Farris Genner Morris Jr. was convicted in
Madison County in 1997 of the murders of Charles Ragland and his 15-year-old
niece Erica Hurd and the rape of Ragland's wife, Angela, in the
Raglands' Jackson home.
Supreme Court of Tennessee
State v. Morris
STATE of Tennessee v. Farris Genner MORRIS, Jr.
July 10, 2000
George Morton Googe, District Public Defender,
Jackson, Tennessee, (On Appeal and At Trial), and Daniel J. Taylor,
Assistant Public Defender, and Jesse H. Ford, III, Jackson, Tennessee,
(At Trial), for the appellant, Farris Genner Morris, Jr.Paul G.
Summers, Attorney General & Reporter and Michael E. Moore, Solicitor
General and Elizabeth T. Ryan, Assistant Attorney General, Nashville,
Tennessee (On Appeal), and James G. (Jerry) Woodall, District Attorney
General, and Al Earls, Assistant District Attorney General, Jackson,
Tennessee (At Trial), for the appellee, State of Tennessee.
A jury convicted the defendant of two counts of
premeditated first degree murder and one count of aggravated rape.
The jury imposed the death penalty for one of the first degree murders
after finding that evidence of two aggravating circumstances-that the
murder was especially heinous, atrocious or cruel in that it involved
torture or serious physical abuse beyond that necessary to produce
death and that the murder was committed in the course of a first
degree murder, rape, burglary or kidnapping-outweighed mitigating
evidence beyond a reasonable doubt. The jury imposed life without
parole for the other first degree murder after finding that evidence
of two aggravating circumstances-that the defendant knowingly created
a risk of death to two or more persons other the victim murdered
during the act of murder and that the murder was committed in the
course of a first degree murder, rape, burglary or kidnapping-did not
outweigh mitigating evidence beyond a reasonable doubt. The trial
court imposed a 25-year sentence for aggravated rape to run
consecutively to the sentence of life without parole. The Court of
Criminal Appeals affirmed the convictions and the sentences. We hold
that the evidence was sufficient to support the convictions, that the
defendant is not entitled to relief based on the constitutionality of
death by electrocution, and that the evidence was sufficient to
support the jury's determination that evidence of two aggravating
circumstances outweighed mitigating evidence beyond a reasonable doubt.
We also hold that the death sentence is not arbitrary, excessive or
disproportionate as applied in this case.
The defendant, Farris Genner Morris, Jr., was
convicted of two counts of premeditated first degree murder and one
count of aggravated rape. The jury imposed the death penalty for the
premeditated first degree murder of Erica Hurd after finding that
evidence of two aggravating circumstances, i.e., the murder was
especially heinous, atrocious or cruel in that it involved torture or
serious physical abuse beyond that necessary to produce death and the
murder was committed in the course of any first degree murder, rape,
burglary or kidnapping,1
outweighed evidence of mitigating circumstances beyond a reasonable
doubt. The jury imposed life without parole for the premeditated
first degree murder of Charles Ragland after finding that evidence of
two aggravating circumstances, i.e., the defendant knowingly created a
risk of death to two or more persons other than the victim during the
act of murder and the murder was committed in the course of any first
degree murder, rape, burglary or kidnapping,2
did not outweigh evidence of mitigating circumstances beyond a
reasonable doubt. The trial court imposed a 25-year sentence for the
aggravated rape of Angela Ragland, to be served consecutively to the
sentence of life without parole.
After the Court of Criminal Appeals affirmed the
convictions and the sentences imposed, the case was docketed in this
Court for automatic review.3
We reviewed the Court of Criminal Appeals' decision, the record, and
the applicable law, and entered an order specifying the following
issues for argument: whether the evidence was sufficient to support
the convictions for premeditated first degree murder; whether
electrocution constitutes cruel and unusual punishment; whether the
evidence was sufficient to support the aggravating circumstances and
the jury's finding that the evidence of the aggravating circumstances
outweighed the mitigating evidence beyond a reasonable doubt with
regard to the first degree murder of Erica Hurd; and whether the
sentence of death is excessive or disproportionate to the penalty
imposed in similar cases.
We conclude that the evidence was sufficient to
support the verdicts of premeditated first degree murder and that the
defendant is not entitled to relief on the issue of whether
electrocution is cruel and unusual punishment. We further conclude
that the evidence was sufficient to support the two aggravating
circumstances with regard to the murder of Erica Hurd, as well as the
jury's finding that the evidence of these aggravating circumstances
outweighed mitigating evidence beyond a reasonable doubt. Finally,
we hold that the sentence of death is not arbitrary, excessive or
disproportionate to the sentence imposed in cases involving similar
crimes and defendants. Therefore, we affirm the Court of Criminal
Charles and Angela Ragland lived in a duplex
residence in Jackson, Tennessee. The defendant, Farris Genner Morris,
lived with his wife in the adjoining residence.
In the early morning hours of September 17, 1994,
Angela Ragland arrived at her home along with her 15-year-old cousin,
Erica Hurd. Charles Ragland was awake in the bedroom with the light on.
Shortly after arriving, Erica went outside to retrieve something
from the car. When Erica came back into the house, Angela heard a
scream and saw that Morris was holding a shotgun to Erica's head.
Morris pushed Erica onto the bed in the Raglands'
bedroom and asked Charles “where the dope was.” Charles Ragland
replied that he “didn't have any” and asked Morris if he wanted money.4
After Morris responded that he would “find it himself,” Morris fired
a shot into the floor and ordered Charles Ragland to get on the floor.
He placed a pillow on Ragland's head and shot him one time in the
Morris ordered Erica to get into a closet by
threatening to “blow her head off.” He forced Angela into another
bedroom, tied her wrists and ankles, and covered the window with a
mattress so that “nobody could see if they walked by.” Morris then
retrieved Erica from the closet. Angela Ragland testified that she
heard Erica pleading for Morris not to kill her and that she heard
Morris say “shut up.” She testified that she heard Erica screaming
and gasping for breath, and then silence.
Morris returned to the bedroom and, still holding
the shotgun, forced Angela Ragland to bathe him. Afterward he
ordered Angela to put on a negligee and make him something to eat,
which she did. Morris then forced Angela to have sexual intercourse
with him “three or four times” and to perform oral sex upon him.
Morris told her that he had once been “accused of raping someone and "if
he was going to jail, he was going to go to jail for doing something.”
He told Angela that “society made him the way he was” and “was the
reason that he was doing what he did.”
Around 6:30 a.m., Morris heard his wife in the
adjoining residence and told Angela that he would let her go. He
instructed her to tell police that she found the bodies of her husband
and cousin when she arrived home that morning. Morris used a cloth
to wipe off objects he had touched and he warned Angela not to go to
the police. Angela fled to the house of a nearby friend, who drove
her to the police station. The police found Morris at his home
shortly thereafter and arrested him.
The bodies of Charles Ragland and Erica Hurd were
later discovered in the Ragland residence. Charles Ragland had been
shot in the head. Erica Hurd had been beaten and stabbed repeatedly.
A blood-stained steak knife was found behind a couch and a large
butcher knife with traces of blood was found in a chair in the living
room. Angela Ragland testified that neither knife belonged to her or
her husband. A 12-gauge pistol grip, pump action shotgun was later
found underneath Morris's dresser drawer.
After being advised of and waiving his
constitutional rights, Morris gave a statement to Officers Patrick
Willis and James Golden of the Jackson Police Department.5
Morris said that on the day of the offense he had purchased and
smoked $250 worth of cocaine. He admitted that he had an exchange
with Charles Ragland at 1:00 a.m., just a few hours prior to the
murders, in which he asked Ragland to sell him drugs and, when Ragland
declined, told Ragland that “he was going to regret disrespecting me.”
Morris admitted that he went to his house, got his shotgun, loaded
two shells into the shotgun, and waited for Ragland's wife, Angela, to
get home. Morris admitted that he entered the Ragland's residence
with the shotgun and demanded that Charles Ragland sell him drugs.
He admitted that after Ragland said he didn't have any drugs, he fired
a shot into the floor, put a pillow over the barrel of the gun and
shot him in the head. Morris admitted that he put Erica Hurd in a
closet and tied up Angela Ragland. Morris told officers that he
intended only to tie up Erica Hurd but that he stabbed her because she
acted crazy and they struggled over a knife. Morris admitted he had
sexual intercourse and oral sex with Angela Ragland.
Dr. O.C. Smith, the Deputy Chief Medical Examiner
for West Tennessee, testified that Charles Ragland died from a shotgun
wound to the head. Dr. Smith testified that he found evidence of an
“intermediate target” between the weapon and Ragland's head, but that
Ragland's death was “instantaneous because the brain [was] destroyed.”
Dr. Smith testified that Erica Hurd had died as a
result of multiple injuries including, stab wounds, blunt trauma to
the head, skull fractures, and damage to the brain. Dr. Smith found
that there were 37 stab wounds, 23 of which were sustained prior to
death and 14 of which were post-mortem. Dr. Smith testified that 25
of the stab wounds were to the victim's neck and face and that the
force of the stabbings was great enough to cause the knife blades to
bend upon striking bone.
The defense theory focused on Morris's use of crack
cocaine. In addition to Morris's own statement to police, Russell
Morris, the defendant's brother, testified that he saw the defendant
smoking crack around 5:15 p.m. on the evening before the murders.
Dr. Robert Parker, a doctor of pharmacology at the
University of Tennessee, testified about the effects of crack cocaine
use. Parker testified that smoking crack cocaine produces an intense
euphoria and symptoms such as excitability, paranoia, mania, and
impaired judgment. Parker testified that most users of crack cocaine
go on a “cocaine run” or “binge.” When users become unable to
duplicate the feeling of euphoria from the initial uses of the drug,
judgment is further impaired and there is “an increased risk of
violent or homicidal behavior.” Parker explained that an acute
withdrawal or “crash phase” occurs when the drug is not used. It can
be marked by depression, exhaustion, paranoia, anxiety, and suicidal
thoughts. Parker testified that the evidence of Morris's behavior
was “consistent with the ingestion of cocaine.”
Dr. William Bernet, medical director of the
Psychiatric Hospital at Vanderbilt University, testified that he
evaluated Morris based on an interview and a review of various records
and documents. Dr. Bernet concluded that due to false accusations of
rape prior to these offenses, Morris became suicidal and a crack
cocaine user. Dr. Bernet stated that the mental stress and use of
crack cocaine “affected [Morris's] judgment” and “may have prevented
him from forming the intent” to commit the murders of Charles Ragland
and Erica Hurd.
The jury convicted Morris of two counts of
premeditated first degree murder and one count of aggravated rape.
Dr. O.C. Smith again testified regarding his
findings from the autopsy of Erica Hurd, including the blunt trauma,
skull fractures, and 37 stab wounds. Dr. Smith said that the wounds
would have been painful and that the stab wounds that struck bone
would have caused severe pain. Dr. Smith explained that the wounds
were “in areas that may be targeted, the face, the head, the chest,
the back,” and that they showed “sites of selection, as opposed to a
random pattern of distribution.” Dr. Smith, noting that some of the
wounds were severe and others were superficial, testified that it “may
imply an element of control ․ or it may imply an element of torment by
being very superficial in nature.”
