence that individuals falling within one of these classifications share unique attitudes, ideas, or experiences. Consequently, members of a particular profession or occupation do not constitute a cognizable group based solely on their occupation.

The appellate courts of this state have held that individuals of the same age or age grouping do not constitute a cognizable group. This Court holds that individuals having a college education, an advanced degree, or that pass an examination to obtain the right to join a profession are not a cognizable group.

This issue is without merit.

XI.

The appellant contends that the trial court committed error of prejudicial dimensions in refusing to permit him to address the jury without first being sworn as a witness. He argues that the "denial to a capital defendant of an opportunity to make a personal plea for mercy is a violation of his state and federal rights to due process of law." He states that this is an issue of first impression in Tennessee.

In State v. Stephenson, the Tennessee Supreme Court addressed the right of an accused in a capital case to address the jury in the manner sought. After a lengthy Discussion of the right of allocution, the Court, relying in part on State v. Burkhart, said:

We agree that the rationale and Conclusion of the Burkhart court should apply in this capital case. The practice of allowing unsworn statements was designed to alleviate the harshness of common-law rules. The practice is no longer necessary or desirable in light of the abolition of those harsh rules and the development of rules protecting the rights of criminal defendants. Moreover, allocution is not necessary to protect the right of a capital defendant to present mitigating evidence in person to the sentencing jury. We have recently held in State v. Cazes, 875 S.W.2d 253 (1994) that cross-examination of a capital defendant at the sentencing trial is limited to the subject matter discussed on direct examination. Accordingly, a capital defendant may present mitigating evidence at the sentencing hearing and have cross-examination limited to that issue. Based on the foregoing, we conclude that there is no statutory, common-law, or constitutional right to allocution in a capital case. The trial court properly denied the defendant's motion.

The appellant's reliance upon Tenn. Code Ann. 40-35-210(b)(6) is misplaced. This statute applies to non-capital felonies and misdemeanors. It contemplates the trial court, not the jury, as the sentencing authority. In capital cases, the jury, not the trial court, imposes the sentence absent a waiver of trial by jury.

This issue is without merit.

XII.

As previously stated, the appellant entered a plea of guilty to first degree murder, a capital offense, and a jury was empaneled to determine the appropriate punishment. The appellant contends that the trial court permitted the state to "present evidence which was irrelevant to the issue of punishment and did not constitute 'essential background.'" The thrust of this issue is directed at the introduction of the following evidence: (a) a diagram of where the murder occurred and the location of various items found in the victim's residence, (b) photographs of where the murder occurred, (c) fingerprints found at the scene of the murder, (d) the identification of these fingerprints as the fingerprints of the appellant, (e) the apprehension of the appellant in Shelby, North Carolina, and (f) items of property recovered from the appellant's motor vehicle.

When an accused in a capital case pleads guilty, the sentencing hearing is analogous to a new sentencing hearing ordered by an appellate court. In State v. Nichols, where the accused entered a plea of guilty to a capital offense, the Supreme Court applied the case law governing "resentencing" hearings. Consequently, this body of law is applied in resolving this issue.

As a general rule, any evidence that relates to the circumstances of the murder, the aggravating circumstances of the murder, or mitigating circumstances, is admissible if it has probative value in determining punishment. The statute, which governs the introduction of evidence at a capital sentencing hearing, provides:

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 background history, and physical condition; any evidence tending to establish or rebut the aggravating circumstances enumerated in subsection (i); and any evidence tending to establish or rebut any mitigating factors. Any such evidence which the court deems to have probative value on the issue of punishment may be received regardless of its admissibility under the rules of evidence; provided, that the defendant is accorded a fair opportunity to rebut any hearsay statements so admitted. However, this subsection shall not be construed to authorize the introduction of any evidence secured in violation of the constitution of the United States or the state of Tennessee.

Since there is no guilt phase when the accused pleads guilty to the capital offense or in resentencing after an initial finding of guilt by a jury, the parties are entitled to introduce evidence that relates to the circumstances of the offense so that the trier of fact "will have [the] essential background information 'to ensure that the jury acts from a base of knowledge in sentencing the defendant.'" The phrase "background information" includes evidence as to (a) how the crime was committed, (b) the injuries sustained by the victim, (c) the aggravating circumstances, (d) the mitigating circumstances, and (e) any other evidence that is relevant to punishment.

