STATE v. HENRETTA

for mistrial.

Jury Instructions on Intoxication

During the sentencing phase of trial, the trial court instructed the jury that it should consider as a mitigating circumstance whether Mr. Henretta's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was substantially impaired as a result of voluntary intoxication. However, the trial court did not instruct the jury as to the defense of intoxication as to intent during the guilt/innocence phase of trial. Although Mr. Henretta did not complain of this omission during trial and did not raise it in his motion for new trial or present it as an issue before the Court of Criminal Appeals, he urges us to `address it as a matter of plain error.

Appellate review of a patently incomplete instruction is available in capital cases despite the defendant's failure to raise the issue below under the plain error doctrine. State v. Bledsoe, 226 S.W.3d 349, 353-54 (Tenn. 2007); State v. Hugueley, 185 S.W.3d 356, 382 (Tenn. 2006); State v. Stephenson, 878 S.W.2d 530, 554 (Tenn. 1994), abrogated on other grounds by Saylor, 117 S.W.3d at 246. As set forth in Rule 36(b) of the Tennessee Rules of Appellate Procedure, "[w]hen necessary to do substantial justice, an appellate court may consider an error that has affected the substantial rights of a party at any time, even though the error was not raised in the motion for a new trial or assigned as error on appeal." The following five elements must be satisfied before an alleged error qualifies for review as plain error:

(a) the record must clearly establish what occurred in the trial court;

(b) a clear and unequivocal rule of law must have been breached;

(c) a substantial right of the accused must have been adversely affected;

(d) the accused did not waive the issue for tactical reasons; and

(e) consideration of the error is "necessary to do substantial justice."

State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn.Crim.App. 1994) (citations and footnotes omitted); see also State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000) (adopting the Adkisson five-element test). Our review of an issue under the plain error doctrine is contingent upon all five of these elements having been satisfied, and if any one of the elements is not met, we need not consider the other four in denying relief.

At the time the offenses were committed in this case, Tennessee statutory law defined first degree murder as follows:

Every murder perpetrated by means of poison, lying in wait, or by other kind of willful, deliberate, malicious, and premeditated killing, or committed in the perpetration of, or attempt to perpetrate, any murder in the first degree, arson, rape, robbery, burglary, larceny, kidnapping, aircraft piracy, or the unlawful throwing, placing or discharging of a destructive device or bomb, is murder in the first degree.

Tenn. Code Ann. § 39-2-202(a) (1982). Further, it was well settled at the time of the commission of the offenses in this case that proof of intoxication constituted a defense to first degree murder:

If the accused is so intoxicated that he is incapable of forming a premeditated and deliberate design to kill, he cannot be guilty of murder in the first degree; and, even when an intoxicated defendant is capable of forming specific intent, his drunkenness may be considered in determining whether he specifically intended the particular act for which he is on trial.

State v. Adkins, 653 S.W.2d 708, 713 (Tenn. 1983) (citing State v. Bullington, 532 S.W.2d 556 (Tenn. 1976)). In accord, this state's pattern jury instruction regarding intoxication provides in part as follows:

Intoxication, whether voluntary or involuntary, is relevant to the issue of the essential element of the defendant's culpable mental state.

In this case, the state must prove beyond a reasonable doubt the required culpable mental state of the defendant which is [insert definition of specific mental state required for charged and included offenses].

If you find that the defendant was intoxicated to the extent that [ he] [she] could not have possessed the required culpable mental state, then [ he] [she] cannot be guilty of the offense charged.

T.P.I.-Crim. 40.02 (footnotes omitted).

Mr. Henretta argues that the trial court erred in failing to give an instruction apprising the jury about intoxication as a defense. As we recently reiterated in State v. Hatcher, 310 S.W.3d 788, 815 n. 16 (Tenn. 2010), when a defendant is charged with an offense that requires a culpable mental state, such as first degree murder, "a jury instruction about a defendant's alleged voluntary intoxication at the time he or she committed the offense under consideration is required only if the intoxication was such that it compromised the defendant's capacity for whatever culpable mental state the offense required." Therefore, to show that the trial court breached a clear rule of law for the second element of the plain error analysis, Mr. Henretta must show that the trial court heard evidence that Mr. Henretta was intoxicated to the extent that it compromised his capacity to create the culpable mental state.

Mr. Henretta points to the testimony of Agent Wilkins, the closing arguments of Assistant District Attorney Sandra Donaghy, and the testimony of Drs. Walker and Bernet. None of the statements Mr. Henretta identifies, however, required the trial court to provide a jury instruction on intoxication. The only testimony provided by Agent Wilkins pertaining to the issue of Mr. Henretta's intoxication consisted of Agent Wilkins's recitation of Mr. Henretta's sworn confession: "We were drinking and stuff at some bar down the corner from the Salvation Army Store. We hung around about two hours or so and went back by the store and hung around till she closed at 4:30 or 5:00 PM." This statement merely constituted proof that Mr. Henretta was drinking on the afternoon of the crime, not that he was intoxicated or that he lacked the capacity to form the mental state required to commit first degree murder.

Furthermore, the closing argument of Assistant District Attorney Donaghy also did not require the trial court to give an instruction on intoxication. Remarks made by a prosecutor during closing argument do not constitute proof. Woods, 806 S.W.2d at 211. Therefore, her statements are insufficient to show that the trial court was required to give an instruction. Finally, Drs. Walker and Bernet did not testify until the sentencing phase of trial. Accordingly, their testimony was not before the trial court when it charged the jury on guilt/innocence. Mr. Henretta has failed to show that the trial court breached a clear and unequivocal rule of law when it failed to provide a jury instruction on intoxication, and thus he failed to show plain error.

Delay in Filing Notice of Intent to Seek Death Penalty

Mr. Henretta argues that the delay between his confession and the filing of the notice to seek the death penalty resulted in a violation of the heightened standard of due process required in a capital case. He asserts that between the time of his confession and the filing of the death penalty notice, his brother Terrance, who purportedly could have provided mitigation testimony, died. Mr. Henretta contends that the trial court erred in failing to dismiss the death penalty notice based upon this delay and, therefore, that reversal of his sentence is warranted.

Mr. Henretta incorrectly states that Terrance's death occurred in the interim between the confession and indictment and the death penalty notice. Terrance died on October 27, 1998, at least fourteen months after the indictment and death penalty notice were filed and over a year after the public defender's office was appointed as Mr. Henretta's counsel by order of October 6, 1997.

Mr. Henretta confessed in writing to the robbery, rape, and murder of Ms. Crabtree on February 11, 1994. In April of 1997, the FBI issued its report concluding that DNA from the crime scene matched DNA extracted from the samples obtained from Mr. Henretta at Leavenworth. On August 20, 1997, Mr. Henretta was indicted and, on the same date, the State gave notice of its intent to seek the death penalty. The defendant's trial began on April 1, 2002.

