STATE v. JORDAN

<> Tenn. R.App. P. 36(a) (providing that an appellate court need not grant relief where party failed to take reasonably available action to prevent or nullify an error); see also State v. Stephenson, 195 S.W.3d 574, 601 (Tenn. 2006) (appendix); State v. Thomas, 158 S.W.3d 361, 413 (Tenn. 2005) (appendix); State v. Little, 854 S.W.2d 643, 651 (Tenn.Crim.App. 1992) (defendant's failure to object to the State's alleged misconduct during closing argument waives that issue).

Even in the absence of an objection, a trial court may intervene sua sponte when prosecutorial argument is clearly improper. See Cauthem, 967 S.W.2d at 737.

In this case, the defense failed to lodge timely objections to the prosecutor's arguments. Our review is therefore limited to the parameters of this Court's discretionary plain error review. See Banks, 271 S.W.3d at 119. We will grant relief for plain error only when five prerequisites are met: "(1) the record clearly establishes what occurred in the trial court, (2) a clear and unequivocal rule of law was breached, (3) a substantial right of the accused was adversely affected, (4) the accused did not waive the issue for tactical reasons, and (5) consideration of the error is necessary to do substantial justice." Id. at 119-20. It is the defendant's burden to convince this Court that plain error exists, and we need not consider all five factors "when it is clear from the record that at least one of them cannot be satisfied." State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007).

A. Jury's Role in Sentencing Decision

During its final closing argument, the prosecution told the jury:

If you vote — And I think it's appropriate, and I'm asking you based upon the law and the evidence to impose the death penalty in this case. You're not putting the Defendant to death. Don't go for that trip. I'm not putting the Defendant to death. The State of Tennessee is not putting that Defendant to death. His actions, his conduct, his repeated conduct is such that makes him responsible for his own conduct and the consequences of that conduct.

The defense made no contemporaneous objection, but now contends that this argument "misled the jury into feeling less responsible than it should be for the sentencing decision that it had to make" and that its verdicts of death therefore failed to meet the "heightened standard of reliability required under the 8th Amendment."

In Caldwell v. Mississippi the Supreme Court stated that "it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." 472 U.S. 320, 328-29, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). In Caldwell, the prosecution argued to the jury that its decision to render a death sentence was "not the final decision. . . . Your job is reviewable. . . . [T]he decision you render is automatically reviewable by the Supreme Court." Id. at 325-26, 105 S.Ct. 2633. Additionally, on objection, the trial court endorsed the prosecution's argument, telling the jury, "I think it proper that the jury realizes that it is reviewable automatically as the death penalty commands." Id. at 325, 105 S.Ct. 2633. Concluding that "the State sought to minimize the jury's sense of responsibility for determining the appropriateness of death," the United States Supreme Court vacated the death penalty. Id. at 341, 105 S.Ct. 2633.

Subsequently, the high court has construed Caldwell as "`relevant only to certain types of comment — those that mislead the jury as to its role in the sentencing process in a way that allows the jury to feel less responsible than it should for the sentencing decision. `" Romano v. Oklahoma, 512 U.S. 1, 9, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994) (quoting Darden v. Wainwright, 477 U.S. 168, 184 n. 15, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986)). Therefore, "`[t]o establish a Caldwell violation, a defendant necessarily must show that the remarks to the jury improperly described the role assigned to the jury by local law. `" Id. (quoting Dugger v. Adams, 489 U.S. 401, 407, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989)). See also State v. West, 767 S.W.2d 387, 399 (Tenn. 1989) ("The concerns voiced in Caldwell are triggered when a jury is misled as to its role in the capital sentencing scheme.").

This Court has determined that

[t]he two steps in reviewing an alleged Caldwell violation are determining (1) whether the prosecutor's comments to the jury were such that they would "minimize the jury's sense of responsibility for determining the appropriateness of death" and (2) whether the trial judge in the case sufficiently corrected the impression left by the prosecutor.

West, 767 S.W.2d at 399 (quoting Mann v. Dugger, 844 F.2d 1446, 1456 (11th Cir. 1988)). In West, this Court held that the prosecutor's argument that "the law is self-executing," that the law "provides the punishment, not you, [the jury]," and that "you [the jury] don't impose the sentence, the law provides the sentence, you are merely finders of fact," violated Caldwell. 767 S.W.2d at 399. We held that "[s]uch statements minimize the jury's role and allow [] [the jurors] to feel that the responsibility for a death sentence rests else-where." Id. We found the error harmless beyond a reasonable doubt, however, becaues these

brief erroneous characterizations of the jury's role in determining the appropriateness of a death sentence were sufficiently corrected by the trial judge [in its charge to the jury on its responsibility in determining the death penalty] and the accurate portions of the district attorney's and the defendant's arguments stressing the proper responsibility of the jury.

Id. at 399-400. Similarly, in State v. Cazes, 875 S.W.2d 253 (Tenn. 1994), we found error where the prosecutor told the jury that "the law says it[`]s not your decision anymore," that "you're not making the finding of the death penalty. You're finding fact," that "the verdict is automatic," and "the law book says what the verdict shall be." Id. at 263-64. We determined the error to be harmless beyond a reasonable doubt, however, because the trial court did not endorse the remarks but rather instructed the jury correctly about its responsibility for determining whether a death sentence was appropriate, and because "other portions of the State's final argument correctly set forth the responsibility of the jury under Tennessee's capital sentencing procedure, and the defendant's final argument repeated and re [i]nforced the State's correct argument." Id. at 264.

Although the prosecution should avoid telling the jury that it is not putting a defendant to death while simultaneously asking the jury to render a sentence of death, the overall message of the quoted portion of the prosecution's argument in this case was that Defendant, himself, took the actions that made a death sentence possible. While seeking to reassure the jury that Defendant was responsible for his own conduct and therefore responsible for facing the ultimate punishment, the prosecution was not, in our view, trying to shift the ultimate authority for imposing the death sentence to another entity, as did the prosecution in Caldwell. Rather, we agree with our Court of Criminal Appeals that this type of argument "can just as easily be interpreted as an expression of the [defendant's] burden of responsibility for his own actions." State v. Blanton, No. 01C01-9307-CC-00218, 1996 WL 219609, at *35 (Tenn.Crim.App. Apr. 30, 1996), aff'd, 975 S.W.2d 269 (Tenn. 1998). See also State v. Bush, 942 S.W.2d 489, 517 (Tenn. 1997) (appendix) (observing that "the State may properly argue that a defendant is the `author of his own fate'"(quoting Wright v. State, No. 01C01-9105-CR-00149, 1994 WL 115955, at *16 (Tenn. Crim.App. Apr. 7, 1994))). We hold that the prosecution's comments did not go so far as to "minimize the jury's sense of responsibility for determining the appropriateness of death." West, 767 S.W.2d at 399.

Further, even if the prosecution's argument crossed the Caldwell line, the trial court corrected any improper impression made by the prosecutor's comments. Before the prosecution began its closing argument, the trial court instructed the jury that "[i]t is now your duty to determine within the limits prescribed by law the penalty which shall be imposed as punishment for these three offenses" and that "[t]he jury is the sole judge of the facts and of the law as it applies to the facts in this case." After closing arguments were finished, the trial court instructed the jury that,

[i]f you unanimously determine that at least one statutory aggravating circumstance or several statutory aggravating circumstances have been proven by the State beyond a reasonable doubt and said circumstance or circumstances have been proven by the State to outweigh any mitigating circumstance or circumstances beyond a reasonable doubt, the sentence shall be death.

The jury therefore knew that it was responsible for deciding whether or not to impose the death penalty on Defendant for each of the murders he committed. The jury was never told by either the trial court or counsel for the parties that an appellate court, or any other person or entity, would be reviewing the jury's decision. Because no substantial right of Defendant's was adversely affected by the challenged argument, Defendant is not entitled to plain error relief on this basis.

B. Belittling Mitigation Proof

Defendant also contends that, during closing argument, the prosecution improperly "belittled" the mitigating circumstances. Specifically, he complains about the following remarks:

What mitigating factors is he pointing to? He expresses remorse. That doesn't make this any better. That doesn't make those three people any less dead. That doesn't take away from the pain and suffering of Larry Taylor and James Goff. "I'm sorry" just won't cut it. That's not going to mitigate the seriousness of this offense and what has happened out there at the TDOT facility. Saying I'm sorry is just not going to get it.

Now I know his children love him. I would expect that from his children. That doesn't make this any better. Most people's children love them, but that doesn't mean that these three people are any less dead, and that does not mean that these people aren't suffering just the same. That doesn't make it any better. That doesn't make it anymore understandable. It has absolutely nothing to do with what happened out there.

He adjusted well to prison life. That doesn't make this any better. He might live on in prison. That doesn't weigh anything. That doesn't make this any more understandable.

Well let me tell you what weighs heavily against all of those mitigating factors in this case. That this Defendant left his house that morning with the intent of murdering his wife in cold blood, and it had special meaning to him because he was gonna do it with her brother's gun. He had a special purpose there to make sure that when she turned around after being shot in the leg, she knew she was dying with her brother's gun. That's what's weighty in this case.

. . .

Depravity of mind. . . ."I'm sorry" doesn't mitigate that. "My children don't want me to die" doesn't mitigate that. "I'll do well in prison" doesn't mitigate that. "I read books while I'm in jail" doesn't mitigate that.

(Emphasis added). We agree with the Court of Criminal Appeals that, for the most part, the prosecutor's remarks were aimed simply at the weight to be given the mitigating circumstances. Such argument is proper. Banks, 271 S.W.3d at 135; State v. Brimmer, 876 S.W.2d 75, 85 (Tenn. 1994).

That portion of the argument we have italicized, however, went beyond simply arguing the weight of mitigating factors. Arguing that the jury should give weight to Defendant's use of Mrs. Jordan's brother's gun was tantamount to arguing that aspect of the crime as an aggravating circumstance. It is improper for a prosecutor to argue non-statutory aggravating circumstances. See Terry v. State, 46 S.W.3d 147, 156 (Tenn. 2001) (recognizing that "the State may not rely upon non-statutory aggravating circumstances in seeking the imposition of the death penalty"). Moreover, this argument misstated the evidence. The gun which belonged to Mrs. Jordan's brother was the assault rifle. By the time Defendant shot Mrs. Jordan with that gun, she was already dead. She did not, therefore, know that she was "dying with her brother's gun." There was, however, a contemporaneous objection to this argument, and the trial court instructed the jury that "which gun [was] utilized is not an aggravating factor in itself." Additionally, the trial court's instructions made clear that the jury could base a verdict of death only upon its unanimous finding of one or more of the statutory aggravating circumstances charged. Defendant is therefore not entitled to relief on this basis.