In State v. Teague, commonly referred to as Teague II, a new sentencing hearing was conducted by the trial court after the case was remanded by the Supreme Court. The trial court permitted the state to establish (a) the victim's apartment had been forcibly entered, (b) the victim had been drowned in the bathtub, (c) the accused's arrest and that he was armed with a pistol, and (d) the accused told two companions that he killed the victim. The Supreme Court rejected Teague's assertion that the evidence at the sentencing hearing should be limited to that which is relevant to aggravating and mitigating circumstances. In ruling the court said:

The defendant questions the introduction of background evidence concerning the murder, insisting that in the sentencing proceeding only evidence relevant to aggravating and mitigating circumstances should have been allowed at the hearing. Guidelines for re-sentencing hearings in general have been set out in Farris v. State, 535 S.W.2d 608, 621 (Tenn. 1976); Hunter v. State, 496 S.W.2d 900, 903 (Tenn. 1972); and in Huffman v. State, 200 Tenn. 487, 292 S.W.2d 738, 743 (1956). Under these guidelines evidence of how the crime was committed, the injuries, and aggravating and mitigating factors are admissible. There appears to be no reason why such guidelines, carefully limiting evidence to the essential background, should not apply in capital cases in order to ensure that the jury acts from a base of knowledge in sentencing the defendant. See e.g. Blankenship v. State, 251 Ga. 621, 308 S.E.2d 369, 371 (1983) (parties at capital resentencing are entitled to offer evidence relating to circumstances of crime.).

In State v. Nichols, the accused, as in this case, entered a plea of guilty to the capital offense of felony murder. A jury was empaneled to determine the appropriate punishment. The state was permitted to introduce evidence as to the (a) nature and circumstances of the crime, (b) the accused's videotaped confession, (c) the "testimony from the medical examiner about the nature and extent of the victim's injuries and the cause of her death," (d) the testimony of the detectives who questioned the accused, and (e) the evidence of the accused's prior crimes of violence. Nichols contended on appeal that the trial court committed error of prejudicial dimensions in permitting "extensive evidence of the nature and circumstances of the crime." He argued that "only evidence relevant to aggravating and mitigating circumstances should have been allowed." In rejecting Nichols' argument, the Court referred to the applicable statute and the Court's opinion in Teague II, and then said:

Because the defendant pled guilty, the sentencing jury here, as in Teague, had no information about the offense, absent the complained of evidence. A description of the crime and its circumstances was thus clearly admissible. Moreover, and "individualized [sentencing] determination" based on the defendant's character and the circumstances of the crime is constitutionally required. See Zant v. Stephens, 462 U.S. 862, 879, 103 S.Ct. 2733, 2744, 77 L. Ed. 2d 235 (1983). In this case, the trial court permitted the introduction of evidence tending to "individualize" the case for the jury, while carefully limiting the evidence to testimony relevant to the crime. We find no error in this regard.

In State v. Bigbee, the Supreme Court affirmed Bigbee's conviction, but remanded the case to the trial court for a new sentencing hearing. In doing so, the Court noted:

We should point out, however, that "at a resentencing hearing, both the State and defendant are entitled to offer evidence relating to the circumstances of the crime so that the sentencing jury will have essential background information 'to ensure that the jury acts from a base of knowledge in sentencing the defendant.'" . . . On remand, that right should be afforded this defendant.

In State v. Teague, commonly referred to as Teague IV, the trial court granted Teague's motion that the prosecution disclose all exculpatory Brady material for use in the defendant's third resentencing hearing. The court denied the state's motion in limine to prevent the disclosure of any evidence that challenged the defendant's guilt. The state sought and was granted an interlocutory appeal pursuant to Rule 9, Tenn. R. App. P. This Court held that evidence pertaining to innocence was not admissible. This Court's opinion was predicated on prior Supreme Court opinions. The Supreme Court reversed this Court. In doing so, the Court held:

Both the statute and prior case law dictate that the defendant has the right to present at the sentencing hearing, whether by the jury which heard the guilt phase or by a jury on resentencing, evidence relating to the circumstances of the crime or the aggravating or mitigating circumstances, including evidence which may mitigate his culpability. Evidence, otherwise admissible under the pleadings and applicable rules of evidence, is not rendered inadmissible because it may show that the defendant did not kill the victim so long as it is probative on the issue of the defendant's punishment.