Several witnesses testified on behalf of the
defendant. Mickey Granger, the defendant's employer, testified that
Morris was a good, dependable employee who suffered a “downhill slide”
in performance when accused of rape shortly before these offenses.
Granger became aware of Morris's drug problem when he found a crude
crack pipe fashioned from a soft drink can.
Jack Thomas, a friend of the defendant's, testified
that when he visited Morris in prison, Morris admitted his
responsibility for the killings but denied that he raped Angela
Ragland. According to Thomas, Morris said that he had used a large
amount of cocaine on the night of the offenses in an effort to
overdose. Several other witnesses, including teachers and prison
employees, testified that Morris is a good student, participates in
class, and is punctual. Several of the witnesses testified that
Morris helps others inmates, studies frequently, and uses reference
material from the library. The defendant did not testify.
The jury imposed a death sentence for the first
degree murder of Erica Hurd after finding that the evidence of two
aggravating circumstances-that the murder was “especially heinous,
atrocious or cruel in that it involved torture or serious physical
abuse beyond that necessary to produce death,” and that the murder was
“committed while the defendant was engaged in committing ․ any first
degree murder, rape, burglary or kidnapping”-outweighed mitigating
evidence beyond a reasonable doubt. See Tenn.Code Ann.
§ 39-13-204(i)(5) and (7).
The jury imposed a sentence of life without parole
for the murder of Charles Ragland after finding that the evidence of
two aggravating circumstances-that the defendant “knowingly created a
great risk of death to two or more persons other than the victim
murdered during the act of murder” and that the murder was committed
while the defendant was engaged in committing any “first degree murder,
rape, burglary or kidnapping”-did not outweigh mitigating evidence
beyond a reasonable doubt. Tenn.Code Ann. § 39-13-204(i)(3) and (7).
In a separate sentencing hearing, the trial court imposed a 25-year
sentence for the aggravated rape conviction and ordered that it be
served consecutively to the sentence of life without parole.
The Court of Criminal Appeals affirmed the
convictions and the sentences. The case was then docketed in this
Court for automatic review.
Sufficiency of the Evidence
The defendant argues that there was insufficient
evidence of premeditation and deliberation to support the first degree
murder convictions. The defense theory at trial was that Morris's
use of crack cocaine rendered him incapable of forming the culpable
mental states to commit the offenses. The State maintains that the
evidence was sufficient to support the convictions.
When evaluating the sufficiency of the evidence, we
must determine whether “any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Jackson
v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560
(1979). We are required to afford the prosecution the strongest
legitimate view of the evidence in the record as well as all
reasonable and legitimate inferences which may be drawn therefrom.
E.g., State v. Bland, 958 S.W.2d 651, 659 (Tenn.1997), cert. denied,
523 U.S. 1083, 118 S.Ct. 1536, 140 L.Ed.2d 686 (1998). Questions
concerning the credibility of the witnesses, the weight to be given
the evidence, and any factual issues raised by the evidence are
resolved by the trier of fact. Id.; State v. Cazes, 875 S.W.2d 253,
259 (Tenn.1994), cert. denied, 513 U.S. 1086, 115 S.Ct. 743, 130 L.Ed.2d
At the time these offenses were committed, first
degree murder included an “intentional, premeditated and deliberate
killing of another.” Tenn.Code Ann. § 39-13-202(a)(1)(1991).6
By statute, “intentionally” is defined as the “conscious objective or
desire to engage in the conduct or cause the result.” Tenn.Code Ann.
§ 39-11-106(a)(18)(1991). A “deliberate” act meant one performed
with a cool purpose, and a “premeditated” act was one done “after the
exercise of reflection and judgment.” Tenn.Code Ann.
§ 39-13-201(b)(1) and (2)(1991).
In Bland, we identified and discussed circumstances
that, if established by the proof, may warrant the trier of fact to
find or infer premeditation. The circumstances include the use of a
deadly weapon upon an unarmed victim, the particular cruelty of a
killing, any threats or declarations of intent to kill made by the
defendant, proof that the defendant procured a weapon, any
preparations to conceal the crime undertaken before the crime is
committed, and the defendant's calm demeanor immediately after a
killing. Bland, 958 S.W.2d at 660. The element of deliberation, on
the other hand, “requires that the killing be done with a cool purpose-in
other words, that the killer be free from the passions of the moment.”
State v. West, 844 S.W.2d 144, 147 (Tenn.1992).
We agree with the Court of Criminal Appeals'
conclusion that the evidence was sufficient to support both first
degree murder convictions. The evidence, indeed the defendant's own
statement, indicated that Morris confronted Charles Ragland just hours
before the offense and warned Ragland that he would “regret
disrespecting me.” Morris then went to his home, which adjoined the
Ragland's, procured a shotgun, loaded it with two shells, and waited
for Ragland's wife to arrive home so as to effect his entry into the
Ragland's home. Morris abducted Erica Hurd and forced his way into
the Ragland's residence at gunpoint.
Once in the home, Morris demanded that Charles
Ragland give him “dope” and refused Ragland's offer of money. He
fired one shot, forcing Ragland to the floor, and after placing a
pillow over Ragland's head, fired one shot into his head from close
range. Morris proceeded to put Erica Hurd into a closet and tie
Angela Ragland in another room. He covered a window with a mattress.
He retrieved Erica from the closet, beat her, and stabbed her 37
times in the face, head, and chest. The medical examiner testified
that the wounds were inflicted in a “targeted” fashion that showed
“sites of selection.” Having killed both Ragland and Hurd, Morris
calmly ordered Angela Ragland to bathe him and then fix him something
to eat prior to forcing her to engage in sexual intercourse. Before
leaving the scene some three hours after the offenses began, Morris
tried to wipe off his fingerprints and then hid the shotgun.
Accordingly, the evidence revealed numerous
circumstances from which the jury could infer both premeditation and
deliberation: the threats against Charles Ragland just prior to
offenses; the procurement of a shotgun and ammunition; Morris's
lying in wait for an opportunity to enter the victims' home; the use
of a deadly weapon on the unarmed Charles Ragland after deliberately
covering the victim's head with a pillow; the savage stabbings of
Erica Hurd in a severe yet targeted fashion; Morris's calm demeanor
in bathing and eating after committing two murders; and Morris's
efforts to conceal his fingerprints and hide the murder weapon.
Moreover, despite Morris's use of cocaine prior to the offense, his
detailed recounting of the offenses in his statement to officers was
nearly identical to that of eyewitness Angela Ragland. When viewed
under the appropriate standards of appellate review, we conclude that
the evidence was legally sufficient to support the jury's verdicts as
to both counts of first degree murder.
The defense theory was that Morris was unable to
form the culpable mental states of intent and premeditation due to his
excessive use of crack cocaine prior to committing the offenses. The
trial court allowed evidence of Morris's use of cocaine and properly
instructed the jury that a defendant's “voluntary intoxication” could
“negate a culpable mental state.” See Tenn.Code Ann.
The weight to be given the evidence and the
determination of whether the voluntary intoxication negated the
culpable mental elements were matters for the jury. Given the
overwhelming evidence of Morris's intentional, deliberate and
premeditated acts, the jury obviously elected to reject the defense
theory. Moreover, the defense theory that Morris's use of cocaine
rendered him incapable of forming the culpable mental states was
refuted by Morris's own confession in which he recounted the offenses
in full detail. Accordingly, we find no merit to Morris's contention
that his cocaine use rendered the evidence insufficient to support the
jury's verdict as a matter of law.
Throughout these proceedings, the defendant has
maintained that electrocution is cruel and unusual punishment in
violation of the Eighth Amendment to the United States Constitution
and article I, section 16 of the Tennessee Constitution. Conceding
that this issue has been rejected by this Court on numerous occasions,7
the defendant relies on authority from other states and argues that an
evidentiary hearing should be held on such issues as the construction
of the electric chair, the manner of its use and maintenance, the
possibility of malfunction, and the potential harm and suffering
inflicted on those executed through electrocution. The State argues
that the issue is no longer ripe for review.
Morris was sentenced to the death penalty in
January of 1997. As the State notes, in May of 1998, the Tennessee
legislature amended statutory law and allowed a defendant who was
sentenced to death before January 1, 1999, to sign a written waiver
and elect to be executed by lethal injection. Tenn.Code Ann.
40-23-114(c) (Supp.1999). The State argues that the issue is not
ripe for review because the defendant has not chosen electrocution as
the means of death and that, if he does so, any objection to
electrocution is waived.
Since the filing of briefs, the legislature has
again amended Tenn.Code Ann. 40-23-114(c), lending further support to
the State's argument. As amended, the statute now provides for
lethal injection as the default manner of execution in all cases in
which a defendant has been sentenced to death. 2000 Tenn. Pub. Acts,
ch. 614 (enacted March 30, 2000). A defendant may now waive lethal
injection and elect electrocution.
The result of the legislation is this-the defendant
is no longer under a penalty of death by electrocution, but rather,
death by lethal injection. The issue of whether electrocution is
cruel and unusual punishment is no longer properly before the Court.
Moreover, the United States Supreme Court has said that a defendant
who elects a certain means of death such as electrocution waives his
constitutional challenges to the manner of executing the sentence.
Stewart v. LaGrand, 526 U.S. 115, 119 S.Ct. 1018, 1020, 143 L.Ed.2d
Accordingly, the defendant is not entitled to
relief on this issue.8
Sufficiency of Aggravating Circumstances
In reviewing a sentence of death, we are to
determine whether the evidence supports the jury's findings with
respect to aggravating circumstances and whether the evidence supports
the jury's conclusion that the aggravating circumstances outweighed
mitigating factors beyond a reasonable doubt. Tenn.Code Ann.
§ 39-13-206(c)(1)(1997). We will review each issue in turn.
Heinous, Atrocious or Cruel
The jury found that the murder of Erica Hurd was
“especially heinous, atrocious or cruel in that it involved torture or
serious physical injury beyond that necessary to produce death.” Tenn.Code
Ann. § 39-13-204(i)(5). Morris argues that the evidence was
insufficient to support this aggravating circumstance because the
State did not establish with certainty whether the victim was alive
and conscious when she was stabbed to death.
We have defined “torture” as “the infliction of
severe mental or physical pain upon the victim while he or she remains
alive and conscious.” State v. Williams, 690 S.W.2d 517, 529 (Tenn.1985);
State v. Mann, 959 S.W.2d 503, 511 (Tenn.1997), cert. denied, 524 U.S.