C. "Angel of Death"

At the end of its closing argument during the sentencing phase of Defendant's trial, the defense offered the following quotations to the jury:

"The quality of mercy is not strained. It falls like the gentle rain from heaven upon the place beneath."

"It is twice blessed. It blesses him that gives and him that receives."

"It's the mightiest in the mighty. It becomes the throned monarch better than [h]is crown. His scepter shows the force of earthly power, the tribute to [h]is awe and majesty."

"Wherein doth sit the dread and fear of kings. But mercy is above this sceptered way. It is enthroned in the hearts of kings. It is a tribute to God himself."

And, "Earthly power shows most like God's when mercy seasons justice."

Defense counsel did not identify the source of this quoted material to the jury.

The author of this text is William Shakespeare. See The Merchant of Venice, Act iv Sc. 1.

In response, the prosecution argued as follows:

Defense counsel would refer to God as he addresses this jury as he tries to make you feel responsible for doing what you told the State of Tennessee that you would do, and that's follow the law and the instructions of the Court. And each and every one of you promised, not only this Defendant, but the State of Tennessee that you would follow the instructions of the Court. That's very important for a legal reason, and I'll state that in a minute.

. . .

Defense counsel would talk about the guilt trip he's putting on you with God and judgment. Let me tell you, ladies and gentlemen, what takes care and addresses that argument by defense counsel, is rendering unto Caesar that which is Caesar's and unto God, that which is God's. I represent Caesar, and I have the duty and responsibility, as you do, to follow the instructions given to you by the Court and that codified by the State of Tennessee, and I suggest to you and I tell you, and I know you'll follow that law and instructions given to you by the Court.

. . .

They rely upon part of the testimony of Ms. Fisher, the former girlfriend, one of their, quote, mitigating factors, and I believe she said that Sydney, which would be Renee's child along with the Defendant, made the comment that, "Mama is an angel in heaven looking down on me." And ladies and gentlemen of the jury, I'm going to suggest to you that there was another angel involved in this situation, and that angel is the angel of death. And the angel of death went into that crow's nest a few hours before Renee came to work, and a few hours before Jerry Hopper just happened to need to have his state truck serviced that day, and just a few hours before Mr. Gordon was involved in an auto accident. And how did the death angel know to go there that morning? Because the death angel heard the Defendant say on Tuesday, January 11th of `05 at 2:11 a.m., "I'll see you at work, bitch." The death angel also heard at 2:17 a.m. the Defendant say, "I hope you go to work tomorrow." So the death angel was there and saw everything that happened and everything that's been presented in evidence and wrote down the aggravating circumstances that occurred on or about 11:30 a.m. on the birthday of Renee's father.

And these aggravating circumstances are that the Defendant knowingly created a risk of death to two or more persons other than the victim murdered during an act of murder. That will involve, I suggest, ladies and gentlemen, three different counts of this indictment which you will have. That will be the first count, the second count and the third count.

And second, the angel wrote down that this murder was especially heinous, atrocious or cruel and that it involved serious physical abuse beyond that necessary to produce death, and that will involve, I think the Court will tell you, the first count involving Renee and the fourth count involving Mr. Gordon and the fifth count of the felony murder indictment of Mr. Gordon.

Now as the angel sat there and recorded these aggravating circumstances, the angel also wrote down, the murder was committed for the purpose of avoiding, interfering with or preventing a lawful arrest of the Defendant or another, and that will apply as you see when you look at the Defendant to Count 2 involving Mr. Hopper and his premeditated murder, and Mr. Hopper, his felony murder count, and Mr. Gordon, the count of his premeditated death, and the fifth count of this indictment, the felony murder of Mr. Gordon. The angel had a lot to write down and a lot to observe and a lot of things to have to be able to report at a later time.

And also I submit to you he wrote down the fourth aggravating circumstance, that the murder was knowingly committed, solicited, directed or aided by the Defendant while the Defendant had a substantial role in committing or attempting to commit first degree murder. This will encompass the first five counts of this indictment, Renee's premeditated murder, Mr. Hopper's premeditated murder, Mr. Hopper's felony murder, Mr. Gordon's premeditated murder and Mr. Gordon's felony murder.

Then the angel goes and unites down that the Defendant committed mass murder which is defined as the murder of three or more persons when committed during a single criminal episode, which this was, or at different times within a 48-month period.

And then the last thing that the angel wrote down which has been preserved for your consideration is that the Defendant knowingly mutilated the body of the victim after death.

. . .

There's a part of [Defendant's] conduct, deliberate, premeditated. The one that Sydney wrote about, that "My mama is in heaven, an angel," and the one the death angel wrote about that's contained by the State of Tennessee in the law and evidence that will be instructed to you about aggravating circumstances.

I even imagine that when the first shot went off and caught Renee in the leg and got her attention, that it really got the attention of the death angel who looked and realized that not only did it get Renee's attention but that it had gotten her attention. And then we've got the shot to the head. Who can ever forget that. The angel will never forget, and that's why it was written down in these instructions.

. . .

I thank you for your consideration and your attention. It's been difficult. It's difficult for me to make the decision that I thought this was appropriate, but I did much the same, based upon the information provided by the angel of death, that delineate and record and file the aggravating circumstances. And I ask that you follow the law and the instructions given to you by the Court and return a verdict that truth dictates and justice demands.

(Emphases added).

Initially, we have no trouble concluding that the prosecution's repeated references to the "angel of death" and the "death angel" as "recording" and "writing down" and "providing" the aggravating circumstances were improper. This argument implied that the aggravating factors alleged to apply to Defendant's murders were somehow delivered from "on high" and possessed the imprimatur of a supernatural being. This implication is, of course, not accurate.

In its brief to this Court, the State disingenuously purports that, "[i]f the `angel of death' is a religious figure, the State is unaware of the scriptural passage to which it is referable." We are not persuaded. Persons possessing even a casual acquaintance with the Bible recognize that it refers to angels as holy messengers, for instance, the angel Gabriel's announcement to the Virgin Mary of her divine pregnancy. And, as we emphasized in State v. Middlebrooks,

[w]e have condemned Biblical and scriptural references in a prosecutor's closing argument . . . frequently. . . .

The obvious danger in such references by both prosecutors and defense counsel is the risk that a sentencing decision may be made not upon the facts and the law but on an appeal to the bias or passion of the jury.

995 S.W.2d 550, 559 (Tenn. 1999). While the prosecutor in this case may not have referred specifically to a particular Biblical passage, the repeated references to an angel acting as a messenger were inappropriate allusions to the Christian religion.

This Court has admonished many times that closing arguments must be (1) temperate; (2) predicated on the evidence adduced at trial; and (3) pertinent to the issues. See State v. Hatcher, 310 S.W.3d 788, 813 (Tenn. 2010); State v. Thomas, 158 S.W.3d 361, 413 (Tenn. 2005) (appendix); Middlebrooks, 995 S.W.2d at 557; State v. Keen, 926 S.W.2d 727, 736 (Tenn. 1994); State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978); Russell v. State, 532 S.W.2d 268, 271 (Tenn. 1976). Additionally, because a prosecutor's role is to seek justice rather than simply advocate, the State's prerogative during argument is more limited than that of other parties. Thomas, 158 S.W.3d at 413 (appendix). As the United States Supreme Court has recognized,

[The prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigorindeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods . . . as it is to use every legitimate means. . . .

Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). A prosecutor must therefore "refrain from argument designed to inflame the jury." State v. Hall, 976 S.W.2d 121, 158 (Tenn. 1998) (appendix) (quoting Coker v. State, 911 S.W.2d 357, 368 (Tenn.Crim.App. 1995)).

The State responds to this issue in its brief to this Court as follows:

The comments were . . . a trope; the prosecution depicted a supernatural figure writing down aggravating circumstances as [Defendant] pursued his course of conduct on January 11, 2005. The use of a literary device, in and of itself, violates no constitutional stricture, and because the aggravators that the prosecution portrayed the "angel" scribbling down were fully supported by the evidence, the argument cannot be viewed as inflammatory.

We disagree that the argument "cannot be viewed as inflammatory" and suggest that the State misses the point. The metaphor utilized by the prosecutor suggested that, while he was shooting the victims, Defendant was accompanied by an angel who, apparently fulfilling some angelic mission, dutifully recorded Defendant's actions in order to later convince a jury to impose the death penalty. This metaphor is inappropriate on its face. We do not consider it temperate, it refers to no evidence in the record, it is not a justifiable inference from any proof in the record, and it is not pertinent to the issues. This argument was improper.

We will not overturn a verdict on the basis of a prosecutor's improper argument unless the impropriety affected the verdict. Sutton, 562 S.W.2d at 823. In conducting this inquiry, we consider five factors:

(1) the conduct complained of viewed in context and in light of the facts and circumstances of the case; (2) the curative measures undertaken by the [trial] [c]ourt and the prosecution; (3) the intent of the prosecutor in making the improper statement; (4) the cumulative effect of the improper conduct and any other errors in the record; and (5) the relative strength or weakness of the case.

State v. Buck, 670 S.W.2d 600, 609 (Tenn. 1984) (quoting Judge v. State, 539 S.W.2d 340, 344 (Tenn.Crim.App. 1976)).

Taking these factors out of order, we first note that there were no specific curative measures taken by the court or the prosecution. While this would ordinarily weigh against the State, in this case, the defense must also bear some responsibility for failure to object during the prosecutor's argument, which limits our review to a plain error analysis. Combining the first and third factors, we observe that the prosecutor did not begin referring to the "death angel" until the rebuttal portion of his closing argument. The trigger for the prosecutors improper comments appears to have been the defense's reference to Ms. Fisher's mitigation testimony. The defense described Fisher as Defendant's "friend, who stood by him even after this horrible event" and "throughout this horrible tragedy." In rebuttal closing argument, the prosecutor recaled that Fisher had testified that Defendant's daughter referred to Renee, her murdered mother, as "an angel in heaven." The prosecutor then segued into his "trope" about the angel of death. Thus, the intent of the prosecutor appears to have been to strike back at defense argument. While the prosecutor reached too far in his argument, it appears that the prosecutor was at least trying to place his argument in some overall context triggered by the argument of defense counsel.

We view the fourth and fifth factors in tandem. The strength of the State's case was overwhelming. Defendant's identity as the murderer was never in dispute; thus, the defense made no effort to argue residual doubt. Moreover, not only did the State adduce significant proof of multiple aggravating circumstances as to each victim, but this proof was largely unchallenged. Instead, the defense focused on Defendant's psychological state as mitigation, proof which was strongly challenged by the State. And, although we have identified other trial errors, we have deemed them harmless. Finally, we take note of the trial court's jury charges delivered during the sentencing proceeding. Prior to opening statements, the court told the jury that

Tennessee statutory law provides that no death penalty shall be imposed unless you find unanimously that one or more specified statutory aggravating circumstances has been proven to you by the State beyond a reasonable doubt, and that the aggravating circumstance or circumstances outweigh the mitigating circumstances beyond a reasonable doubt. These statutory aggravating circumstances are specific circumstances enumerated by the legislature to establish which first degree murders will make a defendant eligible for the death penalty. The State is limited to the statutory aggravating circumstances.