Neither the Supreme Court nor this Court can delineate a bright-line rule for determining the exact evidence that can be admitted at a sentencing hearing after the accused has entered a plea of guilty or has obtained a new sentencing hearing from a trial or appellate court. The evidence introduced at such hearings will vary from case to case. The accused in each case is different from the accused in all other capital cases. In addition, the facts and evidence will vary from case to case.

The applicable statute, Tenn. Code Ann. 39-13-204(c), provides that the determination of what evidence may be admitted in a capital sentencing hearing rests within the sound discretion of the trial court. Moreover, an appellate court will not interfere with the exercise of this discretion unless clear abuse appears on the face of the record. In this case, the trial court did not abuse its discretion when ruling that the evidence, which is the subject matter of this issue, was admissible. The trial court was imminently fair. On several occasions, the court ruled that the state could not present evidence it sought to introduce.

This issue is without merit.

XIII.

The appellant made a motion to continue the trial "for at least ninety (90) days." The motion alleged that the investigator appointed by the court had to resign for health reasons, and defense counsel had to employ another investigator who was unfamiliar with the facts of the case. The trial court denied the motion. In the order denying the motion, the trial court said in part:

The motion to continue is denied. This defendant was arraigned on April 4, 1991 and after docketing for initial settlement dates, was set for trial on October 7, 1991. On motion of the defense, the trial was continued from October 7, 1991, to January 13, 1992. The Court is [cognizant] of the illness of the investigator, however, this defendant is represented by three (3) competent attorneys and the Court has no reason to [believe] that these three attorneys cannot be ready for trial having nine (9) months to prepare.

The appellant renewed this motion shortly before the trial date. This motion was based upon the defense psychiatrist being outside the United States from January 19, 1992 through January 26, 1992. The trial court denied the motion. The record reflects that the psychiatrist testified during the sentencing hearing.

In this jurisdiction, a motion to continue the trial of a criminal prosecution addresses itself to the sound discretion of the trial court. An appellate court will not interfere with the exercise of this discretion unless it appears on the face of the record that (a) the trial court has abused its discretion and (b) prejudice enured to the accused as a direct result of the court's ruling. As the Supreme Court said in State v. Hurley:

Disposition of a motion for continuance rests in the sound discretion of the trial court and will not be disturbed absent a clear showing of abuse of discretion. State v. Butler, 795 S.W.2d 680, 684 (Tenn. Cr. App. 1990). The party asserting error in the denial of a motion for continuance has the burden of showing prejudice from the denial. Baxter v. State, 503 S.W.2d 226, 230 (Tenn. Cr. App. 1973). Reversal is not warranted unless an appellate court is convinced that the defendant did not have a fair trial and that a different result might reasonably have been reached if a continuance had been granted. State v. Butler, supra, p. 684.

The trial court did not abuse its discretion by denying the appellant's motions. The appellant has failed to establish that (a) he was prejudiced, (b) the denial of the motion prevented him from having a fair trial, or (c) a different result might reasonably have been reached if the motion had been granted.

The appellant candidly admits that he cannot establish the prejudice prong. Instead, he argues that he is not required to establish prejudice in this case. This argument defies logic as well as literally hundreds of opinions rendered by the appellate courts of this state.

The appellant's reliance upon this Court's decision in State v. Covington is misplaced. In Covington, counsel did absolutely nothing to prepare for trial. He had not talked with the accused prior to the trial date. In fact, he advised the trial court that he would not recognize the accused if the accused was in the courtroom. Here, counsel were well prepared for trial.

This case is factually distinguishable from the United States Supreme Court's decision in Holloway v. Arkansas. In Holloway, counsel was representing two codefendants. The investigation conducted by counsel revealed that the interests of the codefendants conflicted. In this case, counsel's representation was limited to the appellant.

This issue is without merit.

XIV.

The appellant contends that electrocution as a means of executing a convicted criminal is cruel and unusual punishment. He further contends that the trial court refused to authorize funds to present testimony in support of this issue. The appellant candidly states in his brief: "Defendant recognizes that this Court is bound by previous decisions of the Tennessee Supreme Court, and raises this issue to preserve it for later review."