956, 118 S.Ct. 2376, 141 L.Ed.2d 743 (1998). We have defined
“serious physical abuse beyond that necessary to produce death” as
Because the legislature added the words ‘serious
physical abuse,’ it must be assumed that the legislature intended the
words ․ to mean something distinct from ‘torture.’ The word
‘serious' alludes to a matter of degree. The abuse must be physical,
as opposed to mental, and it must be ‘beyond that’ or more than what
is ‘necessary to produce death.’ ‘Abuse’ is defined as an act that is
‘excessive’ or which makes ‘improper use of a thing,’ or which uses a
thing ‘in a manner contrary to the natural or legal rules for its
State v. Odom, 928 S.W.2d 18, 26 (Tenn.1996)(quoting
Black's Law Dictionary 11 (6 th ed.1990)).
The evidence revealed that Erica Hurd was present
when Morris shot Charles Ragland in the head at close range. She was
then forced into a closet while Morris tied up Angela Ragland in
another room. When Hurd was retrieved from the closet, Angela
Ragland testified that she heard the victim pleading for her life,
screaming, and gasping for air for fifteen or twenty minutes. The
medical examiner testified that the victim suffered blunt trauma to
her head that resulted in fracturing of her skull and 37 stab wounds
in the face, head, back and chest. The medical examiner testified
that 23 of the stab wounds were inflicted while the victim was still
alive and that the stab wounds that struck bone would have caused
severe pain. According to the medical examiner, the wounds were
inflicted in a targeted, selective manner.
The evidence overwhelmingly supports both torture
and serious physical injury beyond that necessary to produce death.
E.g., State v. Mann, 959 S.W.2d at 511 (victim beaten, strangled and
stabbed 11 times); State v. Bush, 942 S.W.2d 489 (Tenn.), cert.
denied, 522 U.S. 953, 118 S.Ct. 376, 139 L.Ed.2d 293 (1997)(victim
beaten and stabbed 43 times); State v. Smith, 868 S.W.2d 561 (Tenn.1993),
cert. denied, 513 U.S. 960, 115 S.Ct. 417, 130 L.Ed.2d 333 (1994)(victim
shot, throat slashed, and stabbed). We therefore conclude that the
evidence in this case was sufficient to support the jury's finding
that the murder was “especially heinous, atrocious or cruel in it that
involved torture or serious physical injury beyond that necessary to
Murder Committed During Felony
The jury also found that the murder of Erica Hurd
was committed while the defendant “was engaged in committing, or was
an accomplice in the commission of, or was attempting to commit, or
was fleeing after having committed or attempted to commit any first
degree murder, rape, burglary or kidnapping.” Tenn.Code Ann.
Morris argues that the evidence was insufficient to support this
aggravating circumstance because the evidence did not reveal that a
felony was committed during the murder of Erica Hurd and the jury made
no findings in this regard.
In State v. Terry, 813 S.W.2d 420 (Tenn.1991), we
discussed the application of this aggravating circumstance and the
issue of whether the evidence supports a finding that another felony
has been committed during a murder:
Whether the evidence supports a finding that the
murder was committed in the course of, during, or while engaged in the
commission of another felony ․ generally depends on an analysis of the
temporal, spatial and motivational relationships between the capital
homicide and the collateral felony, as well as on the nature of the
felony and the identity of its victim.
Terry, 813 S.W.2d at 423.
In Terry, the defendant had been stealing money
from his church congregation over a period of months and then
subsequently killed a church employee. We found that the evidence
did not support a finding of a “nexus” between the murder and the
perpetration of a larceny. In contrast, we observed that the
aggravating circumstance had been properly applied in numerous cases
where the murder involved the victim of the felony, a witness to the
felony, or a police officer attempting to apprehend the defendant
after the commission of the felony, and was committed “within close
temporal proximity to the commission of the aggravating felony.” Id.
at 424; see also State v. Hall, 958 S.W.2d 679, 693 (Tenn.1997), cert.
denied, 524 U.S. 941, 118 S.Ct. 2348, 141 L.Ed.2d 718 (1998)(applying
Terry and concluding that the aggravating circumstance was applicable
because the felony of arson was committed when the defendant murdered
the victim by setting fire to the car she occupied).
Moreover, although the analysis must focus upon the
relationship between the felony and the murder, it is not required
that the felony be committed either before or contemporaneously with
the murder. See State v. Wright, 756 S.W.2d 669, 673 (Tenn.1988),
cert. denied, 488 U.S. 1034, 109 S.Ct. 848, 102 L.Ed.2d 979 (1989)(where
evidence showed two killings occurred within short period of time,
precise sequence was not dispositive of whether aggravating
circumstance was applicable); State v. Jones, 288 S.C. 1, 340 S.E.2d
782, 784 (1985)(rape of second victim occurred after murder but
aggravating circumstance applied because the offenses were a
continuous series of acts with no significant lapse of time).
Here, Erica Hurd was a witness to Morris's burglary
of the residence as he forced his way in at gunpoint; she was a
witness to Morris's murder of Charles Ragland; and she was the victim
of a kidnapping when Morris forced her into the closet. Hurd was
murdered just moments after the commission of these offenses and just
before Morris's aggravated rape of Angela Ragland. All of these
offenses were committed at the same place, close in time, and as part
of Morris's single criminal spree against these three victims. There
was no distinction or separation of these offenses with regard to
time, location, motivation or any other factor that would render this
aggravating circumstance inapplicable. We therefore conclude that
the evidence was sufficient to support the jury's finding.
We now turn to the question of whether the evidence
supported the jury's determination that the two aggravating
circumstances outweighed the evidence of mitigating circumstances.
The Eighth and Fourteenth Amendments to the United
States Constitution and article I, § 16 of the Tennessee Constitution
require that a sentencer in a death penalty case consider mitigating
evidence. McKoy v. North Carolina, 494 U.S. 433, 442, 110 S.Ct. 1227,
1233, 108 L.Ed.2d 369 (1990); State v. Cauthern, 967 S.W.2d 726, 738
(Tenn.), cert. denied, 525 U.S. 967, 119 S.Ct. 414, 142 L.Ed.2d 336
(1998). The sentencer is permitted to hear evidence about the
defendant's background, record and character, as well as any
circumstances about the offense that may mitigate against the death
penalty and serve as a basis for imposing a lesser sentence. Cauthern,
967 S.W.2d at 738; see also Tenn.Code Ann. § 39-13-204(j) (1997).
Morris argues that the evidence supported numerous
mitigating circumstances, including: that his judgment was impaired
due to his use of crack cocaine; that he was under extreme mental and
emotional disturbance at the time of the crime; that he released
Angela Ragland; that he had been a good, dependable employee; that
he is a good prisoner and student; and that he accepted
responsibility for the crimes. We observe that there was evidence in
the record to support several of these mitigating circumstances-indeed,
in imposing a sentence of life without parole for the murder of
Charles Ragland, it is obvious that the jury gave careful
consideration to the mitigating evidence.
Whether mitigating evidence exists and the weight
to be given to aggravating and mitigating circumstances are issues for
the jury. Bland, 958 S.W.2d at 661. Given the overwhelming strength
of the two aggravating circumstances, and the jury's careful
consideration of the mitigating evidence, we conclude that the
evidence is sufficient to support the jury's finding that the
aggravating circumstances outweighed mitigating evidence beyond a
Where a defendant has received a death sentence, we
must apply a comparative proportionality analysis. Tenn.Code Ann.
§ 39-13-206(c)(1)(1997). The review is designed to identify aberrant,
arbitrary or capricious sentencing by determining whether the death
penalty in a given case is “disproportionate to the punishment imposed
on others convicted of the same crime.” Bland, 958 S.W.2d at 662 (quoting
Pulley v. Harris, 465 U.S. 37, 42-43, 104 S.Ct. 871, 875, 79 L.Ed.2d
29 (1984)). If a case is “plainly lacking in circumstances
consistent with those in cases where the death penalty has been
imposed,” then the sentence is disproportionate. Bland, 958 S.W.2d at
We employ the precedent-seeking method of
comparative proportionality, by which we compare a case with cases
involving similar crimes and similar defendants. Bland, 958 S.W.2d at
667. We consider numerous factors regarding the offense: (1) the
means of death; (2) the manner of death; (3) the motivation for the
killing; (4) the place of death; (5) the victim's age, physical and
psychological condition; (6) the absence or presence of premeditation;
(7) the absence or presence of provocation; (8) the absence or
presence of justification; and (9) the injury to and effect on other
We also consider numerous factors about the
defendant: (1) prior criminal record; (2) age, race and gender; (3)
mental, emotional and physical condition; (4) role in the murder;
(5) cooperation with authorities; (6) level of remorse; (7)
knowledge of the victim's helplessness; and (8) potential for
rehabilitation. Id. at 667. Since no two defendants and no two
crimes are precisely alike, our review is not mechanical or based on a
rigid formula. Id. at 668. Similarly, that a defendant in a similar
case or even the same case has received a sentence less than death
does not render a death sentence arbitrary, excessive or
disproportionate. State v. Cauthern, 967 S.W.2d at 741.
In this case, the evidence showed that the
defendant had a confrontation with one of the victims, Charles Ragland,
a short time before the offenses. He procured his shotgun, loaded it
with two shells, and waited for an opportunity to gain entry to the
Raglands' home. When that opportunity came, Morris forced his way
into the home by holding a second victim, 15-year-old Erica Hurd, at
gunpoint. He demanded drugs, refused Charles Ragland's offer of
money, and shot Ragland in the head at close range. He forced Erica
Hurd into a closet and tied up a third victim, Angela Ragland. When
he retrieved Hurd from the closet, he beat her and stabbed her 37
times. After killing two unarmed victims in brutal fashion, Morris
took a bath, ate a meal, and forced Angela Ragland to engage in sexual
intercourse. There was no provocation or justification for Morris's
actions, which were at all times intentional, deliberate, and
We have found the death penalty neither excessive
nor disproportionate in many similar cases involving brutal and
gruesome facts that supported the “heinous, atrocious or cruel”
aggravating circumstance. E.g., State v. Carter, 988 S.W.2d 145 (Tenn.1999)(defendant
broke into victims' home, shot husband in head, raped wife and shot
her in the head); State v. Mann, 959 S.W.2d at 511 (defendant broke
into victim's home, beat and raped the victim, and stabbed her 11
times); State v. Bush, 942 S.W.2d at 507 (defendant broke into
victim's home, beat the victim and stabbed her 43 times); State v.
Cazes, 875 S.W.2d at 259 (defendant broke into victim's home, beat and
raped the victim); State v. Jones, 789 S.W.2d 545 (Tenn.1990)(defendant
broke into victim's home, bound, gagged and stabbed victim); State v.
West, 767 S.W.2d 387 (Tenn.1989), cert. denied, 497 U.S. 1010, 110
S.Ct. 3254, 111 L.Ed.2d 764 (1990)(defendant broke into victims' home,
raped and stabbed mother and daughter); State v. Cone, 665 S.W.2d 87
(Tenn.), cert. denied, 467 U.S. 1210, 104 S.Ct. 2400, 81 L.Ed.2d 357
(1984)(defendant broke into victims' home and beat victims to death).
Moreover, as can be seen, in each of these cases the defendant broke
into the victim's residence before committing the murders.