After the parties closed their sentencing proof and prior to closing argument beginning, the trial court instructed the jury as follows:

It is now your duty to determine within the limits prescribed by law the penalty which shall be imposed as punishment for these three offenses.

Tennessee law provides that a person convicted of murder in the first degree shall be punished by death, imprisonment for life without the possibility of parole or by life — or by imprisonment for life. A defendant who receives a sentence of imprisonment for life shall not be eligible for release until the defendant has served at least 51 full calendar years of his or her sentence. A defendant who receives a sentence of imprisonment for life without parole shall never be eligible for release.

In arising [sic] at this determination, you are authorized to weigh and consider any of the statutory aggravating circumstances proved beyond a reasonable doubt and any mitigating circumstances which may have been raised by the evidence throughout the entire course of this trial, including the guilt-finding phase or sentencing phase or both. The jury is the sole judge of the facts and of the law as it applies to the facts in this case. In arriving at your verdict, you are to consider the law in connection with the facts, but the Court is the proper source from which you are to get the law.

After the trial court instructed the jury as to each of the statutory aggravating factors at issue, it continued:

Members of the jury, the Court has read to you the aggravating circumstances which the law requires you to consider if you find are proved beyond a reasonable doubt. You shall not consider any other facts or circumstances as an aggravating circumstance in deciding whether the death penalty or imprisonment for life without possibility of parole would be appropriate punishment in this case.

Additionally, prior to closing arguments in the guilt/innocence phase of the trial, the court instructed the jury that "[s]tatements, arguments and remarks of counsel are intended to help you in understanding the evidence and applying the law, but they are not evidence. If any statements were made that you believe are not supported by the evidence, you should disregard them." Later in its charge, but still before closing arguments in the guilt/innocence phase, the court reiterated, "[r]emember that the statements of attorneys are not evidence in this case." And, at the commencement of the sentencing phase, the trial judge told the jury, "I will remind you that statements of counsel are not evidence." We presume that the jury follows its instructions. Young, 196 S.W.3d at 111.

Considering the parties' arguments as a whole, the trial court's instructions, and the evidence adduced during the sentencing proceeding of both aggravating and mitigating factors, we hold that the prosecution's references to the "angel of death" did not affect the jury's verdicts. Because Defendant has not demonstrated that any of his substantial rights were adversely affected by the improper argument, he is not entitled to plain error relief on this basis.

VI. Mandatory Review

In reviewing Defendant's three death sentences, Tennessee Code Annotated section 39-13-206(c)(1) requires this Court to determine (1) whether each sentence "was imposed in any arbitrary fashion"; (2) whether the evidence supports the jury's findings of the aggravating circumstances applicable to each death sentence; (3) whether the evidence supports the jury's determination that the aggravating circumstances outweigh the mitigating circumstances as to each death sentence; and (4) whether each death sentence "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).

A. Manner in which Death Sentences were Imposed

In accordance with its instructions, the jury determined unanimously that the State proved beyond a reasonable doubt that several aggravating factors applied to each of the three first degree murders committed by Defendant, and that these aggravating factors outweighed the mitigating circumstances beyond a reasonable doubt. Our close review of the record reveals that the sentencing hearing was conducted pursuant to the applicable statutory provisions and rules of criminal procedure. Accordingly, we conclude that Defendant's three sentences of death were not imposed in an arbitrary fashion.

B. Evidence Supporting Aggravating Factors

In deteirmining whether the evidence supports the jury's findings of statutory aggravating circumstances, an appellate court must determine, after viewing the evidence in the light most favorable to the State, whether a rational trier of fact could have found the existence of the aggravating circumstances beyond a reasonable doubt. State v. Rollins, 188 S.W.3d 553, 571 (Tenn. 2006).

1. Renee Jordan

In sentencing Defendant to death for his first degree murder of Renee Jordan, the jury applied five aggravating factors. We will address in turn the sufficiency of the proof supporting each factor.

(i)(3): Risk of Death to Two or More Others

The jury determined that Defendant "knowingly created a great risk of death to two (2) or more persons, other than the victim murdered, during the act of murder[ing]" Mrs. Jordan. Tenn. Code Ann. § 39-13-204(i)(3). We have previously determined that this aggravating circumstance "contemplates either multiple murders or threats to several persons at or shortly prior to or shortly after an act of murder upon which the prosecution is based." State v. Cone, 665 S.W.2d 87, 95 (Tenn. 1984). The proof in this case established beyond a reasonable doubt that, in conjunction with murdering Mrs. Jordan, Defendant murdered two other persons and shot an additional two persons who were fortunate enough to survive. The proof is more than sufficient to support the jury's finding of this aggravating circumstance.

(i)(5): Heinous, Atrocious, or Cruel

The jury also found that Defendant's murder of Mrs. Jordan was "especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death." Tenn. Code Ann. § 39-13-204(i)(5). This Court has defined "torture" as "the infliction of severe physical or mental pain upon the victim while he or she remains alive and conscious." State v. Rollins, 188 S.W.3d 553, 572 (Tenn. 2006) (quoting State v. Pike, 978 S.W.2d 904, 917 (Tenn. 1998); State v. Williams, 690 S.W.2d 517, 529 (Tenn. 1985)). And, we have repeatedly considered a defendant's actions in causing the victim to fear death or physical harm as a factor in whether the defendant has created the severe mental pain or anguish relevant to a finding of torture. See, e.g., State v. Carter, 114 S.W.3d 895, 903-04 (Tenn. 2003) (recognizing that "the anticipation of physical harm to oneself is tortuous"); State v. Nesbit, 978 S.W.2d 872, 886-87 (Tenn. 1998); State v. Hodges, 944 S.W.2d 346, 357-58 (Tenn. 1997).

In this case, the proof established that, on the night preceding Mrs. Jordan's murder, Defendant called her repeatedly and left her threatening messages. Additionally, Kenneth Evans testified that Mrs. Jordan called him on that same night, stating that "she was about to have a nervous breakdown," that "she was scared of Defendant, and that he had been making threatening phone calls to her. Mr. Evans explained that, according to Mrs. Jordan, Defendant had told her that "it didn't matter how many lawyers she had and how much money she had, that what he had for her wasn't going to do her any good." Mrs. Jordan rejected Mr. Evans's suggestion that she go to the police department on the grounds that Defendant would "shoot [her] there whether the police was there or not, and he would probably shoot them, too." Mrs. Jordan went instead to Mr. Evans's house and Mr. Evans hid her car. This proof establishes that Defendant's conduct instilled a significant fear of death in Mrs. Jordan.

In State v. Cooper, 718 S.W.2d 256, 257-60 (Tenn. 1986), this Court considered the defendant's actions in "threaten[ing] and intimidat[ing] [his wife] to the point of distraction for several weeks prior to the homicide" followed by his "deliberate taunting and threatening of [the] victim for hours before shooting at" her to constitute torture for the purpose of the (i)(5) aggravating circumstance. See also State v. Hall, 8 S.W.3d 593, 605 (Tenn. 1999) (in discussing Cooper, noting that "[a]lthough death was instantaneous, or nearly so, this Court found that the defendant's threats and harassment throughout the day had constituted mental torture and depravity of mind"). In this case, Defendant directed similar behavior toward Mrs. Jordan, and his conduct appears to have generated fear in her. Defendant's conduct in following and threatening Mrs. Jordan satisfies the definition of "torture" as utilized in the (i)(5) aggravator.

The proof also establishes that Defendant murdered Mrs. Jordan during his initial shooting spree with a handgun. According to Mr. Goff and Mr. Taylor, when Defendant entered the crow's nest the first time, he called Mrs. Jordan's name to get her attention. According to Defendant's statement, he shot Mrs. Jordan in the leg to get her attention. Defendant's statement is corroborated by the autopsy, which identified a gunshot wound to Mrs. Jordan's right thigh. In either event, Defendant got Mrs. Jordan's attention and then fired another shot. According to both Goff and Taylor, this second shot struck Mrs. Jordan in the torso, as did the next (third) shot. Defendant was standing near the crow's nest door when he fired these first three shots. Goff said Defendant was about six feet from Mrs. Jordan.

Defendant continued shooting Mrs. Jordan, striking her twice in the head. One of these two gunshots was to Mrs. Jordan's forehead, from no more than one foot away. The other gunshot was to the back of Mrs. Jordan's head. Defendant told the police that the last shot he fired at Mrs. Jordan from his handgun was to the "top of [her] head." According to both Goff and Taylor, Mrs. Jordan did not survive these gunshots to her head. Medical testimony confirmed that each of these gunshots to Mrs. Jordan's head were fatal.

The forensic pathologist who performed the autopsy on Mrs. Jordan's body identified eleven gunshot wounds. From these wounds, three handgun bullets were recovered, including one from the close range shot to Mrs. Jordan's forehead, one from her thigh, and one from her abdomen. A fourth handgun bullet was recovered from her clothing. The forensic pathologist could not determine the type of weapon that fired the shot through the top of Mrs. Jordan's head, which bullet exited through Mrs. Jordan's face, but Defendant's statement establishes that this wound was inflicted during the initial assault with the handgun. The proof therefore establishes that Defendant shot Mrs. Jordan at least five times during the act of murdering her: once to her leg, twice to her torso, and twice to her head. Four of these wounds were inflicted after Defendant got her attention to make sure that she realized he was going to kill her. The proof also establishes that the wound to Mrs. Jordan's forehead was inflicted after Defendant had shot her once in the leg and twice in the torso. Obviously, given the proof that this wound was inflicted from no more than one foot away, Defendant had to advance upon Mrs. Jordan as she lay incapacitated from the first several gunshots in order to inflict this fatal shot.

In spite of having inflicted two fatal head wounds to Mrs. Jordan, Defendant left the crow's nest and returned with an assault rifle after having murdered Mr. Gordon. He then shot Mrs. Jordan's body several more times. Dr. Turner identified at least four gunshot wounds as having been inflicted by an assault rifle.

This proof is sufficient to establish that Defendant's murder of Mrs. Jordan involved "serious physical abuse beyond that necessary to produce death." See Odom, 928 S.W.2d at 25 n. 5 (declining to limit serious physical abuse to that caused before death). The proof in therefore sufficient on two bases to support the jury's finding of this aggravating circumstance.