The Tennessee Supreme Court has held that death by electrocution does not constitute cruel and unusual punishment within the meaning of the United States Constitution or the Tennessee Constitution. The Supreme Court has also held that the evidence of the "nature and effect" of an electrocution is not admissible during a capital sentencing hearing.

This issue is without merit.

XV.

The appellant contends that Tenn. Code Ann. 39-13-204(i)(2) is "overbroad and discriminates against capital defendants in violation of Article 1, Sections 8 and 16 of the Tennessee Constitution, and the Eighth and Fourteenth Amendments to the U.S. Constitution." He argues that his previous conviction for murder in Georgia should not have been introduced "to support subsection (i)(2) aggravating circumstance because the offense occurred after the offense" for which he was tried in this case. The appellant had also been convicted of robbery, armed robbery, and kidnapping in Hamilton County, Tennessee.

The aggravating circumstance in question states: "The defendant was previously convicted of one (1) or more felonies, other than the present charge, whose statutory elements involve the use of violence to the person." The phrase "previously convicted" indicates the date of the conviction, not the date the offense was committed. Consequently, this circumstance may be predicated upon a conviction for an offense which occurred after the commission of the murder for which the accused is being tried.

In State v. Caldwell, the defendant had a prior conviction for murder. The offense occurred after the murder for which he was being tried. This conviction was introduced at the sentencing hearing to establish aggravating circumstance (i)(2). The Supreme Court held that the conviction was admissible to establish this factor. In ruling, the Court: said "the order in which the crimes were actually committed is irrelevant, as long as the convictions have been entered before the sentencing hearing at which they are introduced into evidence."

Evidence of the appellant's prior convictions was admissible as evidence to establish aggravating factor (i)(2). Both robbery and armed robbery are crimes that "involve the use of violence to the person." Murder is also a crime that "involves the use of violence to the person."

This issue is without merit.

XVI.

The appellant contends that the death penalty sentencing statute and the imposition of a sentence of death, Tenn. Code Ann. 39-13-204, violate the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, as well as Article 1, Sections 8, 9, 16 and 17, and Article II, Section 2 of the Tennessee Constitution. All of the arguments advanced by the appellant have previously been considered and rejected by the Tennessee Supreme Court.

First, the appellant argues that Tenn. Code Ann. 39-13-204 "fails to meaningfully narrow the class of death eligible defendants." This theory was considered and rejected by the Tennessee Supreme Court in State v. Hurley, State v. Van Tran, State v. Bane, State v. Cauthern, and State v. Thompson. However, the Tennessee Supreme Court held in State v. Middlebrooks, that the use of a felony to convict the accused of felony-murder, and, subsequently, using the same felony as an aggravating circumstance pursuant to Tenn. Code Ann. 39-13-204(i)(7), does not narrow the class of death eligible murderers. This case does not present a Middlebrooks issue.

Second, the appellant argues that the death penalty is imposed in an arbitrary and capricious manner. He makes several arguments to support this theory, all of which have been considered by the Tennessee Supreme Court and rejected. The following arguments are advanced by the appellant:

a) The district attorney general has unlimited discretion in determining whether to seek the death penalty. This theory was considered and rejected by our Supreme Court in Cazes.

b) The death penalty is imposed in a discriminatory manner based upon economics, race, geography, counties, grand divisions, federal districts, and gender. This issue was considered and rejected by the Supreme Court in State v. Brimmer and State v. Smith.

c) There are no uniform standards or procedures for jury selection to insure open inquiry concerning potentially prejudicial subject-matter. The crux of this argument is that some accused in capital cases are permitted to voir dire the prospective jurors individually while others are denied this right. It is a well-established rule that the method used to question jurors during voir dire rests within the sound discretion of the trial court; and an appellate court will not interfere with the exercise of this discretion absent clear abuse appearing on the face of the record. The method used to question jurors enters into the equation when considering whether the death penalty has been arbitrarily and capriciously applied in this state. However, based upon a review of the record, the trial court did not abuse its discretion in this case. The trial court permitted individual voir dire as to the pretrial publicity and the views of the prospective jurors regarding the death penalty.

d) The death qualification process skews the make-up of the jury and results in a relatively prosecution-prone, guilt-prone jury. This theory was considered and rejected by the United States Supreme Court in Lockhart v. McCree. The Tennessee Supreme Court followed Lockhart in State v. Wright, State v. Bobo, and State v. McKay.