Tennessee Rule of Criminal Procedure 12.3(b), which became effective August 22, 1984, requires that notice of intent to seek the death penalty be filed not less than thirty days before trial:

Where a capital offense is charged in the indictment or presentment and the district attorney intends to ask for the death penalty, written notice thereof shall be filed not less than thirty (30) days prior to trial. If the notice is filed later than this time, the trial judge shall grant the defendant, upon motion, a reasonable continuance of the trial. The notice shall specify that the State intends to seek the death penalty and the notice shall specify those aggravating circumstances the State intends to rely upon at a sentence hearing. Specification may be complied with by a reference to the citation of the circumstance.

Tenn. R.Crim. P. 12.3 (1997) (emphasis added). The State certainly complied with the time limitation under this Rule. The State was required to file the notice of its intent to seek the death penalty at least thirty days before trial and, in fact, filed such notice almost five years prior to trial. Because the State fully complied with the Rule, Mr. Henretta's motion to dismiss the notice of intent to seek the death penalty based upon alleged delay in its filing was properly denied by the trial court.

Propriety of Mr. Henretta's Transfer From Leavenworth

The next questions presented for our review pertain to the means by which Mr. Henretta was transferred from Leavenworth to the Bradley County jail for arraignment in 1997.

By letter dated August 26, 1997, Assistant Attorney General Sandra Donaghy advised the Records Office at Leavenworth that indictments were pending against Mr. Henretta in Bradley County and that "temporary custody is needed for service of process and disposition of the charges pending against him." The letter further states that this temporary custody is being sought "through Writ of Habeas Corpus Ad Prosequendum." The letter requests that Bradley County be allowed to assume custody of Mr. Henretta on October 3, 1997. This letter was accompanied by a document entitled " WRIT OF HABEAS CORPUS AD PROSEQUENDUM" entered by the trial court on August 28, 1997, and addressed to Mr. Henretta; Bradley County Sheriff Dan Gilley; and the Records Office at Leavenworth. The document recites that the trial court has been advised that Leavenworth and the Attorney General's Office "have agreed to honor this Writ of Habeas [C]orpus Ad Prosequendum" and that arrangements have been made between [Leavenworth] and the Bradley County Sheriffs Department for the latter to take custody of Mr. Henretta. The document orders the Bradley County Sheriffs Department to take temporary custody of Mr. Henretta at Leavenworth and, thereafter, to bring him before the trial court for purposes of service of process and disposition of pending charges. The letter was also accompanied by an August 28, 1997, order directing the trial court clerk to issue the "writ of habeas corpus prosequendum" to Sheriff Gilley to receive Mr. Henretta into custody and bring him before the trial court. The record shows that in accordance with these documents, Leavenworth temporarily relinquished custody of Mr. Henretta to Bradley County officials on or about October 3, 1997; that he was incarcerated in the Bradley County jail for one month, during which time he was arraigned on the charges in this case; and that he was transferred back to Leavenworth on or about November 5, 1997.

Mr. Henretta contends that the letter from Assistant Attorney General Donaghy, the document designated to be a writ of habeas corpus ad prosequendum, and the associated order addressed to the trial court clerk collectively constituted a detainer. Consequently, Mr. Henretta argues, the transfer of custody to Tennessee authorities was subject to the Interstate Compact on Detainers ("the Compact"), codified at Tennessee Code Annotated sections 40-31-101 to -108 (2006). The Compact is an agreement among the states, the District of Columbia, Puerto Rico, the Virgin Islands, and the United States, see Carchman v. Nash, 473 U.S. 716, 719, 105 S.Ct. 3401, 87 L.Ed.2d 516 (1985), which, through "cooperative procedures," seeks "to encourage the expeditious and orderly disposition of . . . charges [outstanding against a prisoner] and determination of the proper status of any and all detainers based on untried indictments, informations or complaints." Tenn. Code Ann. § 40-31-101, art. I. The so-called "anti-shuttling" provision of the Compact provides as follows:

If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner's being returned to the original place of imprisonment pursuant to article V(e) hereof, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.

Id. § 40-31-101, art. IV(e). Mr. Henretta argues that the charges against him should have been dismissed pursuant to this provision because he was returned to Leaven-worth without having been tried. The State contends, in accordance with the ruling of the Court of Criminal Appeals, that Mr. Henretta was transferred pursuant to a writ of habeas corpus ad prosequendum not subject to the Compact.

In support of his contention that he was transferred from Leavenworth by detainer, Mr. Henretta cites State v. Moore, 774 S.W.2d 590 (Tenn. 1989). In that case, the defendant pled guilty to multiple counts of a presentment returned against her in Tennessee, charging her with various offenses, including forgery and passing forged checks. She reserved the question of whether the charges should be dismissed upon the ground that the State had violated Article III of the Compact, which provides in pertinent part las follows:

Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, the person shall be brought to trial within one hundred eighty (180) days after having been caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of the person's imprisonment and request for a final disposition to be made of the indictment, information or complaint. . . .

Tenn. Code Ann. § 40-31-101, art. III(a). A warrant for the arrest of the defendant was issued by Tennessee officials in October of 1982; however, it was never served and no action was taken until May 1985 when Tennessee officials learned that she was incarcerated in Florida. Tennessee officials then sent Florida prison officials a certified copy of the warrant and a cover letter requesting that the warrant be placed as a detainer against her. Before receipt of this request, Florida officials had received similar requests from Indiana and other states. Florida officials notified the defendant of the pending Tennessee charges, and, on August 21, 1985, the defendant executed documentation requesting a final disposition of the Tennessee charges. However, this and other detainer forms were not sent to Tennessee until May 23, 1986, after the defendant was tried and convicted of charges also pending in Indiana. Consequently, Tennessee officials did not learn of her request for final disposition of the Tennessee charges until receipt of the detainer forms from Florida on June 2, 1986. On June 26, 1986, the defendant permanently left the custody of Florida and was transferred to Indiana to begin serving her sentence there. After her transfer to Indiana, Tennessee obtained custody of the defendant under Article IV of the Compact, and the charges against her in Tennessee were properly disposed of in accord with Article IV of the Compact. Upon review, we found no merit in the defendant's argument that the 180-day period for disposition of the Tennessee charges following her request commenced on August 21, 1985, the day she signed the request, and that by the time Tennessee officials were notified of her execution of this request, the 180 day period had already expired. Instead, we determined that it is the prisoner's responsibility and burden to give notice of a request for disposition of charges under Article III, and "[t]he receiving state cannot be charged with the burden of requesting or compelling temporary custody from the sending state until it has received notice that the prisoner has made his or her request." Moore, 774 S.W.2d at 594.