Similarly, the death penalty has been upheld where
the jury, as it did in this case, found the felony murder aggravating
circumstance based on a kidnapping, rape, murder or burglary. State
v. Mann, 959 S.W.2d at 512; State v. Smith, 868 S.W.2d at 583; State
v. West, 767 S.W.2d at 397. Finally, like the present case, numerous
cases have involved multiple victims in addition to the murder of the
victim for whom the death penalty was imposed. State v. Smith, 868
S.W.2d at 583; State v. Payne, 791 S.W.2d 10, 12 (Tenn.1990); State
v. Jones, 789 S.W.2d at 550; State v. Henley, 774 S.W.2d 908, 917 (Tenn.1989),
cert. denied, 497 U.S. 1031, 110 S.Ct. 3291, 111 L.Ed.2d 800 (1990); State
v. West, 767 S.W.2d at 397; State v. Cone, 665 S.W.2d at 90.
With regard to the characteristics of the defendant,
the record indicated that Morris, age 37, was a good employee, student
and prisoner. He contends that he has the potential for
rehabilitation, adapting to incarceration, and that he accepted
responsibility for his conduct. We observe, however, that Morris did
not testify in mitigation and did not express any remorse whatsoever
when confessing the offenses to police officers.
The defendant offers two primary reasons in support
of his contention that the death sentence is disproportionate: that
the evidence did not support the aggravating circumstances; and that
the defendant committed the offenses while suffering the effects of
crack cocaine. We have already addressed the first argument by
having found that the evidence was sufficient to support both
aggravating circumstances. With regard to the second argument, we
observe that the death penalty has been upheld in numerous cases where
the defendant argued that the offense was mitigated by intoxication
due to drugs or alcohol. E.g., State v. Payne, 791 S.W.2d at 16; State
v. Henley, 774 S.W.2d at 912; State v. O'Guinn, 709 S.W.2d 561 (Tenn.),
cert. denied, 479 U.S. 871, 107 S.Ct. 244, 93 L.Ed.2d 169 (1986); State
v. Cone, 665 S.W.2d at 90. Moreover, although drug usage or
intoxication has been evident in some cases in which the defendant
received a sentence less than death, e.g., State v. Gregory, 862 S.W.2d
574 (Tenn.Crim.App.1993), it does not alone render a death sentence
arbitrary, excessive or disproportionate.
Accordingly, having reviewed the nature and
circumstance of the offense and the characteristics of this defendant
pursuant to the analysis in Bland, we conclude that the death sentence
imposed in this case was not arbitrary, excessive, or disproportionate.
We have reviewed the entire record and the
arguments raised in this case and we conclude that the evidence was
sufficient to support the conviction and that the issues raised by the
defendant do not warrant relief. We have also determined that the
evidence supported the jury's findings of two aggravating
circumstances, that the evidence supported the jury's finding that
these aggravating circumstances outweighed mitigating evidence beyond
a reasonable doubt, and that the death sentence in this case was not
arbitrary, excessive, or disproportionate.
Accordingly, we affirm the decision of the Court of
Criminal Appeals and attach hereto as an appendix the relevant
portions of that opinion. The sentence of death is affirmed and
shall be carried out on the 10th day of October, 2000, unless
otherwise ordered by this Court or proper authority. It appearing
that the defendant, Ferris Genner Morris, is indigent, the costs of
appeal are taxed to the State.
(Excerpts from the Court of Criminal Appeals'
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
JANUARY SESSION, 1999
Feb. 5, 1999.
State of Tennessee, Appellee vs. Farris Genner
Morris, Jr., Appellant
No. 02C01-9801-CC-00012Madison CountyHon. Franklin
Murchison, JudgeCapital Case(Premeditated First Degree Murder, Two
Counts; Aggravated Rape)
George Morton Googe, District Public Defender,
Jackson, Daniel J. Taylor, Assistant Public Defender, Jesse H. Ford,
III, Jackson, for Appellant.
John Knox Walkup, Attorney General and Reporter,
Michael E. Moore, Solicitor General, Elizabeth T. Ryan, Assistant
Attorney General, Criminal Justice Division, Nashville, James G. (Jerry)
Woodall, District Attorney General, Al Earls, Asst. District Attorney
General, Jackson, for Appellee.
(Deleted Summary of Testimony)
A. Guilt/Innocence Phase
During this interview, the appellant made the
On September 16, 1994, I got off of work at 1:00
[p.m.]. I bought $250 worth of cocaine during the evening. I made
several purchases. I smoked the whole $250 worth up.
Around 1:00 a.m. on September the 17th, 1994, I was
sitting on my porch at 120 Ridgemont. My next door neighbor rode up
with someone. He got out and came to the duplex. I asked him what
was up. I asked dude, ‘Why don't you sell me something?’ He said
he didn't sell dope. I asked him why he would walk out of his house
every day and not speak to me, why he didn't show me any respect? He
said he didn't have to listen to me and that he was going in his house
and going to bed. I told him he was going to regret disrespecting
I went into my house. I knew that his wife wasn't
at home yet. I knew that she would come in sooner or later. I got
my shotgun from my bedroom. I loaded two shells into it. I sat in
my living room waiting to hear her pull up.
I heard his wife and someone else pull up, but I
missed them. They went in the house and locked the door behind them,
I heard someone go out to the car. I looked out
and it was his wife. When she opened the door, I got behind her with
the shotgun. I pointed it at her and walked in behind her. A young
girl was on the couch. I told her to get up. I told them to walk
on back to the bedroom. They went into the bedroom and got onto the
bed. The girl's husband was lying on the bed. I told him to give
me the dope. He said he didn't have any. I fired the shotgun into
the floor. He rolled off the bed. I asked him again for the dope.
He said he didn't have any. He asked me if I wanted money. I
told him, ‘No, I don't want your money.’
I picked a pillow up off of the bed and put it over
the barrel of the shotgun and I shot him. The girls were on the bed
under a blanket or something. I tried to put the young girl in the
closet. She started acting crazy. We were in the hallway. She
picked up a knife from somewhere. We struggled from the hallway into
the front room. We wrestled on the couch. I took the knife from
her. I laid the shotgun on the couch. I stabbed her down low with
the knife. I hit her with my hand. I think I broke my finger. I
can't raise it back up.
Before the struggle with the young girl, I had put
her in the hall closet. I took the dude's wife into the other
bedroom. I had her tied down on the big bed to the right as you walk
into the bedroom. I used a black belt and some type of material to
tie her hands and feet. It was dark in the room.
I went to the closet and got the young girl out.
That's when she started to struggle and acting crazy, as I explained
earlier. My intentions for getting her out of the closet was to tie
her up, but she got to struggling and got the knife. After I stabbed
her and she was lying there on the couch, I went and got a blanket
that was already in the living room. I covered the young girl up.
The dude's wife didn't want to see her.
I went into the bedroom and untied the other girl
and we talked. We talked in the bedroom for a while. I told her I
wanted to take a bath. We went into the bathroom. I undressed by
taking off my pants and shirt․ I got in the tub and I told her to
take my shorts off of me. She did. She gave me a bath. I held a
gun in my hand.
We went back to the bedroom. I dried off with a
sheet. I asked her if she had anything to eat. She fixed me a
sandwich and Kool-Aid. I ate and then I laid the shotgun on the
other bed and we had sex. We had sex three or four times. She gave
me oral sex. I took the mattress off the other bed and put it up
against the window because of the light coming through. She didn't
About 6 or 7 this morning I told her I was going to
let her go. I told her not to try and make a story up, just do what
she was supposed to do.
I put my clothes in a plastic bag and took them
home. I put the bag in the trash can in the bedroom where my dope
was. I put the shotgun up under the chest of drawers in my bedroom.
(Deleted B. Penalty Phase)
I. Motion to Suppress
Nine hours after his arrest on September 17, 1994,
the appellant executed a written waiver of his Miranda rights and
provided law enforcement officers a complete statement of his
involvement in the deaths of Charles Ragland and Erica Hurd and the
aggravated rape of Angela Ragland. See supra. Prior to trial, the
appellant filed a motion to suppress this statement alleging that the
statement was not knowingly and voluntarily given due to the fact that
he was under the influence of crack cocaine. A hearing on the motion
was heard on September 10, 1996.
The evidence at the suppression motion revealed
that the appellant had been smoking crack cocaine on the evening of
Friday, September 16, 1994. Russell Morris, the appellant's brother,
verified that, when he saw the appellant at 5:30 p.m. that evening,
the appellant had informed him that he had spent $200 on crack cocaine
and was going to obtain more. He also testified that the appellant
appeared to be intoxicated. Next, the defense attempted to call the
victim, Angela Ragland, to the stand to testify regarding the
appellant's appearance and actions during the commission of these
offenses. The State objected on the basis that Angela Ragland was
not “in any position to know anything about the condition that [the
appellant] was in at the time that the statement was given.” The
trial court sustained the State's objection on the same ground,
expressly finding that Ms. Ragland had no knowledge of the appellant's
state of mind or whether he was under the influence of cocaine when he
gave his statement some fourteen hours after he committed these
Dr. Robert Parker was called as an expert witness
on the effects of crack cocaine on the human body. See supra.
Specifically, Dr. Parker testified that mania was present during the
“crash phase” when the appellant's statement was given. He explained
that, during the “crash phase,” one's judgment was impaired and
usually was accompanied with confusion and suicidal thoughts.
Moreover, “crash phase” symptoms could cause one not to care about or
understand the consequences of their actions.
At the conclusion of Dr. Parker's testimony, the
defense again attempted to introduce the testimony of Angela Ragland.
However, the trial court refused to admit such testimony finding
that “there's been no proof here presented, notwithstanding the use of
cocaine, that he, because of the ingestion of cocaine, didn't
understand what he was doing when he gave his statement. There's
been no proof of that.” 1
The defense then offered to call the appellant to
testify regarding “how [the drugs] affected his body, ․ the way he was
․ acting, how he was feeling about those things at the time he gave
his statement and before that.” Defense counsel asked the court to
limit the examination of the appellant to these matters and to
prohibit questioning as to the “facts of what happened on this alleged
incident about the killings.” The trial court refused this request,
finding that there was no reason to prohibit the State from eliciting
the contents of the statement on cross-examination and how it
“reflects the truth of what occurred.” Moreover, the trial court
concluded that the appellant “can't exercise [his] Fifth Amendment
privilege on examination of things which are relative to the things
that he said․” After this ruling, the defense elected not to call the
appellant to the stand.2
The defense next called Officer James Golden to the
stand. Officer Golden testified that he first encountered the
appellant between 8:30 and 9:00 a.m. on the morning of September 17,
1994. At this time, the appellant “appeared normal to [him].”
Later that afternoon, approximately 5:20 p.m., Golden, accompanied by
Officer Willis, advised the appellant of his Miranda rights, witnessed
the appellant waive these rights, and proceeded to obtain a confession
from the appellant. Investigator Golden testified that, at the time
the statement was obtained, the appellant did not appear to be under
the influence of crack cocaine.
