On April 14, 2003, two weeks before the date Tennessee had set for his execution, Paul Dennis Reid Jr. wrote a ninety-two-page letter to the governor, the state supreme court, the attorney general and the district attorney. After four years of consideration, he wrote, he had decided to give up any further appeal in the Captain D’s case and to accept the jury’s verdict and the sentence of death by lethal injection. That letter began a decade of litigation over whether he was sane enough to make that choice, and four of the seven Tennessee Supreme Court opinions collected here are about that question rather than about the murders.
The other three set out the crimes. Reid had moved from Texas to Nashville to pursue a career in country music and was working at a Shoney’s restaurant. On the morning of Sunday, February 16, 1997, Sarah Jackson, sixteen, a high school student who worked part time, and Steve Hampton, twenty-five, the manager, were shot as they prepared to open the Captain D’s on Lebanon Road in Donelson, and were found in the walk-in cooler. On March 23, at a McDonald’s on Donelson Pike, Ronald Santiago, Andrea Brown, seventeen, and Robert Sewell, twenty-three, were shot in the head after closing; a fourth employee fought back when the gun malfunctioned, was stabbed repeatedly, and survived by pretending to be dead. On the night of April 23, Angela Holmes, twenty-one, and Michelle Mace, sixteen, were taken from the Baskin-Robbins on Wilma Rudolph Boulevard in Clarksville, and found the next morning at the Dunbar Cave State Natural Area, stabbed in the neck. He was tried separately for each restaurant and sentenced to death each time, and the court affirmed the three judgments in 2002, 2005 and 2006.
The first opinion, from 1998, came before any trial and settled a rule of procedure for every capital case in the state: a defendant who means to offer expert testimony about his mental condition in mitigation must give notice before trial, and may then be examined by an expert the prosecution chooses. The last, from January 24, 2013, reviewed the hearings held in 2008 on petitions his sister had filed as his “next friend” with the Office of the Post-Conviction Defender, and upheld the finding that he was competent to abandon his appeals. Reid died at Nashville General Hospital on November 1, 2013, at fifty-five, with none of the sentences carried out.
These are opinions of a court deciding appeals, and their accounts of the three crimes are summaries of the trial evidence in the form most favorable to the verdicts. What they do not settle is the question the last four spend most of their length on. Reid’s lawyers and his sister argued for years that his belief that the government was persecuting him was a delusion that disabled him from choosing to die; the state’s experts said he was competent, and the courts agreed with them. Justice Birch dissented from the death sentences in more than one of these cases on the ground that Tennessee’s proportionality review could not do what it claimed.
The victims keep their names, as do the police officers, TBI agents, paramedics, medical examiners, psychiatrists, psychologists, lawyers and judges, and so does Reid’s sister Linda Martiniano, who brought the 2013 appeal in her own name. The McDonald’s employee who survived is given initials, as are the relatives of the victims who gave impact testimony, the eyewitnesses who described cars and men near the three restaurants, Reid’s co-workers, friends and former landlord, the man who sold him the pistols, his other sister, a twelve-year-old boy who testified with his mother, and the prospective jurors named in the jury-selection claims. Case citations that carry a private name are left as the court printed them.
The seven opinions run to about 125,000 words, and the document is printed complete from the Caselaw Access Project text of the South Western Reporter, each opinion followed by its own footnotes. Several issue headings appear only as “[Deleted: …]”, where parts of an opinion were left out of the published report, and those gaps are in the source. We closed words split across lines where the joined form appears elsewhere in the text and left the reporter’s misprints alone, among them “Seryeant Hunter” in one heading and the “200B” execution date in the 2013 opinion.
STATE of Tennessee, Appellee, v. Paul Dennis REID, Appellant, and State of Tennessee, Appellee, v. Christopher Davis, Appellant.
Supreme Court of Tennessee, at Nashville.
Nov. 23, 1998.
J. Michael Engle, Assistant Metro Public Defender, Nashville, Tennessee, Michael R. Jones, Clarksville, Tennessee, for appellant Reid:
Hershell Koger Pulaski, Tennessee, Niles Nimmo Nashville, Tennessee, for appellant Davis:
Tennessee Association Criminal Defense Lawyers, Jefferson T. Dorsey, Nashville, Tennessee, for amicus curiae:
John Knox Walkup, Attorney General & Reporter, Michael E. Moore, Solicitor General, Public Defender, Kathy Morante, Assistant District Attorney General, Nashville, Tennessee, Victor S. Johnson, III, District Attorney General, John Wesley Carney, Jr., District Attorney General, for State of Tennessee:
[OPINION BY DROWOTA, J. type=majority]
OPINION
DROWOTA, J.
We granted and consolidated the applications for permission to appeal filed on behalf of Paul Dennis Reid and Christopher Davis to consider the following three important questions of criminal procedure.
1.Whether a defendant must give pretrial notice of the intent to introduce expert testimony of his or her mental condition as mitigation at the sentencing phase of a capital trial?
2. If so, whether, at the request of the State, the trial court may order a mental examination of the defendant by a mental health expert selected by the State?
3. If so, what procedures should be followed in connection with this notice and examination?
For the reasons herein explained, we hold that a capital defendant must file pretrial notice of intent to present expert testimony regarding mental condition as mitigation evidence at the sentencing phase of the trial. Once such a notice is filed, the trial court, upon request of the State, may order the defendant to undergo a psychiatric evaluation by a mental health expert selected by the State. The defense will be afforded access to any expert reports prior to trial. The State will be afforded access to the reports only after a jury returns a verdict of guilty and the capital defendant confirms his or her intent to offer expert mental condition evidence in mitigation at the sentencing hearing. Accordingly, the decisions of the Court of Criminal Appeals are affirmed as modified.
BACKGROUND
Because this appeal involves questions of law, the relevant facts are undisputed. The defendant, Paul Dennis Reid is charged in Davidson County with two counts of premeditated first degree murder and two alternate counts of first degree felony murder. Reid is also charged in Montgomery County with two counts of first degree premeditated murder and two alternate counts of first degree felony murder for two separate killings. The defendant Christopher Davis is charged in Davidson County with two counts of premeditated first degree murder and two alternate counts of felony first degree murder. These three cases have been assigned to three different trial judges.
In each of these cases, the State has given notice of its intention to seek the death penalty, and in each of these cases, the trial judge has ruled that the defense must provide pretrial notice to the State of intent to introduce evidence relating to mental condition as mitigation proof during the sentencing phase of the capital trial. In addition, all three trial courts ruled that Reid and Davis must undergo a psychiatric evaluation by a mental health expert selected by the State' once the notice is filed. Each trial judge entered an order delineating the procedure to govern the evaluation once the notice is filed. The orders differed in one primary respect: the procedure to be followed after completion of the mental evaluation.
The orders entered in the Davidson County cases provide for the report of the mental health expert to be delivered to the court once the evaluation is complete. The trial judge will then provide the report to defense counsel to allow each of the defendants to decide, with the assistance of counsel, whether or not to proceed with the introduction of evidence of mental condition at the sentencing phase. If the defense elects to proceed with the introduction of mental condition evidence, the expert’s report is given to the prosecution prior to trial. If, however, the defense elects to forego introduction of mental condition evidence, the State is not permitted to review the expert’s report at all.
In contrast, the order entered by Judge Gasaway in Montgomery County provides for the report of the State selected expert, and the report of any defense mental health expert, to be filed under seal with the trial court before commencement of jury selection. The reports will be released only in the event the jury returns a verdict of guilty of first degree murder and the defendant confirms his intent to offer mental condition evidence at sentencing. If the defendant withdraws his previously filed notice of intent to offer such evidence, the reports will not be released.
Following entry of the orders, both the Davidson and Montgomery County trial courts allowed the defendants to seek interlocutory appeals. The Court of Criminal Appeals accepted review and, in separate decisions, upheld the validity of the pretrial notice requirement and expert mental evaluation imposed upon Reid and Davis. The intermediate court adopted the procedural guidelines delineated by the Montgomery County Circuit Court which limits access to any expert reports until the jury returns a verdict of guilty and the capital defendant confirms his intent to introduce expert mitigation proof of mental condition at the sentencing hearing.
From those decisions, Reid and Davis filed separate applications for permission to appeal to this Court, and on September 30, 1998, we granted the applications, consolidated the appeals, and set the cause for hearing on October 15, 1998. For the reasons that follow, we affirm as modified the decisions of the Court of Criminal Appeals.
ANALYSIS
A. Authority To Impose Requirements
In this Court, the defendants first argue that the trial courts had no legal authority to require a capital defendant either to provide pretrial notice of intent to offer mental condition evidence or to submit to an evaluation by a State selected mental health expert. According to the defendants Tenn. R.Crim. P Rule 12.2 is limited in application to expert mental condition evidence relevant to the determination of guilt or innocence. The defendants likewise argue that Tenn. R.Crim. P. 16 requires disclosure of an expert’s report only if the report will be introduced by the defendant as evidence in chief at trial or if the report was prepared by a witness the defendant intends to call at trial and the report relates to the testimony of the witness.
While conceding that neither Rule 12.2 nor Rule 16 specifically refers to the sentencing phase of a capital trial, the State emphasizes that appropriate provisions of those Rules previously have been applied in the context of a capital sentencing proceeding. Where, as here, no rule precisely addresses the situation, the State argues that the trial courts have inherent power to adopt a procedure which is consistent in principle and spirit with existing rules of criminal procedure and with the statutory scheme governing capital sentencing proceedings.
Clearly no existing rule of criminal procedure precisely governs the issues in this appeal. While Rule 12.2 certainly is analogous, it specifically governs the notice and evaluation required when a defendant intends to introduce expert testimony of mental condition at the guilt phase of a trial. It does, not specifically require the defendant in a capital case to give notice of his or her intent to introduce expert mental condition testimony at the sentencing phase. Likewise, Rule 16 is designed to govern reciprocal discovery prior to trial and does not address the various interests implicated by the issues in this appeal. The inapplicability of these rules does not mandate the conclusion that the trial courts had no legal authority to impose notice, evaluation, and disclosure requirements.
It is well settled that Tennessee courts have inherent power to make and enforce reasonable rules of procedure. Shettles v. State, 209 Tenn. 157, 161-62, 352 S.W.2d 1, 3 (1961); Brewer v. State, 187 Tenn. 396, 400, 215 S.W.2d 798, 800 (1948); Denton v. Woods, 86 Tenn. 37, 5 S.W. 489 (1887); State v. Johnson, 673 S.W.2d 877, 882 (Tenn.Crim.App.1984); Haynes v. McKenzie Memorial Hosp., 667 S.W.2d 497, 498 (Tenn.App.1984); Hull v. State, 543 S.W.2d 611, 612 (Tenn.Crim.App.1976). Indeed, the General Assembly has explicitly recognized this inherent power. For example, Tenn.Code Ann. § 16-3-407 (1994 Repl.), provides that “[e]aeh of the other courts of this state may adopt additional or supplementary rules of practice and procedure not inconsistent with or in conflict with the rules prescribed by the supreme court.” Moreover, Tenn. R.Crim. P. 57 recognizes that issues will arise during criminal trials for which “no procedure is specifically prescribed by rule” and provides that trial courts have the inherent power to “proeeed in any lawful manner not inconsistent with these rules or with any applicable statute.”
Accordingly, we hold that when issues arise for which no procedure is otherwise specifically prescribed, trial courts in Tennessee have inherent power to adopt appropriate rules of procedure to address the issues. Rules adopted pursuant to this inherent power must be consistent with constitutional principles, statutory laws, and generally applicable rules of procedure. Indeed, when circumstances mandate the adoption of supplemental rules, trial courts should pattern such rules upon analogous generally applicable rules of procedure. Trial courts must also bear in mind that all procedural rules should be designed to provide for the just determination of every criminal proceeding, and to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay. See Tenn. R.Crim. P. 2. Applying these guiding principles, we affirm and adopt the notice and evaluation requirements fashioned by the trial courts in these capital cases.
B. Notice and Evaluation Requirements
A capital defendant has a federal constitutional right to present mitigation evidence. Lockett v. Ohio, 438 U.S. 586, 604-05, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978); State v. Cazes, 875 S.W.2d 253, 266 (Tenn.1994). In accordance with that constitutional mandate, the Tennessee statute which governs capital sentencing proceedings provides that evidence may be offered during the sentencing phase which tends to “establish or rebut any mitigating factors.” Tenn. Code Ann. § 39-13-204(c) (1997 Repl.). Among those mitigating factors specifically enumerated in the statute are three which directly relate to a defendant’s mental condition: (1) “[t]he murder was committed while the defendant was under the influence of extreme mental or emotional disturbance;” (2) “[t]he defendant acted under extreme duress or under the substantial domination of another person;” (3) “[t]he capacity of the defendant to appreciate the wrongfulness of the defendant’s conduct or to conform the defendant’s conduct 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 the defendant’s judgment.” Tenn.Code Ann. § 39 — 13—204(j)(2), (6) & (8) (1997 Repl.). In addition, the statute directs the jury to consider “[a]ny other mitigating factor which is raised by the evidence produced by either the prosecution or defense at either the guilt or sentencing hearing.” Tenn.Code Ann. § 39 — 13—204(j)(9) (1997 Repl.). Clearly, a capital defendant has a constitutional and statutory right to present mitigation proof relating to his or her mental condition.
Juxtaposed against a capital defendant’s right to introduce a broad range of proof in mitigation is the State’s right to offer evidence to rebut the mitigating factors. Critical to any effective rebuttal of expert mitigation proof regarding mental condition is the State’s ability to conduct an independent psychiatric evaluation of the defendant. As was aptly explained by a United States District Court:
Psychiatry is far from an exact science because it does not rely primarily on the analysis of raw data. Instead, the basic tool of psychiatric study remains the personal interview, which requires rapport between the interviewer and the subject. The Government’s expert cannot meaningfully address the defense expert’s conclusions unless the Government’s expert is given similar access to the basic tool of his or her area of expertise: an independent review with and examination of the defendant.
United States v. Haworth, 942 F.Supp. 1406, 1407-08 (D.N.M.1996) (internal citations and quotations omitted); see also United States v. Beckford, 962 F.Supp. 748, 758 (E.D.Va.1997). “If a defendant elects to present evidence of his mental condition as a reason why he should not be sentenced to death, the Government must be able to follow where he has led and introduce its own countervailing evidence.” Haworth, 942 F.Supp. at 1408. Unless the State is allowed to conduct its own mental health examination, it may be deprived “of the only effective means it has of controverting [defense] proof on an issue that [the defendant] has interjected into the case”. Estelle v. Smith, 451 U.S. 454, 465, 101 S.Ct. 1866, 1874, 68 L.Ed.2d 359 (1981); see also State v. Huskey, 964 S.W.2d 892, 897 (Tenn.1998) (quoting Estelle and holding that a defendant who intends to offer expert proof of insanity may be ordered to undergo an evaluation by a State selected psychiatric expert). Clearly, the State’s ability to rebut a defendant’s expert mitigation evidence relating to mental condition would be effectively precluded if the State is not afforded the opportunity to have the defendant evaluated by an independent mental health expert. We agree with a statement made by the Florida Supreme Court when it addressed this issue: “[n]o truly objective tribunal can compel one side in a legal bout to abide by the Marquis of Queensberry’s rules, while the other fights ungloved.” Dillbeck v. State, 643 So.2d 1027, 1030 (Fla.1994); see also Fla. R.Crim. P. 3.202 (delineating notice, examination, and procedure governing expert testimony of mental mitigation during the sentencing phase of a capital trial). Accordingly, we conclude that an independent psychiatric examination is essential to afford the State its right to rebut expert defense proof of mental condition.
In light of our conclusion, the necessity of requiring a capital defendant to provide pretrial notice of intent to offer expert mitigation proof of mental condition becomes apparent. Onr death penalty statute provides that the sentencing hearing “shall be conducted as soon as practicable before the same jury that determined guilt.” Tenn. Code Ann. § 39-13-204(a) (1997 Repl.) (emphasis added). Serious difficulties for the defendant, the prosecution, and the judicial system would result if notice of a capital defendant’s intent to present expert mitigation proof is deferred until the conclusion of the guilt phase of the trial. No doubt there would be a lengthy delay before commencement of the sentencing phase while the State’s expert examined the defendant. During this time the jury would likely remain idly sequestered. Particularly troublesome is the very real possibility that evidence presented at the guilt phase, which usually is also relied upon at sentencing, would fade from the minds of the jurors. See Beckford, 962 F.Supp. at 762-63 (discussing the difficulties arising if a defendant is not required to provide pretrial notice of intent to introduce expert mitigation evidence of mental condition). Requiring a capital defendant to provide pretrial notice of intent to introduce expert mitigation proof relating to mental condition protects the State’s right of rebuttal and eliminates unjustifiable delay.
In addition, there are no constitutional principles which preclude the notice and evaluation conditions imposed by the trial courts in these cases. With respect to the constitutionality of pretrial notice requirements, Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), is instructive. In that case, the Supreme Court rejected the contention that requiring a criminal defendant to give pretrial notice of intent to rely upon an alibi defense violated the Fifth Amendment. In so holding, the Supreme Court in Williams stated:
Nothing in the Fifth Amendment privilege entitles a defendant as a matter of constitutional right to await the end of the State’s ease before announcing the nature of his defense, any more than it entitles him to await the jury’s verdict on the State’s case-in-chief before deciding whether or not to take the stand himself.
Id. at 85, 90 S.Ct. at 1898; see also Johnson, 673 S.W.2d at 882 (approving a rule which required the defendant to provide notice of intent to present an alibi defense). We likewise conclude that requiring capital defendants to provide pretrial notice of intent to present expert mitigation proof relating to mental condition does not violate the Fifth Amendment. Beckford, 962 F.Supp. at 761.
In two recent cases, we discussed the constitutionality of the psychiatric examination prescribed by Tenn. R.Crim. P. 12,2. See Huskey, 964 S.W.2d at 900; State v. Martin, 950 S.W.2d 20, 24 (Tenn.1997). With respect to the Fifth Amendment right against self-incrimination we stated:
the court-ordered examination and the disclosure of examination material does not violate the defendant’s right against self-incrimination, provided the admissibility of any statements made by the defendant during the examination, and any ‘fruits’ derived therefrom, is only for impeachment or rebuttal of evidence of mental condition introduced at trial by the defendant. Moreover, disclosure of the information from the examination is not limited by Rule 16 and does not depend on whether the defendant intends to use the information or witness involved in the Rule 12.2(c) examination.
Huskey, 964 at 900. We also held that an independent examination does not violate a defendant’s Sixth Amendment right to counsel so long as the defendant is provided the assistance of counsel when the decision of whether or not to raise an insanity defense is made. Martin, 950 S.W.2d at 26.
Though the evaluation and notice issues in this appeal relate to the sentencing phase of a capital trial rather than to the guilt-innocence determination, the controlling constitutional precepts remain the same. Beckford, 962 F.Supp. at 760. The Sixth Amendment is satisfied so long as a capital defendant is provided the assistance of counsel when he or she decides whether to introduce expert mitigation proof relating to mental condition at the sentencing phase. Once the decision is made to proceed with the introduction of such proof, the Fifth Amendment right against self-incrimination does not preclude a court-ordered examination by a State selected mental health expert. Id. Disclosure of the examination material does not violate the defendant’s right against self-incrimination, provided the admissibility of any statements made by the defendant during the examination, and any ‘fruits’ derived therefrom, is admitted only for impeachment or rebuttal of evidence of mental condition introduced by the defense at the sentencing phase of the trial. United States v. Hall, 152 F.3d 381, 398 (5th Cir.1998); see also Brown v. Butler, 876 F.2d 427, 430 (5th Cir.1989) (holding that the State could not introduce expert testimony based upon a previous psychological examination of the defendant where the defendant announced an intention to offer expert psychological evidence but never actually introduced the evidence); Beckford, 962 F.Supp. at 761. Accordingly, we conclude that requiring a capital defendant to submit to a psychiatric examination by a State selected mental health expert is constitutionally permissible.
C. Procedural Safeguards
As a final issue, we must set forth a procedural framework which both accommodates the State’s right of rebuttal and safeguards a capital defendant’s constitutional right against self-incrimination. The procedures adopted by the trial courts in these three capital cases are similar. The primary difference is the time at which the defense and State are provided access to the expert reports. Under the Davidson County orders, the reports are given to the State prior to trial. Under the Montgomery County order, which the Court of Criminal Appeals adopted, access to any expert reports is deferred until after the jury returns a verdict of guilty and the capital defendant confirms his intent to introduce expert mitigation proof at the sentencing hearing.
The State contends that it should be given access to the results of any independent psychiatric examination prior to trial. In our view, there are valid justifications for providing the State access to the report only after the jury has returned a verdict of guilty and a capital defendant confirms his or her intent to offer expert mitigation evidence relating to mental condition at the sentencing hearing. First, delaying access to the report advances interests of judicial economy by avoiding litigation as to whether particular pieces of evidence the State seeks to admit prior to the defense offering psychiatric evidence were derived from the State’s psychiatric evaluation. Delaying access also forecloses the risk that the defendant’s right against self-incrimination will be abridged by the State’s inadvertent or intentional introduction of the examination results or its fruits for purposes other than impeachment or rebuttal of expert mitigation evidence of mental condition introduced by the defense. Hall, 152 F.3d at 399.
On the other hand, these same concerns do not apply to the defense. In fact, providing the defense with access to any expert reports prior to trial would serve interests of judicial economy. For example, the defense will have sufficient time to review the reports, make an informed decision as to whether to introduce expert mental condition mitigation proof, and be prepared at the conclusion of the guilt phase of the trial to either confirm or withdraw the previously filed notice. If the defense confirms its previously filed notice, the State will then be given the reports and should have sufficient time to. study the reports and prepare its rebuttal proof.
We therefore modify the decision of the Court of Criminal Appeals insofar as it foreclosed both the State and the defense from having access to expert reports until the jury has returned a verdict of guilty. We hold that the defense is entitled to have access to any expert reports prior to trial. The State will be afforded access to the reports only after a jury returns a verdict of guilty and the capital defendant confirms his or her intent to offer expert mental condition evidence in mitigation. In our view, this procedure both protects the State’s right of rebuttal and safeguards the defendant’s right against self-incrimination.
CONCLUSION
In summary, we hold that where, as here, issues arise for which no procedure is otherwise specifically prescribed, courts in Tennessee have inherent power to adopt appropriate rules of procedure. We approve the notice and examination requirements imposed by the trial courts in these cases. As previously stated, they are consistent with constitutional principles, statutory laws, and generally applicable rules of criminal procedure. In addition the notice and examination requirements, which closely parallel the analogous provisions of Rule 12.2, Tenn. R.Crim. P., ensure fairness and eliminate unjustifiable delay. With respect to the disclosure procedures, we affirm as modified the decisions of the Court of Criminal Appeals.
Moreover, we adopt the notice, examination, and disclosure requirements approved in this appeal as the governing procedure in this State in every death penalty trial in which the capital defendant intends to introduce expert mitigation evidence relating to mental condition at the sentencing hearing of his or her trial. The specific procedure is set out below.
1. If a capital defendant intends to introduce expert mental condition testimony as mitigation at the sentencing hearing, he or she must file pretrial written notice of intent no later than an appropriate date set forth by the trial court. The notice shall include the name and professional qualifications of any mental condition professional who will testify and a brief, general summary of the topics to be addressed that is sufficient to permit the State to determine if an evaluation is necessary and, if so, the area in which its expert must be knowledgeable.
2. If a capital defendant files notice that he or she intends to introduce expert mental condition testimony at the sentencing hearing, the defendant shall, if requested by the State, be examined by a psychiatrist or other mental health professional selected by the State. The examination shall take place within a reasonable time frame set forth by the trial court. The State and defense will cooperate to provide the court-ordered professional with all necessary and relevant information. Said examination may be videotaped in accordance with the guidelines adopted in State v. Martin, 950 S.W.2d 20 (Tenn.1997). The report of that examination and the report of any psychiatric examination initiated by the defendant shall be filed under seal with the Court before the commencement of jury selection. The Court-appointed professional conducting the examination for the State shall not discuss his/her examination with anyone unless and until the results of the examination are released by the Court to counsel for the State following the guilt phase of the trial.
3.The results of any examination by the State expert and the defense expert shall be released to the defense prior to trial to enable the defendant, with the assistance of counsel, to determine whether or not to introduce expert mental condition testimony as mitigation at the sentencing hearing. The results of any examination shall be released to the State only in the event the jury returns a verdict of guilty of first degree murder and only after the capital defendant confirms his or her intent to offer expert mental condition evidence in mitigation at the penalty phase. After the return of a guilty verdict, the defendant shall file a pleading confirming or disavowing his or her intent to introduce expert mental condition testimony at a penalty phase. If the defendant withdraws the previously-tendered notice, the results of any mental condition examinations concerning the defendant will not be released to the State. The reports of any examinations, whether by the State or defense experts, concerning the defendant shall be released to the State immediately after the filing of a pleading confirming the earlier notice. Even if the defendant confirms his or her intent to offer mental condition evidence, the defendant may withdraw the notice of intent to introduce expert mental condition proof at any time before actually presenting such evidence, and, in that event, neither the fact of notice, nor the results or reports of any mental examination, nor any facts disclosed only therein, will be admissible against the defendant.
ANDERSON, C.J., BIRCH, HOLDER and BARKER, JJ., concur.
By so stating, we do not intend to imply that Tenn. R.Crim. P. 16 never applies in a capital sentencing hearing. As the State points out, we have previously applied Rule 16 to issues arising in the context of a capital sentencing hearing. For example, in State v. Nichols, 877 S.W.2d 722, 729 (Tenn.1994), we affirmed a trial judge who ordered a defense psychologist to provide to the prosecution any interview notes which would relate to his testimony at the sentencing hearing. We stated, "when a psychologist or psychiatrist does not prepare a summary report, but instead relies on extensive memoranda to record not only observations and hypotheses but also evaluations, such records are discoverable under Rule 16(b)(1)(B).” Id. at 730. Likewise, in State v. Buck, 670 S.W.2d 600 (Tenn.1984), the State had failed to provide certain materials and the names of certain witnesses to the defendant. On appeal, the defendant argued that the trial court should not have allowed the witnesses to testify because of the nondisclosure of the State. Although we based our decision on the content of the witnesses’ testimony, we further observed that "the trial judge was ... also in error in implicitly sustaining the prosecution in its claim that Rule 16 and discovery rules were not applicable in the sentencing hearing.” Id. at 606. Accordingly, when an existing rule of criminal procedure precisely addresses an issue, we apply the rule even though the issue arises in the context of a capital sentencing proceeding. See Tenn. R.Crim. P. 1 (listing several proceedings to which the Rules apply and stating in subsection (i) that the Rules apply ”[i]n any other situation where the context clearly indicates applicability). However, no existing rule of criminal procedure precisely addresses the issues in this appeal.
We emphasize that our holding in this appeal relates only to expert proof of mental condition. The notice, evaluation, and disclosure requirements do not apply to lay person testimony.
STATE of Tennessee v. Paul Dennis REID, Jr.
Supreme Court of Tennessee, at Nashville.
Nov. 26, 2002.
Order Denying Petition for Rehearing Dec. 19, 2002.
Jeffrey A. DeVasher; C. Dawn Deaner; J. Michael Engle; and David Baker; Assistant Public Defenders, Nashville, Tennessee, for the Appellant, Paul Dennis Reid, Jr.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Jennifer L. Smith, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Kathy Morante, Tom Thurman, Roger Moore, Grady Moore, Assistant District Attorney Generals, for the Appellee, State of Tennessee.
[OPINION BY FRANK F. DROWOTA, III, C.J., type=majority]
OPINION
FRANK F. DROWOTA, III, C.J.,
delivered the opinion of the court,
in which E. RILEY ANDERSON, JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.
In this capital case, the defendant, Paul Dennis Reid, Jr., was convicted of two counts of first degree murder and one count of especially aggravated robbery for killing two Captain D’s employees and robbing one of the employees. As to each conviction of first degree murder, the jury found in the sentencing hearing that the State had proven three aggravating circumstances beyond a reasonable doubt— (1) that the defendant was previously convicted of one or more felonies, other than the present charge, the statutory elements of which involve the use of violence to the person; (2) that the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another; and (3) 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, or was fleeing after having a substantial role in committing or attempting to commit robbery. Tenn. Code Ann. § 89-13-204(0(2), (6), and (7) (1997). Finding that these aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt, the jury sentenced the defendant to death on each murder conviction. The trial court subsequently imposed a twenty-five-year sentence for the especially aggravated robbery conviction and ordered this sentence to be served consecutively to the two death sentences. On direct appeal to the Court of Criminal Appeals, the defendant mounted numerous challenges to both his convictions and sentences. After fully considering the defendant’s claims, the Court of Criminal Appeals affirmed the trial court’s judgment. Thereafter, the case was docketed in this Court. See TenmCode Ann. § 39 — 13—206(a)(1) (1997). After carefully and fully reviewing the record and the relevant authority, the defendant’s convictions and sentences are affirmed.
I. Background
A. Guilt Phase
The proof offered by the State at. the guilt phase of this trial demonstrated that on Sunday morning, February 16, 1997, sixteen-year-old Sarah Jackson and twenty-five-year-old Steve Hampton were shot and killed as they prepared to open the Captain D’s restaurant on Lebanon Road in Donelson, Tennessee. Hampton was the manager of the restaurant; Jackson was a high school student working part-time at the restaurant. K.B., area director for Captain D’s, spoke with Hampton on the telephone around 8:15 to 8:30 a.m. that morning. Over an hour later, around 9:45 to 10 a.m., M.B. arrived for work but was unable to enter the restaurant because the doors were locked. B. telephoned the Captain D’s from a neighboring restaurant and got a busy signal. When he called a second time a few minutes later, no one answered. Believing something was wrong, B. contacted another Captain D’s employee whose father was a Metro police officer. The employee’s father, Officer Jeff Wells, arrived at the scene and, after the assistant manager of Captain D’s unlocked the door, entered the restaurant between 11 a.m. and noon to find Hampton and Jackson dead, lying face down on the floor inside the restaurant’s walk-in cooler.
The victims had been shot execution-style while lying on the floor. Hampton had been shot twice in the back of the head and once in the back. Jackson had been shot four times in the head and once in the back. According to the medical examiner, two of Jackson’s head wounds were fatal, but the two other head wounds were superficial, and the shot to her back was not immediately incapacitating. If these less serious wounds had been inflicted first, the medical examiner testified Jackson may have been able to move; and, in fact, a blood pattern of Jackson’s gloved hand on shelving near, but above, her body indicated that Jackson had attempted to pull herself up from the floor after she was shot. The victims were shot with a .32 caliber weapon, probably a revolver. Seven thousand, one hundred forty dollars, including $250 in coins, was taken in the robbery. Hampton’s wallet, which contained $600 that he intended to use to pay rent, also was missing.
The police first considered the defendant a suspect .in this crime on June 12, 1997, after his arrest in Cheatham County for allegedly attempting to kidnap the manager of a Shoney’s restaurant. From this arrest, the police obtained the defendant’s fingerprints and photograph. Although none of the defendant’s fingerprints were found at Captain D’s, several items belonging to Steven Hampton were discovered one day after the murders lying alongside Ellington Parkway, a four-lane highway in East Nashville. Among the items found was a movie rental card belonging to Hampton. The defendant’s right thumbprint was found on this card. The area where Hampton’s belongings were found was 11.5 miles from the crime scene and 1.2 miles from the defendant’s home.
Police also found several shoe prints inside Captain D’s near the safe. Although the tread design of these shoe prints did not match, the length of these shoe prints was consistent with shoes seized from the defendant’s residence. In addition, the State introduced into evidence a photograph, dated July 16, 1996, which showed the defendant wearing a pair of dingy white tennis shoes that police had not found in his residence.
Two witnesses identified the defendant as the man who came by Captain D’s the night before the murders inquiring about a job. M.B. and J.C. testified that a man came into the restaurant through the exit door around 10 p.m., shortly before closing the night before the murders. This man said he was interested in applying for a part-time job and that he worked at Shoney’s just down the road. The proof showed the defendant worked as a cook at a Shoney’s 2.1 miles from these murders. B. and Carter gave the man an employment application and told him that the manager, Steve Hampton, would be working the next day. When the man asked if anyone would be at the restaurant on Sunday morning, Carter told him that Hampton would be there but would be busy and unable to talk until approximately 2:45 p.m., after the Sunday lunch rush. B. testified that the man left in a dark-colored car.
About a week after the murders, B., Carter, and J.C., another employee who was present the night before the murders, helped police prepare a composite sketch of the man they had seen. The description they provided was consistent with the defendant in some respects, but the sketch did not include a mustache and it indicated that the man may have had long hair worn in a ponytail that was “pulled straight back.” The defendant wore a mustache at this time and did not have a ponytail, although there was testimony that his hair had been below his collar at that time and that he combed his hair straight back.
After assisting with the composite, Carter and B. looked at hundreds of police photographs but were unable to make an identification. In June of 1997 the police showed B. and Carter a photographic lineup of six individuals, including the defendant. Although B. was unable to make a positive identification, Carter positively identified the defendant as the man who had inquired about a job the night before the murders. A short time later, B. saw the defendant during a television news report about his arrest. B. immediately called the police and informed them that the defendant was the man who came into Captain D’s the night before the murders. At trial, B. explained that he was sure of this identification because the news report, as opposed to the photographic lineup, enabled him to hear the defendant’s voice, see the way his lips moved when he talked, and see the way he walked. During trial, both Carter and B. identified the defendant as the man who had come into the restaurant the Saturday night before Hampton and Jackson were killed.
Three other people who had been driving by the Captain D’s restaurant on the morning of the murders testified, linking the defendant to the murders. J.M., who was passing by the restaurant at approximately 8:45 a.m., saw a blue Ford station wagon with damage to the left front, and possibly to the left rear, “parked at a funny angle toward the real’ of the building.” The proof showed that prior to these murders, the defendant drove a light blue 1988 Ford Escort station wagon which had been involved in an auto accident in January of 1997. As a result, the car was appraised by an insurance company on February 8, 1997, and was found to have damage to the left front end. M. testified that the defendant’s car in the insurance company’s photographs was similar to the car he observed in the Captain D’s parking lot the morning of the murders.
Around 8:50 a.m., D.H. was driving by Captain D’s on her way to church when she saw a man, whom she later identified as Steve Hampton, standing inside the doorway of the restaurant talking to a man outside who was holding white paper in his hand. H. described the unidentified man as dark-haired and approximately five inches taller than Hampton. This description was consistent with the defendant who was dark-haired and approximately six feet, three inches tall, as compared to Hampton whose height was five feet, eight inches.
Around 9:30 a.m., another passerby, M.F., noticed “a car that sort of looked out of place.” According to F., the small to medium-sized car was parked about a car-length away from the front of the budding headed in the opposite direction of the drive-thru arrows painted on the lot. F. initially remembered it was a fight blue car, but at trial he stated it also may have been painted a “pinkish plum color.” F. also noticed a man walking hurriedly away from the restaurant toward the car. When the man stopped at the passenger side of the car and looked up, F. testified that the man “elevated his face and ... it seemed like our eyes sort of caught one another, and when he saw that I was watching him, he dropped his head, just completely down in a suspicious way.” The man entered the passenger side of the car. F. described the man as tall, with a muscular build and large neck, dark eyebrows and dark eyes, a full head of hair which was slicked back. F. said the man was wearing a white shirt, dark pants, and white, “not new,” tennis shoes. F. heard about the murders the next day and called the police twice to report what he had seen, but no one contacted him. When F. saw the defendant on television after his arrest in June of 1997, F. again called the police and identified the defendant as the man he had seen near the Captain D’s on the morning of the murder.
The State also offered proof to show that the defendant had been interested in obtaining a gun during the months before the murders and had discussed the profitability of robbing fast food restaurants. J.P., the defendant’s co-worker at Shoney’s, testified that the defendant was dissatisfied with the money he made at Shoney’s and told P. there were other ways of making money, and one way to do so was robbery. The defendant also had asked P. where he could get a gun, and then had asked P. to get the gun for him. P. refused.
Another of the defendant’s co-workers, D.T., testified that he had first met the defendant in 1995, while working at ShoneyA The defendant had moved to Texas but returned to Tennessee in 1996. T. described himself as the defendant’s best friend in Nashville and said the defendant had lived with him a few weeks after the defendant returned to Tennessee, near the end of 1996. Prior to these murders, the defendant had asked both T. and T.’s wife to procure a handgun for him. On one occasion, T. accompanied the defendant to a pawn shop in Nashville where the defendant selected a .32 caliber revolver, but T. refused to purchase the weapon. Later, the defendant asked T.’s wife to purchase a gun for him, but she also refused to do so. The defendant then made arrangements for another Shone/s employee to procure a gun for him, and he gave T. $200 or $300 in cash to hold for him until he met with the employee to pay for the gun. Although their co-worker successfully procured a shotgun, the defendant refused to purchase the weapon, saying that it was too large and that he needed a smaller weapon. Shortly before these murders, however, the defendant arrived unexpectedly at T.’s house to retrieve the money T. was holding for him. The defendant left with the money but returned about ten minutes later with a man T. did not know. The defendant asked T. to “vouch” for him to the man. T. advised the unidentified man that he and the defendant were acquaintances, and the two men left together.
The defendant told R.B., from whom he purchased two .25 automatic pistols after the murders, that he had previously had a .32 caliber revolver and “didn’t like the way it shot” and wanted something with a clip that held more shells. According to expert testimony, .32 caliber revolvers generally do not automatically eject bullet casings and must be manually opened after six shots to remove the cartridges and reload the weapon. As previously stated, the victims in this case were shot with a .32 caliber revolver eight times; therefore, the perpetrator would have been required to reload the weapon during the shooting.
The State also offered proof to show that the defendant, whose net pay was around $120 per week, was in financial trouble before these murders but had large sums of money, mostly cash, after-wards. T. described the defendant’s financial situation before the murders as “desperate.” The defendant and T. discussed making money by robbing fast food restaurants in the middle of the night, when there would be no witnesses but plenty of cash. T. testified that he had assumed these discussions were simply hypothetical and did not believe the defendant was being serious. The defendant was scheduled to work the day of the murders, but he called to say he would not be coming in because of car trouble. A short time after these murders, the defendant quit his job at Shoney’s.
The proof showed that shortly after these murders the defendant had large amounts of cash and purchased items and paid off obligations in cash. For example, T. observed the defendant with $100 to $200 in five-dollar bills. When T. asked why he had so many five-dollar bills, the defendant replied, “just to be different.” The defendant had obtained a $200 loan using his car title as collateral on February 4, 1997, and the defendant paid this loan off in cash on February 21, 1997. On February 18, 1997, the defendant paid $2000 in cash, all in twenty-dollar bills, towards a prepaid lease on a new red Ford Escort. Two days later, he returned to the car dealership and paid off the remaining balance of the lease — $3,127.92. When the salesman asked where he had obtained this large amount of cash, the defendant replied, “Well, I’ve been very good at saving and my dad is going to be helping me.” However, there was no proof that the defendant had a savings account. As to the defendant’s checking account, the proof showed a balance of $742.61 on December 19, 1996, a balance of $134.45 on January 22, 1997, a balance of $139.95 on February 2,1997, and a balance of $803.67 on February 27,1997.
B.B. and the defendant belonged to the same fitness center, and during either the last week of February or the first week of March 1997, the defendant told B. that he had about $3,000 that he would like to invest and asked B. for tips on stock market investing. Two to three weeks later, the defendant told B. that he had read Barrons Investment Guide and had purchased a mutual fund.
After the defendant’s arrest in June of 1997, the police seized four one-gallon jugs containing over $1000 in coins from his residence. The coins appeared to be layered according to their denomination. T. testified that he had not seen any large bottles containing coins when he helped the defendant move or when the defendant lived with him.
The defense presented the testimony of Tennessee Bureau of Investigation Agent Samera Zavaro, who said that the DNA found on cigarette butts discovered inside Captain D’s did not match DNA of the defendant or the victims. The defense also attempted to undermine the prosecution’s case through cross-examination. The defense vigorously cross-examined the identification witnesses, pointing out discrepancies between the defendant’s appearance and the descriptions given by these witnesses and emphasizing that these identifications were suspect because these witnesses had only a brief glimpse of the man, from a substantial distance, while driving a car at thirty to forty miles per hour. In addition, the defense asked questions to show that the murder weapon was never located, that a trash can missing from the restaurant was never located, that the defendant’s fingerprints were not found at the scene of the crime, that the police failed to adequately investigate the items found at the scene, such as paper, cigarette butts, and hairs located on the victims’ bodies, and that the bloodhounds used by the police on Ellington Parkway stopped near a residence that did not belong to the defendant.
After hearing this proof and receiving instructions from the trial court, the jury deliberated and found the defendant guilty of premeditated and felony first degree murder as to both victims and especially aggravated robbery. In accordance with this Court’s decision in State v, Cribbs, 967 S.W.2d 773, 787 (Tenn.1998), the trial court entered one judgment of conviction as to each victim.
B. Sentencing Phase
The case proceeded to the sentencing hearing where the State sought the death penalty for each first degree murder conviction, relying upon three aggravating circumstances: (1) that the defendant was previously convicted of one or more felonies, other than the present charge, the statutory elements of which involve the use of violence to the person; (2) that the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another; and (3) 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, or was fleeing after having a substantial role in committing or attempting to commit robbery. TenmCode Ann. § 39 — 13—204(i)(2), (6), and (7) (1997).
In support of these aggravating circumstances, the prosecution presented the testimony of Texas assistant district attorney Brian Johnson, who had prosecuted the defendant when he was convicted of aggravated robbery in Harris County, Texas, in 1984. The parties stipulated that the offense of aggravated robbery as defined in the Texas Penal Code is a crime whose statutory elements involve the use of violence to the person, and Johnson testified that the defendant had been prosecuted and convicted of this crime. A certified copy of the judgment was entered into evidence. The State relied upon the evidence presented at the guilt phase of the trial to support the aggravating circumstances that the defendant knowingly committed the murder during a robbery and that the murder was committed for the purpose of avoiding arrest or prosecution.
The prosecution also presented victim impact evidence. The first witness was Steve Hampton’s wife, D.H., who testified that Hampton had been twenty-five when he died, that they had three children, ages three, six and eight, and that he had been a good father. Ms. Hampton testified that her husband’s death had devastated her and led to her withdrawal from everyone, even her children. Both she and her children had received counseling, but Ms. Hampton testified that she would never fully recover. Steve Hampton’s death had also adversely affected the couple’s three children. The oldest child has withdrawn from everyone. Their youngest child associates his birthday with his father’s death because the family had celebrated his birthday the night before the murder. The middle child, a daughter, often asks who will walk her down the aisle at her wedding. Ms. Hampton testified that her husband’s death had also adversely affected her financial situation, which she described as “rough.” P.G., Steve Hampton’s mother, testified about how the death of her son, her only child, had devastated her psychologically. She described their relationship as very close and said that she will never be able to get over losing him.
Several witnesses described the impact of Sarah Jackson’s death on her family. J.J., her father, testified that “part of me has died,” that it is hard for him to be happy, that it is difficult for him to attend weddings and see other fathers walking their daughters down the aisle, and that his family’s relationships were “broken” as a result of his daughter’s death. Mr. Jackson felt guilty because he had allowed his daughter to work, and he opined that his family would never recover. He described his daughter as an intelligent girl, who had loved children. The next witness, W.J., Sarah Jackson’s older brother, told the jury that his sister’s death had made him extremely angry and “hardened” his heart, that he knew she had suffered and had been afraid during the crime, and that her suffering was senseless. He further testified that he had a close relationship with his sister during childhood and said he would miss having an adult relationship with her. Finally, he described how difficult her death had been on his parents because they both felt a great deal of guilt for allowing her to work. He also testified that his sister’s murder had adversely affected his younger brother, who had withdrawn and would not talk about her death. The last witness was G.J., Sarah Jackson’s mother. Ms. Jackson described her daughter as happy and fun-loving and testified that she had been killed just two days before her seventeenth birthday. Ms. Jackson also described how her daughter’s death had seriously affected her younger son. Ms. Jackson, who was still undergoing counseling, also expressed how very difficult her daughter’s death had been for her. She testified that she had believed her daughter would be safe working at the neighborhood Captain D’s and said she often thought about how her daughter must have felt during the crime. Ms. Jackson explained that Sarah ordinarily was not allowed to work on Sunday but was allowed to work on the Sunday she was killed to earn extra money to buy a CD player for her car. Ms. Jackson related the deep feeling of guilt she had experienced as a result of allowing her daughter to work the Sunday morning she was killed. Ms. Jackson described Sarah as the most outgoing member of the family and testified that the Jackson family remembered her at family gatherings by setting out Sarah’s picture, a candle, and a place setting.
The defendant presented several witnesses at sentencing: a private investigator for the defense, the defendant’s older sister, a speech pathologist, a neuroradiologist and two psychologists. This testimony revealed that the defendant was born in Texas on November 12, 1957, and had two older sisters, Linda and J. The defendant’s home life was described as unstable. His father, Paul Reid, Sr., a private investigator who repossessed cars, was an alcoholic and away from home a good deal of the time. The defendant’s mother and father divorced when he was three years old. The defendant’s father received custody of the defendant and his sister J. while his sister Linda lived with his mother, who married D.M., by whom she later had two more daughters. Because the defendant’s father was away from home so much, the defendant and his sister J. lived with their paternal grandmother, who had difficulty disciplining the defendant. By the age of four or five the defendant was causing problems in the neighborhood and seriously misbehaving at home. He stole mail from the neighbors, stole clothes from the neighbors’ clotheslines, put tacks in his grandmother’s soup, barricaded his grandmother in her room, set fire to her bed while she was in it, and beat her dog to death with a baseball bat.
Because of his father’s neglect, the defendant did not start school until he was seven years old. His sister J. testified that the defendant had a “hard time” in school. Shortly after entering school, the defendant was referred to the school psychologist and was later described as suffering from “minimal cerebral dysfunction.” At the age of eight, he was sent to a Catholic school for boys in Houston, Texas, that later became the county school for neglected and dependent children. He went to live with his mother when she learned that he was going to be put up for adoption. At this time, the defendant’s mother “renamed” him Paul Leon Morez because his name reminded her of her former husband. When the defendant was thirteen, his mother divorced Morez.
The defendant lived with his mother until he was sixteen. He was asked to leave after he attempted to sexually assault his sisters and his mother. After this he lived with his father sporadically but was basically on his own. In the early 1980s he married, but he was divorced in 1984. During the marriage, he had stolen city equipment to start a business. One of the defendant’s sisters had warned his ex-wife not to marry him. The defendant lived with another woman in 1994. This woman reportedly said that the defendant had a temper, had thrown her kitten across the room, and had held her down on the couch and put a pillow on her face. His sister Linda was frightened of him, and he had threatened to kill her. J. testified that he had attempted to sexually molest her when she was a teenager and had threatened her with a knife when their grandmother died. J. testified that her brother became paranoid after he was imprisoned in Texas. She also described how the defendant had been “joking” and acting “silly,” at his father’s funeral in May 1997, by wearing a Burger King crown on his head and calling himself “King Paul.” He had also worn a lime green shirt, shorts, and tennis shoes to the funeral and refused to change despite repeated requests from his sisters to do so. J. further testified that the defendant had used drugs recreationally but otherwise hated drugs.
The defendant had a juvenile record of auto theft and simple assault. Another charge of forging checks was dismissed when he paid off the checks. In 1982, he was arrested and charged with several armed robberies but was declared incompetent to stand trial and was hospitalized in Texas. Later, in 1984, he was convicted of aggravated robbery in Texas. He dropped out of school but later earned his GED and was enrolled in Volunteer State Community College at the time of his arrest.
Testimony showed that the defendant had suffered multiple head injuries during his life. When he was five, he had been hit in the head with a brick. In 1971, he fractured his skull in a minibike accident and was hospitalized for some time. On another occasion, his head hit the windshield of a car that struck him while he was riding his bike. At a later indefinite date he suffered another head injury when he slipped at work. Finally, in 1990, he suffered a concussion and loss of consciousness as the result of a car accident.
Patsy Casey Allen, a licensed speech and language pathologist who evaluated the defendant in 1998, testified that the defendant suffered from speech and language problems characteristic of persons with traumatic brain injuries. Allen hypothesized that these injuries were acquired rather than the result of any developmental delay.
Dr. Pamela Auble, a clinical neuropsychologist specializing in brain abnormalities, testified that she had evaluated the defendant and found evidence of brain damage, particularly in the left frontal lobe, which caused “a significant mental disorder” impairing “his behavior in a pervasive way.” Dr. Auble’s evaluation entailed more than eight hours of interviews over the course of a year and the administration of eighteen standardized tests. She also reviewed the defendant’s medical and school records and interviewed his mother and two of his sisters. Dr. Auble noted that there had been a malformation of the defendant’s left ear at birth, possibly indicating brain damage to the left temporal lobe, that the defendant’s hearing was impaired in his left ear, and that he had been hyperactive since birth. Dr. Auble testified that the defendant first displayed evidence of psychosis in 1978, then again from 1982 to 1987. After his 1984 conviction for aggravated robbery, his symptoms continued, but he responded to medication. In 1987, the defendant reported delusions of being monitored by the Texas Department of Correction. He later denied any problems and received no treatment. In 1993, the defendant wrote letters to the governor of Texas, the Washington Post, and the citizens of Texas informing them that he had been under gov-eminent surveillance since 1985 and that this surveillance was very costly to the taxpayers. He reported similar delusions of government surveillance to his sister, his girlfriend, and the police after his arrest in this case, and to Dr. Auble in 1998 and 1999. Dr. Auble related a history of mental illness in the defendant’s family. She reported that the defendant had an IQ in the 80s and opined that the instability of his childhood environment was devastating for someone with his neurological abnormalities. Dr. Auble diagnosed the defendant as psychotic, secondary to temporal lobe damage with cognitive disorder and personality changes from brain injuries. She opined that he was not malingering and testified that he needed a structured environment. Dr. Auble admitted that the defendant met the criteria for antisocial personality disorder but felt that such a diagnosis was not helpful. Dr. Auble also agreed that neither the Minnesota Multi-phasic Personality Inventory (“MMPI”) nor the Rorschach personality test revealed evidence of psychosis. Dr. Auble also conceded that the defendant had a history of malingering.
Dr. Robert M. Kessler, a neuroradiologist, testified that Magnetic Resonance Imaging (“MRI”) and Positron Emission Tomography (“PET”) scans of the defendant’s brain taken in 1998, revealed that the left side of his brain was atrophied. Dr. Kessler opined that a large portion of the defendant’s left temporal lobe appeared not to be functioning properly. According to Dr. Kessler, this portion of the brain is responsible for visual and auditory processing, as well as emotional processing and memory. Dr. Kessler diagnosed the defendant as suffering abnormalities in his brain functions, likely caused by trauma to his head after the age of six or seven.
Dr. Xavier Amador, a clinical psychologist employed by Columbia University and the New York Pysehiatric Institute, conducted more than twenty hours of interviews with the defendant, interviewed the defendant’s mother and sister, and reviewed all the defendant’s records provided by the defense. Dr. Amador concluded that the defendant had suffered from paranoid schizophrenia, continuous type, for twenty years. Dr. Amador also diagnosed the defendant as having a cognitive disorder and personality change caused by head trauma, combined type.
Dr. Amador based his diagnosis upon the defendant’s longstanding delusions about government surveillance and the defendant’s medical history of repeated evaluations and treatments for some type of brain dysfunction or psychotic disorder. Dr. Amador also pointed out that the defendant had been prescribed at least eight different anti-psychotic drugs over his lifetime which, in general, improved his behavior. According to Dr. Amador, these drugs would have rendered a person without mental illness comatose.
Dr. Amador opined that the defendant’s mental illness, his “broken brain,” and psychological and social stressors interfaced to render him ill-equipped to deal with reality. When asked about the results of the tests administered by Dr. Auble, Dr. Amador testified that the MMPI and Rorschach tests are adjunct tools and are not the primary diagnostic tools used in clinical practice. Dr. Amador opined that during the commission of the crimes, the defendant was under the influence of his delusions.
The last witness for the defense was Reverend Joe Ingle. As a result of his pastoral relationship with the defendant and his conversations with members of the defendant’s family, Reverend Ingle realized that the defendant’s version of reality was “utterly contradictory” to the reality revealed by his family. As a result, he contacted Dr. Amador and convinced him to evaluate the defendant.
In rebuttal, the State presented the testimony of Raymond Lackey, Jr., the attorney who had represented the driver of a car involved in a minor accident with the defendant’s car in early 1997. Lackey testified that the defendant had done “a really fine job” representing himself in April of 1997 in the Davidson County General Sessions Court. Lackey testified that the defendant had been friendly and respectful before, during, and after the proceeding. Lackey admitted that he had only brief contact with the defendant before and during the relatively short trial and that the defendant’s claim was unsuccessful.
The State also introduced evidence showing that in early 1997 the defendant had earned A’s in developmental courses in English, math and study skills at Volunteer State Community College and that he was “on the way to college level classes.” The State then recalled Brian Johnson, the prosecutor in the 1984 aggravated robbery case in Texas, who testified that the defendant had “performed antics” whenever the jury was in the courtroom during his competency trial, such as falling over backwards in his chair, shooting paper in the air with a rubber band, and making a paper hat and placing it on his attorney’s head. The defendant had stopped “putting on” when the jury was not in the courtroom. Several months after the defendant was convicted, he wrote a letter to Johnson, apologizing for his behavior in the courtroom, stating that he felt threatened in prison, and asking Johnson for help in shortening his sentence. According to Johnson, the letter, in which the defendant offered to pass on information about other inmates, was logically written and not bizarre or unreadable.
The State’s next witness was Dr. Helen Mayberg, a professor of psychiatry and neurology at the University of Toronto, who was qualified as an expert in neurology, neuropsychology and functional brain imaging. Dr. Mayberg had reviewed Dr. Kessler’s MRI and PET scans and agreed that they showed evidence of abnormality restricted to the left side of the temporal lobe. Dr. Mayberg, however, opined that these abnormalities were congenital and not medically known to be associated with schizophrenia or the commission of premeditated murder.
The State’s last witness was Dr. Daniel Martell, a forensic neuropsychologist. Dr. Martell interviewed the defendant over two days for about twelve hours and also reviewed all of the defendant’s records and the reports from the other experts in this case. Dr. Martell concluded that the defendant suffers from a mild neurocognitive disorder, antisocial personality disorder, and a delusional disorder. Dr. Martell determined that the defendant was born with an abnormal brain leading to hearing, learning, and speech disorders. Dr. Martell was certain that the defendant met the criteria for antisocial personality disorder and said that he was also probably suffering from a delusional disorder with grandiose and persecutory features that was in substantial remission. Dr. Martell further testified that these disorders had not substantially impaired the defendant’s judgment or his capacity to conform his conduct to the requirements of the law or to know right from wrong. To the contrary, Dr. Martell opined that the facts of this case illustrate that the defendant had been able to effectively use his cognitive abilities to plan, execute, and cover-up his criminal actions. Dr. Martell had found the défen-dant’s IQ to be between 80 and 90, a low average IQ, and said that the various tests administered to the defendant did not reveal any evidence of psychosis.
In surrebuttal, the defendant once again presented the testimony of Dr. Xavier Amador, who reiterated his diagnosis of schizophrenia and testified that the defendant was under the influence of his delusion when he killed the victims.
Based upon this proof, the jury found that the State had proven the aggravating circumstances beyond a reasonable doubt and that the aggravating circumstances outweighed mitigating circumstances beyond a reasonable doubt. Therefore, the jury sentenced the defendant to death on each conviction of first degree murder.
II. Motion to Suppress
A. Admissibility of Identification Testimony
The defendant filed a pretrial motion to suppress the identification testimony of M.B. and M.F., arguing that the procedures leading to their identifications of the defendant were unduly suggestive and violated his due process rights. The trial court denied this motion. The Court of Criminal Appeals affirmed on the basis that no state action was involved in the witnesses’ identification of the defendant from the television coverage. In this Court, the defendant argues that the presence or absence of state action is not dispositive, and he urges this Court to review the circumstances surrounding the witnesses’ identification when determining whether due process was violated. A brief review of the circumstances surrounding these identifications is necessary to place this issue in context.
As previously stated, the record reflects that B. spoke with the defendant for a few minutes on February 15, 1997, the night before the murders, when the defendant inquired about employment at Captain D’s. B. also worked with police to create a composite drawing of the defendant, although the drawing was not entirely consistent with the defendant’s appearance. Attempting to identify the perpetrator, B. looked at many police photographs, and in June of 1997, B. was shown a photographic lineup that contained a photo of the defendant and five other persons. While not positively ruling out any of the persons shown, B. was unable to identify anyone in the array as the man with whom he had spoken on February 15. The next day, while watching the news on television, B. saw coverage of the defendant’s arrest, immediately recognized the defendant,- and called the police to identify him as the man he encountered at Captain D’s the night before the murders. B. explained that he was able to identify the defendant because, unlike the photographic lineup, the news report enabled him to hear the defendant’s voice, see the way his lips moved when he talked, and see the way he walked.
As to F., the record indicates that he was driving by Captain D’s around 9:80 a.m. on the morning of the murders when he saw a man leave the restaurant and approach a car parked in an unusual manner at the front of the building. F. and the man made direct eye contact before the man looked away in a suspicious manner. After hearing about the murders, F. phoned the police three times to report seeing the man at the restaurant, but the police never contacted him about what he had seen. Then, in June of 1997, F. saw televised news coverage of the defendant’s arrest, instantly recognized the defendant as the man he had seen on the morning of the murders, and again called the police with this information.