In arriving at our decision in Moore, we discussed whether an unserved arrest warrant, as was implemented in that case, would trigger the provisions of the Compact. Acknowledging that the Compact itself contains no definition of "detainer," we observed that "detainer" has been defined by the federal courts on various occasions. Id. at 596-97. In United States v. Mauro, 436 U.S. 340, 359, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978), the United States Supreme Court observed that House and Senate reports related to the Compact "explain that [a] detainer is a notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction." (internal quotation omitted) (alteration in original). In Carchman v. Nash, "detainer" was defined as "a request filed by a criminal justice agency with the institution in which a prisoner is incarcerated, asking the institution either to hold the prisoner for the agency or to notify the agency when release of the prisoner is imminent." 473 U.S. at 719, 105 S.Ct. 3401. And in United States v. Dixon, 592 F.2d 329, 332 n. 3 (6th Cir. 1979), the Sixth Circuit presented the following definition of "detainer":

A detainer is simply a notice filed with the institution in which a prisoner is serving a sentence, advising that the prisoner is wanted to face pending criminal charges elsewhere, and requesting the custodian to notify the filing jurisdiction prior to releasing the prisoner. Filing a detainer is an informal process that generally can be done by any person who has authority to take a prisoner into custody. Furthermore, a detainer remains lodged against a prisoner without any action being taken on it.

We also noted in Moore that throughout the Compact, there is reference to "untried indictments, informations or complaints and to detainers based thereon," 774 S.W.2d at 595, and we stated that "the better view and the more consistent interpretation of the Compact is that an untried `indictment, information or complaint' is a charging instrument upon which the requesting state may proceed to trial, and not merely a warrant of arrest," id. at 597. However, in consideration of "the general practice of prosecuting officials in this and other states," id., we concluded that an unserved arrest warrant will suffice as a detainer, triggering provisions of the Compact. Alluding to our analysis in Moore and our conclusion that the warrant in that case constituted a detainer, Mr. Henretta asserts that in the instant matter, "[t]he Order and Writ together with the letter were simply a notice filed with the Federal Penal Institution in Kansas advising that the prisoner was wanted in Tennessee" and that, like the warrant in Moore, these constituted a detainer. We do not agree and find that the procedure that was utilized to transfer the defendant in Moore is readily distinguishable from that employed in the present matter.

In Mauro, the Supreme Court held that a writ of habeas corpus ad prosequendum is not a detainer for purposes of the Compact, 436 U.S. at 361, 98 S.Ct. 1834, and Tennessee courts agree. See State v. Brown, 53 S.W.3d 264, 285 (Tenn.Crim.App. 2000); Metheny v. State, 589 S.W.2d 943, 945 (Tenn.Crim.App. 1979). The Mauro Court distinguished a writ of habeas corpus ad prosequendum from a detainer as follows:

Unlike a writ of habeas corpus ad prosequendum, . . ., a detainer may be lodged against a prisoner on the initiative of a prosecutor or law enforcement officer. Rather than requiring the immediate presence of the prisoner, a detainer merely puts the officials of the institution in which the prisoner is incarcerated on notice that the prisoner is wanted in another jurisdiction for trial upon his release from prison.

436 U.S. at 358, 98 S.Ct. 1834 (footnote omitted). The Court explained that the Compact was implemented to expedite disposal of detainers and thereby address problems arising from the fact that unresolved detainers create psychological difficulties for the prisoner and administrative obstacles for prison administrators, as well as sentencing dilemmas for the courts. It explained:

[P]rison administrators were "thwarted in [their] effort[s] toward rehabilitation [because t]he inmate who has a detainer against him is filled with anxiety and apprehension and frequently does not respond to a training program." Furthermore, the prisoner was often deprived of the ability to take advantage of many of the prison's programs aimed at rehabilitation, merely because there was a detainer lodged against him. . . .

[T]he existence of detainers [also] presented problems in sentencing; when detainers had previously been filed against the defendant, the sentencing judge would hesitate to give as long a sentence as he thought might otherwise be indicated, there being a possibility that the defendant would be required to serve subsequent sentences. . . .

The adverse effects of detainers that prompted the drafting and enactment of the Agreement are thus for the most part the consequence of the lengthy duration of detainers. . . . For these reasons the stated purpose of the Agreement is "to encourage the expeditious and orderly disposition of [outstanding] charges and determination of the proper status of any and all detainers based on untried indictments, informations, or complaints."

Id. at 359-60, 98 S.Ct. 1834. (citations omitted). The Court noted that because a writ of habeas corpus is executed immediately, the problems associated with a detainer — which, but for the requirements of the Compact, might linger unresolved for long periods of time — do not arise. In Moore, Tennessee officials specifically requested that the warrant mailed to prison officials in Florida be treated as a detainer against the defendant. See 774 S.W.2d at 592. By contrast, Ms. Donaghy's letter to prison officials at Leavenworth specifically stated that temporary custody of Mr. Henretta was being sought through a writ of habeas corpus ad prosequendum for purposes of service of process and disposition in the case against him and set forth a date and time, October 6, 1997 at 9:00 a.m., that he would be taken before the Bradley County trial court. Her letter was accompanied by a document entered by the trial court that is specifically entitled " WRIT OF HABEAS CORPUS AD PROSE-QUENDUM," the contents of which are consistent with its title. The second document that accompanied the letter was an order directing the clerk of the court "to issue a writ of habeas corpus ad prosequendum" to the Bradley County sheriff. It is clear from the letter and the two documents that accompanied it that the procedure utilized to obtain temporary custody of Mr. Henretta sought to bring about his immediate transfer and, therefore, the procedure employed was not fraught with the lengthy indeterminacy that the Compact is intended to prevent. By its nature, the writ of habeas corpus ad prosequendum was to be executed expeditiously. There is nothing in the procedure implemented in the instant matter, either in the format of the documents used or in their effect, that warrants their being construed as a detainer subject to the Compact. Accordingly, Mr. Henretta's argument is without merit.

It appears that Mr. Henretta argues in the alternative that if he was transferred from Leavenworth pursuant to a writ of habeas corpus ad prosequendum, the writ was void and without effect because 1) the trial court did not have constitutional or statutory authority to issue a writ against an individual in Kansas; 2) under Tennessee Code Annotated section 29-21-102 (1980), Tennessee courts do not have jurisdiction over federal prisoners; 3) the writ and order were not granted pursuant to a notarized petition and affidavit pursuant to Tennessee Code Annotated section 29-21-107 (1980); and 4) Mr. Henretta was never served with the writ pursuant to Tennessee Code Annotated section 29-21-112 (1980).