(i)(7); Felony Murder

The jury found that Defendant "knowingly committed, solicited, directed, or aided" Mrs. Jordan's murder "while [he] had a substantial role in committing or attempting to commit . . . first degree murder." Tenn. Code Ann. § 39-13-204(i)(7). Defendant argues that the evidence does not support this aggravating circumstance because Mrs. Jordan was already dead before he shot anyone else. We are not persuaded. Defendant's actions in shooting all four people in the crow's nest were of a piece. The application of this aggravating circumstance does not hinge on the order in which the victims died or were shot. Moreover, Defendant admitted in his statement that he shot Mr. Goff when Mr. Goff attempted to interrupt his attack on Mrs. Jordan. The evidence is therefore sufficient to demonstrate that Defendant killed Mrs. Jordan "while" he was committing Mr. Goffs attempted murder.

Defendant also complains about the trial court's instructions regarding the mens rea element of this aggravating circumstance. The trial court instructed the jury as follows:

Knowingly means that a person acts knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist. A person ads knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result. The requirement of knowingly is also established if it is shown that the Defendant acted intentionally. .

Intentionally means that a person acts intentionally with respect to the nature of the conduct or to a result of the conduct when it is the person's conscious objective or desire to engage in the conduct or cause the results.

Defendant contends that these definitions "should not have been included within the aggravator" because it lessened the State's burden of proof as described in State v. Page, 81 S.W.3d 781, 787-88 (Tenn.Crim. App. 2002). However, this Court rejected the claim that a superfluous definition of "knowingly" lessens the burden of proof in State v. Faulkner, 154 S.W.3d 48, 59 (Tenn. 2005).

Defendant also argues that these definitions' "gave the jury much more leeway to find these felony murder aggravators," and that including the definitions within the instruction on the aggravating circumstance "amount[ed] to amending th[e] aggravating circumstance to make it unconstitutionally overbroad and vague." We disagree.

In State v. Rogers, 188 S.W.3d 593, 618 (Tenn. 2006), the defendant made the opposite argument: that the trial court tainted the jury's finding of the (i)(7) aggravator by failing to instruct the jury on the definition of "knowingly." We noted that, when it convicted the defendant of first degree premeditated murder, the jury necessarily determined that the defendant acted intentionally with regard to the result of his conduct. Id. The finding that a defendant acted intentionally also necessarily establishes that the defendant acted knowingly. See Tenn. Code Ann. § 39-11-301(a)(2) (2003). Accordingly, we held that any error in the trial court's failure to define "knowingly" within the instruction on this aggravating circumstance was harmless beyond a reasonable doubt. Rogers, 188 S.W.3d at 618. Similarly, we hold that any error by the trial court in its instructions on this aggravating circumstance in this case was harmless beyond a reasonable doubt. The jury had already determined that Defendant had committed three premeditated murders and two attempted premeditated murders. By doing so, it necessarily concluded that Defendant acted intentionally when shooting all five of his victims. The definition of knowing was therefore, at most, surplusage and did not affect the jury's verdict. See Faulkner, 154 S.W.3d at 60-61.

Moreover, we note that the term "knowingly" is used in the (i)(7) aggravating circumstance to modify the words "committed, solicited, directed or aided." Each of these words refers to a type of conduct, but not necessarily to the result of the conduct. Accordingly, it is not necessarily erroneous for a trial court to charge the "nature of conduct" definition of "knowingly" in conjunction with the (i)(7) aggravator.

(i)(12): Mass Murder

As the fourth aggravating circumstance, the jury found that Defendant committed "mass murder," defined as "the murder of three (3) or more persons whether committed during a single criminal episode or at different times within a forty-eight-month period." Tenn. Code Ann. § 39-13-204(i)(12). The jury convicted Defendant of murdering Mrs. Jordan, Mr. Hopper, and Mr. Gordon on the same day and during the same criminal episode. The proof is more than sufficient to support the jury's application of this aggravating factor,

(i)(13): Mutilation of Body

The jury found as a fifth and final aggravating circumstance that Defendant "knowingly mutilated the body" of Mrs. Jordan after her death. Tenn. Code Ann. § 39-13-204(i)(13). In support of this aggravator, the State relied on Defendant's return to the crow's nest after killing Mrs. Jordan to shoot her body repeatedly with the SKS assault rifle.

This Court has not previously addressed in detail the use of this aggravating circumstance to impose the death penalty. In at least two cases, however, our Court of Criminal Appeals considered its use in the imposition of a sentence of life without parole. See State v. Thompson, 43 S.W.3d 516, 525-26 (Tenn.Crim.App. 2000), perm. appeal denied (Tenn. Mar. 5, 2001); State v. Pnce, 46 S.W.3d 785, 827-28 (Tenn. Crim.App. 2000), perm, appeal denied (Tenn. Feb. 26, 2001). In both cases, the court noted that mutilation is not statutorily defined and so turned to the dictionary definition of mutilation as "`to cut up or alter radically so as to make imperfect. `" Thompson, 43 S.W.3d at 525 (quoting Webster's Third, New International Dictionary, 1493 (1993)); Price, 46 S.W.3d at 827 (same). The court also noted in both cases that "the legislative intent underlying mutilation as an aggravating circumstance must be `that the General Assembly . . . meant to discourage corpse desecration. `" Thompson, 43 S.W.3d at 525-26 (quoting Price, 46 S.W.3d at 828). In Thompson, the court concluded that the proof supported this aggravating circumstance where, after the victim's death, the defendant "stabbed him four times in the back with a knife, slit his throat, cut his forehead and legs, and fractured both of his legs by exerting great pressure from behind." 43 S.W.2d at 526. In Price, the court concluded that the defendant's postmortem infliction of flash burns on his murder victim's face satisfied the definition of mutilation. 46 S.W.3d at 828.

In State v. Davidson, 121 S.W.3d 600, 621 (Tenn. 2003), we affirmed without discussion the jury's application of the mutilation aggravator where the defendant sliced open his victim's body from neck to abdomen.

We recognize that the term "mutilation" is most frequently used to describe activities that are more obviously disfiguring to a victim's body than multiple gunshot wounds. See, e.g., Terry v. State, 46 S.W.3d 147, 161, 166 (Tenn. 2001) (referring to defendant's actions in cutting off victim's head and right forearm after killing him and burning the body as "mutilation" in discussion of (i)(5) aggravator); State v. Harris, 989 S.W.2d 307, 311 (Tenn. 1999) (victim's body "mutilat[ed]" where body parts severed and heart removed; (i)(5) aggravator alleged). Nevertheless, we hold that the circumstances of this case are sufficient to support the jury's finding of this aggravating factor. During his initial assault on his wife, Defendant shot two bullets into Mrs. Jordan's head. Medical proof established that each of these wounds was fatal, and Mr. Goff and Mr. Taylor both testified that Mrs. Jordan appeared dead at the time they were still in the crow's nest. Certainly it is reasonable to infer that Defendant thought she was dead. After murdering his wife, Defendant left the crow's nest and walked to his truck. There, he murdered another person. Unfinished, Defendant carried his assault rifle back to the crow's nest. He had a brief conversation with Mr. Taylor. Only after Mr. Taylor had left the crow's nest, descended the steps, and turned the corner did Defendant open fire on Mrs. Jordan's body. These circumstances support the inference that Defendant was intent on desecrating Mrs. Jordan's corpse. He did so by firing several high-powered bullets into her body. Although these bullets did not succeed in severing any of Mrs. Jordan's body parts, they caused a great deal of damage. Fred die Ellison described Mrs. Jordan as being "shot all to pieces." Dr. Turner described the assault rifle gunshot wounds to Mrs. Jordan's ribs, right lung, diaphragm, liver, kidney, spinal column, and back muscles. We hold that the multiple gunshot wounds that Defendant inflicted after Mrs. Jordan's death "alter[ed] radically so as to make imperfect" her body. The proof is sufficient to support the jury's application of this aggravating factor.

2. Jerry Hopper

With respect to Defendant's first degree murder of Jerry Hopper, the jury found four aggravating circumstances. We will address in turn the sufficiency of the proof supporting each factor.

(i)(3): Risk of Death to Two or More Others

As it did with Defendant's murder of Mrs. Jordan, the jury determined that Defendant "knowingly created a great risk of death to two (2) or more persons, other than the victim murdered, during the act of murder[ing]" Mr. Hopper. Tenn. Code Ann. § 39-13-204(i)(3). While Defendant was murdering Mr. Hopper, he was also shooting Mr. Goff and Mr. Taylor. The evidence is therefore sufficient to support this aggravating circumstance.

(i)(6): Murder to Avoid Apprehension

The jury also found that Defendant murdered Mr. Hopper "for the purpose of avoiding, interfering with, or preventing [his] lawful arrest or prosecution." Tenn. Code Ann. § 39-13-204(0(6). The Court of Criminal Appeals concluded that the proof is not sufficient to support application of this aggravating factor. We agree.

This aggravating circumstance "focuses on a defendant's motives in committing a murder." State v. Reid, 164 S.W.3d 286, 315 (Tenn. 2005). Thus, while it need not be his sole motive in committing the murder, id. at 316, there must be some "particular proof that Defendant murdered the victim at least in part to avoid apprehension, State v. Hartman, 42 S.W.3d 44, 58 (Tenn. 2001). In this case, the State argues that the necessary proof is provided by Defendant's statement that, after he shot Mrs. Jordan, "[t]he guy that was sitting in the corner got up and came at me. I shot him and he fell to the floor." We fail to see how this statement establishes that Defendant shot Hopper to avoid his apprehension, particularly in light of Defendant's deliberate and unhurried conduct throughout his murderous spree. Rather, this statement suggests that Defendant did not want to be interrupted in his mission to take his wife's life. We note particularly that Defendant allowed Mr. Taylor to leave the crow's nest in spite of his familiarity with Defendant and his witnessing of Defendant's murders. The evidence is not sufficient to support the application of this aggravating circumstance.

(i)(7): Felony Murder

The jury also found that Defendant murdered Mr. Hopper while committing or attempting to commit first degree murder. See Tenn. Code Ann. § 39-13-204(0(7). The proof is sufficient to support this aggravating circumstance. In conjunction with shooting Mr. Hopper, Defendant also shot Mrs. Jordan, Mr. Goff and Mr. Taylor, for which the jury convicted him of first degree murder and two counts of attempted first degree murder.

(i)(12): Mass Murder

The jury also applied as an aggravating factor that Defendant committed "mass murder." Tenn. Code Ann. § 39-13-204(0(12). For the reasons set forth above, the proof supports application of this aggravating circumstance.

3. David Gordon

The jury applied four aggravating circumstances in determining to impose the death penalty on Defendant for his murder of David Gordon. We examine in turn the sufficiency of the proof in support of each of these aggravators.