No further proof was presented. Based on this
evidence, the trial court denied the appellant's motion to suppress.
The trial court stated:
․ The basic premise here is that when he gave the
statement, that statement was not the product of a free mind and
․ The only proof that we have is from Officer
Golden who said he was normal.
Now to adopt your idea, I would have to say that
the rule of law is that you could prove that a person has had drugs.
There's an inference that he didn't know-- that he couldn't give a
rational statement. There is no such inference that's drawn from the
proof that a person has used drugs that they can't give a good
statement. You've got to first give me some proof that he didn't
give a good statement.
․ Well, what you've done is given me the
corroborative proof, but you don't have any proof-- You have zero
proof that the statement ․ was the product of an irrational mind.
You have zero proof of that.
The appellant now contests the ruling of the trial
court arguing (1) that the trial court erred in refusing to permit
Angela Ragland to testify at the hearing and (2) that the testimony of
Dr. Parker was sufficient to show that the appellant was in the “crash
phase” of cocaine intoxication, suffering from impaired judgment,
confusion, and suicidal thoughts, at the time his statement was given
to the police.
The trial court's determination that a confession
has been given voluntarily and without coercion is binding upon the
appellate court unless the evidence preponderates against the ruling.
See State v. Odom, 928 S.W.2d 18, 22 (Tenn.1996); State v.
Stephenson, 878 S.W.2d 530, 544 (Tenn.), reh'g denied, (1994). Under
this standard, matters regarding the credibility of witnesses, the
weight and value to be afforded the evidence, and resolution of
conflicts in the evidence are matters entrusted to the trial court as
the trier of fact. Odom, 928 S.W.2d at 23. On appeal, the appellant
bears the burden of demonstrating that the evidence preponderates
against the trial court's findings. See State v. Tate, No.
02C01-9605-CR-00164, 1997 WL 746441 (Tenn.Crim.App. at Jackson, Dec.
3, 1997), perm. to appeal denied, (Tenn. Oct. 5, 1998) (citation
The law in this state is well-established that
“[t]he ingestion of drugs and alcohol does not in and of itself render
any subsequent confession involuntary.” See State v. Robinson, 622
S.W.2d 62, 67 (Tenn.Crim.App.1980), cert. denied, 454 U.S. 1096, 102
S.Ct. 667, 70 L.Ed.2d 636 (1981); see also State v. Beasley, No.
03C01-9509-CR-00268, 1996 WL 591203 (Tenn.Crim.App. at Knoxville, Oct.
10, 1996), reh'g denied, (Sept. 15, 1997), perm. to appeal denied, (Tenn.
Apr. 27, 1998); State v. Teeters, No. 0201-9304-CC-0051, 1994 WL
29855 (Tenn.Crim.App. at Jackson, Feb. 2, 1994). “It is only when an
accused's faculties are so impaired that the confession cannot be
considered the product of a free mind and rational intellect that it
should be suppressed.” Robinson, 622 S.W.2d at 67 (citing Lowe v.
State, 584 S.W.2d 239 (Tenn.Crim.App.1979)). The test to be applied
in these cases is whether, at the time of the statement, the accused
was capable of making a narrative of past events or of stating his own
participation in the crime. Beasley, No. 03C01-9509-CR-00268 (citations
In the present case, the defense presented the
testimony of Officer Golden who stated that, at the time the
appellant's statement was obtained, the appellant was acting normal,
was calm, and did not appear to be under the influence of cocaine.
He further testified that the appellant provided a complete narrative
of the events surrounding the double homicides/aggravated rape. No
proof was presented to rebut this observation other than the expert
testimony of Dr. Parker whose testimony was limited to the general
effects of cocaine intoxication and not those effects actually
experienced by the appellant. Indeed, we find no proof that
preponderates against the trial court's finding that the appellant
made a voluntary and knowing statement to law enforcement officials.
Moreover, we conclude that the trial court properly
prohibited the defense from calling Angela Ragland to the stand. Per
the appellant's offer of proof, Angela Ragland would only have been
able to testify about the appellant's state of mind and physical
condition during the actual perpetration of the crimes, which was not
at issue at the suppression hearing. There is no dispute that the
appellant had ingested a large amount of crack cocaine the prior
evening and was intoxicated at the time the crimes were committed.
However, Ms. Ragland was not present at the time the appellant's
statement was given, some fourteen hours after the crimes occurred,
and, therefore, could not testify regarding his demeanor during the
police interview, i.e., the issue at the suppression hearing. See
Tenn. R. Evid. 402 and 602. Accordingly, the motion to suppress was
properly denied. This issue is without merit.
II. Witherspoon Violations
The appellant next contends that the jury selection
process in his capital trial violated Witherspoon v. Illinois, 391 U.S.
510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Specifically, he argues
that the statements of two of the prospective jurors, Barbara Brooks
and Dennis Spellings, concerning the death penalty did not justify
their excusal for cause.
“The right to trial by jury secured by our state
and federal constitutions necessarily contemplates that the jury will
be unbiased and impartial.” See Wolf v. Sundquist, 955 S.W.2d 626,
629 (Tenn.App.), perm. to appeal denied, (Tenn.1997) (citing Thiel v.
Southern Pacific Co., 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed.
1181 (1946); Ricketts v. Carter, 918 S.W.2d 419, 421 (Tenn.1996); Durham
v. State, 182 Tenn. 577, 188 S.W.2d 555, 558 (1945)). “In its
constitutional sense, impartiality envisions not only freedom from
jury bias against the defendant but also freedom from jury bias in the
defendant's favor.” Id. (citing Swain v. Alabama, 380 U.S. 202,
219-20, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1965); Hayes v. Missouri,
120 U.S. 68, 70-71, 7 S.Ct. 350, 351, 30 L.Ed. 578 (1887); Houston v.
State, 593 S.W.2d 267, 272 (Tenn.1980), rev'd on other grounds, State
v. Brown, 836 S.W.2d 530, 543 (Tenn.1992); Toombs v. State, 197 Tenn.
229, 270 S.W.2d 649, 650 (1954)). Essentially, an impartial juror is
one who is free from personal bias or prejudice and will find the
facts and apply them to the law. See Wolf v. Sundquist, 955 S.W.2d
at 629; see also Buchanan v. Kentucky, 483 U.S. 402, 417, 107 S.Ct.
2906, 2914, 97 L.Ed.2d 336 (1987); Wainwright v. Witt, 469 U.S. 412,
423, 105 S.Ct. 844, 851-52, 83 L.Ed.2d 841 (1985); Eason v. State, 65
Tenn. 466, 469 (1873).
To ensure an impartial jury, the Tennessee Supreme
Court has adopted the rationale of the United States Supreme Court in
determining the eligibility of prospective jurors in a capital case.
In Witherspoon v. Illinois, the Supreme Court held that a prospective
juror may be excluded for cause because of his or her views on capital
punishment. This standard was clarified in Wainwright v. Witt, 469
U.S. at 424, 105 S.Ct. at 852:
That standard is whether the juror's views would
‘prevent or substantially impair the performance of his duties as a
juror in accordance with his instructions and his oath.’ We note
that, in addition to dispensing with Witherspoon's reference to
“automatic decision making,” this standard likewise does not require
that a juror's bias be proved with “unmistakable clarity.”
See also State v. Alley, 776 S.W.2d 506 (Tenn.1989),
cert. denied, 493 U.S. 1036, 110 S.Ct. 758, 107 L.Ed.2d 775 (1990); State
v. Williams, 690 S.W.2d 517, 522 (Tenn.1985). The Supreme Court also
acknowledged that the questions asked and answered during the voir
dire process do not always reveal a juror's bias with absolute
certainty; “however, there will be situations where the trial judge
is left with the definite impression that a prospective juror would be
unable to faithfully and impartially apply the law.” See Wainwright
v. Witt, 469 U.S. at 425-26, 105 S.Ct. at 853. Therefore, “deference
must be paid to the trial judge who sees and hears the juror.” Id.
Indeed, in State v. Alley, our supreme court held that “the trial
court's finding of bias of a juror because of his views of capital
punishment shall be accorded a presumption of correctness and the
burden shall rest upon the appellant to establish by convincing
evidence that determination was erroneous.” Alley, 776 S.W.2d at 518;
see also Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581
A. Prospective Juror Brooks
During individual voir dire, Barbara Brooks was
called as a potential juror. When asked by District Attorney General
Woodall whether she could impose the death penalty in this case, Ms.
Brooks responded that she could not do so for religious reasons.
Despite further questioning by General Woodall, Ms. Brooks maintained
that she did not believe in the death penalty and that she could not
and would not impose such a sentence.
The trial court, as well, questioned Ms. Brooks
regarding whether she could impose the death penalty. In response to
the court's questioning, she again stated that she could not impose
the death penalty no matter what the crime was because she does not
“believe that a person's life should be taken because of it.” She
further admitted that “the death penalty is out of the question for [her]”
and she would never consider imposing the death penalty on the
appellant or anyone else.
Defense counsel, in an attempt to rehabilitate Ms.
Brooks, asked her whether she could fairly consider the aggravating
and mitigating circumstances and keep an open mind as to the three
possibilities for sentencing in this case, to which Ms. Brooks
responded affirmatively. The court again questioned Ms. Brooks as to
whether she could impose the death penalty if it was called for by the
law and the facts. Although Ms. Brooks responded that she could
consider the sentence of life without the possibility of parole and
that she could hear the evidence, she stated “I don't think I could be
fair at that because of the death penalty ․ the only thing that
hinders me is when you said death penalty. That's where it stops
Despite this statement, defense counsel was again
able to illicit answers from Ms. Brooks that raised concern as to her
position on the death penalty. As a result, the trial court
instructed Ms. Brooks to “just say how you feel.” After further
equivocation by the prospective juror, the trial court asked her point
blank if the death penalty was out; she responded, “Forget it.”
At that point, the State challenged Barbara Brooks
for cause and the court sustained the challenge finding:
․ I finally put it to her as blank, I said, “The
death penalty is out?” She said, “The death penalty is out, the
death penalty is out. I will not impose it” and she said it multiple,
Although Ms. Brooks' position on the death penalty
was ambiguous at certain times during her voir dire examination, we
can reach no rational conclusion other than finding that Ms. Brooks
had a definite opposition to imposing the death penalty. Giving
deference to the trial court who was able to observe this prospective
juror, we conclude that the constitutional standard for excusing
jurors due to their views on the death penalty was met.
B. Dennis Spellings
Later that same day, Dennis Spellings was called
for individual voir dire. The following dialogue occurred between Mr.
Spellings and General Woodall:
GENERAL WOODALL: ․ Can you fairly consider the
death penalty along with other forms of punishment?
MR. SPELLINGS: That's a tough question.
GENERAL WOODALL: As it should be․ [T]he law in
the State of Tennessee is if the aggravating circumstances ․ outweigh
the mitigating circumstances, you shall impose the death penalty.
Can you do that or do you have personal convictions or religious
convictions that would prevent you from doing it?
MR. SPELLINGS: It's a tough question to ask
straight forward. I really don't have an answer.