Significant to our analysis is the undisputed fact that the police had not told either B. or F. to watch the television news broadcasts that resulted in their identifying the defendant. Their viewing is best described as accidental, inadvertent, or coincidental. It was not orchestrated by police. To the contrary, the record reflects that police officers had advised the defendant after his arrest that he could avoid media coverage. by covering his head with a jacket and by facing the wall during court proceedings so the television cameras and observers would be unable to see his face. The defendant at first indicated that he intended to follow this advice. Just before leaving the jail, however, the defendant apparently changed his mind, stating “This is going to be the Paul Reid trial.” Therefore, the defendant did not cover his head, and he turned around and faced everyone in the courtroom during the arraignment. Thus, the defendant’s decision to make it a “Paul Reid trial,” rather than state action, led directly to B.’s and F.’s identification testimony.
While this Court has not previously addressed this issue, it is well-settled Tennessee law that in the absence of state action in the identification process, constitutional due process rights are not implicated; therefore, the analysis adopted by the United States Supreme Court in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) is not appropriate in this case. See, e.g., State v. Drinkard, 909 S.W.2d 13, 15-16 (Tenn.Crim.App.), perm. app. denied (Tenn.1995) (refusing to find the identification unduly suggestive and violative of due process because the police did not arrange the confrontation between the defendant and the witness) (citing cases); State v. Newsome, 744 S.W.2d 911, 917 (Tenn.Crim.App.), perm. app. denied (Tenn.1987) (refusing to find the identification -unduly suggestive and violative of due process because the police did not arrange the encounter between the defendant and the victim); State v. Dixon, 656 S.W.2d 49, 51 (Tenn.Crim.App.), perm. app. denied (Tenn.1983) (refusing to find the identification unduly suggestive and violative of due process because a confrontation between the defendant and the victim was not a showup arranged by the police); State v. Mosby, 639 S.W.2d 672, 673 (Tenn.Crim.App.), perm. app. denied (Tenn.1982) (refusing to find the identification unduly suggestive and violative of due process because there was no state action where the victim identified the defendant after a neighbor showed the victim a single photograph); Bishop v. State, 582 S.W.2d 86, 91 (Tenn.Crim.App.1979) (refusing to find the identification unduly suggestive and violative of due process because there was no state action where a witness first identified the defendant from a single picture in a local newspaper). Moreover, in so holding, the law in Tennessee is consistent with the rule adopted by a majority of jurisdictions that have considered this issue. See generally Annotation, “Admissibility of In-Court Identification As Affected by PreTrial Encounter That Was Not Result of Action by Police, Prosecutors, and the Like,” 86 A.L.R. 5th 463 (2001) (citing cases). In a scholarly opinion, the Rhode Island Supreme Court explained why a broader rule is unnecessary:
[W]e conclude that absent state action, no constitutional violation that would give rise to the creation of an exclusionary rule has been committed.
Probably the best guarantee of due process in such a situation as that presented by the case at bar would be the opportunity for cross-examination in order to expose the witness’s lack of credibility. This opportunity is further buttressed and enforced by the requirement that the state prove every element of the crime, including the identity of the accused beyond a reasonable doubt. The guarantee is also supported not only by the requirement of a unanimous jury verdict but also by the power of the trial justice to review the evidence, including credibility, on a motion for new trial.
Thus, the due-process rights of defendant in this case, as in all criminal cases, are adequately protected from violations of due process without the fashioning of additional exclusionary rules, whether pursuant to the Federal or the Rhode Island Constitution.
State v. Pailon, 590 A.2d 858, 863 (R.I. 1991).
This case well illustrates the soundness of the Rhode Island Supreme Court’s analysis. Here, the trial court scrupulously applied the rules of evidence which admit only relevant evidence that is not unduly prejudicial or misleading. The defendant’s attorneys effectively cross-examined these witnesses, focusing upon the weaknesses in their identifications. The trial court properly instructed the jury as to eyewitness testimony, in accordance with this Court’s decision in State v. Dyle, 899 S.W.2d 607, 612 (Tenn.1995). The jury’s verdicts of guilt were unanimous, and the trial court approved these verdicts as the thirteenth juror. Like the Rhode Island Supreme Court, we conclude that the due process rights of criminal defendants are quite adequately protected by existing rules and procedures. Absent evidence of state involvement in B.’s and F.’s identifications of the defendant, constitutional due process is not implicated, and the analysis adopted by the United States Supreme Court in Neil is not applicable. The identification testimony was properly admitted. This issue is without merit.
B. Validity of Search Warrants
The defendant next argues that the trial court and Court of Criminal Appeals erred by refusing to suppress certain evidence seized from his residence under the authority of two search warrants — Warrants 146 and 149. The defendant argues that both warrants were invalid because the items seized were not particularly described in the warrants, the affidavits to each warrant do not demonstrate a nexus between the criminal activity and the place to be searched, and the police failed to personally deliver copies of the warrants to the defendant in violation of Tennessee Rule of Criminal Procedure 41(c). Additionally, the defendant contends that Warrant 149 was invalid because the affidavit was not expressly incorporated by reference into the warrant.
Under both the Fourth Amendment to the United States Constitution and Article I, section 7 of the Tennessee Constitution a search warrant must contain a particular description of the items to be seized. See State v. Henning, 975 S.W.2d 290, 296 (Tenn.1998) (citing cases). This requirement serves as a limitation, both upon governmental intrusion into a citizen’s privacy and property rights and upon the discretion of law enforcement officers conducting the search. Id. To satisfy the particularity requirement, a warrant “must enable the searcher to reasonably ascertain and identify the things which are authorized to be seized.” Henning, 975 S.W.2d at 296 (internal quotations and citations omitted). This Court has stated:
where the purpose of the search is to find specific property, it should be so particularly described as to preclude the possibility of seizing any other. On the other hand, if the purpose be to seize not specified property, but any property of a specified character which, by reason of its character, and of the place where and the circumstances under which it may be found, if found at all, would be illicit, a description, save as to such character, place and circumstances, would be unnecessary, and ordinarily impossible.
Lea v. State, 181 Tenn. 378, 181 S.W.2d 351, 352-53 (1944); see also Henning, 975 S.W.2d at 296.
Applying these well-settled principles to the facts in this case, we note that Warrants 146 and 149 authorized searches of the defendant’s residence for items “which may be identified” as property belonging to the victims or the restaurants, and any items that “may be used to cause the death of the victims.” Warrant 149 additionally authorized a search for “any and all financial records to include those indicating” money paid by the defendant on an automobile lease around the time of the murders. An affidavit was attached to each warrant, setting forth the nature and circumstances of the crimes and noting several items that had been taken from the restaurants, including bank bags.
We agree with the trial .court and the Court of Criminal Appeals that, as -in Lea, the purpose of the search was not to find specific property, but to find property of a specific character, i.e., items that may have been taken from the restaurants and the victims, murder weapons, and financial records. Providing a description of everything which may have been taken from the victims and the restaurants was not possible. Nonetheless, the warrants described the character of the property with sufficient particularity “to enable the searcher to reasonably ascertain and identify” the items subject to seizure. Henning, 975 S.W.2d at 296. Therefore, these descriptions satisfy the particularity requirement.
Finally, the plain view doctrine authorizes officers conducting a lawful search to seize contraband, fruit of the crime, or evidence of criminal conduct even though it is not specified in a warrant when these items are in plain view. See, e.g., State v. Meeks, 867 S.W.2d 361, 373 (Tenn.Crim.App.), perm. app. denied (Tenn.1993). In this case, the Court of Criminal Appeals properly held that the officers were entitled to seize the jars of coins, shoes, hats, knives, photographs, and other items under the plain view doctrine because these items were in plain view and the officers justifiably considered these items to be contraband, or fruits of the crime, or evidence of criminal conduct. This issue is without merit.
The defendant further argues that, because the crimes had been committed several months before the warrants were issued in June of 1997, the information in the affidavits was too stale to establish a nexus between the crime and the place to be searched. The defendant also contends that the affidavits do not indicate that the police had probable cause to believe that evidence of the crimes would be located at the defendant’s residence.
To establish probable cause an affidavit must set forth facts from which a reasonable conclusion may be drawn that the evidence will be found in the place for which the warrant authorizes a search. State v. Vann, 976 S.W.2d 93, 105 (Tenn.1998); State v. Longstreet, 619 S.W.2d 97, 99 (Tenn.1981). In addition, the affidavit must contain information which will allow a magistrate to determine whether the facts are too stale to establish probable cause at the time issuance of the warrant is sought. Vann, 976 S.W.2d at 105. While the lapse of time between the commission of a crime and the issuance of a search warrant may affect the likelihood that incriminating evidence will be found, probable cause is a case-by-case determination. State v. Meeks, 876 S.W.2d 121, 124 (Tenn.Crim.App.), perm. app. denied (Tenn.1993). In making this determination, courts should consider whether the criminal activity under investigation was an isolated event or a protracted pattern of conduct. Courts also should consider the nature of the property sought, the normal inferences as to where a criminal would hide the evidence, and the perpetrator’s opportunity to dispose of incriminating evidence. State v. Dellinger, 79 S.W.3d 458, 469-70 (Tenn.2002); State v. Smith, 868 S.W.2d 561, 572 (Tenn.1993).
In this case, the criminal conduct under investigation was not an isolated event. As indicated in the warrants, the crimes occurred almost one month apart, with the last crime committed on March 23, 1997, less than three months prior to the time the warrants were being sought. The warrants sought any items that had been taken from the restaurants or the victims or that may have been used to cause the death of the victims. The affidavits set out the circumstances of the Captain D’s and McDonald’s robberies, including the fact that the only person who had survived the crimes had been repeatedly stabbed and left for dead. The affidavits further noted that the defendant’s fingerprint had been recovered from an item belonging to one of the Captain D’s victims, that the murder scenes were extremely bloody, that the victims’ blood could be on the defendant’s clothing, and that the defendant could still have in his possession or on his premises instruments of violence used to murder the victims or personal items belonging to the victims. Clearly, the affidavits provide an explanation for why the items sought by the warrants are capable of, and are in fact, likely to be hidden in the defendant’s residence. As this Court explained in Smith,
where the object of the search is a weapon used in the crime or clothing worn at the time of the crime, the inference that the items are at the offender’s residence is especially compelling, at least in those cases where the perpetrator is unaware that the victim has been able to identify him to the police. Other instrumentalities are also likely to be in the offender’s home, especially when there is reason to believe he would make use of them there.
868 S.W.2d at 572. Where, as here, a perpetrator believes he has eliminated or incapacitated all witnesses so that law enforcement officials are unlikely to discover his criminal activity, it is neither unreasonable nor unlikely that the perpetrator would keep clothing, or the murder weapons, or items taken during the crime at his residence. See Smith, 868 S.W.2d at 572. Therefore, we conclude that the trial court and Court of Criminal Appeals correctly found that the affidavits set forth sufficient facts from which the magistrate reasonably could have concluded that a nexus existed between the crime and the place to be searched and that the facts were sufficiently recent to establish probable cause.
The defendant next claims that the trial court and Court of Criminal Appeals should have held the warrants invalid because the officers executing the warrants failed to personally deliver a copy of the warrants to him at the Cheatham County Jail as required by Tennessee Rule of Criminal Procedure 41(c). We disagree.
It is undisputed that the officers executing the warrants were aware of the defendant’s whereabouts. It is also undisputed that the detectives left a copy of the search warrant locked inside the defendant’s residence, from which the property was taken. The rule requires nothing more. In pertinent part, Rule 41 provides:
[T]he failure of the serving officer where possible to leave a copy with the person or persons on whom the search warrant is being served, shall make any search conducted under said search warrant an illegal search and any seizure thereunder an illegal seizure.
(Emphasis added.) As the Court of Criminal Appeals noted, there was no one present on whom the officers could serve the warrant at the time it was executed; therefore, it was not possible for the officers to leave a copy with the person being served. Rule 41(c) does not require officers to deliver a copy of the search warrant to a person who is not present. Instead, subsection (d) of Rule 41 indicates that an officer taking property under a warrant shall “give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken or shall leave the copy and receipt at a place from which the property was taken.” (Emphasis added.) In this case, the officers left the warrant at the defendant’s residence, the place from which the property was taken. This issue is without merit.
Lastly, the defendant contends that Warrant 149 is invalid because, unlike Warrant 146, it does not expressly incorporate by reference the affidavit of probable cause. Again, we are constrained to disagree. While an affidavit is an indispensable prerequisite to the issuance of a search warrant, an affidavit is not considered part of the warrant in this State. Henning, 975 S.W.2d at 296. There is no statute or rule requiring that a warrant expressly incorporate by reference the probable-cause affidavit. Therefore, the mere failure to incorporate the affidavit does not render the warrant invalid. This issue is without merit.
III. Sufficiency of the Evidence
The defendant next asserts that the evidence presented is insufficient to support his convictions because the State failed to prove beyond a reasonable doubt his identity as the perpetrator of the crimes.
The proper inquiry for an appellate court reviewing a challenge to the sufficiency of the evidence to support a conviction is whether, considering the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the .essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Hall, 8 S.W.3d 593, 599 (Tenn.1999); Tenn. R.App. P. 18(e). “A guilty verdict by the jury, approved by the trial court, accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the prosecution’s theory.” State v. Bland, 958 S.W.2d 651, 659 (Tenn.1997). Questions about the credibility of witnesses, the weight and value of the evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact, and this Court does not re-weigh or re-evaluate the evidence. Id. Nor may this Court substitute its inferences drawn from circumstantial evidence for those drawn by the trier of fact. See State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn.2000); Liakas v. State, 199 Tenn. 298, 286 S.W.2d 856, 859 (1956). A conviction may be based entirely on circumstantial evidence where the facts are “so clearly interwoven and connected that the finger of guilt is pointed unerringly at the Defendant and the Defendant alone.” State v. Smith, 868 S.W.2d 561, 569 (Tenn.1998), quoting State v. Duncan, 698 S.W.2d 63, 67 (Tenn.1985). A verdict of guilt removes the presumption of innocence and replaces it with a presumption of guilt, and on appeal the defendant has the burden of illustrating why the evidence is insufficient to support the verdict rendered by the jury. Carruthers, 35 S.W.3d at 557-58; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.1982). In contrast, the State on appeal is entitled to the strongest legitimate view of the trial evidence and all reasonable and legitimate inferences which may be drawn from the evidence. See Carruthers, 35 S.W.3d at 557-58; Hall, 8 S.W.3d at 599; Bland, 958 S.W.2d at 659. The standard of appellate review is the same whether the conviction is based upon direct or circumstantial evidence. Carruthers, 35 S.W.3d at 557-58; Vann, 976 S.W.2d at 111.
Briefly summarized, the record reflects that prior to this crime the defendant had discussed robbing fast food restaurants with co-workers as a way to obtain more money, that he had worked at a Shone/s near the scene of the crime, that he had obtained a job application the night before the murders from a Captain D’s employee who informed him to come back the next afternoon to speak with manager, Steve Hampton, and that he asked this employee whether anyone would be at the restaurant the following morning. The defendant also had asked a friend to help him obtain a .32 caliber revolver prior to the crimes. The victims were shot a total of eight times with a .32 caliber weapon, probably a revolver, which had to be manually reloaded after six shots. After these crimes, the defendant told a man from whom he was purchasing a .25 automatic pistol that he previously had a .32 caliber revolver but did not like the way it shot and wanted something that had a clip to hold more bullets. Two witnesses placed the defendant and his vehicle outside Captain D’s on the morning of the murders. Another witness saw a man matching the defendant’s appearance standing at the door of Captain D’s talking to Steve Hampton on the morning of the murders and said this unidentified man had white paper in his hand. Although the defendant had been experiencing serious financial trouble prior to the crime, the proof showed that he spent over $6,000 in cash within two weeks of the crime. Police found $1,000 in coins at the defendant’s residence a few months after this crime. The total amount of cash and coins taken from Captain D’s during the robbery was $7,140. The defendant’s fingerprint was found on a movie rental card belonging to one of the victims, which was discovered the day after the murders discarded on a road only 1.2 miles from the defendant’s home. Shoe prints found inside Captain D’s were consistent in length with shoes seized from the defendant’s residence. Although the tread patterns did not match shoes seized from the defendant’s home, a photograph of the defendant showed him wearing a pair of dingy white tennis shoes that police did not find. One witness who identified the defendant as the man leaving Captain D’s on the morning of the murders said he was wearing “not new” white tennis shoes. Considering the proof in the record in the fight most favorable to the State, we conclude that the proof points the finger of guilt unerringly at the defendant and the defendant alone. Therefore, the defendant’s challenge to the sufficiency of the evidence is without merit.
TV. Improper Cross-Examination of J.K.
Prior to trial, the defense team interviewed the defendant’s sisters. A summary of the joint interview was provided to the defense experts, the State’s experts, and the prosecuting attorneys. During the penalty phase of the trial, one of the defendant’s sisters, J.K., testified on his behalf. On direct, K. discussed much of the information contained in the summary of the joint interview, and she acknowledged that the defendant had been previously incarcerated. Before cross-examining K., the prosecuting attorneys approached the bench and stated their intent to impeach K.’s testimony by questioning her about information in the interview summary detrimental to the defense that was not brought out during direct. Defense counsel did not object to this fine of inquiry at the bench conference even though, as the trial court found, they were “fully aware of the contents of that interview, including the underlying facts of the previous robbery.”
Against this backdrop, the assistant district attorney during cross-examination asked K. whether she “was aware that during an attempt to rob a restaurant, [the defendant] was putting one of the victims in the freezer when the victim — .” Defense counsel objected, and the trial court held a jury-out hearing at which K. denied making this statement during the interview. Rather, K. indicated that her sister had made the statement based upon a newspaper article her sister had read. Although she agreed that the interview summary suggested that both sisters had knowledge of the incident, K. maintained that she had no personal knowledge of the facts of the crime and had merely agreed with her sister. Following this testimony, defense counsel moved for a mistrial. The trial court sustained defense counsel’s objection to the question but denied the defendant’s request for a mistrial.
In addition, when the jury returned to the courtroom, the trial court provided the following curative instruction:
Ladies and gentlemen of the jury, before you went upstairs for your afternoon break, General Thurman had asked a question of this witness. I sustained an objection, and that information is now stricken from the record.- You may not consider that for any reason, and you must treat it as if you had never known it.
Again, I remind you that you may not consider allegations of criminal behavior or prior crimes with regard, that you’ve been hearing this afternoon, except as to how it relates to the mental health of the defendant. The State is relying upon the prior conviction for its aggravating circumstance involving the robbery-charge that was committed on the dates on the certified copy, and you may not consider other crimes or other criminal behavior for any reason, other than the mental condition of the defendant.
Despite this instruction, the defendant submits that the trial court erred in refusing to grant a mistrial. He argues that the prosecutor’s question informed the jury that the defendant had previously attempted to commit a crime under circumstances almost identical to these crimes, and therefore, was so prejudicial that the trial court’s curative instruction could not remove its effect. The State responds that the trial court properly denied the defendant’s request for a mistrial. The law is well-settled that the decision of whether or not to enter a mistrial rests within the sound discretion of the trial court. This Court will not interfere with the trial court’s decision absent a clear abuse of discretion on the record. See State v. Adkins, 786 S.W.2d 642, 644 (Tenn.1990); State v. Inlow, 52 S.W.3d 101, 105 (Tenn.Crim.App.2000).
The record in this case shows no abuse of discretion. The question about which the defendant complains was posed during the sentencing hearing. The jury had already found the defendant guilty of committing these murders; therefore, any prejudice associated with the question was minimized by its timing. The defense team did not object to this line of questioning at the bench conference. Once an objection was made, the trial court immediately considered the issue at a jury-out hearing. Moreover, before the prosecution posed this question, the defense team, attempting to illustrate the defendant’s mental problems, had presented extensive evidence regarding the defendant’s involvement in other crimes. In addition, the State had presented proof of the defendant’s previous violent felony conviction to support the (i)(2) aggravating circumstance. The jury therefore had been informed prior to this question by both prosecution and defense proof that the defendant had a prior criminal record. The question provided little new information to the jury, and the trial court immediately sustained the objection and instructed the jury not to consider the question “for any reason” and to “treat it as if you had never known it.” In addition, the trial court advised the jury not to “consider other crimes or other criminal behavior for any reason, other than the mental condition of the defendant.” Jurors are presumed to follow the instructions of the trial court. State v. Stout, 46 S.W.3d 689, 715 (Tenn.2001); State v. Williams, 977 S.W.2d 101, 106 (Tenn.1998). Under these circumstances, the trial court did not abuse its discretion by denying the defendant’s request for a mistrial. This issue is without merit.
V. Alleged Errors Relating to Victim Impact Evidence and Argument
The defendant next contends that admission of victim impact evidence under the guidelines of State v. Nesbit, 978 S.W.2d 872 (Tenn.1998), infringed upon his right to be free from ex post facto laws and violated this Court’s decision in State v. Smith, 893 S.W.2d 908, 919 (Tenn.1994), holding that capital sentencing proceedings must be conducted in accordance with the law in effect at the time the offense is committed. The defendant argues that under the law in effect in 1997, when these offenses were committed, victim impact evidence was not admissible because this Court had held in Cozzolino v. State, 584 S.W.2d 765, 768 (Tenn.1979), that evidence was admissible at a capital sentencing hearing only if it was relevant to an aggravating circumstance or to a mitigating circumstance raised by the defendant.
Initially we note that the Ex Post Facto Clause does not by its own terms apply to judicial decisions. See generally U.S. Const. Art. 1, §§ 9 and 10; Tenn. Const. Art. I, § 11; Rogers v. Tennessee, 532 U.S. 451, 456, 121 S.Ct. 1693, 1699, 149 L.Ed.2d 697 (2001). To the extent that due process protects interests similar to those protected by the Ex Post Facto Clauses of the state and federal constitutions, retroactive application of an alteration of a common law doctrine of criminal law violates due process only where the alteration is “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.” Rogers, 532 U.S. at 461, 121 S.Ct. at 1700. A review of Nesbit immediately reveals that the decision did not alter a common law doctrine of criminal law or apply a new interpretation to the capital sentencing statute.
In Nesbit, this Court held that victim impact evidence and argument is not barred by the federal or state constitution. 978 S.W.2d at 889; see also Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 2609, 115 L.Ed.2d 720 (1991) (holding that the Eighth Amendment erects no per se bar against the admission of victim impact evidence and prosecutorial argument). This Court further stated that Tennessee Code Annotated section 39-13-204(c)(1997)
enables the sentencing jury to be informed about the presence of statutory aggravating circumstances, the presence of mitigating circumstances, and the nature and circumstances of the crime. The statute allows the sentencing jury to be reminded “that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.”
Nesbit, 978 S.W.2d at 890 (quoting Payne, 501 U.S. at 825, 111 S.Ct. at 2608). In so stating, this Court expressly rejected the interpretation of Cozzolino now advanced by the defendant, and pointed to many prior decisions admitting evidence about the nature and circumstances of the crime, even though such proof is not necessarily related to a statutory aggravating circumstance, and emphasized that victim impact evidence is encompassed within the statutory language “nature and circumstances of the crime.” Nesbit, 978 S.W.2d at 890. While the decision in Nesbit expressly clarified existing practice in Tennessee relating to victim impact evidence, the decision did not change existing law. The defendant’s sentencing hearing was conducted pursuant to the statute discussed in Nesbit; therefore the defendant’s assertion that admitting victim impact evidence constituted an ex post facto violation is without merit.
The defendant next asserts that the victim impact testimony in this case exceeded the scope of permissible victim impact testimony established by Nesbit. Although victim impact evidence is admissible, such evidence generally should be “limited to information designed to show those unique characteristics which provide! a brief glimpse into the life of the individual who has been killed, the contemporaneous and prospective circumstances surrounding the individual’s death, and how those circumstances financially, emotionally, psychologically or physically impacted upon members of the victim’s immediate family.” Nesbit, 978 S.W.2d at 891. Victim impact evidence may not be introduced if it is so unduly prejudicial that it renders the trial fundamentally unfair or its probative value is substantially outweighed by its prejudicial impact. See Nesbit, 978 S.W.2d at 891 (citations omitted). To enable the trial court to adequately supervise the admission of this evidence and ensure that it is properly limited: (1) the State must notify the trial court of its intent to introduce victim impact evidence; (2) the trial court must then hold a jury-out hearing to determine the admissibility of the evidence; and (3) the evidence should not be admitted until the trial court determines that evidence of one or more aggravating circumstances is already present in the record. Nesbit, 978 S.W.2d at 891.
The trial court in this case meticulously followed these procedural safeguards before admitting the testimony of Steve Hampton’s wife and mother and the testimony of Sarah Jackson’s parents and older brother. This testimony has previously been thoroughly recited and need not be reiterated here. The defendant maintains that the trial court should have excluded certain portions of this testimony, including the testimony of G.J. and W.J. regarding Sarah Jackson’s suffering and fear at the time of the crimes; the testimony of G.J. that she thought that her daughter was safe while working at Captain D’s; the testimony of D.H. that her daughter asked who would walk her down the aisle at her wedding; the testimony of J.J. about how difficult it was for him to see other fathers march the bride down the aisle; the testimony about how the Jackson family set out Sarah’s picture, a candle, and a place setting for her at family gatherings; and the testimony about how the Jackson family felt guilty about Sarah’s death and “allocated fault” among themselves.
The defendant also complains that the victim impact evidence presented was different from the evidence approved by the trial court at the jury-out hearing. Specifically, he points to D.H.’s testimony about the effect of her husband’s death on her son’s birthday celebration and her husband’s character as a good father, J.J.’s testimony about how Sarah and her family were robbed of her potential and “money is money” but “you can’t replace” someone’s life, and W.J.’s testimony about his opinion of the crime and his sister’s fear and suffering. The defendant says that this evidence rendered the sentencing hearing fundamentally unfair and that, even if individual portions of the testimony alone do not warrant reversal, the cumulative prejudicial effect of this testimony mandates reversal. We disagree.
As stated, “victim impact evidence should be limited to information designed to show those unique characteristics which provide a brief glimpse into the life of the individual who has been killed, the contemporaneous and prospective circumstances surrounding the individual’s death, and how those circumstances financially, emotionally, psychologically or physically impacted upon members of the victim’s immediate family.” Nesbit, 978 S.W.2d at 891 (citations omitted). The testimony about which the defendant complains is well within these parameters. Most of this testimony demonstrated how the contemporaneous circumstances surrounding the victims’ deaths had psychologically affected their immediate family members. While the testimony was not word-for-word the same, the Court of Criminal Appeals correctly noted that the testimony offered before the jury did not differ in kind or scope from that offered at the jury-out hearing. The victim impact evidence complained of by the defendant was not unduly prejudicial and clearly falls within the parameters established in Nesbit. See generally State v. Austin, 87 S.W.3d 447 (Tenn.2002); State v. Stevens, 78 S.W.3d 817, 828 (Tenn.2002); State v. McKinney, 74 S.W.3d 291, 309-10 (Tenn. 2002); Smith, 993 S.W.2d at 17.
Moreover, nothing in the record indicates that admission of this evidence rendered the sentencing hearing fundamentally unfair. As previously stated, the trial court scrupulously followed the dictates of Nesbit and, with respect to the conduct of the victims’ families during this proceeding, stated:
The victims’ family members were present during the pretrial hearings, the trial, and portions of jury selection. Despite the trauma they suffered when their loved ones were senselessly murdered, they showed the utmost respect for the judicial process at all times.
While “a few of the jurors shed tears during portions of the victim impact testimony,” the trial court noted “none of the jurors became overly emotional. They, simply demonstrated a normal reaction to [such] testimony.” After thoroughly reviewing the record, we agree with the trial court and the Court of Criminal Appeals that the victim impact evidence was not unduly prejudicial and did not render the sentencing proceeding fundamentally unfair.
Next, the defendant avers that a contradiction exists between Tennessee Code Annotated section 39-13-204(g)(l) and the jury instruction regarding victim impact evidence set out by this Court in Nesbit. The defendant maintains that this contradiction renders victim impact evidence irrelevant. Tennessee Code Annotated section 39 — 13—204(g)(1) provides in pertinent part:
If the jury unanimously determines that
(A) At least one (1) statutory aggravating circumstance or several statutory aggravating circumstances have been proven by the state beyond a reasonable doubt; and
(B) Such circumstance or circumstances have been proven by the state to outweigh any mitigating circumstances beyond a reasonable doubt; then the sentence shall be death.
The jury instruction set out by this Court in Nesbit is as follows:
The prosecution has introduced what is known as victim impact evidence. This evidence has been introduced to show the financial, emotional, psychological, or physical effects of the victim’s death on the members of the victim’s immediate family. You may consider this evidence in determining an appropriate punishment. However, your consideration must be limited to a rational inquiry into the culpability of the defendant, not an emotional response to the evidence. Victim impact evidence is not the same as an aggravating circumstance. Proof of an adverse impact on the victim’s family is not proof of an aggravating circumstance. Introduction of victim impact evidence in no way reheves the State of its burden to prove beyond a reasonable doubt at least one aggravating circumstance which has been alleged. You may consider this victim impact evidence in determining the appropriateness of the death penalty only if you first find that-the existence of one or more aggravating circumstances has been proven beyond a reasonable doubt by evidence independent from the victim impact evidence, and find that the aggravating circumstances found outweigh the finding of one or more mitigating circumstances beyond a reasonable doubt.
Nesbit, 978 S.W.2d at 892 (emphasis added). The defendant says a contradiction exists because the statute provides that the jury shall return a verdict of death upon finding the existence of an aggravating circumstance beyond a reasonable doubt that outweighs any mitigating circumstances beyond a reasonable doubt, while the Nesbit instruction allows the jury to consider victim impact evidence only after it has found that at least one aggravating circumstance exists, and that the aggravating circumstance outweighs the mitigating circumstances beyond a reasonable doubt. The defendant concludes that victim impact evidence is “mooted” by the instruction and serves no purpose in the sentencing scheme.
Assuming, for the sake of argument, that the defendant is correct, he certainly has no basis to complain because, as the State points out, any contradiction between the statute and the instruction inures to his benefit. See, e.g., Smith, 993 S.W.2d at 13, n. 7; State v. Bush, 942 S.W.2d 489, 506, n. 10 (Tenn.1997); State v. Carter, 714 S.W.2d 241 (Tenn.1986). Therefore, this complaint does not entitle the defendant to relief.
During oral argument, the State indicated that it is not opposed to this Court reconsidering the Nesbit instruction and stated that the portion of the instruction challenged by the defendant unnecessarily limits the jury’s consideration of victim impact evidence. Although the State’s brief includes no discussion of the instructions used by other jurisdictions, at oral argument the State indicated that some jurisdictions do not provide a jury instruction on victim impact evidence and other jurisdictions take a “minimalist” approach by simply advising the jury that victim impact evidence is not an aggravating circumstance.
It is beyond dispute that any effective instruction on this subject must advise the jury that victim impact evidence is not the same as an aggravating circumstance. As to the instructions used by other jurisdictions, we note that the Nesbit instruction was based upon precedent from other jurisdictions, in particular Oklahoma and Georgia. Nevertheless, we wish to emphasize that the Nesbit instruction was simply a suggestion. Nesbit, 978 S.W.2d at 892 (“[W]e hereby suggest the following instruction.... ”). By suggesting this language we did not intend to preclude individual trial judges or the Committee on Pattern Jury Instructions (Criminal) of the Tennessee Judicial Conference (“Committee”) from making necessary and appropriate revisions to this instruction. Indeed, trial judges and the Committee, which is composed of trial judges, are often better situated to assess the practical effectiveness or ineffectiveness of this particular instruction and make needed language changes.
The defendant also complains that the prosecutors engaged in improper closing argument regarding the function of victim impact evidence and argues that the trial court erred by failing to grant a mistrial based upon this improper argument. As previously stated, the decision of whether to grant a mistrial is within the sound discretion of the trial court, and the trial court’s decision will not be reversed absent a clear showing of abuse of discretion. Adkins, 786 S.W.2d at 644; Inlow, 52 S.W.3d at 105.
As the State asserts, the defendant failed to contemporaneously object to the prosecutor’s argument that the jury should consider what the victim’s death “meant to the community” and that the jury should “show [the defendant] the same mercy that he showed to Steve and Sarah.” Despite defense counsel’s failure to object, the trial court provided a curative instruction, stating, “Ladies and Gentlemen of the Jury, you are to do an individualized sentencing based on the law and facts with regard to the case and Mr. Reid. You are to do so without regard to the effect on the community.” The defendant’s failure to object to these comments constitutes waiver on appeal. See State v. Green, 947 S.W.2d 186, 188 (Tenn.Crim.App.1997); State v. Little, 854 S.W.2d 643, 651 (Tenn.Crim.App.1992) (failure to object to prosecutor’s alleged misconduct during closing argument waives later complaint); State v. Thornton, 10 S.W.3d 229, 234 (Tenn.Crim.App.1999) (citing Tenn. R.App. P. 36(a)). Moreover, a review of the record clearly indicates that these comments do not amount to plain error. In light of the limited nature of the comments and the trial court’s curative instruction, any error was harmless. See State v. Burns, 979 S.W.2d 276, 283 (Tenn.1998) (finding more extensive argument harmless error).
The defendant also contends that during rebuttal argument the prosecutor improperly told the jury that it could consider the victim impact evidence during the weighing process and engaged in inflammatory argument designed to elicit an irrational and emotional response from the jury. The defendant contends that the cumulative effect of this improper argument mandates reversal. The following is an excerpt of the argument to which the defendant objects:
GENERAL THURMAN: Aggravating circumstances. We’ve talked about those. General Moore talked about them, and they are really not an issue. Mr. Engle admits that all those aggravating circumstances are present in this case, so that is not the issue now. Now you have the weighing issue, and if you weigh what we’ve talked about, if you weigh it, any mitigation you found for Mr. Reid, and I submit it is very slight, I think there is but one verdict under the law. You weigh it in your mind. What is the verdict? When you weigh it, I want you to consider the facts about these aggravating circumstances, the facts that this is a robbery, the facts that they were killed in cold blood because they were witnesses. You’ve seen that picture a lot, but when you weigh the circumstances of this crime, you have to think what was in Steve Hampton’s mind, when he was shot and when he was still alive and was reaching up? What was he thinking in the last few seconds? And you weigh that against the mitigation. Sarah Jackson—
MR. ENGLE: Objection, Your Honor, you cannot, the law doesn’t allow the weighing of the facts of the crimes as against the mitigating evidence.
THE COURT: Sustained. Rephrase.
GENERAL THURMAN: They can consider all the facts and circumstances of the crime, which I’m asking.
THE COURT: They can consider. I will — ladies and gentlemen of the jury, I will instruct you as to how you are to weigh things.
GENERAL THURMAN: But you can consider that. You consider what Sarah Jackson had to go through in considering these aggravating factors, after she was shot, after she had to wait knowing Steve Hampton was being shot, and she was next, and how after she was shot, she was struggling to get up, thinking maybe, maybe I’ve survived, maybe he is gone, and when you are weighing his background, his childhood, weigh what kind of man could stand there and calmly reload, one shell at a time, in that pistol while she is struggling there, and what kind of man cannot have pity, and what kind of man did walk in there and execute that young girl?
This kind of man, and he can’t blame his mother. He can’t blame his father. He can’t blame the Texas Department of Correction. He is responsible. This man. That is the man the expert witnesses for the defense didn’t want you to see. That is the man that suffered from this psychosis that can’t hardly deal with the world. That is the man. Paul Reid celebrating, spending his money, shopping. It looks like he is functioning pretty well; doesn’t it? While he is toasting his margarita and you are weighing the circumstances, think about the three children that are saying where is my daddy? Think about the parents struggling to get through one more day while he is celebrating.
Now even though a lot of this case is about Paul Reid and the mitigation that you have to consider, you don’t have to forget those faces, those lives, and the lives that were destroyed, besides those two, of the families. The Judge will tell you you can consider that. You consider that when you weigh those aggravating circumstances. They were real people with real dreams—
MR. ENGLE: Your Honor, I’m sorry, but, again, this is a misstatement of the law.
GENERAL THURMAN: It is not a misstatement of the law. They can consider that, Your Honor.
THE COURT: Consider it — I will instruct the jury in terms of how they should consider this.
GENERAL THURMAN: But don’t forget all the lives, not only theirs, that were destroyed by Paul Reid, and it’s time for him to face the responsibility for that. It’s time for him to have the ultimate punishment. Each of you know what that is. It’s time for justice. Thank you.
In evaluating the prejudicial effect of any improper prosecutorial argument, this Court must consider:
1. The conduct complained of viewed in light of the facts and circumstances of the case;
2. The curative measures undertaken by the court and the prosecution;
3. The intent of the prosecutor in making the improper arguments;
4. The cumulative effect of the improper conduct and any other errors in the record; and
5. The relative strength and weakness of the case.
Nesbit, 978 S.W.2d at 894. Applying these factors, we are of the opinion that any error was harmless. Any impropriety in the prosecutor’s closing argument is slight. While the prosecutor should have used the word “consider” rather than “weigh,” there is no evidence that the prosecutor acted in bad faith, and in fact, his responses to defense objections indicated that he was attempting to comply precisely with the dictates of Nesbit Moreover, the trial court sustained defense objections, properly instructed jurors as to the nature and function of victim impact evidence, emphasized that jurors should apply the law as provided by the court, and reminded jurors that argument of counsel is not evidence. This was a well-tried case from beginning to end, and the cumulative effect factor simply does not apply because this trial was nearly error-free. Finally, the State’s case at sentencing was very strong, with clear proof of the three aggravating circumstances and substantial proof rebutting the mitigating evidence. Accordingly, under these circumstances, we have no hesitation in finding any improper argument during the prosecutor’s closing harmless. Nesbit, 978 S.W.2d at 893-94.
VI. Proportionality Review
Finally, this court is statutorily required to determine whether: (1) the sentences of death were imposed in any arbitrary fashion; (2) the evidence supports the jury’s finding of statutory aggravating circumstances; (3) the evidence supports the jury’s finding that the aggravating circumstances outweigh any mitigating circumstances; and (4) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the nature of the crime and the defendant. Tenn.Code Ann. § 39-13-206(c)(1) (1997). A thorough review of the record reveals that the evidence is sufficient to support the jury’s finding of the three aggravating circumstances and the jury’s finding that the aggravating circumstances outweighed mitigating circumstances beyond a reasonable doubt. Additionally, there is no indication that the sentences of death were imposed in an arbitrary fashion.
Finally, the sentences of death in this case are not disproportionate to the penalty imposed in similar’ cases, considering the nature of the crime and the defendant. Tenn.Code Ann. § 39-13-206(c)(1)(D). A death sentence is disproportionate only if it is “plainly lacking in circumstances consistent with those in similar cases in which the death penalty has previously been imposed.” Bland, 958 S.W.2d at 665. A death sentence is not disproportionate merely because the circumstances of the offense are similar to those of another offense for which the defendant has received a life sentence. Id. at 665. Thus, the duty of an appellate court is not to “assure that a sentence less than death was never imposed in a case with similar characteristics,” but instead to “assure that no aberrant death sentence is affirmed.” Id.
While there is no mathematical or scientific formula involved in comparing similar cases, this Court generally considers: (1) the means of death; (2) the manner of death; (3) the motivation for the killing; (4) the place of death; (5) the similarity of the victim’s circumstances, including age, physical and mental conditions, and the victim’s treatment during the killing; (6) the absence or presence of provocation; (7) the absence or presence of justification; and (8) the injury to and effects on non-decedent victims. See Vann, 976 S.W.2d at 107 (citing Bland, 958 S.W.2d at 667). When reviewing the characteristics of the defendant, we consider (1) the defendant’s prior record or prior criminal activity; (2) the defendant’s age, race, and gender; (3) the defendant’s mental, emotional or physical condition; (4) the defendant’s involvement or role in the murder; (5) the defendant’s cooperation with authorities; (6) the defendant’s remorse; (7) the defendant’s knowledge of the helplessness of the victim; and (8) the defendant’s capacity for rehabilitation. Id. Moreover in conducting this review, “we select from the pool of cases in which a capital sentencing hearing was actually conducted to determine whether the sentence should be life imprisonment, life imprisonment without the possibility of parole, or death.” Carruthers, 35 S.W.3d at 570 (citing Bland, 958 S.W.2d at 666).
Considering the record in this case in light of these factors, the proof shows that, while robbing a Captain D’s, the defendant repeatedly shot two unresisting employees as they were lying face down on the floor. Sarah Jackson had been shot at close range four times in the back of the head and once in the back. Steve Hampton had been shot at close range twice in the back of the head and once in the back. The number of wounds suggested that the defendant manually reloaded his .32 caliber revolver during the assault. Both the robbery and the murders appear to be premeditated, intentional, and well-planned, lacking any indicia of impulsiveness. The apparent motivations for the robbery and murders are greed and a desire to avoid prosecution.
The defendant was thirty-nine-years-old at the time these crimes were committed and had been convicted in Texas in 1984 of aggravated robbery. In 1978, the defendant had two felony indictments in Texas dismissed based upon a finding of permanent incompetence, and he was judicially committed to a psychiatric hospital but was later found to be malingering. As a juvenile, the defendant received probation for a theft and assault charge. As to mitigation, the defendant introduced proof showing that he had an unstable childhood, that he had exhibited mental and behavioral problems from a very early age, and that he had brain damage that was caused by either a congenital defect or trauma. However, the proof established no causal connection between this brain damage and the crimes committed by the defendant. Although mental health professionals testified that the defendant was schizophrenic and delusional, there was substantial evidence regarding the defendant’s history of malingering and testimony that any psychological disorder he suffered was in remission at the time he committed these offenses. Finally, no evidence was presented to show that the defendant cooperated with the authorities or exhibited remorse for the killings, and there is nothing in the record to indicate the defendant is amenable to rehabilitation.
While no two capital cases and no two defendants are alike, we have compared the circumstances of the present case with the circumstances of similar first degree murder cases and conclude that the penalty imposed in the present case is not disproportionate to the penalty imposed in similar cases. See, e.g., State v. Chalmers, 28 S.W.3d 913 (Tenn.2000) (imposing the death penalty upon finding aggravating circumstance (i)(2) where the defendant shot and robbed a twenty-eight-year-old victim); State v. Cribbs, 967 S.W.2d 773 (Tenn.1998) (imposing the death penalty upon finding the (i)(2) and (i)(7) aggravating circumstances where the twenty-three-year-old defendant murdered a woman after burglarizing her home); State v. Bush, 942 S.W.2d 489 (Tenn.1997) (imposing the death penalty upon finding the (i)(5) and (i)(6) aggravating circumstances, despite substantial evidence of the defendant’s troubled childhood, mental problems, and his initial incompetence to stand trial); Hines, 919 S.W.2d at 573 (imposing the death penalty upon finding the (i)(2), (i)(5), and (i)(7) aggravating circumstances despite evidence that the defendant had a troubled childhood, was abandoned by his parents, had abused drugs and alcohol as a teenager, and suffered from self-destructive behavior, paranoid personality disorder, dysthymia, and chronic depression); State v. Cazes, 875 S.W.2d 253 (Tenn.1994) (imposing the death penalty upon finding the (i)(2), (i)(5) and (i)(7) aggravating circumstances despite mitigation proof regarding the defendant’s troubled childhood and his possible neurological damage); Smith, 868 S.W.2d at 561 (imposing the death penalty upon finding the (i)(5), (i)(6), (i)(7), & (i)(12) aggravating circumstances despite mitigation evidence that the defendant had been hospitalized for depression, paranoid personality disorder, chronic depressive neurosis, and paranoid delusional disorder); State v. Howell, 868 S.W.2d 238 (Tenn.1993) (imposing the death penalty upon finding the (i)(2) and (i)(7) aggravating circumstances, despite substantial proof that the defendant had traumatic brain damage, where the twenty-seven-year-old defendant shot and killed a convenience store clerk during a robbery); State v. Harris, 839 S.W.2d 54 (Tenn.1992) (imposing the death penalty upon finding the (i)(2), (i)(5), and (i)(7) aggravating circumstances, despite evidence of the defendant’s lack of education and troubled childhood, where the thirty-two-year-old defendant murdered two employees during the robbery of a hotel).
After reviewing the cases set out above and others not herein detailed, we are of the opinion that the penalties imposed by the jury in this case are not disproportionate to the penalties imposed for similar crimes.
VII. Conclusion
We have considered the entire record in this case and find that the sentences of death were not imposed in any arbitrary fashion, that the sentences of death are not excessive or disproportionate, and that the evidence supports the jury’s finding of the statutory aggravating factors and the jury’s finding that these aggravating factors outweighed mitigating factors beyond a reasonable doubt. We have also considered all the defendant’s assignments of error and conclude that none require reversal. With respect to issues not specifically addressed herein, we affirm the decision of the Court of Criminal Appeals, authored by Judge David G. Hayes, and joined in by Judge John Everett Williams and Judge James Curwood Witt, Jr. Relevant portions of that opinion are published hereafter as an appendix. The defendant’s convictions and sentences are affirmed. The sentences of death shall be carried out as provided by law on .the 29th day of April, 2003, unless otherwise ordered by this Court or other proper authority. It appearing that the defendant is indigent, costs of this appeal are taxed to the State of Tennessee.
ADOLPHO A. BIRCH, JR., filed a concurring & dissenting opinion.
[OPINION BY ADOLPHO A. BIRCH, JR., J., type=concurring-in-part-and-dissenting-in-part]
ADOLPHO A. BIRCH, JR., J.,
concurring and dissenting.
I concur with the majority’s opinion affirming the conviction of the defendant. With regard to the imposition of the death sentences in this case, however, I cannot agree. My concerns, as expressed below, pertain to my continued dismay with the comparative proportionality review protocol imposed by the majority.
In accordance with my previous dissents, I maintain that the comparative proportionality review process applied by this Court fails because it does not protect defendants from the arbitrary and disproportionate imposition of the death penalty. See, e.g., State v. Austin, 81 S.W.3d 447, 467 (Tenn.2002) (Birch, J., concurring and dissenting); State v. Godsey, 60 S.W.3d 759, 793 (Tenn.2001) (Birch, J., concurring and dissenting); State v. Bane, 57 S.W.3d 411, 431 (Tenn.2001) (Birch, J., concurring and dissenting); State v. Chalmers, 28 S.W.3d 913, 923 (Tenn.2000) (Birch, J., concurring and dissenting); State v. Keen, 31 S.W.3d 196, 234 (Tenn.2000) (Birch, J., dissenting). In this context, this case is not distinguishable from those listed.
I have grave concerns, as expressed in the aforementioned dissents, about the comparative proportionality review protocol employed by the majority in capital cases. There has, in my opinion, been no meaningful effort to address and rectify these concerns. This lack of effort, in combination with my strongly held conviction that the Court is not properly fulfilling its statutory obligation to determine whether “the sentence of death is excessive or disproportionate to the penalty imposed in similar cases,” causes me to respectfully disagree with the decision to affirm the death penalty imposed in this case. Accordingly, I would reverse the sentences of death and remand the case for re-sentencing.
APPENDIX
(Excerpts from the Court of Criminal Appeals’ Decision)
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
March 13, 2001 Session
STATE OF TENNESSEE v. PAUL DENNIS REID, JR.
Direct Appeal from the Criminal Court for Davidson County, No. 97-C-1834, Cheryl Blackburn, Judge
No. M1999-00803-CCA-R3-DD— Filed May 31, 2001
OPINION
[Deleted: Summary of Facts]
[Deleted: I. Motion to Suppress]
II. Voir Dire of the Venire
A. Use of Religious Tests
Prior to trial, the Appellant filed a motion requesting that the court prohibit the use of “religious tests” during jury selection. He argued that the removal for cause of prospective jurors who oppose the imposition of the death penalty because of “sincerely held” religious, moral or philosophical beliefs violates Article I, section 6 of the Tennessee Constitution. He further asserted that the question, “whether the juror’s ‘sincerely held’ religious, moral, or philosophical beliefs would preclude them from following their oath as jurors,” violates Article I, sections 3, 4, 6, 8, and 17 and Article XI, section 8 of the Tennessee Constitution. Indeed, the Appellant argued that the only inquiry which is constitutionally permissible when a prospective juror expresses an opposition to the death penalty upon religious, moral or philosophical grounds is that of determining whether the belief is sincerely held. The trial court denied the Appellant’s motion. The Appellant now contends that this denial was error.
A person otherwise competent may not be disqualified as a juror because of his or her religious beliefs. In other words, no religious test shall be put forth to the person. Religious tests probe religious beliefs. See Wolf v. Sundquist, 955 S.W.2d 626, 631 (Tenn.App.), perm. to appeal denied, (Tenn.1997) (citing Torcaso v. Watkins, 367 U.S. 488, 494, 81 S.Ct. 1680, 1683, 6 L.Ed.2d 982 (1961); Paty v. McDaniel, 547 S.W.2d 897, 908 (Tenn.1977), rev’d on other grounds, 435 U.S. 618, 98 S.Ct. 1322, 55 L.Ed.2d 593 (1978)). For example, a person may not be excluded from jury service because of their lack of belief in a Supreme Being nor may a judge coerce a prospective juror to take an oath which includes a reference to God where the prospective juror is an atheist. See generally 47 Am.Jur. 2d, Jury § 177 (1995). However, the exclusion by a trial court of prospective jurors because of their moral or religious-based reluctance to impose the death penalty is not error. In this regard, potential jurors are removed for cause not because of their religious opinion or affiliation but because the jurors are unable to view the proceedings impartially and perform their duties in accordance with the juror’s oath. See generally State v. Jones, 789 S.W.2d 545, 547 (Tenn.), cert. denied, 498 U.S. 908, 111 S.Ct. 280, 112 L.Ed.2d 234 (1990); State v. Bobo, 727 S.W.2d 945, 949 (Tenn.), cert. denied, 484 U.S. 872, 108 S.Ct. 204, 98 L.Ed.2d 155 (1987). The Court of Appeals, in Wolf v. Sundquist, reaffirmed this principle, stating:
It is now settled that a criminal defendant’s constitutional rights are not violated by excusing prospective jurors for cause when their personal beliefs concerning the death penalty would prevent or substantially impair their performance as a juror in accordance with their instructions and their oath.
Wolf v. Sundquist, 955 S.W.2d at 629 (citing Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985); Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980); State v. Hutchison, 898 S.W.2d 161, 167 (Tenn. 1994), cert. denied, 516 U.S. 846, 116 S.Ct. 137, 133 L.Ed.2d 84 (1995); State v. Alley, 776 S.W.2d 506, 518 (Tenn.1989), cert. denied, 493 U.S. 1036, 110 S.Ct. 758, 107 L.Ed.2d 775 (1990)). The court further held that questioning jurors concerning their religious beliefs with regard to the death penalty does not amount to a religious test. Wolf v. Sundquist, 955 S.W.2d at 631. In sum, the court held that the exclusion of jurors who because of their religious beliefs cannot apply the law to the facts of a particular case is not error. Wolf v. Sundquist, 955 S.W.2d at 633. This issue is without merit.
B. Other Issues Concerning Voir Dire
The Appellant raises additional issues regarding the trial court’s direction of voir dire within the jury selection process in his case. Specifically, the Appellant contends that the court improperly limited the Appellant’s ability to learn about potential jurors’ attitudes toward mental health evidence, improperly questioned jurors concerning opinions about the death penalty, and improperly commented that the court expected the Appellant to be found guilty. The State asserts that the Appellant has waived any challenge related to jury composition based upon his failure to exhaust all peremptory challenges. With regard to challenges to specific jurors, we agree that the Appellant has waived any challenge on appeal. See generally State v. Howell, 868 S.W.2d 238, 248 (Tenn.1993), cert. denied, 510 U.S. 1215, 114 S.Ct. 1339, 127 L.Ed.2d 687 (1994); State v. Middlebrooks, 840 S.W.2d 317, 329 (Tenn.1992); State v. Teel, 793 S.W.2d 236, 247 (Tenn.), cert. denied, 498 U.S. 1007, 111 S.Ct. 571, 112 L.Ed.2d 577 (1990). It is only where a defendant exhausts all of his peremptory challenges and is thereafter forced to accept an incompetent juror can a complaint about the jury selection process have merit. State v. Coury, 697 S.W.2d 373, 379 (Tenn.Crim.App.1985) (citing Hale v. State, 198 Tenn. 461, 281 S.W.2d 51 (1955); McCook v. State, 555 S.W.2d 411, 413 (Tenn.Crim.App.1977)). Further, the record shows that the jury that heard the case was fair and impartial. There is nothing in the record to show that any prejudice resulted to the Appellant by the manner of the selection process utilized. Accordingly, we find no error. However, because of the manner in which the remaining challenges are phrased, we choose to address the challenges on their merits.
1. Limitation of Inquiry into Mental Health Evidence as Mitigating Circumstance
Tennessee Rule of Criminal Procedure 24(a), in pertinent part, states that the trial court “shall permit questioning by the parties for the purpose of discovering bases for challenge for cause and enabling an intelligent exercise of peremptory challenges.” It further states that “[t]he court ... may direct that any portion of the questioning of a prospective juror be conducted out of the presence of the tentatively selected jurors and other prospective jurors.” Although the rule provides no test for determining whether the scope of questioning is adequate to fulfill the rule’s purpose, Tennessee courts have held that “the scope and extent of voir dire is entrusted to the discretion of the trial judge, and his actions will not be disturbed unless clear abuse of discretion is shown.” State v. Harris, 839 S.W.2d 54, 65 (Tenn.1992), cert. denied, 507 U.S. 954, 113 S.Ct. 1368, 122 L.Ed.2d 746 (1993); see also State v. Smith, 993 S.W.2d 6, 28 (Tenn.), cert. denied, 528 U.S. 1023, 120 S.Ct. 536, 145 L.Ed.2d 415 (1999). Thus, the method of voir dire, i.e., individual or group, the questions that may be asked, and the scope of inquiry are all within the discretion of the trial court.
In the present case, the trial court, prior to the commencement of jury selection, instructed counsel that individual voir dire would be limited to issues surrounding pretrial publicity and death qualification, “unless there has been something on that questionnaire that we need to deal with individually.” Defense counsel informed the court that, from the questionnaires,
an amazingly large number of jurors recorded for us mental health issues related to themselves or to their family. As this obviously would be a subject of voir dire where they have indicated something which is innately a personal topic, I wonder if the Court would like to consider those questions[]
The court denied the Appellant’s request to question jurors during individual voir dire regarding mental health issues, but stated, “that is something that you can deal [with] within the general voir dire.” The trial court additionally informed defense counsel that during the individual voir dire they could ask the general question, “Will you consider all mitigation?” and also permitted the parties to question the potential jurors regarding any matters that the jurors had designated as “private” on their questionnaires. Regarding group voir dire, the trial court limited inquiry into mental health issues, requiring any question to be an attempt to clarify a position stated in the questionnaire or be a general inquiry regarding the juror’s ability to consider mental health testimony. The Appellant now contends that the limitations placed on voir dire prevented him from developing possible cause challenges against jurors who had already expressed negative attitudes about mental health evidence, thereby rendering the limitations essentially meaningless.
We cannot conclude that the trial court abused its discretion. Defense counsel had access to the questionnaires of the prospective jurors. The questionnaires combined with the permissible inquiries as to mental health issues during individual and group voir dire provided the Appellant with ample background information from which to exercise peremptory challenges. Accordingly, we find that the limited restrictions placed upon the parties by the trial court were reasonable and were well within the trial court’s discretion. This issue is without merit.
2. Court Implied to Venire that Appellant was Guilty
The Appellant cites to numerous statements by the trial court which he asserts “implicitly conveyed that the court expected the [Appellant] to be found guilty of first-degree murder, so that a penalty phase would necessarily occur thereafter.” The Appellant contends that the inference from the trial court’s directions to the venire implied that the court “viewed the [Appellant’s] convictions as a foregone conclusion.” Accordingly, he avers that the court’s comments resulted in prejudice to the judicial process requiring reversal. See Tenn. R.App. P. 36(b).
Without reiterating verbatim the challenged language of the trial court to the venire, we acknowledge that the court, for example, used the term “until he is found guilty beyond a reasonable doubt of murder in the first-degree” rather than the term “unless he is found guilty beyond a reasonable doubt of murder in the first-degree.” The Appellant argues prejudice without considering the context in which the court’s statements were provided. Indeed, one challenged comment of the court, placed in full context of the court’s instruction, provided:
Mr. Reid hasn’t been found guilty of anything. That is what the trial is about, so I want to make certain that you understand he is presumed innocent as he sits in front of you, and that presumption stays with him until he is found guilty after you hear the proof in the case, so just because we are asking you questions with regard to the possible punishments in this case, I want to make certain you keep in mind that he has not been found guilty of anything, but the reason we have to ask you these questions is that we must have jurors who can consider all three possible punishments.
We disagree with the Appellant’s argument that this instruction compels the finding that the court implied to the jury the Appellant’s guilt. Given the entire context of the voir dire, we conclude that no reasonable juror could have believed that the court was instructing him or her to return a guilty verdict. This issue is without merit.
[Deleted: III. Sufficiency of the Evidence]
IV. Evidentiary Issues: Guilt Phase
A. Admissibility of Testimony of Seryeant Hunter
The Appellant argues that the trial court erred by permitting Sgt. Johnny Hunter to testify as an expert witness in the field of blood spatter analysis. Specifically, the Appellant contends that this testimony violated his constitutional right to a fair trial because the defense was unfairly surprised. We disagree and find no error.
Sgt. Hunter was qualified by the court to testify as an expert on fingerprint analysis and comparison, as well as blood spatter analysis. The Appellant complains that he received no advance notice that the State was intending to introduce expert testimony in the field of blood spatter analysis and that he was denied the opportunity to effectively cross-examine the witness. Sgt. Hunter’s report, which was provided to the defense prior to trial, mentioned that no visible blood spatter was found, with the exception of a small amount of blood on the floor around the victims. At trial, Sgt. Hunter testified about blood patterns found on the floor and surrounding area, specifically noting the absence of blood spattering. Sgt. Hunter further testified that the absence of blood spattering indicated that the victims were lying on the ground when they were shot. He further stated that the blood pattern on a shelf to the right of one of the victims, Sarah Jackson, indicated that she had attempted to lift herself up after being shot.