First, Mr. Henretta contends that Tennessee courts do not have authority to issue a writ of habeas corpus ad prosequendum against an individual incarcerated in a federal prison in Kansas. We do not agree. As the Court of Criminal Appeals correctly stated, "[t]he very purpose of the common law writ of habeas corpus ad prosequendum requires that it be issued against the prisoner by a court located in a different jurisdiction." Henretta, 2009 WL 1025828, at *8. Long ago, in Ponzi v. Fessenden, 258 U.S. 254, 42 S.Ct. 309, 66 L.Ed. 607 (1922), the United States Supreme Court recognized that a state has the right to obtain temporary custody of a federal prisoner by writ of habeas corpus ad prosequendum as a matter of "reciprocal comity and mutual assistance to promote due and orderly procedure." Id. at 259, 42 S.Ct. 309; see also Carbo v. United States, 364 U.S. 611, 621, 81 S.Ct. 338, 5 L.Ed.2d 329 (1961) (noting that the writ of habeas corpus ad prosequendum is recognized as a matter of "comity . . . necessary between sovereignties in the administration of criminal justice in our federal-state system . . . affording . . . respect and courtesy to the laws of the respective jurisdictions"); Robinson v. Owens, C.A. 4:07-3118-H, 2008 WL 783782, at *8 (D.S.C. Mar. 20, 2008) ("Without relinquishing its priority, a sovereign may loan a defendant in its custody to another sovereign for criminal proceedings in the receiving jurisdiction by way of a writ of habeas corpus ad prosequendum.") (citing Causey v. Civiletti, 621 F.2d 691, 693 (5th Cir. 1980)). Furthermore, federal regulations specifically authorize federal prisons to entertain the transfer of a federal prisoner to state officials as follows:

The Bureau of Prisons will consider a request made on behalf of a state or local court that an inmate be transferred to the physical custody of state or local agents pursuant to state writ of habeas corpus ad prosequendum or ad testificandum. The Warden at the institution in which the inmate is confined is authorized to approve this transfer in accordance with the provisions of this rule.

28 C.F.R. § 527.30 (1997). The Ponzi Court additionally noted that the voluntary transfer of custody by one sovereign to another provides a defendant with no ground for objection:

One accused of crime has a right to a full and fair trial according to the law of the government whose sovereignty he is alleged to have offended, but he has no more than that. He should not be permitted to use the machinery of one sovereignty to obstruct his trial in the courts of the other, unless the necessary operation of such machinery prevents his having a fair trial. He may not complain if one sovereignty waives its strict right to exclusive custody of him for vindication of its laws in order that the other may also subject him to conviction of crime against it.

. . . .

But it is argued that when the prisoner is produced in the [state] superior court, he is still in the custody and jurisdiction of the United States, and that the state court cannot try one not within its jurisdiction. This is a refinement which if entertained would merely obstruct justice. The prisoner when produced in the superior court in compliance with its writ is personally present. He has full opportunity to make his defense. . . . The trial court is given all the jurisdiction needed to try and hear him by the consent of the United States. . . . This arrangement of comity between the two governments works in no way to the prejudice of the prisoner or of either sovereignty.

258 U.S. at 265-66, 42 S.Ct. 309.

Mr. Henretta also argues that the writ of habeas corpus ad prosequendum failed to comply with various sections of Chapter 21 of Title 29 of the Tennessee Code Annotated, which, provides that "[a]ny person imprisoned or restrained of liberty, under any pretense whatsoever, except in cases specified in § 29-21-102, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment and restraint." Tenn. Code Ann. § 29-21-101(a). First, Mr. Henretta contends that Tennessee courts do not have habeas corpus jurisdiction over federal prisoners under Tennessee Code Annotated section 29-21-102, which states as follows:

Persons committed or detained by virtue of process issued by a court of the United States, or a judge thereof, in cases where such judges or courts have exclusive jurisdiction . . . by the commencement of suits in such courts, are not entitled to the benefits of this writ.

Next, Mr. Henretta contends that the writ was not granted pursuant to a notarized petition and affidavit, as required by Tennessee Code Annotated section 29-21-107, which provides in subsection (a) that "[a]pplication for the writ shall be made by petition, signed either by the party for whose benefit it is intended, or some person on the petitioner's behalf, and verified by affidavit." Finally, Mr. Henretta contends that he was never served with a copy of the writ as required by Tennessee Code Annotated section 29-21-112, which at subsection (a) states that "[t]he proper mode of service is by leaving a copy of the original writ with the defendant." We believe Mr. Henretta misapprehends the nature of the writ of habeas corpus employed in this case and, therefore, the relevance of the cited statutes.

In Ex parte Bollman, 8 U.S. (4 Cranch) 75, 95, 2 L.Ed. 554 (1807), Chief Justice John Marshall clarified that although "writ of habeas corpus" is a "generic term [] and includes every species of that writ[,] . . . when used singly — when we say the writ of habeas corpus, without addition, we most generally mean that great writ [the writ of habeas corpus ad subjiciendum]." The writ of habeas corpus ad subjiciendum is the writ "traditionally used to test restraint of liberty." Carbo, 364 U.S. at 615, 81 S.Ct. 338. As quoted above, Tennessee Code Annotated section 29-21-101 allows the prosecution of "a writ of habeas corpus[] to inquire into the cause of . . . imprisonment and restraint," and this Court has recognized that that section and the rest of Chapter 21 constitute statutory regulation of the "great writ" of habeas corpus ad subjiciendum. May v. Carlton, 245 S.W.3d 340, 344 (Tenn. 2008). Chapter 21 does not govern a writ of habeas corpus ad prosequendum and, thus, Mr. Henretta's reliance upon sections 29-21-102, 29-21-107, and 29-21-112 is misplaced.

Search Warrant

Next, Mr. Henretta argues that the search at Leavenworth on February 11, 1994 — at which time he gave blood, hair, and saliva samples and after which he confessed to robbing, raping, and murdering Ms. Crabtree — was defective because he was not given a copy of the search warrant at the time of the search and because the warrant that was eventually served upon him was incomplete.

As noted, in early 1994, Lieutenant Chastain learned from police in Philadelphia, Pennsylvania, that Michael Goodhart had written a letter to a federal judge indicating that Mr. Goodhart may have been involved in the murder of Ms. Crabtree. Information subsequently obtained from Mr. Goodhart by Lieutenant Chastain confirmed Mr. Goodhart's involvement and led Lieutenant Chastain to conclude that Mr. Henretta may also have been involved. Thereafter, Lieutenant Chastain and Agent Wilkins traveled to Texas to speak further with Mr. Goodhart and then continued on to Kansas, where on February 10, 1994, a Leavenworth County judge issued a search warrant to obtain samples of Mr. Henretta's blood, saliva, and hair. In their affidavit filed in support of the warrant application, Agent Wilkins and Lieutenant Chastain attested as follows:

On January 11, 1994, Lieutenant Danny Chastain of the Cleveland Tennessee Police Department observed an NCIC teletype from Detective Ballentine of the Philadelphia, Pennsylvania Police Department, directed to any Tennessee Police Agency having an unsolved homicide involving a female employee of a store that was murdered by a cut to the throat sometime in November, 1988, and requesting they respond in reference to a possible lead. Subsequent investigation by Lieutenant Chastain revealed the attached copy of a letter sent by Michael S. Goodhart to Federal Judge Joseph L. McGlynn Jr., in Philadelphia, Pennsylvania, December 20, 1993. On January 20, 1994, Lieutenant Chastain contacted the aforesaid inmate Michael Goodhart by telephone at the Federal Correctional Institute in Bastrop, Texas. Goodhart advised Lieutenant Chastain that the murder he witnessed and referred to in the aforesaid letter occurred in a Thrift Store where used clothing is sold, and that the murder occurred approximately between 5:00 p.m. and 6:00 p.m. in the evening after the store had closed. Goodhart also stated that the Thrift Store was located just a couple of blocks from the Courthouse in the down-town section of the city. Goodhart further stated that he was present when the murder occurred and that he knew who had committed the murder and the location of this man. Goodhart advised that the man is in the penitentiary. He did not state the [n]a[m]e of this individual nor his location to Lieutenant Chastain. The Salvation Army Thrift Store at the time of the Crabtree murder was located approximately two blocks from the Courthouse Square in Cleveland, Tennessee.