e) The accused is prohibited from addressing jurors' popular misconceptions about matters relevant to sentencing, namely, parole eligibility, cost of incarceration versus cost of execution, deterrence, and the method of execution. This theory was considered and rejected by our Supreme Court in Cazes, State v. Adkins, State v. Hartman, and Simon.

f) The jury is not told the effect of a non-unanimous verdict. This theory was considered and rejected by our Supreme Court in Brimmer, Cazes, Smith, State v. Melson, Simon, State v. Harrington, and State v. Pritchett.

g) Requiring the jury to agree unanimously to a life sentence violates the tenets of Mills v. Maryland and McKoy v. North Carolina. This theory was considered and rejected by our Supreme Court in Brimmer.

h) There is a reasonable likelihood that jurors believe they are required to unanimously agree as to the existence of mitigating circumstances because of the trial court's failure to instruct the jurors on the meaning and function of mitigating circumstances. This theory was considered and rejected by the Supreme Court in Brimmer, Cazes, and State v. Harris.

i) The jury is not required to make the ultimate determination that death is an appropriate sentence. This theory was considered and rejected by our Supreme Court in Brimmer and Smith.

j) The accused is denied the right to make the final argument to the jury during the sentencing hearing. This theory was considered and rejected by our Supreme Court in Brimmer, Cazes, Smith, State v. Caughron, and Thompson.

k) Death by electrocution is cruel and unusual punishment. This theory has been addressed by our Supreme Court on numerous occasions, and on each occasion, the Court has rejected this argument.

Third, the appellant argues that appellate review in capital cases is constitutionally infirm. He makes several arguments to support this theory, all of which have been considered by the Supreme Court and rejected. The following arguments are advanced by the appellant:

a) The appellate court is not permitted to reweigh the evidence pertaining to mitigating circumstances in the absence of written findings. This theory was considered and rejected by our Supreme Court in Brimmer, Cazes, State v. Smith, Smith, and Melson.

b) The information provided by the trial court for comparative review is inadequate and incomplete. This theory was considered and rejected by our Supreme Court in Brimmer.

c) The appellate court's methodology in reviewing capital cases is flawed. The appellant does not establish this deprecation of the appellate courts either factually or legally. In his brief, the appellant states he does not know "exactly how the Court reviews death sentences to make the determination mandated by T.C.A. 39-13-206" because "there are no published standards or criteria for the determination that can be addressed by defense counsel." Consequently, this issue is without merit.

d) The proportionality review of death sentences violates the accused's right to due process of law under the United States Constitution and the Tennessee Constitution. The appellant makes a general argument in support of this issue. This Court, like the Supreme Court, conscientiously reviews each case to determine if the sentence is proportionate to the crime that was committed. Previous cases are considered. The information furnished by the trial court is considered. The aggravating circumstances and mitigating circumstances found by the jury are considered. State v. Hale is an example where a death sentence was set aside as being disproportionate to the crime committed.

This issue is without merit.

Conclusion

This Court has considered the issues raised by the appellant in considerable detail. Based upon the analysis of the issues hereinabove set forth, it is the opinion of this Court that the death sentence should be affirmed.

The death sentence has been reviewed by this Court in the manner mandated by Tenn. Code Ann. 39-13-206(c)(1). The sentence was not imposed in an arbitrary manner. In addition, the evidence adduced at the sentencing hearing regarding the aggravating circumstances found by the jury is overwhelming; and each circumstance was proven beyond a reasonable doubt. Although the jury did not find any mitigating circumstances, the evidence presented in support of the aggravating circumstances clearly outweighed the evidence introduced to establish the nonstatutory mitigating circumstances beyond a reasonable doubt. A comparative proportionality review, which considers both the nature of the crime and the appellant, reveals that the death sentence in the case sub judice is neither excessive nor disproportionate to death sentences imposed in similar cases. As previously stated, the appellant killed another person in Fulton County, Georgia, approximately two days after he killed the victim in this case.

JOE B. JONES, JUDGE

CONCUR:

GARY R. WADE, JUDGE

(Not Participating)

PENNY J. WHITE, JUDGE

 
 


Henry Eugene Hodges

 

 

 
 
 
 
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