(i)(5): Heinous, Atrocious, or Cruel

As it did with Defendant's murder of Mrs. Jordan, the jury found that Defendant's murder of Mr. Gordon was "especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death." Tenn. Code Ann. § 39-13-204(i)(5). The testimony established that Defendant shot Mr. Gordon at least thirteen times with a fully automatic high-powered assault rifle. Some of these shots were fired after Mr. Gordon was face down on the ground. Medical testimony described Mr. Gordon's intestines as "morselized," and the pathologist stated that there were more wounds than necessary to inflict death and that the wounds were painful. The proof is sufficient to support the jury's application of this aggravating circumstance.

(i)(6): Murder to Avoid Apprehension

The jury also found that Defendant murdered Mr. Gordon "for the purpose of avoiding, interfering with, or preventing [his] lawful arrest or prosecution." Tenn. Code Ann. § 39-13-204(i)(6). We hold that the evidence is not sufficient to support application of this aggravating circumstance. There is no "particular proof in the record demonstrating that Defendant murdered Mr. Gordon in order to prevent his apprehension. Rather, the proof supports the inference that Defendant murdered Mr. Gordon for the same reason he murdered Mr. Hopper: because Mr. Gordon was interfering with his mission to murder his wife and mutilate her body. Before returning to the crow's nest with his assault rifle, Defendant was intercepted by Mr. Gordon. Defendant warned Mr. Gordon to get out of his way. When Mr. Gordon remained in Defendant's way, Defendant removed him with a spray of gunfire. Defendant then proceeded with the remainder of his mission; notably, he did not flee the area after shooting Mr. Gordon in front of numerous witnesses.

The evidence is not sufficient to support the application of this aggravating circumstance.

(i)(7): Felony Murder

The jury also found that Defendant murdered Mr. Gordon while committing or attempting to commit first degree murder. Tenn. Code Ann. § 39-13-204(i)(7). The proof is sufficient to support this aggravating circumstance. Defendant murdered Mr. Gordon in conjunction with his murders of Mrs. Jordan and Mr. Hopper and in conjunction with his attempted murders of Mr. Goff and Mr. Taylor.

(i)(12): Mass Murder

The jury also found that Defendant's murder of Mr. Gordon was part of a "mass murder." See Tenn. Code Ann. § 39-13-204(i)(12). The proof that Defendant shot and killed Mrs. Jordan, Mr. Hopper, and Mr. Gordon on January 11, 2005, is sufficient to support the application of this aggravating circumstance.

C. Weighing of Aggravating and Mitigating Circumstances 1. Duplicitous Aggravating Circumstances

As set forth above, this Court is statutorily required to review as to each death sentence whether the evidence supports the jury's determination that the aggravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt. Defendant argues that the multiple aggravating circumstances were "overlapping" and "duplicitous" and that the felony murder, mass murder, and great risk to two or more persons aggravating circumstances "were so intertwined factually in this case that they would be given too much weight when each was separately considered resulting in a death sentence from an unreliable weighing process." We disagree.

"[A]ggravating circumstance[s] must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983); see also Banks, 271 S.W.3d at 154. This Court has recognized that,

[i]n addition to providing a public declaration of the state's policies regarding the offenses deemed to warrant the use of the death penalty, legislatively created guidelines can also serve to channel the discretion of jurors in determining whether the death penalty is appropriate in a particular case. Thus, they prevent the wanton and freakish imposition of the death penalty.

Banks, 271 S.W.3d at 154 (citation omitted).

The aggravating circumstances at issue in this case each "meet the constitutional requirements of narrowing the class of death penalty eligible persons and channeling juror discretion." Id. Contrary to Defendant's contention, they are not duplicitous. Each of the five aggravating circumstances properly applied by the jury relies upon different policy justifications for rendering a murderer eligible for the death penalty. Moreover, that the same conduct may satisfy certain elements of different aggravating circumstances does not contaminate the jury's sentencing process, or invalidate its weighing process. As conceded by Defendant, neither the Supreme Court nor this Court has ruled unconstitutional the use of the same evidence to satisfy elements of different, otherwise valid aggravating circumstances. See Jones v. United States, 527 U.S. 373, 398-400, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999); Hall, 958 S.W.2d at 692. We again decline to do so.

2. Weighing: Each Victim Renee Jordan

We turn now to our inquiry of whether a reasonable juror could find beyond a reasonable doubt that the five aggravating circumstances proved by the State with respect to Mrs. Jordan's murder outweigh the mitigating circumstances. The proof supporting the aggravating circumstances is set forth above. Mitigating circumstances instructed to the jury included (1) Defendant committed the murder while under the influence of extreme mental or emotional disturbance; (2) Defendant's capacity to appreciate the wrongfulness of his conduct or to conform to the requirements of the law was substantially impaired as a result of mental disease or defect or intoxication which was insufficient to establish a defense to the crime but which substantially affected his judgment; (3) Defendant had adjusted well to the structure of prison life; (4) Defendant expressed remorse, accepted responsibility for his actions, and is willing to accept punishment for his crimes; (5) Defendant has a loving and supportive family; and (6) any other aspect of Defendant's character or record, or any aspect of the circumstances of the offense favorable to Defendant which is supported by the evidence.

In addition to proving aggravating circumstances, the State adduced significant evidence that contradicted much of Defendant's mitigation proof. Accordingly, we hold that a rational juror could easily have concluded that the five aggravating circumstances proved by the State outweighed the various mitigating circumstances.

Jerry Hopper

With respect to the death sentence imposed on Defendant for his murder of Jerry Hopper, we have held that one of the four aggravating circumstances found by the jury — that Defendant committed the murder to avoid apprehension — is not supported by sufficient evidence. We may uphold a death sentence in spite of the erroneous application of an aggravating circumstance when we are convinced beyond a reasonable doubt that the jury would have imposed the same sentence absent its consideration of the invalid aggravator. See State v. Howell, 868 S.W.2d 238, 259 (Tenn. 1993). In conducting this inquiry, we must

completely examine the record for the presence of factors which potentially influence the sentence ultimately imposed. These include, but are not limited to, the number and strength of remaining valid aggravating circumstances, the prosecutor's argument at sentencing, the evidence admitted to establish the invalid aggravator, and the nature, quality and strength of mitigating evidence.

Id. at 260-61.

Invalidation of the (i)(6) aggravator leaves three remaining aggravating circumstances found by the jury as to Defendant's murder of Jerry Hopper. The evidence in support of each of these three remaining aggravators is exceptionally strong. In contrast, the evidence supporting the (i)(6) aggravator was slight, and the prosecution did not stress this circumstance during its sentencing argument. The nature, quality and strength of the mitigating evidence was hotly contested with a "battle of the experts." Our complete examination of the record reveals error in conjunction with Dr. Matthews's testimony; the exclusion of Defendant's parents's testimony at the sentencing hearing; and improper argument by the prosecution. Nevertheless, we have determined that these errors had no prejudicial impact on the jury's verdicts. In light of our analysis under Howell, we conclude that the jury's erroneous consideration of the (i)(6) aggravating factor was harmless beyond a reasonable doubt and that the jury would have imposed the death penalty on Defendant for his murder of Mr. Hopper even had it given no weight to the (i)(6) aggravating circumstance. Moreover, we also hold that a rational juror could easily have concluded that the three aggravating circumstances properly applied to Defendant's murder of Mr. Hopper outweighed the mitigating circumstances beyond a reasonable doubt.

David Gordon

For the same reasons we have determined that the jury would have imposed the death penalty for Defendant's murder of Mr. Hopper had it given no weight to the (i)(6) aggravating factor, we hold that its erroneous application of the (i)(6) aggravating circumstance in the imposition of the death penalty for Defendant's murder of Mr. Gordon is harmless beyond a reasonable doubt. We also hold that a rational juror could easily have concluded that the three aggravating circumstances properly applied to Defendant's murder of Mr. Gordon outweighed the mitigating circumstances beyond a reasonable doubt.

D. Proportionality Review

We next consider whether the sentences imposed in this case are excessive or disproportionate to the penalty imposed in similar cases. This review identifies aberrant, arbitrary, or capricious sentencing by determining whether the death sentence is "`disproportionate to the punishment imposed on others convicted of the same crime. `" State v. Bland, 958 S.W.2d 651, 662 (Tenn. 1997) (quoting Pulley v. Harris, 465 U.S. 37, 43, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984)). We begin with the presumption that a death sentence is proportional with the crime of first degree murder. Hall, 976 S.W.2d at 135. In conducting this review, we employ the precedent-seeking method of comparative proportionality review, in which we compare this case with other cases involving similar defendants and similar crimes. Bland, 958 S.W.2d at 665-67. While no defendants or crimes are identical, a death sentence is disproportionate if a case is "plainly lacking in circumstances consistent with those in cases where the death penalty has been imposed." Id. at 668. Our inquiry, however, does not require a finding that "a sentence less than death was never imposed in a case with similar characteristics." Id. at 665. This Court has repeatedly held that "the pool of cases considered by this Court jn its proportionality review includes those first degree murder cases in which the State seeks the death penalty, a capital sentencing hearing is held, and the sentencing jury determines whether the sentence should be life imprisonment, life imprisonment without the possibility of parole, or death." Reid, 164 S.W.3d at 316.

In reviewing the applicable pool of cases, we consider numerous factors about each of the three murders, including:

(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.

Id. Additionally, we consider numerous factors about Defendant including:

(1) prior criminal record [or activity], if any; (2) age, race, and gender; (3) mental, emotional, and physical condition; (4) role in [each] murder; (5) cooperation with authorities; (6) level of remorse; (7) knowledge of [each] victim's helplessness; and (8) potential for rehabilitation.

Id. at 316-17.

In this case, the proof established that Defendant and Mrs. Jordan were having marital problems. On the morning of January 11, 2005, Mrs. Jordan told Defendant over the phone that he and his two daughters needed to leave the marital residence. Mrs. Jordan hung up before Defendant could respond, making his "blood boil." Defendant gathered several of his many weapons, including two handguns, a fully automatic assault rifle, and a shotgun, together with numerous rounds of ammunition, and loaded these items into the cab of his truck. He drove to the TDOT garage where Mrs. Jordan worked, hitting another vehicle on his way. Once he arrived as his wife's place of employment, Defendant walked up the stairs and into the crow's nest where his wife worked, walking past several people on his way. He had armed himself with one handgun in a holster and another handgun in the small of his back.

Upon walking into the crow's nest through the only door, Defendant surveyed the room and adopted a police stance. Mrs. Jordan was facing away from him and talking on the phone. Defendant drew one of his pistols and, to get his wife's attention, called her name and shot her in the leg. As she turned to face him, he shot her twice more in the torso. He shot her again through the back of her head, and he also walked up and placed the muzzle of his handgun within a foot of her forehead and pulled the trigger.