Further investigation by Lieutenant Chastain and Special Agent Wilkins has revealed that Michael Goodhart was arrested along with John Henretta, white male, DOB: 2-12-43, FBI # 767995D, on December 3, 1988, outside of Little Rock, Arkansas. Goodhart and Henretta were wanted by the FBI for a Kidnapping that occurred on or about the day after Thanksgiving, in 1988, in Pennsylvania. The weapon used in the kidnapping was a knife. John Henretta has committed and been convicted of rapes and one homicide similar to the Francis Rose Crabtree case in the past. He is a suspect in another homicide similar to the Rose Crabtree murder.

The affiants have been advised by Chief Charles Abraham of the New Castle, Pennsylvania Police Department that on November 14, 1988, Henretta and Goodhart raped and robbed a waitress in New Castle, Pennsylvania as they were fleeing a halfway house. The weapon used in this incident was a knife. The victim was able to escape. Henretta and Goodhart fled the area. On or about the day after Thanksgiving, 1988, in Philadelphia, Pennsylvania, Henretta and Goodhart kidnapped a lady at knife-point and stole her car. This victim was released a day or so later in or near Richmond, VA. On December 3, 1988, Henretta and Goodhart were arrested near Little Rock, Arkansas. Cleveland, Tennessee is located approximately 30 miles north of Chattanooga, Tennessee along Interstate 75. The Crabtree murder occurred at a time when Henretta and Goodhart were fleeing from crimes committed in Pennsylvania and Virginia and according to Goodharts' [sic] letter traveling through Tennessee. Cleveland, Tennessee is located in routes between Virginia and Arkansas.

Blood, head hair, pubic hair and saliva samples are needed from John Henretta for comparison with evidence recovered from the crime scene. We believe an analysis of these specimens, when compared with seminal stains and hair found on the victim, Francis Rose Crabtree, the victim's clothing or at the crime scene will show similar blood, DNA or other serological characteristics, and as such will constitute evidence that John Henretta committed the offenses of Murder, Aggravated Rape and Especially Aggravated Robbery.

On February 11, 1994, Agent Wilkins and Lieutenant Chastain met with Mr. Henretta at Leavenworth. Agent Wilkins was in possession of a copy of the search warrant, advised Mr. Henretta that they were there to investigate a murder that had occurred in Tennessee in 1988, and explained that the purpose of the search warrant was to collect blood, hair, and saliva samples from him. The samples were taken, and shortly thereafter, Mr. Henretta made his confession. He was not given a copy of the search warrant at the time of its execution, and the return shows that, instead, a copy of the warrant was left with "Bill Thomas, SIS." Mr. Henretta testified that SIS officers are "like a police within an institution. They police the police and the convicts, like the internal affairs in a police department." In any event, it is not disputed that Bill Thomas was an officer employed by the prison, and the copy of the warrant was received by Mr. Henretta through the prison's mail system about one week after the search. The copy received by Mr. Henretta consisted of one page without any attachments. Mr. Henretta contends that the search was defective and the evidence obtained at the time of the search should be suppressed because he was not served with a copy of the warrant at the time of the search and the copy of the warrant with which he was provided did not include a copy of the Goodhart letter referenced in the affidavit.

Although it is not stated in the record what SIS stands for, our independent research indicates that it is the abbreviation for "special investigative supervisor."

The standard governing our review of a suppression issue is well established. We are bound by factual findings made by the trial court at the conclusion of the suppression hearing unless the evidence preponderates to the contrary. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Questions of witness credibility and the weight and value of the proof as well as the resolution of conflicts in proof are all matters entrusted to the trial judge as the trier of fact, and "[t]he party prevailing in the trial court is entitled to the strongest legitimate view of the evidence adduced at the suppression hearing as well as all reasonable and legitimate inferences that may be drawn from that evidence." Id. We review the trial court's application of the law to the facts de novo without a presumption of correctness. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001) (citing State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999); State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997)).

In support of his argument that he was required to be given a copy of the warrant at the time of its execution, Mr. Henretta cites Rule 41(c) of the Tennessee Rules of Criminal Procedure, which at the time of the search, provided that "the failure of the serving officer where possible to leave a copy with the person or persons on whom the search warrant is being served, shall make any search conducted under said search warrant an illegal search and any seizure thereunder an illegal seizure." Tenn. R.Crim. P. 41(c) (1994). The trial court ruled that service was satisfactory under the "where possible" provision of the rule, finding that the "the officers did as instructed by prison officials and left a copy for the defendant because they believed that they could not personally hand it to [Mr. Henretta]." There is no proof in the record showing that prison rules precluded the executing officers from personally handing Mr. Henretta a copy of the warrant, and the State presented no testimony otherwise as to why the warrant was not personally served upon the defendant when executed. Mr. Henretta attested that there was no rule prohibiting officers from handing him a copy of the warrant. Based upon State v. Roach, No. CCA. 4, 1989 WL 22815 (Tenn.Crim.App. Mar. 15, 1989), we conclude that even if there was no prison rule forbidding such personal service at the time of the search, the method of service utilized was adequate to satisfy the requirements of Rule 41(c). In Roach, the defendant was arrested and taken to jail while police officers were searching his premises pursuant to a search warrant. The defendant was not served with a copy of the warrant at the time of the search. However, upon completion of the search, an officer took a copy of the warrant to the jail where the defendant was incarcerated and placed the copy in the defendant's property bag. Later, the warrant was transmitted to the defendant's attorney by the jailor in charge of the property bag. The intermediate court held that delivering the warrant to the defendant in this way satisfied the requirements of Rule 41(c). Id. at *2. We find no meaningful distinction between the method of service employed in Roach and the method employed in the matter before us. In each instance, the defendant was incarcerated, and the warrant was served upon him indirectly via prison officials, although there was no indication that circumstances precluded personal service.

Mr. Henretta also contends that the copy of the search warrant served upon him was defective because it did not include as an attachment the letter from Mr. Goodhart that was referred to in the affidavit supporting the application for issuance of the warrant. Mr. Henretta presents no authority supporting this argument. Based upon our decision in State v. Henning, 975 S.W.2d 290 (Tenn. 1998), we find the argument to be without merit. In Henning, the defendant argued for the suppression of evidence seized during the search of his home upon the ground that the affidavit underlying the search warrant was neither attached to nor filed with the warrant. We ruled that the failure to attach the affidavit to the search warrant was "inconsequential" and noted that "there is no statute or rule in Tennessee which requires an affidavit upon which a search warrant is issued to be attached or otherwise kept with the warrant." Id. at 296 (citing State v. Smith, 836 S.W.2d 137, 141 (Tenn.Crim.App. 1992)). As the Court of Criminal Appeals correctly reasoned in the instant matter, "[g]iven that the failure to attach or file an underlying affidavit does not affect the validity of the warrant, we cannot say that the failure to attach a letter included in support of the affidavit would render the warrant in this case invalid." Henretta, 2009 WL 1025828, at *14.