The Appellant is not contesting Sgt. Hunter’s qualifications, but rather insists that he was surprised by his testimony in this respect. Although the Appellant argues that he had no notice that Sgt. Hunter would testify about blood spattering at trial, the Appellant fails to explain how he was prejudiced by this testimony. Over a year before trial, the Appellant was provided with a copy of Sgt. Hunter’s report, which stated that a small amount of blood was found on the floor near the victims. The Appellant cannot complain about Sgt. Hunter’s testimony simply because he failed to find any significance in the report which was properly and timely provided to him by the State. This issue is without merit.
B. Testimony of TBI Agent Linda Littlejohn Regarding Length of Shoes Seized
The Appellant argues that the trial court erred by allowing Tennessee Bureau of Investigation Agent, Linda Littlejohn, to testify that the length of the shoes seized from the Appellant’s apartment were within the range of the unidentified shoe print left at the scene of the crime. Specifically, he contends that the technique used in “measuring” the enlarged photographic negative was not shown to meet the standards of admissibility for expert testimony set forth in McDaniel v. CSX Transp., 955 S.W.2d 257 (Tenn.1997). Additionally, the Appellant asserts that the admission of Agent Littlejohn’s testimony violated Tenn. R. Evid. 702 and 401.
Determinations of the admissibility of expert testimony are made within the sound discretion of the trial court. Stale v. Ballard, 855 S.W.2d 557, 562 (Tenn.1998). The standard of review on appeal is whether the trial court abused its discretion in excluding the expert testimony. The abuse of discretion standard contemplates that, before reversal, the record must show that a judge “applied an incorrect legal standard, or reached a decision which is against logic or reasoning that caused an injustice to the party complaining.” State v. Shirley, 6 S.W.3d 243, 247 (Tenn.1999); State v. Shuck, 953 S.W.2d 662, 669 (Tenn.1997).
In the present case, Agent Littlejohn testified that a ruler was placed near the shoe print found at the crime scene before the photograph was taken. The negatives were later developed and “one to one photographs were made, and that would be where the negative is enlarged to where the ruler in the photograph is actually the same size of the ruler next to the print at the scene, so the photographs ... would be exactly the same size as the print at the crime scene.” Both tread and length were determined using this same technique. After comparing the photograph and the shoes, Agent Littlejohn testified that none of the treads on the shoes recovered from the Appellant’s apartment matched the print left at the crime scene. Although Agent Littlejohn testified that she could not speculate as to the actual size of the shoe worn by the perpetrator because different styles and brands would vary slightly in length, she did testify, however, that the length of the shoe print found at the scene fell within the range of lengths of the nine pairs of shoes seized from the Appellant’s apartment. Specifically, she testified that the shoe print found at the scene measured 12 and 3/8 inches in length. The shoes taken from the Appellant’s apartment ranged from 11 13/16 inches to 12½ inches in length.
First, the Appellant contends that the trial court erred in admitting Agent Littlejohn’s testimony regarding the length of the shoe print because it did not comport with standards for expert testimony set forth in McDaniel, 955 S.W.2d at 257. We note that the Appellant does not contest this measurement technique with respect to the tread identification testimony, which was favorable to him. Rather, he only attacks this technique with respect to the length of the shoe print. The Appellant further argues that the trial court erred by violating Tenn. R. Evid. 702, which reads, “[i]f scientific, technical, or other specialized knowledge will substantially assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise.”
In McDaniel, the Tennessee Supreme Court held that a trial court may consider the following factors when determining the reliability of scientific evidence: (1) whether scientific evidence has been tested and the methodology with which it has been tested; (2) whether the evidence has been subjected to peer review or publication; (3) whether a potential rate of error is known; (4) whether, as formerly required by Frye, the evidence is generally accepted in the scientific community; and (5) whether the expert’s research in the field has been conducted independent of litigation. McDaniel, 955 S.W.2d at 265. In this instance, the following dialogue took place during a jury-out hearing:
THE COURT: Well, let me ask Ms. Littlejohn a couple of questions. Ms. Littlejohn, the training that you had in terms of the conclusions that you drew, were these standard procedures used in that field?
LITTLEJOHN: Yes, I mean—
THE COURT: Okay, and it is the blowing up, the one-on-one comparison—
LITTLEJOHN: Uh-huh.
THE COURT: —and is that what your training indicates?
LITTLEJOHN: ... yes, ma’am.
THE COURT: And is that the standard used in your field?
LITTLEJOHN: Yes, it is.
THE COURT: All right, and is there scientific literature with regard to this, I mean—
LITTLEJOHN: Yes, there is.
THE COURT: —and is this subject to being able to be proven or disproved?
LITTLEJOHN: Yes.
THE COURT: Okay, so there are scientific principles behind this?
LITTLEJOHN: Yes.
THE COURT: So you blow it up one-on-one, which is the exact size of the print, and then you just make a comparison of both in tread and otherwise, and apparently you did that in this case that [defense counsel] does not object to?
LITTLEJOHN: Yes, your honor.
DEFENSE: Correct.
THE COURT: Okay, so you used that same methodology to compare the prints, the tread, and that, that you used to make the size comparison?
LITTLEJOHN: Basically....
We conclude that the above text, along with other testimony presented at the jury-out hearing, more than satisfies the factors set forth in McDaniel. The evidence presented at both the jury-out hearing and trial indicated that the technique used by Agent Littlejohn was standard procedure and widely accepted in the field of shoe and footprint comparison. Agent Littlejohn properly qualifies as an expert in shoe and footprint comparison and her testimony would have substantially assisted the trier of fact due to her education, experience, and training. See Tenn. R. Evid. 702. Moreover, the Appellant was able to solicit testimony during cross-examination that the length of the print found would be fairly common among the general population. This issue is without merit.
The Appellant also argues that Agent Littlejohn’s testimony concerning range of length was irrelevant. See Tenn. R. Evid. 401 and 402. Tennessee Rules of Evidence 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Clearly, testimony concerning the shoe prints found at the crime scene as compared to the shoes seized from the Appellant’s apartment is relevant evidence that was properly admitted. This issue is without merit.
C. Admissibility of Cash Register Receipts Seized from Appellant’s Residence
The Appellant argues that the trial court erred in admitting into evidence cash register receipts seized from the Appellant’s residence that were not properly authenticated pursuant to Tenn. R. Evid. 901. Specifically, he contests the authentication of the receipts because the prosecution failed to call as witnesses representatives of the respective businesses to testify as to the legitimacy and accuracy of the receipts. The prosecution, through the testimony of Detective Postiglione, introduced three cash register receipts seized from the Appellant’s residence: (1) a Wal-Mart receipt in the amount of $78.34, dated February 17, 1997; (2) a Wal-Mart receipt dated the same day in the amount of $69.29; and (3) a receipt from Jumbo Sports dated February 18, 1997, for $97.41. The purpose for the introduction of these receipts was to show that the Appellant had spent a large amount of money in a short period of time after the murders despite the fact that he was in dire financial trouble at the time. At trial, defense counsel objected to the introduction of the receipts, arguing that the receipts had not been properly authenticated. The trial court overruled the objection and found the cash register receipts admissible. Upon reviewing this issue, we agree that the receipts were admissible.
Rule 901(a) of the Tennessee Rules of Evidence provides that “[t]he requirement of authentication ... is satisfied by evidence sufficient to the court to support a finding by the trier of fact that the matter in question is what its proponent claims.” Notwithstanding, Rule 902(7) states that extrinsic evidence of authenticity is not required as a condition precedent to admissibility when the item or items sought to be admitted are “[inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control or origin.” In the present case, two of the receipts were from Wal-Mart and one receipt was from Jumbo Sports. All three receipts were in printed form, bearing the retailer’s name, address, and other relevant information. This printed material constitutes an “inscription” for purposes of satisfying Rule 902(7). See, e.g., United States v. Hing Shair Chan, 680 F.Supp. 521, 526 (E.D.N.Y.1988) (a hotel record on hotel stationary was held to be self-authenticating); State v. DeLeon, No. CA 17574, 2000 WL 646502 (Ohio App.2d May 19, 2000) (bill of sale for automobile bearing dealer’s name and address held to be self-authenticating); Neil P. Cohen, et. al., Tennessee Law of Evidence §§ 9.02[9] (4th ed. 2000). Thus, the cash register receipts were self-authenticating and properly admitted at trial. This issue is without merit.
V. Closing Argument at Guilt Phase
A. Prosecutorial Comment on Appellant’s Failure to Testify
The Appellant argues that the trial court erred by denying defense counsel’s motion for a mistrial when, during closing arguments of the guilt/innocence phase, the prosecution commented on the Appellant’s failure to testify. A prosecutor is strictly prohibited from commenting on the defendant’s decision not to testify. Coker v. State, 911 S.W.2d 357, 368 (Tenn.Crim.App.1995). However, a prosecutor’s statement that proof is unrefuted or uncontradicted is not an improper comment upon a defendant’s failure to testify. State v. Thomas, 818 S.W.2d 350, 364 (Tenn.Crim.App.1991); Coury, 697 S.W.2d at 378.
In the present case, the Appellant did not testify at trial. However, a videotaped statement to the detectives following the Appellant’s arrest was played before the jury. In this tape, the Appellant stated that he did not know how his fingerprint got on Hampton’s Movie Gallery card. Nonetheless, he also told detectives “I’m not surprised that it is on there.” During closing arguments of the guilt/innocence phase, defense counsel made the following statements:
I believe the evidence showed that card was found the next day, over 24 hours after the robbery happened. You heard that it was found on Ellington Parkway, about a mile from [the Appellant’s] house. You heard that [the Appellant] had a car that broke down all the time. If a person was near something and your car breaks down and you walk by something, you might pick that up and throw it back down. Four months after the fact, you may not even remember that.
Additionally, defense counsel questioned the prosecution’s reasoning for playing the videotaped statement during trial. In its closing arguments, the prosecution responded to defense counsel’s comments as follows:
[Defense counsel] talked about why did the State put in the statement. Because he gave it, and you, as jurors, have a right to hear it. You did hear it, and we put in on for one reason; because he was given chance after chance to explain how his fingerprint could have gotten on that card. He said I’m not surprised it is on there. Would he ever have an explanation? [Defense counsel] grabbed one out of the air, and there is no basis in fact or evidence for anything else, and said, well maybe his car broke down.
(Emphasis added). The Appellant maintains that the prosecution’s statement of “When would he ever have an explanation?” clearly commented upon the fact that the Appellant failed to explain during his statement to police the presence of his fingerprint on property that had been in the possession of one of the victims. Additionally, he contends that the prosecutor wrongfully commented on the Appellant’s failure to take the witness stand and offer an explanation at trial. We disagree. This was clearly rebuttal argument directed toward defense counsel’s earlier argument that the Appellant could have picked up the movie card while walking after his car broke down. We do not find that the statement can be fairly characterized as a comment on the Appellant’s failure to testify. At most, the comment was mere argument by the prosecution that its proof was unrefuted or uncontradicted. See Coury, 697 S.W.2d at 378. This issue is without merit.
B. Prosecutorial Comment During Closing Arguments
The Appellant argues that the trial court erred by overruling defense counsel’s objection to the prosecution’s statement during closing argument that the Appellant’s foot was the “same size” as shoe prints left at the scene. Specifically, the Appellant contends that the comment was prejudicial “because the prosecutor’s comments constituted a misstatement of the evidence on a crucial matter.”
Closing arguments are an important tool for the parties during the trial process. Consequently, the attorneys are usually given wide latitude in the scope of their arguments, see State v. Bigbee, 885 S.W.2d 797, 809 (Tenn.1994), and trial judges, in turn, are accorded wide discretion in their control of those arguments, see State v. Zirkle, 910 S.W.2d 874, 888 (Tenn.Crim.App.1995). N otwithstanding such, arguments must be temperate, based upon the evidence introduced at trial, relevant to the issues being tried, and not otherwise improper under the facts or law. Coker v. State, 911 S.W.2d 357, 368 (Tenn.Crim.App.1995). To justify a reversal on the ground of improper argument of counsel, it must affirmatively appear that the improper conduct affected the verdict to the prejudice of the defendant. Harrington v. State, 215 Tenn. 338, 385 S.W.2d 758, 759 (1965); State v. McBee, 644 S.W.2d 425, 428 (Tenn.Crim.App.1982). Furthermore, the following factors must be considered by this court in making such a determination: 1) the conduct complained of, viewed in light of the facts and circumstances of the case; 2) the curative measures undertaken by the court and the prosecutor; 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. Bigbee, 885 S.W.2d at 809; State v. Buck, 670 S.W.2d 600, 609 (Tenn.1984).
In the present case, Agent Littlejohn testified that the unidentified shoe print found at the crime scene was within the range of the length of shoes seized from the Appellant’s residence. She also testified that it is common for the same “shoe sizes” to vary in length based upon the brand name and manufacturer of the shoe. Accordingly, Agent Littlejohn declined to specifically identify the shoe print as being a particular size. Because the shoes taken from the Appellant’s apartment ranged in length from 11 and 13/16 inches to 12 and ½ inches, Agent Littlejohn testified that she had no doubt that the shoe print found at the scene, which measured 12 and 3/8 inches in length, fell within the range of length of shoes taken from the Appellant’s apartment. Thus, the Appellant could not be excluded from having left the print.
During closing arguments of the guilt/innocence phase, the prosecution made the following three comments with respect to the Appellant’s “shoe size”:
More than likely, it was the killer, and could that print have excluded [the Appellant] if it [sic] was the killer? Of course, if it was a size 7 or a size 8 or a size 9, but it fit in the size of the shoe [the Appellant] wears.
The footprint could have excluded him. The same size of [the Appellant].
Who has a footprint the same size as the one left at the crime scene? [The Appellant].
(Emphasis added). The Appellant argues the above comments made by the prosecution were prejudicial and misrepresented the proof. We disagree. The prosecutor never referred to the unidentified shoe print as being a particular size. While it might have been more preferable for the prosecution to use the terminology “within range of length of [the Appellant’s] shoes” instead of “same size,” it is clear from the record before us that the prosecution was simply referring to Agent Littlejohn’s testimony where she explained that the crime scene shoe print fell within the range of shoes seized from the Appellant. As the trial court correctly noted, “the State did nothing more than argue its position that, because the length of the unknown print was not inconsistent with the length of the [Appellant’s] shoes, the [Appellant] could not be excluded as the perpetrator.” Moreover, we note that the trial court also cautioned the jury that “Statements, 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.” As such, we find no evidence of prosecutorial misconduct, nor do we find error which prejudiced the Appellant. Thus, this issue is without merit.
VI. Instructions on Lesser-included Offenses
The Appellant argues that it was error for the trial court to deny his request for jury instructions as to the lesser-included offenses of facilitation of first-degree murder and facilitation of especially aggravated robbery. With respect to the premeditated first-degree murder charges, the court instructed the jury on the lesser-included offense of second-degree murder. With respect to the especially aggravated robbery charges, the court instructed the jury on the lesser-included offense of aggravated robbery. The trial court, however, declined to instruct the jury on the lesser-included offense of facilitation.
Initially, we note that, in Tennessee, irrespective of a party’s request for a lesser-included jury instruction, “[I]t is the duty of all judges charging juries in cases of criminal prosecutions for any felony ... to charge the jury as to all of the law of each offense included in the indictment.” Tenn.Code Ann. § 40-18-110(a) (1997). Moreover, as the State concedes, facilitation is a lesser-included offense of both first-degree murder and especially aggravated robbery. See generally State v. Burns, 6 S.W.3d 453 (Tenn.1999). This fact alone, however, is not dispositive of whether error occurred. See generally Burns, 6 S.W.3d at 463.
Determining whether a lesser-included offense must be charged in the jury instructions is a two-part inquiry. Burns, 6 S.W.3d at 469. First, the court must determine whether any evidence exists that reasonable minds could accept as to the application of a lesser-included offense. Id. In making this determination, the trial court must view the evidence liberally in the light most favorable to the existence of the lesser-included offense without making any judgments on the credibility of such evidence. Id. Second, the trial court must determine if the evidence, viewed in this light, is legally sufficient to support a conviction for the lesser-included offense. Id. at 467-469.
Criminal responsibility for facilitation of a felony is defined in Tenn.Code Ann. § 39-11-403 (1997) and reads as follows:
(a) A person is criminally responsible for the facilitation of a felony if, knowing that another intends to commit a specific felony, but without the intent required for criminal responsibility under § 39-11-402(2), the person knowingly furnishes substantial assistance in the commission of the felony.
We are unable to conclude under the test announced in Bums that reasonable minds could find that anyone other than the Appellant was involved in this crime. Neither the prosecution nor the defense advanced the theory that the Appellant was criminally responsible for facilitating the acts of another at trial. To the contrary, it was the prosecution’s theory that the Appellant was solely responsible for both the murders and the robbery. At trial, the Appellant, in his defense, asserted the position that the prosecution failed to establish his identity as the perpetrator.
On appeal, the Appellant gives several reasons why he was entitled to the lesser-included instructions. First, the Appellant points to his statement to police where he says, “I am not the triggerman.” This statement, however, in no way indicates the participation of another person. Second, the Appellant points to his statement where he says he did not know the victims but was “not surprised” his fingerprint was on the victim’s Movie Gallery card. He also insists the bloodhounds’ tracking of a scent from the location of the card to a nearby residence implicates the involvement of another person. Once again, we do not interpret this to mean another person was involved. Moreover, no evidence was presented at trial to support this contention. Third, the Appellant argues that another person could have been involved because there were many unidentified fingerprints left at the crime scene. The crime scene was a public restaurant and it is expected that many unidentifiable fingerprints would be found at such a location. Fourth, the Appellant points to the fact that one shoe print was never identified. Once again, it is expected in a public restaurant to have many prints, whether fingerprints or shoe prints, that belong to unidentified persons. Fifth, the Appellant maintains that cigarettes were found in an ashtray in the restaurant. The proof at trial, however, indicated that the cigarettes were found at the employees’ break station and had not been removed the night before when the employees went home. Sixth, the Appellant argues that his friend, D.T., testified that he and the Appellant had previously discussed committing robberies against fast food restaurants. Seventh, the Appellant points to the testimony of M.F., who testified at trial that it was “possible” that someone else could have been in the driver’s side of the car. However, he did not testify that there was, or that he thought there was another person in the car. Instead, he only acknowledged that it would have been possible. Finally, the Appellant argues that the composite drawings do not resemble him. The evidence at trial, however, indicates that the drawings were similar and that many features between the composite drawings and the Appellant match.
We find that no reasonable juror could have accepted that the evidence presented in any manner established the commission of the lesser-included offense of facilitation. To the contrary, the entire case is centered around the Appellant as the sole perpetrator and the Appellant’s defense of not being involved. Thus, the trial court properly declined to instruct the jury on the lesser-included offenses of facilitation of first-degree murder and facilitation of especially aggravated robbery. This issue is without merit.
VII. Late Night Court Sessions
The Appellant argues that the trial court committed reversible error by holding numerous “late night” court sessions. Specifically, the Appellant maintains that the late night sessions caused his attorneys to be tired and less effective than they normally would have been had they been given the opportunity for more rest. In State v. Parton, 817 S.W.2d 28, 33 (Tenn.Crim.App.1991), this court addressed the issue of “late night” court sessions as follows:
It is clear in this state that late night court sessions should be scheduled “only when unusual circumstances require it.” McMullin, 801 S.W.2d at 832. Regardless of whether counsel or any juror objects, the late night sessions should be avoided; and they must be justified because of unusual circumstances. If the requisite unusual circumstances do exist and late night sessions are scheduled because of necessity, good practice would be to also let the record affirmatively reflect that all counsel and all jurors expressly agree. But the threshold question which must always be determined by the court is whether the circumstances justify the unusual session.
First, we note that this issue has been waived for failure of defense counsel to object to the late hours at trial and for defense counsel’s failure to raise this issue in the motion for new trial. See Tenn. R.App. P. 36(a). Notwithstanding the waiver, however, we find that the record does not support the Appellant’s argument that the court kept excessively late hours during trial. During the two and one-half weeks of trial, sessions ran “late” on five of the thirteen nights. On the five “late nights,” two of which were jury selection, court concluded between 8:30 and 9:25 p.m. We also note that during this period, there were five “off days” where neither counsel nor the litigants had to report to court. Further, this was a sequestered jury from a distant county. The Tennessee Supreme Court has held that a determination of how long into the evening a trial should last is a matter within the discretion of the trial court. See Poe, 755 S.W.2d at 47. Although these five days may exceed the “normal eight hour day,” we do not find the sessions to be unreasonable in this particular case. This issue is without merit.
VIII. Evidentiary Issues at Penalty Phase
A. Dr. Martell as Expert Witness
During the penalty phase of the Appellant’s trial, the State called Dr. Daniel Martell as a rebuttal witness and sought to qualify Dr. Martell as an expert in “forensic neuropsychology.” During voir dire of Dr. Martell, the State elicited testimony that Dr. Martell obtained both his master’s degree and his Ph.D. at the University of Virginia and completed a forensic internship at Bellevue Hospital in New York City. After his internship, he was awarded a postdoctoral fellowship to do advanced study and research in forensic neuropsychology. From this fellowship, Dr. Martell founded the Forensic Neuropsychology Laboratory at Kirby Forensic Hospital in New York City, where he remained as director for the next eight years. Dr. Martell then joined the clinical faculty at the Neuropsychiatric Institute at UCLA and also engaged in private consultation practice. Throughout his career, Dr. Martell has authored numerous papers outlining the relationship between neuropsychology and criminal law and has limited his professional practice to forensic neuropsychology.
Dr. Martell testified that board certification was currently unavailable in the field of “forensic neuropsychology” and there is no professional association for “forensic neuropsychologists.” Dr. Martell admitted that, although there is Board Certification and Recognition in the field of neuropsychology, he has never applied for board certification in the field of neuropsychology. On this basis, the Appellant, while conceding Dr. Martell’s qualifications as an expert witness in the field of psychology, objected to his qualification as an expert in the field of “forensic neuropsychology.” The trial court overruled the objection, accepting Dr. Martell’s qualifications as an expert in the field of forensic neuropsychology. The Appellant now challenges this ruling, alleging that “an expert is competent to testify ‘only as to matters within the limited scope of his or her expertise and licensure.’ ” Appellant’s Brief at 260 (citing Bolton v. CNA Ins. Co., 821 S.W.2d 932, 935 (Tenn.1991)). He contends that the “State never sufficiently established that Dr. Martell was an expert in the field of ‘forensic neuropsychology.’ ” Appellant’s Brief at 261.
The determination of the qualifications of an expert witness and the relevancy and competency of expert testimony are matters generally entrusted to the sound discretion of the trial court. State v. Anderson, 880 S.W.2d 720, 728 (Tenn.Crim.App.), perm. to appeal denied, (Tenn.1994); see also Tenn. R. Evid. 104(a). This court will not overturn the trial court’s decision absent a clear abuse of discretion. Anderson, 880 S.W.2d at 728 (citing State v. Williams, 657 S.W.2d 405, 411 (Tenn.1983), cert. denied, 465 U.S. 1073, 104 S.Ct. 1429, 79 L.Ed.2d 753 (1984)).
Rule 702 of the Tennessee Rules of Evidence provides “that in order to testify as an expert and thus be permitted to give conclusions and opinions on a matter involving scientific, technical or other specialized knowledge, a witness must possess sufficient ‘knowledge, skill, experience, training, or education.’ ” Neil P. Cohen et al, Tennessee Law of Evidence § 7.02[4] at 7-21 (emphasis added). The witness may acquire the necessary expertise through formal education or life experiences. Id. However, the witness must have such superior skill, experience, training, education, or knowledge within the particular area that his or her degree of expertise is beyond the scope of common knowledge and experience of the average person. Id. (citations omitted).
The record in the present case clearly establishes that forensic neuropsychology is a recognized sub-specialty of psychology regardless of the availability of board certification in this area. It is equally clear that Dr. Martell is more than qualified to testify in this area of practice. Moreover, the issue of whether the courts of this state recognize experts in the area of forensic neuropsychology is not an issue of first impression. The courts of this state have previously permitted experts to testify in this area. See, e.g., Coe v. State, 17 S.W.3d 193, 205 (Tenn.), cert. denied, 529 U.S. 1034, 120 S.Ct. 1460, 146 L.Ed.2d 344 (2000) (defense presented Dr. Walker as expert witness in field of forensic neuropsychology); Victor James Gazes v. State, No. 02C01-9801-CR-00002 (Tenn.Crim.App. at Jackson, Dec. 8, 1999) (Dr. Martell testified as expert in field of forensic neuropsychology). Accordingly, we cannot conclude that the trial court abused its discretion in qualifying Dr. Martell as an expert in forensic neuropsychology.
B. Cross-Examination of Dr. Martell
Prior to Dr. Martell’s testimony, the Appellant requested that he be permitted to question Dr. Martell regarding a letter written by Dr. Martell in 1997 to the United States Department of Justice. Relying upon Rule 405 of the Tennessee Rules of Evidence as grounds for the letter’s admission, he argues that the letter was relevant to the witness’ credibility and bias. The eight-page letter was Dr. Martell’s request for a Department of Justice investigation into an incident that had led to rumors of unprofessional and possibly illegal conduct by Dr. Martell in a federal death penalty case. In his letter, Dr. Martell repeatedly asserted his innocence of any wrongdoing and sought an investigation so that he could receive a letter of exoneration from the Department of Justice. Specifically, he emphasized that these allegations had damaged his professional reputation and threatened his “financial status.” The allegations concerned an affidavit Dr. Martell had signed in a federal case. This affidavit was discussed by the attorneys and the judge in chambers. Dr. Martell was denied the opportunity to hear the allegations or to defend himself if needed.
In denying admission of Dr. Martell’s letter, the trial court found, in relevant part:
It says I must determine that the questions are proposed in good faith rather than an effort to place before the jury unfairly prejudicial information supported only by unreliable rumors. I’m going to determine that there is no reasonable factual basis for that inquiry.
The Appellant challenges the trial court’s ruling, asserting that this information was admissible to show Dr. Martell’s credibility and “goes to the prospect of bias.” Like other evidentiary rulings, an appellate court reviews a trial court’s ruling under Tenn. R. Evid. 608(b) using an abuse of discretion standard. See Ingram v. Earthman, 993 S.W.2d 611, 639 (Tenn.App.1998), cert. denied, 528 U.S. 986, 120 S.Ct. 445, 145 L.Ed.2d 362 (1999); State v. Blanton, 926 S.W.2d 953, 959-60 (Tenn.Crim.App.1996).
Character evidence may be used in limited circumstances to impeach a witness. See Tenn. R. Evid. 404(a)(3) (evidence of character of witness admissible as provided in Rules 607, 608 and 609). However, extrinsic evidence of conduct other than criminal conviction may not be used to attack the character of a witness. See Tenn. R. Evid. 608(b). Accordingly, Dr. Martell’s letter was properly excluded as extrinsic evidence of Dr. Martell’s character.
Moreover, certain conditions must be satisfied before allowing inquiry on cross-examination of the witness about specific instances of conduct probative solely of truthfulness or untruthfulness. See Tenn. R. Evid. 608(b). First, upon request, the court must hold a hearing outside the jury’s presence and must determine that the alleged conduct has probative value and that a reasonable factual basis exists for the inquiry. See Tenn. R. Evid. 608(b)(1). If these requirements are met, the court must then determine that the conduct, within limited exceptions, must have occurred no more than ten years before commencement of the action or prosecution. See Tenn. R. Evid. 608(b)(2).
In the present case, the court determined that no “reasonable factual basis”- existed for the Appellant’s inquiry. We agree. The Appellant offered no evidence of conduct by Dr. Martell evidencing untruthfulness. Rather, the only proof offered was a letter written by Dr. Martell requesting exoneration because of false rumors. The letter itself is not proof of Dr. Martell’s untruthfulness. Where there is no factual basis for an inquiry into prior conduct of a witness, the court shall bar any such attempt to interrogate a witness based on mere speculation or rumor. See State v. Philpott, 882 S.W.2d 394, 404 (Tenn.Crim.App.l994)(“An attempt to communicate by innuendo through questions which are answered in the negative is impermissible when the questioner has no evidence to support the question.”); see also State v. Bowling, 649 S.W.2d 281, 283 (Tenn.Crim.App.1983); Neil P. Cohen et al., Tennessee Law of Evidence § 6.08[7][d]. Accordingly, we conclude that the trial court did not abuse its discretion in preventing inquiry into Dr. Martell’s letter to the Department of Justice. Finally, we fail to see how the letter written by Dr. Martell establishes that Dr. Martell is biased in favor of the State or prejudiced against the Appellant. See Tenn. R. Evid. 616. This issue is without merit.
C. Court’s Refusal to Admit Tape-Recording to Rebut Dr. Martell’s Testimony
During his testimony, Dr. Martell opined that the Appellant suffered from “delusional disorder, mixed type with persecutory and grandiose themes, in substantial remission.” He qualified his diagnosis, however, noting that the Appellant has a lengthy history of malingering mental illness and that, in his opinion, the Appellant’s delusional disorder was in remission. During cross-examination, defense counsel requested permission to introduce an audiotape of a June 1997 interview by Detective Postiglione of Ms. D.M., the Appellant’s former landlord. Dr. Martell, in forming his opinions of the Appellant, testified that he had reviewed and considered the contents of the audio taped interview. The trial court denied defense counsel’s request, finding that the contents of the tape constituted hearsay and were “not appropriate.” Specifically, the court stated:
Mr. Engle, I’m not going to let you do this. It is just flat out not appropriate. I still don’t understand why — why you don’t call her as a witness? You could have called her as a witness, or you could call Detective Postiglione, if you had reason, in order to put that, in order to authenticate the tape, but to try to get the information of what she has to say in through [Dr. Martell], who is testifying as an expert about Mr. Reid’s mental condition, I mean, just exactly what rule of evidence do you think this belongs to?
Defense counsel then sought to introduce a transcript of Ms. M.’s testimony provided by the State. The State objected, noting that the State had not provided defense counsel a transcript of the audio taped interview. At this point, defense counsel conceded that the transcript was supplied by the District Attorney’s Office in another judicial district. In response to further inquiry by the court, defense counsel stated that he intended to ask Dr. Martell about the tape, whether he considered the tape in making his conclusions, and how he evaluated the tape. Defense counsel further added that he did not call Ms. M. as a witness because she is sixty-eight years old and infirm. Although defense counsel conceded that he could have sought a deposition from Ms. M., he stated that he would rather seek admission of the interview through Dr. Martell. The court again refused admission of the tape.
The Appellant challenges the trial court’s exclusion of the audiotape during the cross-examination of Dr. Martell. Specifically, the Appellant relies upon the premise that the rules of evidence do not preclude, at a capital sentencing hearing, evidence which establishes or rebuts an aggravating circumstance.
The Appellant is correct in his argument that evidence is not excluded at a capital sentencing hearing merely because the evidence is hearsay. See Tenn. Code Ann. § 39-13-204(c). Thus, as long as evidence or testimony is relevant to the circumstances of the murder, the aggravating circumstances of the murder, or the mitigating circumstances and has probative value in the determination of punishment, such evidence is admissible. See State v. Teague, 897 S.W.2d 248, 250 (Tenn.1995); see also State v. Hall, 8 S.W.3d 593, 602 (Tenn.1999), cert. denied, 531 U.S. 837, 121 S.Ct. 98, 148 L.Ed.2d 57 (2000). The admission of evidence, however, is not without constraints. Evidence may properly be excluded if it is so unduly prejudicial that it renders the trial fundamentally unfair. See State v. Vincent C. Sims, No. W1998-00634-CCA-R3-DD, 2000 WL 298901 (Tenn.Crim.App. at Jackson, Mar. 14, 2000), aff’d by, 45 S.W.3d 1 (Tenn.2001) (citing State v. Burns, 979 S.W.2d 276, 282 (Tenn.1998), cert. denied, 527 U.S. 1039, 119 S.Ct. 2402, 144 L.Ed.2d 801 (1999); State v. Nesbit, 978 S.W.2d 872, 891 (Tenn.1998), cert. denied, 526 U.S. 1052, 119 S.Ct. 1359, 143 L.Ed.2d 520 (1999)). Additionally, the admissibility of evidence ultimately is entrusted to the sound discretion of the trial court. State v. Vincent C. Sims, No. W1998-00634-CCA-R3-DD (citing Hutchison, 898 S.W.2d at 172). Absent an abuse of that discretion, such rulings will not be reversed on appeal. State v. Vincent C. Sims, No. W1998-00634-CCA-R3-DD (citing State v. Caughron, 855 S.W.2d 526, 541 (Tenn.), cert. denied, 510 U.S. 979, 114 S.Ct. 475, 126 L.Ed.2d 426 (1993)).
Initially, we acknowledge that the record belies the Appellant’s assertion that the audiotape’s admission was sought to rebut the testimony of Dr. Martell. The record is abundantly clear that the Appellant had every opportunity to question Dr. Martell regarding his consideration of the audiotape interview of Ms. M. in making his diagnosis of the Appellant, yet he failed to avail himself of such opportunity. See generally Tenn. R.App. P. 36(a). Additionally, the Appellant fails to offer any valid reason as to why a deposition of Ms. M. was not requested or as to why Detective Postiglione was not called to testify regarding his interview of Ms. M. See generally Tenn. R.App. P. 36(a). Finally, we fail to comprehend the Appellant’s assertion that Ms. M.’s statement would rebut Dr. Martell’s conclusion that the Appellant’s delusional disorder was in substantial remission in the late 1990’s when the incidents discussed by Ms. M. occurred in the early 1990’s. For these reasons, we cannot conclude that the trial court abused its discretion in excluding introduction of the audiotape interview of Ms. M. This issue is without merit.
[Deleted: VIII D. Cross-Examination of J.K.]
[Deleted: IX. Introduction of Victim Impact Evidence]
X. Use of Felony Murder Aggravating Circumstance
The jury returned verdicts finding the Appellant guilty of both premeditated murder and felony murder. The trial court properly merged the verdicts into one count of first-degree murder. At the subsequent sentencing hearing, the State proceeded to the penalty phase intending to prove the felony murder aggravating circumstance, Tenn.Code Ann. § 39-13-204(f)(7). The Appellant’s objection was overruled and the State was permitted to use the (i)(7) aggravator. The jury subsequently found the aggravating circumstance applied beyond a reasonable doubt.
In Carter v. State, 958 S.W.2d 620, 624 (Tenn.1997), our supreme court approved the use of the felony murder aggravating circumstance to a general verdict of. first-degree murder. While acknowledging the decision in Carter v. State, 958 S.W.2d at 624, the Appellant contends that the court erred by permitting the State to rely on the felony murder aggravating circumstance to seek a sentence of death because the use of the (i)(7) factor “violates the principles of death-sentencing as outlined by the Tennessee Supreme Court in Middlebrooks.” Essentially, the Appellant invites this court to overrule our supreme court’s decision in Carter v. State and adopt the position that the use of the felony murder aggravating circumstance in any case where the defendant is convicted of felony murder is unconstitutional. We decline to do so.
XI. Failure to Instruct on Non-Statutory Mitigators
During the penalty phase of the trial and acting pursuant to statutory authority, the Appellant filed a request for non-statutory mitigating circumstances to be included in the jury charge. Specifically, the non-statutory mitigating circumstances asserted in the request were:
1. Mr. Reid suffers from brain damage.
2. Mr. Reid sustained several brain injuries as a child.
3. Mr. Reid never received adequate treatment for his brain injuries as a child.
4. Mr. Reid has not received adequate treatment for his brain, injuries as an adult.
5. Mr. Reid was born with a deformed ear, along with a hearing impairment.
6. Mr. Reid never received adequate medical treatment for his deformed ear and resulting hearing impairment.
7. Mr. Reid suffers from the specific mental illness of schizophrenia.
8. Mr. Reid is unaware that he suffers from schizophrenia.
9. Mr. Reid has never received adequate medical treatment for his schizophrenia.
10. At the time of the offenses, Mr. Reid was not involved in any course of treatment for his schizophrenia.
11. At the time of the offenses, Mir. Reid was not taking any medication to control his schizophrenia.
12. When Mr. Reid was released from prison in Texas, he was not placed on any plan of follow-up medical care for his schizophrenia.
13. As a child, Mr. Reid lacked substantial guidance, discipline, and love from his parents.
14. Mr. Reid’s parents were divorced when he was still very young.
15. Mr. Reid was taken from his mother’s care at a very early age.
16. Mr. Reid’s father was absent a great deal during his early childhood years.
17. Mr. Reid did not start school until he was almost seven years old.
18. Mr. Reid was placed in a boys’ home at age eight.
19. Mr. Reid was a social outcast as a child.
20. Throughout his childhood years, Mr. Reid had only sporadic school attendance.
21. As a child, Mr. Reid was aware of his sister’s sexual abuse at the hands of one of his stepfathers.
22. Mr. Reid lacked any substantial family support as a child, and he continues to lack that support as an adult.
23. In spite of his brain damage, mental illness, and difficult childhood, Mr. Reid has tried to lead a normal lifestyle.
24. Mr. Reid has made efforts to better himself.
25. Mr. Reid obtained his GED, and he then attended college at age 39.
26. In his daily tasks, Mr. Reid is polite and courteous to others.
27. STRICKEN
28. Mr. Reid does well in a structured environment, such as prison.
29. Mr. Reid’s convictions in this case were based upon circumstantial evidence.
The trial court denied the Appellant’s request to instruct the jury verbatim to the proposed instruction. Instead, the trial court, relying upon State v. Odom and State v. Hodges, found that a verbatim reading of the Appellant’s instruction would amount to an unconstitutional comment upon the evidence. The trial court, instead, instructed the jury on the requested mitigators in general categories, including:
3. History of childhood.
4. Mental illness or mental or emotional disturbance.
5. Brain injury or damage.
6. Educational history.
7. Performance in a structured environment.
8. Family history and relationships.
In addition to instructions on specific statutory mitigating circumstances and the above mentioned non-statutory mitigating circumstances, the court provided the jury the following:
9. Any aspect of the defendant’s background or character which [you] believe reduces the defendant’s blameworthiness.
10. Any other mitigating factor which is raised by the evidence produced by either the prosecution or defense at either the guilt or sentencing hearing; that is, you shall consider any aspect of the circumstances of the offense favorable to the defendant which is supported by the evidence.
The Appellant complains that the court committed reversible error in refusing to instruct the jury on the specific non-statutory mitigating circumstances set forth in his request. He additionally contends that the manner in which the trial court instructed the jury regarding non-statutory mitigating circumstances did not adequately define for the jury the mitigating evidence presented.
In State v. Odom, 928 S.W.2d 18, 31 (Tenn.1996), the supreme court determined that:
The jury instructions [on mitigating circumstances] are critical in enabling the jury to make a sentencing determination that is demonstrably reliable. To ensure this reliability, the jury must be given specific instructions on those circumstances offered by the capital defendant as justification for a sentence less than death.
The court then recognized the importance of instruction on non-statutory mitigating circumstances as well as on statutorily enumerated mitigating circumstances. See generally Odom, 928 S.W.2d at 31 (citing Tenn.Code Ann. § 39-13-204(e)(l) (no distinction shall be made between statutory mitigators and those raised by the evidence)). However, the supreme court explained that instructions on non-statutory mitigating circumstances must not be fact specific and imply to the jury that the judge had made a finding of fact in contravention of Article VI, section 9 of the Tennessee Constitution. See Odom, 928 S.W.2d at 32 (court recognized risk of instruction amounting to unconstitutional comment upon evidence); see also State v. Hodges, 944 S.W.2d 346, 356 (Tenn.), cert. denied, 522 U.S. 999, 118 S.Ct. 567, 139 L.Ed.2d 407 (1997). Instead, the instructions on non-statutory mitigating circumstances must be “drafted so that when they are considered by the jury, the statutory mitigating circumstances are indistinguishable from the non-statutory mitigating circumstances.” Odom, 928 S.W.2d at 32. In essence, an instruction on a non-statutory mitigating circumstance must be phrased in general categories similar to the statutory mitigating circumstances. See, e.g., Hodges, 944 S.W.2d at 355-356; Odom, 928 S.W.2d at 33.
Again, the Appellant essentially complains that the trial court’s lack of specificity and instruction in general categories defeated the purpose of the instructions and did not convey a fair picture of the mitigation proof. This identical argument was rejected by our supreme court in State v. Hodges, 944 S.W.2d at 356. In Hodges, the defendant argued that the trial court erred by denying his requested instructions on non-statutory mitigating circumstances. Hodges, 944 S.W.2d at 351. Instead, the trial court had instructed the jury on the following non-statutory mitigating circumstances: history of childhood; victim of child sex abuse; mental illness or mental or emotional disturbance; dominance by another person and/or immaturity; drug abuse; and any other aspect of the defendant’s background or character or the circumstances of the offense, which would reduce the defendant’s blameworthiness. Id. at 355. In reviewing the instructions on mitigating circumstances, the supreme court emphasized that a jury instruction on mitigating circumstances can be found “prejudicially erroneous” only if “it fails to fairly submit the legal issues or if it misleads the jury as to the applicable law.” Hodges, 944 S.W.2d at 352. The court observed that “ ‘[j]urors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might.’ ” Id. at 352 (quoting Boyde v. California, 494 U.S. 370, 380-81, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990)). Our supreme court explained:
Jurors interpret the instructions in a common sense manner and in light of the evidence presented at the trial. The defense assertion ignores the reality that these jurors had heard specific evidence during the sentencing hearing about the defendant’s childhood, his immaturity, alleged sexual abuse, drug abuse, mental illness and emotional disturbance, as well as the dominance by T.B. By their breadth, the instructions on non-statutory mitigating circumstances encompassed all the evidence presented by the defense at the sentencing hearing .... [T]he defendant’s claim of error is without merit.
Hodges, 944 S.W.2d at 356 (citations omitted). While the instructions specifically requested by the defendant were not given, other instructions, as enumerated above, were provided to the jury, which “encompassed all the evidence” the defendant presented. Id.; see also Brimmer v. State, 29 S.W.3d 497, 520-521 (Tenn.Crim.App.1998).
In the instant case, the trial court clearly followed the directives of Odom and the example provided in Hodges. We conclude that the instructions provided by the trial court were substantially the same as those requested by the Appellant and that the instructions fairly submitted to the jury the legal issues. See, e.g., Hodges, 944 S.W.2d at 356; State v. Rudolph Munn, No. 01C01-9801-CC-00007, 1999 WL 177341 (Tenn.Crim.App. Apr. 1, 1999), perm, to appeal granted, (Tenn. Nov. 9, 1999). Accordingly, the trial court’s refusal to instruct the jury as to the proffered non-statutory mitigating circumstances was not error. This claim is without merit.
XII. Sentence for Especially Aggravated Robbery
Following a sentencing hearing, the trial court sentenced the Appellant, as a Range I standard offender, to twenty-five years for the especially aggravated robbery conviction. The trial court further ordered that the sentence be served consecutively to the death sentences imposed in this case and consecutively to a sentence in Texas for which the Appellant was on parole at the time the offense was committed. On appeal, the Appellant argues that the trial court erred by imposing the maximum sentence for the especially aggravated robbery conviction and erred in ordering the especially aggravated robbery conviction to run consecutively to his death sentences.
The Appellant bears the burden of establishing that the sentence imposed by the trial court was erroneous. State v. Ashby, 823 S.W.2d 166, 168 (Tenn.1991); State v. Boggs, 932 S.W.2d 467, 473 (Tenn.Crim.App.1996); State v. Fletcher, 805 S.W.2d 785, 786 (Tenn.Crim.App.1991). Appellate review of a sentence is de novo, with a presumption that the determinations made by the court from which the appeal is taken are correct. Tenn.Code Ann. § 40-35-401(d) (1997); Ashby, 823 S.W.2d at 169. In determining whether the Appellant has carried the burden, this court must consider the evidence received at the trial and the sentencing hearing, the pre-sentence report, the principles of sentencing, the arguments of counsel, the nature and characteristics of the offenses, existing mitigating and enhancing factors, statements made by the offender, and the potential for rehabilitation. Tenn. Code Ann. § 40-35-210 (Supp.1998); Ashby, 823 S.W.2d at 169.
A. Enhancement Factors
Especially aggravated robbery is a class A felony. Tenn. Code Ann. § 39-13-403(b). As a Range I standard offender, the sentencing range for especially aggravated robbery is fifteen to twenty-five years. Tenn.Code Ann. § 40 — 35—112(a)(1) (1997). The trial court sentenced the Appellant to the maximum sentence of twenty-five years for the especially aggravated robbery conviction. During sentencing, the trial court applied the following seven enhancement factors:
1. The defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range.
3. The offense involved more than one victim.
5. The defendant treated or allowed a victim to be treated with exceptional cruelty.
10. The defendant had no hesitation about committing a crime when the risk to human life was high.
12. During the commission of the felony, the defendant willfully inflicted bodily injury upon another person, or the actions of the defendant resulted in the death of or serious bodily injury to a victim or person other than the intended victim.
13(B). The felony was committed while on any of the following forms of release if such release is from a prior felony conviction ... parole.
16. The crime was committed under circumstances under which the potential for bodily injury to the victim was great.
Tenn.Code Ann. § 40-35-114(1), (3), (5), (10), (12), (13(b)), (16) (1997). Additionally, the trial court applied mitigating factor 8 based upon the Appellant’s mental condition, and applied mitigating factor 13 based upon “the majority of the testimony” developed during the capital penalty phase, including the Appellant’s childhood history and his family history. Tenn. Code Ann. § .40-35-113(8), (13) (1997). On appeal, the Appellant only challenges the trial court’s application of enhancement factors (3), (5), (10), and (16).
First, the Appellant contests the application of enhancement factor (3), “that the offense involved more than one victim.” Specifically, the Appellant contends that because only one victim, Steve Hampton, was named in the indictment upon which he was convicted of especially aggravated robbery that the other victim, Sarah Jackson, cannot also be considered a victim of especially aggravated robbery. The Appellant further argues that there was no evidence at trial to prove that the perpetrator ever robbed or attempted to rob Sarah Jackson. Thus, the Appellant asserts, the trial court’s application of enhancement factor 3 was erroneous. When applying this factor, however, the trial court reasoned that Sarah Jackson was also a victim of the robbery. We agree.
This court has defined “victim,” as used in Tenn.Code Ann. § 40-35-114(3), as being limited in scope to a person or entity that is injured, killed, had property stolen, or had property destroyed by the perpetrator of the crime. State v. Raines, 882 S.W.2d 376, 384 (Tenn.Crim.App.1994). This court has also held that factor (3) may not be applied to enhance a sentence when the Appellant is separately convicted of the offenses committed against each victim. State v. Williamson, 919 S.W.2d 69, 82 (Tenn.Crim.App.1995); see State v. Lambert, 741 S.W.2d 127 (Tenn.Crim.App.1987). Accordingly, statutory enhancement factor (3) does not apply when there are separate convictions for each victim. State v. Freeman, 943 S.W.2d 25, 31 (Tenn.Crim.App.1996). Because the Appellant was not convicted of separate offenses against each victim, and because Sarah Jackson was clearly a victim as defined in Raines, the trial court properly applied enhancement factor (3) during sentencing. This issue is without merit.
Second, the Appellant challenges the trial court’s application of enhancement factor (5), that “the defendant treated or allowed a victim to be treated with exceptional cruelty during the commission of the offense.” Specifically, the Appellant contends that “there is no evidence in the record suggesting that either of the victims were subjected to the type of torture that would justify the application of § 40-35-114(5).” At sentencing, the trial court applied factor (5) because there was evidence in the record that Sarah Jackson had moved after she was shot.
Tennessee Code Annotated section 40-35-114 provides that enhancement factors must be “appropriate for the offense” and “not themselves essential elements of the offense.” Accordingly, enhancement factors based on facts which are used to prove the offense or which establish the elements of the offense are excluded. State v. Poole, 945 S.W.2d 93, 98 (Tenn.1997). Moreover, because “exceptional cruelty” is inherent in some offenses such as aggravated assault, the facts must demonstrate a culpability distinct from and greater than that incident to the offense. Id. “Exceptional cruelty,” when used as an enhancement factor, denotes the infliction of pain or suffering for its own sake or from the gratification derived therefrom, and not merely pain or suffering inflicted as the means of accomplishing the crime charged. Thus, cruelty requires more than the physical infliction of serious bodily injury upon a victim.
We first note that “exceptional cruelty” is not an element of especially aggravated robbery. Tenn.Code Ann. § 39-13-403(a)(2); Poole, 945 S.W.2d at 98. Moreover, proof of serious bodily injury, which is an element of especially aggravated robbery, does not necessarily establish the enhancement factor of “exceptional cruelty.” Poole, 945 S.W.2d at 98. Exceptional cruelty is usually found in cases of abuse or torture. State v. Williams, 920 S.W.2d 247, 258 (Tenn.Crim.App.1995).
This court has recognized that “exceptional cruelty” is a matter of degree. State v. Moore, No. 02C01-9306-CC-00126, 1994 WL 245481 (Tenn.Crim.App. at Jackson, Jun. 8, 1994). In this regard, we first note that the taking of a life is not necessary to accomplish the offense of especially aggravated robbery. Additionally, the proof in this case established that the Appellant forced the victims onto the floor in the walk-in cooler. The anguish experienced by the victims at this point while they awaited their execution is unfathomable. Based upon the manner in which this crime was committed, and its consequences, we find that the Appellant’s conduct established not only the infliction of serious bodily injury but also a calculated indifference toward suffering. Thus, we find application of enhancement factor (5) appropriate.
Finally, the Appellant challenges the trial court’s application of enhancement factor (10), that the defendant had no hesitation about committing a crime when the risk to human life was high, and enhancement factor (16), that the crime was committed under circumstances under which the potential for bodily injury to the victim was great. Specifically, the Appellant argues that neither enhancement factor can apply because both are factors inherent to the offense of especially aggravated robbery.
With respect to enhancement factor (10), risk to human life is an essential element of the crime of especially aggravated robbery and cannot be used to enhance sentencing when the person facing danger is the named victim. See Tenn.Code Ann. § 40-35-114; State v. Nix, 922 S.W.2d 894, 903 (Tenn.Crim.App.1995). However, this court has held that enhancement factor (10) may be applied where the defendant creates a high risk to the life of a person other than the named victim. State v. Bingham, 910 S.W.2d 448, 452-53 (Tenn.Crim.App.1995). We conclude that the presence of Sarah Jackson, who was not named in the indictment, during the robbery of Steve Hampton created a high risk to her life, which ultimately and unfortunately resulted in her death. Accordingly, the trial court properly applied enhancement factor (10). Enhancement factor (16), however, is inapplicable to the offense of especially aggravated robbery as bodily injury is an element of the offense. Nix, 922 S.W.2d at 903. Thus, the trial court erroneously applied factor (16). Notwithstanding the erroneous application of enhancement factor (16), we believe that the remaining six enhancement factors balanced against the two mitigating factors, fully support the maximum twenty-five year sentence imposed by the trial court.
B. Consecutive Sentencing
The Appellant next argues that the trial court erred by ordering the especially aggravated robbery conviction to be served consecutively to the death sentences imposed in this case. Specifically, he asserts that “a sentence to be served consecutively to a sentence of death is not the least severe sentence necessary to achieve the purposes for which the sentence is imposed.” Our supreme court has consistently upheld sentences consecutive to a death sentence. See generally State v. Morris, 24 S.W.3d 788 (Tenn.2000); State v. Pike, 978 S.W.2d 904, 928 (Tenn.1998); State v. Black, 815 S.W.2d 166, 170 (Tenn.1991). Thus, this issue is without merit.
XIII. Constitutionality of Tennessee’s Death Penalty Statutes
The Appellant raises a myriad of challenges to the constitutionality of Tennessee’s death penalty provisions. The challenges raised by the Appellant have been previously examined and rejected by ease law decisions. The body of law upholding the constitutionality of Tennessee’s death penalty provisions, specifically that rejecting the claims currently raised by the Appellant, are recited as follows:
1. Tennessee’s death penalty statutes meaningfully narrow the class of death eligible defendants; specifically, the statutory aggravating circumstances set forth in Tenn.Code Ann. § 39-13-204(i)(2), (i)(6), and (i)(7), whether viewed singly or collectively, provide a “meaningful basis” for narrowing the population of those convicted of first-degree murder to those eligible for the sentence of death. See Vann, 976 S.W.2d at 117-118 (Appendix); State v. Keen, 926 S.W.2d 727, 742 (Tenn.1994).
2. The death sentence is not capriciously and arbitrarily imposed in that
(a) The prosecutor is not vested with unlimited discretion as to whether or not to seek the death penalty. See State v. Hines, 919 S.W.2d 573, 582 (Tenn.1995), cert. denied, 519 U.S. 847, 117 S.Ct. 133 [136 L.Ed.2d 82] (1996).
(b) The death penalty is not imposed in a discriminatory manner based upon economics, race, geography, and gender. See Hines, 919 S.W.2d at 582; Brimmer, 876 S.W.2d at 87; Cazes, 875 S.W.2d at 268; Smith, 857 S.W.2d at 23.
(c) Standards or procedures for jury selection exist to insure open inquiry concerning potentially prejudicial subject matter. See Caughron, 855 S.W.2d at 542.
(d) The death qualification process does not skew the make-up of the jury and does not result in a relatively prosecution prone guilty-prone jury. See Teel, 793 S.W.2d at 246; State v. Harbison, 704 S.W.2d 314, 318 (Tenn.), cert. denied, 470 [476] U.S. 1153, 106 S.Ct. 2261 [90 L.Ed.2d 705] (1986).
(e) Defendants are not unconstitutionally prohibited from addressing jurors’ popular misconceptions about matters relevant to sentencing, i.e., the cost of incarceration versus cost of execution, deterrence, method of execution. See Brimmer, 876 S.W.2d at 86-87; Cazes, 875 S.W.2d at 268; Black, 815 S.W.2d at 179.
(f) The jury is not instructed that it must agree unanimously in order to impose a life sentence, and is not prohibited from being told the effect of a nonunanimous verdict. See Brimmer, 876 S.W.2d at 87; Cazes, 875 S.W.2d at 268; Smith, 857 S.W.2d at 22-23.
(g) Requiring the jury to agree unanimously to a life verdict does not violate Mills v. Maryland [486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1990) ] and McKoy v. North Carolina [494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990) ]. See Brimmer, 876 S.W.2d at 87; Thompson, 768 S.W.2d at 250; State v. King, 718 S.W.2d 241, 249 (Tenn.1986), superseded by statute as recognized by, Hutchison, 898 S.W.2d at 161.
(h) The jury is required to make the ultimate determination that death is the appropriate penalty. See Brimmer, 876 S.W.2d at 87; Smith, 857 S.W.2d at 22.
(i) The failure to instruct on “the meaning and function of’ mitigating circumstances was considered in State v. Thompson, 768 S.W.2d 239, 251-52 (Tenn.1989), and found not to constitute error.
(j) The defendant is not denied closing argument in the penalty phase of the trial. See Brimmer, 876 S.W.2d at 87; Cazes, 875 S.W.2d at 269; Smith, 857 S.W.2d at 24; Caughron, 855 S.W.2d at 542.
3. The appellate review process in death penalty cases is constitutionally adequate. See Cazes, 875 S.W.2d at 270-71; Harris, 839 S.W.2d at 77. Moreover, the supreme court has recently held that, “while important as an additional safeguard against arbitrary or capricious sentencing, comparative proportionality review is not constitutionally required.” See State v. Bland, 958 S.W.2d 651, 663 (Tenn.1997), cert. denied, 523 U.S. 1083, 118 S.Ct. 1536 [140 L.Ed.2d 686] (1998).
4. Electrocution is a constitutionally permissible method of execution. See Black, 815 S.W.2d at 179; see also Hines, 919 S.W.2d at 582.
[Deleted: XIV. Proportionality of Sentences of Death]
Conclusion
After a thorough review of the issues and the record before us, as mandated by Tenn. Code Ann. §§ 39-13-206(b), and (c),' and for the reasons stated herein, we af-.‘v firm the Appellant’s convictions for two counts of first-degree murder and one: • count of especially aggravated robbery and accompanying sentences of death plus twenty-five years. In accordance with the mandate of Tenn.Code Ann. § 39-13-206(c)(1) and the principles adopted in pri- or decisions of the Tennessee Supreme Court, we have considered the entire record in this cause and find that the sentences of death were not imposed in any arbitrary fashion, that the evidence supports, as previously discussed, the jury’s finding of the statutory aggravating circumstances, and the jury’s finding that the aggravating circumstances outweighed mitigating circumstances beyond a reasonable doubt. See Tenn.Code Ann. § 39-13-206(c)(1)(A),(C). A comparative proportionality review, considering both “the nature of the crime and the defendant,” convinces us that the sentences of death ar%»j, neither excessive nor disproportionate to"'' the penalty imposed in similar cases. Accordingly, we affirm the Appellant’s convictions for two counts of first-degree murder and one count of especially aggravated robbery and the resulting sentences of death plus twenty-five years imposed by the trial court.
DAVID G. HAYES, JUDGE
CONCUR: JOHN EVERETT WILLIAMS, Judge, JAMES CURWOOD WITT, JR., Judge.
ORDER DENYING PETITION FOR REHEARING
PER CURIAM.
The defendant, Paul Dennis Reid, has filed a petition to rehear the opinion of this Court filed on November 26, 2002. Upon due consideration, the petition is DENIED.
Justice BIRCH continues to adhere to the views expressed in his initial dissenting opinion, but concurs in the denial of this petition for rehearing.
Police discovered Hampton’s personal effects because of information provided by Mr. C.S., who, while looking for aluminum cans alongside Ellington Parkway on the afternoon of the murder, discovered Hampton’s children’s identification cards. Believing that the owner of the cards had been robbed but unaware of the murders, Mr. S. immediately reported his discovery to police. The next day, February 17, 1997, officers returned to the same area and found Hampton’s driver’s license, credit card, movie rental card, and birth certificate card.
Antisocial personality disorder is characterized by the failure to conform to social norms, deceitfulness, irritability and aggressiveness, and lack of remorse.
At the time of this investigation, the defendant was also under investigation for the murders, robbery and assault of employees of a Nashville McDonald’s restaurant.