GENERAL WOODALL: Well, can you make that decision?
Do you think that you could vote to impose the death penalty?
MR. SPELLINGS: Honestly I don't.
GENERAL WOODALL: Are you saying you don't think
you could or maybe you could or you just don't know?
MR. SPELLINGS: When we're talking about when push
comes to shove, I don't know.
GENERAL WOODALL: ․ So are you saying you don't
know whether you could or you won't?
MR. SPELLINGS: I don't know.
Defense counsel also attempted to elicit a definite
position from Mr. Spellings, but was unsuccessful. The trial court
interrupted and asked Mr. Spellings, “After you hear all the proof,
then you could make a decision as to whether or not death should apply?”
Mr. Spellings responded, “I'll be honest with you. I'd rather not
make that decision.” During the court's discourse with Mr. Spellings,
Mr. Spellings replied, at one point, that he could follow the law as
instructed by the court, but later admitted that “he did not know” if
he could follow the law as related to the death penalty.
The State challenged Mr. Spellings for cause,
relying on Mr. Spellings admission that he did not know whether he
would follow the law. The trial court sustained the challenge,
This is the first time we've run into this where a
person just ․ won't answer the question or he feels like he can't
answer the question. As I interpret the law that means that we have
to get commitment from a juror that they would follow the law and that
they would consider the death penalty under certain circumstances. I
don't think that a juror is disqualified if they just continue to
persistently say, “I don't know what I would do.” That's like a
juror who's really saying-- will you affirm to uphold the law and he
would say, “Well, I just can't answer that.” If you had a juror and
you put him in the box and you say “Do you swear to tell the truth?”
and he says, “I can't say whether I will or not,” you wouldn't let him
testify. It takes an affirmative statement by a juror that he would
consider all the penalties ․ and would not exclude the death penalty
as a possibility. I think the statements by this juror render him
unqualified to served on the jury.
Again, this court gives deference to the decision
of the trial court who was able to observe the prospective juror.
The record demonstrates that Mr. Spellings could not state with
certainty that he could perform his duties as a juror in accordance
with his oath. Accordingly, the trial court properly excused this
juror for cause. This issue is without merit.
(Deleted-III. Sufficiency of the Evidence)
IV. Statement of Intent of Future Wrongdoing and
Prior Bad Act
Prior to the testimony of Angela Ragland, a jury-out
hearing was held to determine the admissibility of testimony regarding
the appellant's prior rape charge and statements made by the appellant
to Angela Ragland regarding his intent to kill Marvin Eckford, to rob
a bank, and to leave town. The trial court permitted the
introduction of the testimony, finding that
it would be rare that any statements made by any
defendant during the course of a criminal enterprise to be excluded if
there are crimes that require proof of culpability, state of mind, et
cetera, they would usually be considered res gestae, so closely
connected with the crime, with the offense, that they can't be
separated from it. All of these statements reflect upon that, that
he is on a killing spree, going to kill ․ that clearly is some proof
of the defendant's mental state, that he was on a violent binge. You
know, he commits one murder, he commits two murders, he might as well
commit three, what-difference-does-it-make sort of attitude. It's
also proof of, of course, the mental state. Words like, “I've been
accused of one rape” ․ [w]ould serve as a motive. That's another
thing, motive, intent, state of mind․ Certainly shows intent ․ that
he knew what he had done․ Arguably evidence that the defendant was
coherent, that he knew what he had done, he knew what he was going to
do and that he had presence of mind about all of these things․ In
summary, all of these remarks are clearly admissible․ But all of
these things, particularly when you're thinking about the requirements
of culpability being proven, when you're thinking about the position
that's going to be taken․ Statements made during the course of the
crime or even afterwards which would reflect upon the defendant's
thinking, mental state, what he had on his mind, and all of these
things do that. So they're going to be admissible for these numerous
reasons, not to mention res gestae.
A. Statements of Future Intent
Again, during the guilt phase of the appellant's
trial, the trial court permitted the State to question Angela Ragland
about statements made to her by the appellant. On direct examination,
Angela Ragland testified that, between instances of rape, the
appellant told her that he was going home to tell his children goodbye,
that he was going to kill Marvin Eckford because Eckford had provided
his name to the woman accusing the appellant of raping her, and that
he was going to rob a bank and leave town. On appeal, the appellant
contends that such evidence is irrelevant and is unduly prejudicial.
The trial court correctly found such testimony
admissible under the “state of mind” exception to the hearsay rule.
See Tenn. R. Evid. 803(3); State v. Roe, No. 02C01-9702-CR-00054,
1998 WL 7107 (Tenn.Crim.App. at Jackson, Jan. 12, 1998); Neil P.
Cohen et al., Tennessee Law of Evidence § 803(3).2 (3d ed.1995). The
testimony is relevant to show the appellant's existing state of mind
at the time of the crimes, i.e., to show his intent, plan, and motive,
including the fact that he was capable of understanding the import of
his actions. Id.; see also Tenn. R. Evid. 402. Moreover, the trial
court instructed the jury that the appellant did not kill Marvin
Eckford, did not rob a bank, and did not leave town. Accordingly, we
cannot conclude that introduction of this evidence was more
prejudicial than probative. See Tenn. R. Evid. 403. This issue is
B. Evidence of Prior Bad Act: Alleged Rape
Angela Ragland also testified that, during the
crimes, the appellant told her that “[h]e had been accused of raping
someone and that he didn't, and if he was going to go to jail, he was
going to go to jail for doing something.” The appellant objected and
a jury-out hearing was held to conduct a Tenn. R. Evid. 404(b)
analysis. The trial court found the testimony admissible, but
determined that it should only be considered on the issue of mental
intent. The trial court instructed the jury that “they're not to
presume that he's guilty of any previous rape.”
Generally, “[e]vidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to
show action in conformity with the character trait.” Tenn. R. Evid.
404(b). Nonetheless, such evidence may be admissible for other
purposes. Id. Other acts may be admitted to prove such issues as
motive, intent, knowledge, absence of mistake or accident, common
scheme or plan, identity, completion of the story, opportunity, and
preparation. Neil P. Cohen et al., Tennessee Law of Evidence
§ 404.6. Thus, the trial court properly found that testimony
concerning the alleged rape was admissible pursuant to Tenn. R. Evid.
404(b), as it was highly relevant to the issue of intent and its
probative value outweighed the danger of unfair prejudice.
V. Photographs of Victim at Sentencing Phase
During the sentencing phase, the State was
permitted, over objection, to introduce multiple photographs of the
body of the deceased victim, Erica Hurd.3
The trial court permitted the introduction of the photographs on the
issue of establishing the aggravating circumstance “heinous, atrocious,
or cruel.” On appeal, the appellant complains that the admission of
the photographs was error. Specifically, he argues that (1) the
photographs were more prejudicial than probative and (2) the
photographs were cumulative to the testimony of Dr. Smith and the
demonstrative evidence of the mannequin.
Tennessee courts follow a policy of liberality in
the admission of photographs in both civil and criminal cases. State
v. Banks, 564 S.W.2d 947, 949 (Tenn.1978) (citations omitted).
Accordingly, “the admissibility of photographs lies within the
discretion of the trial court” whose ruling “will not be overturned on
appeal except upon a clear showing of an abuse of discretion.” Id.
However, before a photograph may be admitted into evidence, it must be
relevant to an issue that the jury must decide and the probative value
of the photograph must outweigh any prejudicial effect that it may
have upon the trier of fact. See State v. Braden, 867 S.W.2d 750,
758 (Tenn.Crim.App.), perm. to appeal denied, (Tenn.1993) (citation
omitted); see also Tenn. R. Evid. 401 and 403.
Of the ten photographs contested on appeal, two are
of the victim at the crime scene and the remaining are photographs
from the autopsy. Eight of the ten photographs depict wounds to the
victim's face and neck. The appellant contends that the facial
pictures are unduly prejudicial in that they are “gruesome and
inflammatory” and the “facial expression on the victim's face ․ could
produce a terrible reaction in the jury.” The appellant argues that
the introduction of the photographs was unnecessary and cumulative due
to the testimony of Dr. Smith describing the wounds and his use of a
mannequin to demonstrate the various points of injury. The trial
court permitted the photographs of Erica Hurd into evidence, finding
that “[g]ruesome pictures are admissible in these situations if it
would tend to show some of these factors that are involved in the
heinous, atrocious or cruel category, torture, physical abuse.”
Although we concede that the photographs are not
pleasant to view, they accurately depict the nature and the extent of
the victim's injuries. There is no dispute that the photographs were
introduced to prove the aggravating circumstance of “heinous,
atrocious, or cruel.” This evidence was relevant to support the
State's proof of the “heinous, atrocious, and cruel” aggravating
circumstance. See, e.g., State v. Hall, 976 S.W.2d 121, 162 (Tenn.1998);
State v. Smith, 893 S.W.2d 908, 924 (Tenn.1994), cert. denied, 516
U.S. 829, 116 S.Ct. 99, 133 L.Ed.2d 53 (1995); State v. Smith, 868
S.W.2d 561, 579 (Tenn.1993), cert. denied, 513 U.S. 960, 115 S.Ct.
417, 130 L.Ed.2d 333 (1994) (citing State v. Payne, 791 S.W.2d 10,
19-20 (Tenn.1990), judgment aff'd. by, 501 U.S. 808, 111 S.Ct. 2597,
115 L.Ed.2d 720 (1991); State v. Miller, 771 S.W.2d 401, 403-404 (Tenn.1989),
cert. denied, 497 U.S. 1031, 110 S.Ct. 3292, 111 L.Ed.2d 801 (1990); State
v. Porterfield, 746 S.W.2d 441, 449-450 (Tenn.), cert. denied, 486 U.S.
1017, 108 S.Ct. 1756, 100 L.Ed.2d 218 (1988); State v. McNish, 727
S.W.2d 490, 494-495 (Tenn.), cert. denied, 484 U.S. 873, 108 S.Ct.
210, 98 L.Ed.2d 161 (1987)).
Notwithstanding, as a general rule, where medical
testimony adequately describes the degree or extent of the injury,
gruesome and graphic photographs should not be admitted. See State
v. Duncan, 698 S.W.2d 63 (Tenn.1985), cert. denied, 475 U.S. 1031, 106
S.Ct. 1240, 89 L.Ed.2d 348 (1986). The photographs were used by the
physician who performed the autopsy to assist in explaining his
testimony about the manner and cause of death. The photographs
clarify the complex testimony of Dr. Smith regarding the severity of
the injuries. See Stephenson, 878 S.W.2d at 542; Smith, 868 S.W.2d
at 576 (photographs used to illustrate witnesses' testimony admissible
for this purpose). Moreover, a relevant photograph is not rendered
inadmissible merely because it is cumulative. See State v. Bigbee,
885 S.W.2d 797, 807 (Tenn.1994); Van Tran, 864 S.W.2d at 477.
We conclude that the photographs were not
especially gruesome or shocking in nature so as to preclude their
admission. Although any such photographs would be prejudicial to the
appellant's case, the photographs introduced at the sentencing hearing
were highly probative in determining an aggravating circumstance. We
cannot conclude that the trial court abused its discretion by
admitting these photographs during the sentencing process. See Tenn.