Kidnapping as a Separate Offense

Next, Mr. Henretta argues that the proof presented was insufficient to warrant his separate conviction for kidnapping, asserting that any movement or confinement of Ms. Crabtree was merely incidental to the accompanying felonies of robbery and murder.

In support of this argument, Mr. Henretta cites State v. Anthony, 817 S.W.2d 299 (Tenn. 1991), wherein we heard consolidated appeals of two cases. The defendant in each case was convicted of both armed robbery and aggravated kidnapping. In one of the cases, the defendant and his accomplice robbed a restaurant at gunpoint, and, during the approximately five minutes that they were at the restaurant, the defendant forced one restaurant employee to remain in an office while his accomplice held three other employees outside at the back of the restaurant. The defendant in the other case robbed an insurance agency at gunpoint. In the second case, the robbery took approximately four minutes during which time the defendant forced the owner and an employee into a bathroom. At the time these offenses were committed, the applicable version of the aggravated kidnapping statute was the same as in the present matter, requiring conviction of "[a]ny person who unlawfully seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away another with the felonious intent to: (1) [c]ause the other to be confined secretly against his will; (2) [d]etain the other against his will; or (3) [s]end the other out of the state against his will." Tenn. Code Ann. § 39-2-301(a) (1982). We acknowledged that a literal construction of this language could overrun other crimes such as robbery and rape, both of which frequently involve brief confinement. Seeking to preserve rights guaranteed a defendant under Article I, section 8 of this state's constitution, we determined that the kidnapping convictions were improper in both cases under review, holding that the proper test was "whether the confinement, movement, or detention is essentially incidental to the accompanying felony and is not, therefore, sufficient to support a separate conviction for kidnapping, or whether it is significant enough, in and of itself, to warrant independent prosecution and is, therefore, sufficient to support such a conviction." Anthony, 817 S.W.2d at 306. Later, however, in State v. Dixon, 957 S.W.2d 532 (Tenn. 1997), we replaced this so-called "essentially incidental" test with a two-part test. Under this two-part test, the evidence will be sufficient to support a separate conviction for aggravated kidnapping if 1) the movement or confinement of the victim exceeded that necessary for commission of the accompanying crime and 2) "the additional movement or confinement: [a)] prevented the victim from summoning help; [b)] lessened the defendant's risk of detection; or [c)] created a significant danger or increased the victim's risk of harm." Id., at 535. This two-part test provides the structure for applying the due process principles announced in Anthony. State v. Richardson, 251 S.W.3d 438, 443 (Tenn. 2008); State v. Fuller, 172 S.W.3d 533, 537 (Tenn. 2005). The kidnapping statute applicable in the instant matter was superceded under 1989 statutory revisions. However, as we noted in Dixon, "the due process principles of Anthony and the test designed to implement them are equally applicable to kidnapping convictions under the law in effect both before and after the effective date of the 1989 Criminal Code Revision." 957 S.W.2d at 533 n. 1.

Although not quoted in the opinion, the statute set forth additional requirements for aggravating kidnapping.

Article I, section 8 of the Tennessee Constitution provides "[t]hat no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the law of the land."

Pursuant to the 1989 revision and subsequent amendment, the pertinent statute now defines kidnapping as "false imprisonment . . . under circumstances exposing the other person to substantial risk of bodily injury." Tenn. Code Ann. § 39-13-303(a) (Supp. 2009). Tennessee Code Annotated § 39-13-302(a) (2006) further provides that "[a] person commits the offense of false imprisonment who knowingly removes or confines another unlawfully so as to interfere substantially with the other's liberty."

Both parts of the Dixon test are met under the circumstances of the instant case. Ms. Crabtree was raped and robbed in the middle portion of the store and was then moved to the storeroom located in the rear portion of the store. In his confession, Mr. Henretta states that "we both grabbed her at the store room entrance. We told her to lay down and Goodhart had sex with her first and I went and got her purse. . . . After I got her purse I went back and had sex with her." Investigating officers found one of Ms. Crabtree's shoes on the floor in this middle portion of the store, where she was raped and robbed. Her other shoe and her body were found at the rear portion of the store. It is clear from, Mr. Henretta's confession that the rape and robbery had already occurred when Ms. Crabtree was moved to the rear of the store and, therefore, moving her to that location obviously was not necessary to accomplish those offenses. Second, movement of Ms. Crabtree to the room at the rear of the store placed her farther from the front door and thereby diminished her access to any potential rescuer and lessened her assailants' risk of detection.

Mr. Henretta also asserts that Ms. Crabtree's body was moved to the rear of the store after she was killed, apparently contending that a conviction of kidnapping does not lie for transporting a dead body. Mr. Henretta references no evidence to support his assertion that Ms. Crabtree was already dead when she was taken to the rear of the store and the evidence presented indicates otherwise. Ms. Crabtree died from loss of blood as a result of the cuts to her neck. No evidence of blood was found in the middle portion of the store at the storeroom entrance where Ms. Crabtree was initially accosted, raped and robbed. However, a large pool of blood was found near Ms. Crabtree's body in the rear portion of the store, showing that that is where Mr. Henretta cut her throat and where she bled to death.

Constitutionality of the Death Penalty

Next, Mr. Henretta argues that the death penalty constitutes "cruel and unusual punishment" and, as such, it is specifically prohibited under the Eighth Amendment to the United States Constitution and under article I, section 16 of the Tennessee Constitution.

Both the Eighth Amendment of the United States Constitution and article I, section 16 of the Tennessee Constitution provide that "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

The United States Supreme Court has pronounced that capital punishment is constitutional and does not violate the Eighth Amendment. Baze v. Rees, 553 U.S. 35, 47, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008); Gregg v. Georgia, 428 U.S. 153, 177, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). Likewise, the Supreme Court of this state has concluded that capital punishment does not violate article I, section 16 of the Tennessee Constitution. Re-examining the issue in State v. Black, 815 S.W.2d 166, 188 (Tenn. 1991), we noted that article I, section 15 of the Tennessee Constitution states in pertinent part "[t]hat all prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident, or the presumption great." We observed that the emphasized language has been included in each of this state's three constitutions, evidencing the framers' acceptance of capital punishment. Id. at 188. We further stated as follows:

the common law rule mandated death for all convicted murderers; and, except for one brief period from 1915 to 1917, the death penalty has been the statutorily sanctioned punishment for the offense of first degree murder in Tennessee [S]ince the founding of this state both constitutions and legislative enactments have contemplated the imposition of the death penalty; and nothing in the constitutional or legislative history of this State mandates that death is invalid per se as cruel and unusual punishment under Article I, § 16.