Three other men were present in the office while Defendant was murdering his wife. When Jerry Hopper rose to try and stop Defendant, Defendant shot him three times. Defendant then shot James Goff four times. By this time, Larry Taylor had dived under a desk, leaving his legs exposed. Defendant shot Larry Taylor twice in the legs as he left the crow's nest.

Returning to his truck, Defendant was confronted by the man who had been driving the car he hit on the way to the garage. Defendant told Mr. Gordon to leave. When Mr. Gordon persisted, Defendant retrieved his fully automatic assault rifle from his truck and shot Mr. Gordon. Defendant continued to shoot Mr. Gordon after he fell to the pavement, inflicting at least thirteen gunshot wounds. Several of these were to Mr. Gordon's backside.

Finished with Mr. Gordon, Defendant returned to the crow's nest with his assault rifle. After dismissing Larry Taylor from the office. Defendant opened fire on his wife's body. There is no proof that he attempted to render any aid to Mr. Hopper, who remained in the crow's nest and was still alive. Defendant then walked to his truck and left the TDOT garage. Defendant did not stop to render aid to Mr. Gordon. Defendant initially tried to evade the police, but was cooperative once he was taken into custody.

Defendant was forty years old when he committed these crimes. He is twice divorced and has four daughters, one with victim Mrs. Jordan. He has no prior criminal convictions. One expert witness diagnosed him with dissociative disorder, major depressive' disorder, generalized anxiety disorder, alcohol abuse, and borderline personality disorder. He had been drinking alcohol at the time of the crimes. While he initially attempted to evade the police, he was cooperative after his apprehension. He was remorseful. His children and family members loved him. Several persons testified about his good behavior while jailed and opined that he would be a model prisoner.

This Court has upheld the death sentence in numerous cases involving the defendant's murder of his wife or girlfriend. See, e.g., State v. Ivy, 188 S.W.3d 132 (Tenn. 2006) (defendant shot estranged girlfriend multiple times because she was going to bring charges of domestic abuse against him; prior violent felony and murder to avoid apprehension aggravating circumstances); Faulkner, 154 S.W.3d 48 (defendant struck wife repeatedly in head with iron skillet; prior violent felony aggravator); State v. Suttles, 30 S.W.3d 252 (Tenn. 2000) (defendant stabbed girlfriend in parking lot; prior violent felony and heinous, atrocious, or cruel aggravating circumstances); State v. Keough, 18 S.W.3d 175 (Tenn. 2000) (defendant stabbed wife after argument in bar and left her to bleed to death in car; prior violent felony aggravator); State v. Hall, 8 S.W.3d 593 (Tenn. 1999) (after arguing with wife, defendant beat, strangled, and drowned her; heinous, atrocious, or cruel aggravator); State v. Hall, 958 S.W.2d 679 (Tenn. 1997) (angry that girlfriend left him, defendant set fire to her car while she was inside; heinous, atrocious, or cruel and felony murder aggravators); State v. Smith. 868 S.W.2d 561 (Tenn. 1993) (defendant stabbed and shot estranged wife; heinous, atrocious, or cruel and mass murder aggravators); State v. Johnson, 743 S.W.2d 154 (Tenn. 1987) (defendant suffocated wife with plastic bag; prior violent felony and heinous, atrocious, or cruel aggravators); State v. Miller, 674 S.W.2d 279 (Tenn. 1984), on remand, 771 S.W.2d 401 (Tenn. 1989) (defendant beat girlfriend to death with fists and fire poker and then stabbed her numerous times; death sentence upheld under heinous, atrocious, or cruel aggravator).

This Court has also upheld the death sentence where the defendant committed mass murder. See, e.g., Reid, 213 S.W.3d 792 (defendant shot and killed three victims during robbery of fast food restaurant; prior violent felony, murder to avoid apprehension, felony murder, and mass murder aggravators); State v. Holton, 126 S.W.3d 845 (Tenn. 2004) (defendant shot and murdered his four children; mass murder and, as to three victims, under-twelve-years-old aggravators); State v. Carruthers, 35 S.W.3d 516 (Tenn. 2000) (defendants shot two men, strangled the mother of one of the men, and buried all three victims alive; prior violent felony, heinous, atrocious, or cruel, felony murder, and mass murder aggravators); Smith, 868 S.W.2d 561 (defendant shot and stabbed his wife and two stepsons; heinous, atrocious, or cruel, murder to avoid apprehension, felony murder, and mass murder aggravators); State v. Van Tran, 864 S.W.2d 465 (Tenn. 1993) (defendant actively participated in restaurant robbery in which three persons were killed; heinous, atrocious, or cruel and mass murder aggravators).

We have also upheld death sentences imposed on defendants with little or no prior criminal history and/or psychological problems. See, e.g., State v. Pike, 978 S.W.2d 904 (Tenn. 1998) (defendant selected victim to murder, bludgeoned her to death, mutilated body and kept piece of skull as souvenir; no prior criminal record and proof of emotional or mental disturbance at time of crime; heinous, atrocious, or cruel and murder committed to avoid apprehension aggravators); Hall, 958 S.W.2d 679 (defendant doused girlfriend with gasoline, locked her in vehicle and set her on fire; no prior criminal convictions but prior illegal substance abuse and proof of personality disorder; heinous, atrocious, or cruel and felony murder aggravators); Bush, 942 S.W.2d 489 (defendant savagely beat and stabbed seventy-nine-year-old acquaintance to death and later boasted of murder; no criminal record and proof of mental disease; heinous, atrocious, or cruel and murder committed to avoid apprehension aggravators); Smith, 868 S.W.2d 561 (defendant murdered his wife by shooting her twice, slashing her throat, and stabbing her with an ice pick; murdered two stepsons by shooting and stabbing; proof of personality disorders; heinous, atrocious, or cruel, murders committed to avoid apprehension, felony murder, and mass murder aggravators); State v. Zagorski 701 S.W.2d 808 (Tenn. 1985) (defendant shot two victims and slashed their throats; no prior criminal record; heinous, atrocious, or cruel and felony murder aggravators); State v. Melson, 638 S.W.2d 342 (Tenn. 1982) (defendant beat victim to death with hammer blows to head after victim discovered defendant's theft; no significant prior criminal history; heinous, atrocious, or cruel and murder committed to avoid apprehension aggravators).

We have upheld death sentences where the defendant presented proof that he was a model prisoner. See, e.g., Banks, 271 S.W.3d 90 (defendant shot two persons during a home robbery, killing one of them; murder committed to avoid apprehension and felony murder aggravators); Austin, 87 S.W.3d 447 (defendant hired another to kill victim; hiring another to commit murder for remuneration aggravator); Terry, 46 S.W.3d 147 (defendant shot and killed victim; heinous, atrocious, or cruel and murder to avoid apprehension aggravators); Cauthern, 967 S.W.2d 726 (defendant strangled victim to death; heinous, atrocious, or cruel aggravator). We have also upheld death sentences where the defendant cooperated with the police and expressed remorse for the crimes. See, e.g., Young, 196 S.W.3d 85 (defendant stabbed victim to death; prior violent felonies, murder to avoid apprehension, and felony murder aggravators); State v. Cole, 155 S.W.3d 885 (Tenn. 2005) (defendant shot victim twice, killing him; prior violent felony aggravator); State v. Irick, 762 S.W.2d 121 (Tenn. 1988) (defendant raped and murdered child; victim less than twelve years old, heinous, atrocious, or cruel, murder to avoid apprehension, and felony murder aggravators).

Our close review of the entire record in this case, together with our review of these and other cases in which the death penalty was imposed and upheld, convinces us that the death penalties imposed in this case for Defendant's brutal murders of Renee Jordan, Jerry Hopper, and David Gordon, are not disproportionate to the penalty imposed for similar crimes.

VII. Cumulative Error

Our close review of the record in this case has revealed several trial errors. We have determined that none of these errors, considered singularly, requires reversal of either Defendant's convictions or any of his death sentences. However, "the combination of multiple errors may necessitate the reversal of a death penalty even if individual errors do not require relief." State v. Cribbs, 967 S.W.2d 773, 789 (Tenn. 1998). Considering the cumulative effect of the errors we have identified and discussed, and considering all of the evidence adduced in this case, we are confident that the combined effect of the trial errors had no impact on the jury's verdict at either the guilt/innocence phase or the sentencing phase of Defendant's trial. Defendant is therefore entitled to no relief on this basis.

CONCLUSION

In accordance with Tennessee Code Annotated section 39-13-206(c)(i) and the principles adopted in prior decisions, we have considered the entire record in this case and conclude that the sentences of death have not been imposed arbitrarily, that the evidence supports the jury's finding that the aggravating circumstances outweigh any mitigating circumstances beyond a reasonable doubt, and that the sentences are not excessive or disproportionate.

We have reviewed all of the issues raised by Defendant and conclude that they do not warrant relief. With respect to issues that were raised in this Court but not addressed in this opinion, including the sufficiency of the evidence supporting Defendant's convictions; the failure to videotape Defendant's statements; the destruction of Defendant's urine and blood samples; the admission of photographs; the jury instructions as to a finding that the aggravating circumstances outweigh the mitigating circumstances; and the constitutionality of Tennessee's lethal injection procedure and protocol; we affirm the decision of the Court of Criminal Appeals. Relevant portions of that opinion are incorporated herein and attached as an appendix. Defendant's convictions and sentences, including all three sentences of death, are affirmed.

The sentences of death shall be carried out as provided by law on the 27th day of September, 2011, unless otherwise ordered by this Court or other proper authority. It appearing that Defendant David Lynn Jordan is indigent, the costs of this appeal are taxed to the State of Tennessee.

APPENDIX

(Excerpts from the Decision of the Court of Criminal Appeals)

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

September 9, 2008 Session

STATE OF TENNESSEE v. DAVID LYNN JORDAN

Direct Appeal from the Circuit Court for Madison County

No. 05-431 Roy B. Morgan, Jr., Judge

ALAN E. GLENN, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and CAMILLE R. MCMULLEN, JJ., joined.

George Morton Googe, District Public Defender, Jackson, Tennessee, and Lloyd Tatum, Henderson, Tennessee, for the appellant, David Lynn Jordan.

Robert E. Cooper, Jr., Attorney General and Reporter; James E. Gaylord, Assistant Attorney General; James G. Woodall, District Attorney General; and Jody Pickens, Assistant District Attorney General, for the appellee, State of Tennessee.