Law enforcement officers executed seven search warrants, and the defense challenged all of these warrants in pretrial motions. The State, however, gave notice prior to trial that it did not intend to introduce the evidence seized pursuant to the other five warrants. Thus, on appeal, the defendant challenges the validity of only Warrants 146 and 149 and the evidence that was seized under the authority of these and admitted at trial. Officers executing Warrant 146 seized four jars of coins, six pairs of shoes, one duffle bag, one brown carry bag, assorted photographs, one Bible, three knives, and three hats. Officers executing Warrant 149 seized a box of photograph albums, a bag containing photographs and negatives, a bag of assorted letters and mail, women’s toiletry items, keys, teeth molds, and assorted magazines, papers, and notes.
As previously noted, the defendant’s incarceration in the Cheatham County Jail stemmed from another incident where he allegedly attempted to kidnap the manager of a Shoney’s restaurant.
This incident occurred in Texas and resulted in the defendant's arrest and conviction for robbery.
Nesbit, 978 S.W.2d at 892 (citing cases).
Both the defense and the State are urged to submit concerns and suggestions regarding this instruction to the Committee for its consideration.
The dissent asserts that the majority has made "no meaningful effort to address and rectify” the concerns expressed in his dissenting opinion and in dissenting opinions filed in previous cases. To the contrary, a majority of this Court has thoroughly considered and repeatedly rejected the dissent’s challenges to the proportionality review process, choosing instead to adhere to the framework carefully explained in State v. Bland, 958 S.W.2d 651 (Tenn.1997). See, e.g., State v. Godsey, 60 S.W.3d 759, 781-86 (Tenn.2001); State v. Bane, 57 S.W.3d 411, 430 (Tenn.2001); State v. Stout, 46 S.W.3d 689, 708 (Tenn.2001); State v. Keen, 31 S.W.3d 196, 223-24 (Tenn. 2000); Bland, 958 S.W.2d at 666-670. A majority of this Court remains convinced that the proportionality analysis outlined in Bland is more than sufficient to ensure that no aberrant death sentence is imposed.
Tenn.Code Ann. § 39-13-206(c)(1)(D) (2001).
Like the State, we are strained to find logic behind the Appellant’s assertion that the only appropriate inquiry is whether a religious belief is “sincerely held.” Accordingly, we find it unnecessary to address this complaint.
The Appellant recognizes the Court of Appeals’ decision in Wolf v. Sundquist as dispositive of this issue. Notwithstanding, he asserts that “Wolf is incorrectly decided." As the State acknowledges, the Appellant fails to offer any argument for his position. We agree with the Court of Appeals' rationale in Wolf. Accordingly, we reject the Appellant’s contention that the court’s decision is flawed. .The Appellant's brief makes reference to Prospective Juror G.H. in his challenge to the limitation of questioning into mental health issues. Additionally, within his challenge to the trial court's questioning the jurors regarding their opinion of the death penalty, the Appellant makes specific reference to prospective jurors W.N., G.H., G.H., T.M., T.C., W.K., P.A., J.L. and R.B. These challenges are waived for failure to exhaust all peremptory challenges.
Howell, 868 S.W.2d at 247; State v. Van Tran, 864 S.W.2d 465, 473-474 (Tenn.1993), cert. denied, 511 U.S. 1046, 114 S.Ct. 1577, 128 L.Ed.2d 220 (1994).
State v. Smith, 857 S.W.2d 1, 19-20 (Tenn. 1993), cert. denied, 510 U.S. 996, 114 S.Ct. 561, 126 L.Ed.2d 461 (1993); State v. Irick, 762 S.W.2d 121, 125 (Tenn.1988), cert. denied, 489 U.S. 1072, 109 S.Ct. 1357, 103 L.Ed.2d 825 (1989); State v. Poe, 755 S.W.2d 41, 45 (Tenn.1988), cert. denied, 490 U.S. 1085, 109 S.Ct. 2111, 104 L.Ed.2d 671 (1989); Kennedy v. State, 186 Tenn. 310, 319, 210 S.W.2d 132, 136 (1947), cert. denied, 333 U.S. 846, 68 S.Ct. 659, 92 L.Ed. 1129 (1948). .The venire completed an extensive questionnaire prior to voir dire. Pursuant to the Appellant’s request, the questionnaire included multiple inquiries regarding mental health issues. Of relevance to this issue: Question Number 44 Do you believe that diagnosis or treatment provided by a psychiatrist or psychologist or other qualified professional might be helpful? Question Number 45 Have you, anyone in your family or close personal friend ever received any type of inpatient or outpatient mental health counseling or treatment? Question Number 46 Have you, any member of your family ... or close personal friend ever taken any type of psychotropic drug or other medications for depression, anxiety or any other psychological or psychiatric problem or disorder? Question Number 47 Have you ever had an unpleasant experience or confrontation with someone who suffered from any type of mental illness or emotional disorder, or someone who has lost control of their behavior? Question Number 48 Do you hold an opinion about defendants who use mental health as an excuse for their actions?
The court’s restrictions during group voir dire arose from the court’s concern over the recent case of State v. Reid, 981 S.W.2d 166 (Tenn.1998)(notice requirements of intent to use mental health evidence as mitigation and ability to withdraw notice of intent at any time prior to presenting such evidence), and unfair disadvantage to the State.
The Appellant specifically refers to prospective jurors Hodges and Fears. Again, based upon his failure to exercise all available peremptory challenges, the Appellant has waived any challenge to individual jurors.
Dr. Martell explained that “forensic neuropsychology” is "the study of brain damage, and how it affects violent behavior.”
Within his argument, the Appellant additionally alleges that the court’s acceptance of Dr. Martell as an expert in the field of forensic neuropsychology undoubtedly resulted in prejudice to his case. Specifically, he asserts that, although he called Dr. Auble, a psychologist with similar training to that of Dr. Martell, he did not seek to qualify her as an expert in forensic neuropsychology. Accordingly, he argues that the jury likely gave Dr. Martell’s testimony greater weight than Dr. Auble’s testimony. Nothing prevented the Appellant from seeking to qualify Dr. Auble as an expert in forensic neuropsychology. He cannot now complain about an action which he failed to pursue. Tenn. R.App. P. 36(a).
Members of the National Network of Capital Defense Attorneys alleged that, in the case of United States v. Spivey, Dr. Martell signed a false affidavit.
The Appellant acknowledges that the allegation against Dr. Martell was by defense counsel in that matter and that there is no evidence that the allegation by defense counsel did, in fact, occur.
We note that both the State and the Appellant acknowledge the legislature’s response to Middlebrooks in its 1995 amendment to the (i)(7) aggravator. The amended aggravator is applicable where 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 [a specific enumerated felony].’’ Tenn. Code Ann. § 39 — 13—204(i)(7) (emphasis added). This court has concluded that the amended aggravator, even applied in cases where the sole verdict is that of felony murder, sufficiently narrows the class of death-eligible defendants, thereby creating no Middlebrooks problem. See State v. James P. Stout, No. 02C01-9812-CR-00376, 2000 WL 202226 (Tenn.Crim.App. at Jackson, Feb. 17, 2000), perm. to appeal granted, (Tenn.). The Appellant disputes this court's review of the amended statute, arguing that the Middle-broolcs analysis is still applicable even .with the current language. We find no sound reason to overrule this court's holding in State v. James P. Stout.
Recent legislation in this state has substituted death by lethal injection for death by electrocution. See Tenn.Code Ann. § 40-23-114 (1998 Supp.) (changes method of execution from electrocution to lethal injection for those persons sentenced to death after January 1, 1999). The new statute also provides that those persons sentenced to death prior to" January 1, 1999, may choose to be executed by lethal injection by signing a written waiver. Hence, the Appellant’s argument has not only been rejected by prior decisions but, now, also is irrelevant, as the capital defendant is no longer subjected to death by electrocution.
STATE of Tennessee v. Paul Dennis REID, Jr.
Supreme Court of Tennessee, at Nashville.
Feb. 3, 2005 Session.
May 24, 2005.
James A. Simmons and Thomas F. Bloom, Nashville, Tennessee, for the Appellant, Paul Dennis Reid, Jr.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Jennifer L. Smith, Associate Deputy Attorney General; John W. Carney, Jr., District Attorney General; and Arthur F. Bieber, Assistant District Attorney General, for the Appellee, State of Tennessee.
[OPINION BY E. RILEY ANDERSON, J., type=majority]
OPINION
E. RILEY ANDERSON, J.,
delivered the opinion of the court,
in which FRANK F. DROWOTA, III, C.J., and JANICE M. HOLDER and WILLIAM M. BARKER, JJ., joined. ADOLPHO A. BIRCH, JR., J., filed a separate concurring/dissenting
The defendant, Paul Dennis Reid, Jr., was convicted of two counts of premeditated first degree murder, two counts of especially aggravated kidnapping, and one count of especially aggravated robbery. In imposing a death sentence for each count of first degree murder, the jury found three aggravating circumstances, i.e., that the defendant was previously convicted of one or more felonies whose statutory elements involved the use of violence to the person, that the murders were especially heinous, atrocious or cruel in that they involved torture or serious physical abuse beyond that necessary to produce death, and that the murders were committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another, had been proven beyond a reasonable doubt. Tenn.Code Ann. § 39-13-204(0(2), (5), (6) (2003). In addition, the jury found that the evidence of aggravating circumstances outweighed evidence of mitigating circumstances beyond a reasonable doubt. Tenn. Code Ann. § 39-13-204(c) (2003). The Court of Criminal Appeals affirmed the convictions and the death sentences.
After the case was docketed in this Court, we entered an order identifying numerous issues for oral argument. We now hold as follows: 1) the trial court did not err in finding that the defendant was competent to stand trial; 2) the trial court did not err in excluding evidence during the competency hearing; 3) the trial court did not err in refusing to hold a new competency hearing on the basis that a court-appointed expert was biased; 4) the evidence was sufficient to support the defendant’s convictions; 5) the trial court did not err in denying the defendant’s motion to dismiss on the basis that the aggravating circumstances were not stated in the indictment; 6) the trial court did not err in allowing the prosecution to amend the indictment; 7) the trial court did not commit reversible error in limiting extrinsic evidence of inconsistent statements; 8) the evidence was sufficient to support the aggravating circumstances found by the jury; 9) the death sentences were not arbitrary or disproportionate as imposed in this ease; 10) the evidence was sufficient to support the jury’s finding that evidence of aggravating circumstances outweighed evidence of mitigating circumstances; 11) the capital sentencing statutes are not unconstitutional on the basis that they allow evidence to be admitted in violation of due process and confrontation under the United States Constitution; 12) the trial court did not err in admitting photographs of the victims at the crime scene during sentencing; 13) the trial court did not commit reversible error in failing to charge the jury on the “catch-all” statutory provision as to mitigating circumstances; and 14) the trial court did not err in denying a new trial based on prosecutorial misconduct during sentencing. We also agree with the Court of Criminal Appeals’ conclusions with respect to the remaining issues, the relevant portions of which are included in the appendix to this opinion. Accordingly, the Court of Criminal Appeals’ judgment is affirmed.
The defendant, Paul Dennis Reid, Jr., was indicted for two counts of premeditated murder, two counts of felony murder during the perpetration of a robbery, two counts of especially aggravated kidnapping, and one count of aggravated robbery. The evidence presented during trial is summarized as follows.
Guilt Phase
On the night of April 23, 1997, Angela Holmes, age twenty-one, and Michelle Mace, age sixteen, were working at a Baskin-Robbins store on Wilma Rudolph Boulevard in Clarksville, Tennessee. The store regularly closed at 10:00 p.m. At around 10:10 p.m., C.M. arrived at the store to pick up his sister, Michelle. He noticed that Angela Holmes’ car was in the parking lot and that the lights inside the store were on. He entered the store through an unlocked door and found no one inside. Mace called 911.
Officers were dispatched to the scene and searched the store. They found the cash register drawer empty, except for some coins, and a safe in an office with the top removed. The victims’ purses were found at the store; no money had been taken from the purses. A mop and bucket were found in the customer area, and the freezer was left open.
On the morning of April 24, 1997, the bodies of Angela Holmes and Michelle Mace were found at the Dunbar Cave State Natural Area in Montgomery County, Tennessee, which was between 2.1 and 3.6 miles from the Baskin-Robbins store. Both victims had suffered deep stab wounds to their necks, as well as stab wounds, cuts, and abrasions to other parts of their bodies. Both had bled to death.
L.Z. testified that she had visited with the victims at the Baskin-Robbins store from 9:20 p.m. until 10:00 p.m. on April 23, 1997. At one point, a man in his late twenties or early thirties entered the store and became “obnoxious” and “very loud” about the prices before leaving. As Z. left the store at 10:00 p.m., she saw a “shiny red” car enter the parking lot. Although she testified that a photograph of the defendant’s car— a 1997 red, four-door Ford Escort — was “consistent” with the car she had seen, she conceded that she told a private investigator prior to trial that the car was “dark reddish or maroon.” She also conceded that she did not tell officers about the car when she was interviewed in May of 1997.
G.H. testified that he was driving to work at 9:59 p.m. on April 23, 1997, when he saw a car driving slowly on Rossview Road near the BaskinRobbins store. When H. attempted to pass the car, the car abruptly turned onto Union Hall Road, which was one road after the entrance to the Baskin-Robbins store. H. testified that the car was “identical” to photographs of the defendant’s car. On cross-examination, H. admitted that he contacted police in June of 1997 after he saw pictures of the defendant’s car on the television news. He also acknowledged that he told a private investigator that the car he saw had two doors, whereas the defendant’s car had four doors.
J.P., a friend of Michelle Mace, testified that he saw a small red car in the Baskin-Robbins parking lot shortly after 10:00 p.m. on April 23, 1997. He further testified that photographs of the defendant’s car “could very well be” the car he saw in the parking lot. He acknowledged that he told law enforcement officers that the car he saw was a two-door hatchback but that he was no longer sure. He also stated that he told officers that the car had black bumpers.
E.L. testified that she was a friend of the defendant and that she lived three miles from the Baskin-Robbins store in Clarksville, Tennessee. L. testified that the defendant called her “once or twice” a week from February to April of 1997 and that they discussed the defendant’s effort to be re-hired at a Shoney’s restaurant. L. testified that the defendant was at her home on or about April 18, 1997, and that he had been driving a red car. According to L., the defendant telephoned her on April 24; he told her that he had planned to visit her the previous evening but that it had gotten too late.
Business records revealed that the defendant purchased gasoline at a Texaco station in Clarksville at 9:45 p.m. on April 23,1997. The Texaco station was 0.7 miles from L.’s home and 0.9 miles from the Baskin-Robbins store. A signed credit card receipt showed that the defendant purchased $11.95 worth of gasoline. Handwriting experts confirmed that the signature on the receipt was the defendant’s. A copy of the receipt was also found in the defendant’s wallet.
J.S. and S.R. testified that they saw a car near Dunbar Cave around 10:30 p.m. on the night of April 23, 1997. They were at the home of J.S.’s girlfriend, H.S., who lived across the street from the Dunbar Cave entrance and parking lot. J.S. testified that the car was a red four-door and that he thought it was “odd” because the car was not in a parking space. Smith, a friend of Michelle Mace, conceded that he had told officers the car looked like several makes of cars, none of which matched the defendant’s car. Smith nonetheless testified that the car he saw was “consistent” with photographs of the defendant’s car. R. testified that he saw a car in the Dunbar Cave parking lot. Although he could not make out any details about the car, he noticed that the car’s headlights were on and, at one point, changed from low to high beam.
Samero Zavaro, a serologist and DNA specialist with the Tennessee Bureau of Investigation, testified that a DNA sample taken from blood found on the defendant’s left tennis shoe was consistent with the DNA profile of Angela Holmes. In addition, a DNA sample taken from small blood stains found on the right tennis shoe was consistent with a mixture of two or more donors from which neither Angela Holmes nor Michelle Mace could be excluded. Zavaro testified that the probability of selecting an unrelated individual that would have the same DNA profile as the sample on the defendant’s left shoe was one in 6,800 Caucasian individuals and one in 4,400 African-American individuals.
Meghan Clement, as associate director of forensic identity testing at Laboratory Corporation of America (“LabCorp”), testified about additional DNA testing. She testified that the DNA sample found in the blood on the defendant’s left shoe was consistent with the DNA profile of Angela Holmes. The DNA sample found in the blood on the defendant’s right shoe did not exclude the defendant, Angela Holmes or Michelle Mace. Clement testified that a combined statistical analysis revealed that the probability that the blood found on the defendant’s left shoe was from a person other than Angela Holmes was one in 1,810,000 in the Caucasian population, one in 3,250,000 in the African-American population, one in 4,950,000 in the Southeastern Hispanic population, and one in 4,520,000 in the Southwestern Hispanic population.
Linda Littlejohn, a fiber comparison specialist with the Tennessee Bureau of Investigation, testified that fibers found on the victims’ clothing were compared to fibers in the defendant’s car. According to Littlejohn, three fibers found on Angela Holmes’ clothing were consistent with samples taken from the defendant’s backseat and floor mats. Similarly, eight fibers found on Michelle Mace’s clothing and shoes were consistent with fibers from the defendant’s backseat, carpet, and the edge of the backseat. Littlejohn testified that it was “a very rare case that you find eleven fibers that match one source.” Moreover, the evidence showed that the floor mats found in the defendant’s car were not standard for the Ford Escort, but rather, had been purchased by the defendant at Wal-Mart on March 25,1997.
Littlejohn testified that she also analyzed photographs of footprints found at Baskin-Robbins and Dunbar Cave, as well as nine pairs of shoes belonging to the defendant. Littlejohn conceded that the shoe prints did not match the defendant’s shoes.
Two witnesses testified that the defendant had told them that he could make money by committing robberies. D.T. testified that he was working with the defendant at Shoney’s in January of 1997 when the defendant suggested robbing a “fast food place [in the] middle of the night” because there were “no witnesses.” T. thought the defendant was joking. Likewise, J.P. testified that in January of 1997, the defendant expressed dissatisfaction with his job and suggested robbery as a way to make money.
The evidence showed that the defendant was unemployed and had very little money in his checking account in the spring of 1997. However, L.P., a friend of the defendant, testified that shortly after April 23, 1997, the defendant paid half of her air fare to travel to Nashville from Texas. P. further testified that the defendant paid cash for her meals, lodging, and entertainment in Nashville.
Additional circumstantial evidence was introduced by the prosecution. L.D. and her twelve-year-old son, S.D., testified that they believed they saw the defendant at the Dunbar Cave park on February 17, 1997; however, they were not 100% certain. B.J. testified that she saw the defendant at the Dunbar Cave park on April 8, 1997. She acknowledged that she told the police she was not sure the defendant was the same man she saw in the park. M.R. testified that the defendant asked him about getting re-hired at Shoney’s in late May or June of 1997. According to R., the defendant was driving a small red car and was in possession of a knife with a blade about “eight or nine inches long.”
Dr. Charles Harlan testified that he performed the autopsies on the two victims, Angela Holmes and Michelle Mace. Dr. Harlan testified that Holmes died as a result of a stab wound to her neck that went “all the way to her backbone.” The wound,' which was consistent with a knife blade of eight or nine inches, transected the carotid artery and jugular vein. Dr. Harlan testified that Mace had suffered fourteen stab wounds, including a fatal stab wound in her neck. Dr. Harlan stated that a compound incision penetrated Mace’s backbone, consisted of three changes in direction, and was consistent with a sawing motion. According to Dr. Harlan, both victims would have taken five to fifteen minutes to bleed to death and would, have been conscious eighty percent of that time.
Several witnesses testified for the defense in the guilt phase of the proceeding. C.N. testified that she saw a dark red or maroon car in the parking lot of Baskin-Robbins at 9:48 p.m. on April 23,1997. According to N., the car she saw did not match photographs of the defendant’s car and was not a Ford Escort. T.T. and D.K., students at Austin Peay University, testified that they were at Baskin-Robbins at 9:50 p.m. on April 23, 1997, and that they were driving, a 1993 red Nissan Sentra. They saw a man in Baskin-Robbins with shoulder-length hair who Thompson described as “scraggly.” Both Thompson and K. testified that defendant was not the man they saw in the store that night.
Barbara McWilliams and Martin McIntyre, employees at Riverbend Maximum Security prison in Nashville, testified that they were in the parking lot of the Dunbar Cave park between 10:50 and 11:30 p.m. on April 23, 1997. Both McWilliams and McIntyre testified that they did not see any other cars in the parking lot during that time.
Dr. William N. Shields, a professor of biology, testified for the defense as an expert in DNA analysis and zoology and disagreed with the results of the combined statistical analysis performed by LabCorp. In Shields’ view, the probability that a person other than Angela Holmes was the source of the blood on the defendant’s left shoe was between one in 122,000 and one in 12,000,000 in the Caucasian population. His “best estimate” was one in 1,200,000. Shields also testified that there was no reason for LabCorp to have mixed the blood stains found on the defendant’s right shoe before conducting its analysis.
After considering the evidence, the jury convicted the defendant of two counts of premeditated first degree murder, two counts of felony murder, two counts of especially aggravated kidnapping, and one count of especially aggravated robbery. The trial court merged the two counts of felony murder with the two counts of premeditated first degree murder. A sentencing hearing was then held for the jury to determine the punishment.
Penalty Phase
The prosecution introduced testimony from several of Angela Holmes’ family members. Her husband, T.H., testified that his wife’s murder “changed everyone’s life,” including their infant daughter who “would never know her mother.” He believed he should have been able to protect his wife. K.C., Angela’s mother, testified that she had a close relationship with her daughter and that she could no longer take family photographs because there is a “void.” She further testified that the murder had “traumatized” her youngest son.
The prosecution also introduced testimony from several of Michelle Mace’s family members. C.M., the victim’s brother, testified about the effect of his sister’s murder on their family. He testified that he had become “angry, sad, and fearful,” and that his father was “totally destroyed” by the killing. C.B., the victim’s mother, likewise testified as to the impact of the killing on the family and its effect on the victim’s older sister. She testified that she no longer had her “little girl anymore” and that the killing caused a “void inside her.”
Dr. Charles Harlan again described the wounds suffered by Angela Holmes and Michelle Mace. Both victims had massive incisions to their throats, as well as other cuts, bruises, and abrasions. The wounds to the victims’ throats had cut vital arteries and veins. The wounds were deep enough to also injure the victims’ spines. Dr. Harlan repeated his guilt-phase testimony that the victims would have bled to death in five to fifteen minutes and that the victims would have been conscious and would have felt pain for eighty percent of that time. Photographs depicting the victims’ injuries were identified by Dr. Harlan and shown to the jury.
Finally, the prosecution introduced evidence that the defendant had two prior convictions for first degree murder and a prior conviction for especially aggravated robbery in Davidson County, Tennessee. In addition, the defendant had one prior conviction for aggravated robbery in Texas.
In mitigation, the defendant presented extensive testimony from mental health and medical experts. Dr. Xavier Amador, a clinical psychologist, testified that the defendant suffered from multiple conditions: chronic schizophrenia of the paranoid type, a cognitive disorder not otherwise specified, documented brain damage, and mental illness associated with brain dysfunction. According to Dr. Amador, the defendant also had personality change of a combined type caused by head trauma and characterized by aggressive and impulsive behavior.
Dr. Amador described the defendant’s family history, behavioral problems, and history of mental illness. The defendant had a documented history of head trauma, which included several head injuries suffered in his childhood. The defendant had been diagnosed as having brain dysfunction in 1964 and 1966 and psychotic disorders in 1978 and 1984. Dr. Amador stated that the defendant believed that he has been under government surveillance since 1978:
There are several delusions that are organized around one central delusion. He has the longstanding belief that for over twenty years, he’s been under constant surveillance by a secret government agency. They videotaped him, they taped- — audiotape, they bugged his car, his house. He had been chosen for this surveillance he believes because of some special qualities that he possesses. The relationship Mr. Reid has to the government agency that he believes is doing this to him is very mixed. At times, he feels tortured and ... paranoid about this agency. At other time[s], he talks about his great loyalty to this agency.... And this is simply the center or the core of his delusional beliefs.
Dr. Amador did not believe the defendant was malingering; to the contrary, he stated that the defendant suffered from anosognosia, a symptom of psychosis in which a person with a brain injury compulsively attempts to prove he or she does not have a mental illness. Although the defendant “wants people to believe he is normal,” Dr. Amador stated that the delusions emerged after hours of interviews:
He would make references to things that he couldn’t talk about, things he was not at liberty to say and I had to spend several hours listening to him talk about things that had nothing to do with the surveillance. But eventually, and this is over the course of the initial twenty hours of interview, I was able to document and detail and corroborate ... what other people said he used to talk about. That he was under government surveillance twenty-four hours a day.
Patricia Allen, a speech and language therapist at Vanderbilt Medical Center in Nashville, testified that she evaluated the defendant for fifteen hours in 1998. She testified that the defendant was born with a deformed ear and hearing loss. She stated that the defendant’s speech and language skills were consistent with one who has had “significant acquired brain injury.” She testified that the defendant had suffered at least four documented head injuries and that the injuries occurred during important developmental periods. The defendant was unable to “problem solve in integrated ways.” According to Allen, the defendant scored “very poor to below average” on tests designed to measure language and reasoning skills.
Dr. Pamela Auble, a clinical neuropsychologist, testified that she interviewed the defendant, conducted testing, and reviewed the defendant’s medical and social histories. She testified that the defendant had been struck in the head by his father in 1962 and that the defendant suffered additional head injuries from accidents that occurred in 1971, 1972, and 1990. Dr. Auble testified that the defendant’s left temporal lobe, the area of the brain controlling language and behavior, was “shrunken and distorted.” According to Dr. Auble, the brain damage caused the defendant’s psychotic disorder with delusions and resulted in impairments in the defendant’s behavior. Dr. Auble explained that the defendant had difficulty thinking and that he exhibited aggression, psychosis, and delusions. The defendant met the criteria for antisocial personality disorder, and he believed in a government plot to control and to kill him.
Dr. Auble testified that the defendant was not malingering. She explained that the defendant had a family history of mental illness and that documented evidence of the defendant’s delusions had “been around for a long time.” She testified that her testing measured whether a person is faking emotional or mental problems and that the measuring scales were not elevated when applied to the defendant.
Dr. Robert Kessler, a neurologist, testified that he examined MRI and PET scans of the defendant’s brain. He described several abnormalities in the defendant’s brain, including evidence of traumatic injury. Dr. Kessler explained that the folds of the left temporal lobe were shrunken and indicative of decreased function. He stated that these kinds of brain lesions cause a condition that mimics schizophrenia and bear a strong statistical association to psychotic disorders.
In rebuttal, the State offered the testimony of Dr. William Bernet, a forensic psychiatrist, who testified that he believed the defendant was malingering. Although the defendant had an antisocial personality disorder, Dr. Bernet believed the defendant had fabricated his delusions in the past. He explained:
I think that [the defendant] has a pattern of malingering ... symptoms. And by malingering what I mean is that — he at times makes things up. At times he fabricates symptoms. Malingering generally means that you pretend that you have something wrong with yourself when you really don’t.
Dr. Bernet conceded that the defendant had evidence of brain damage and a history of mental problems, including delusions. Dr. Bernet further testified, however, that he “couldn’t identify any relationship between [the defendant’s] brain injury and the events that led to his arrest and the killing of these two women.”
After deliberating, the jury imposed a death sentence for both counts of first degree murder. The jury found that three aggravating circumstances — the defendant was previously convicted of one or more felonies whose statutory elements involved the use of violence to the person, the murders were especially heinous, atrocious or cruel in that they involved torture or serious physical abuse beyond that necessary to produce death, and the murders were committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another — had been proven beyond a reasonable doubt. Tenn.Code Ann. § 39-13-204(i)(2), (5), (6) (2003). In addition, the jury found that the evidence of aggravating circumstances outweighed evidence of mitigating circumstances beyond a reasonable doubt. Tenn.Code Ann. § 39-13-204(c) (2003).
On appeal, the Court of Criminal Appeals affirmed the defendant’s convictions and death sentences. The defendant’s appeal was then automatically docketed in this Court.
ANALYSIS
Competency Issues
The defendant argues that the trial court erred in finding that he was competent to stand trial. In making this argument, the defendant specifically contends that the trial court erred by placing the burden of proof upon the defense, by excluding evidence, and by relying upon a court-appointed expert. The State asserts that the trial court correctly found that the defendant was competent to stand trial after conducting a full and fair competency proceeding.
In September of 1999, eight days before the trial was to begin, the defendant filed a motion for a determination of his competency. The trial court granted the motion and held a competency hearing over the course of three days. We begin our review of this issue by summarizing the evidence in the competency hearing.
Dr. Pamela Auble, a psychologist, testified that she examined the defendant on six occasions beginning in January of 1998. As part of her evaluation, Dr. Auble also interviewed the defendant’s family members and reviewed his medical records, educational records, social histories, and other information. According to Dr. Auble, in January of 1999, the defendant told her that he had been under surveillance by the government for over thirteen years. The defendant also told Dr. Auble that the government had radiated his body with a magnetic field, which allowed his actions to be monitored on a remote screen by the Central Intelligence Agency. According to Dr. Auble, the defendant believed that the surveillance method had been developed by the Soviet Union.
Dr. Auble testified that concerns about the defendant’s competency to stand trial emerged during the defendant’s prior trial for two first degree murder charges in Davidson County, Tennessee. According to information Dr. Auble received from defense counsel, a jury consultant, and a defense investigator, the defendant seemed primarily concerned with his snacks and meals during the prior trial, and he did not appear to realize that he might receive a death sentence. The defendant believed that the judge, jury, and attorneys were playing roles during the trial that had been scripted. He refused to discuss that case with his attorney, and he believed jurors had been trying to make comments to him. According to Dr. Auble, the defendant also believed that fingerprint and blood evidence had been planted against him.
As a result of her earlier examination, Dr. Auble testified that the defendant was not competent to stand trial. She stated that the defendant believed that he was being monitored by the government and that his attorneys were part of a script to Mil him. She stated that the defendant’s brain damage from multiple injuries left the defendant unable to assist in his own defense because he could not focus on key issues; indeed, Dr. Auble noted that the defendant was preoccupied with irrelevant topics and the subjects of his delusions:
He believes that the people in the courtroom know that he’s innocent, including the District Attorney and the Judge and the policemen who interviewed him, but that nevertheless these charges have been set up. And there’s a script that people play. That is being acted out. And therefore, ... [the defendant] can not appraise the outcome of the proceedings .... His delusions also interfere in his ability to assist in his own defense. [The defendant’s] reality is distorted. His belief that everything is predetermined at this point. That it doesn’t matter if he helps his defense or not.
Dr. Auble also observed that the defendant’s strong desire to appear normal resulted in his insistence that mitigating evidence not be presented in his own behalf.
On cross-examination, Dr. Auble conceded that the defendant had been diagnosed as malingering in earlier cases in Texas and that the defendant even admitted that he had “fooled the shrinks” in the late 1970s or early 1980s. She also conceded that the defendant had discussed aspects of his prior first degree murder trial with attorneys and that he had ultimately agreed to present mitigating evidence in that case.
Dr. Xavier Amador, a psychologist, testified that he examined the defendant for over twenty hours in November of 1998. Although the defendant suffered from delusions and anosognosia, Dr. Amador initially concluded that the defendant was able to assist in his defense and was, therefore, competent for his capital murder trial held in April of 1999 in Nashville. However, as the defendant began to include his attorneys in his delusions, Dr. Amador later determined that the delusions impaired the defendant’s ability to disclose relevant information and “thwart[ed]” his desire to present evidence in his own behalf. The defendant referred to one of his attorneys as “Satan,” and he believed the attorneys, the prosecutors, and the trial judge were being controlled by a surveillance team with “subliminal magnetic technology.” Dr. Amador stated that the defendant had an understanding of the legal process but could not apply that understanding to his own proceedings. As a result, the defendant was not competent to stand trial.
On cross-examination, Dr. Amador acknowledged that the defendant admitted he had faked delusions in the past and that other mental health professionals had determined the defendant to be malingering. Dr. Amador also conceded that the defendant agreed with defense counsel’s presentation of mitigating evidence in the prior capital murder trial. Dr. Amador nonetheless testified that the defendant’s IQ was in the “low average” range and that the defendant was not capable of faking mental illness.
Dr. William Bernet, a forensic psychiatrist at Vanderbilt University, testified that the defendant was competent to stand trial. Dr. Bernet met with the defendant three times, including the day before the competency hearing. He determined that the defendant suffered from antisocial personality disorder, delusional paranoia, and “a tendency to malinger.” Dr. Bernet further determined, however, that the defendant was able to discuss various aspects of his case, including his refusal to accept a plea bargain because he was innocent, the prosecution’s DNA evidence, and the use of mitigating proof such as his brain injuries, dyslexia, troubled childhood, and low intelligence level. He explained:
I talked to [the defendant] about the different charges and the process; for instance, we talked about what happened in Court, who the different people are in the Court, the roles of the Defense Attorney, the Prosecuting Attorney, the witnesses, the Judge, and he seemed to have a very good understanding of how Court works. He seems to have an understanding of some of the details and not just kind of the big picture ....
According to Dr. Bernet, the defendant did not want to present evidence of mental illness because he did not believe he had a mental disorder. Dr. Bernet testified that the defendant was able to communicate with his attorneys, that he understood that he may be acquitted or convicted, and that he knew the possible punishments, including death by lethal injection, if he were found guilty. In sum, Dr. Bernet stated that the defendant was competent to stand trial.
Dr. Cynthia Turner-Graham, a board-certified psychiatrist who was appointed to serve as an independent expert by the trial court, testified that the defendant was competent to stand trial. She testified that the defendant understood the nature of the charges against him and believed he could present a successful alibi defense. The defendant believed he had a good working relationship with his attorneys, though they often disagreed about defense strategy. According to Dr. Turner-Graham, the defendant discussed the importance of mitigation evidence and understood that he might be sentenced to death. The defendant denied thinking that he was being watched by the government or that his trial was being scripted. He said that he “fabricated stories”.to “achieve certain things at certain times.” Dr. Turner-Graham testified that the defendant had an antisocial personality disorder but was “clearly competent to stand trial.”
Following the competency hearing, the trial court accredited the testimony of Dr. Bernet and Dr. Turner-Graham and ruled that the defendant was competent to stand trial. The trial court emphasized the following: that the defendant understood the nature of the proceedings; that the defendant understood the nature of the charges against him and the possible punishment; that the defendant was able to assist in his defense by suggesting legal theories and strategy; and that the defendant was able to communicate with his attorneys about his trial. Although the defendant’s brain injuries and related conditions made it “difficult” for him to communicate with his attorneys, the trial court found that these difficulties did not render the defendant incompetent to stand trial.
Defendant’s Competency and Burden of Proof
The defendant argues that the trial court erred in finding that he was competent to stand trial and in placing the burden of proof upon him to establish incompetency to stand trial. The State responds that the trial court’s rulings were correct.
The Fourteenth Amendment to the United States Constitution and Article I, section 8 of the Tennessee Constitution prohibit the trial of a person who is mentally incompetent. Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); State v. Blackstock, 19 S.W.3d 200, 205 (Tenn.2000). To be competent to stand trial, a defendant in a criminal case must have “ ‘the capacity to understand the nature and object of the proceedings against him, to consult with counsel and to assist in preparing his defense.’ ” State v. Black, 815 S.W.2d 166, 174 (Tenn.1991) (quoting Mackey v. State, 537 S.W.2d 704, 707 (Tenn.Crim.App.1975)). The trial court’s findings “are conclusive on appeal unless the evidence preponderates otherwise.” State v. Oody, 823 S.W.2d 554, 559 (Tenn.Crim.App.1991).
As a threshold issue, we must determine who bears the burden of proof to establish a defendant’s competency or incompetency. Although we have never addressed this precise issue, the Court of Criminal Appeals has concluded that the burden of establishing incompetence to stand trial rests with the defendant. Oody, 823 S.W.2d at 559. In Oody, the defendant presented a clinical psychologist who testified that the defendant was borderline retarded, psychotic, and incompetent to be tried. The State, on the other hand, presented testimony from two psychologists who stated that the defendant was malingering and was competent, as well as the testimony of officers who related the defendant’s ability to communicate to them. The Court of Criminal Appeals placed the burden on the defendant to establish incompetence by a preponderance of the evidence and upheld the trial court’s finding that the defendant was competent to stand trial. Id. at 559-60; see also State v. Leming, 3 S.W.3d 7, 14 (Tenn.Crim.App.1998) (applying same standard).
The Oody standard is consistent with the United States Supreme Court’s holding that defendants may properly be required to establish their incompetency by a preponderance of the evidence. Medina v. California, 505 U.S. 437, 446, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992). In Medina, the Court held that a statute requiring defendants to establish their incompetency by a preponderance of the evidence did not violate due process. In reaching that conclusion, the Court observed:
Based on our review of the historical treatment of the burden of proof in competency proceedings, the operation of the challenged rule, and our precedents, we cannot say that the allocation of the burden of proof to a criminal defendant to prove incompetence “offends some principle of justice so rooted in the traditions and conscience of out’ people as to be ranked as fundamental.”
Id. (quoting Patterson v. New York, 432 U.S. 197, 202, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977)). Moreover, the Court emphasized that “[o]nce a State provides a defendant access to procedures for making a competency evaluation, ... we perceive no basis for holding that due process further requires the State to assume the burden ... of persuading the trier of fact that the defendant is competent to stand trial.” Id. at 449, 112 S.Ct. 2572.
In contrast, the United States Supreme Court has invalidated an Oklahoma statute that required defendants to prove their incompetency by clear and convincing evidence. Cooper v. Oklahoma, 517 U.S. 348, 369, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996). In reaching its holding, the Court observed that forty-six states and the federal government either required the prosecution to establish a defendant’s competency or required defendants to establish incompetency by a preponderance of the evidence. Id. at 360-62, 116 S.Ct. 1373. The Court further emphasized that the “clear and convincing evidence standard affects a class of cases in which the defendant has already demonstrated that he is more likely than not incompetent.” Id. at 364, 116 S.Ct. 1373.
We have reviewed the approaches taken in other jurisdictions, and in our view the better reasoned choice is the standard that requires defendants to establish them incompetency by a preponderance of the evidence. This standard was identified by the Court of Criminal Appeals in 1991, and it has been applied since that time with no apparent difficulty or prejudice to either the defense or the prosecution. Oody, 823 S.W.2d at 559; Leming, 3 S.W.3d at 14. Indeed, placing the preponderance burden on defendants appears to strike an appropriate balance in several respects:
After balancing the equities ... the burden of proof may constitutionally rest on the defendant.... The main concern of the prosecution ... is that a defendant will feign incompetence in order to avoid trial. If the burden of proving incompetence rests on the government, a defendant will have less incentive to cooperate in psychiatric investigations.... A defendant may also be less cooperative in making available friends or' family who might have information about the defendant’s mental state. States may therefore decide that a more complete picture of a defendant’s competence will be obtained if the defense has the incentive to produce all the evidence in its possession.
Medina, 505 U.S. at 455, 112 S.Ct. 2572 (O’Connor, J., concurring). Finally, the preponderance of the evidence standard is consistent with due process. Id. at 446, 112 S.Ct. 2572.
In applying these principles to this case, we conclude that the evidence in the record does not preponderate against the trial court’s finding that the defendant was competent to stand trial. The trial court held an exhaustive evidentiary hearing and considered the expert testimony of Dr. Auble, Dr. Amador, Dr. Bernet, and Dr. Turner-Graham. The trial court found that the defendant suffered from a brain injury and had difficulties communicating at times. The trial court further found, however, that the defendant understood the nature of the proceedings, understood the charges against him, and communicated with his attorneys by suggesting defenses. The fact that not all of the defendant’s defense strategies or suggestions were pursued does not indicate that he lacked the ability to assist in his defense. In short, the trial court heard the evidence and accredited the testimony of Dr. Bernet and Dr. Turner-Graham. After carefully reviewing the record, we conclude that the evidence does not preponderate against the trial court’s finding that the defendant was competent to stand trial.
Competency and Exclusion of Evidence
In a related issue on competency, the defendant argues that the trial court erred in excluding the testimony of Reverend Joe Ingle, a minister who had visited with the incarcerated defendant, and the testimony of Mary Ann Hea, a social worker for the public defender’s office who had interviewed the defendant several times. The defendant maintains that these witnesses would have supported his claim of incompetency. The State argues that the trial court did not err in excluding these witnesses because the defendant asserted applicable privileges that prevented them from testifying.
The record shows that the defense called Reverend Ingle to testify at the competency hearing. According to defense counsel, Ingle would have testified that he met with the defendant on numerous occasions and that the defendant often tried to portray himself as normal. Ingle would have further testified that the defendant had bizarre, delusional thoughts and that the defendant was the most mentally ill prisoner he had ever counseled. The trial court refused to allow Ingle to testify, however, because the defendant declined to waive the clergy-penitent privilege. See Tenn. Code Ann. § 24-1-206 (2000).
Similarly, the record shows that the defense called Mary Ann Hea during the competency hearing to testify about her numerous interviews with the defendant as a social worker for the public defender. After determining that Hea was part of the defense team, the trial court refused to allow her to testify because the defendant declined to waive the applicable privilege, i.e., the attorney-client privilege.
In our view, the trial court did not err in excluding the testimony. First, our conclusion that a defendant bears the burden of establishing his or her incompetency necessarily means that he or she has not been found to be incompetent before or during the competency proceeding itself. As a result, nothing prevents a defendant from invoking an applicable privilege during a competency proceeding as a matter of law. Moreover, the trial court is free to reconsider the issue of the defendant’s invocation of privileges while evidence of the defendant’s mental status is presented during the hearing by both the defense and prosecution.
Second, a defendant’s right to present evidence to meet the burden of proof does not eliminate the trial court’s discretion in determining relevance and materiality of the evidence. Here, the defendant presented extensive expert testimony to show that he was not competent to stand trial. The expert witnesses related the basis of their opinions, which included analysis of the defendant’s family background, history of head injuries, and mental illness. Dr. Auble, for instance, testified that evidence was gathered not only from the defendant but also the defendant’s attorneys, jmy consultant, and investigators. Dr. Auble and Dr. Amador testified effectively on behalf of the defense; Dr. Bernet and Dr. Turner-Graham likewise testified fully and effectively on behalf of the prosecution. In sum, the defendant’s exercise of his privileges did not prevent the trial court from fully considering the material evidence and making a thorough assessment of the relevant issues pertaining to the defendant’s competency to stand trial. Accordingly, we conclude that the trial court did not err in excluding the testimony of the witnesses.
Competency and the CourL-Appointed Expert
The defendant next argues that the trial court erred in denying his motion for a new competency proceeding on the ground that the court-appointed expert, Dr. Cynthia Turner-Graham, allegedly knew one of the victims. The State maintains that there was no evidence establishing that Dr. Turner-Graham had a conflict of interest or that the defendant was prejudiced in any way.
As part of a motion for a new trial, the defendant introduced the affidavit of an Assistant Public Defender, Gary C. Tamkin. The affidavit stated that Tamkin and Dr. Turner-Graham were friends and that the latter had told him “she believed she had met one of the victims.” According to Tamkin’s affidavit, Dr. Turner-Graham said that her son knew one of the victims and that the victim had been to her house.
In denying the motion for new trial, the trial court found it “inconceivable” that an assistant public defender in possession of such information would wait until after trial to reveal it to his colleagues. The trial court further noted that the defense had presented no testimony in support of the issue and had failed to establish “when, how well, or for how long” Dr. Turner-Graham knew one of the victims. The Court of Criminal Appeals upheld the trial court’s ruling.
In our view, the record supports the trial court’s ruling. The defendant failed to show that Dr. Turner-Graham had a conflict of interest or that her testimony was affected by allegedly meeting one of the victims. The defendant failed to produce any facts with regard to Dr. Turner-Graham’s knowledge of the victim and failed to establish any prejudice resulting from Dr. Turner-Graham’s testimony. Moreover, the record reveals that the trial court conducted a full and fair competency proceeding and fully considered the extensive evidence presented by both the defendant and the prosecution. We conclude that the trial court did not err in denying the motion for a new trial and a new competency hearing.
Guilt Phase Issues
Sufficiency of Evidence
The defendant argues that there was insufficient evidence of premeditation and deliberation to support the first degree murder convictions. The State maintains that the evidence was sufficient to support the convictions.
When evaluating the sufficiency of the evidence, we must determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original). We are required to afford the prosecution the strongest legitimate view of the evidence in the record, as well as all reasonable and legitimate inferences which may be drawn therefrom. See State v. Bland, 958 S.W.2d 651, 659 (Tenn.1997). Questions concerning the credibility of the witnesses, the weight to be given the evidence, and factual issues raised by the evidence are resolved by the trier of fact. Id.; see also State v. Cazes, 875 S.W.2d 253, 259 (Tenn.1994). Moreover, these principles of review apply even if a conviction is based upon circumstantial evidence. State v. Cole, 155 S.W.3d 885, 897 (Tenn.2005).
The offense of first degree murder includes a “premeditated and intentional killing of another.” Tenn.Code Ann. § 39-13-202(a)(l) (2003). A premeditated act is “an act done after the exercise of reflection and judgment” and means that “the intent to kill must have been formed prior to the act itself.” Tenn.Code Ann. § 39-13-202(d) (2003). An intentional act refers to “the nature of the conduct or to a result of the conduct when it is [a] person’s conscious objective or desire to engage in the conduct or cause the result.” Tenn.Code Ann. § 39-ll-106(a)(18) (2003).
In Bland, we identified and discussed circumstances that, if established by the proof, may warrant the trier of fact to find or infer premeditation. The circumstances include the use of a deadly weapon upon an unarmed victim, the particular cruelty of a killing, any threats or declarations of intent to kill made by the defendant, proof that the defendant procured a weapon, any preparations to conceal the crime undertaken before the crime is committed, and the defendant’s calm demeanor immediately after a killing. Bland, 958 S.W.2d at 660.
We agree with the Court of Criminal Appeals’ conclusion that the evidence was sufficient to support the first degree murder convictions. There was extensive evidence connecting the defendant to the crimes: the defendant was near the Baskin Robbins store at approximately the time the two victims had been closing the store on April 23, 1997; several witnesses saw a red car similar to the defendant’s car; and credit card receipts revealed that the defendant had purchased gasoline at a Texaco station that was minutes away from Baskin-Robbins. There was also extensive evidence connecting the defendant to the victims: the defendant or his car had been seen at or near the Dunbar Cave area in which the victims’ bodies were found; blood found on the defendant’s left shoe had a DNA profile that was consistent with that of Angela Holmes; blood found on the defendant’s right shoe had a DNA profile that did not exclude the defendant or the victims; and fibers found on the clothing of Holmes and Michelle Mace were consistent with fibers found in the defendant’s car. Finally, there was evidence that the defendant had acted with intent and with premeditation: the victims had suffered deep, penetrating stab wounds to their throats; the stab wounds had been inflicted with enough force to penetrate the victims’ spines; the stab wounds had been inflicted with a knife blade several inches long; and the victims bled to death in a secluded area. See State v. Keough, 18 S.W.3d 175, 181 (Tenn. 2000) (upholding a finding of premeditation based on the nature of the killing where a defendant stabbed the victim to death with a large knife).
The defendant characterizes the evidence as circumstantial and emphasizes inconsistent statements made by witnesses, inconsistent descriptions of the defendant’s car, and other alleged discrepancies in the evidence. However, it is the jury’s function to weigh the credibility of the witnesses and to resolve the factual conflicts in the evidence. Our task is to review the legal sufficiency of the evidence under the standards stated above.
Accordingly, we conclude that the evidence was sufficient to support the two convictions for first degree murder. Similarly, we conclude that the evidence was sufficient to support the defendant’s convictions for especially aggravated kidnapping, see TenmCode Ann. § 39-13-305(a) (2003), and especially aggravated robbery. See TenmCode Ann. § 39-13-403(a) (2003).
Motion to Dismiss Indictment
The defendant asserts that the trial court erred in failing to dismiss the indictment because the indictment did not charge the aggravating circumstances used to seek the death penalty. The defendant, citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), argues that aggravating circumstances must be charged in the indictment, submitted to the jury, and established beyond a reasonable doubt. The State maintains that Tennessee’s capital sentencing scheme does not require aggravating circumstances to be charged in the indictment.
In Apprendi, the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348. In Ring, the Supreme Court addressed the capital sentencing scheme in Arizona, under which guilt or innocence was determined by a jury and the presence of aggravating factors required for the imposition of the death penalty was determined by a trial judge. Relying on Apprendi’s holding that the Sixth Amendment required a jury determination of any facts that would expose a defendant to a penalty exceeding the maximum, the Court found Arizona’s scheme unconstitutional. Ring, 536 U.S. at 609, 122 S.Ct. 2428. As in Apprendi, however, the Court did not apply the Fifth Amendment right to presentment or grand jury indictment; instead, the Court reiterated that the Fourteenth Amendment “has not ... been construed to include the Fifth Amendment right to ‘presentment or indictment of a Grand Jury.’ ” Ring, 536 U.S. at 597 n. 4, 122 S.Ct. 2428 (quoting Apprendi, 530 U.S. at 477 n. 3, 120 S.Ct. 2348).
As the parties recognize, this Court has consistently held that Apprendi does not affect capital sentencing in Tennessee and does not require aggravating circumstances to be pled in an indictment. See State v. Leach, 148 S.W.3d 42, 59 (Tenn.2004); State v. Berry, 141 S.W.3d 549, 562 (Tenn.2004); State v. Holton, 126 S.W.3d 845, 863 (Tenn.2004); State v. Dellinger, 79 S.W.3d 458, 467 (Tenn.2002). In addition, we have clarified that Ring, as well as the more recent decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), “do not change our analysis ... regarding whether aggravating circumstances must be pled in the indictment.” Berry, 141 S.W.3d at 560; State v. Davis, 141 S.W.3d 600, 616 (Tenn.2004). As we explained in Berry, “[t]he focus in Apprendi, Ring, and Blakely was on the Sixth Amendment right to trial by jury,” and “the Court expressly declined to impose the Fifth Amendment right to presentment or grand jury indictment upon the States.” Berry, 141 S.W.3d at 560. Moreover, we emphasized that defendants in capital cases receive written notice of the State’s intent to seek the death penalty prior to trial, as well as written notice of the aggravating circumstances, under Rule 12.3 of the Tennessee Rules of Criminal Procedure. Id. at 562.
In short, we have held repeatedly that Tennessee’s capital sentencing scheme does not require that aggravating circumstances be included in an indictment. The defendant’s arguments, therefore, are without merit.
Amendment of the Indictment
The defendant also argues in a related indictment issue that the trial court erred in allowing the indictment to be amended to change the predicate felony underlying the two counts of felony murder from “especially aggravated robbery” to “robbery.” The State responds that the trial court did not err because the amended indictment did not include a new or different charge.
We conclude that the trial court did not err in allowing the State to amend the indictment. First, an indictment may be amended without the defendant’s consent before jeopardy attaches if “no additional or different offense is thereby charged and no substantial rights of the defendant are thereby prejudiced.” Tenn. R.Crim. P. 7(b). Second, the indictment initially charged that two counts of felony murder occurred in the course of “especially aggravated robbery”; the amendment stated that the two counts of felony murder occurred during the course of “robbery,” which is simply a lesser included offense of “especially aggravated robbery.” Tenn. Code Ann. §§ 39-13-401; -403 (2003). As a result, no new or different offenses were alleged; to the contrary, the amended indictment, like the original indictment, charged two counts of felony murder pursuant to Tennessee Code Annotated section 39-13-202(a)(2).
The defendant also argues that he was prejudiced because the amended indictment no longer required the State to prove the elements of especially aggravated robbery. We disagree. The State was required by the amended indictment to prove the required elements of the charged offenses, i.e., felony murder. Because the amended indictment did not charge new or different offenses, see Tenn. R.Crim. P. 7(b), the defendant had notice of the charges and their required elements. State v. Hammonds, 30 S.W.3d 294, 300 (Tenn.2000) (stating that notice is the purpose of an indictment). Finally, the defendant’s convictions for two counts of felony murder were merged with his convictions for two counts of premeditated first degree murder. In sum, the trial court did not err, and the defendant is entitled to no relief on this ground.
Extrinsic Evidence of Prior Inconsistent Statements
The defendant contends that the trial court erred in excluding extrinsic evidence of inconsistent statements offered during the testimony of Sgt. R.W. Knight to impeach two of the State’s witnesses. See Tenn. R. Evid. 613(b). The State responds that the trial court did not abuse its discretion and that any error was harmless.
We begin our review of this issue by summarizing the relevant portions of the transcript. The defense questioned the State’s witness, Sgt. R.W. Knight, about statements made to him by a witness for the prosecution, J.S. Although Smith had testified that he saw a car similar to the defendant’s at Dunbar Cave on the night of April 23, 1997, and said that he did not recall contacting the police, Sgt. Knight testified that J.S. had called the police on May 1, 1997, to provide the license number of a car he had seen at Dunbar Cave. Sgt. Knight further testified that the license number provided by Smith did not belong to the defendant.
Similarly, the defense questioned Sgt. Knight about prior statements made by another witness for the prosecution, L.Z. Z. had testified that she saw a car similar to the defendant’s in the Baskin-Robbins parking lot on the night of April 23, 1997, but said that police officers did not ask her whether she had seen any cars at that time. Sgt. Knight testified, however, that the police asked Z. whether any cars had been in the parking lot.
The trial court denied the defendant’s request to introduce Sgt. Knight’s written summaries of the interviews with Smith and Z., even though the defendant had asked Sgt. Knight about the witnesses’ statements and had properly moved that the summaries be admitted into evidence during Sgt. Knight’s testimony. The trial court concluded that evidence of a prior inconsistent statement may be introduced only by either (1) using a second witness to relate the prior inconsistent statements or (2) using extrinsic evidence of the prior statement during the examination of the witness who is being impeached. The Court of Criminal Appeals held that the trial court did not abuse its discretion because Sgt. Knight’s written summaries were cumulative to his testimony in court.
Extrinsic evidence of a witness’s prior inconsistent statement “is not admissible unless and until the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require.” Tenn. R. Evid. 613(b). The Advisory Commission Comments to Rule 613(b) clarify that the “only requirement” for the use of extrinsic evidence is that the witness must be “afforded an opportunity to explain or deny.” The extrinsic evidence may be “the written or recorded content of the prior statement itself or the testimony of another witness as to the content of the prior written or oral statement.” Neil Cohen et al., Tennessee Law of Evidence, § 613.4 (4th ed.2003).
In our view, the trial court erred in concluding that the defendant could not introduce the written summaries of the statements made by Smith and Z. to Sgt. Knight. Rule 613(b) requires only that the witnesses be given an opportunity to explain or deny their prior statement. This requirement was met during the defense’s cross-examination of Smith and Z. during the State’s proof regarding their prior statements. Moreover, Rule 613(b) does not expressly limit the impeaching party to one form of extrinsic evidence, nor does it require an impeaching party to choose between two available forms of extrinsic evidence. In short, the trial court’s ruling, which limited the defense to the use of the testimony of Sgt. Knight and precluded the use of the witnesses’ statements, was erroneous under Rule 613(b).
We also conclude, however, that the trial court’s error did not affect the result of the proceeding. The defendant attempted to elicit inconsistencies between Smith and Z.’s in-court testimony and their prior statements. The defendant asked both Smith and Z. about their prior statements on cross-examination; thus, both witnesses were given an opportunity to explain or deny their statements. The defense then used Sgt. Knight’s testimony as extrinsic evidence of the prior inconsistent statements made by Smith and Z. Although there were written summaries of the witnesses’ prior statements, the defense did not establish that the written summaries would have been more effective than Sgt. Knight’s testimony or otherwise critical to the defense. In sum, the trial court’s er-
ror was harmless, and the defendant, therefore, is not entitled to relief on this issue.
Penalty Phase Issues
Sufficiency of Aggravating Circumstances
The defendant contends that the evidence was insufficient to support the jury’s application of the “heinous, atrocious, or cruel” aggravating circumstance set forth in Tennessee Code Annotated section 39-13 — 204(i)(5) (2003). The State maintains that the evidence was sufficient to support the jury’s application of this aggravating circumstance.
Our analysis requires that we determine whether, after viewing the evidence in a light most favorable to the State, a rational trier of fact could have found the existence of the aggravating circumstance beyond a reasonable doubt. Terry v. State, 46 S.W.3d 147, 160-61 (Tenn.2001). Although the defendant has challenged only one of the three aggravating circumstances in this case, we will address each in turn. See Tenn.Code Ann. § 39-13-206(c)(l)(B) (2003) (requiring review of aggravating circumstances found by the jury).
1. Tennessee Code Annotated section 39-13-201p(i)(2)
The aggravating circumstance found in Tennessee Code Annotated section 39~13-204(i)(2) (2003) is as follows: “The defendant was previously convicted of one (1) or more felonies, other than the present charge, whose statutory elements involve the use of violence to the person[.]” The plain statutory language requires the prosecution to prove that the defendant had (1) a prior conviction, (2) for a felony offense, (3) whose statutory elements involved the use of violence to a person. Davis 141 S.W.3d at 618.
In this case, the prosecution established this aggravating circumstance by relying on the defendant’s prior convictions in Tennessee for two counts of first degree murder and one count of especially aggravated robbery. These three convictions were clearly felony offenses whose statutory elements involved the use of violence to the person. See TenmCode Ann. §§ 39-13-202(a); -403. The prosecution also relied on the defendant’s prior conviction in Texas for the offense of aggravated robbery, which the parties stipulated was a violent felony.
Accordingly, the evidence was sufficient to support the jury’s application of this aggravating circumstance beyond a reasonable doubt.
2. Tennessee Code Annotated section 39-13-20k(i)(5)
The aggravating circumstance in Tennessee Code Annotated section 39-13-204(i)(5) applies where the “murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death.” The defendant argues that this aggravating circumstance should not have been applied because the facts of this case were not as severe or aggravated as other cases in which this aggravating circumstance has been applied.