Id. (footnote omitted); see also State v. Bane, 853 S.W.2d 483, 489-90 (Tenn. 1993). Based upon this federal and state authority, we find Mr. Henretta's constitutional challenge to the death penalty to be without merit.

Mandatory Review

In all cases where the defendant has been sentenced to death, the statutory law of this state requires us to determine whether:

(A) The sentence of death was imposed in any arbitrary fashion;

(B) The evidence supports the jury's finding of statutory aggravating circumstance or circumstances;

(C) The evidence supports the jury's finding that the aggravating circumstance or circumstances outweigh any mitigating circumstances; and

(D) The sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the nature of the crime and the defendant.

Tenn. Code Ann. § 39-13-206(c)(1) (2006).

Mr. Henretta asserts that none of these statutory criteria were properly satisfied; however, he fails to articulate a specific argument supporting this assertion. Rather, he relies solely on what he alleges to be a "report in the Tennessean," which he attributes to "John Seigenthaler." However, a newspaper article is not admissible evidence under the hearsay rule. See State v. Martin, No. 02C01-9512-CC-00389, 1997 WL 471158, at *6 (Tenn.Crim.App. Aug. 18, 1997) ("[T]he content of newspaper articles is hearsay that does not fall within an exception to the hearsay rule."). While Rule 201 of the Tennessee Rules of Evidence allows a court to take judicial notice of certain adjudicative facts, it does not allow a court to take judicial notice of hearsay statements contained in a newspaper article.

Pursuant to Tennessee Rule of Evidence 201, a court may take judicial notice of an adjudicative fact that is "not subject to reasonable dispute, in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose, accuracy cannot reasonably be questioned." Tenn. R. Evid. 201(b).

Next, we must consider whether the evidence supports the jury's finding beyond a reasonable doubt of aggravating circumstances and that these aggravating circumstances outweigh any mitigating circumstances. Pursuant to Tennessee Code Annotated section 39-2-203(g) (1982), the jury was prohibited from imposing the death penalty except upon a unanimous finding that the State had proven at least one of several statutory aggravating circumstances. In this case, the jury concluded that the State successfully proved four statutory aggravating circumstances: (1) that "[t]he defendant was previously convicted of one or more felonies, other than the present charge, whose statutory elements involve the use of violence to the person," id. § 39-13-204(i)(2); (2) that "[t]he murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind," id. § 39-2-203(i)(5); (3) that "[t]he murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another," id. § 39-2-203(i)(6); and (4) that "[t]he murder 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 committing or attempting to commit, any . . . rape, robbery . . . [or] kidnapping. . . .," id. § 39-2-203(i)(7). We must review the evidence in the light most favorable to the State and determine whether a rational trier of fact could have found beyond a reasonable doubt that the evidence established at least one of these aggravating circumstances and that such aggravating circumstance or circumstances outweigh any mitigating circumstances. State v. Riser, 284 S.W.3d 227, 272-73 (Tenn. 2009). Upon our careful and thorough review of the record, we find sufficient evidence to support the jury's finding as to each of these four aggravating circumstances.

"If the jury unanimously determines that at least one statutory aggravating circumstance or several statutory aggravating circumstances have been proved by the state beyond a reasonable doubt, and said circumstance or circumstances are not outweighed by any mitigating circumstances, the sentence shall be death." Tenn. Code Ann. § 39-2 203(g).

First, the State established beyond a reasonable doubt the aggravating circumstance that "[t]he defendant was previously convicted of one or more felonies, other than the present charge, which involve the use or threat of violence to the person," under section 39-2-203(i)(2). This factor was established upon presentation of undisputed proof that Mr. Henretta was previously convicted of rape in 1974, of kidnapping in 1989, and of rape and second degree murder in 1991.

Next, the State established beyond a reasonable doubt the aggravating factor that "the murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind," under section 39-2-203(i)(5). As we have recognized on prior occasions, this factor is "directed at `the conscienceless or pitiless crime which is unnecessarily torturous to the victim.' " State v. Dicks, 615 S.W.2d 126, 132 (Tenn. 1981) (citing Proffitt v. Florida, 428 U.S. 242, 255, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976)). This factor was established upon presentation of undisputed proof that, despite the fact that Ms. Crabtree was helpless, offered no resistance, and, after being raped twice, attempted to aid Mr. Henretta and Mr. Goodhart by warning them of their close proximity of the police station, she was stabbed three times and killed. Dr. Fenton Scruggs, the pathologist who examined Ms. Crabtree's body after the murder, testified that one of the wounds inflicted was so severe that it severed her jugular vein and carotid artery and exposed her spinal cord. Dr. Scruggs stated that, of the approximately twenty-five stab wounds to the neck that he had examined during the course of his career, he had "never seen one go back and actually cut the ligaments of the vertebral column and expose the spinal cord." He described it as "a wound of great force." In addition to the savagery with which Mr. Henretta stabbed Ms. Crabtree despite her failure to offer any resistence, Ms. Crabtree was ambushed while alone in the darkened store, and after being raped by two different men, was manhandled from one part of the store to another where she was murdered. It can be reasonably inferred from all of these factual circumstances that the murder in this case was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind.

The State established beyond a reasonable doubt the aggravating circumstance that "[t]he murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another," under section 39-2-203(i)(6). This aggravating factor was established upon presentation of undisputed proof, as stated by Mr. Henretta in his confession, that Mr. Henretta murdered Ms. Crabtree while he and Mr. Goodhart were on the run from Pennsylvania law enforcement officers and that she was murdered upon agreement of Mr. Goodhart after she informed the two that there was a police station "right out the back door" of the building in which she was accosted. This evidence gives rise to the inference that Ms. Crabtree was killed to ensure that Mr. Henretta and Mr. Goodhart would evade detection by law enforcement officers.

Finally, the State established beyond a reasonable doubt the aggravating circumstance that "[t]he murder 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 committing or attempting to commit, any . . . rape, robbery, . . . [or] kidnapping —," under section 39-2-203(0(7). This circumstance was established upon undisputed proof, as admitted by Mr. Henretta in his confession, that Mr. Goodhart and Mr. Henretta raped and robbed Ms. Crabtree shortly before killing her. In further regard to this aggravating circumstance, although Mr. Henretta argues that the evidence does not establish the offense of kidnapping, we do not agree and find that the evidence also established beyond a reasonable doubt that Ms. Crabtree was murdered after she was kidnaped by Mr. Henretta and Mr. Goodhart.

In mitigation of the four aggravating circumstances, Mr. Henretta presented evidence that he was abused and neglected during his childhood, that he has brain damage that impairs his ability to control aggressive urges, and that he has a below normal IQ of around 78 or 79. The evidence supports the jury's finding that the aggravating circumstances outweighed these mitigating circumstances beyond a reasonable doubt.