ANALYSIS I. Guilt Phase Issues

A. Sufficiency of the Evidence

The defendant does not challenge the sufficiency of the evidence to support his convictions for first degree murder.^fn2 Notwithstanding, we have reviewed the evidence introduced at trial and conclude that there is sufficient evidence contained in the record to support a finding by the trier of fact that the defendant was guilty of first degree murder on all three counts beyond a reasonable doubt. Tenn. R.App. P. 13(e).

II. Penalty Phase Issues

A. Failure to Videotape Statements

The defendant contends that his rights to a fair trial, including his right to confrontation, were violated by the interpretations of his confession to the investigator which was not videotaped. Investigator Tyreece Miller testified that the defendant was not under the influence at the time of his interview. He added that the defendant was bragging and proud. The defendant asserts that the police department had video recording equipment. At trial, Investigator Miller testified that it would have been against standard operating procedure for him to take the video equipment to the Criminal Justice Complex. As a result, the defendant's statement was comprised of the answers to the questions Investigator Miller asked him, which Miller wrote down. The defendant argues that had the jurors been privy to the defendant's actual demeanor when giving his statement, they could have determined for themselves if the expressions of the defendant were really those of regret rather than bragging. The defendant concludes that the denial of electronic or video recording denied the trier of fact an essential tool in determining a life or death sentence.

In State v. Rollins, 188 S.W.3d 553, 564-65 (Tenn. 2006), our supreme court held that there was no state or federal constitutional right requiring the electronic recording of interrogations. Indeed, the court wrote:

In State v. Godsey, 60 S.W.3d 759 (Tenn. 2001), this Court rejected the argument that failing to electronically record interrogations requires suppression of any statements resulting from the interrogations. We acknowledged that courts in Alaska and Minnesota require interrogations to be electronically recorded, id. at 771, but we pointed out that courts in fifteen other states had refused to impose such a requirement, id. at 772 n. 7. More importantly, we emphasized that "neither the state nor the federal constitution requires electronic recording of interrogations." Id. at 771.

Although we found no constitutional or statutory authority mandating that interrogations be electronically recorded, we recognized in Godsey that such a rule would reduce the amount of time spent in court resolving disputes over what occurred during interrogations and relieve the judiciary of the burden of resolving such disputes. Id. at 772. We further opined that given "the slight in-convenience and expense associated with electronically recording custodial interrogations, sound policy considerations support its adoption as a law enforcement practice." Id. Ultimately, however, we held that "the issue of electronically recording custodial interrogations `is one more properly directed to the General Assembly. `" Id. (quoting State v. Odom, 928 S.W.2d 18, 23-24 (Tenn. 1996)). In so holding, we emphasized that "`[t]he determination of public policy is primarily a function of the legislature. `" Id. (quoting Griffin v. Shelter Mut. Ins. Co., 18 S.W.3d 195, 200-01 (Tenn. 2000)).

Id. at 564.

Our supreme court opined that:

whether, as a matter of public policy, Tennessee should mandate electronic recording of custodial interrogations is a question for the General Assembly, not this Court. A defendant's statement need not be suppressed because a law enforcement agency has adopted a policy against recording interrogations. Such a policy does not violate the heightened due process concerns that apply in capital cases.

Id. at 565. Accordingly, we cannot conclude that the defendant's rights to a fair trial were violated by the failure to have his statement videotaped. The defendant is not entitled to relief on this issue.

C. Prosecutorial Misconduct 3. Destruction of Urine and Blood Samples

The defendant claims that his rights to a reliable sentencing determination, as well as his rights to confrontation, due process, and to present a defense, were violated by the State's destruction of urine and blood samples. The defendant asserts that the question of premeditation and issues regarding sentencing and mitigation were directly affected by his mental state and involved what effects alcohol and drugs could have had on that mental state. The defendant contends as constitutional error the fact that the Tennessee Bureau of Investigation destroyed the blood and urine samples which rendered them unavailable for further testing and made it impossible to accurately judge his alcohol and blood content through separate analysis.

In State v. Ferguson, 2 S.W.3d 912, 914 (Tenn. 1999), the Tennessee Supreme Court addressed the issue as to what factors guide the determination of the consequences that flow from the State's loss or destruction of evidence which the accused contends would be exculpatory. The supreme court answered that the critical inquiry was whether a trial, conducted without the destroyed evidence, would be fundamentally fair. Id. In reaching its decision, the Ferguson court noted that its inquiry was distinct from one under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963), and United States v. Agurs, 427 U.S. 97, 110-11, 96 S.Ct. 2392, 2401, 49 L.Ed.2d 342 (1976), because those two cases addressed "plainly exculpatory" evidence, while Ferguson addressed a situation "wherein the existence of the destroyed videotape was known to the defense but where its true nature (exculpatory, inculpatory, or neutral) can never be determined." 2 S.W.3d at 915.

The court went on to explain that the first step in the analysis is determining whether the State had a duty to "preserve" the evidence. Id. at 917. "Generally speaking, the State has a duty to preserve all evidence subject to discovery and inspection under Tenn. R.Crim. P. 16, or other applicable law." Id. (footnote omitted). However,

"[w]hatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable Continued evidence by other reasonably available means."

Id. (quoting California v. Trombetta, 467 U.S. 479, 488-89, 104 S.Ct. 2528, 2533-34, 81 L.Ed.2d 413 (1984)). Only if the proof demonstrates the existence of a duty to preserve and further shows that the State has failed in that duty must a court turn to a balancing analysis involving consideration of the following factors: "1. The degree of negligence involved; 2. The significance of the destroyed evidence, considered in light of the probative value and reliability of secondary or substitute evidence that remains available; and 3. The sufficiency of the other evidence used at trial to support the conviction." Id. (footnote omitted).

The record reflects that the defendant's blood and urine samples were taken on January 11, 2005, and destroyed on January 3, 2006. Between the offense date and the time the samples were destroyed, the defendant failed to file a motion to preserve the evidence. During the trial, the defense presented the testimony of Special Agent John W. Harrison, an analytical toxicologist with the TBI. Special Agent Harrison testified that the result of the defendant's urine test was .17, a reading reflecting the consumption of alcohol. TBI Agent Kelly Hopkins testified that the defendant's urine was positive for Citalopram and Benzodiazepines. Special Agent Harrison also testified extensively as to the metabolism of alcohol.

First, the State is not required to preserve samples taken for the limited purpose of determining the defendant's blood-alcohol level. See Trombetta, 467 U.S. at 491, 104 S.Ct. at 2535. It is common knowledge that human blood is perishable, and specimens of blood can only be maintained for a short period of time. Also, such evidence would not be expected to play a significant role in the accused's defense. Id. Moreover, it appears from the record that the TBI acted in good faith and apparently destroyed the blood specimen in conformity with the established procedures of the laboratory. State v. Bmumell, 696 S.W.2d 362, 363-64 (Tenn.Crim.App. 1985); State v. Dowell, 705 S.W.2d 138, 141-42 (Tenn.Crim.App. 1985). The evidence did not possess any exculpatory value that was apparent prior to its destruction, as the test results were available. Accordingly, the TBI had no duty to preserve the evidence beyond its established procedures. Moreover, even if the State had a duty to preserve the blood sample and failed to do so, the defendant has failed to demonstrate that his right to a fair trial was affected by the destruction of the evidence. See Ferguson, 2 S.W.3d at 917. "[T]he mere loss or destruction of evidence does not constitute bad faith." Edward Thompson v. State, No. E2003-01089-CCAR3-PC, 2004 WL 911279, at *2 (Tenn.Crim.App. Apr. 29, 2004), perm, to appeal denied (Tenn. Oct. 4, 2004).

The second factor is the significance, of the missing evidence. The defendant has not offered any proof that the State acted improperly in collecting or testing his blood. It is undisputed that the defendant consented to have his blood drawn and the specimen provided to the officer for the purpose of drug and alcohol testing. At trial, the defendant presented the testimony of Special Agent Harrison, as we have stated, and there was no evidence of tampering prior to testing. The defendant has failed to offer any evidence that the test results reported by Agent Harrison do not accurately reflect the contents of his blood and urine.

Finally, because there is no indication that additional testing of the defendant's blood and urine would have yielded results different from those found by the TBI, it cannot be said that evidence critical to the defense was excluded. Moreover, as it was the defendant who introduced the test results at trial, he cannot complain that he was deprived of his right to present a defense. The defendant is not entitled to relief on this claim.

F. Introduction of Photographs

The defendant argues that the photographs admitted during the penalty phase were "overly prejudicial and gruesome." Specifically, the defendant argues that exhibit 141, a photograph of the TDOT office depicting blood in the corner was "gruesome and prejudicial." Without singling out any of the other photographic exhibits, the defendant argues, without elaboration, that they are "overly prejudicial and gruesome."

Before entry into evidence of the photographs that the defendant argues were prejudicial, the trial court conducted a lengthy hearing, during which the court examined each of the photographs which the State sought to enter, heard the arguments of counsel as to each photograph, and then ruled as to each photograph. As to all of the photographs, the State explained what each depicted and its relevance to the State's burden of proof. The defense responded that, as to the injuries to the deceased victims, the autopsy reports sufficiently explained the nature and extent of the injuries so that the photographs, some of which defense counsel described as "gory," would prejudice the defendant.

As to the photographs of the deceased victim, David Gordon, the court required that the State remove several of the photographs intended to be entered into evidence and explained the relevance of the others:

I don't want any duplication on the Gordon photos. For example, the last two photos in the area that [defense counsel] was not certain if he was pronouncing it right, take one or two of those out, and there might be one other one that shows the same thing. But definitely on the last two I want the State to make a decision.

I want to make it very clear that as I view the diagram referred to by [defense counsel], there's such a substantial difference in appreciating the type of injuries sustained in the diagram versus seeing in the photos, and again the Court finds that it is very probative in this case, and since we're at a sentencing hearing and the State's arguing certain aggravators, . . . probative value outweighs the prejudicial effect under these circumstances.

General, show us which one you're going to pull out. Take it out. And at the very first there might have been two that were somewhat of a duplication.

As to the two photographs of the wounded victim, [James] Goff, the court explained why these would be admitted:

Well[,] the aggravating factor [the prosecutor] stated was 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's the one alluded to, and the State says this would be relevant to that particular aggravator.

Under the circumstances for again the reasons I stated earlier, I believe it would be appropriate because the State wants to use it toward the proof of aggravator. There are only two photos here.

The court explained why the two photographs of the wounded victim, Larry Taylor, would be admitted:

The Court's viewing those two photos of Larry Taylor. It's very limited photos in that there's a draping, a white cloth around each of the leg wounds. There is a small amount of blood on the white cloth, but it's certainly not grotesque or something that would in itself outrage the jury. Again, we're at a sentencing hearing, and since the State is wanting to use these two photos for the same reason, I'll stand on the basis I stated earlier when we first talked about photos and let those two photos be introduced at this time, but again, note [defense counsel] now raises the same objection that he stated when we began.