“Torture” has been defined as “the infliction of severe mental or physical pain upon the victim while he or she remains alive and conscious.” State v. Williams, 690 S.W.2d 517, 529 (Tenn.1985). “Serious physical abuse beyond that necessary to produce death” has been defined as follows:
The word “serious” alludes to a matter of degree. The abuse must be physical, as opposed to mental, and it must be “beyond that” or more than what is “necessary to produce death.” “Abuse” is defined as an act that is “excessive” or which makes “improper use of a thing,” or which uses a thing “in a manner contrary to the natural or legal rules for its use.”
State v. Odom, 928 S.W.2d 18, 26 (Tenn.1996) (quoting Black’s Law Dictionary 11 (6th ed.1990)); see also State v. Morris, 24 S.W.3d 788, 797 (Tenn.2000).
In this case, the evidence supports a finding of torture and serious physical injury beyond that necessary to produce death. Both victims were stabbed multiple times. Both victims were stabbed in the throat or neck with such severe force that the murder weapon penetrated bone; indeed, the wounds inflicted on Michelle Mace included five cuts to her vertebral column as a result of a “sawing” motion. Both victims were alive and conscious for five to fifteen minutes as they bled to death in great pain. In sum, the evidence was sufficient to support the jury’s application of this aggravating circumstance beyond a reasonable doubt. See State v. Mann, 959 S.W.2d 503, 511 (Tenn.1997) (victim beaten, strangled, and stabbed eleven times).
3. Tennessee Code Annotated section 39-13-20k(i)(6)
The aggravating circumstance in Tennessee Code Annotated section 39-13-204(i)(6) applies where a “murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another.” Section 204(i)(6) focuses on a defendant’s motives in committing a murder, and it is not limited to the killings of eyewitnesses or those witnesses who know or can identify the defendant. See Terry, 46 S.W.3d at 162. Moreover, the defendant’s desire to avoid arrest or prosecution need not be the sole motive for killing the victim and instead may be just one of the purposes motivating the defendant to kill. Id.; see also Davis, 141 S.W.3d at 618-19.
Here, the victims were robbed, kidnapped, taken to a remote area, stabbed, and abandoned. The evidence supported a finding that one of the defendant’s purposes in committing the murders was to avoid arrest or prosecution for the robbery and kidnapping offenses. Accordingly, the evidence was sufficient to support the jury’s application of this aggravating circumstance beyond a reasonable doubt.
Proportionality
Where a defendant has been sentenced to death, we must apply a comparative proportionality analysis pursuant to Tennessee Code Annotated section 39-13-206(c)(1)(D) (2003). The analysis 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.’ ” Bland, 958 S.W.2d at 662 (quoting Pulley v. Harris, 465 U.S. 37, 42-43, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984)).
In conducting this analysis, this Court employs the precedent-seeking method of comparative proportionality review, in which we compare a case with other cases involving similar defendants and similar crimes. See Bland, 958 S.W.2d at 665-67. While no defendants or crimes are alike, 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.
We have repeatedly held that the pool of cases considered by this Court in 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. See State v. Godsey, 60 S.W.3d 759, 783 (Tenn.2001). We have explained that the pool does not include first degree murder cases in which a plea bargain is reached with respect to the punishment or in which the State does not seek the death penalty:
[Cjonsideration of cases in which the State, for whatever reasons, did not seek the death penalty would necessarily require us to scrutinize what is ultimately a discretionary prosecutorial decision. We previously have declined to review the exercise of prosecutorial discretion, and it would be particularly inappropriate to do so in conducting comparative proportionality review, where our function is limited to identifying aberrant death sentences, not identifying potential capital cases.
Id. at 784 (citations omitted) (emphasis added).
Accordingly, our comparative proportionality review of the applicable pool of cases considers numerous factors regarding the offense: (1) the means of death; (2) the manner of death; (3) the motivation for the killing; (4) the place of death; (5) the victim’s age, physical 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. Bland, 958 S.W.2d at 667. We also consider numerous factors about the defendant: (1) prior criminal record, if any; (2) age, race, and gender; (3) mental, emotional, and physical condition; (4) role in the murder; (5) cooperation with authorities; (6) level of remorse; (7) knowledge of the victim’s helplessness; and (8) potential for rehabilitation. Id.; see also State v. Bane, 57 S.W.3d 411, 428-29 (Tenn.2001).
In this case, we begin by reviewing the nature of the offenses. The defendant robbed and kidnapped the victims in Clarksville, Tennessee, on April 23, 1997. The defendant drove the victims to a secluded area and stabbed them to death. The victims suffered deep, penetrating stab wounds to their throats. The stab wounds had been inflicted with a knife blade several inches long with enough force to penetrate their spines. The victims were alive five to fifteen minutes after being stabbed and were conscious for eighty percent of that time as they bled to death. The defendant’s conduct was intentional and premeditated. He acted alone in these offenses, without any evidence of provocation or justification.
We next consider evidence regarding the defendant and his background. The defendant was unemployed at the time of these offenses, and he had prior convictions for first degree murder, especially aggravated robbery, and robbery. He also had a history of mental illness and brain damage stemming from a number of head injuries. Dr. Xavier Amador testified that the defendant suffered from chronic schizophrenia of the paranoid type, a cognitive disorder, documented brain damage, and mental illness characterized by aggressive and impulsive behavior. Dr. Pamela Auble testified that the defendant’s brain damage caused the defendant’s significant mental disorders and resulted in pervasive impairments in the defendant’s behavior, that the defendant had difficulty thinking, exhibited aggression, psychosis, and delusions, and that he believed he was under government surveillance and control. Dr. Robert Kessler testified that the defendant had several brain abnormalities, including traumatic brain injuries, that bore a strong statistical association to psychotic disorders. Although mental health professionals testified that the defendant was schizophrenic and delusional, there was also evidence regarding the defendant’s history of malingering. Finally, no evidence was presented to show that the defendant cooperated with the authorities, exhibited remorse for the killings, or was amenable to rehabilitation.
For the following reasons, we conclude that the death sentence as applied to the defendant in this case was not excessive or disproportionate when compared to defendants in other cases. See Tenn.Code Ann. § 39-13-206(c)(l)(A), (C), (D) (2003).
First, this Court has upheld death sentences in numerous similar cases where the defendant stabbed a victim or victims. See Leach, 148 S.W.3d at 42; Keough, 18 S.W.3d at 183; State v. Bush, 942 S.W.2d 489 (Tenn.1997); State v. Hines, 919 S.W.2d 573 (Tenn.1995); State v. Thompson, 768 S.W.2d 239 (Tenn.1989); State v. West, 767 S.W.2d 387 (Tenn.1989). In several of these cases, like the present case, a victim was stabbed to death in the course of a robbery or other felony. Leach, 148 S.W.3d at 60; Bush, 942 S.W.2d at 507; Hines, 919 S.W.2d at 584; West, 767 S.W.2d at 397.
Second, this Court has upheld numerous death sentences in cases involving a defendant with prior convictions for felonies whose statutory elements involved the use of violence to the person, i.e., one of the aggravating circumstances applied by the jury in this case. See, e.g., Leach, 148 S.W.3d at 60. As this Court often has said, this aggravating circumstance is “more qualitatively persuasive and objectively reliable than other[]” aggravating circumstances. State v. Howell, 868 S.W.2d 238, 261 (Tenn.1993).
Likewise, we have upheld the death penalty in similar cases involving the other two aggravating circumstances applied in this case, i.e., the murder was heinous, atrocious or cruel in that it involved torture or serious injury beyond that necessary to produce death, and the murder was committed to avoid or prevent the defendant’s arrest or prosecution. Leach, 148 S.W.3d at 59 (aggravating circumstance (i)(5)); Bush, 942 S.W.2d at 504-05 (aggravating circumstances (i)(5) and (6)); Hines, 919 S.W.2d at 584 (aggravating circumstance (i)(5)); Thompson, 768 S.W.2d at 252 (aggravating circumstances (i)(5) and ©(6)).
Finally, we have upheld sentences in numerous cases involving defendants who presented similar evidence of mitigating circumstances. For example, several cases have involved defendants who presented evidence of their family backgrounds or poor childhood environments. Davis, 141 S.W.3d at 621; State v. Middlebrooks, 995 S.W.2d 550, 552 (Tenn.1999); Hines, 919 S.W.2d at 573. Similarly, several similar cases have involved defendants with mental illness. Middlebrooks, 995 S.W.2d at 552 (defendant with borderline personality disorder and brain impairment); Hines, 919 S.W.2d at 573 (defendant with paranoid personalty disorder, dysthymia, and chronic depression); Cazes, 875 S.W.2d at 259 (defendant with possible neurological damage); Smith, 868 S.W.2d at 561 (defendant with chronic depression, paranoid personality disorder, chronic depressive neurosis, and paranoid delusional disorder); Howell, 868 S.W.2d at 262 (defendant with brain damage).
We need not find that this case is exactly like a prior case in every respect, nor must we determine that this case is “more or less” Ike other similar death penalty eases. Instead, we must identify aberrant death sentences by analyzing whether a capital case plainly lacks circumstances similar to those cases in the pool of cases in which a death sentence has been upheld. Accordingly, for the foregoing reasons, the death sentences imposed on the defendant for the first degree murder offenses in this case are not disproportionate.
Weighing of Aggravating and Mitigating Circumstances
As explained above, the evidence overwhelmingly supported three aggravating circumstances applied by the jury: that the defendant had previous convictions for felonies whose elements involved violence to the person; that the murders were especially heinous, atrocious or cruel in that they involved torture or physical abuse beyond that necessary to produce death; and the murders were committed by the defendant to avoid arrest or prosecution. The mitigating circumstances included testimony about the defendant’s background, head injuries, brain damage, mental illness, and belief that he was under government surveillance.
After reviewing the record and considering the evidence discussed above with regard to proportionality, we conclude that the evidence supported the jury’s finding that the aggravating circumstances outweighed mitigating circumstances beyond a reasonable doubt. Tenn.Code Ann. § 39-13-206(c)(l)(C) (2003).
Capital Sentencing — Rights to Due Process and Confrontation
The defendant argues that Tennessee’s capital sentencing scheme violates his rights to due process and confrontation under the United States Constitution because the rules of evidence do not apply and the jury is permitted to hear evidence that is not reliable and trustworthy. See Tenn.Code Ann. § 39-13-204(c) (rules of evidence not applicable during penalty phase). The State responds that the defendant’s argument is without merit.
We have recently rejected the argument raised by the defendant. In Berry, we observed that under Tennessee Code Annotated section 39-13-204(c), evidence that is relevant to the circumstances of the murder, the aggravating circumstances relied upon by the State, or the mitigating circumstances is admissible if such evidence has probative value in the determination of punishment. Berry, 141 S.W.3d at 563-64. Although the statute gives wider discretion to the trial court than normally permitted under the Tennessee Rules of Evidence, we explained:
[T]he discretion allowed judges and attorneys during sentencing in first degree murder cases is not unfettered. Our constitutional standards require inquiry into the reliability, relevance, value, and prejudicial effect of sentencing evidence to preserve fundamental fairness and protect the rights of both the defendant and the victim’s family. The rules of evidence can in some instances be helpful guides in reaching these determinations of admissibility. Trial judges are not, however, required to adhere strictly to the rules of evidence. These rules are too restrictive and unwieldy in the arena of capital sentencing.
Id. (quoting State v. Sims, 45 S.W.3d 1, 14 (Tenn.2001)).
Accordingly, the standards set forth in Tennessee Code Annotated section 39-13-204(c) allow trial courts to exclude evidence that may violate the constitutional guarantees of due process or confrontation. The defendant’s argument, therefore, is without merit.
Admissibility of Photographs
The defendant argues that the trial court erred in admitting photographs of the victims during the penalty phase of the trial. The defendant contends that the photographs of the victims taken at the crime scene were gruesome and intended to inflame the passions of the jury. The State maintains that the trial court properly admitted the photographs in support of an aggravating circumstance.
A trial court is afforded broad discretion in determining whether to admit photographs of the deceased in a murder prosecution. State v. Odom, 137 S.W.3d 572, 588 (Tenn.2004); State v. Morris, 24 S.W.3d 788, 810-11 (Tenn.2000). The decision to admit photographs will be reversed only if the trial court has abused its discretion. Odom, 137 S.W.3d at 588.
The record shows that the trial court admitted one photograph of each victim at the crime scene. The color photographs showed the deep stab wounds inflicted on the victims’ necks. The trial court concluded that the photographs were probative in establishing an aggravating circumstance, i.e., the murders were heinous, atrocious or cruel in that they involved torture or physical abuse beyond that necessary to produce death, and that the probative value of the photographs outweighed the risk of unfair prejudice.
In our view, the trial court did not abuse its discretion. The photographs were relevant to establish an aggravating circumstance and were not introduced for the purpose of inflaming the jury. Though graphic, the photographs were not unduly gruesome or unfairly prejudicial. Moreover, the trial court allowed the admission of only one photograph of each victim to depict the nature and extent of the injuries inflicted by the defendant. Accordingly, the trial court did not abuse its discretion in admitting the crime scene photographs of the victims.
Failure to Instruct Jury on “Catck-all” Mitigating Provision
The defendant argues that the trial court erred in failing to instruct the jury on the “catch-all” mitigating circumstance set out in Tennessee Code Annotated section 39 — 13—204(j)(9). This statute allows the jury to consider “[a]ny other mitigating factor which is raised by the evidence produced by either the prosecution or defense at either the guilt or sentencing hearing.” Id. The State responds that the trial court and the Court of Criminal Appeals properly held that the issue was waived because the defendant did not object or include the issue in the motion for new trial.
The record shows that the trial court instructed the jury on numerous statutory and non-statutory mitigating circumstances. Tenn.Code Ann. § 39 — 13—204(j). The non-statutory mitigating circumstances charged to the jury included the defendant’s “history of childhood,” “mental illness or emotional disturbance,” and “brain injury or damage.” Although the defendant correctly asserts that the trial court failed to instruct the jury on the “catch-all” provision noted above, the transcript shows that the trial court gave the following instruction:
Tennessee law provides that in arriving at the punishment, the jury shall consider as previously indicated, any mitigating circumstances raised by the evidence in the guilt-finding phase, the sentencing phase, or both, which shall include, but are not limited to, the following: [specific statutory and non-statutory mitigating circumstances]. No distinction shall be made between the mitigating circumstances listed and those otherwise raised by the evidence.
The defendant did not object to the instructions, nor did the defendant include this issue in his motion for a new trial.
Although a trial court must instruct the jury on the statutory mitigating “catch-all” provision, the omission in this case was not plain error. The trial court instructed the jury on statutory and non-statutory mitigating circumstances that could be considered. The trial court also instructed the jury that mitigating circumstances were “not limited to” the specific statutory and non-statutory factors. In sum, the trial court’s instructions as a whole encompassed the statutory “catch-all” provision and informed the jury that it could consider any mitigating circumstances raised by the evidence in the guilt and penalty phases of the trial. Accordingly, the trial court’s failure to instruct on the statutory mitigating “catch-all” provision did not affect the substantial rights of the defendant and was not plain error. Tenn. R.Crim. P. 52(b).
Prosecutorial Misconduct in Penalty Phase
The defendant next contends that the trial court erred in failing to grant a new sentencing hearing due to prosecutorial misconduct during closing argument. The defendant argues that the prosecutor’s misconduct included referring to a victim’s thoughts, appealing to the jury’s passion, using crime-scene photos of the victims on a projector, and telling the jury that the defendant had murdered four people in “cold blood.” The State responds that there was no prosecutorial misconduct and that the defendant failed to object to many of the prosecutor’s statements.
This Court has often observed that “closing argument is a valuable privilege that should not be unduly restricted.” Bane, 57 S.W.3d at 425. We have likewise recognized that the prosecutor may not engage in derogatory remarks, appeal to the prejudice of the jury, misstate the evidence, or make arguments not reasonably based on the evidence. State v. Bates, 804 S.W.2d 868, 881 (Tenn.1991) (referring to defendant as a “rabid dog”). The trial court has discretion in controlling the course of arguments and will not be reversed absent an abuse of that discretion. Bane, 57 S.W.3d at 424.
Moreover, prosecutorial misconduct does not amount to reversible error absent a showing that it has affected the outcome of the case to the prejudice of the defendant. See State v. Chalmers, 28 S.W.3d 913, 917 (Tenn.2000). In making this determination, we must consider: (1) the conduct complained of viewed in light of the facts and circumstances of the case; (2) the curative measures undertaken by the court and the prosecution; (3) the intent of the prosecutor in making the improper arguments; (4) the cumulative effect of the improper conduct and any other errors in the record; and (5) the relative strength and weakness of the case. Id. at 917; State v. Buck, 670 S.W.2d 600, 609 (Tenn.1984). We will review each of the defendant’s arguments with these standards in mind.
The defendant asserts that the prosecutor improperly referred to the thoughts Angela Holmes may have had before she died. The record shows that the prosecutor argued that the victim may have been thinking about her family or her wedding, which had taken place at Dunbar Cave, and that “we can only speculate as to what she was thinking.” Although counsel are required to confine their arguments to those supported by the evidence or inferences drawn from the evidence, the defendant did not object to the prosecutor’s remarks at trial. Thus, we cannot conclude either that the trial court abused its discretion in allowing the argument or that the prosecutor’s argument affected the outcome of the trial.
The defendant next argues that the prosecutor engaged in misconduct by using dollar bills to demonstrate the defendant’s greed. In denying the motion for new trial, the trial court observed that the prosecutor had asked, “why did this man do this,” and had then placed money on a projector while stating, “that’s why.” The trial court found that the argument had been made in response to the argument that the defendant should not be sentenced to death because of his mental illness. The record shows that the defense did not object to the argument or the prosecutor’s conduct at trial. After reviewing the trial court’s findings and the record, we cannot conclude that the trial court abused its discretion or that the prosecutor’s argument affected the result of the trial.
The defendant argues that the prosecutor engaged in misconduct by placing the crime scene photographs of the victims on a projector. The record shows that the prosecutor stated:
This is not some crazy offense. This is standard greed. He’d rather kill and rob [than] work. And that’s what he did; he killed and robbed, and turned two beautiful little children into this. And it wasn’t because of his mental illness or his mother or his father. Because he wanted money.
The record does not, however, reveal the prosecutor’s precise actions while making these arguments. Moreover, the defendant did not object to the prosecutor’s conduct or make an offer of proof to preserve the record for appellate review. As a result, we cannot conclude that the trial court abused its discretion in allowing the argument or that any misconduct affected the outcome of the trial.
Finally, the defendant argues that the prosecutor engaged in misconduct by making references to the underlying facts of the defendant’s prior first degree murder convictions. The record shows that the prosecutor stated that the two victims in this case were “the third and fourth persons” the defendant had killed, that the defendant had now killed “four” people, and that the defendant had killed four people “in cold blood.” The defendant did not object to the arguments, however, until the prosecutor stated: “I submit to you the fact that this is the third and fourth person he’s murdered, that’s powerful enough to blow away any mitigating evidence.” At that point, the trial court sustained the defendant’s objection and instructed the jury to disregard the argument. The trial court later instructed the jury as follows:
In its closing argument, the State may have implied that the jury should impose death because the defendant has been convicted of killing four people. The defendant has been tried, convicted and sentenced for his prior convictions. You are to consider those convictions only for the purpose of determining whether the State has proven beyond a reasonable doubt the existence of an aggravating circumstance, and for no other purpose.
At the time of the offenses in this case, this Court had consistently held that it was improper for the prosecution to introduce evidence or make arguments based on the facts underlying a prior violent felony conviction being used to establish the aggravating circumstance in Tennessee Code Annotated section 39 — 13—204(i)(2) where the prior conviction on its face involved violence to the person. See State v. Bigbee, 885 S.W.2d 797, 812 (Tenn.1994); see also Odom, 137 S.W.3d at 585.
In Bigbee, the prosecution introduced the facts underlying the defendant’s prior conviction for first degree murder in which the victim had been shot three times, argued that the jury should consider that the defendant had committed two killings, and suggested that the death penalty was appropriate because the defendant already had received a life sentence for the prior murder. Bigbee, 885 S.W.2d at 810. This Court remanded for a new sentencing hearing after concluding that the inadmissible evidence and the prosecutorial argument improperly enhanced the aggravating circumstance and affected the jury’s determination to the prejudice of the defendant. Id. at 812.
Similarly, in Odom, the prosecution introduced details of a prior first degree murder committed by the defendant in support'of the aggravating circumstance in Tennessee Code Annotated section 39-13-204(i)(2). Odom, 137 S.W.3d at 585. The details included testimony from the investigating officer of the prior crime, as well as photographs of the victim of the prior offense. After noting that the prosecution relied heavily on the facts underlying the defendant’s prior felony convictions to enhance the effect of this aggravating circumstance during its closing argument, we remanded for a new sentencing proceeding.
We conclude that the prosecutor’s arguments in the present case, although error, do not warrant a new sentencing proceeding. Unlike Bigbee and Odom, the prosecutor did not introduce evidence of the facts underlying the defendant’s prior first degree murder convictions. Although the prosecutor repeatedly mentioned that the defendant had now killed four people, the jury was aware of the defendant’s prior convictions for two counts of first degree murder and was aware that the prosecution was relying on these prior convictions to establish an aggravating circumstance. While the reference to the defendant’s killing four people in “cold blood” could be interpreted to mean that the prior first degree murder offenses were similar to the present offenses, that reference alone does not amount to misconduct of the degree and severity described in Bigbee and Odom. In addition, the trial court properly gave two curative instructions to the jury, which we must presume were followed by the jury. See State v. Shaw, 37 S.W.3d 900, 904 (Tenn.2001) (the jury is presumed to follow curative instructions). Although the prosecutor’s argument was prosecutorial misconduct and error, the defendant objected, and the trial court sustained the objection and gave curative instructions. Accordingly, we conclude that the trial court did not abuse its discretion and that the prosecutorial misconduct did not affect the outcome of the trial.
CONCLUSION
After reviewing the record and applicable authority, we hold as follows: 1) the trial court did not err in finding that the defendant was competent to stand trial; 2) the trial court did not err in excluding evidence during the competency hearing; 3) the trial court did not err in refusing to hold a new competency hearing on the basis that a court-appointed expert was biased; 4) the evidence was sufficient to support the defendant’s convictions; 5) the trial court did not err in denying the defendant’s motion to dismiss on the basis that the aggravating circumstances were not stated in the indictment; 6) the trial court did not err in allowing the prosecution to amend the indictment; 7) the trial court did not commit reversible error in limiting extrinsic evidence of prior inconsistent statements; 8) the evidence was sufficient to support the aggravating circumstances found by the jury; 9) the death sentences were not arbitrary or disproportionate as imposed in this case; 10) the evidence was sufficient to support the jury’s finding that evidence of aggravating circumstances outweighed evidence of mitigating circumstances; 11) the capital sentencing statutes are not unconstitutional on the basis that they allow evidence to be admitted in violation of due process and confrontation under the United States Constitution; 12) the trial court did not err in admitting crime scene photographs of the victims during sentencing; 13) the trial court did not commit reversible error in failing to charge the jury on the “catch-all” statutory provision as to mitigating circumstances; and 14) the trial court did not err in denying a new trial based on alleged prosecutorial misconduct during sentencing.
The Court of Criminal Appeals’ judgment is affirmed. The sentence of death shall be carried out on the 5th day of October, 2005, unless otherwise ordered by this Court or other proper authority.. It appearing that the defendant is indigent, costs of the appeal are taxed to the State.
ADOLPHO A. BIRCH, Jr., J., filed a separate concurring/dissenting opinion.
[OPINION BY ADOLPHO A. BIRCH, JR., J„ type=concurring-in-part-and-dissenting-in-part]
ADOLPHO A. BIRCH, JR., J„
concurring and dissenting.
I concur in the conclusion of the majority that Reid’s conviction should be affirmed. As to the sentence of death, however, I respectfully dissent. I continue to adhere to my view that the comparative proportionality review protocol currently embraced by the majority is inadequate to shield defendants from the arbitrary and disproportionate imposition of the death penalty. See Tenn.Code Ann. § 39-13-206(c)(1)(D) (1995 Supp.).
I have repeatedly expressed my displeasure with the current protocol since the time of its adoption in State v. Bland, 958 S.W.2d 651 (Tenn.1997). See State v. Thacker, 164 S.W.3d 208, 256, 2005 WL 984397 (Tenn., April 27, 2005)(Birch, J., concurring and dissenting); State v. Thomas, 158 S.W.3d 361, 384, (Tenn.2005) (Birch, J., concurring and dissenting); State v. Faulkner, 154 S.W.3d 48, 64 (Tenn.2005) (Birch, J., concurring and dissenting); State v. Cole, 155 S.W.3d 885, 910 (Tenn.2005) (Birch, J., concurring and dissenting); State v. Robinson, 146 S.W.3d 469, 529 (Tenn.2004) (Birch, J., concurring and dissenting); State v. Leach, 148 S.W.3d, 42, 68 (Tenn.2004) (Birch, J., concurring and dissenting); State v. Davis, 141 S.W.3d 600, 632 (Tenn.2004) (Birch, J., concurring and dissenting); State v. Berry, 141 S.W.3d 549, 589 (Tenn.2004) (Birch, J., concurring and dissenting); State v. Holton, 126 S.W.3d 845, 872 (Tenn.2004) (Birch, J., concurring and dissenting); State v. Davidson, 121 S.W.3d 600, 629-36 (Tenn.2003) (Birch, J., dissenting); State v. Carter, 114 S.W.3d 895, 910-11 (Tenn.2003) (Birch, J., dissenting); State v. Reid, 91 S.W.3d 247, 288-89 (Tenn.2002) (Birch, J., concurring and dissenting); State v. Austin, 87 S.W.3d 447, 467-68 (Tenn.2002) (Birch, J., dissenting); State v. Stevens, 78 S.W.3d 817, 852 (Tenn. 2002) (Birch, J., concurring and dissenting); State v. McKinney, 74 S.W.3d 291, 320-22 (Tenn.2002) (Birch, J., concurring and dissenting); State v. Bane, 57 S.W.3d 411, 431-32 (Tenn.2001) (Birch, J., concurring and dissenting); State v. Stout, 46 S.W.3d 689, 720 (Tenn.2001) (Birch, J., concurring and dissenting); Terry v. State, 46 S.W.3d 147, 167 (Tenn.2001) (Birch, J., dissenting); State v. Sims, 45 S.W.3d 1, 23-24 (Tenn.2001) (Birch, J., concurring and dissenting); State v. Keen, 31 S.W.3d 196, 233-34 (Tenn.2000) (Birch, J., dissenting). As previously discussed, I believe that the three basic problems with the current proportionality analysis are that: (1) the proportionality test is overbroad, (2) the pool of cases used for comparison is inadequate, and (3) review is too subjective. I have previously discussed, in depth, my perception that these flaws undermine the reliability of the current proportionality protocol. See State v. Godsey, 60 S.W.3d at 793-800 (Birch, J., concurring and dissenting). I continue to adhere to my view that the current comparative proportionality protocol is woefully inadequate to protect defendants from the arbitrary or disproportionate imposition of the death penalty. Accordingly, I respectfully dissent from that portion of the majority opinion affirming the imposition of the death penalty in this case.
APPENDIX
(Excerpts from the Court of Criminal Appeals’ Decision)
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
October 14, 2003 Session
STATE OF TENNESSEE v. PAUL DENNIS REID, JR.
Direct Appeal from the Circuit Court for Montgomery County
No. 38887 John H. Gasaway, III, Judge
No. M2001-02753-CCA-R3-DD-Filed December 29, 2003
The appellant, Paul Dennis Reid, Jr., was found guilty by a jury of two counts of premeditated murder, two counts of felony murder, two counts of especially aggravated kidnapping, and one count of especially aggravated robbery. The felony murder convictions were merged into the premeditated murder convictions. Thereafter, the jury sentenced the appellant to death based upon the existence of three aggravating circumstances: the appellant had previously been convicted of one or more felonies, other than the present charge, the statutory elements of which involve the use of violence to the person; the murders were committed for the purpose of avoiding, interfering with or preventing a lawful arrest or prosecution of defendant or another; and the murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death. The trial court sentenced the defendant as a violent offender to twenty-five years imprisonment for especially aggravated robbery and especially aggravated kidnapping, to run consecutively to his sentences for first degree murder and to a prior out-of-state sentence. On appeal, appellant presents forty-five issues. After an extensive review of the record and the applicable law, we find that none of these issues warrants a reversal of this case. Therefore, the judgments of the trial court are AFFIRMED.
JeRry L. Smith, J., delivered the opinion of the court, in which David G. Hayes and Thomas T. Woodall, JJ., joined.
James A. Simmons and Thomas F. Bloom, Nashville, Tennessee for the appellant, Paul Dennis Reid, Jr.
Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Mark E. Davidson, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Arthur F. Bieber, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
[Deleted: Factual Background]
Analysis
I. Validity of Search Warrants
Appellant contends the trial court erred in denying his motion to suppress evidence
seized pursuant to search warrants 145, 146, and 189. Specifically, appellant argues that warrant 145, authorizing the search of his “red 1997 Ford Escort LX four door ... [,] ” and warrant 146, authorizing the search of his home located at 1424 Ordway Place, are invalid because they did not describe with particularity the items ultimately seized. Appellant further claims that the warrants are invalid for lack of probable cause due to the passage of time and that the warrants do not establish a nexus between the criminal activity and his home and the criminal activity and his car. Appellant challenges warrant 189 on the grounds that he did not receive an exact copy of the warrant authorizing the police to obtain hair and blood samples from him and that the warrant lacked probable cause because it failed to state that the police obtained blood and hair samples from the victims to compare to his. Appellant raised these same allegations with regard to warrants 146 and 149 on his direct appeal of the Captain D’s murders and the Tennessee Supreme Court found these allegations to be without merit. Reid, 91 S.W.3d at 273-76.
The Supreme Court set forth a detailed analysis examining the requirement of particularity for search warrants, the requirement of a nexus between the criminal activity and the area to be searched, and the requirement of Tennessee Rule of Criminal Procedure 41 that the serving officer leave a copy of the search warrant with the person on whom the search warrant is being served.
In discussing the particularity required for search warrants, the court stated:
Under both the Fourth Amendment to the United States Constitution and Article I, section 7 of the Tennessee Constitution a search warrant must contain a particular description of the items to be seized. See State v. Henning, 975 S.W.2d 290, 296 (Tenn.1998) (citing cases). This requirement serves as a limitation, both upon governmental intrusion into a citizen’s privacy and property rights and upon the discretion of law enforcement officers conducting the search. Id. To satisfy the particularity requirement, a warrant “must enable the searcher to reasonably ascertain and identify the things which are authorized to be seized.” Henning, 975 S.W.2d at 296 (internal quotations and citations omitted).
Reid, 91 S.W.3d at 273.
The court quoted with approval the following language from Lea v. State, 181 Tenn. 378, 181 S.W.2d 351, 352-53 (1944), which sets forth the particularity requirement for search warrants.
[W]here the purpose of the search is to find specific property, it should be so particularly described as to preclude the possibility of seizing any other. On the other hand, if the purpose be to seize not specified property, but any property of a specified character which, by reason of its character, and of the place where and the circumstances under which it may be found, if found at all, would be illicit, a description, save as to such character, place and circumstances, would be unnecessary, and ordinarily impossible.
Reid, 91 S.W.3d at 273-74.
Applying the principles set forth in Lea to the warrants at issue in Reid, the court noted that
[wjarrants 146 and 149 authorized searches of the defendant’s residence for items “which may be identified” as property belonging to the victims or the restaurants, and any items that “may be used to cause the death of the victims.” Warrant 149 additionally authorized a search for “any and all financial records to include those indicating” money paid by the defendant on an automobile lease around the time of the murders. An affidavit was attached to each warrant, setting forth the nature and circumstances of the crimes and noting several items that had been taken from the restaurants, including bank bags.
Id. at 274. Ultimately, the court affirmed the decisions of the trial court and this Court, which determined that the warrants met the particularity requirement because “the warrants described the character of the property with sufficient particularity ‘to enable the searcher to reasonably ascertain and identify’ the items subject to seizure.” Id.
In response to appellant’s arguments that the information in the affidavits accompanying the warrants was stale and there was no probable cause to believe that evidence of the crimes would be located at appellant’s residence, the court examined the requirement that there be a nexus between the criminal activity and the area to be searched and found that
To establish probable cause an affidavit must set forth facts from which a reasonable conclusion may be drawn that the evidence will be found in the place for which the warrant authorizes a search. State v. Vann, 976 S.W.2d 93, 105 (Tenn.1998); State v. Longstreet, 619 S.W.2d 97, 99 (Tenn.1981). In addition, the affidavit must contain information which will allow a magistrate to determine whether the facts are too stale to establish probable cause at the time issuance of the warrant is sought. Vann, 976 S.W.2d at 105. While the lapse of time between the commission of a crime and the issuance of a search warrant may affect the likelihood that incriminating evidence will be found, probable cause is a case-by-case determination. State v. Meeks, 876 S.W.2d 121, 124 (Tenn.Crim.App.), perm. app. denied (Tenn.1993). In making this determination, courts should consider whether the criminal activity under investigation was an isolated event or a protracted pattern of conduct. Courts also should consider the nature of the property sought, the normal inferences as to where a criminal would hide the evidence, and the perpetrator’s opportunity to dispose of incriminating evidence. State v. Dellinger, 79 S.W.3d 458, 469-70 (Tenn.2002); State v. Smith, 868 S.W.2d 561, 572 (Tenn.1993).
... [T]he criminal conduct under investigation was not an isolated event. As indicated in the warrants, the crimes occurred almost one month apart, with the last crime committed on March 23, 1997, less than three months prior to the time the warrants were being sought. The warrants sought any items that had been taken from the restaurants or the victims or that may have been used to cause the death of the victims. The affidavits set out the circumstances of the Captain D’s and McDonald’s robberies, including the fact that the only person who had survived the crimes had been repeatedly stabbed and left for dead. The affidavits farther noted that the defendant’s fingerprint had been recovered from an item belonging to one of the Captain D’s victims, that the murder scenes were extremely bloody, that the victims’ blood could be on the defendant’s clothing, and that the defendant could still have in his possession or on his premises instruments of violence used to murder the victims or personal items belonging to the victims. Clearly, the affidavits provide an explanation for why the items sought by the warrants are capable of, and are in fact, likely to be hidden in the defendant’s residence .... Where, as here, a perpetrator believes he has eliminated or incapacitated all witnesses so that law enforcement officials are unlikely to discover his criminal activity, it is neither unreasonable nor unlikely that the perpetrator would keep clothing, or the murder weapons, or items taken during the crime at his residence. See Smith, 868 S.W.2d at 572. Therefore, we conclude that the trial court and Court of Criminal Appeals correctly found that the affidavits set forth sufficient facts from which the magistrate reasonably could have concluded that a nexus existed between the crime and the place to be searched and that the facts were sufficiently recent to establish probable cause.
Reid, 91 S.W.3d at 275-76.
Appellant has not shown how the evidence preponderates against the trial court’s findings in this case. “[T]he trial court’s findings of fact in a suppression hearing will be upheld unless the evidence preponderates otherwise.” State v. Odom, 928 S.W.2d 18, 23 (Tenn.1996). However, the application of the law to the facts as found by the trial court is a question of law, which the appellate court reviews de novo. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn.1997).
Appellant concedes that the Supreme Court held two of the search warrants at issue in this case valid in the Captain D’s appeal but argues that this court should not follow the reasoning set forth by the Supreme Court because it misinterpreted and misapplied the principles set forth in Lea. Appellant argues that the less exacting particularity requirement set forth in Lea applies only when the property to be seized is of an illicit or illegal nature. Appellant contends that the danger in failing to abide by the Lea court’s precise holding is that a more expansive interpretation of the case will result in the “general searches” prohibited by the state and federal constitutions. Appellant maintains that, because the warrants at issue do not comply with the requirements set forth in Lea, the warrants are constitutionally defective. This court, .however, adopts the reasoning of the Supreme Court in Reid, 91 S.W.3d at 273-76, and determines that warrants 145 and 146 are valid.
Appellant contends that he did not receive a copy of warrant 189 at the time the warrant was executed in violation of Tennessee Rule of Criminal Procedure 41. In dismissing the identical issue with respect to warrant 149 in Reid, the Supreme Court found:
It is undisputed that the officers executing the warrants were aware of the defendant’s whereabouts. It is also undisputed that the detectives left a copy of the search warrant locked inside the defendant’s residence, from which the property was taken. The rule requires nothing more.... [T]here was no one present on whom the officers could serve the warrant at the time it was executed; therefore, it was not possible for the officers to leave a copy with the person being served. Rule 41(c) does not require officers to deliver a copy of the search warrant to a person who is not present. Instead, subsection (d) of Rule 41 indicates that an officer taking property under a warrant shall “give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken or shall leave the copy and receipt at a place from which the property was taken.” (Emphasis added.) In this case, the officers left the warrant at the defendant’s residence, the place from which the property was taken. This issue is without merit.
Reid, 91 S.W.3d at 276.
In pertinent part, Tennessee Rule of Criminal Procedure 41 provides: “[T]he failure of the serving officer where possible to leave a copy with the person or persons on whom the search warrant is being saved, shall make any search conducted under said search warrant an illegal search and any seizure thereunder an illegal seizure.” Tenn. R.Crim. P. 41 (emphasis added).
Detective Postiglione testified in a pretrial motion hearing that he and Detective Rolland served a copy of warrant 189 on appellant at the Sheriffs Department at the Davidson County Criminal Justice Center. The search warrant shows that it was executed and returned on the same date it was issued, August 6, 1997. Therefore, it appears that Tennessee Rule Criminal Procedure 41(c) was satisfied.
Appellant asserts as a final argument that warrant 189 lacked probable cause to permit seizure of appellant’s hair and blood because the warrant failed to state hair and blood samples had been obtained from either of the victims or the crime scenes that could be used to compare to appellant’s hair or blood. The warrant states, however, that “Paul Dennis Reid Jr. may have been cut or injured to the point where bleeding occurred, thus leaving his blood either on the victims or in the area [of] the crime scenes. It is also possible that during this contact Paul Dennis Reid Jr. left behind body hairs either on the victims or in the area of the crime scenes.” Thus, the warrant provided an explanation for why the items sought may be found on appellant and set forth sufficient facts for a magistrate to reasonably conclude that a nexus existed between the crime and appellant’s hair and blood. Based on the reasoning set forth by the Supreme Court in appellant’s prior appeal of the Captain D’s murders and the reasoning set forth above, this Court finds warrant 189 to be constitutionally valid. This issue is without merit.
II. Crime Scene Video
Appellant contends that the trial court erred in admitting the videotape of the crime scene into evidence. Specifically, appellant contends that the videotape was not necessary to establish where the bodies were found or the extent of the victims’s injuries because the videotape was merely cumulative of testimony of other witnesses. Appellant further contends that the depiction of the crime scene in the videotape was “gruesome and graphic” and, thus, prejudicial. Appellant submits that the only purpose of the video was to inflame and prejudice the jury against appellant.
The admissibility of a videotape of a crime scene is within the sound discretion of the trial judge, and his or her ruling on admissibility will not be disturbed on appeal absent a clear showing of an abuse of that discretion. State v. Carruthers, 35 S.W.3d 516, 576-57 (Tenn. 2000), cert. denied, 533 U.S. 953, 121 S.Ct. 2600, 150 L.Ed.2d 757 (2001); State v. Banks, 564 S.W.2d 947, 949 (Tenn.1978); see also State v. Bigbee, 885 S.W.2d 797, 807 (Tenn.1994); State v. Van Tran, 864 S.W.2d 465, 477 (Tenn.1993), cert. denied, 511 U.S. 1046, 114 S.Ct. 1577, 128 L.Ed.2d 220 (1994). As the Supreme Court stated in Carruthers, the modern trend is to vest more discretion in the trial judge’s rulings on admissibility. Carruthers, 35 S.W.3d at 577 (citing Banks, 564 S.W.2d at 949; State v. Michael Carlton Bailey, No. 01C01-9403-CC-00105, 1995 WL 424996, at *7 (Tenn.Crim.App. at Nashville, July. 20, 1995), perm, to appeal denied, (Tenn. Jan. 8, 1996).
Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401. However, relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” Tenn. R. Evid. 403. Prejudicial evidence is not excluded as a matter of law. Carruthers, 35 S.W.3d at 577 (citing State v. Gentry, 881 S.W.2d 1, 6 (Tenn.Crim.App.1993)). The court must still determine the relevance of the evidence and weigh its probative value against any undue prejudice. Id. The term “undue prejudice” has been defined as “[a]n undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Banks, 564 S.W.2d at 950-51. In Banks, the Supreme Court gave the trial courts guidance for determining the admissibility of relevant photographic evidence and determined that a trial court should consider: (1) the accuracy and clarity of the picture and its value as evidence; (2) whether the picture depicts the body as it was found; (3) the adequacy of testimonial evidence in relating the facts to the jury; and (4) the need for the evidence to establish a prima facie case of guilt or to rebut the defendant’s contentions. Id.
In this case, the trial court found that the video aided the jury in understanding the testimony of medical examiners, crime scene investigators, and witnesses. The trial court noted that the jury was from Memphis and presumably unfamiliar with the area and Dunbar Cave State Park. The trial court also found that the video depicted the location of the bodies and was shown to document the position of the bodies in relation to the lake, the trail described by investigators and witnesses, the parking lot, and the cave. The trial court determined that the video was not “particularly gruesome.” Appellant advances the argument that the video was graphic and gruesome only because the video shows the bodies of the victims as they were found at the crime scene. The crime scene video of most murders will necessarily depict the bodies of the victims as they were found. If this court were to accept appellant’s argument in this regard, no crime scene videotapes of murders would ever be admissible.
This Court further concludes that while the videotape and the other evidence admitted in this case may have contained some of the same material, it was not error to admit the videotape. See Bigbee, 885 S.W.2d at 807 (holding that it was not error to admit a videotape of the crime scene although it depicted images similar to those of photographs also admitted). Each of the different forms of evidence admitted in this case served different purposes and were probative of the issues to be decided by the jury. As a result, the trial court did not abuse its discretion in admitting the videotape into evidence. See id.; see also State v. Kelvin Anthony Lee, No. 02C01-9603-CC-00085, 1997 WL 686258, at *9 (Tenn.Crim.App. at Jackson, Nov. 5, 1997), perm, to appeal denied, (Tenn. Aug. 8, 1998.) The probative value of the video of the crime scene is not outweighed by its prejudicial effect. This issue is without merit.
III. Grand Jury Rough Notes
Appellant contends that the trial court erred by refusing to order the State to disclose grand jury testimony. In a pretrial motion, appellant asked the trial court to require disclosure of grand jury testimony, including notes taken by the Assistant Attorney General “for the purpose of ascertaining whether the witness’ grand jury testimony is consistent with the testimony given by the witnesses before the court in the trial”, at least to the extent that testimony was revealed in rough notes of the testimony taken by the assistant district attorney general. In the alternative, the motion sought for the court to review the notes in-camera to ascertain whether or not the witnesses’ testimony was consistent with the testimony that the witnesses gave before the grand jury. The trial court granted appellant’s motion to the extent the grand jury testimony was revealed in rough notes taken by the assistant attorney general but denied it as to the disclosure of grand jury testimony. The State responded that it did not possess any rough notes of the grand jury testimony.
On appeal, appellant relies on the exception to the rule of secrecy of grand jury testimony found in Tennessee Rule of Criminal Procedure 6(k)(2), which allows a member of the grand jury to be “required by the court to disclose the testimony of a witness examined before them, for the purpose of ascertaining whether it is consistent with that given by the witness before the court,” to argue that the trial court should have ordered the State to disclose its rough notes of the grand jury testimony. Appellant argues that “[bjecause the trial court’s ruling allowed the State to take such an incredible position, ... the court erred in so ruling.” The rule does not require the district attorney’s rough notes of grand jury testimony to be turned over to opposing counsel, the rule requires the disclosure of witness testimony for the purpose of ascertaining the consistency of the witness’ testimony. Appellant has failed to show any error committed by the trial court. The appellant merely asked for the notes of the testimony that were taken by the prosecutor, and there were no actual allegations of inconsistencies in the grand jury testimony. Moreover, the State cannot produce documents it does not possess. This issue is without merit.
IV. Limited Jury Questionnaire
Appellant argues that the trial court erred by denying his motion to disseminate a questionnaire to prospective jurors inquiring about the jurors’ gender, birth date, educational background, and economic class. Specifically, appellant argues that the court’s questionnaire did not cover the topics in sufficient detail to evaluate the representation of cognizable groups, relying upon Duren v. Missouri, 489 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), which holds that a defendant has a right to challenge the venire to ensure adequate representation of cognizable groups.
Appellant fails to cite to the portion of the appellate record containing the questionnaire he requested be disseminated to the jury. Further, it does not appear that the questionnaire submitted to the jurors by the trial court was made a part of the appellate record. “Issues which are not supported by argument, citation to authorities, or appropriate references to the record will be treated as waived in this court.” Tenn. R. Ct.Crim. App. 10(b).
Moreover, the control of voir dire proceedings rests within the sound discretion of the trial court, and this court will not interfere with the exercise of this discretion unless clear abuse appears on the face of the record. State v. Howell, 868 S.W.2d 238, 247 (Tenn.1993), cert. denied, 510 U.S. 1215, 114 S.Ct. 1339, 127 L.Ed.2d 687 (1994). Furthermore, a trial judge has a right to participate in voir dire examination. Tenn. R.Crim. P. 24(a). Tennessee Rule of Criminal Procedure 24(a) provides: “The court may put to the respective jurors appropriate questions regarding their qualifications to serve as jurors in the case.... ” The trial court found that its juror questionnaire covered the topics sufficiently. Appellant has failed to show that the inquiries made by the trial court were improper or inadequate and has failed to show any abuse of discretion by the trial court. Thus, this issue is without merit.
V. Information on Past Performance of Prospective Jurors
Appellant contends that the trial court erred in denying his motion requiring the State to produce any information it had with regard to the past performance of prospective jurors. Appellant argued that he did not have the funds to hire an investigator to discover this information. The trial court denied the motion and ruled that such information could be found in the juror questionnaire and developed through voir dire. Appellant contends on appeal that the trial court’s ruling violated his right to a jury trial found in Article I, Section 9 of the Tennessee Constitution and violated his due process rights found in the federal and state constitutions. Moreover, appellant contends that the court’s questionnaire did not adequately address this issue and that voir dire is an insufficient tool because of the possibility of false statement or faulty memory as to past service.
Appellant fails to cite to the portion of the appellate record containing the questionnaire he challenges with respect to this issue. Further, it does not appear that the questionnaire submitted to the jurors by the trial court was made a part of the appellate record. “Issues which are not supported by argument, citation to authorities, or appropriate references to the record will be treated as waived in this court.” Tenn. R. Ct.Crim.App. 10(b). Appellant’s brief and the appellate record are devoid of any evidence that appellant was prejudiced by the trial court’s failure to require the State to provide appellant with information regarding the past performance of prospective jurors. This issue is without merit.
VI. Constitutionality of Tennessee Code Annotated Section 22-1-102
Appellant challenges two subsections of Tennessee Code Annotated section 22-1-102, which deem certain persons incompetent to act as jurors. Specifically, appellant contends that the statute is unconstitutional to the extent it excludes persons who have been convicted of certain infamous offenses, persons of unsound mind, and habitual drunkards. Tenn.Code Ann. § 22-l-102(a)(l), (4).
In making his argument, appellant notes that jury service is a right secured to all citizens under the federal and state constitutions. Georgia v. McCollum, 505 U.S. 42, 48-50, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992); Wolf v. Sundquist, 955 S.W.2d 626, 633 (Tenn.Ct.App.1997). He argues that Tennessee Code Annotated section 22-1-102 is overly broad in excluding all felons from jury service when some felons have rehabilitated themselves to the extent they could serve impartially on a jury. He further contends that the statute is overly broad in excluding “habitual drunkards” from serving on juries as some functional alcoholics are capable of serving in an impartial and attentive manner so long as they are not under the influence of alcohol at the time of trial. Finally, appellant contends that the statute is vague as it relates to persons of “unsound mind.” Appellant argues that there is no accepted definition of unsound mind in the psychiatric or psychological community. Appellant contends that because the term can mean anything the court wants it to mean, it is void for vagueness.
As the State noted in its brief, the United States Supreme Court has held that states are “free to prescribe qualifications for [their] jurors and to provide reasonable exemptions so long as it may be fairly said that the jury lists or panels are representative of the community.” Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). There is no evidence that the operation of this statute violates the fair cross-section requirement of the Sixth Amendment. This issue is without merit.
VII. Exclusion of Jurors Based on Religion
Appellant filed a pretrial motion to prevent prospective jurors who stated that they could not impose the death penalty due to their religious convictions from being excluded from the jury. Appellant contends that the trial court erred in denying his motion to prevent exclusion of prospective jurors because of their religion. Appellant argues that the exclusion of jurors who claim that they cannot impose the death penalty due to their religious convictions violates the Tennessee Constitution, which provides that “no political or religious test shall ever be required as a qualification for jurors.” The trial court denied appellant’s motion, stating that it would use the tests formulated in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) and Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) to determine juror qualification.
Appellant raised this issue in the appeal of his conviction for the Captain D’s murders. The Tennessee Supreme Court ultimately held that the exclusion of prospective jurors by a trial court because of their moral or religious based reluctance to impose the death penalty is not error. Reid, 91 S.W.3d at 289-90. “In this regard, potential jurors are removed for cause not because of their religious opinion or affiliation but because the jurors are unable to view the proceedings impartially and perform their duties in accordance with the juror’s oath.” Id. at 290. Questioning of a juror with regard to the death penalty does not amount to a religious test. Id. (citing Wolf, 955 S.W.2d at 631.) Appellant acknowledges that the Tennessee Supreme Court has rejected this argument but makes the argument in order to preserve it for later review. Accordingly, this issue is without merit.
VIII. Exclusion of Jurors who Were not “Death Qualified”
Pretrial, appellant moved the court to refrain from excluding jurors for cause based on their opposition to the imposition of the death penalty because the exclusion of jurors who are not “death qualified” under Witherspoon and Wainwright denied him a constitutional right to have an impartial jury composed of a fair cross-section of the community. Appellant acknowledges the Tennessee Supreme Court has rejected this argument but asserts it in order to preserve later review. Accordingly, this argument is without merit.
IX.Separate Juries on Issues of Guilt and Sentencing
Appellant moved the trial court to have one jury determine his guilt or innocence and a second jury to determine his sentence, which the trial court denied. On appeal, appellant asserts that separate juries are necessary to ensure his right to a fair trial under the Tennessee and federal constitutions. This argument was rejected by our supreme court in State v. Dellinger, 79 S.W.3d 458, 478-79 (Tenn.2002), which appellant acknowledges. Appellant asserts this issue in order to preserve it for later review. This issue is without merit.
X.Constitutionality of Tennessee Code Annotated Section 39-13-204(h)
Appellant moved the trial court to declare Tennessee Code Annotated section 39-13-204(h) unconstitutional, arguing that prohibiting the trial court from informing the jury as to the effect of a nonunanimous verdict in the sentencing phase violates his state and federal constitutional rights to a fair trial. Appellant acknowledges that this argument was rejected by the Tennessee Supreme Court in State v. Hall, 958 S.W.2d 679, 718 (Tenn.1997), but asserts the issue in order to preserve it for later review. Accordingly, this issue is without merit.
XI.Constitutionality of Death Penalty
Appellant contends that the death penalty statute is unconstitutional because it constitutes cruel and unusual punishment under the Eighth Amendment of the United States Constitution. Appellant concedes that this argument was rejected by the supreme court in Hall, 958 S.W.2d at 718, but asserts this issue in order to preserve it for later review. Accordingly, this issue is without merit.
XII.Constitutionality of Tennessee Code Annotated Sections 39-13-204 and 39-13-206
Appellant contends that Tennessee’s death penalty statutes are unconstitutional. However, he fails to present any constitutional challenges to the death penalty statutes that have not been previously reviewed and rejected.
Appellant relies upon the case of United States v. Fell, 217 F.Supp.2d 469 (D.Vt.2002), in arguing that Tennessee’s capital sentencing scheme, particularly Tennessee Code Annotated section 39-13-204(c), is unconstitutional because it allows the death penalty to be imposed based on evidence that is not subject to the guarantees of reliability and trustworthiness required by the due process and confrontation clauses of the federal constitution. This Court rejected that argument in State v. Gdongalay Berry, No. M2001-02023-CCA-R3-DD, 2003 WL 1855099, at *7 (Tenn.Crim.App. at Nashville, Apr. 10, 2003) (holding that Tennessee’s sentencing scheme, including Tennessee Code Annotated section 39-13-204(c), is constitutional). Appellant argues, however, that the Berry court erred in finding Tennessee’s sentencing scheme constitutional. Specifically, appellant contends that the court erred by rejecting the analysis of the Fell court and adopting the reasoning of United States v. Matthews, 246 F.Supp.2d 137 (N.D.N.Y.2002). Appellant maintains that both Matthews and Berry ignore a central theme in United States Supreme Court jurisprudence: that because death is a unique punishment in terms of its irrevoca-bility, it requires more rigorous and scrupulous procedures than other criminal matters to ensure maximum reliability. Further, appellant contends that because the Tennessee sentencing scheme does not contain a provision analogous to Federal Rule of Evidence 408, allowing the trial court to exclude evidence if its prejudicial effect outweighs its probative value, the trial court must admit any evidence that is “relevant” or “probative” to the issue of punishment, regardless of whether the evidence is reliable or more prejudicial than probative. Accordingly, appellant contends that the Berry court erred in upholding the constitutionality of Tennessee Code Annotated section 39-13-204(e) and urges this court to dispense with the Berry opinion, find the statute unconstitutional, and reverse this case.
The death penalty statutes have repeatedly been held constitutional. See e.g., State v. Keen, 31 S.W.3d 196, 233 (Tenn.2000), cert. denied, 532 U.S. 907, 121 S.Ct. 1233, 149 L.Ed.2d 142 (2001); State v. Nesbit, 978 S.W.2d 872, 902 (Tenn.1998), cert. denied, 526 U.S. 1052, 119 S.Ct. 1359, 143 L.Ed.2d 520 (1999); State v. Vann, 976 S.W.2d 93, 117 (Tenn.1998), cert. denied, 526 U.S. 1071, 119 S.Ct. 1467, 143 L.Ed.2d 551 (1999); State v. Bland, 958 S.W.2d 651, 663 (Tenn.1997), cert. denied, 523 U.S. 1083, 118 S.Ct. 1536, 140 L.Ed.2d 686 (1998); Bigbee, 885 S.W.2d at 813-14; State v. Smith, 857 S.W.2d 1, 21-22 (Tenn.1993), cert. denied, 510 U.S. 996, 114 S.Ct. 561, 126 L.Ed.2d 461 (1993); State v. Bane, 853 S.W.2d 483, 488 (Tenn.1993); see also Berry, 2003 WL 1855099, at *4-*5.
XIII.Failure to Dismiss Indictment Pursuant to Article I, Section 19 of Tennessee Constitution
Appellant contends that the trial court erred in denying his motion to dismiss the indictment based upon its violation of Article I, Section 19 of the Tennessee Constitution. Appellant acknowledges that the supreme coui't rejected this argument in Van Tran, 864 S.W.2d at 481, but asserts the issue on appeal to preserve it for later review. Accordingly, this issue is without merit.
XIV.[Deleted: Failure to Dismiss Indictment Because Aggravating Factors not Listed in Indictment]
XV.Failure to Allow Defendant to Address the Jury Last
Appellant contends that the trial court erred in failing to allow him to address the jury last during closing arguments in the penalty phase of the trial. This issue has been rejected by our supreme court. Smith, 857 S.W.2d at 24. This issue is without merit.
XYI. Reliability of DNA Testing
Appellant contends that the trial court erred in denying his motion for a pretrial hearing to determine the reliability of the polymerase chain reaction (“PCR”) DNA testing used in this case, pursuant to McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257 (Tenn.1997). In McDaniel, the Supreme Court clarified the standards for the admission of scientific evidence under Tennessee Rules of Evidence 702 and 703. Subsequently, the Tennessee Supreme Court held that pursuant to Tennessee Code Annotated section 24-7-117, mitochondrial DNA evidence met the general standards for admission of scientific or technical evidence and could be allowed as a method of proving identification without expert testimony as to its reliability. State v. Scott, 33 S.W.3d 746, 756-60 (Tenn.2000). The trial court herein relied on Scott and ruled that a pretrial hearing to determine the reliability of the DNA testing was not necessary. Appellant argues that, although Scott held that a McDan iel hearing did not have to be conducted as to mitochondrial DNA testing, this case involves PCR DNA testing rather than mitochondrial DNA testing. Appellant further contends that, “[b]ecause the scientific reliability of the specific type of testing used in this case has never been established, the trial court erred in failing to order a Daniel [sic] hearing.”
The Tennessee Supreme Court has held “the PCR method of DNA analysis an inherently trustworthy and reliable method of identification.” State v. Begley, 956 S.W.2d 471, 477 (Tenn.1997). In Begley, the court held:
[thereafter, the PCR method of DNA analysis shall be admissible into evidence without antecedent expert testimony as to its trustworthiness and reliability, pursuant to Tenn.Code Ann. § 24 — 7—117(b)(1). As provided by that statute, parties are nevertheless allowed to offer proof that DNA analysis is not trustworthy and reliable. Tenn.Code Ann. § 24 — 7—117(b)(2). For example, a party can challenge the reliability of a particular test in any given case by a showing of sloppy handling of samples, failure to train the personnel performing the testing, failure to follow protocol, and the like. Such a challenge, however, will go to the weight, not the admissibility, of DNA evidence.
Id. at 478 (footnote omitted). Herein, PCR DNA testing was utilized by the TBI and LabCorp expert witnesses. In accordance with Begley, we conclude that the PCR DNA evidence was admissible without antecedent expert witness testimony as to its trustworthiness and reliability. Accordingly, this issue is without merit.