R. Evid. 403; State v. Evans, 838 S.W.2d 185 (Tenn.1992); Banks, 564
S.W.2d at 947. See also State v. Brown, 756 S.W.2d 700, 704 (Tenn.Crim.App.1988);
Freshwater v. State, 2 Tenn.Crim.App. 314, 453 S.W.2d 446, 451-52
(1969); State v. Beckham, No. 02C01-9406-CR-00107, 1995 WL 568471 (Tenn.Crim.App.
at Jackson, Sept. 27, 1995 ), perm. to appeal granted, (Tenn. July 8,
1996), perm. to appeal denied, (Tenn. Sept. 9, 1996). This issue is
VI. Victim Impact Evidence
During closing argument during the penalty phase,
General Woodall made the following statements:
It's up. We know for sure that Erica is now gone,
at peace and out of pain. There's a lot of other pain here and
that's the families of these victims. That's what Angela Ragland
went through and will have to go through and there are just not any
mitigating circumstances that outweigh these aggravating circumstances,
absolutely none. That's why we have this law and where the
aggravating circumstances do not (sic) outweigh the mitigating
circumstances, the punishment shall be death.
The appellant objects to this argument; contending
that this statement constitutes victim impact evidence which is
inadmissible, irrelevant to any aggravating or mitigating circumstance,
and constitutes argument of matters not in evidence.4
Additionally, he asserts that the inflammatory argument posed a
substantial risk that the death penalty was imposed arbitrarily,
jeopardizing the reliability requirements of the Eighth Amendment.
The issues raised by the appellant herein were
recently addressed in detail by our supreme court in State v. Nesbit,
978 S.W.2d 872 (Tenn. at Jackson, 1998) (for publication ). In a
thorough review of the case law development of the admissibility of
victim impact evidence, the supreme court reached several conclusions
on the issue.
First, noting prior decisions of the United States
Supreme Court and its own precedent, the court held that “victim
impact evidence and argument is [not] barred by the federal and state
constitutions.” Nesbit. See also Payne v. Tennessee, 501 U.S. 808,
827, 111 S.Ct. 2597,2609, 115 L.Ed.2d 720 (1991) (holding that the
Eight Amendment erects no per se bar against the admission of victim
impact evidence and prosecutorial argument); State v. Shepherd, 902
S.W.2d 895, 907 (Tenn.1995) (holding that victim impact evidence and
prosecutorial argument is not precluded by the Tennessee Constitution);
State v. Brimmer, 876 S.W.2d 75, 86 (Tenn.), cert. denied, 513 U.S.
1020, 115 S.Ct. 585, 130 L.Ed.2d 499 (1994) (same). Thus, the
appellant's argument challenging the constitutionality of the
admissibility of victim impact evidence and argument under the Eighth
Amendment has been precluded by the Tennessee Supreme Court.
Additionally, the court addressed the relevancy of
argument and evidence regarding the impact of the crime(s) on the
victim's family. The court noted that, although “[Tenn.Code Ann.
§ 39-13-204(c) ] ․ permits admission of all relevant mitigating
evidence, whether or not the category of mitigation is listed in the
statutory scheme,” 5
“this Court repeatedly has held that the State may not rely upon
nonstatutory aggravating circumstances to support imposition of the
death penalty.” Nesbit (citing State v. Thompson, 768 S.W.2d 239, 251
(Tenn.1989), cert. denied, 497 U.S. 1031, 110 S.Ct. 3288, 111 L.Ed.2d
796 (1990); Cozzolino v. State, 584 S.W.2d 765, 768 (Tenn.1979)).
Notwithstanding, the court stated that, “in several subsequent
decisions we have expressly recognized that a sentencing jury must be
permitted to hear evidence about the nature and circumstances of the
crime even though the proof is not necessarily related to a statutory
aggravating circumstance.” Nesbit (citing State v. Harris, 919 S.W.2d
323, 331 (Tenn.1996); State v. Teague, 897 S.W.2d 248, 251 (Tenn.1995);
Bigbee, 885 S.W.2d at 813; State v. Nichols, 877 S.W.2d 722, 731 (Tenn.1994),
cert. denied, 513 U.S. 1114, 115 S.Ct. 909, 130 L.Ed.2d 791 (1995)).
(Emphasis in original). Accordingly, the court concluded that “the
impact of the crime on the victim's immediate family is one of those
myriad factors encompassed within the statutory language nature and
circumstances of the crime.” Id. (emphasis in original).
In so holding, the court reasoned:
The Tennessee statute delineates a procedure which
enables the sentencing jury to be informed about the presence of
statutory aggravating circumstances, the presence of mitigating
circumstances, and the nature and circumstances of the crime. The
statute allows the sentencing jury to be reminded ‘that just as the
murderer should be considered as an individual, so too the victim is
an individual whose death represents a unique loss to society and in
particular to his family.’ Payne, 501 U.S. at 825, 111 S.Ct. at 2608
(internal citations and quotations omitted). As this Court
emphasized in its decision in Payne, it would be ‘an affront to the
civilized members of the human race’ to allow unlimited mitigation
proof at sentencing in a capital case, but completely preclude proof
of the specific harm resulting from the homicide. Accordingly, the
defendant's claim that victim impact evidence is not admissible under
the Tennessee capital sentencing statute is without merit.
The supreme court, however, limited this ruling, by
holding that “victim impact evidence may [not] be introduced ‘that is
so unduly prejudicial that it renders the trial fundamentally unfair,’
thus implicating the Due Process Clause of the Fourteenth Amendment.”
Id. (citing Payne, 501 U.S. at 825, 111 S.Ct. at 2608). Moreover,
the trial court, in its discretion, “may exclude victim impact proof
if its probative value is substantially outweighed by its prejudicial
effect.” Id. (citing Tenn. R. Evid. 403). Indeed, “victim impact
evidence should be limited to information designed to show those
unique characteristics which provide a brief glimpse into the life of
the individual who has been killed, the contemporaneous and
prospective circumstances surrounding the individual's death, and how
those circumstances financially, emotionally, psychologically or
physically impacted upon members of the victim's immediate family.” Id.
(internal citations omitted) (citing Payne, 501 U.S. at 822, 111 S.Ct.
at 2607; Payne, 501 U.S. at 830, 111 S.Ct. at 2611 (O'Connor, J.,
concurring); Cargle v. State, 909 P.2d 806, 826 (Ok.Ct.Crim.App.1995)).
Similarly, the court “cautioned the State against engaging in victim
impact argument which is little more than an appeal to the emotions of
the jurors as such argument may be unduly prejudicial.” Id. (citing
Shepherd, 902 S.W.2d at 907 (parenthetical omitted); Bigbee, 885 S.W.2d
at 808 (parenthetical omitted)).
In the present case, the victim impact argument, in
essence, is limited to “[t]hat's what Angela Ragland went through and
will have to go through.” It would be farfetched to conclude that
this statement prejudiced the outcome of the sentencing phase as the
effects of the double homicide on Angela Ragland were directly
fashioned by the appellant and were clearly foreseeable. See Payne
v. Tennessee, 501 U.S. at 838, 111 S.Ct. at 2615-2616 (Souter, J.,
concurring). Indeed, the fact that the death of a loved one is
devasting requires no proof. Accordingly, the challenged argument
was properly admitted.6
This issue is without merit.
VII. Separate Jury for Penalty Phase
The appellant claims that a separate jury should
have been impaneled for the penalty phase of his trial. He asserts
that, by requiring the same jury to hear both the guilt and penalty
phases of his capital trial, he was deprived of his right to a fair
and impartial jury under the Tennessee and United States Constitutions.
Specifically, he contends that “he was denied a cross-section of the
community because those jurors that could not enforce the death
penalty were removed and he got a jury that was prone to give the
This argument has been previously considered and
rejected by our supreme court. In State v. Harbison, 704 S.W.2d 314,
318-319 (Tenn.1986), cert. denied, 476 U.S. 1153, 106 S.Ct. 2261, 90
L.Ed.2d 705 (1986), the court rejected a claim by the defendant that
separate juries should have been sworn to hear the guilt and
sentencing phases of the trial and held that a single jury in a
capital case neither denied a fair cross section of the community nor
resulted in a conviction prone process. See also State v. Teel, 793
S.W.2d 236, 246 (Tenn.), cert. denied, 498 U.S. 1007, 111 S.Ct. 571,
112 L.Ed.2d 577 (1990) (guilt prone jury argument “has been rejected
by both the Tennessee and United States Supreme Courts”); State v.
Jones, 789 S.W.2d 545, 547 (Tenn.), cert. denied, 498 U.S. 908, 111
S.Ct. 280, 112 L.Ed.2d 234 (1990) (rejecting guilt prone jury claim);
State v. Zagorski, 701 S.W.2d 808, 814-15 (Tenn.1985), cert. denied,
478 U.S. 1010, 106 S.Ct. 3309, 92 L.Ed.2d 722 (1986) (rejecting cross
section claim);. This issue is without merit.7
VIII. Constitutional Challenges
Finally, the appellant raises a myriad of
challenges to the constitutionality of Tennessee's death penalty
provisions. The appellant concedes that these issues have been
previously rejected by the Tennessee Supreme Court, however, he raises
these challenges to preserve them for future appellate review.
A. Death by Electrocution
The appellant first contends that “[t]he electric
chair constitutes cruel and unusual punishment,” emphasizing that “the
Eighth Amendment forbids inhuman and barbarous methods of execution
that go beyond the mere extinguishment of life and cause torture or a
lingering death.” (citing Glass v. Louisiana, 471 U.S. 1080, 105 S.Ct.
2159, 85 L.Ed.2d 514 (1985)). As support for his argument, the
appellant refers to recent legislation in this state moving beyond
death by electrocution and substituting lethal injection. See
Tenn.Code Ann. § 40-23-114 (1998 Supp.) (changes the method of
execution from electrocution to lethal injection for those persons
sentenced to death after January 1, 1999).8
We do not see how this amendment renders death by electrocution
unconstitutional. The appellate courts of this state are of the
opinion that electrocution is a constitutionally permissible method of
execution and have routinely rejected this argument. See Black, 815
S.W.2d at 179; see also Hines, 919 S.W.2d at 582.
B. Death penalty is cruel and unusual punishment.
Within this challenge, the appellant makes numerous
challenges alleging that the Tennessee death penalty statutes violate
the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United
States Constitution, and Article I, Sections 8, 9, 16, and, 17, and
Article II, Section 2 of the Tennessee Constitution. These arguments
have previously been rejected by our supreme court:
1. Tennessee's death penalty statutes fail to
meaningfully narrow the class of death eligible defendants,
specifically because Tenn.Code Ann. § 39-13-204(i)(4), (5), (6), and
(7) encompass a majority of the homicides committed in Tennessee,9
have been rejected by our supreme court. See State v. Keen, 926 S.W.2d
727, 742 (Tenn.1994).