As to the photographs of the deceased victim, Donna Renee Jordan, the court determined that certain of the photographs would not be admitted because they were duplicative and required that portions of others be covered. The court allowed only one photograph of the victim's body at the crime scene and explained why others were admissible:

Again, under the Leach case, it was certainly made clear that certain photos might be very unpleasant, but again, we're dealing with the sentencing phase, and we're dealing with the burden on the State. The jury has heard quite a bit of detail through the guilt phase before they found this Defendant guilty of first degree murder about what took place, the firing sequence. I just believe when you weigh probative and prejudicial in this case, again noting it's the sentencing phase, it's highly, highly probative as the aggravators that the State has pointed out and must prove. I'll allow the one photo in. And I'll note, this is the only one from the crime scene that the State is asking to show under these circumstances.

The admission of photographs is generally discretionary with the trial court and, absent an abuse of that discretion, will not result in the grant of a new trial. State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). However, a photograph must be relevant to an issue that the jury must decide before it may be admitted into, evidence. State v. Vann, 976 S.W.2d 93, 102 (Tenn. 1998); State v. Braden, 867 S.W.2d 750, 758 (Tenn.Crim.App. 1993); see also Tenn. R. Evid. 401, 402. Evidence that is not relevant to prove some part of the prosecution's case should not be admitted solely to inflame the jury and prejudice the defendant. Additionally, the probative value of the photograph must outweigh any unfair prejudicial effect that it may have upon the trier of fact. Vann, 976 S.W.2d at 102-03; see also Tenn. R. Evid. 403 ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice[.]").

While it can be said that photographs of crime victims who suffer serious bodily injury are prejudicial by their very nature, a prejudicial photograph is not per se excludable. What is excluded is evidence which is unfairly prejudicial, in other words, evidence which has an undue tendency to suggest a decision on an improper basis, frequently, though not necessarily, an emotional one. Banks, 564 S.W.2d at 951.

Exhibit 141 is a photograph of the crime scene which shows a puddle of blood on the floor and Renee Jordan's arm. The trial court determined that the photograph was relevant and not prejudicial. We agree. Moreover, this court cannot conclude that Exhibit 141 was particularly gruesome or inflammatory. Thus, we conclude that the probative value of the photograph is not outweighed by its prejudicial effect, and the trial court did not abuse its discretion in allowing its admission. Further, it does not affirmatively appear that the "admission of the photograph [] has affected the results of the trial." See Banks, 564 S.W.2d at 953. The defendant is not entitled to relief on this issue.

As to the remaining photographs which are not specifically challenged on appeal, this court takes notice of the following proceedings in the trial court. See Tenn. R.App. P. 27. Out of the presence of the jury, the prosecution revealed to the trial court the collective photographs it planned to introduce during the penalty phase. The first set of photographs was described as follows:

1. A photograph of David Gordon, postmortem, showing an abrasion to the right side of his forehead taken at the medical examiner's office.

2. A photograph of David Gordon on a table showing injuries to his right arm and right abdomen. A surgical scar is also visible.

3. A photograph of David Gordon revealing in detail impact of a wound resulting from asphalt. The photograph also shows injuries to the abdomen, showing the gunshot wounds.

4. A photograph of the right hip area of David Gordon showing gunshot wounds and also evidence of an intermediate target striking his legs.

5. A photograph of David Gordon showing injury to the left abdomen, showing approximately three gunshot wounds. Also, there is evidence of surgical scars present in the photograph.

6. A photograph of David Gordon's buttocks' region, showing in detail the gunshot wounds. Also visible are wounds to the left hip and left torso area.

7. A photograph of David Gordon's buttocks' region. Also visible are wounds to the right hip and upper right thigh.

8. A photograph showing a close-up of the wounds of David Gordon showing injuries to the peritoneum, the area between the scrotum and the rectum.

Defense counsel objected to this set of photographs stating that "some of these photographs are quite gory." A specific complaint was made to the photograph of David Gordon's peritoneum. In reviewing this set of photographs, the trial court determined that the photographs were probative in regards to establishing the type of injuries sustained. In this regard, the lower court found that the probative value outweighed the prejudicial effect.

A second set of photographs was described as follows: "photograph taken at the ER showing James Goff, and particularly the injury to his submandibular region." The defendant objected to this set of photographs, stating that the photographs were not those of the deceased. He added that it was prejudicial and improper to show a photograph of a wounded person to the jury in this case. The trial court determined that the photograph was relevant to the State's alleged aggravator that the defendant knowingly created a great risk of death to two or more persons other than the victim murdered.

A third set of photographs depicted injuries sustained to Larry Taylor. The trial court determined that the photograph was relevant to the State's alleged aggravator that the defendant knowingly created a great risk of death to two or more persons other than the victim murdered.

A fourth set of photographs was described as follows:

1. A photograph of Renee Jordan showing the gunshot wound to the forehead.

2. A photograph of Renee Jordan depicting the entry wound to the back of the head.

3. A photograph of Renee Jordan depicting an exit wound to the face, specifically the side of the nostril.

4. A photograph of Renee Jordan depicting the entrance wound to the fore-head and the exit wound.

5. A photograph of the total body of Renee Jordan depicting multiple bullet wounds to the abdomen and right breast.

6. A close-up shot of Renee Jordan's breast.

Reviewing the photographs, the trial court removed duplicitous photographs and determined that the photographs were admissible in support of the aggravators alleged by the State.

Additionally, a photograph showing Renee Jordan at the scene lying on the floor with blood surrounding her head was admitted. The trial court determined that the photograph was highly probative of the aggravators alleged by the State.

Photographs of a corpse are admissible in murder prosecutions if they are relevant to the issues at trial, not-with-standing their gruesome and horrifying character. See Banks, 564 S.W.2d at 950-51. In this respect, photographs of murder victims are prejudicial by their very nature. However, prejudicial evidence is not excludable per se. If this were true, all evidence of a crime would be excluded at trial. Rather, what is excluded is evidence which is unfairly prejudicial, in other words, evidence which has an undue tendency to suggest a decision on an improper basis, frequently, though not necessarily, an emotional one. Id. at 951.

The photographs admitted by the trial court were relevant to supplement the testimony of the medical examiner and to support the aggravating circumstances alleged by the State. See, generally, State v. Cole, 155 S.W.3d 885, 913 (Tenn. 2005) (Appendix). We conclude that the probative value of the photographs was not out-weighed by their prejudicial effect, and the trial court did not abuse its discretion in allowing their admission. Further, it does not affirmatively appear that the "admission of the photographs has affected the results of the trial." See Banks, 564 S.W.2d at 953. The defendant is not entitled to relief on this issue.

G. Jury Instruction as to Aggravators and Mitigators

The defendant contends that it was a violation of his right to a jury trial under both the Tennessee and United States Constitutions and to a reliable result under the Eighth Amendment for the jury to be instructed that "if aggravators outweigh mitigators beyond a reasonable doubt, the sentence shall be death." In the defendant's view, this instruction removes jury discretion in the sentencing decision. This argument was addressed and rejected in State v. Boyd, 797 S.W.2d 589, 596 (Tenn. 1990), where our supreme court found that "[t]here is no likelihood that this statutory language imposes a `presumption of death. `" See State v. Howell, 868 S.W.2d 238, 258 (Tenn. 1993); State v. Wright, 756 S.W.2d 669, 674 (Tenn. 1988); State v. Teague, 680 S.W.2d 785, 790 (Tenn. 1984). Accordingly, the defendant is not entitled to relief on this issue.

I. Lethal Injection Unconstitutional

The defendant asserts that Tennessee's lethal injection procedure and protocol violates principles of cruel and unusual punishment. In support of his claim, the defendant relies upon the United States Supreme Court's grant of certiorari in Baze v. Rees, 551 U.S. 1192, 128 S.Ct. 34, 168 L.Ed.2d 809 (2007) (granting review to determine the constitutionality of Kentucky's three-drug lethal injection protocol).

On April 16, 2008, the United States Supreme Court decided Baze v. Rees, up-holding the State of Kentucky's lethal-injection protocol as not being violative of the Eighth Amendment. Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008). The Supreme Court's plurality found that cruel and unusual punishment occurs where lethal injection as an execution method presents a "substantial" or "objectively intolerable risk of serious harm" in light of "feasible, readily implemented" alternative procedures. Id. at 51-52, 1531-32. However, the analysis was focused on the manner of lethal injection. Id. at 60-62, 1537. The Baze Court held:

Kentucky has adopted a method of execution believed to be the most humane available, one it shares with 35 other States . . . [which] if administered as intended . . . will result in a painless death. The risks of maladministration . . . such as improper mixing of chemicals and improper setting of IVs by trained and experienced personnel — cannot remotely be characterized as "objectively intolerable." Kentucky's decision to adhere to its protocol despite these asserted risks, while adopting safeguards to protect against them, cannot be viewed as probative of the wanton infliction of pain under the Eighth Amendment.

Baze, 553 U.S. at 62, 128 S.Ct. at 1537-38.

For "the disposition of other cases un-certain," Chief Justice Roberts stated that "[a] State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets [the `substantial risk'] standard." Id. at 61, 1537 (emphasis added). The protocol adopted in Kentucky involves the combination of three drugs: the first, sodium thiopental, induces unconsciousness when given in the specified amounts and thereby ensures that the prisoner does not experience any pain associated with the paralysis and cardiac arrest caused by the second and third drugs, pan curonium bromide and potassium chloride.

Among other things, Kentucky's lethal injection protocol reserves to qualified personnel having at least one year's professional experience the responsibility for inserting the intravenous (IV) catheters into the prisoner, leaving it to others to mix the drugs and load them into syringes; specifies that the warden and deputy warden will remain in the execution chamber to observe the prisoner and watch for any IV problems while the execution team administers the drugs from another room; and mandates that if, as determined by the warden and deputy, the prisoner is not unconscious within 60 seconds after the sodium thiopental's delivery, a new dose will be given at a secondary injection site before the second and third drugs are administered.

Baze, 553 U.S. at 35, 128 S.Ct. at 1522. Tennessee has adopted a three-drug protocol for lethal injection similar to that of Kentucky. See, e.g., Baze, 553 U.S. at 44, 128 S.Ct. at 1527; Workman v. Bredesen, 486 F.3d 896, 902 (6th Cir. 2007); Abdur'Rahman v. Bredesen, 181 S.W.3d 292, 314 (Tenn. 2005). Therefore, we are unable to conclude that Tennessee's lethal injection procedure, which appears facially similar to the procedure considered in Baze, is unconstitutional. The defendant is not entitled to relief on this claim.

ALAN E. GLENN, JUDGE