XVII. Admission of Victim Impact Evidence
Appellant contends that the trial court erred in denying his motions to exclude all victim impact evidence and challenges the victim impact jury instruction in State v. Nesbit, 978 S.W.2d 872, 892 (Tenn.1998). Specifically, appellant argues victim impact testimony is prejudicial and irrelevant under the capital sentencing structure established by Tennessee Code Annotated section 39-13-204(g)(l) and Nesbit, 978 S.W.2d at 892, and should be excluded. Appellant asserts that Tennessee Code Annotated section 39 — 13—204(g)(1) mandates that a jury “shall” return a verdict of death once a jury decides that aggravating circumstances exist and they outweigh any mitigating circumstances. Appellant asserts that, under Nesbit, the jury is not permitted to consider the victim impact evidence until after finding that at least one aggravating circumstance exists and that the aggravating circumstance(s) outweigh any mitigating circumstances beyond a reasonable doubt.
Appellant also argues that the Nesbit jury instruction is illogical. The instruction reads as follows:
You may consider the victim impact evidence in determining the appropriateness of the death penalty only if you first find that the existence of one or more aggravating circumstances has been proven beyond a reasonable doubt by evidence independent from the victim impact evidence, and find that the aggravating cireumstance(s) found outweigh the finding of one or more mitigating circumstances beyond a reasonable doubt.
Nesbit, 978 S.W.2d at 892.
Appellant contends that the jury charge in effect “moots” the victim impact evidence because Tennessee Code Annotated section- 39-13-204(g)(l) requires the jury to return a verdict of death if it finds that an aggravating circumstance or circumstances exist beyond a reasonable doubt and outweigh any mitigating circumstances beyond a reasonable doubt.
Victim impact evidence has been declared constitutional by the United States Supreme Court and the Tennessee Supreme Court. Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991); Nesbit, 978 S.W.2d at 889. Furthermore, the argument advanced by appellant that victim impact testimony is irrelevant and should be excluded under Tennessee’s current capital sentencing system, has also been rejected by the Tennessee Supreme Court. See Reid, 91 S.W.3d at 282-83 (holding that any contradiction between the statute and the Nesbit instruction inures to the benefit of the defendant; therefore, this argument does not entitle the defendant to relief). This issue is without merit.
XVIII. [Deleted: Amendment of Indictment]
XIX. Failure to Consolidate This Case with Davidson County Cases
On August 13, 1998, appellant filed a motion to consolidate this case with the two pending cases in Davidson County pursuant to Tennessee Rules of Criminal Procedure 13(a) and 8(b). The trial court found that while consolidation was legally permissible under Tennessee Rules of Criminal Procedure 8 and 13, it was not appropriate under the facts of this case.
Tennessee Rule of Criminal Procedure 8(b) provides for permissive joinder if the “offenses constitute parts of a common scheme or plan or if they are of the same or similar character.” The trial court issued a well-reasoned memorandum, finding that joinder was not appropriate under Tennessee Rule of Criminal Procedure 8(b) because it did not have sufficient evidence to support the theory that the offenses involved constituted a common scheme or plan. The court found that it had insufficient facts to establish that the modus operandi in the Davidson County incidents was probative of appellant’s identity in the Montgomery County incident. The trial court noted that the perpetrator in the Montgomery County incident removed the victims from the scene and killed them by cutting their throats with a knife, whereas the Davidson County perpetrator shot the majority of the victims at the two crime scenes. Therefore, the court concluded that it could not find that there was a unique method used in committing the crimes as required by State v. Hoyt, 928 S.W.2d 935, 943 (Tenn.Crim.App.1995). The trial court also found that although some of the witnesses would testify in the trials of all three offenses, many of the witnesses were necessary for only one of the trials. The trial court then reasoned that “capital trials are very lengthy and very complicated. A jury in this type of case is required to absorb, process, and evaluate a great deal of information. Given the limited factual similarities among the cases, consolidating them would create an unnecessary and, arguably, unmanageable burden on the jury.” The court’s memorandum on the issue of the factual appropriateness of consolidation spans five pages with citations to case law and the Rules of Criminal Procedure. Thus, appellant mischaracterized the trial court’s decision on consolidation by stating that it “gave no specific reason for its decision, simply explaining that the decision of whether to order consolidation is in the court’s discretion.”
Permissive joinder pursuant to Rule 8(b) of the Tennessee Rules of Criminal Procedure is governed by an abuse of discretion standard, and a trial court’s decision to consolidate offenses will not be reversed unless the court applied an incorrect legal standard or reached a decision which is against logic or reasoning that caused an injustice to the party complaining. Spicer v. State, 12 S.W.3d 438, 442-43 (Tenn.2000).
Appellant asserts that he was prejudiced by the court’s decision not to consolidate. He asserts that “if the jury had been able to hear the details of the other, similar murders it might well have afforded the expert proof regarding Defendant’s well-documented mental illnesses more credence.” After a review of the record on this issue, this Court cannot conclude that the trial court abused its discretion in denying appellant’s motion to consolidate. This issue is without merit.
XX. [Deleted: Competency of Appellant to Stand Trial]
XXI. and XXII. Testimony of Rev. Joe Ingle, Mary Ann Hea, and Ron Lax at Competency Hearing
At the competency hearing, appellant sought to introduce the testimony of Reverend Joe Ingle, Mary Ann Hea, and Ron Lax. He asserts that these three witnesses would have testified as to appellant’s incompetency to stand trial. Appellant contends that the information possessed by these witnesses is absolutely critical to a fair determination of his competency to stand trial. Rev. Ingle was not allowed to testify because appellant refused to waive the priest/parishioner privilege. Defense counsel withdrew witnesses Hea and Lax because the court ruled that it would permit “wide open” cross-examination as to each of these witnesses on matters relevant to competency, even though defense counsel requested that the cross-examination of these witnesses be limited because they each worked with appellant’s “defense team” in connection with appellant’s Davidson County cases. The court determined that because these witnesses were part of appellant’s defense team, appellant would be required to waive the attorney/client privilege. Appellant refused to waive his privileges.
Rev. Joe Ingle, appellant’s minister, was prepared to testify that he had visited and counseled hundreds of mentally ill prisoners over the past twenty-five years, and appellant was the most mentally ill prisoner he had ever counseled. Rev. Ingle had spent more time with appellant than all of the expert witnesses combined. Appellant contends that, although Rev. Ingle is not a trained psychiatrist or psychologist, his lay perceptions of appellant mirror those offered by Drs. Auble and Amador, which is “highly significant.” In the affidavit' offered by Rev. Ingle, he states that appellant is obsessed with the desire to be normal. When he was able to break through appellant’s “mask of normalcy” and get him to reveal his true thoughts, he found appellant’s thinking bizarre and delusional. Appellant advised Rev. Ingle that he is being “set up” by the government. Appellant further contends that Rev. Ingle’s testimony would have provided a disinterested perspective on his mental health that could have rehabilitated the defense experts.
Mary Ann Hea is a social worker employed by the Davidson County Public Defender’s Office. Hea would have testified to the substance of her many interviews with appellant. The trial court held that because Hea was employed by the public defender’s office, she stood in the same position as an attorney. Thereafter, defense counsel excused Ms. Hea as a witness.
Appellant also sought to call Ron Lax as a witness at the competency hearing. Mr. Lax is a defense investigator involved in appellant’s McDonald’s murders case in Davidson County. The defense sought to question Lax based upon two interviews with appellant during June 1999, and counsel requested that the court limit the State’s cross-examination of Lax to these two interviews. The trial court denied the request, ruling that on cross-examination the State would be entitled to ask Lax about all of the interviews he had conducted with appellant, and the State would be able to discover all of Lax’s reports of these interviews as Jenks material. As a result, the defense did not offer Lax as a witness.
Appellant acknowledges that Tennessee follows the “wide-open” approach to cross-examination but argues that cross-examination is limited to questions that are designed to elicit relevant evidence. See State v. Adkisson, 899 S.W.2d 626, 645 (Tenn.Crim.App.1994). Appellant asserts that because the defense experts testified that appellant was competent to stand trial until the late spring or early summer 1999, appellant’s competency to that point was not at issue, and the State should have been limited to questioning Lax as to his interviews of appellant following the appellant’s “deteriorated state” only. Otherwise, the trial court was authorizing the State to “delve into wholly irrelevant matters in its cross-examination.” The State counters that it should have been provided the oppoi’tunity to cross-examine the witness with regard to his conversations and interactions with the appellant touching on his competency and incompetency.
Tennessee Rule of Evidence 611(b) provides that the scope of cross-examination extends to “any matter relevant to any issue in the case, including credibility.” Because appellant’s competency was at issue, conversations and interactions Lax had with appellant prior to his determination that appellant was no longer competent would be relevant. The differences in appellant’s actions and statements in his prior interviews and the June 1999 interviews would be relevant, and they would certainly be an area ripe for cross-examination. Mr. Lax certainly made his determination as to appellant’s competency based upon his relationship and involvement in appellant’s case over the two year period he worked with appellant, rather than solely on the two June 1999 interviews. This court determines that the trial court did not abuse its discretion with regard to this ruling.
As for witnesses Hea and Ingle, appellant asserts that a criminal defendant has a due process right to call witnesses on his own behalf. Washington v. Texas, 388 U.S. 14, 23, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1976). Appellant then asserts that the trial court’s rulings with respect to these witnesses “impinged upon [his] right to present a defense to an unconstitutional degree” and cites Knight v. Dugger, 863 F.2d 705, 725-29 (11th Cir.1988). Appellant further contends that the trial court erred when it invoked mere evidentiary privileges to deny, or at least diminish, his right to call witnesses to support his claim of competency. The issue of the appropriate burden in establishing competency is of manifest importance to the issue of whether the trial court erred in allowing appellant to assert his privileges.
Appellant contends that the trial court’s rulings as to Ingle and Hea are incorrect because appellant was presumed to be incompetent at the hearing and, therefore, did not have the ability to assert or waive either the priest/parishioner privilege or the attorney/client privilege. The appellant relies upon the 1911 Tennessee Supreme Court case of Jordan v. State, 124 Tenn. 81, 135 S.W. 327, 329 (1911), and the case of State v. Black, 815 S.W.2d 166, 174 (Tenn.1991), for the proposition that the State bears the burden of proving a defendant’s competence to stand trial once the issue of competency is raised. It is the appellant’s position that, once competency is raised, a criminal defendant is presumed incompetent until the State proves otherwise. The State, however, asserts that the burden is on the criminal defendant to establish his incompetency to stand trial by a preponderance of the evidence and relies on United States v. Shepard, 538 F.2d 107, 110 (6th Cir.1976), and State v. Oody, 823 S.W.2d 554, 559 (Tenn.Crim. App.1991). The trial court asserted in its memorandum opinion on the motion for new trial that the law on the burden of proof is unclear. Appellant asserts that the supreme court cases of Jordan and Black place the burden of proof on the State by “approving” jury instructions that placed the burden on the State. Appellant submits that because the supreme court is the highest court in the state, the court of criminal appeals’ decision in Oody “is of no consequence.”
This Court determines that, based on Oody, the burden of proof at a competency hearing rests on the criminal defendant to establish incompetency to stand trial by a preponderance of the evidence. Appellant’s rebanee on Black and Jordan is misplaced. Jordan did not hold simply that the burden was on the State to prove competency by a preponderance of the evidence as argued by appellant. Rather, Jordan adopted a shifting of the burden when it found that the following jury charge was “in all things correct.” Jordan, 135 S.W. at 329.
The law presumes that all persons are of sound mind until the contrary is made to appear. When, therefore, any person charged with a criminal offense punishable by death or imprisonment pleads insanity, as in this case, and presents evidence establishing or tending to es-tabbsh the said plea, which evidence is sufficient to rebut and overturn the presumption of sanity, then it must be made to appear to your satisfaction from all the evidence that the defendant is of sufficient mental capacity to give sane advice to his counsel involving the charge in the indictment.
Id. at 328 (emphasis added). This charge does not support appellant’s contention that once the issue of competency is raised, the burden is on the State the prove competency. Instead, Jordan requires a shifting of the burden whereby the defendant must first present evidence establishing incompetency, rebutting and overturning the presumption of competency. If the presumption of competency is sufficiently rebutted, then the burden shifts to the State.
Further, the mere reference of a trial court’s statement in Black that the burden of proof was on the State to prove competency does not relegate that statement to the law in Tennessee. The holding in Black, relevant to the competency issue, was a determination that the criminal defendant in that case was competent to stand trial under the standards enunciated in the cases of Duskey, Mackey, and Benton, not who bore the burden at the competency hearing. Black, 815 S.W.2d at 173-75. Moreover, three months after the supreme court’s decision in Black, the Tennessee Supreme Court declined to grant permission to appeal in Oody and has not since addressed this issue.
Because appellant is presumed competent at the hearing, appellant had the right to assert his privileges, which prevented the witnesses at issue from testifying. This Court concludes that there was no error in the trial court’s rulings on this issue.
XXIII. Testimony of Dr. Xavier Amador
Appellant contends that the trial court erred in forcing defense expert Dr. Xavier Amador to testify at the competency hearing without giving him sufficient time to: (1) review cassette tapes Dr. Bernet had recorded during his interview with appellant prior to the competency hearing and (2) review Dr. Turner-Graham’s report. The proof at the competency hearing was presented out of order due to Dr. Amador’s scheduling constraints. The defense presented Dr. Pamela Auble as its first expert. Next, the State presented the testimony of Dr. Bernet, during which cassette tapes of a two horn* and fifteen minute interview with appellant were introduced. Dr. Cynthia Turner-Graham testified next. Following her testimony, the court asked defense counsel to call its next witness. Dr. Amador’s flight, however, had been cancelled the previous night, and he had not yet arrived. When Dr. Amador arrived, he was given Dr. Turner-Graham’s report and the tapes from Dr. Bernet’s interview for his review.
Defense counsel asked that Dr. Amador be given additional time to review the tapes and report upon his arrival. The trial court denied the request explaining that Dr. Amador had at least thirty minutes to review the report, and that he could review the tapes during the lunch break. Further, the court explained that defense counsel heard the tapes and could advise him concerning the same.
Dr. Amador never indicated that his testimony was compromised by insufficient time to review the report or the tapes. Appellant argues that, if Dr. Amador had been given additional time to review Dr. Bernet’s taped interview, he would have been better equipped to challenge Dr. Bernet’s conclusions. This court finds that the record does not support appellant’s arguments on this issue. This issue is without merit.
XXIY. [Deleted: Testimony of Dr. Turner-Graham]
XXV. Testimony of E.L.
During E. L.’s redirect testimony, the prosecuting attorney asked her if she had ever been through the drive-thru window at Baskin-Robbins with her daughter and appellant. Ms. L. replied, “We did not go through Baskin Robbins, sir.” Counsel then attempted to ask another question, and Ms. L. interrupted and said, “that was my daughter that said that not — -we did not go through Baskin Robbins. Not to my knowledge.” Defense counsel then objected to the hearsay. The State responded that it had not intended to elicit hearsay testimony. The trial court sustained the objection and instructed the jury to disregard that portion of Ms. L.’s testimony and consider it for no purpose. Thereafter, the State asked Ms. L. if she and a member of her family and appellant had gone through the drive-thru at Baskin-Robbins. After L. responded that she could not remember doing so, counsel asked if it was possible that, after they dined at Logan’s, they went to get ice cream. Ms. L. stated that she could not remember doing so.
At no point during this exchange did defense counsel request a mistrial. Appellant now asserts that the court should have sua sponte granted a mistrial. A mistrial should be declared in a criminal trial only in the event of a “manifest necessity” that requires such action. State v. Hall, 976 S.W.2d 121, 147 (Tenn.1998) “The purpose for declaring a mistrial is to correct damage done to the judicial process when some event has occurred which precludes an impartial verdict.” State v. Williams, 929 S.W.2d 385, 388 (Tenm.Crim. App.1996). The determination of whether to grant a mistrial rests within the sound discretion of the trial court. State v. Smith, 871 S.W.2d 667, 672 (Tenn.1994). The reviewing court should not overturn that decision absent an abuse of discretion. Reid, 91 S.W.3d at 279. Moreover, the burden of establishing the necessity for a mistrial lies with the party seeking it. Williams, 929 S.W.2d at 388.
Appellant’s counsel did not move for a mistrial based upon the hearsay testimony by Ms. L.. Moreover, the trial court gave a curative instruction, which the jury is presumed to have followed. Hall, 976 S.W.2d at 148. This issue is without merit.
XXVI. Testimony of L.D. and S.D.
During a break in the testimony of S.D., he went into the hallway and sat with his mother, L.D., who had already testified. As they were sitting in the hallway, a news reporter was making a live broadcast concerning the trial. Appellant’s counsel immediately alerted the court and moved to strike the testimony of both S.D. and L.D. The court questioned S.D. outside of the presence of the jury about what he had heard. S.D. admitted that he heard part of the news report and that the reporter stated that, after a long pause, “I pointed out the person.” He did not hear anything else the reporter said. The court then ruled that there was no Tennessee Rule of Evidence 615 violation. The court went on to state that, although witness S.D. could have been adversely affected and the Rule compromised, the same had not occurred.
On appeal, the appellant argues that the trial court erred. Tennessee Rule of Evidence 615 provides in pertinent part: “At the request of a party the court shall order witnesses, including rebuttal witnesses, excluded at trial or other adjudicatory hearing ... The court shall order all persons not to disclose by any means to excluded witnesses any live trial testimony or exhibits created in the courtroom by a witness.” Tenn. R. Evid. 615. The sequestration rule is designed to prevent witnesses from hearing the testimony of other witnesses and subsequently adjusting their testimony. State v. Harris, 839 S.W.2d 54, 68 (Tenn.1992). When a sequestration rule violation is raised on appeal, the court shall consider the seriousness of the violation and the prejudice, if any, suffered by the defendant. Id. at 68-69. In the case at bar, any violation was minor, appellant suffered no resulting prejudice. This issue is without merit.
XXVII. Introduction of Undergarment of Victim Angela Holmes
During the trial, T.H. identified the clothing his wife was wearing on the night of her murder. The clothing was found at the crime scene and included Angela Holmes’s bra. The State moved for the admission of the articles of clothing into evidence without objection. Appellant now argues that the court should have removed the bra from evidence. Appellant argues that the bra had little or no relevancy and that any relevancy was outweighed by the prejudice it caused.
Appellant failed to object when the bra was admitted into evidence. The failure to make a contemporaneous objection constitutes a waiver, of the issue on appeal. Tenn. R.App. P. 36(a); see also State v. Little, 854 S.W.2d 643, 651 (Tenn.Crim.App.1992). This issue is without merit.
XXVIII. Exclusion of TBI Memorandum
During the cross-examination of TBI agent Samera Zavero, appellant attempted to introduce into evidence a TBI memorandum, which stated that a person named J.J. could not be excluded as a possible donor of the DNA found on appellant’s right shoe. The trial court excluded the memorandum as irrelevant because there was no evidence that J.J. had anything to do with the case. Appellant argued that the memorandum was relevant because the State mentioned J.J. in opening statement.
During its opening statement, the State told the jury that the case had been a hard ease for law enforcement and the proof might show that appellant was not the first suspect in this case. Three men, Jones, Shelly, and Black, all of whom had a crack problem and were partying, taking guns, and selling them for crack, may have been the first suspects. Later in the opening, the State discussed the expected DNA evidence found on appellant’s shoes and commented “that’s why [the DNA evidence of] Jones and Shelly and Black were given up.” The trial court found that the mention of J.J. during opening statement was insufficient to establish the relevance of the document without any other evidence that J.J. had an involvement in the case.
Appellant contends that, because the State injected the name of J.J. into the issue of the identity of the perpetrator of the crimes, the memorandum is relevant. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401. Relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” Tenn. R. Evid. 403. However, “[o]f critical importance here is the nature of opening statements. They are intended merely to inform the trial judge and jury, in a general way, of the nature of the case and to outline, generally, the facts each party intends to prove. Such statements do not amount to stipulations and certainly are not a substitute for the pleadings or for the evidence.” Harris v. Baptist Mem’l Hosp., 574 S.W.2d 730, 732 (Tenn.1978).
After a review of the evidence, we conclude that the trial court did not err in excluding the TBI memorandum. J.J. was never shown to have any involvement with the case. As such, any reference to him in a TBI memorandum is irrelevant to the determination of the facts at issue. Accordingly, this issue is without merit.
XXIX. Testimony of J.P.
Appellant contends that the testimony of J.P. should have been excluded because his conversation with appellant was too far removed in time from the Baskin-Robbins incident to provide meaningful insight into appellant’s motive. The testimony was about a conversation Mr. P. had with appellant wherein the appellant told him robbery would be an easy way to make money. The trial court held a jury-out hearing to determine when the comment was made in relation to the Baskin-Robbins murders. P. could not recall the date of the conversation but testified that the statement was made a few months before the Baskin-Robbins murders. He also testified that the statement was made in late summer 1996. Further, he could recall that the statement was made during appellant’s second term of employment with Shoney’s and that appellant made the statement shortly before he was terminated. The court ruled that the statement was not too remote in time and allowed him to testify as to the statement.
P. testified before the jury that appellant made the statement in January 1997, shortly before he was fired. Defense counsel questioned him on the discrepancy in his testimony, and he replied that he had gone home, thought about it, and tried to get everything right.
This court cannot find that the court erred in allowing P. to testify as to the statement made by appellant. This issue is without merit.
XXX. Use of Styrofoam Heads by Dr. Harlan as Demonstrative Evidence
Appellant challenges the use of demonstrative evidence by the medical examiner as inappropriate. During Dr. Harlan’s testimony, he used styrofoam heads to demonstrate, with a pen, the head wounds suffered by the victims. This court approved the use of this type of demonstrative evidence in State v. Robert E. Cole, No. 02C01-9207-CR-00165, 1993 WL 539185, at *3 (Tenn.Crim.App. at Jackson, Dec. 30, 1993). In Cole, this Court concluded that the evidence was “highly probative as to the issues to be decided by the jury. Under the circumstances, the trial court did not err in admitting the challenged evidence.” Id. (citing State v. King, 718 S.W.2d 241 (Tenn.1986); State v. Sexton, 724 S.W.2d 371 (Tenn.Crim.App.1986)).
This court cannot find that the use of the styrofoam heads was inappropriate in this case as the appellant urges. The trial court did not err in its ruling that the use of the styrofoam heads would assist Dr. Harlan in demonstrating the location of the wounds. This issue is without merit.
XXXI. [Deleted: Failure to Allow Introduction of Police Report]
XXXII. [Deleted: Sufficiency of the evidence]
XXXIII. Prosecutorial Misconduct in Guilt Phase
Appellant contends that the prosecutors committed numerous acts of prosecutorial misconduct during their arguments in the guilt phase. When reviewing allegations of prosecutorial misconduct, “[t]he general test to be applied is whether the improper conduct could have affected the verdict to the prejudice of the defendant.” Harrington v. State, 215 Tenn. 338, 385 S.W.2d 758, 759 (1965); see also State v. Richardson, 995 S.W.2d 119, 127 (Tenn.Crim.App.1998). The factors relevant to the court’s determination are:
1. The conduct complained of viewed in light of the facts and circumstances of the case;
2. The curative measures undertaken by the court and the prosecution;
3. The intent of the prosecutor in making the improper arguments;
4. The cumulative effect of the improper conduct and any other errors in the record; and
5. The relative strength and weakness of the case.
Nesbit, 978 S.W.2d at 894.
Reference to D.T.’s testimony
During opening statement, the prosecutor commented:
You are going to hear testimony from D.T. and maybe another coworker ... We think Mr. T. is going to tell you that he worked with Mr. Reid at a Shoney’s ... and that there was talk when the two of them worked about raising money, not by donating money at the Plasma center or anything like that. There was talk about raising money by conducting robberies.
Defense counsel objected, and the court conducted a sidebar conference. The court reminded defense counsel that T.’s testimony about the conversation would be admissible at trial, a finding he had previously made. The court then advised the prosecutor to limit his remarks to anticipated evidence that he believed in good faith would be forthcoming, not otherwise. At trial, T. testified that when appellant asked him about how he could get money, he suggested committing robbery as a means of making money and mentioned a “fast food place, you know, middle of night, no witnesses.” T. agreed that he made the suggestion to appellant.
Appellant argues that the prosecutor’s comment during opening statement intimated that appellant, not T., made the robbery statement about committing a robbery; therefore, the prosecutor committed misconduct. The prosecutor’s comments regarding D.H.’s suspected testimony were not improper. Moreover, the comments could not have affected the verdict to the prejudice of appellant, because the jury heard T. testify he brought up the robbery suggestion. This issue is without merit.
Writing of the word “match” on visual aid
During closing argument, the prosecutor used a visual aid in connection with his argument as to the fiber evidence in the case upon which the word “match” was written. The defense objected, arguing that the word “match” implied identity, whereas the testimony of the expert witness had been that the fibers found on the victims’ clothing were “consistent” with fibers found in appellant’s car. The trial court overruled the objection, stating, “The rules provide that the closing argument by the State is limited to the subject matter covered in the State’s argument and the argument by the defendant. Also the law provides that counsel may comment on the evidence and reasonable inferences that may be drawn therefrom. Discussion about fibers was included in the State’s opening argument. It was also covered by the defendant in his argument. So, the rules provide that subject matter is fair game.” The trial court further explained, “The specific use of the word match ... if he uses it, that’s his take on the evidence. He can comment on what he thinks the evidence is ... The jury heard the evidence, and its [sic] up to them to sort out whether his use of the word match is appropriate or not.”
The closing argument is a valuable privilege for both the State and the defense and counsel is afforded wide latitude in presenting final argument to the jury. See State v. Cribbs, 967 S.W.2d 773, 783 (Tenn.1998); State v. Cone, 665 S.W.2d 87, 94 (Tenn.1984). However, when a prosecutor’s argument “veers beyond the wide latitude afforded, the test for determining if reversal is required is whether the impropriety ‘affected the verdict to the prejudice of the defendant.’ ” Cribbs, 967 S.W.2d at 783. Appellant argues that the use of the word “match” characterized the proof as much stronger than it actually was, which thereby misled the jury. The prosecutor did not exceed the latitude given him in writing the word match on the visual aid. Moreover, the word “match” on the visual aid did not affect the verdict to the prejudice of appellant. The jury heard the experts’ testimony that the fibers on the victims’ clothes were “consistent.” The experts were thoroughly cross-examined on this point. Additionally, the jury was instructed that arguments of counsel are not to be considered evidence. The jury is presumed to follow instructions. State v. Smith, 893 S.W.2d 908, 914 (Tenn.1994). This issue is without merit.
Appeal to jury’s passion
In closing argument, the prosecutor placed pictures of each victim on a projector and left them there for seven minutes. At some point, the prosecutor threw dollar bills on the projector used to display the images of the victims. Appellant asserts that, by these acts, the prosecutor intended to inflame the passion of the jury, which is prohibited. See Watkins v. State, 140 Tenn. 1, 203 S.W. 344, 345-46 (1918). The State argues that the prosecutor was simply demonstrating to the jury that it was money that motivated appellant to rob, kidnap, and murder the victims, whose pictures were being projected, and to eliminate the victims as witnesses. These actions, although dramatic, were not “conduct so improper that it affected the verdict.” Harrington, 385 S.W.2d at 759. This issue is without merit.
Biblical reference
In closing argument, the prosecutor stated, “No matter how hard you try murder will out. If necessary the stones themselves will cry out. The shoes themselves will cry out as they did in this case. They will show the blood. Blood will out, and it did in this case. He couldn’t get rid of every speck of blood.” Appellant contends that this argument was based on a passage from the book of Habbukuk in the Bible. Habbukuk 2: 9-11 reads as follows:
9. Woe to him who gets evil for his house, to set his nest on high, to be safe from the reach of harm!
10. You have devised shame to your house by cutting off any peoples; you have forfeited your life.
11. For the stone will cry out from the wall, and the beam from the woodwork respond.
Habbukuk 2:9-11 (Revised Standard Edition). Appellant did not make a contemporaneous objection to the prosecutor’s comments. Therefore, this issue is waived. See Thornton, 10 S.W.3d at 234 (citing Tenn. R.App. P. 36(a)); Green, 947 S.W.2d at 188; Little, 854 S.W.2d at 651.
Although appellant did not make a contemporaneous objection to the Biblical reference, he moved for a mistrial after the completion of the State’s closing argument and after the jury had left the courtroom. Appellant argued that based on the totality of the prosecutor’s argument, specifically including the Biblical reference, the pictures of the victims on the projector for seven minutes, the latex gloves comments, and the bank of justice analogy, the argument appealed to the passion and sympathy of the jury. A mistrial should be declared in a criminal trial only in the event of a “manifest necessity” that requires such action. Hall, 976 S.W.2d at 147. “The purpose for declaring a mistrial is to correct damage done to the judicial process when some event has occurred which precludes an impartial verdict.” Williams, 929 S.W.2d at 388. The determination of whether to grant a mistrial rests within the sound discretion of the trial court. Smith, 871 S.W.2d at 672. The reviewing court should not overturn that decision absent an abuse of discretion. Reid, 91 S.W.3d at 279. In this case, the trial judge found there was no manifest necessity requiring a mistrial. We agree.
On appeal, appellant correctly notes that any references to the Bible during closing argument are prohibited. See Cribbs, 967 S.W.2d at 783. The supreme court has held a Biblical reference to be harmless error. See id. at 783 (holding prosecutor’s quotation to the Bible, “Whatever a man sows, so shall be reaped” as harmless). In Cribbs, the prosecutor acknowledged in his closing that it made him uncomfortable to mention Biblical references, but he then quoted the reap what you sow passage. Id. He then explained to the jury that he did not want anyone to be offended by the Biblical reference, but it was a very important part of our law. Id. Notwithstanding, the court held that the prosecutor’s comments were harmless because they did not affect the verdict of the jury.
In the order denying appellant’s motion for new trial, the trial court found that the reference was of a religious nature and constituted error, but found that it was harmless. The court noted that the “passage is one of relative obscurity. Therefore, the court finds it unlikely that the jurors were actually aware of the remainder of the passage and/or its meaning. This is particularly true given the context of the reference.” Based on our review of the record, we find that the prosecutor’s Biblical reference did not affect the verdict to the prejudice of appellant and that the trial court did not abuse its discretion. Therefore, this issue is without merit.
XXXIV. Life Photographs of Victims
Appellant challenges the introduction of photographs of the victims before they were murdered during the victim impact testimony. Appellant asserts that the photographs served only to inflame the jurors and appeal to their emotions. The State counters that the photographs were probative of the issue of the impact of the death on the victims’ family members and to show those unique characteristics which provide a brief glimpse into the life of the victims. The supreme court has held:
[generally, victim impact evidence should be limited to information to show those unique characteristics which provide a brief glimpse into the life of the individual who has been killed, the contemporaneous and prospective circumstances surrounding the individual’s death, and how those circumstances financially, emotionally, psychologically or physically impacted upon members of the victim’s immediate family.
Nesbit, 978 S.W.2d at 887. In this case, the photographs were introduced to provide a brief glimpse into the fives of the victims, as allowed by Nesbit. Accordingly, the court did not err in allowing the introduction of these photographs.
XXXV. [Deleted: Photographs of Victims at Crime Scene]
XXXVI. Victim Impact Testimony of T.H.
Appellant next contends that the trial court should have excluded the victim impact testimony of T.H. during the penalty phase, wherein Mr. Holmes testified that his daughter R. “kisses Angela’s picture and not Angela.” This testimony was given in response to the prosecutor’s question, “Mr. Holmes, how has Angela’s murder affected your family?” Appellant did not object to Mr. Holmes’s testimony; therefore, this issue is waived. See Thornton, 10 S.W.3d at 234 (citing Tenn. R.App. P. 36(a)); Green, 947 S.W.2d at 188; Little, 854 S.W.2d at 651. Further, we find that this statement was proper victim impact testimony under Nesbit, 978 S.W.2d at 879. Accordingly, this issue is without merit.
XXXVII. Testimony of Patricia Allen
Patricia Allen testified at the penalty phase as a speech language pathologist. She testified that she evaluates people with brain injuries to determine if they have been affected by the brain injury. She explained that “language is a code that reflects how someone is thinking.” She then testified that, in evaluating a patient, she would look at their “reading and writing and the words they put together in sentences, we would also look at their thinking skills; things such as their ability to attend, to remember, to solve problems and to reason. Things like that.” She further explained that a speech language pathologist was more involved in treatment and helping people with brain injuries to function, while a neuropsychologist would be more involved in the evaluation of how the brain is working and the behavior of the individual.
Later in defense counsel’s direct examination of Ms. Allen, counsel asked how appellant’s brain injury would have impacted his ability to conform to the rules established in the home. The State objected, arguing that such was outside her area of expertise. The court overruled the objection, and the witness responded. Next, after Ms. Allen confirmed that people with brain injuries have difficulty with rules, defense counsel asked: “How so?” Again, the State objected to the questioning as being outside Ms. Allen’s area of expertise. This time the court sustained the objection.
It is the longstanding principle that the “propriety, scope, manner and control of examination of witnesses is within the trial court’s discretion.” Harris, 839 S.W.2d at 72. Ms. Allen testified that she, as a speech language pathologist, was more involved in treatment and helping people with brain injuries to function, while a neuropsychologist was more involved in the evaluation of how the brain is working and the behavior of the individual. Accordingly, the trial court did not err in precluding Ms. Allen from testifying as to how a person with a brain injury would have difficulty with rules. Moreover, as the trial court found, any such error in precluding the testimony was harmless. Appellant did not make an offer of proof. Therefore, he failed to demonstrate how he was prejudiced by the trial court’s ruling. See State v. Galmore, 994 S.W.2d 120, 125 (Tenn.1999) (although an offer of proof is unnecessary to preserve this issue, it may be the only way to demonstrate prejudice). Furthermore, Ms. Allen and the other defense experts testified at length as to appellant’s physical and mental abnormalities and the effects of the same. Therefore, any error in sustaining the State’s objection was harmless. This issue is without merit.
XXXVIII, XXXIX and XL. Jury Charge of Mitigating Factors
Appellant contends that the trial court erred in charging the jury as to mitigating factors in three respects. First, he contends that the trial court erred in refusing to charge the jury on the statutory mitigator set forth in Tennessee Code Annotated section 89 — 18—204(j)(6), which provides that “the defendant acted under extreme duress or under the substantial domination of another person.” Appellant contends that his delusions caused him to believe he was acting under the control of government agents and, as a result, the “substantial domination” mitigator should have been charged. There is no authoritative support for appellant’s contention. Moreover, appellant’s mental illnesses were addressed in the statutory and non-statutory mitigators charged to the jury.
Next, appellant contends that the trial court erred by failing to charge the non-statutory mitigators in the same affirmative manner as the statutory mitigators. Basically, appellant attacks the non-statutory mitigators because they were not in the same “sentence structure” as the statutory mitigators. The charge the trial court gave complies with the non-statutory instructions approved by the Supreme Court in Odom, 928 S.W.2d at 31-32, and State v. Hodges, 944 S.W.2d 346, 352 (Tenn.1997). This issue is without merit.
Finally, appellant contends that the trial court should have charged the “catch-all” mitigator set forth in Tennessee Code Annotated section 39 — 13—204(j)(9). Appellant did not, however, raise this issue at trial or in his motion for new trial. Failure to make a contemporaneous objection constitutes a waiver of the issue. See Thornton, 10 S.W.3d at 234 (citing Tenn. R.App. P. 36(a)); Green, 947 S.W.2d at 188; Little, 854 S.W.2d at 651. Moreover, failure to raise issues concerning jury instructions in a motion for new trial constitutes a waiver of such issues for purposes of appeal. Tenn. R.App. P. (3)(e); Tenn. R.App. P. 36(a).
Notwithstanding appellant’s failure to object or raise the issue in a motion for new trial, he contends that the trial court’s failure to charge the catch-all mitigator constitutes plain error and should be reviewed by this court. See Tenn. R.Crim. P. 52(b); State v. Ogle, 666 S.W.2d 58 (Tenn.1984). Plain error exists where the error affects a substantial right of the defendant and strikes at the very fairness or integrity of the trial. Tenn. R.Crim. P. 52(b); State v. Wooden, 658 S.W.2d 553, 559 (Tenn.Crim.App.1983). The failure to charge the catch-all statutory mitigator does not strike at the very fairness or integrity of the trial and, therefore, does not constitute plain error. This issue is without merit.
XLI. Trial Court Comments on State’s Proof During Penalty Phase
At the conclusion of the court’s explanation to the jury of the sentencing process, the court stated:
But I say this only because I want you to develop your mind now with a view to looking to the State to offer evidence regarding the aggravating circumstances they contend apply, remembering that you must be convinced beyond a reasonable doubt and also applying the guidelines as I give you in my instructions that tell you how to go about considering those aggravating circumstances and whether or not they outweigh beyond a reasonable doubt the mitigation evidence, if you find such exists, that has been raised during the course of the trial.
Appellant argues that this statement by the court encouraged, at least implicitly, the jury to concentrate on the State’s proof as opposed to that raised by appellant. Appellant has failed to allege how this statement prejudiced him. This issue is without merit.
XLII. [Deleted: Prosecutorial Misconduct During Penalty Phase]
XLIII. [Deleted: Heinous, Atrocious and Cruel Aggravating Factor]
XLIV. [Deleted: Sufficiency of Evidence to Support Jury’s Finding that Aggravating Circumstances Outweighed Mitigating Factors Beyond a Reasonable Doubt]
XLV. [Deleted: Proportionality Review]
CONCLUSION
In accordance with Tenn.Code Ann. § 39-13-206(c), we have considered the entire record and conclude that the sentence of death has not been imposed arbitrarily, that the evidence supports the jury’s finding of the statutory circumstances, that the evidence supports the jury’s finding that the aggravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt, and that the sentence is not disproportionate. We have also reviewed all issues raised by appellant and conclude there is no reversible error. As a result, the judgments of the trial court and the sentence of death imposed by the jury are affirmed.
The owner of the store testified that $1,565.58 had been stolen.
Detective Robert Miller testified that three different routes could be taken to travel from Baskin-Robbins to Dunbar Cave park. The driving time for the three routes ranged from four to five minutes.
The defendant’s convictions and death sentences for these offenses have been affirmed on direct appeal. State v. Reid, 91 S.W.3d 247 (Tenn.2002).
Dr. Auble testified on behalf of the defendant in the penalty phase of the earlier trial as well. See Reid, 91 S.W.3d at 268-69.
This Court’s decisions in State v. Black, 815 S.W.2d 166 (Tenn.1991), and Jordan v. State, 124 Tenn. 81, 135 S.W. 327 (1911), did not squarely address the issue. Instead, the holding in Black upheld the trial court's decision that the defendant was competent, see Black, 815 S.W.2d at 173, and the holding in Jordan involved a plea of insanity as a defense to the charged offense. Jordan, 135 S.W. at 329.
A variety of approaches are taken in other jurisdictions. Many place the burden of proof on the defendant to establish his or her incompetency either by statute or case law. See Colo.Rev.Stat. Ann. § 16-8-111; Conn. Gen. Stat. Ann. § 54-56d; Mo. Ann. Stat. § 552.020; Pa. Cons.Stat. Ann. tit. 50, § 7403; R.I. Gen. Laws § 40.1-5.3-3; Utah Code Ann. § 77-15-5; Va.Code Ann. § 19.2-169.1; State v. Kleypas, 272 Kan. 894, 40 P.3d 139 (2001), overruled on other grounds by State v. Marsh, 278 .Kan. 520, 102 P.3d 445 (2004). Others place the burden on the prosecution. See Ill. Comp. Stat. Ann. ch. 725 § 5/104-11; S.D. Codified Laws § 23A-10A-6.1; Wis. Stat. Ann. § 971.14.
Indeed, we note that the trial court, out of an abundance of caution, evaluated the evidence and reached the same conclusion under two separate standards: placing the burden on the defendant to establish incompetency by a preponderance of the evidence and placing the burden on the State to establish competency by a preponderance of the evidence.
Furthermore, we noted that the majority of states have likewise declined to require the inclusion of aggravating circumstances in the indictment. Berry, 141 S.W.3d at 561 n. 4.
An additional limitation, however, is that extrinsic evidence may not be used where the trial court determines that the extrinsic evidence concerns a collateral matter. Neil Cohen et ah, Tennessee Law of Evidence, § 613.5 (4th ed.2003).
In 1998, the legislature amended statutory provisions to allow the prosecution to introduce the facts underlying a prior violent felony being used to seek the death penalty. Tenn.Code Ann. § 39-13-204(c). The amendment is not applicable in this case. See Odom, 137 S.W.3d at 585.
I have urged adopting a protocol in which each case would be compared to factually similar cases in which either a life sentence or capital punishment was imposed to determine whether the case is more consistent with “life” cases or "death” cases. See State v. McKinney, 74 S.W.3d at 321 (Birch, J., concurring and dissenting). The current protocol allows a finding proportionality if the case is similar to existing death penalty cases. In other words, a case is disproportionate only if the case under review "is plainly lacking in circumstances consistent with those in similar cases in which the death penalty has been imposed.” Bland, 958 S.W.2d at 665 (emphasis added).
In my view, excluding from comparison that group of cases in which the State did not seek the death penalty, or in which no capital sentencing hearing was held, frustrates any meaningful comparison for proportionality purposes. See Bland, 958 S.W.2d at 679 (Birch, J., dissenting). The majority justifies its decision not to include such cases by stating that it would be inappropriate to review the exercise of prosecutorial discretion. However, I note that in a July 2004 study conducted by the State Comptroller on the costs and the consequences of the death penalty, one of the conclusions was that prosecutors across the state are inconsistent in their pursuit of the death penalty. In my view, this inconsistency contributes to arbitrariness in the imposition of the death penalty. See John G. Morgan, Comptroller of the Treasury, Tennessee’s Death Penalty: Costs and Consequences 13 (July 2004), available at www.comptroller.state.tn.us/orea/reports. .As I stated in my concurring/dissenting opinion in State v. GodLsey, "[t]he scope of the analysis employed by the majority appears to be rather amorphous and undefined — expanding, contracting, and shifting as the analysis moves from case to case.” 60 S.W.3d 759, 797 (Tenn.2001) (Birch, J., concurring and dissenting).
The evidence seized from appellant’s car and home and the samples taken from appellant's person, which were ultimately used in the trial at issue, were seized as a result of the investigation of the Captain D's murders in Nashville and were introduced as evidence in the Captain D’s murder trial.
On appeal of his convictions in the Captain D’s murders, appellant did not challenge warrant 145, authorizing the search of his car, but the Supreme Court's analysis is equally applicable to warrant 145.
Among other things, appellant challenges: (1) the State’s reference to the DNA database as "big, huge” as misleading to the jury; (2) the implication by the State that appellant had committed other murders by referring to the murders in "this county” and “our county;” (3) the implication by the State that appellant failed to testify; (4) the State’s reference to the donor of blood on the shoes of appellant as belonging to the victims; (5) the State’s reference to latex gloves that were found at the crime scene and their connection with appellant; and (6) the State’s "bank of justice analogy” in closing argument that indicated it was the jury’s civic duty to find appellant guilty. Appellant failed to make objections to these alleged instances of prosecutorial misconduct at trial. Appellant’s failure to object constitutes waiver of these issues on appeal. State v. Thornton, 10 S.W.3d 229, 234 (Tenn.Crim.App.1999) (citing Tenn. R.App. P. 36(a)); State v. Green, 947 S.W.2d 186, 188 (Tenn.Crim.App.1997); Little, 854 S.W.2d at 651 (holding that failure to object to prosecutor's alleged misconduct during closing argument waives later complaint). Accordingly, these issues are without merit.
Daryl Keith HOLTON v. STATE of Tennessee and Paul Dennis Reid, Jr. v. State of Tennessee.
Supreme Court of Tennessee, at Nashville.
Feb. 2, 2006 Session.
May 4, 2006.
As Amended on Denial Rehearing June 22, 2006.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Jennifer L. Smith, Associate Deputy Attorney General; William Michael McCown, District Attorney General (Holton); and John W. Carney, Jr., District Attorney General, and Arthur Bieber, Assistant District Attorney General (Reid), for the Appellant, State of Tennessee.
Donald E. Dawson, Post Conviction Defender, and Kelly A. Gleason, Assistant Post-Conviction Defender, Nashville, Tennessee, for the Appellee, Daryl Keith Holton.
Kelly A. Gleason, Assistant Post-Conviction Defender, and Nicholas D. Hare, Assistant Post-Conviction Defender, Nashville, Tennessee, for the Appellee, Paul Dennis Reid, Jr.
[OPINION BY E. RILEY ANDERSON, J., type=majority]
OPINION
E. RILEY ANDERSON, J.,
delivered the opinion of the court,
in which WILLIAM M. BARKER, C.J., and ADOLPHO A. BIRCH, JR., JANICE M. HOLDER, and CORNELIA A. CLARK, JJ., joined.
We granted these appeals to determine whether a post-conviction trial court has the authority to consider petitions that are filed by the Post-Conviction Defender but are not verified under oath or signed by the petitioners. In Holton v. State, the post-conviction trial court entered an order staying Holton’s execution, appointing counsel, and requiring Holton to meet with counsel and a court-appointed mental health expert. In Reid v. State, the post-conviction trial court entered an order staying Reid’s execution, appointing counsel, and staying the post-conviction proceedings. In both cases, the Court of Criminal Appeals denied the State’s application for an extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. After reviewing the records and applicable authority, however, we conclude that the post-conviction trial courts did not have the authority to consider the petitions because they had not been signed or verified under oath and because the Post-Conviction Defender did not establish a proper basis to initiate the proceedings as “next friend.” Accordingly, the post-conviction trial courts’ orders are vacated, and the petitions are dismissed.
BACKGROUND
The appeals in these post-conviction capital cases were consolidated because they involve related questions of law and similar procedural histories. We begin by briefly reviewing the background of each in turn.
Holton v. State
Daryl Holton was convicted of four counts of premeditated first degree murder for killing his four children in 1997. The jury imposed a death sentence for each offense. This Court affirmed the convictions and the death sentences on January 5, 2004, see State v. Holton, 126 S.W.3d 845 (Tenn.2004), and denied rehearing on February 17, 2004.
On April 29, 2005, the Post-Conviction Defender (“Defender”) filed a petition for post-conviction relief challenging Holton’s convictions and death sentences in the Circuit Court of Bedford County, Tennessee. The petition conceded that Holton had not filed a post-conviction petition and had not signed or verified the petition filed by the Defender. The petition alleged, however, that the Defender must “contact every death-sentenced individual in Tennessee to ensure that the individual’s right to post-conviction review occurs in a timely and thorough manner.”
Although the petition was not filed within the one-year statute of limitations, the Defender alleged several concerns about Holton’s mental competency. The petition stated that Holton had refused to meet with the Defender, had not responded to counsel’s letters, had a history of major depression, and was “quite possibly operating under suicidal motivations.” The Defender requested a hearing to determine whether Holton was mentally competent to forgo post-conviction proceedings and whether mental incompetency may have tolled the one-year statute of limitations.
On May 15, 2005, the post-conviction trial court entered an order staying Holton’s execution. After determining that the Defender had a statutory duty to represent Holton, the court entered an order requiring Holton to meet with the Defender and Dr. William Kenner, a court-authorized mental health expert. On July 18, 2005, the post-conviction trial court granted an extension of time for the “filing of a completed [post-conviction] petition.”
On August 8, 2005, the State filed an application for an extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. The State argued that the post-conviction trial court lacked the authority to consider the petition because it had not been signed or verified under oath by Holton. See Tenn. Code Ann. § 40-80-104(d) (2003). The State also argued that the petition had been filed after the one-year statute of limitations had expired. See id. § 40-30-102(a) (2003). The Defender argued that these issues were waived because they had not been raised and preserved by the District Attorney General.
The Court of Criminal Appeals denied an extraordinary appeal after finding that the post-conviction trial court had not “so far departed from the accepted and usual course of judicial proceedings as to require immediate review.” See Tenn. R.App. P. 10. We then granted the State’s application for extraordinary review.
Reid v. State
Paul Dennis Reid, Jr., was convicted of two counts of first degree murder for killing two employees at an ice cream store in Clarksville, Tennessee, in April of 1997. The jury imposed a death sentence for each conviction. This Court affirmed the convictions and the death sentences on May 24, 2005. State v. Reid, 164 S.W.3d 286 (Tenn.2005).
On September 23, 2005, the Defender filed a petition for post-conviction relief challenging Reid’s convictions and death sentences in the Circuit Court of Montgomery County, Tennessee. The petition was not signed by Reid, nor had the allegations in the petition been verified under oath by Reid. The petition asserted that the Defender’s “firmly held opinion” and “good faith belief’ was that Reid was mentally incompetent and unable to verify the petition or otherwise participate in the post-conviction action.
The petition cited mental competency evaluations that had been performed on Reid in prior proceedings, see Reid, 164 S.W.3d at 304r-06, as well as competency evaluations related to Reid’s separate post-conviction petition pending in Davidson County, Tennessee. In that case, the Davidson County Criminal Court required a prima facie showing of mental incompetency before granting a full competency hearing. Although an interlocutory appeal from the Davidson County post-conviction court’s order is now pending before this Court, see Reid v. State, No. M2005-00260-SC-S09-PC, that case is not squarely on point because it involves the issue of whether a post-conviction action may be prosecuted where the petitioner is allegedly mentally incompetent and not the issue of whether a post-conviction proceeding may be initiated without the signature or verification of the petitioner. Moreover, although the Defender filed a motion asking to be appointed as counsel in the present case, the motion was not accompanied by an affidavit of indigency or any allegation that Reid desired counsel.
On September 29, 2005, the trial court granted a stay of Reid’s execution and appointed the Defender as counsel for Reid. The trial court also stayed the action in Montgomery County pending the disposition of Reid’s mental competency claim related to his post-conviction petition in Davidson County, Tennessee.
The State filed an application for an extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. The State argued that the trial court lacked the authority to consider the petition because the petition had not been signed or verified under oath by the petitioner. The State also argued that the trial court failed to make any findings that provided a basis for the Defender to file the petition on behalf of Reid as “next friend” and that there had been no showing of Reid’s mental incompetence.
The Court of Criminal Appeals denied an extraordinary appeal, finding that the post-conviction trial court had not “so far departed from the accepted and usual course of judicial proceedings as to require immediate review.” See Tenn. R.App. P. 10. We granted the State’s application for extraordinary review and thereafter consolidated the appeal with Holton v. State.
ANALYSIS
Whether a post-conviction action may be initiated on behalf of a death-sentenced inmate who does not sign or verify the post-conviction petition due to alleged mental incompetency is a question of first impression for this Court. Thus, the present appeals differ from those in which a petitioner’s effort to withdraw a post-conviction petition resulted in mental competency proceedings. See Pike v. State, 164 S.W.3d 257, 262 (Tenn.2005). In such cases, unlike the present appeals, post-conviction petitioners properly invoked the jurisdiction of the post-conviction trial court, which then had the authority to conduct appropriate hearings. We now turn to the relevant authorities with these distinctions in mind.
Post-Conviction Proceedings
We begin our review by summarizing relevant aspects of the Post-Conviction Procedure Act. See Tenn.Code Ann. §§ 40-30-101 to -313 (2003). “A post-conviction action is commenced by filing, with the clerk of the court in which [a] conviction occurred, a written petition naming the state as the respondent.” Tenn.Code Ann. § 40-30-104(a) (2003).
The petition must be filed “within one (1) year of the date of the final action of the highest state appellate court to which an appeal is takenId. § 40-30-102(a). There are three statutory exceptions to the one-year statute of limitations: 1) when a claim is based on a constitutional right that has been given retroactive application and was not recognized at the time of trial; 2) when a claim is based upon new scientific evidence establishing actual innocence; and 3) when a claim seeks relief from a sentence that was enhanced because of a previous conviction that was subsequently held to be invalid. Id. § 40-30-102(b)(l)-(3).
The petition “shall include all claims known to the petitioner for granting post-conviction relief and shall verify under oath that all such claims are included.” Id. § 40-30-104(d) (emphasis added). The Act further provides:
The petitioner shall include allegations of fact supporting each claim for relief set forth in the petition and allegations of fact explaining why each ground for relief was not previously presented in any earlier proceeding. The petition and any amended petition shall be verified under oath. Affidavits, records or other evidence available to the petitioner supporting the allegations of the petition may be attached to it.
Id. § 40-30-104(e) (emphasis added).
Although post-conviction relief “shall be granted when [a] conviction or sentence is void or voidable because of the abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of the United States,” see id. § 40-30-103 (2003), post-conviction review is not required by constitutional or statutory principles, even in capital cases. See Pike, 164 S.W.3d at 262; see also Serrano v. State, 133 S.W.3d 599, 604 (Tenn.2004). “Like all other inmates, death-sentenced inmates must initiate post-conviction proceedings by filing within the statutorily-prescribed time period a petition seeking post-conviction relief.” Pike, 164 S.W.3d at 262.
The Post-Conviction Procedure Act clearly requires a petitioner to initiate a post-conviction action to seek post-conviction review; the Act does not, however, address whether a post-conviction petition may be filed on behalf of one who has not signed or verified the petition but who is alleged to be mentally incompetent. The Defender seeks to answer this question by arguing that its statutory and ethical obligations allow (and even require) the filing of petitions for post-conviction relief on behalf of death-sentenced inmates even without the inmate’s signature or verification under oath. See Tenn.Code Ann. §§ 40-30-201 to -210 (2003) (“Post-Conviction Defender Commission Act”). We disagree.
Nothing in the Post-Conviction Defender Commission Act allows the Defender to initiate a post-conviction action on behalf of an inmate who has not signed or verified the post-conviction petition. The Post-Conviction Defender Commission Act states in part:
It is the primary responsibility of the post-conviction defender to represent ... any person convicted and sentenced to death in this state who is without counsel and who is unable to secure counsel due to indigency or determined by a state court with competent jurisdiction to be indigent, for the purpose of instituting and prosecuting collateral actions challenging the legality of the judgment and sentence imposed against such person in state court, and who the court determines requires the appointment of counsel.
Tenn.Code Ann. § 40-30-206(a) (2003) (emphasis added). The statute extends only to those who are “unable to secure counsel” and who “the court determines requires the appointment of counsel.” Id. There is no statutory basis upon which to use the Post-Conviction Defender Commission Act as a catapult for standing on behalf of one who has neither signed nor verified a post-conviction petition.
The State, on the other hand, answers this question by suggesting that a post-conviction proceeding may never be initiated on behalf of one who has not signed or verified a petition. Again, we disagree. There are numerous recognized instances in which actions may be brought by a guardian or “next friend” on behalf of those who lack the capacity or competency to protect their own legal interests. See Tenn. R. Civ. P. 17.03 (allowing “next friend” to sue on behalf of an infant or incompetent person). Although the State correctly asserts that the Tennessee Rules of Civil Procedure are inapplicable in post-conviction cases, see Tenn. Sup.Ct. R. 28 § 3(B), “next friend” procedures are not limited to Rule 17.03. See Seals v. State, 23 S.W.3d 272, 274 (Tenn.2000) (noting that a post-conviction petition was filed by “next friend” on behalf of an inmate who was alleged to be mentally incompetent); see also State v. Ross, 272 Conn. 577, 863 A.2d 654, 668 (2005) (applying “next friend” to post-conviction proceedings under common law); Commonwealth v. Haag, 570 Pa. 289, 809 A.2d 271, 279-80 (2002) (applying “next friend” under common law).
Accordingly, given the dearth of explicit authority in Tennessee to resolve the issues before us, we turn to other jurisdictions for guidance.
Collateral Proceedings Initiated by “Next Friend”
In applying federal habeas corpus procedures, the United States Supreme Court has recognized that a “next friend” may “appear in court on behalf of detained prisoners who are unable, usually because of mental incompetence or inaccessibility, to seek relief themselves.” Whitmore v. Arkansas, 495 U.S. 149, 162, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). The Court explained that a “next friend” does not “become a party to the habeas corpus action ... but simply pursues the cause on behalf of the detained person, who remains the real party in interest.” Id. at 163, 110 S.Ct. 1717. The Court emphasized, however, that there are two prerequisites for standing as a “next friend”:
First, a “next friend” must provide an adequate explanation- — such as inaccessibility, mental incompetence, or other disability — why the real party in interest cannot appear on his own behalf to prosecute the action.... Second, the “next friend” must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate ..., and it has been further suggested that a “next friend” must have some significant relationship with the real party in interest.
Id. at 163-64, 110 S.Ct. 1717 (citations omitted); see also Rees v. Peyton, 384 U.S. 312, 314, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966) (establishing standard for allowing petitioner to withdraw petition for certiorari).
In Demosthenes v. Baal, 495 U.S. 731, 110 S.Ct. 2223, 109 L.Ed.2d 762 (1990), the Court concluded that an additional hearing was not required to determine that an inmate’s parents failed to establish “next Mend” status based on mental incompetency. There, the inmate filed but then withdrew a state post-conviction petition after testifying that he elected to withdraw the petition even though he knew he would be executed. After several mental health professionals testified that the inmate was mentally competent, the state post-conviction court concluded that the inmate had made a voluntary and intelligent decision to withdraw his petition. Id. at 732-33, 110 S.Ct. 2223. Although the inmate’s parents then filed a petition for federal habeas corpus relief as the inmate’s “next Mend,” the only additional evidence filed with the petition was an affidavit of a psychiatrist who stated “there is reason to believe this person may not be competent to waive his legal remedies.” Id. at 735-36, 110 S.Ct. 2223. The United States Supreme Court held that the District Court properly denied the request for additional competency proceedings because the additional evidence was “conclusory” and there was an “absence of any ‘meaningful’ evidence of incompetency.” Id. at 736, 110 S.Ct. 2223.