It is also our duty to determine whether the death sentence in this case is disproportionate to the penalty imposed in similar cases. Tenn. Code Ann. § 39-13-206(c)(1)(D). We have recognized the following as guiding principles pertinent to conducting a comparative proportionality review:

In conducting a comparative proportionality review, we begin with the presumption that the sentence of death is proportional with the crime of first degree murder. A sentence of death may be found disproportionate if the case being reviewed "is plainly lacking in circumstances consistent with those in similar cases in which the death penalty has previously been imposed." A sentence of death is not disproportionate merely because the circumstances of the offense are similar to those of another offense for which a defendant has received a life sentence. Our inquiry, therefore, does not require a finding that a sentence "less than death was never imposed in a case with similar characteristics." Our duty "is to assure that no aberrant death sentence is affirmed."

State v. Faulkner, 154 S.W.3d 48, 62 (Tenn. 2005) (quoting State v. Hall, 976 S.W.2d 121, 135 (Tenn. 1998)) (internal citations omitted).

In comparing the case under review with previous cases, we find it appropriate to consider the following circumstances of 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 condition, 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 upon non-decedent victims.

State v. Reid, 213 S.W.3d 792, 820 (Tenn. 2006) (quoting State v. Davis, 141 S.W.3d 600, 620 (Tenn. 2004)). As to the defendant, we ordinarily consider his or her "(1) prior criminal record, if any; (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. (quoting Davis, 141 S.W.3d at 620).

In this case, Mr. Henretta and his accomplice hid in the thrift store where Ms. Crabtree was working alone as a clerk and, after raping and robbing her, Mr. Henretta cut her throat and killed her without provocation or justification. Ms. Crabtree offered no resistance to the offenses committed against her and was obviously helpless in the face of her assailants. Mr. Henretta, a Caucasian male, was forty-five years of age at the time of the murder and has a prior criminal history of violent crimes, include convictions for rape and murder. Mr. Henretta has experienced an unstable childhood, is of relatively low intelligence, and exhibits a degree of brain damage and dysfunction as a result of which he has an abnormally low ability to inhibit aggressive or violent urges. After being approached by law enforcement officers who advised him that they were investigating the murder of Ms. Crabtree, Mr. Henretta was cooperative and confessed to the crime; however, he did not offer any information regarding his involvement in the murder during the more than five years between the time of the murder and the time of this meeting. Mr. Henretta has admitted that what he did was wrong and has apologized to the family of the victim. We conclude that the sentence of death imposed in this case is neither excessive nor disproportionate when compared to the penalty imposed in similar cases.

In State v. Dicks, 615 S.W.2d 126, 132 (Tenn. 1981), the sentence of death was affirmed by this Court where the defendant murdered the owner of a second-hand clothing store by slitting the victim's throat in the course of a robbery at the store. The proof established that the victim offered no resistance at the time he was killed, having been rendered unconscious by the defendant and his accomplice, and the proof further established aggravating circumstances in that the murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind, Tenn. Code Ann. § 39-13-204(i)(5), and that the murder was committed during the commission of a robbery, id. § 39-13-204(i)(7).

In State v. Campbell, 664 S.W.2d 281, 283-84 (Tenn. 1984), we affirmed imposition of the death sentence where the defendant murdered a seventy-two year old man during a robbery and the evidence established aggravating circumstances in that the defendant had been previously convicted of one or more felonies other than the present charge involving the use or threat of violence to the person, Tenn. Code Ann. § 39-2-203(i)(2), that the murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind, id § 39-2-203(i)(5), and that the murder was committed during the commission of a robbery, id. § 39-2-203(i)(7).

In State v. King, 694 S.W.2d 941, 947 (Tenn. 1985), we affirmed a sentence of death where the defendant murdered the victim during the robbery of a tavern and the evidence established aggravating circumstances in that the defendant had been previously convicted of one or more felonies other than the present charge involving the use or threat of violence to the person, Tenn. Code Ann. § 39-2-203(i)(2), and that the murder was committed during the commission of a robbery, id. § 39-2-203(i)(7).

In State v. Duncan, 698 S.W.2d 63, 65 (Tenn. 1985), we affirmed the jury's sentence of death where the defendant raped and murdered the night-shift cashier of a convenience store. The victim's "death resulted from three cuts to her neck of such force that they cut through her neck muscles, jugular vein, trachea, larynx and esophagus, and nicked the carotid artery." Id. at 66. The jury found aggravating factors in that the murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind, Tenn. Code Ann. § 39-2-203(i)(5), and the murder was committed during the commission of a rape and robbery, id. § 39-2-203(i)(7).

In State v. Harris, 839 S.W.2d 54, 59-60 (Tenn. 1992), imposition of the death sentence was affirmed where the defendant murdered a desk clerk and a security guard at the motel where they worked. Each victim had been stabbed by the defendant, and subsequent autopsies showed that the clerk died as a result of "a deep thrust wound across her neck that had cut the trachea and the neck's major blood vessels and had chipped the spinal column." Id. at 60. The proof established aggravating circumstances in that the defendant had been previously convicted of one or more felonies, other than the present charge, whose statutory elements involve the use or threat of violence to the person, Tenn. Code Ann. § 39-2-203(i)(2), the murder was especially heinous, atrocious or cruel in that it involved torture or depravity of mind, id. § 39-2-203(i)(5), and the murder was committed during the commission of a robbery, Tenn. Code Ann. § 39-2-203(i)(7).

In Busk 942 S.W.2d at 493, we affirmed the sentence of death where the defendant murdered the victim by stabbing her numerous times, and the evidence established that the murder was committed for the purpose of preventing arrest, Tenn. Code Ann. § 39-2-203(i)(6), and was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind, Tenn. Code Ann. § 39-2-203(i)(5).

Finally, in State v. Reid, 164 S.W.3d 286 (Tenn. 2005), we affirmed the jury's imposition of the death sentence where the defendant robbed an ice cream shop, kidnaped two employees of the shop, and thereafter murdered them by stab wounds to their necks which cut vital arteries and injured their spines. ` Id. at 301. The proof established aggravating circumstances in that the defendant had been previously convicted of one or more felonies other than the present charge, whose statutory elements involve the use of violence to the person, Tenn. Code Ann. § 39-13-204(i)(2), the murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death, id. § 39-13-204(i)(5), and the murder was committed for the purpose of preventing arrest, id. § 39-13-204(i)(6).

In summary, considering the nature of the crime and the characteristics of the defendant, our review confirms that the sentence of death imposed by the jury in this case is neither excessive nor disproportionate to the penalty imposed in similar cases, and we do not find that the mitigating circumstances presented by Mr. Henretta are sufficient to create a significant distinction between his case and those cases summarized above.

Conclusion

In summary, upon our consideration of the entire record in this case, we conclude that the issues raised in this appeal do not warrant relief and, accordingly, Mr. Henretta's convictions and sentences are affirmed. The sentence of death shall be carried out as provided by law on the 4th day of October, 2011, unless otherwise ordered by this Court or other proper authority. It appearing that defendant John Patrick Henretta is indigent, the costs of this appeal are taxed to the State of Tennessee.