2. The death sentence is imposed capriciously and
arbitrarily in that:
(1) Unlimited discretion is vested in the
prosecutor as to whether or not to seek the death penalty. This
argument has been rejected. See Hines, 919 S.W.2d at 582.
(2) The death penalty is imposed in a
discriminatory manner based upon economics, race, geography, and
gender. This argument has been rejected. See Hines, 919 S.W.2d at
582; Brimmer, 876 S.W.2d at 87; Cazes, 875 S.W.2d at 268; State v.
Smith, 857 S.W.2d 1, 23 (Tenn.), cert. denied, 510 U.S. 996, 114 S.Ct.
561, 126 L.Ed.2d 461 (1993).
(3) There are no uniform standards or procedures
for jury selection to insure open inquiry concerning potentially
prejudicial subject matter. This argument has been rejected. See
State v. Caughron, 855 S.W.2d 526, 542 (Tenn.), cert. denied, 510 U.S.
979, 114 S.Ct. 475, 126 L.Ed.2d 426 (1993).
(4) The death qualification process skews the make-up
of the jury and results in a relatively prosecution prone guilt-prone
jury. This argument has been rejected. See Teel, 793 S.W.2d at
246; Harbison, 704 S.W.2d at 318.
(5) Defendants are prohibited from addressing
jurors' popular misconceptions about matters relevant to sentencing,
i.e., the cost of incarceration versus cost of execution, deterrence,
method of execution. This argument has been rejected. See Brimmer,
876 S.W.2d at 86-87; Cazes, 875 S.W.2d at 268; Black, 815 S.W.2d at
(6) The jury is instructed that it must agree
unanimously in order to impose a life sentence, and is prohibited from
being told the effect of a non-unanimous verdict. This argument has
been rejected. See Brimmer, 876 S.W.2d at 87; Cazes, 875 S.W.2d at
268; Smith, 857 S.W.2d at 22-23.
(7) Requiring the jury to agree unanimously to a
life verdict violates Mills v. Maryland and McKoy v. North Carolina.
This argument has been rejected. See Brimmer, 876 S.W.2d at 87; Thompson,
768 S.W.2d at 250; State v. King, 718 S.W.2d 241, 249 (Tenn.1986),
superseded by statute as recognized by, State v. Hutchison, 898 S.W.2d
(8) The jury is not required to make the ultimate
determination that death is the appropriate penalty. This argument
has been rejected. See Brimmer, 876 S.W.2d at 87; Smith, 857 S.W.2d
(9) The defendant is denied final closing argument
in the penalty phase of the trial. This argument has been rejected.
See Brimmer, 876 S.W.2d at 87; Cazes, 875 S.W.2d at 269; Smith,
857 S.W.2d at 24; Caughron, 855 S.W.2d at 542.
3. Appellate Review process in death penalty cases
is constitutionally inadequate.
The defendant argues that the appellate review
process in death penalty cases is constitutionally inadequate in its
application. He contends that the appellate review process is not
constitutionally meaningful because the appellate courts cannot
reweigh proof due to the absence of written findings concerning
mitigating circumstances, because the information relied upon by the
appellate courts for comparative review is inadequate and incomplete,
and because the appellate courts' methodology of review is flawed.
This argument has been specifically rejected by our supreme court on
numerous occasions. See Cazes, 875 S.W.2d at 270-71; see also
Harris, 839 S.W.2d at 77; Barber, 753 S.W.2d at 664. Moreover, the
supreme court has recently held that, “while important as an
additional safeguard against arbitrary or capricious sentencing,
comparative proportionality review is not constitutionally required.”
Bland, 958 S.W.2d at 663.
(Deleted: IX. Proportionality Review)
In accordance with the mandate of Tenn.Code Ann.
§ 39-13-206(c)(1) and the principles adopted in prior decisions of the
Tennessee Supreme Court, we have considered the entire record in this
cause and find that the sentence of death was not imposed in any
arbitrary fashion, that the evidence supports, as previously discussed,
the jury's finding of the statutory aggravating circumstances, and the
jury's finding that the aggravating circumstances outweighed
mitigating circumstances beyond a reasonable doubt. Tenn.Code Ann.
§ 39-13-206(c)(1)(A)-(C). A comparative proportionality review,
considering both the circumstances of the crime and the nature of the
appellant, convinces us that the sentence of death is neither
excessive nor disproportionate to the penalty imposed in similar
cases. Likewise, we have considered the appellant's assignments of
error as to each of his convictions on appeal and the respective
sentences and determined that none have merit. Additionally, we
conclude, in reference to the murder of Charles Ragland, that the jury
appropriately found two statutory aggravating circumstances and did
not arbitrarily impose a sentence of life without the possibility of
parole as to that count. Thus, we affirm the appellant's conviction
for the first degree murder of Charles Ragland and the accompanying
sentence of life without the possibility of parole, his conviction for
the first degree murder of Erica Hurd and the accompanying sentence of
death by electrocution, and his conviction for the aggravated rape of
Angela Ragland and the accompanying sentence of twenty-five years.10
JOE G. RILEY, Judge
JOHN EVERETT WILLIAMS, Judge
Ann. § 39-13-204(i)(5) and (7)(1991 and Supp.1994).
Ann. § 39-13-204(i)(3) and (7)(1991 and Supp.1994).
Ann. § 39-13-206(a)(1)(1997)(“The affirmance of the conviction and the
sentence of death shall be automatically reviewed by the Tennessee
Ragland testified that her husband did not sell or use drugs.
statement in its entirety is contained in the opinion of the Court of
Criminal Appeals, which is attached to this opinion as an appendix.
July 1, 1995, the statute was amended to delete the element of
deliberation from this definition of first degree murder. Tenn.Code
Ann. § 39-13-202(a)(1)(Supp.1996).
State v. Nichols, 877 S.W.2d 722, 737 (Tenn.1994), cert. denied, 513
U.S. 1114, 115 S.Ct. 909, 130 L.Ed.2d 791 (1995); State v. Black, 815
S.W.2d 166, 179 (Tenn.1991).
express no opinion on the constitutionality of lethal injection as the
defendant did not have the opportunity to raise or litigate that issue
in the courts below.
this aggravating circumstance lists other felonies as well, the trial
court properly charged the jury only on those that were raised by the
evidence. See Tenn.Code Ann. § 39-13-303 (1991)(rape); Tenn.Code
Ann. § 39-14-402 (1991)(burglary); Tenn.Code Ann. § 39-13-303 (1991)(kidnapping).
In State v. Blanton, 975 S.W.2d 269, 281 (Tenn.1998), cert. denied,
525 U.S. 1180, 119 S.Ct. 1118, 143 L.Ed.2d 113 (1999), we held that
the trial court erroneously charged the jury on every felony contained
in the aggravating circumstance but that the error was harmless.
1. At the
conclusion of the appellant's proof, the trial court permitted defense
counsel to make an offer of proof regarding the proffered testimony of
Angela Ragland. Specifically, defense counsel stated that Angela
Ragland would testify that she observed the appellant sweating and in
an agitated state, talking and moving at a rapid pace, and looking for
drugs when he came to her residence. Defense counsel contended that
this testimony was corroborative of Dr. Parker's testimony regarding
the effects of crack cocaine on a person.
2. At this
point at the suppression hearing, the defense did make an offer of
proof relative to the appellant's anticipated testimony.
Specifically, the proof would show that the appellant and Darryl
Godwin purchased $250 worth of crack cocaine on September 16, 1994.
Later that same day, the appellant purchased an additional $200-$250
worth of crack cocaine. The appellant consumed the entire amount of
crack cocaine, with his cocaine binge ending at approximately 11:00
p.m. The appellant would further allege that he was in the “crash
phase” at the time he gave his statement to the police.
State also sought to introduce photographs of Charles Ragland. The
trial court refused to admit these photographs into evidence. The
State later voluntary withdrew these photographs.
correctly noted by the State and conceded by the appellant, the
appellant failed to make a contemporaneous objection to the
prosecutor's statements resulting in waiver of this issue. Tenn.
R.Crim. P. 52(a); see State v. Renner, 912 S.W.2d 701, 705 (Tenn.1995);
Teague v. State, 772 S.W.2d 915, 926 (Tenn.Crim.App.1988), cert.
denied, 493 U.S. 874, 110 S.Ct. 210, 107 L.Ed.2d 163 (1989); State v.
Killebrew, 760 S.W.2d 228, 235 (Tenn.Crim.App.1988). Due to the
qualitative differences between death and other sentences, the
appellate courts of this state consider issues occurring during the
sentencing hearing in a capital case. See Bigbee, 885 S.W.2d at 805;
Duncan, 698 S.W.2d at 67-68; State v. Strouth, 620 S.W.2d 467, 471 (Tenn.1981),
cert. denied, 455 U.S. 983, 102 S.Ct. 1491, 71 L.Ed.2d 692 (1982).
Thus, notwithstanding waiver of this claim, this court elects to
consider this issue on the merits.
Nesbit (citing Cazes, 875 S.W.2d at 266 (discussing McKoy v. North
Carolina, 494 U.S. 433, 442, 110 S.Ct. 1227, 1233, 108 L.Ed.2d 369
(1990) and Mills v. Maryland, 486 U.S. 367, 375, 108 S.Ct. 1860,
1865-66, 100 L.Ed.2d 384 (1988))).
not applicable to the present case as the murders occurred prior to
the supreme court's decision in Nesbit, we note that the supreme court
established procedures under which victim impact evidence may be
introduced during capital sentencing phases. See Nesbit.
we note that Tennessee's statutory scheme for first degree murder
mandates that the “same jury that determined guilt” “shall fix the
punishment in a separate sentencing hearing.” See Tenn.Code Ann.
§ 39-13-204(a) (1994 Supp.).
bill also provides that those persons sentenced to death prior to
January 1, 1999, may choose to be executed by lethal injection by
signing a written waiver. See Constitutionality of House Bill 2085
as amended-Change in Method of Execution, Tenn. Op. Atty. Gen. No.
98-074 (Mar. 31, 1998); Constitutionality of House Bill 2085-Change
in Method of Execution, Tenn. Op. Atty. Gen. No. 98-068 (Mar. 25,
9. We note
that factors (i)(4) and (i)(6) do not pertain to this case as they
were not relied upon by the State. Thus, any individual claim with
respect to these factors is without merit. See, e.g., Hall, 958 S.W.2d
at 715; Brimmer, 876 S.W.2d at 87.
execution date is set. Tenn.Code Ann. § 39-13-206(a)(1) provides for
automatic review by the Tennessee Supreme Court upon affirmance of the
death penalty. If the death sentence is upheld by the higher court
on review, the supreme court will set the execution date.
ANDERSON, C. J., delivered the opinion of the court,
in which BIRCH, HOLDER and BARKER, J.J., joined.DAVID G. HAYES, Judge.
DROWOTA, J., not participating.
Farris Genner Morris Jr.