The principles in Whitmore and Demosthenes have been applied in numerous federal cases similar to the case before us. In West v. Bell, 242 F.3d 338 (6th Cir.2001), for instance, attorneys who represented a death-row inmate in state post-conviction proceedings tried to initiate federal habeas corpus proceedings by filing a motion for appointment of counsel and a motion to stay the execution. Although the inmate twice answered “No, Sir,” when asked if he wanted to file a habeas corpus petition, the attorneys sought permission to conduct further investigation into the inmate’s mental competency. Id. at 340-41. After emphasizing that the inmate had not himself initiated proceedings, the Sixth Circuit held that the attorneys had not demonstrated standing under “next friend” principles because they had not shown that the inmate was mentally incompetent:
At most, counsel have shown some conceivable difficulties in [the inmate’s] mental health, but no evidence that ... the prisoner does not have “capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or ... suffer[s] from a mental disease, disorder, or defect which may substantially affect his capacity in the premises.”
Id. at 341 (quoting Rees, 384 U.S. at 314, 86 S.Ct. 1505).
Although not in the same procedural context, this Court cited West with approval in an unpublished order filed on April 22, 2003. State v. Reid, No. M1999-00803-SC-DDT-DD (filed April 22, 2003. In that order, a majority of this Court denied a motion for stay of execution filed by defense counsel on behalf of Paul Dennis Reid, Jr., after Reid indicated that he wanted to withdraw his post-conviction petition in Davidson County. We stated that Reid “clearly indicated that he has no desire to pursue any post-conviction remedies” and that the motion filed by counsel, which included the affidavit of a psychologist, did not “present any truly new factual assertions that call into doubt Mr. Reid’s present capacity to understand his legal position and options or to make a rational choice among these options.” Id. at 3 (citing West, 242 F.3d at 342-43). As noted earlier, however, the Davidson County case with regard to Reid’s mental competency is before this Court in a separate appeal.
Similarly, in Brewer v. Lewis, 989 F.2d 1021 (9th Cir.1993), the Court held that an inmate’s mother had failed to demonstrate “next friend” status because the evidence failed to present “ ‘meaningful evidence that [the inmate] was suffering from a mental disease, disorder, or defect that substantially affected his capacity to make an intelligent decision.’ ” Id. at 1026 (quoting Whitmore, 495 U.S. at 166, 110 S.Ct. 1717)). The Court emphasized that the evidence consisted of affidavits of mental health experts who had never met with or evaluated the inmate and one expert who stated that the inmate’s mental condition “may” have worsened while incarcerated. Id. at 1026-27. The Court also emphasized that four mental health experts had found the inmate mentally competent in the prior two and one — half months. Id.
State supreme courts have reached similar conclusions with respect to “next friend” status. In Ross, for example, the Connecticut Supreme Court applied Whitmore and Demosthenes in concluding that a public defender was not entitled to participate as “next friend” in pursuing collateral review on behalf of an inmate. In that case, the defendant tried to waive collateral review of his convictions and death sentence. The trial court held an extensive hearing and concluded that the defendant had made a knowing, voluntary, and intelligent waiver. The public defender tried to appear as next friend and participate in the competency hearings by asserting additional allegations of mental incompetency. The Court said:
We conclude that the [public defender] has not presented any meaningful evidence that the defendant is incom-petent_ In the absence of such evidence, the [public defender] is not entitled to an evidentiary hearing at which it may attempt to establish the defendant’s incompetence and its standing to appear as the defendant’s next friend under Whitmore ....
Ross, 863 A.2d at 673 (citations omitted); see also Franz v. State, 296 Ark. 181, 754 S.W.2d 839, 840-41 (1988) (overruled on other grounds by State v. Robbins, 339 Ark. 379, 5 S.W.3d 51, 55 (1999) (adopting two-prong test for proceeding as next friend); Haag, 809 A.2d at 278-79 (adopting Whitmore for proceeding as next friend).
Standards in Tennessee
The foregoing principles are consistent with our analogous decisions regarding the mental competency of a post-conviction petitioner. In Seals, 23 S.W.3d at 279, a next friend initiated a post-conviction petition on behalf of an inmate and sought to toll the one-year statute of limitations. Although the “next friend” procedure was not contested in that case, we held that due process requires tolling of the statute of limitations if mental incompetence deprives a petitioner of a reasonable opportunity to pursue post-conviction relief. Id.
We later clarified that in order to toll the statute of limitations for filing a post-conviction petition, a prima facie showing of mental incompetency requires more than conclusions or assertions and instead requires “specific factual allegations that demonstrate the petitioner’s inability to manage his personal affairs or understand his legal rights and liabilities.” State v. Nix, 40 S.W.3d 459, 464 (Tenn.2001). We stated that “[t]he required prima facie showing may be satisfied by attaching to the petition affidavits, depositions, medical reports, or other credible evidence that contain specific factual allegations showing the petitioner’s incompetence.” Id. We further explained:
While affidavits and depositions of mental health professionals may be utilized, they are not essential, and a petitioner may rely upon affidavits and depositions from family members, prison officials, attorneys, or any other person who has knowledge of facts that demonstrate either the petitioner’s inability to manage his personal affairs or the petitioner’s inability to understand his legal rights and liabilities.
Id.
Although not strictly in a post-conviction sense, this Court has adopted similar standards in enforcing the long-existing principle that a mentally incompetent inmate may not be executed under the United States and Tennessee Constitutions. See Van Tran v. State, 6 S.W.3d 257, 262 (Tenn.1999). In Van Tran, we held that a prima facie claim regarding an inmate’s present mental incompetency requires evidence of the inmate’s present mental incompetency and not simply unsupported assertions of mental incompetency. Id. at 269; see also Thompson v. State, 134 S.W.3d 168, 177 (Tenn.2004). As we explained in Van Tran:
[W]e adopt a rule that places the burden on the prisoner to make a threshold showing that he or she is presently incompetent. This burden may be met by the submission of affidavits, depositions, medical reports, or other credible evidence sufficient to demonstrate that there exists a genuine question regarding petitioner’s present competency. In most circumstances, the affidavits, depositions, or medical reports attached to the prisoner’s petition should be from psychiatrists, psychologists, or other mental health professionals.... If the trial court is satisfied there exists a genuine disputed issue regarding the prisoner’s present competency, then a hearing should be held.
6 S.W.3d at 269.
We believe that a similar process is appropriate in determining whether a petition for post-conviction relief may be filed by a “next friend” on behalf of an inmate who has not signed the petition or verified the allegations under oath. A prima facie showing to file a post-conviction petition as “next friend” requires evidence of an inmate’s present mental incompetency “by attaching to the petition affidavits, depositions, medical reports, or other credible evidence that contain specific factual allegations showing the petitioner’s incompetence.” Nix, 40 S.W.3d at 464. Mere assertions or allegations of past or present mental incompetency are not sufficient; instead, the supporting evidence must satisfy the standard required in determining whether mental incompetency may toll the post-conviction statute of limitations. See id. If a prima facie showing is satisfied, and if there is likewise a showing that the putative next friend is acting in the best interests of the petitioner, see Whitmore, 495 U.S. at 166, 110 S.Ct. 1717, additional hearings may be held for a determination of mental competency. Nix, 40 S.W.3d at 464. With these principles in mind, we will examine the petitions filed by the Defender on behalf of Holton and Reid.
Application to Holton v. State
The petition filed by the Defender on behalf of Daryl Holton was insufficient on its face for several reasons. First, the petition was not signed by Holton, and the claims in the petition were not verified under oath by Holton. TenmCode Ann. § 40-30-104(d) and (e). Second, the petition was filed after the one-year statute of limitations had expired. Id. § 40-30-102(a). Finally, the petition did not allege a statutory exception to the statute of limitations. Id. § 40-30-102(b).
In addition, the petition filed by the Defender on behalf of Daryl Holton failed to establish a basis for allowing the Defender to proceed as “next friend.” The Defender’s assertions regarding Holton’s failure to meet with counsel and his failure to return letters fell short of demonstrating that Holton is mentally incompetent. See Nix, 40 S.W.3d at 464. In addition, the trial court did not make findings as to the Defender’s standing to proceed as “next friend.” See Whitmore, 495 U.S. at 166, 110 S.Ct. 1717.
As a result, we hold that the post-conviction trial court lacked the authority to consider the petition filed on behalf of Holton where the petition was not signed or verified by Holton and where the Defender failed to establish a “next friend” basis upon which to proceed. It follows that the post-conviction trial court lacked the authority to enter orders requiring Holton to meet with counsel and a court-appointed mental health expert. We therefore vacate the order and dismiss the petition.
Application to Reid v. State
Likewise, the petition filed by the Defender on behalf of Paul Dennis Reid, Jr., was insufficient on its face. The petition was not signed by Reid, and the claims in the petition were not verified by Reid under oath. Tenn.Code Ann. § 40-30-104(d) and (e).
In addition, the petition filed by the Defender on behalf of Reid failed to establish a basis for allowing the Defender to proceed as “next friend.” Reid has never been found mentally incompetent by any court, despite his history of mental illness. See Reid, 164 S.W.3d at 304-06. Although the petition made reference to mental competency hearings that are ongoing in Reid’s separate post-conviction proceedings in Davidson County, Tennessee, those records are not part of this record and, in any event, do not establish a prima facie case of Reid’s present incompetency in this action. Moreover, the petition filed by the Defender in this case did not make a prima facie showing of Reid’s alleged current mental incompetency, and the trial court did not make any findings as to the Defendant’s “next friend” status. As a result, there was no basis upon which to allow the Defender to proceed on behalf of Reid as “next friend.”
Accordingly, we hold that the post-conviction trial court lacked the authority to consider the petition filed on behalf of Reid where the petition was not signed or verified by Reid and where the Defender failed to establish a “next friend” basis upon which to proceed. We therefore vacate the trial court’s order and dismiss the petition.
CONCLUSION
After reviewing the records and applicable authority, we conclude that the post-conviction trial courts did not have the authority to consider the post-conviction petitions filed by the Defender because they had not been signed or verified under oath by the petitioners and because the Defender did not establish a proper basis upon which to initiate the proceedings as “next friend.” Accordingly, the orders are vacated, and the petitions are dismissed. It appearing that Holton and Reid are incarcerated and indigent, costs of the appeals are taxed to the State.
Paul Dennis REID, Jr. v. STATE of Tennessee.
Supreme Court of Tennessee, at Nashville.
Feb. 2, 2006 Session.
June 26, 2006.
Order on Denial of Rehearing July 20, 2006.
Michael J. Passino, Nashville, Tennessee; and Kelly A. Gleason and Nicholas D. Hare, Assistant Post-Conviction Defenders, Nashville, Tennessee, for Appellant, Paul Dennis Reid, Jr.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Jennifer L. Smith, Associate Deputy Attorney General; Victor S. Johnson, III, District Attorney General; Tom Thurman, Deputy District Attorney General; and Roger Moore, Assistant District Attorney General, for Appellee, State of Tennessee.
Joseph D. Tydings, Washington D.C., and F. Clay Bailey, Nashville, TN, for Amicus Curiae, Counsel for the National Alliance on Mental Illness.
[OPINION BY CORNELIA A. CLARK, J., type=majority]
OPINION
CORNELIA A. CLARK, J.,
delivered the opinion of the court,
in which WILLIAM M. BARKER, C.J., and E. RILEY ANDERSON, and JANICE M. HOLDER, JJ., joined. ADOLPHO A. BIRCH, JR., J., filed a concurring/dissenting opinion.
We granted interlocutory review in this post-conviction capital case to clarify the procedure for determining competency to proceed in a post-conviction action. For the reasons explained herein, we hold that the civil standard for mental incompetence adopted in State v. Nix, 40 S.W.3d 459 (Tenn.2001), applies to a competency determination during post-conviction proceedings. To trigger a hearing on competency, a petitioner must make a prima facie showing of incompetence by submission of affidavits, depositions, medical reports, or other credible evidence. A petitioner bears the burden of proving that he or she is incompetent by clear and convincing evidence. A finding of incompetence requires neither a stay of the post-conviction proceedings nor abeyance of individual issues. A trial court should appoint, if necessary, a “next Mend” or guardian ad litem to pursue the action on behalf of the petitioner. Accordingly, the decision of the trial court is affirmed as modified, and the case is remanded to the trial court for further proceedings consistent with this opinion.
BACKGROUND
In this case, the petitioner, Paul Dennis Reid, Jr., was convicted of the first degree murders of two employees of a Captain D’s restaurant in Donelson. The jury sentenced Reid to death for each of the two murders. Reid also was convicted of especially aggravated robbery for which he received a sentence of twenty-five years to be served consecutively to the two death sentences. This Court affirmed the convictions and sentences. State v. Reid, 91 S.W.3d 247 (Tenn.2002), cert. denied, 540 U.S. 828, 124 S.Ct. 56, 157 L.Ed.2d 52 (2003). Reid subsequently was convicted of the first degree murders of two employees of a Baskin-Robbins ice cream store in Clarksville and three employees of a McDonald’s restaurant in Nashville. Reid received five additional death sentences for these murders. We affirmed the convictions and sentences in the Baskin-Robbins case. State v. Reid, 164 S.W.3d 286 (Tenn.2005). The Court of Criminal Appeals affirmed the convictions and sentences in the McDonald’s case, State v. Paul Dennis Reid, Jr., No. M2003-00539-CCA-R3-DD, 2005 WL 1315689 (Tenn.Crim.App. June 3, 2005), and the direct appeal is currently pending before this Court on automatic review under Tennessee Code Annotated section 39-13-206. In the Baskin-Robbins case, we recently held that the trial court lacked authority to consider a petition for post-conviction relief filed by the Post-Conviction Defender on behalf of Reid where the petition was not signed or verified by Reid and where the Defender failed to establish a “next friend” basis upon which to proceed. Daryl Keith Holton v. State and Paul Dennis Reid, Jr. v. State, Nos. M2005-01870-SC-S10-PD, M2005-02398-SC-S10-PD, - S.W.3d -, 2003 WL 24314330 (Tenn. May 4, 2006).
Reid did not raise the issue of competency during the trial in this case. He subsequently argued that he was incompetent to stand trial in the other two cases. Following competency hearings before each of the other two trials, Reid was found competent to stand trial. These rulings were affirmed on appeal. Reid, 164 S.W.3d at 308; Reid, No. M2003-00539-CCA-R3-DD, 2005 WL 1315689. While the other two appeals were pending, the Court set an execution date of April 29, 2003, in this case. Reid, 91 S.W.3d at 288. Reid’s counsel filed a motion asking this Court to stay the execution to give Reid a full year in which to decide whether to file a post-conviction petition. Counsel expressed concern about Reid’s competence to decide to forego post-conviction review. In an order filed on April 22, 2003, this Court denied the request for a stay, observing that Reid was found competent to stand trial in both of the other two cases after lengthy evidentiary hearings and that Reid’s counsel had failed to present any truly new factual assertions calling into doubt Reid’s present capacity to understand his legal position and options or to make a rational choice among these options.
On April 28, 2003, just hours before his scheduled execution, Reid filed a pro se post-conviction petition seeking relief from the convictions and sentences in this case. The trial court stayed Reid’s execution and appointed the Post-Conviction Defender to represent Reid. On November 30, 2004, Reid’s counsel filed an amended post-conviction petition. The amendment was not verified by Reid but included the following statement of counsel: “Counsel have not requested that Petitioner sign this Amended Petition as required by Tenn.Code Ann. § 40-30-104(d) and Tenn. Sup.Ct. R. 28 § 5(E)(2) due to Counsel’s firmly held opinion that Petitioner is currently incompetent.” Counsel also filed a motion asking the trial court to declare Reid incompetent and to stay the post-conviction proceedings.
On January 10, 2005, the trial court entered an order setting forth a procedure for determining competency to proceed at the post-conviction level. In the order, the trial court adopted the Nix standard for mental incompetence. The order required that Reid’s counsel (1) must establish a prima facie case of incompetency by attaching to an amended petition affidavits, depositions, medical reports, or other credible evidence that contains specific factual allegations demonstrating that Reid meets the Nix standard; (2) must set out those issues that are purely legal in nature and separately enumerate those factual issues that require Reid’s input or assistance; and (3) must explain why Reid’s assistance is necessary on the factual issues and why the necessary information is not available from other sources. The trial court followed Nix by deciding that Reid would bear the burden of proving incompetence by clear and convincing evidence. Finally, the order provided that if Reid was found to be incompetent, the trial court would proceed on those claims that can be resolved without his assistance and hold in abeyance those factually based claims requiring his input until he regains competency.
Reid filed an application for an extraordinary appeal under Rule 10 of the Tennessee Rules of Appellate Procedure challenging the procedure. Both the Court of Criminal Appeals and this Court denied the appeal. On January 17, 2005, counsel for the parties appeared before the trial court for a previously scheduled evidentiary hearing on the post-conviction petition. When the hearing began, Reid’s counsel filed both a motion to continue the matter and, in accordance with the procedure adopted by the trial court, a second amended petition. Reid’s counsel also submitted to the court an affidavit from Dr. Pamela Auble, a neuropsychologist, stating that Reid was incompetent to proceed. The State argued that Reid had not made a threshold showing of mental incompetence.
Without making any findings as to Reid’s present competency, the trial court granted Reid an interlocutory appeal under Rule 9 of the Tennessee Rules of Appellate Procedure from the trial court’s order establishing the procedure for determining competency to proceed on post-conviction. The Court of Criminal Appeals denied interlocutory review. We then granted permission to appeal.
STANDARD OF REVIEW
This appeal presents the following issues of law: (1) what is the proper standard for competency to proceed in a post-conviction action; (2) what threshold showing must be made to trigger a hearing on competency; (3) who bears the burden of proof; and (4) how does a finding of incompetence affect the proceedings. We review issues of law under a de novo standard without according any presumption of correctness to the lower court’s conclusions. See State v. Walton, 41 S.W.3d 75, 81 (Tenn.2001).
ANALYSIS
I. Interlocutory Appeal
As a preliminary matter, the State argues that the procedural questions presented in this appeal do not meet the criteria for interlocutory review under Rule 9 of the Tennessee Rules of Appellate Procedure. Rule 9 lists three non-exclusive factors for determining whether an interlocutory appeal should be granted:
(1) the need to prevent irreparable injury, giving consideration to the severity of the potential injury, the probability of its occurrence, and the probability that review upon entry of final judgment will be ineffective; (2) the need to prevent needless, expensive, and protracted litigation, giving consideration to whether the challenged order would be a basis for reversal upon entry of a final judgment, the probability of reversal, and whether an interlocutory appeal will result in a net reduction in the duration and expense of the litigation if the challenged order is reversed; and (3) the need to develop a uniform body of law, giving consideration to the existence of inconsistent orders of other courts and whether the question presented by the challenged order will not otherwise be reviewable upon entry of final judgment.
Tenn. R.App. P. 9(a).
Noting that the issue of competency to proceed on post-conviction is an issue of first impression in Tennessee, the trial court found that the mere possibility that its procedure could be altered on appeal warranted immediate review of the procedure before its requirements were imposed. The trial court gave the second criterion — the prevention of needless, expensive, and protracted litigation — the greatest weight. The trial court stated:
Capital case post-conviction proceedings are lengthy by their very nature. The preparation for presentation of the petition and the eventual evidentiary hearing often result in a significant investment of time on behalf of petitioner, the State and the trial court. In issues of first impression such as this competency procedure, implementation of a procedure not yet validated by our Supreme Court could be an exercise in futility. If the Court finds that the procedure as a whole or any subpart is unwarranted or should be amended, the post-conviction proceedings were for naught.
Finally, the trial court found that interlocutory review was necessary to establish a uniform body of law, noting again that the competency procedure is an issue of first impression.
Interlocutory appeals to review pretrial orders or rulings are generally “disfavored,” especially in criminal cases. State v. Gilley, 173 S.W.3d 1, 5 (Tenn.2005). In Gilley, we held that the trial court and the Court of Criminal Appeals erred in granting interlocutory review of the trial court’s evidentiary rulings under Rule 404(b) of the Tennessee Rules of Evidence. Id. at 6. In contrast, we recently approved of granting the defendant an interlocutory appeal in a criminal case where there was a need to establish a uniform body of law. See State v. Delawrence Williams, 193 S.W.3d 502 (Tenn.2006) (suppression issue involving whether defendant’s estranged girlfriend was considered “citizen informant” for purposes of information provided for search warrant).
Interlocutory review may be especially appropriate where, as here, issues arise in a capital case for which no procedure is otherwise specifically prescribed. In State v. Reid, 981 S.W.2d 166 (Tenn.1998), we granted interlocutory review to consider procedures adopted by the trial court with regard to notice, examination, and disclosure requirements where a capital defendant intends to introduce expert testimony relating to mental condition as mitigation proof during the sentencing phase of the trial. The circumstances of this appeal are similar to the earlier interlocutory appeal in Reid. In both instances, the trial court exercised its inherent authority to adopt appropriate rules of procedure to address an issue of first impression. See id. at 170. On the issue of post-conviction competency, there is a need to develop a uniform body of law and a need to prevent needless, expensive, and protracted litigation. We therefore conclude that an interlocutory appeal is proper to clarify the standard and procedure for determining competency to proceed in a post-conviction action.
II. Standard for Competency
Competency to proceed in a post-conviction action is an issue of first impression before this Court. To determine the proper standard for competency, we must first examine the nature of the right. It is well established that a defendant has a constitutional right to competency during the trial itself. See Reid, 164 S.W.3d at 306 (holding that to be competent to stand trial a defendant in a criminal case must have the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense). The conviction of a person who is mentally incompetent violates the basic concepts of due process undér the Fourteenth Amendment to the United States Constitution and article I, section 8 of the Tennessee Constitution. Id. At the other end of the spectrum of the criminal process, a prisoner has a constitutional right to competency to be executed. See Van Tran v. State, 6 S.W.3d 257, 266 (Tenn.1999) (holding that a prisoner is not competent to be executed if he lacks the mental capacity to understand the fact of the impending execution and the reason for it). This right is grounded in the Eighth Amendment’s ban on cruel and unusual punishment rather than the Due Process Clause. Id. at 263-64.
These constitutional requirements of competency do not imply a coordinate right on collateral review. We have repeatedly recognized that post-conviction procedures are not constitutionally required. Pike v. State, 164 S.W.3d 257, 262 (Tenn.2005). Many of the rights applicable to trial no longer attach. For example, there is no constitutional right to counsel in post-conviction proceedings, even in capital cases. House v. State, 911 S.W.2d 705, 712 (Tenn.1995).
In Tennessee, the Post-Conviction Procedure Act is a statutory remedy, and the nature and availability of post-conviction relief lies within the discretion of the legislature. Pike, 164 S.W.3d at 262. Neither the Act nor the rules applicable to it address the issue of competency. The Act provides for the appointment of counsel where a petitioner is not represented and is indigent. See Tenn.Code Ann. § 40-30-107(b)(1). We decline to read into the Act, however, a statutory right to competency from this right to counsel. Cf. House, 911 S.W.2d at 712 (holding that provision requiring appointment of counsel does not create statutory right to effective assistance of counsel).
Our conclusion that in post-conviction proceedings there is no constitutional or statutory right to competency does not end the inquiry. Due process concerns may nevertheless be implicated in the post-conviction context where a potential litigant is denied an opportunity for the presentation of claims at a meaningful time and in a meaningful manner. Burford v. State, 845 S.W.2d 204, 208 (Tenn.1992). In Burford, the petitioner found himself caught in a “procedural trap” and unable to initiate litigation despite the approach of the statute of limitations. Id. We concluded that, while not unconstitutional on its face, the statute of limitations was unconstitutional as applied to Burford’s case. Id. at 210.
Three years later, in Watkins v. State, 903 S.W.2d 302 (Tenn.1995), we applied the Burford due process analysis to the issue of whether mental incompetence tolled the post-conviction statute of limitations. We concluded that for these procedural purposes a post-conviction petition should be considered civil in nature and thus subject to the general savings statute. Watkins, 903 S.W.2d at 305. We further held that, even in the absence of a statute tolling the statute of limitations, due process required some reasonable opportunity for post-conviction relief:
Even though the petitioner’s interest is not a fundamental right entitled to heightened due process protection, because a petitioner who was incompetent throughout the limitations period would be denied the opportunity to challenge his conviction in a meaningful manner, the failure to toll the limitations period would deny such a petitioner a fair and reasonable opportunity for the bringing of the petition, and thus, would violate due process.
Id. at 307.
In Seals v. State, 23 S.W.3d 272 (Tenn.2000), we addressed the same issue under the current post-conviction statute of limitations, which specifically includes an anti-tolling provision. We held that the savings statute was inapplicable under the plain terms of the post-conviction statute. Id. at 276. We nevertheless concluded, under Watkins, that due process requires tolling of the statute of limitations where a petitioner is denied the reasonable opportunity to assert a claim in a meaningful time and manner due to mental incompetence. Seals, 23 S.W.3d at 279.
In State v. Nix, 40 S.W.3d 459 (Tenn.2001), we turned to the question left unanswered in Watkins and Seals: what standard of mental incompetence must, a petitioner satisfy before due process requires tolling of the statute of limitations. Emphasizing again that a petitioner has no fundamental right to collaterally attack a conviction and due process requires only that a petitioner be provided an opportunity for the presentation of the claim at a meaningful time and in a meaningful manner, we concluded that the competency standard applied in civil cases in Tennessee satisfies the due process concerns associated with tolling of the post-conviction statute of limitations. Nix, 40 S.W.3d at 464. Under the standard adopted in Nix, a petitioner is incompetent if “he is unable either to manage his personal affairs or to understand his legal rights and liabilities.” Id. at 463.
The State argues that the Nix standard likewise satisfies the due process concerns associated with presentation of claims in post-conviction proceedings. Reid counters that the standard for competency to proceed in a post-conviction action should be whether a petitioner is able to consult with counsel with a reasonable degree of rational understanding. Reid relies on the constitutional right to be competent to stand trial and statutory provisions, such as the limitation to one post-conviction proceeding and the requirement that the petitioner testify when substantial questions of fact are raised. See Tenn.Code Ann. §§ 40-30-102(e), -110(a). Reid also attempts to tie a competency requirement to counsel’s professional obligations under the rules applicable to the Post-Conviction Procedure Act. See Tenn. Sup.Ct. R. 28, § 6(C)(2) (requiring counsel to review the pro se petition, file an amended petition if necessary, “interview relevant witnesses, including petitioner and prior counsel, and diligently investigate and present all reasonable claims”). In arguing for a level of competency commensurate with that required for trial, Reid misconstrues the nature of the right. As discussed above, competency to proceed on post-conviction is neither a constitutional nor a statutory right.
Due process requires only that a petitioner be provided an opportunity for the presentation of claims at a meaningful time and in a meaningful manner. The civil standard of competence is sufficient to meet that requirement. At trial, a defendant must make fundamental decisions that require the advice of counsel but are ultimately personal to the defendant. See, e.g., Momon v. State, 18 S.W.3d 152 (Tenn.1999) (waiver of right to testify). Thus, the necessity for rational consultation is apparent. On post-conviction, the decision-making authority shifts to counsel. See Leslie v. State, 36 S.W.3d 34, 38 (Tenn.2000). Although counsel is required to interview the petitioner and to consult with him “where feasible,” counsel “retains the right to make strategic and tactical decisions — including the determination of which issues are reasonable and should be raised and pursued — based on counsel’s professional judgment.” Id. Through the assistance of counsel, who have access to the appellate record and trial counsel’s files and who operate under an affirmative mandate from this Court to investigate and present all “reasonable claims,” Tenn. Sup.Ct. R. 28, § 6(C)(2), a petitioner is afforded the opportunity for the presentation of claims in a meaningful manner.
Under the civil standard of competence, a petitioner must understand his legal rights and liabilities. Implicit in our holding in Nix is the determination that this level of competency sufficiently provides a petitioner with the opportunity to challenge his or her conviction in a meaningful manner. Due process considerations do not mandate different levels of competency at different stages of post-conviction proceedings. A level of competency sufficient to commence a post-conviction action is sufficient to pursue the matter to conclusion.
We hold that the civil standard of mental incompetence adopted in Nix applies to the determination of whether a petitioner is competent to proceed in a post-conviction action. A petitioner is, therefore, incompetent to pursue post-conviction proceedings only if he is unable either to manage his personal affairs or to understand his legal rights and liabilities.
III. Threshold Showing
Recognizing that mental illness is not the equivalent of mental incompetence, the Court in Nix required a prima facie showing of mental incompetence to warrant a competency hearing. 40 S.W.3d at 463-64. We emphasized that “[Unsupported, conclusory, or general allegations of mental illness” are insufficient to meet the required threshold showing. Id. at 464. We explained:
The required prima facie showing may be satisfied by attaching to the petition affidavits, depositions, medical reports, or other credible evidence that contain specific factual allegations showing the petitioner’s incompetence.... While affidavits and depositions of mental health professionals may be utilized, they are not essential, and a petitioner may rely upon affidavits and depositions from family members, prison officials, attorneys, or any other person who has knowledge of facts that demonstrate either the petitioner’s inability to manage his personal affairs or the petitioner’s inability to understand his legal rights and liabilities.
Id. We recently adopted a similar process for determining whether a petition for post-conviction relief may be filed by a “next friend” on behalf of an inmate who does not sign or verify the petition due to alleged mental incompetency. See Holton, - S.W.3d at -, 2006 WL 1726656 (citing Nix, 40 S.W.3d. at 464).
Consistent with Nix and Holton, we adopt a rule that places the burden on the petitioner to make a threshold showing that he is incompetent to proceed in a post-conviction action. The petitioner must submit a pleading alleging his or her incompetence to proceed and attach thereto affidavits, depositions, medical reports, or other credible evidence that contain specific factual allegations demonstrating either the petitioner’s inability to manage his or her personal affairs or the petitioner’s inability to understand his legal rights and liabilities. If a prima facie showing is made, then a competency hearing should be held. In preparation for the competency hearing, the trial court may enter a scheduling order requiring the parties to provide notice of any expert witnesses and to provide a written report of the expert’s opinions at a designated time prior to the hearing.
IV. Burden of Proof
Tennessee Code Annotated section 40 — 30—110(f) provides that at a post-conviction evidentiary hearing “[t]he petitioner shall have the burden of proving the allegations of fact by clear and convincing evidence.” Citing this general burden of proof imposed by the post-conviction statute, we held in Nix that at a competency hearing a petitioner bears the burden of proving by clear and convincing evidence that the statute of limitations should be tolled for incompetence. 40 S.W.3d at 464. The State argues that there is no justification for departure from the clear and convincing standard for purposes of a hearing to determine competency to proceed in a post-conviction action. We agree.
We find no merit in Reid’s contention that neither party should bear the burden of proof at a competency hearing. Reid suggests that the intent of the legislature to recognize competency as a non-adversarial concept is evidenced by a recent amendment to the statute governing competency evaluations in criminal matters, which provides:
During the post-conviction stage of a criminal proceeding, if it is believed that a defendant is incompetent to assist counsel in preparation for, or otherwise participate in, the post-conviction proceeding, the court may, upon its own motion, order that the defendant be evaluated on either an outpatient or inpatient basis, as may be appropriate. If the defendant is indigent, the amount and payment of the costs for any such evaluation shall be determined and paid for by the administrative office of the courts. If the defendant is not indigent, the cost of the evaluation shall be charged as court costs. If the evaluation cannot be done on an outpatient basis and if it is necessary to hospitalize the defendant in a department facility, such hospitalization shall not be for more than thirty (30) days and shall be subject to the availability of suitable accommodations. Any costs incurred by the administrative office of the courts shall be absorbed within the current appropriation for the indigent defense fund.
Tenn.Code Ann. § 33-7-301(a)(4) (Supp. 2005).
Reid’s reliance on this provision is misplaced. When construing statutes, legislative intent is derived from the plain and ordinary meaning of the statutory language. Hickman v. State, 153 S.W.3d 16, 22 (Tenn.2004). The amendment addresses neither the standard of competency nor the procedure for determining competence. The statute’s primary purpose is to clarify the source of funding for competency evaluations in post-conviction- proceedings. While also authorizing a trial court, on its own motion, to order a mental health evaluation during post-conviction proceedings, nothing in the language of the statute indicates that the legislature intended competency to be adjudicated -without a burden of proof.
We also reject Reid’s alternative argument that, if a petitioner must bear the burden of proving incompetence, it should be by a preponderance of the evidence. The preponderance standard applies to the issue of competency to stand trial, Reid, 164 S.W.3d at 307, and the issue of competency to be executed. Van Tran, 6 S.W.3d at 270-71. As we explained above, however, these constitutional rights are distinguishable from competency to proceed in a post-conviction action.
Relying on Howell v. State, 151 S.W.3d 450 (Tenn.2004), Reid argues that imposing a clear and convincing standard would violate due process. In Howell, this Court addressed the proper burden of proof where a petitioner for the first time, in either an initial petition for post-conviction relief or in a motion to reopen post-conviction proceedings, is able to raise a claim of mental retardation to avoid capital punishment under Van Tran v. State, 66 S.W.3d 790 (Tenn.2001), and Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). This Court noted that under current law a defendant who raises the issue of mental retardation at trial has only to prove the claim by a preponderance of the evidence. Howell, 151 S.W.3d at 463 (citing Tenn.Code Ann. § 39-13-203(c)). This Court held:
As Van Tran and Atkins make clear, mentally retarded individuals have a constitutional right not to be executed. We recognize that our holding today is at odds with the standard set out in Tennessee Code Annotated section 40-30-117. However, were we to apply the statute’s “clear and convincing” standard in light of the newly declared constitutional right against the execution of the mentally retarded, the statute would be unconstitutional in its application. Therefore, in light of the fact that the petitioner could not have litigated his claim at any earlier proceeding, we hold that at an evidentiary hearing, he will have the opportunity to prove mental retardation by preponderance of the evidence.
Howell, 151 S.W.3d at 465 (footnote omitted).
Howell is distinguishable. The issue of the constitutional right of a mentally retarded individual not to be executed is the same whether it is raised at trial or on post-conviction. Accordingly, the burden of proof should not differ depending upon whether the defendant makes his claim of retardation at trial or on post-conviction. Reid’s claim of incompetency to proceed with his post-conviction proceeding is not analogous to Howell’s claim of retardation because there is no constitutional right to competency during post-conviction proceedings. Similarly, the issue of competency to stand trial is separate and distinct from the issue of competency to proceed in a post-conviction action. Therefore, any disparity between the burden placed on defendants with respect to their competency to be tried and/or executed and the burden placed on petitioners alleging incompetency to proceed with a post-conviction action does not raise due process concerns.
We are guided by our treatment of the burden of proof in the closely analogous tolling context. For a petitioner alleging that the post-conviction statute of limitations should be tolled, the consequences of an erroneous determination of competence are significant in that the petitioner will be precluded from presenting his or her claims. Nevertheless, we have concluded that the clear and convincing standard is appropriate in this context. See Nix, 40 S.W.3d at 464. After the timely filing of a post-conviction petition, the consequences of an erroneous determination of competence are comparatively less significant because, while the manner of the presentation of the claims may be affected, the claims themselves are not precluded. If the clear and convincing standard is adequate to ensure due process in the tolling context, then we deem it proper for purposes of the post-conviction proceeding itself. Consistent with Nix, we therefore conclude that at a competency hearing a petitioner bears the burden of proving by clear and convincing evidence that he or she is incompetent to proceed in a post-conviction action.
Y. Effect of Finding of Incompetence
Finally, we must determine how a finding of incompetence will affect the post-conviction proceedings. Under the procedure adopted by the trial court in this case, purely legal claims and factual claims that do not require the petitioner’s input would proceed. Factual claims that require the petitioner’s input would be held in abeyance pending the petitioner’s return to competency, at which time such claims could be raised in a motion to reopen. This type of bifurcated approach has been adopted in several states. See, e.g., Carter v. Florida, 706 So.2d 873 (Fla.1997); Council v. Catoe, 359 S.C. 120, 597 S.E.2d 782 (2004); State v. Debra A.E., 188 Wis.2d 111, 523 N.W.2d 727 (1994).
Neither the State nor Reid supports this approach. Reid correctly points out that the procedure adopted by the trial court in this case, which stays some claims and proceeds with others, would create a great deal of uncertainty and overly complicate an “already labyrinthine” process, especially in light of the statute of limitations under the federal habeas statute. Moreover, incompetency is not one of the limited grounds for reopening a post-conviction proceeding. See Tenn.Code Ann. § 40-30-117.
We do not agree with Reid, however, that a stay should apply to all claims. Given that the purpose of post-conviction proceedings is to obtain relief from an unconstitutional conviction or sentence, a stay of the proceedings could be harmful to a petitioner by causing him or her to suffer from the delay of meritorious claims. At the same time, permitting collateral review to proceed despite a petitioner’s. incompetence advances, the interest of the State in the expeditious administration of the criminal justice system. See Burford, 845 S.W.2d at 207 (noting that preventing the litigation of stale and groundless claims is the governmental interest represented by post-conviction statute of limitations). Both the petitioner and the State have an interest in resolving claims while witnesses are available and their memories of the events are fresh. See id. A stay of the proceedings advances neither the interest of the State nor, to the extent the claims presented are valid, the interest of the petitioner.
We agree, therefore, with the State that a finding of incompetence requires neither a partial nor complete stay of the proceedings. Instead, the trial court should appoint, if necessary, a “next friend” or guardian ad litem to pursue the action on behalf of the petitioner. Such a procedure is consistent with our recent decision in Holton allowing a “next friend” to initiate a post-conviction action on behalf of an incompetent petitioner. We noted that in applying federal habeas corpus procedures, the United States Supreme Court has recognized that a “next friend” may “‘appear in court on behalf of detained prisoners who are unable, usually because of incompetence or inaccessibility, to seek relief themselves.’” Holton, - S.W.3d at -, 2006 WL 1726656 (quoting Whitmore v. Arkansas, 495 U.S. 149, 162, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990)). As explained in Whitmore, a “next friend” does not “become a party to the habeas corpus action in which he participates, but simply pursues the cause on behalf of the detained person, who remains the real party in interest.” 495 U.S. at 163, 110 S.Ct. 1717. In that sense, a “next friend” resembles a guardian ad litem who prosecutes or defends a case from start to finish on behalf of another. Morgan v. Potter, 157 U.S. 195, 198, 15 S.Ct. 590, 39 L.Ed. 670 (1895). The “next friend” may challenge a criminal judgment on behalf of another if it is shown that “the real party in interest is unable to litigate his own cause due to mental incapacity, lack of access to court, or other similar disability.” Whitmore, 495 U.S. at 165, 110 S.Ct. 1717 (emphasis added). Thus, while mental incompetence may be a basis for allowing a “next friend” to initiate a post-conviction action, it does not require cessation of the proceedings.
CONCLUSION
We affirm as modified the ruling of the trial court regarding the procedure for determining competency to proceed in a post-conviction action. We remand the case to the trial court for further proceedings consistent with this opinion.
It appearing that the petitioner, Paul Dennis Reid, Jr., is indigent, costs of this appeal are taxed to the State of Tennessee.
ADOLPHO A. BIRCH, JR., J., filed a concurring/dissenting opinion.
[OPINION BY ADOLPHO A. BIRCH, JR., J„ type=concurring-in-part-and-dissenting-in-part]
ADOLPHO A. BIRCH, JR., J„
concurring in part and dissenting in part.
I concur in the majority’s holding that the procedural questions presented by this appeal meet the criteria for interlocutory review under Rule 9 of the Tennessee Rules of Appellate Procedure. The standard and procedure for determining competency to proceed in a post-conviction action is one of first impression. Because this is an issue certain to recur, granting this interlocutory appeal will fulfill the need to develop a uniform body of law in this area. Furthermore, capital cases tend to be, by their very nature, factually, legally and procedurally complex. This case should not proceed without certainty as to the standard for competency. Also, the protocol should be established should competency be demonstrated. Without these determinations being made in advance much time and many resources will be wasted. Accordingly, interlocutory review is appropriate to prevent needless, expensive, and protracted litigation.
I also concur with the Court’s holdings that (1) before a competency hearing is warranted, a petitioner must make a prima facie showing of incompetence, not just mental illness, (2) once this threshold is established, the burden of proof for showing incompetence should fall on the petitioner, and (3) the burden of proof must rise to the level of “clear and convincing” evidence, as we decided in State v. Nix, 40 S.W.3d 459 (Tenn.2001).
As to the standard adopted by the Court for determining competency, and the order of the proceedings once a determination of incompetency is made, however, I respectfully dissent.
The majority holds that a petitioner is incompetent to pursue post-conviction proceedings “only if he is unable either to manage his personal affairs or to understand his legal rights and liabilities.” This is the same standard applied by the Court in Nix. The issue in Nix was whether the civil standard of competency was sufficient for purposes of tolling the post-conviction statute of limitations. I agreed that this standard was sufficient in that circumstance.
The standard adopted in Nix is not sufficient, in my view, when the question is whether a petitioner is competent to prosecute a timely filed petition to its conclusion. Rather, in these circumstances, courts should apply a standard of eompe-tency that also considers whether the petitioner has the ability to consult with counsel with a reasonable degree of rational understanding. As I noted in Van Tran v. State, 6 S.W.3d 257, 274-77 (Tenn.1999), Birch, J., concurring in part and dissenting in part, I believe that — in capital case proceedings particularly — principles of due process and reasonable standards of public decency and propriety require that standards for determining competency include a petitioner’s ability to assist counsel.
Although I recognize that the right to seek post-conviction relief — and the accompanying right to representation by counsel during post-conviction proceedings — is statutory, not constitutional, post-conviction proceedings accord relief where a conviction has been obtained through the abridgment of an underlying state or federal constitutional right. This Court has recognized that, the Legislature having seen fit to accord a post-conviction procedure, due process requires it should be administered in such a way as to allow presentation of claims at a meaningful time and in a meaningful manner. Burford v. State, 845 S.W.2d 204, 208 (Tenn.1992). If the petitioner is not able to consult with counsel with a reasonable degree of rational understanding, I fail to see how a determination can be made on whether that petitioner “understands his legal rights and liabilities.” It seems to me that the two concepts are inextricably intertwined. To suggest that the inability of a post-conviction petitioner to consult with counsel does not impact the “meaningful manner” in which the post-conviction hearing is conducted is unreasonable.
Furthermore, by providing a right to post-conviction relief for abridgment of state or federal constitutional rights, and the right to counsel in such proceedings, the Legislature has recognized the important role that the post-conviction process plays in promoting fairness in the criminal justice system. I believe the ability to rationally consult with counsel is an essential part of that process. See Rohan v. Woodford, 334 F.3d 803, 807-13 (9th Cir.2003), cert. denied 540 U.S. 1069, 124 S.Ct. 809, 157 L.Ed.2d 732 (defining competency as including the ability to communicate rationally with counsel); Carter v. State, 706 So.2d 873, 875 (Fla.1997) (defining competency to include the ability to competently consult with counsel); People v. Owens, 139 Ill.2d 351, 151 Ill.Dec. 522, 564 N.E.2d 1184, 1188 (1990) (defining competency as including the ability to communicate in a rational manner with counsel); State v. Debra A.E., 188 Wis.2d 111, 523 N.W.2d 727, 732 (1994) (defining competency as the ability to assist counsel or to make decisions committed by law to the defendant with a reasonable degree of rational understanding). Accordingly, I would adopt a standard of competency that requires consideration of a petitioner’s ability to rationally consult with counsel.
Additionally, where a petitioner is shown to be incompetent, I would stay the post-conviction proceedings. Unlike the majority, I am not convinced that the petitioner’s due process right to present claims in a meaningful manner will be protected by the appointment of a “next friend” to pursue the action.
In Tennessee, convicted petitioners are limited to one opportunity to pursue state collateral review. Thus, a petitioner should be afforded the opportunity to litigate all claims fully and thoroughly. Any impediment to a thorough post-conviction review — specifically for a petitioner who is legally incompetent — undermines the integrity of the review process. A petitioner’s incompetency could obscure valid claims of which a “next friend” is unaware. The incompetent petitioner’s inability to convey relevant information, at the very least, inhibits the petitioner’s effective participation in the evidentiary hearing involving the claims that are known. If a petitioner (or, in the case of an incompetent petitioner, the “next friend”) fails to raise a particular issue in the first post-conviction claim because he or she is unaware of the issue, or fails to support a legal claim with a crucial fact due to incompetency, any later attempt to raise the issue will likely be foreclosed. See TenmCode Ann. § 40-30-106® (providing for dismissal of post-conviction claims where the claims could have been — but were not — raised in a prior proceeding, or where the claims have been “previously determined”)- Furthermore, the grounds for reopening a previously filed post-conviction petition are very narrow. Reopening a post-conviction petition is permissible only under the limited circumstances set out in Tennessee Code Annotated section 40-30-117. Significantly, the incompetence of a petitioner during a prior post-conviction proceeding is not a basis for reopening. Thus, proceeding on a post-conviction petition with a “next friend” presents a very great risk that an incompetent petitioner may forever lose his or her ability to raise a potentially valid claim. I feel this risk is too high, particularly in capital cases where the loss of a valid claim has irrevocable consequences. Thus, I would stay the proceeding.
In my view, a stay of the proceeding is preferable to the bifurcated approach adopted by the trial court of proceeding on purely legal claims and factual claims that do not require the petitioner’s input, while holding in abeyance factual claims that require the petitioner’s input. Despite its adoption in several states, this bifurcated approach also ignores the reality that an incompetent petitioner — by virtue of his or her inability to manage his or her personal affairs, understand his or her legal rights and liabilities, or rationally consult with counsel — risks forever losing the right to raise potentially valid claims through no fault of his or her own. Accordingly, I believe the only principled way to insure that an incompetent petitioner’s claims are preserved is to stay the proceedings until competency is restored or the sentence is served.
CONCLUSION
To summarize, I concur in the majority’s conclusion that interlocutory review is appropriate. I also concur in the majority’s holding that requires a prima facie showing of incompetence, that the burden of proof for showing incompetence falls on the petitioner, and that burden of proof is to show incompetence by “clear and convincing” evidence. I dissent from the majority’s adoption of a standard that does not require consideration of whether a petitioner is able to rationally consult with counsel and that does not stay the proceedings upon a finding of incompetence.
ORDER
PER CURIAM.
Paul Dennis Reid, Jr., by and through counsel, has filed a petition to rehear the opinion of this Court filed on June 26, 2006. Upon due consideration, the petition is DENIED.
Justice Birch continues to adhere to the views expressed in his initial concurring and dissenting opinion.
.The issue in Van Tran concerned the standard for determining competency to be executed.
The Court denied Reid’s Petition for Rehearing on direct appeal on December 19, 2002. Under Tennessee Code Annotated section 40-30-102(a) (2003), the one-year statute of limitations for post-conviction actions begins on the "date of the final action of the highest state appellate court to which an appeal is taken.”
In adopting a cognitive test for determining competency to be executed, rather than the more stringent assistance test that is applicable when determining competency to stand trial, we observed that “once the conviction is final, there is a lessened need for a defendant to assist in his or her defense given the availability of both state and federal collateral review of trial errors, and the expansion of the right to competent counsel at trial.” Id.
In House, we cited with approval language in Murray v. Giarratano, 492 U.S. 1, 10, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989), "'de-clin[ing] to read either the Eighth Amendment or the Due Process Clause to require yet another distinction between the rights of capital case defendants and those in noncapital cases.’” 911 S.W.2d at 712.
Tenn.Code Ann. §§ 40-30-101 et seq.
Tenn.Code Ann. § 28-1-106.
Tenn.Code Ann. § 40-30-102(a).
Amicus Curiae, Counsel for the National Alliance on Mental Illness, advocates a similar standard and suggests as guidance the standard for determining competency of a petitioner to withdraw a post-conviction petition in a capital case, namely: "whether the petitioner possesses the present capacity to appreciate the petitioner's position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether the petitioner is suffering from a mental disease, disorder, or defect which may substantially affect the petitioner’s capacity.” Tenn. S.Ct. R. 28, § 11(B)(1). The standard in Rule 28, section 11(B)(1), which parallels that adopted by the United States Supreme Court in Rees v. Peyton, 384 U.S. 312, 314, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966), is limited, however, to the unique circumstances involved when a petitioner in a capital case seeks to withdraw an already-filed post-conviction petition and waive further post-conviction relief.
The clear and convincing standard also applies to motions to reopen post-conviction proceedings. Tenn.Code Ann. § 40-30-117(a)(4).
Amicus Curiae also proposes the preponder-anee standard.
The trial court has not yet found that Reid has made a prima facie case of incompetency, and Reid requests in his brief that this Court "find sufficient evidence of a prima facie case prior to remand to the [trial] court.” Since the trial court has not yet made findings of fact on this issue, we decline to grant Reid’s request.
Both Reid and Amicus Curiae rely on Rohan ex rel. Gates v. Woodford, 334 F.3d 803 (9th Cir.2003), in which the Ninth Circuit Court of Appeals held that a district court must stay capital habeas proceedings during a petitioner’s incompetence, but that case is inapposite. The ruling rested on the premise that the federal habeas statute incorporates a statutory right to competence. Id. at 814. We have declined to find such a statutory right under our state post-conviction statute.
See Tenn.Code Ann. § 40-30-103 (2003).
Tenn.Code Ann. §§ 40-30-101 (2003) et seq.
Tenn.Code Ann. 40-30-107(b)(1) (2003).
I recognize that Owens may be distinguishable on the basis that Illinois recognizes the right to effective assistance of post-conviction counsel. People v. Johnson, 192 Ill.2d 202, 248 Ill.Dec. 926, 735 N.E.2d 577, 580 (2000) (post-conviction counsel must provide at least "a reasonable level of assistance."). Thus far, this Court has declined to demand even this low standard from post-conviction counsel. See House v. State, 911 S.W.2d 705, 712 (Tenn.1995) (declining to recognize a constitutional or statutory right to effective assistance of counsel in post-conviction proceedings). Since House was decided, however, the Court has seen fit to adopt a rule specifically requiring counsel "to review the pro se petition, file an amended petition asserting other claims which petitioner arguably has or a written notice that no amended petition will be filed, interview relevant witnesses, including petitioner and prior counsel, and diligently investigate and present all reasonable claims [,]” and to formally certify such action to the trial court. Tenn. Sup.Ct. R. 28, § 6(C)(2) & (3). Implicit in these requirements is an assumption that there will be meaningful communication between counsel and the petitioner.
See generally Richard J. Bonnie, Mentally Ill Prisoners on Death Row: Unsolved Puzzles for Courts and Legislatures, 54 Cath. U.L.Rev. 1169 (2005) (defining competency to include an ability to assist counsel in the post-conviction proceedings).
Tenn.Code Ann. § 40-30-102(c) (2003).
The majority recognizes this limitation, but fails to suggest a solution to the dilemma in which this places a formerly incompetent petitioner who has failed to raise or factually support a previously-raised issue.
In the capital post-conviction context, the State’s interests are no more prejudiced by a stay of all claims than by a stay of some, since execution cannot proceed until all claims are resolved.
In the case of a capital case petitioner, such a stay would clearly preclude execution until competency is restored.
STATE of Tennessee v. Paul Dennis REID, Jr.
Supreme Court of Tennessee, at Nashville.
Oct. 6, 2006 Session.
Dec. 27, 2006.
Rehearing Denied Jan. 17, 2007.
Thomas F. Bloom, Nashville, Tennessee, for the appellant, Paul Dennis Reid, Jr.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Michelle Chapman Mclntire, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Kathy Morante, Tom Thurman, Roger Moore, Grady Moore, Assistant District Attorneys General, for the Appellee, State of Tennessee.
[OPINION BY GARY R. WADE, J., type=majority]
OPINION
GARY R. WADE, J.,
delivered the opinion of the court,
in which WILLIAM M. BARKER, C.J., JANICE M. HOLDER, and CORNELIA A. CLARK, JJ., joined. ADOLPHO A. BIRCH, JR., SP. J., concurred in part and dissented in part.
The defendant, Paul Dennis Reid, Jr., was convicted of three counts of premeditated murder, three counts of felony murder, one count of attempted murder, and one count of especially aggravated robbery. The trial court merged each of the felony murder convictions with the corresponding premeditated murder convictions. The jury sentenced the defendant to death based upon four aggravating circumstances, see Tenn.Code Ann. § 39-13-204(i)(2), (6), (7), (12) (Supp.1996), and further found that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt, see Tenn.Code Ann. § 39-13-204(g)(l) (Supp. 1996). We hold that (1) the trial court did not err by finding the defendant competent to stand trial; (2) the trial court did not err by admitting the testimony of the defendant’s former employer; (3) the trial court did not err by denying the motion to limit proof regarding the defendant’s financial condition; (4) the trial court did not err by refusing to recuse itself from the case; (5) the trial court did not err by allowing the State to introduce evidence of the murders at the Captain D’s restaurant to establish the “mass murder” aggravating circumstance; and (6) the defendant’s sentences of death are not invalid under the mandatory review criteria of Tennessee Code Annotated section 39-13-206(c)(1). As to the remaining issues, we agree with the conclusions reached by the Court of Criminal Appeals. The relevant portions of its opinion are appended. The judgment of the Court of Criminal Appeals is, therefore, affirmed.
The defendant, Paul Dennis Reid, Jr., was indicted for three counts of premeditated murder, three counts of felony murder during the perpetration of a robbery, one count of attempted first degree murder, and one count of especially aggravated robbery.
Guilt Phase of Trial
On March 23, 1997, Ronald Santiago, Andrea Brown, Robert Sewell, and J.G., employees of a McDonald’s restaurant on Donelson Pike in Davidson County, Tennessee, had just completed their night shift when the defendant forced his way into the restaurant, ordered them into the office, and demanded money. After Santiago, the manager, handed over the contents of the restaurant safe, the defendant directed the employees into a storage area and ordered them to lie on the floor. He then fired two shots each into the heads of Brown, Santiago, and Sewell. When the defendant attempted to shoot G., however, the gun malfunctioned. G. struggled and the defendant drew a knife and stabbed him repeatedly. G. stopped fighting, feigned death, and when the defendant left, was able to telephone for help. Santiago and Sewell died at the scene. Brown died later at the hospital.
At trial, G. testified that on the night of the shooting he and Robert Sewell were leaving the restaurant when they were confronted by a man armed with a small, silver handgun and carrying a bag under his arm. G. recalled that the man, whom he later identified as the defendant, said something in English. Santiago, who was in the doorway of the restaurant and overheard the comment, translated into Spanish, informing G. that the defendant had ordered them back into the restaurant. When the three men returned to the restaurant, the defendant demanded the money from the safe and placed the contents into his bag. G. recalled that the defendant then directed the employees into a storage area where he shot Sewell, Santiago, and Brown execution-style. The defendant then attempted to shoot G., but the gun malfunctioned. G. fought the defendant but was overpowered and stabbed in the stomach. As G. fell to the floor, the defendant stabbed and kicked him repeatedly. The defendant discontinued the attack only when G. pretended to be dead. Although badly injured, G. was able to telephone 911 after the defendant left. The police arrived minutes later and G. was taken to the hospital by ambulance.
Dorothy Carter, the dispatcher who answered the 911 call, testified that she could hear only groans and mumbling. Although she was unable to communicate with the caller, she nevertheless dispatched both the police and an ambulance to the restaurant.
Detective Mike Rolland, who investigated, found no fingerprints, shoe prints, or other physical evidence linking the defendant to the crime scene. He and other officers found six Remington .25 caliber automatic cartridge casings inside the restaurant. Testing established that the casings matched the .25 caliber bullets recovered from the three murder victims.
Detective Pat Postiglione testified that G. worked with a police sketch artist in an effort to develop a composite drawing of the suspect. G. had described the mustached perpetrator as twenty-nine to thirty years old, tall, thin, and possibly of Hispanic descent, with long hair only partially covered by his baseball cap. Detective Postiglione confirmed that during the investigation, G. viewed more than three hundred photographs of potential suspects, eventually identifying the defendant some four months after the shootings.
Other testimony established that prior to the crimes the defendant had moved from Texas to Nashville to pursue a career in country music. He obtained employment at a Shoney’s restaurant, where M.R. served as manager. R. testified that the defendant worked at the Shoney’s until February of 1997, only weeks before the shootings. He stated that he next saw the defendant in June of 1997 when the defendant unexpectedly arrived at his residence. R. recalled that the defendant had in his possession a small caliber automatic handgun and a knife that was approximately eight to nine inches long.
D.T., a former co-worker of the defendant, testified that in January 1997, he overheard the defendant, who was experiencing financial difficulties, speak of robbing a fast food restaurant at night, when there would be no witnesses. T. recalled that the defendant asked him for help in procuring a gun. The defendant made similar comments to another former co-worker, J.P., and explained that robbery was an easy way to make money. P. testified that the defendant-had also solicited his assistance in an effort to acquire a gun.
The proof established that approximately eight to ten weeks before the crimes, R.B. sold the defendant two .25 caliber automatic handguns. One was nickel-plated with black handle grips and the other was nickel-plated with pink handles. B. testified that he gave the defendant a box of ammunition in a green and yellow box as a part of the transaction.
Agent Tommy Heflin of the Tennessee Bureau of Investigation, who was familiar with ammunition for handguns, testified that the bullets recovered from the bodies of the victims were Remington brand. Agent Heflin confirmed that Remington ammunition was packaged in a green and yellow box.
Sentencing Phase
After the jury returned guilty verdicts and during the penalty phase of the trial, Assistant District Attorney Brian Johnson of Harris County, Texas, testified that the defendant had been convicted of aggravated robbery in his state in 1984. Walt Draper of the Davidson County Criminal Court Clerk’s Office testified that the defendant had been convicted of two counts of first degree murder and one count of aggravated robbery on April 14, 1999. John Carney, Jr., District Attorney General for the Nineteenth Judicial District, testified that on September 22, 1999, the defendant had been convicted of two counts of first degree murder, two counts of especially aggravated kidnapping, and one count of aggravated robbery. The parties stipulated that each of these crimes involved the use of violence to the person.
Detective Postiglione pointed out the similarities between the crimes in this case and those that the defendant had committed earlier at a nearby Captain D’s restaurant. According to the officer, the two separate criminal episodes took place at fast food restaurants. Both occurred on a Sunday while the restaurants were closed. In each instance, the restaurants had been locked following the crimes. In addition, there was no sign of.forced entry at either restaurant. The defendant had used a small caliber weapon and in each incident, the victims were forced to lie face down in an isolated area of the restaurant before they were murdered. Each of the murder victims suffered two gunshot wounds to the head. Detective Postiglione testified that the modus operandi in each case was unlike any other that had been used in Davidson County in at least fifteen years.
Robert Sewell’s sister, C.C., testified that the death of her twenty-three-year-old brother had affected their family “in every way.” She stated that her father was too angry to attend the trial and that her grief-stricken mother was simply unable to testify. Another sister, B.S., confirmed her mother’s distressed emotional state, explaining, for example, that she could no longer prepare the family meals.
I.R., the widow of Ronald Santiago, testified that both she and her daughter suffered extensively after her husband’s death. Santiago’s brother, J.P., testified that his family had been devastated by the experience. He explained that their mother was unable to attend the trial because of poor health.
D.B. testified that his seventeen-year-old daughter, Andrea Brown, attended Hume-Fogg High School, where she was an excellent student with many friends. His daughter had performed volunteer work at a homeless mission and aspired to be a chef. Brown, who believed he could not recover emotionally from his daughter’s death, stated that he had kept both her room and her car, which was purchased on the day before her murder, exactly as they had been at the time of the shooting.
Dr. Xavier Amador, a witness for the defense, diagnosed the defendant as suffering from chronic paranoid schizophrenia. It was his opinion that the defendant experienced delusions that he was under constant government surveillance. Dr. Amador learned from the family members of the defendant that the defendant had suffered from delusions nearly all of his adult life and believed that he had been selected for a secret governmental mission which required constant surveillance. Dr. Amador testified that the defendant, who had declared his intention to become a lawyer when “this is all over,” believed that the government surveillance team would take care of his legal problems. The defendant was also diagnosed with anosognosia, a symptom of psychosis in which a person with a brain injury compulsively attempts to prove that he is free of a mental illness. Dr. Amador found that the defendant’s brain had been “broken” by a series of head injuries as a child.
Dr. Pamela Auble, a neuropsychologist, examined the defendant, concluding that he experienced difficulty with language skills, lacked reasoning in complicated situations, and had lost motor skills as a result of brain injury. It was her opinion that the defendant did, in fact, suffer from delusions that he was under government surveillance. She explained that it was the defendant’s belief that the inmate in the adjacent cell was a government agent assigned to either kill him or drive him crazy. Dr. Auble determined that the defendant was suffering from a psychotic disorder caused by his general medical condition, that he had a cognitive disorder which was caused by his previous head injuries, and that he was not malingering. It was her opinion that the psychotic and cognitive disorders had a “significant impact” on the defendant’s criminal acts. On cross-examination, however, Dr. Auble acknowledged her awareness that the defendant had malingered in the past and that he had lied to others about statements she had made to him. She conceded that his crimes required planning and were not the result of impulse.
Patricia Allen, a language pathologist at Vanderbilt Medical Center, evaluated the defendant at the request of Dr. Auble. Upon reviewing the defendant’s medical and school records, she learned that he had a chaotic childhood, living alternately with his mother, grandmother, and father. She stated that the defendant’s home environment hampered the development of normal speech and language skills. Allen confirmed that the defendant had suffered multiple head injuries as a child, testifying that in separate incidents, he had been hit in the back of the head with a brick, had fallen off of a bicycle, and had been hit by a car. She learned that the defendant had also been involved in a car accident as an adult resulting in a loss of consciousness. It was her conclusion that the defendant’s behavior was consistent with his history of brain injury. Ms. Allen acknowledged that she did not test the defendant for malingering. She conceded that in many of the tests she administered, the defendant scored average and above average.
Dr. Robert Kessler, a neuroradiologist, conducted magnetic resonance imaging (MRI) and positron emission tomography (PET) scans on the defendant. He testified that the scans indicated shrinkage or atrophy of the left temporal lobe of the defendant’s brain. It was his opinion that the defendant suffered from decreased glucose metabolism, which was the result of the dysfunction of the left temporal lobe. Dr. Kessler explained that the hrain damage had likely been caused by a head injury when the defendant was seven or eight years old. He described the damage to the left temporal lobe as associated with psychotic disorders producing delusional states. Dr. Kessler acknowledged, however, that the injury would not have prevented the defendant from planning and executing the robbery and murders.
Dr. Helen Mayberg, a neurologist, also examined the defendant and testified in rebuttal for the State. While she agreed that the defendant suffered an abnormality of the left temporal lobe of his brain, it was her opinion that the damage was congenital rather than the result of any trauma. Dr. Mayberg testified that no single area of the brain could be associated with schizophrenia or psychosis. It was her conclusion that the damage to the defendant’s left temporal lobe did not cause him to commit the crimes at issue.
At the conclusion of the penalty phase of the trial, the jury imposed sentences of death for each of the three counts of first degree murder. The jury found that four aggravating circumstances had been proven beyond a reasonable doubt, see Tenn. Code Ann. § 39-13-204(i)(2), (6), (7), (12) (Supp.1996), and that the evidence of aggravating circumstances outweighed evidence of mitigating circumstances beyond a reasonable doubt, see Tenn.Code Ann. § 39-13-204(g) (Supp.1996). Because the Court of Criminal Appeals affirmed the convictions and sentences, the appeal was automatically docketed in this Court. See Tenn.Code Ann. § 39-13-206(a)(l) (Supp. 1996).
Analysis
I. Competence
The defendant first asserts that the trial court erred by finding that he was competent to stand trial. The Fourteenth Amendment to the United States Constitution and article I, section 8 of the Tennessee Constitution prohibit a mentally incompetent person from being put to trial. Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); State v. Blackstock, 19 S.W.3d 200, 205 (Tenn.2000). To be competent to stand trial, a criminal defendant must have “ ‘the capacity to understand the nature and object of the proceedings against him, to consult with counsel and to assist in. preparing his defense.’ ” State v. Black, 815 S.W.2d 166, 174 (Tenn.1991) (quoting Mackey v. State, 537 S.W.2d 704, 707 (Tenn.Crim.App.1975)). The defendant bears the burden of establishing his incompetence by a preponderance of the evidence. State v. Reid, 164 S.W.3d 286, 306-08 (Tenn.2005). The trial court’s findings “are conclusive on appeal unless the evidence preponderates otherwise.” State v. Oody, 823 S.W.2d 554, 559 (Tenn.Crim.App.1991).
Prior to trial, the trial court held extensive hearings on the issue of competence, took judicial notice of the expert testimony that had been presented during the penalty phase of the Captain D’s trial, see State v. Reid, 91 S.W.3d 247, 267-71 (Tenn.2002) (for a summary of mental health evidence presented), and reviewed the proof presented at the defendant’s competency hearing in the Baskin-Robbins case, see Reid, 164 S.W.3d at 303-06 (same). Mary Ann Hea, Reverend Joe Ingle, J.K., and Dr. Auble testified for the defense, and Dr. Daniel Martell testified on behalf of the State. Dr. Keith Caruso, Dr. Samuel Craddock, Dr. Rokaya Farooque, and Rebecca Smith served as independent experts appointed by the trial court.
Dr. Auble, who first examined the defendant during the trial of the Captain D’s murders, testified at a hearing in the Baskin-Robbins case that the defendant was incompetent to stand trial. It was her testimony in this case that the defendant suffered from delusions and anosognosia, had difficulty conceptualizing, and had an increasing distrust of his attorneys. She opined that these disabilities prevented the defendant from consulting with his attorneys with any reasonable degree of factual understanding. Dr. Auble believed that the defendant labored under the delusion that his trial was a part of a larger conspiracy by the government to frame him for the murders so he would receive the death penalty. While she admitted that the defendant had a previous history of malingering, that he had rationally discussed many facets of his case with his attorneys, and that he understood the roles of the prosecutor, the judge, and the defense attorneys, Dr. Auble believed that the defendant’s delusions had worsened over time.
Ms. Hea, a social worker employed by the Davidson County Public Defender’s Office, testified that the defendant lacked trust in his attorneys and refused to talk with her about his case. She recalled that the defendant did discuss his childhood, television shows, his ambitions to become a lawyer when he was released from prison, and the possibility of marriage at some point in the future. Ms. Hea stated that the defendant had claimed that a portion of his brain had been removed and that he had the brain of a man half his age. She also recalled that the defendant had asked for documents from his previous trials so that he could work on his appeals.
Reverend Ingle, who had become the defendant’s pastor through his work in prison ministries, spent more than seventy-five hours talking with the defendant. He found that the defendant did not focus on his trial strategy and instead tended to concentrate on irrelevant details. Reverend Ingle observed that the defendant expended a great deal of energy trying to appear normal, often watching and mimicking the behavior of others. It was his opinion that the defendant behaved much like a twelve-year-old boy.
J.K., who met the defendant through Reverend Ingle’s prison ministry, testified that the defendant believed that the trial had a predetermined outcome. It was his opinion that the defendant had an irrational view of the judicial system. K. confirmed that the defendant claimed that he was under government surveillance.
Dr. Martell, a psychologist specializing in forensic psychology and neuropsychology, testified as a witness for the State at the competency hearing. He had evaluated the defendant prior to the Captain D’s trial and had conducted a two-hour interview with the defendant on the day before he testified in this case. It was his opinion that during the most recent interview, the defendant was not suffering from hallucinations or delusions. He recalled that the defendant explained that his attorneys had decided to pursue a mental illness defense because of his convictions in the Baskin-Robbins case. According to Dr. Martell, the defendant understood from his attorneys that he might be spared the death penalty if they could establish that he was suffering from a mental illness. The defendant also informed Dr. Martell that Dr. Auble had previously indicated her desire to do all that she could to prevent him from being executed.
Dr. Martell testified that the defendant believed that the prosecutor was attempting to manufacture evidence by making the Captain D’s and McDonald’s murders appear similar. He stated that the defendant pointed out numerous discrepancies in the proof presented at the Captain D’s trial as proof of his theory. The defendant also contended that he did not trust his attorneys because they were “killing him” through their incompetence. It was Dr. Martell’s opinion that the defendant understood the legal process and was competent to stand trial. He stated that the defendant possessed an “acute understanding” of the trial procedures, including the roles of the judge, jury, defense attorneys, and prosecutors, and recognized the possibility of a death sentence. The defendant also understood that he had been charged with capital offenses. Dr. Martell testified that although he had previously diagnosed the defendant with a delusional disorder with grandiose and persecutory features, that condition appeared to be in remission.
Dr. Keith Caruso, an independent expert appointed by the trial court, met with the defendant on three occasions, reviewed the reports of other experts, and read the transcript of the competency hearing in the Baskin-Robbins case. It was Dr. Caruso’s opinion that the defendant was incompetent to stand trial:
[H]e appears to have a schizo-affective disorder, bipolar type, most recent episode mixed, which includes both manic and depressive features. There are several symptoms that he has of that condition I feel that interferes with his competency at this time. I believe that he has persecutory paranoid grandiose delusions that involve the government and date back a number of years, but more recently have begun to incorporate [defense counsel], among others into his delusional system in that he has, that has impaired him because of his paranoia about [defense counsel] and [defense counsel’s] motives. That has impaired him in his capacity to work with [defense counsel].
I believe also associated with the delusional system, he also has a thought disorder that is manifested by tangential speech, loosening of associations, preservative thought, concrete thought processes as well. I feel that it makes it difficult for him to reason and to think clearly at all times. I think there are times where he has windows where he appears to think clearly, but what I felt on that issue was that it was essentially that it was not predictable when those would occur, in that he does not have predictable competency. I feel he is incompetent in those areas as well.
I did feel that he had irrational as well as factual appreciation of the possible consequences of the charges against him.
It was also his opinion that the defendant was not malingering and, in fact, was attempting to appear normal.
Dr. Caruso, the only expert to diagnose the defendant with schizo-affective disorder, acknowledged that the defendant had been able to discuss trial strategies. He also conceded that the defendant provided a reasonable explanation as to why he did not want to offer mitigation evidence and that he understood court procedure, the roles of the parties, the purpose of the competency proceedings, the charges against him, and the nature of the legal proceedings. Dr. Caruso explained that the discrepancies between his findings and those of Dr. Martell were the result of the defendant’s mood swings.
After hearing testimony from Drs. Auble, Martell, and Caruso, the trial court ordered that the defendant be evaluated by the Forensic Services Division of the Tennessee Department of Mental Health. Dr. Samuel Craddock, a forensic psychologist on the evaluation team, met with the defendant on five separate occasions and concluded that he was rational, competent, and prepared “to proceed with his trial.” It was Dr. Craddock’s opinion that the defendant understood the seriousness of the charges against him, had a factual understanding of the evidence, and was willing to cooperate with his attorneys to achieve the best possible outcome. Dr. Craddock acknowledged that certain aspects of the defendant’s personality did interfere with his ability to work with his attorneys.
Dr. Craddock testified that the evaluation team diagnosed the defendant with mixed receptive and expressive language disorder, antisocial personality disorder, hearing loss in the left ear, and a congenital malformation of the left temporal lobe of the brain. It was his opinion that while the defendant had previously suffered from mental illness, he did not display any signs or symptoms of a delusional personality disorder. Dr. Craddock disagreed with the diagnoses of Drs. Auble and Caruso and did not believe that the defendant was delusional at the time of the competency hearing. Dr. Rokaya Farooque, a psychiatrist, and Rebecca Smith, a social worker, who were also part of the evaluation team, concurred with the findings of Dr. Craddock.
Dr. Auble testified in rebuttal at the competency hearing, expressing her belief that the defendant’s mental condition was worsening. It was also her opinion that the defendant’s trust in his legal counsel had deteriorated and she explained that the defendant’s claim that he was willing to work with his attorneys was a part of his effort to appear normal.
At the conclusion of the hearing, the trial court found the defendant competent to stand trial, placing particular emphasis on statements by the defendant during a recorded session with Dr. Caruso. During that interview, the defendant expressed an understanding of the charges against him, the possible penalties, the roles of the judge and jury, the differences in procedure in capital and noncapital cases, the role of evidence in a trial, and specific incriminating evidence against him. The trial court determined that the defendant was able to consult with his counsel and otherwise assist in the preparation of his defense.
In our view, the evidence in the record does not preponderate against the trial court’s finding that the defendant was competent to stand trial. The trial court heard and specifically accredited the testimony of Drs. Martell, Craddock, and Farooque. In addition, the trial court found that the defendant himself had expressed an understanding of the proceedings. Although the defendant had been diagnosed by Drs. Auble and Caruso with anosognosia, the trial court was free to assess their credibility and reject their expert testimony. Moreover, the trial court applied the correct legal standard: whether the defendant had “ ‘the capacity to understand the nature and object of the proceedings against him, to consult with counsel and to assist in preparing his defense.’ ” Black, 815 S.W.2d at 174 (quoting Mackey, 537 S.W.2d at 707).
During the oral argument of this case, the defendant asked this Court to consider as a post-judgment fact that the State had conceded in an unrelated federal court proceeding that the defendant was not competent to waive his appeals under the standard announced in Rees v. Peyton, 384 U.S. 312, 314, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966). Under certain limited circumstances, this Court may consider facts which arise after entry of the trial court’s judgment. See Tenn. R.App. P. 14; State v. Williams, 52 S.W.3d 109, 122 (Tenn.Crim.App.2001). The authority granted by Rule 14 “generally will extend only to those facts, capable of ready demonstration, affecting the positions of the parties or the subject matter of the action such as mootness, bankruptcy, divorce, death, other judgments or proceedings, relief from the judgment requested or granted in the trial court, and other similar matters.” Tenn. R.App. P. 14(a). Facts not appropriate for consideration under Rule 14 include those which are merely cumulative, could be controverted or contested when presented to the trial court, and which might lead to differing opinions or conclusions. Duncan v. Duncan, 672 S.W.2d 765, 767-68 (Tenn.1984). Rule 14, therefore, “is not intended to permit a retrial in the appellate court.” Tenn. R.App. P. 14, Advisory Commission Comments.
The defendant has a total of seven murder convictions with corresponding death sentences for each arising out of three separate trials. This case involves the direct appeal of the last of the three cases to be tried. Post-conviction litigation in the other two cases is pending in the State and Federal courts. The defendant’s sister, Linda Martiniano, recently filed a petition for a stay of execution and a request to act as the defendant’s next friend in the United States District Court for the Middle District of Tennessee, citing the defendant’s incompetence as a basis for the motion and petition. The District Court ordered that the defendant be evaluated to establish his present competency. The State appeared in the District Court on August 24, 2006, and announced that it would “withdraw its objection” to Martiniano acting as next friend of the defendant “on the basis of a psychological examination that was conducted by our retained expert ... just last week ... which resulted in a finding by our expert a conclusion that [the defendant] is presently incompetent to make a rational decision to waive his capital appeals in accordance with the standards set forth in” Rees v. Peyton.
In a report attached to the defendant’s motion, Dr. Martell states that the defendant is suffering from “very specific paranoid psychopathology (i.e., persecutory delusions) superimposed on an antisocial personality disorder, and against a backdrop that is otherwise largely within normal limits.... These findings are consistent ... with an Axis I diagnosis of Delusional Disorder.” It is Dr. Martell’s opinion that the defendant must be treated for his mental disease in order to meet the Rees standard. He pointed out, however, that Delusional Disorder “is one of the most difficult and intractable mental disorders to treat.”
In our view, the State’s concession and Dr. Martell’s findings have little, if any, bearing on the issues presented in this direct appeal. While the defendant has raised the issue of his competence to stand trial, a current finding of incompetence would not affect our analysis. See Black, 815 S.W.2d at 174 (“ ‘[A] competency hearing is a very narrow inquiry aimed at determining whether one who is charged with a criminal offense is presently competent to stand trial.’ ” (quoting State v. Stacy, 556 S.W.2d 552, 553 (Tenn.Crim.App.1977))); cf. Berndt v. State, 783 S.W.2d 119, 122 (Tenn.Crim.App.1987) (holding in a case considering whether the trial court should have conducted a competency hearing sua sponte that “an appellate court may only consider those facts which were before the court when the trial commenced”). Further, Dr. Martell opined during the competency hearing just before the trial in this case that the defendant’s delusions were in remission and that he was competent at that point in time. That the defendant’s condition is no longer in remission would have no impact on the trial court’s finding of his competence to stand trial. The motion to consider post-judgment facts must, therefore, be denied.
Finally, the defendant has asked this Court to supplement the record with the transcript of the federal proceeding, including Dr. Martell’s report. Because we have determined that neither the transcript nor the report may be considered under Tennessee Rule of Appellate Procedure 14, it is our view that the record should not be supplemented with these documents.
II. Testimony of M.R.
The defendant asserts that the trial court should have excluded testimony that, shortly after the crimes, he possessed a small caliber, automatic handgun and a double-bladed knife. Tennessee Rule of Evidence 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity with the character trait.” Tenn. R. Evid. 404(b). At trial, M.R., the defendant’s former employer, testified that the defendant possessed the gun and the knife after the commission of the crimes. The Court of Criminal Appeals ruled that the trial court did not err by admitting the testimony, reasoning that the evidence was relevant and not prohibited by Tennessee Rule of Evidence 404(b) because the possession of a weapon is not necessarily a crime or wrongful act. We agree.
Other jurisdictions have ruled similarly in these circumstances. For example, in Busey v. United States, the Court of Appeals for the District of Columbia ruled that “testimony that Busey possessed a revolver that might have been the murder weapon was not admitted improperly to establish criminal propensity. That evidence was directly relevant ... because it constituted evidence supporting the charge that Busey was the person who” committed the crimes charged. Busey v. United States, 747 A.2d 1153, 1165 (D.C.App.2000). That court has also ruled that “[a]n accused person’s prior possession of the physical means of committing the crime is some evidence of the probability of his guilt, and is therefore admissible.” Coleman v. United States, 379 A.2d 710, 712 (D.C.App.1977). Similarly, in People v. Houston, the Michigan Court of Appeals determined that proof that Houston had possessed a .380 handgun three days before the victim was murdered with the same caliber weapon “was directly relevant to identifying defendant as the killer,” concluding that the evidence was not inadmissible under Rule 404(b) because the “mere possession of a pistol is not a crime.” People v. Houston, 261 Mich.App. 463, 683 N.W.2d 192, 195-96 (2004). In Williams v. State, the Indiana Supreme Court observed that “[i]t is by no means clear that weapons possession, evidence of gun sales, and the like, are necessarily prior ‘bad acts’ for 404(b) purposes.” Williams v. State, 690 N.E.2d 162, 174-75 (Ind.1997). Finally, the Maryland Supreme Court has also agreed that the defendant’s possession of guns or ammunition does not qualify as a bad act under the evidentiary rules. Klauenberg v. State, 355 Md. 528, 735 A.2d 1061, 1073 (1999).
Under Tennessee law, it is a crime to carry a firearm or large knife with the “intent to go armed.” See Tenn.Code Ann. § 39-17-1307 (2003). Nevertheless, weapons of the type described by R., a double-bladed knife and a small caliber weapon, may be lawfully possessed under a variety of circumstances. See Tenn. Code Ann. § 39-17-1308 (2003). In our view, the ownership of these weapons, standing alone, does not constitute a crime. The testimony that R. saw the defendant in the possession of weapons similar to those used in the crimes did not necessarily constitute evidence of a bad act. Because of the weapons’ similarity to those described by the victim G., the evidence was especially probative as to the identity of the perpetrator. The trial court did not err by admitting the testimony of M.R.
III. Defendant’s Financial Condition
The defendant contends that the trial court erred by admitting testimony that he left his employment at a Shoney’s restaurant in February of 1997, received no severance pay, and was unemployed at the time of the crimes. He asserts that evidence of his poverty was irrelevant under Tennessee Rule of Evidence 401. In the alternative, he contends that the evidence should have been excluded as more prejudicial than probative under Tennessee Rule of Evidence 403.
Several jurisdictions have concluded that the poverty of an accused is generally inadmissible as proof of a motive for theft or robbery because its probative value is outweighed by the danger of unfair prejudice. See United States v. Mitchell, 172 F.3d 1104, 1108-10 (9th Cir.1999); see also United States v. Weller, 238 F.3d 1215, 1220-21 (10th Cir.2001); United States v. Zipkin, 729 F.2d 384, 390 (6th Cir.1984); United States ex rel. Mertz v. New Jersey, 423 F.2d 537, 541-42 (3d Cir.1970); Davis v. United States, 409 F.2d 453, 457-58 (D.C.Cir.1969); People v. Harris, 37 Cal.4th 310, 33 Cal.Rptr.3d 509, 118 P.3d 545, 570 (2005); State v. Kennard, 101 Wash.App. 533, 6 P.3d 38, 42 (2000). A majority, however, have determined that evidence of a defendant’s poverty is admissible when coupled with proof of an unexplained improvement in his financial status. See, e.g., United States v. Bensimon, 172 F.3d 1121, 1129 (9th Cir.1999) (“To be admissible ... poverty evidence must be accompanied by something more, such as an ‘unexplained, abrupt change in circumstances.’ ” (quoting Mitchell, 172 F.3d at 1109)).
In our, view, evidence that a defendant is poor, without more, has little probative value. As observed by the Ninth Circuit Court of Appeals, “A rich man’s greed is as much a motive to steal as a poor man’s poverty. Proof of either, without more, is likely to amount to ... unfair prejudice with little probative value.” Mitchell, 172 F.3d at 1108-09. The better rule, therefore, is that the State must introduce proof of “something more” than a defendant’s poverty in order to meet the threshold of relevance necessary for admission.
In. this instance, “something more” was proof that despite the loss of his job without severance pay, the defendant had made several cash purchases totaling in excess of $800, had sought to invest $3000, and had over $1000 in coins in his possession at the time of his arrest. That the defendant had no legitimate source of income following the termination of his employment, coupled with proof of these expenditures shortly after the robbery, was relevant, circumstantial evidence of the commission of the crimes. Accordingly, the trial court did not err in admitting testimony about his financial condition at the time of the crimes.
IV. Recusal
The defendant also asserts that the trial judge erred by denying his motion for recusal. He contends that because the same trial judge had presided over the Captain D’s trial, the judge was unable to impartially exercise her role as thirteenth juror in this case. See generally State v. Carter, 896 S.W.2d 119, 121-22 (Tenn.1995) (for a history and explanation of the thirteenth juror rule). He also argues that the trial judge’s comments during the competency hearing demonstrated that she had an opinion on that issue prior to hearing the evidence.
The Court of Criminal Appeals ruled “that the judge’s participation in [defendant's previous capital murder trial” did not “color[ ] her rulings in this case in any regard.” That court also concluded that “the judge’s remarks and actions at the competency hearing did not indicate partiality ... and did not warrant recusal.”
“The right to a fair trial before an impartial tribunal is a fundamental constitutional right.” State v. Austin, 87 S.W.3d 447 app. at 470 (Tenn.2002). “[T]he preservation of the public’s confidence in judicial neutrality requires not only that the judge be impartial in fact, but also that the judge be perceived to be impartial.” Kinard v. Kinard, 986 S.W.2d 220, 228 (Tenn.Ct.App.1998). Recusal is warranted “when a person of ordinary prudence in the judge’s position, knowing all of the facts known to the judge, would find a reasonable basis for questioning the judge’s impartiality.” Alley v. State, 882 S.W.2d 810, 820 (Tenn.Crim.App.1994). “Hence, the test is ultimately an objective one since the appearance of bias is as injurious to the integrity of the judicial system as actual bias.” Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 560, 565 (Tenn.2001). “Whether recusal is necessary ... rests within the discretion of the trial court.” State v. McCary, 119 S.W.3d 226, 260 (Tenn.Crim.App.2003) (citing Caruthers v. State, 814 S.W.2d 64, 67 (Tenn.Crim.App.1991)). This Court will not interfere with the trial court’s discretion unless clear abuse appears on the face of the record. Caruthers, 814 S.W.2d at 67.
A trial judge is not disqualified because that judge has previously presided over legal proceedings involving the same defendant. See State v. Hines, 919 S.W.2d 573, 578 (Tenn.1995) (“ ‘A judge is in no way disqualified because he tried and made certain findings in previous litigation.’ ” (quoting King v. State, 216 Tenn. 215, 391 S.W.2d 637, 642 (1965))). Moreover, “[p]rior knowledge of facts about the case is not sufficient in and of itself to require disqualification.” Alley, 882 S.W.2d at 822.
In this instance, the defendant has simply been unable to establish that the trial judge’s participation in the prior trial prevented her from exercising her role as thirteenth juror free from bias. The approval of the prior verdict, standing alone, is not cause for recusal. The defendant asserts, however, that there was other evidence of partiality. He points to a comment by the trial judge, who explained that because she was familiar with the proof presented during his previous two trials, she had little interest in relitigating the issues resolved during those trials. The defendant asserts that this is evidence of a predisposition on the part of the trial judge.
In our assessment, the actions of the trial court were designed to expedite the litigation. That the trial judge ruled that the evidence would be limited to proof of the defendant’s existing mental state, as opposed to his mental state at the prior trials, did not establish that she had formed an opinion with regard to competence. The issue of competence is, of course, to be determined at the time of trial. See Black, 815 S.W.2d at 174. An adverse ruling does not necessarily indicate bias or prejudice. Alley, 882 S.W.2d at 821. Moreover, comments reflecting “insensitivity and lack of sympathy on the part of the judge” are insufficient to establish impartiality unless they are pervasive and accompanied by prejudicial conduct. Id. at 822. Because the defendant has failed to establish that the trial judge acted inappropriately, recusal was not required.
V. Mass Murder Aggravating Circumstance
The defendant contends that the trial court erred during the penalty phase of the trial by permitting the State to introduce evidence of the murders at the Captain D’s restaurant as a means of establishing the “mass murder” aggravating circumstance. He argues that because the trial court excluded the evidence during the guilt phase of the trial, the jury should not have been permitted to consider the prior convictions in their deliberation on capital punishment.
At the time of the offenses, the “mass murder” aggravating circumstance was defined as follows: “The defendant committed ‘mass murder,’ which is defined as the murder of three (3) or more persons within the state of Tennessee within a period of forty-eight (48) months, and perpetrated in a similar fashion in a common scheme or plan.” Tenn.Code Ann. § 39-13-204(i)(12) (Supp.1996). In State v. Bobo, 727 S.W.2d 945 (Tenn.1987), this Court examined this particular aggravating circumstance in detail, concluding that it “may be constitutionally applied if the triggering offenses are shown only by convictions that have been entered prior to the sentencing hearing at which they are to be utilized.” Bobo, 727 S.W.2d at 955. Later, this Court recognized that “the ‘mass murder’ aggravating circumstance [is] appropriate for a series of separate but related homicides committed as part of a common scheme or plan.” State v. Smith, 868 S.W.2d 561, 582 (Tenn.1993).
The defendant argues that the “mass murder” circumstance was not applicable because the trial court had previously determined that the murders at the Captain D’s and McDonald’s were not part of a common scheme or plan. The record establishes that the State initially sought to introduce proof of the prior murder convictions during the guilt phase of the trial under Tennessee Rule of Evidence 404(b) in an effort to establish the defendant’s identity as the perpetrator. While determining that the murders at the two restaurants were part of a common scheme or plan, the trial court nevertheless excluded the evidence because the probative value was outweighed by the danger of unfair prejudice. See Tenn. R. Evid. 404(b). “[I]t comes down to ... a weighing process,” the trial court observed, “[W]hat I would be asking the jury to do would be to hear proof about other homicides and then disregard it, and I’m not so sure that is even humanly possible to do.”
The trial court excluded the evidence during the guilt phase by the application of Rule 404(b). The standard for admission of prior convictions during the guilt phase, however, is different than the standard in the penalty phase. While the Rules of Evidence govern the former, the latter standard is statutory. Tennessee Code Annotated section 39-13-204(c) provides, in pertinent part, as follows:
In the sentencing proceeding, evidence may be presented as to any matter that the court deems relevant to the punishment and may include, but not be limited to, the nature and circumstances of the crime; the defendant’s character, background history, and physical condition; any evidence tending to establish or rebut the aggravating circumstances enumerated in subsection (i); and any evidence tending to establish or rebut any mitigating factors. Any such evidence which the court deems to have probative value on the issue of punishment may be received regardless of its admissibility under the rules of evidence; provided, that the defendant is accorded a fair opportunity to rebut any hearsay statements so admitted....
Tenn.Code Ann. § 39-13-204(c) (2003) (emphasis added). The rules of evidence, therefore, do not limit the admissibility of evidence in a capital sentencing proceeding. State v. Stout, 46 S.W.3d 689, 702 (Tenn.2001) (citing Van Tran v. State, 6 S.W.3d 257, 271 (Tenn.1999)). Our statute empowers “ ‘trial judges [with] wider discretion than would normally be allowed under the Tennessee Rules of Evidence’ ” in the admission of evidence during the penalty phase of a capital case. Id. at 703 (quoting State v. Sims, 45 S.W.3d 1, 14 (Tenn.2001)). “The Rules of Evidence should not be applied to preclude introduction of otherwise reliable evidence that is relevant to the issue of punishment, as it relates to mitigating or aggravating circumstances, the nature and circumstances of the particular crime, or the character and background of the individual defendant.” Sims, 45 S.W.3d at 14. Because the rules of evidence “are too restrictive and unwieldy in the arena of capital sentencing,” the terms of the statute apply. Id. The question here is not whether the Captain D’s murder convictions were admissible under Tennessee Rule of Evidence 404(b), but instead whether that evidence was reliable and relevant to one of the aggravating or mitigating circumstances.
Detective Postiglione testified during the penalty phase that the murders of the McDonald’s employees were similar to those the defendant had committed at the Captain D’s. The State submitted that the murders qualified, under the statutory definition, as a common scheme or plan, a necessary component of the “mass murder” aggravating circumstance. See Tenn. Code Ann. § 39-13-204(i)(12) (Supp.1996).
Indeed, each of the murders took place at a franchised, fast food restaurant. There were other similarities. The crimes were committed when the restaurants were closed but while the employees remained inside. There were robberies at each location. The victims in each instance were moved to an isolated area, ordered to the floor, and shot twice in the head. The offenses occurred within thirty-five days of each other. While perhaps falling short of the criteria for admission under Rule 404, these comparable elements satisfy the terms of the statute. The prior convictions were also admitted to prove that the defendant had previously committed felonies involving violence. See Tenn.Code Ann. § 39-13-204(i)(2) (Supp. 1996). The convictions for the prior murders were reliable and relevant to the issue of punishment in this case. Thus, the trial court did not err by allowing proof of the convictions in order to establish the “mass murder” aggravating circumstance.
In State v. Branam, 855 S.W.2d 563, 570 (Tenn.1993), we held that the trial court should not have instructed the jury on the aggravating circumstance under Tennessee Code Annotated section 39 — 13—204(i)(6) where there was “not a shred of evidence in the record” to support the claim. Here, however, the State presented reliable evidence that the defendant had committed two murders at the Captain D’s and established that there were significant commonalities with the crimes in this case. Thus, the trial court did not err by submitting the “mass murder” aggravating circumstance to the jury.
VI. Mandatory Review Pursuant to Tenn.Code Ann. § 89-18-206(c)(1)
Pursuant to Tennessee Code Annotated section 39 — 13—206(c)(1), this Court must determine whether the evidence supported the jury’s finding that the aggravating circumstances were established beyond a reasonable doubt and that the aggravating circumstances outweighed evidence of mitigating circumstances beyond a reasonable doubt. TenmCode Ann. § 39-13-206(c)(1)(B) — (C) (2003). The record establishes that the jury found that four aggravating circumstances had been proven beyond a reasonable doubt:
(2) The defendant was previously convicted of one (1) or more felonies, other than the present charge, whose statutory elements involve the use of violence to the person;
(6) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another;
(7) 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, or was fleeing after having a substantial role in committing or attempting to commit ... robbery
(12) The defendant committed “mass murder,” which is defined as the murder of three (3) or more persons within the state of Tennessee within a period of forty-eight (48) months, and perpetrated in a similar fashion in a common scheme or plan; ....
Tenn.Code Ann. § 39-13-204(i)(2), (6), (7), (12) (Supp.1996).
A. Prior Violent Felonies
The evidence adduced during the sentencing hearing established that the defendant had been convicted of aggravated robbery in 1984 in Texas; two counts of first degree murder and one count of aggravated robbery on April 14, 1999, in Davidson County; and two counts of first degree murder, two counts of especially aggravated kidnapping, and one count of aggravated robbery on September 22, 1999, in Montgomery County. The parties stipulated that each of these crimes involved the use of violence to the person. This evidence is sufficient to establish the prior violent felony aggravating circumstance.
B. Avoiding, Interfering With, or Preventing Lawful Arrest
Two of his former co-workers testified that the defendant had discussed robbing fast food restaurants as a means of making money. D.T. and J.P. each recalled that the defendant, who was experiencing financial difficulties, talked about robbing a fast food restaurant in the middle of the night and leaving no witnesses. In our view, this evidence is sufficient to support the application of the aggravating circumstance for avoiding, interfering with, or preventing lawful arrest.
C. Felony Murder
The proof at trial overwhelmingly established that the murders were perpetrated during the robbery of the McDonald’s. G. testified that the defendant demanded cash from the restaurant safe. He stated that Santiago gave the money to the defendant, who then stashed it in a bag he was carrying. The defendant then ordered the employees to lie on the floor before shooting Santiago, Sewell, and Brown twice in the back of the head. Under these circumstances, it is our view that the evidence is sufficient to establish the felony murder aggravating circumstance.
D. “Mass Murder”
“[F]or this section to apply, the State must show beyond a reasonable doubt (1) that the defendant had been convicted of three or more murders, including the one for which he has just been tried, (2) within the State of Tennessee, (3) within a period of forty-eight (48) months, (4) perpetrated in a similar fashion, and (5) in a common scheme or plan.”
Black, 815 S.W.2d at 183 (quoting Bobo, 727 S.W.2d at 956). Little has been written with regard to this factor, which is unique to Tennessee. See Bobo, 727 S.W.2d at 951; cf. Ohio Rev.Code Ann. § 2929.04(5) (2006) (providing as an aggravating circumstance that the defendant “was convicted of an offense an essential element of which was the purposeful killing of or attempt to kill another, or the offense at bar was part of a course of conduct involving the purposeful killing of or attempt to kill two or more persons by the offender.”) This Court has approved of its application in a case where the defendant shot his four children in the garage of his residence, see State v. Holton, 126 S.W.3d 845, 865 (Tenn.2004); in a case where the defendant stabbed, shot, and disemboweled his estranged wife and her two children, see Smith, 868 S.W.2d at 582; in a case where the defendant killed his girlfriend and her children, see Black, 815 S.W.2d at 184; and in a case where the defendant killed three people during the robbery of a restaurant, see State v. Van Tran, 864 S.W.2d 465, 478 (Tenn.1993). The Court of Criminal Appeals has also approved of the application of this aggravating circumstance in a sentence of life without parole where the defendants killed three members of the same family at a rest stop. See State v. Howell, 34 S.W.3d 484, 509 (Tenn.Crim.App.2000).
In this case, the State points to fourteen similarities between the murders committed in this case and those committed at the Captain D’s. The murders in each instance were committed at a fast food restaurant on a Sunday while the restaurants were closed. The victims in each case were forced to lie on the floor in an isolated area of the restaurant. Each victim was shot at least twice with a small caliber weapon. The restaurants were locked after the crimes. The murders occurred thirty-five days apart at restaurants only three miles apart. Both cash and coins were taken from the safe. Detective Postiglione testified that the modus operandi in the two incidents was unlike any other which had been used in Davidson County in at least fifteen years. In our view, this evidence was sufficient to establish the “mass murder” aggravating circumstance.
E.Weighing of Mitigating Evidence
In mitigation of his offenses, the defendant presented evidence of his unstable childhood, his prior brain injuries, and his mental illness. Dr. Amador testified that the defendant had been abandoned by his mother at a young age and had lived periodically with his father and grandmother until he was an adolescent, when he returned to his mother. Dr. Amador made reference to the defendant’s various head injuries and made a diagnosis of chronic schizophrenia, paranoid type. It was the opinion of Patricia Allen that the defendant’s language and thinking fit the profile of a person with acquired brain injuries. Dr. Auble diagnosed the defendant with a psychotic disorder and personality changes caused by head trauma. Dr. Mayberg, testifying for the State, could find no evidence linking the defendant’s brain abnormalities with his commission of the murders in this case.
While the mitigating evidence was compelling, the proof of the aggravating circumstances was simply overwhelming. The evidence supports the jury’s conclusion that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt.
F. Proportionality Review
When a defendant has been sentenced to death, this Court is required to engage in a comparative proportionality analysis. Tenn.Code Ann. § 39-13-206(c)(1)(D) (2003). “[C]omparative proportionality review ‘presumes that the death penalty is not disproportionate to the crime in the traditional sense. It purports to inquire instead whether the penalty is nonetheless unacceptable in a particular case because 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, 42-43, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984)). “[T]his Court employs the precedent-seeking method of comparative proportionality review, in which we compare a case with cases involving similar defendants and similar crimes.... [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.’ ” State v. Davis, 141 S.W.3d 600, 619-20 (Tenn.2004) (quoting Bland, 958 S.W.2d at 668). “[T]he pool of cases considered by this Court ... 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.” Id. at 620.
While there is no specific formula for comparing similar cases, this Court generally considers the following factors regarding the offense:
(1) the means of death; (2) the manner of death; (3) the motivation for the killing; (4) the place of death; (5) the victim’s age, physical 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. This Court must also consider the following factors about the defendant: “(1) prior criminal record, if any; (2) age, race, and gender; (3) mental, emotional, and physical condition; (4) role in the murder; (5) cooperation with authorities; (6) level of remorse; (7) knowledge of the victim’s helplessness; and (8) potential for rehabilitation.” Id. (citing Bland, 958 S.W.2d at 667; State v. Bane, 57 S.W.3d 411, 428-29 (Tenn.2001)).
In this case, the defendant confronted three of the victims just outside the McDonald’s. A fourth victim was inside the restaurant. The defendant demanded the contents of the safe, ordered the victims to the floor of a storage area, and murdered three of the four victims execution-style before his gun malfunctioned. When shot, the victims were in a defenseless position. The defendant then kicked and stabbed the fourth victim repeatedly and discontinued his attack only when the victim pretended to be dead.
The defendant had previously been convicted of several serious, violent felonies, including first degree murder, especially aggravated kidnapping, and aggravated robbery. Although the defendant had a tumultuous childhood and experienced mental and behavioral problems from an early age, possibly as the result of a brain injury or a congenital disorder, there was some indication of malingering. There was no evidence of remorse, cooperation with the authorities, or potential for rehabilitation.
Sentences of death have been upheld by this Court for this defendant under similar circumstances. In our proportionality review in the Captain D’s case, this Court concluded that “[wjhile no two capital cases and no two defendants are alike, we have compared the circumstances of the present case with the circumstances of similar first degree murder cases and conclude that the penalty imposed in the present case is not disproportionate to the penalty imposed in similar cases.” Reid, 91 S.W.3d at 287. In that case, the defendant was convicted of two counts of first degree murder and sentenced to death for the killing of two Captain D’s employees during the robbery of the restaurant. Furthermore, this Court upheld the defendant’s sentences of death for the robbery, kidnapping, and murder of two Baskin-Robbins employees. Reid, 164 S.W.3d at 317-18. The victims in that case were transported to a nearby park and stabbed to death. Id.
This Court has repeatedly affirmed the sentence of death in other cases where the victim was shot to death during a robbery. See, e.g., Davis, 141 S.W.3d at 622; State v. Powers, 101 S.W.3d 383, 405 (Tenn.2003); State v. Chalmers, 28 S.W.3d 913, 920 (Tenn.2000); Van Tran, 864 S.W.2d at 482; State v. Howell, 868 S.W.2d 238, 262 (Tenn.1993); State v. Harris, 839 S.W.2d 54, 77 (Tenn.1992); State v. King, 694 S.W.2d 941, 947 (Tenn.1985). In addition, we have upheld the death sentence in a number of cases where the defendant has presented similar mitigating evidence. See, e.g., Davis, 141 S.W.3d at 621; State v. Middlebrooks, 995 S.W.2d 550, 565 (Tenn.1999); Hines, 919 S.W.2d at 584.
In our view, this case is not “ ‘plainly lacking in circumstances consistent with those in cases where the death penalty has been imposed.’ ” Davis, 141 S.W.3d at 620 (quoting Bland, 958 S.W.2d at 668). Nor can we conclude that the sentence of death was imposed in any arbitrary fashion. See Tenn.Code Ann. § 39-13-206(c)(l)(A) (2003). In consequence, we hold that the sentences of death were not disproportionate.
Conclusion
The trial court did not err during the course of the trial by finding the defendant competent to stand trial; by admitting testimony that the defendant had possessed weapons similar to those used in the crimes; by denying the defendant’s motion to limit proof of his financial condition; or by denying the defendant’s motion to recuse. Further, the trial court did not err during the penalty phase by allowing the State to introduce evidence of the murders at the Captain D’s restaurant to establish the “mass murder” aggravating circumstance. Finally, we conclude that the defendant’s sentences of death are not disproportionate under the mandatory review criteria of Tennessee Code Annotated section 39-13-206(c)(l).
Accordingly, the judgment of the Court of Criminal Appeals is affirmed. The sentence of death shall be carried out on the 3rd day of January, 2008, unless otherwise ordered by this Court or other proper authority. It appearing that the defendant is indigent, the costs of this appeal are taxed to the State.
[OPINION BY ADOLPHO A. BIRCH, JR., SP. J., type=concurring-in-part-and-dissenting-in-part]
ADOLPHO A. BIRCH, JR., SP. J.,
concurred in part and dissented in part.
APPENDIX
(Excerpts from the Court of Criminal Appeals’ Decision)
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
November 17, 2004 Session
STATE OF TENNESSEE v. PAUL DENNIS REID, JR.
Criminal Court for Davidson County
No. 97-C-1836
No. M2003-00539-CCA-R3-DD-Filed June 3, 2005
Defendant Paul Dennis Reid, Jr., was found guilty by a jury of three counts of premeditated murder, three counts of felony murder, one count of attempted murder, and one count of especially aggravated robbery. The felony murder convictions were merged into the premeditated murder convictions. Thereafter, the jury sentenced Defendant to death based upon the finding of four aggravating circumstances: the defendant had previously been convicted of one or more felonies, other than the present charge, the statutory elements of which involve the use of violence to the person; the murders were committed for the purpose of avoiding, interfering with or preventing a lawful arrest or prosecution of defendant or another; 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, or was fleeing after having a substantial role in committing or attempting to commit robbery; and the defendant committed “mass murder,” which was defined at the time of the commission of these offenses as the murder of three or more persons within the State of Tennessee within a period of forty-eight months, and perpetrated in a similar fashion in a common scheme or plan. TenmCode Ann. § 39-13 — 204(i)(2), (6), (7), and (12) (Supp.1996). The trial court sentenced Defendant to 25 years imprisonment for the attempted murder conviction and 25 years imprisonment for the especially aggravated robbery conviction, to be served consecutively to each other and to Defendant’s other non-death sentences. On appeal, Defendant presents forty-seven issues. We affirm Defendant’s convictions and sentences.
Tenn. R.App. P. 3 Appeal as of Right; Judgment of the Criminal Court for Davidson County Affirmed
Thomas T. Woodall, J., delivered the opinion of the court, in which Alan E. Glenn and RobeRT W. WedemeyeR, JJ., joined
Thomas F. Bloom and James A. Simmons, Nashville, Tennessee, for the appellant, Paul Dennis Reid, Jr.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Angele M. Gregory, Assistant Attorney General, for the appellee, State of Tennessee
OPINION
[Deleted: SUMMARY OF FACTS]
[Deleted: PROOF] ANALYSIS
On appeal, Defendant has presented multiple issues, which we will address as follows.
1. Failure to dismiss indictment because aggravating factors not listed in indictment
First, Defendant contends that because the indictment returned against him did not set forth the statutory aggravating circumstances relied upon by the State in charging him with a capital offense, the indictment is faulty and must be dismissed. Defendant acknowledges that he made this same argument in the appeal of his Montgomery County convictions and sentences, but it was rejected by this court. Defendant urges this court to reconsider its decision in State v. Reid, No. M2001-02753-CCA-RB-DD, 2003 WL 23021393 (Tenn.Crim.App., Nashville, Dec. 29, 2003). However, the Tennessee Supreme Court has released its opinion in the appeal of Defendant’s Montgomery County convictions, and the Court reaffirmed its earlier decisions in holding that “Tennessee’s capital sentencing scheme does not require that aggravating circumstances be included in an indictment.” State v. Reid, 164 S.W.3d 286, 312 (Tenn.2005). Accordingly, the trial court did not err in refusing to dismiss the indictment. Defendant is not entitled to relief on this issue.
2. Constitutionality of Tenn Code Ann. Sec. 39-13-204(c)
Defendant contends that Tennessee Code Annotated Section 39-13-204(c) is unconstitutional. However, he has not presented any constitutional challenges to the death penalty statutes that have not been previously reviewed and rejected. The death penalty statutes have repeatedly been held constitutional. See e.g., State v. Keen, 31 S.W.3d 196, 233 (Tenn.2000), cert. denied, 532 U.S. 907, 121 S.Ct. 1233, 149 L.Ed.2d 142 (2001); State v. Nesbit, 978 S.W.2d 872, 902 (Tenn.1998), cert. denied, 526 U.S. 1052, 119 S.Ct. 1359, 143 L.Ed.2d 520 (1999); State v. Vann, 976 S.W.2d 93, 117 (Tenn.1998), cert. denied, 526 U.S. 1071, 119 S.Ct. 1467, 143 L.Ed.2d 551 (1999); State v. Bland, 958 S.W.2d 651, 663 (Tenn.1997), cert. denied, 523 U.S. 1083, 118 S.Ct. 1536, 140 L.Ed.2d 686 (1998); State v. Smith, 857 S.W.2d 1, 21-22 (Tenn.), cert. denied, 510 U.S. 996, 114 S.Ct. 561, 126 L.Ed.2d 461 (1993); State v. Bane, 853 S.W.2d 483, 488 (Tenn.1993), cert. denied, 510 U.S. 1040, 114 S.Ct. 682, 126 L.Ed.2d 650 (1994).
Defendant relies upon the case of United States v. Fell, 217 F.Supp.2d 469 (D.Vt.2002) in arguing that Tennessee’s capital sentencing scheme, particularly Tennessee Code Annotated Section 39-13-204(c), is unconstitutional because it allows the death penalty to be imposed based on evidence that is not subject to the guarantees of reliability and trustworthiness required by the due process and confrontation clauses of the federal constitution. However, the Supreme Court rejected this argument recently in State v. Berry, 141 S.W.3d 549 (Tenn.2004). Defendant is not entitled to relief on this issue.
3.Validity of search warrants
Defendant contends the trial court erred in denying his motion to suppress evidence seized pursuant to search warrants 146 and 149. Defendant concedes that this issue has been decided against him adversely in State v. Reid, 91 S.W.3d 247 (Tenn.2002), but makes the argument for the purpose of preserving the issue for further review. This court must follow the holding of the Tennessee Supreme Court on this issue as set forth in State v. Reid, 91 S.W.3d at 273-76. Defendant is not entitled to relief on this issue.
4. [Deleted: Evidence of Defendant’s financial condition]
5. [Deleted: Testimony of M.R.]
6. Admissibility of identification testimony
Next, Defendant contends that the trial court erred in failing to suppress J.G.’ identification of him. In his motion to suppress, Defendant argued that the photographic lineup conducted by the Metropolitan Nashville Police Department was unduly suggestive and resulted in an unreliable identification. In support of his motion, Defendant specifically argued that the background of his photograph is lighter in color than the other photographs; that Defendant is the only person pictured smiling; that Defendant’s picture was placed in the center top row where a viewer’s eye is naturally drawn; that the viewing of the photographic lineup in question occurred at night, unlike the other viewings by G.; that the photographic lineup in question was different because G. had viewed all of the previous photographs in a book; and that there was a heightened sense of excitement on the night of the lineup in question. The trial court rejected each of Defendant’s arguments and found that the lineup and the procedures used in displaying the lineup were not unduly suggestive.
The trial court was very specific in its order denying Defendant’s motion to suppress G.’ identification. The court found that although the background of Defendant’s picture is lighter than the backgrounds of the other five photographs, none of the backgrounds depicted in the pictures are identical. Additionally, the court found that the physical characteristics of the men depicted in the photographs are quite similar in many respects. As a result, the backgrounds in no way suggest that the viewer should select a particular photograph. The court also acknowledged that Defendant was the only person who showed his teeth in his photograph, but found that each photograph had a unique characteristic. Accordingly, the viewer’s eye is not attracted to one particular photograph. The court rejected Defendant’s contention that the placement of Defendant’s photograph in the top center of the lineup drew the viewer’s eye to that particular picture. The court found that Defendant had not presented any evidence to support this contention. The court further found that there was no evidence that G. was aware that an arrest was imminent and that other witnesses had been called to the police station to view lineups. Additionally, the court found that the fact that G. viewed the lineup at night was insignificant. The court determined that there had not been a formal or rigid viewing schedule prior to the night in question. Instead, the testimony revealed that the prior meetings were arranged as schedules and G.’ medical condition permitted. The court also found that there was no evidence that G.’ identification was affected by the viewing of the lineup in a different format than before. Although G. may have only viewed photographs in a book, his identification was not affected by viewing the six picture photographic lineup presented to him. The court also rejected Defendant’s contention that a physical lineup would have been more trustworthy and should have been conducted. The court noted that G. had never been asked to view a physical lineup in the past, and the court opined that a physical lineup would have drawn more attention to the importance of that particular viewing. The court also surmised that the police did not have adequate time to locate men who had similar physical characteristics to conduct a physical lineup given all of the circumstances. Based on the foregoing, the court concluded that the lineup and the procedures utilized in displaying the lineup were not unduly suggestive.
This court first notes that the findings of fact made by the trial court at the hearing on a motion to suppress are binding upon this court unless the evidence contained in the record preponderates against them. State v. Ross, 49 S.W.3d 833, 839 (Tenn.2001). Absent a showing by Defendant that the evidence preponderates against the judgment of the trial court, this court must defer to the ruling of the trial court. State v. Cribbs, 967 S.W.2d 773, 795 (Tenn.), cert. denied, 525 U.S. 932, 119 S.Ct. 343, 142 L.Ed.2d 283 (1998).
As the trial court correctly espoused, the United States Supreme Court established a two-part test to assess the validity of a pretrial identification in Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Specifically, the court must determine (1) whether the procedure used to obtain the identification was unduly suggestive and (2) if the identification was unduly suggestive, the court must determine, under the totality of the circumstances, whether the identification is nevertheless reliable. Id. After a review of the record, this court must concur with the trial court’s findings that the lineup and the procedures used in the lineup were not unduly suggestive. The evidence does not preponderate against the findings of the trial court. Defendant is not entitled to any relief on this issue.
7. Court hours
Defendant contends that the trial court erred in holding “late night” court sessions in this case. Prior to trial, Defendant filed a “Motion for Reasonable Court Horn’s During Jury Selection and Trial.” Defendant requested that court hours be limited to 9:00 a.m. to 5:00 p.m. The trial court ruled that the court hours would be the same as those held in Defendant’s prior Davidson County case, in which Defendant was tried and convicted of the murders of two Captain D’s employees. The following schedule was followed by the trial court:
JURY SELECTION:
May 15: 9:00 a.m. — Court called into session 7:15 p.m. — Court adjourned for the day
May 16: 9:00 a.m. — Court resumed 6:45 p.m. — Court adjourned for the day
May 17: 9:00 am. — Court resumed 8:00 p.m. — Court adjourned for the day
May 18: 9:00 a.m. — Court resumed 5:05 p.m. — Court adjourned for the day
May 19: 9:00 am. — Court resumed The record does not reflect the time court was adjourned. The trial court asserts that court was adjourned at 4:00 p.m.
THREE DAY BREAK BETWEEN JURY SELECTION AND TRIAL TRIAL
May 22: 8:30 am. — Trial proceedings began; jury-out proceedings 10:00 am. — Jury brought into court 7:30 p.m. — Jury excused for the day 7:55 p.m.' — Court adjourned for the day
May 23: 8:30 a.m. — Court resumed 7:30 pm. — Jury excused for the day 7:50 p.m. — Court adjourned for the day
May 24: 8:30 am. — Court resumed 4:26 pm. — Jury retired to jury room for deliberations 8:37 pm. — Jury excused for the day 8:39 pm. — Court adjourned for the day
May 25: 8:30 am. — Court resumed 8:53 am. — Jury retired to jury room for deliberations 8:50 p.m. — Jury returned to court to announce verdict 8:56 pm. — Jury excused for the day 9:05 p.m. — Court adjourned for the day
May 26: 8:30 a.m. — Court resumed; jury-out hearing conducted 10:34 am. — Jury returned to open court for penalty phase testimony 7:25 p.m. — Jury excused for the day 7:55 pm. — Court adjourned for the day
May 27: 8:30 a.m. — Court resumed; jury-out hearing conducted
8:42 a.m. — Jury returned to open court and penalty phase resumed 2:42 p.m. — Jury retired to the jury room for deliberations on the sentence 6:35 p.m, — Jury returned to open court and announced its sentence
In State v. Parton, 817 S.W.2d 28 (Tenn.Crim.App.1991), this court addressed the issue of “late night” court sessions as follows:
It is clear in this state that late night court sessions should be scheduled “only when unusual circumstances require it.” [State v.] McMullin, 801 S.W.2d [826], 832 [ (Tenn.Crim.App.1990) ]. Regardless of whether counsel or any juror objects, the late night sessions should be avoided; and they must be justified because of unusual circumstances. If the requisite unusual circumstances do exist and late night sessions are scheduled because of necessity, good practice would be to also let the record affirmatively reflect that all counsel and all jurors expressly agree. But the threshold question which must always be determined by the court is whether the circumstances justify the unusual session.
Id. at 33.
In his appeal of his convictions and sentences of the Captain D’ murders, Defendant argued that the trial court committed reversible error by holding late night court sessions. In that case, this court rejected Defendant’s arguments. This court specifically found that the record did not support Defendant’s argument that the court kept excessively late hours during trial, and the Tennessee Supreme Court affirmed this court’s decision and published that portion of the opinion as an appendix to its opinion. State v. Reid, 91 S.W.3d 247, 288, 300-01 (Tenn.2002).
This court must conclude in this case, as well, that the record does not support the argument that the court kept excessively late night hours. In support of its decision to extend the court day beyond eight hours, the trial court explained that this case was a capital murder case that had received extensive media attention. As a result, the court had gone outside of the county to secure a jury, and the jury was required to be sequestered and “locked away from family, friends and employment until the conclusion of the trial.” We do not find that the trial court abused its discretion in extending the court hours in this case beyond eight hours per day. Defendant is not entitled to relief on this issue.
8. [Deleted: Recusal]
9. Testimony of Joe Ingle
At Defendant’s competency hearing, Defendant called Reverend Joe Ingle as a witness. Reverend Ingle has served as Defendant’s pastor since June 1997, the month he was arrested. The trial court ruled that Reverend Ingle could not testify as to his conversations with Defendant because Defendant had not waived his priest-parishioner privilege. The court allowed Reverend Ingle to testify as to his general impressions of Defendant. Defendant asserts that the trial court erred in limiting Reverend Ingle’s testimony. Specifically, Defendant contends that because he was incompetent, and should have been presumed incompetent by the trial court, he was also incompetent to assert the priest-parishioner privilege. Accordingly, Reverend Ingle’s testimony should not have been limited.
In the appeal of his Montgomery County convictions, Defendant argued that the trial court erred in excluding the testimony of Reverend Ingle. Our Supreme Court rejected Defendant’s arguments as follows:
In our view, the trial court did not err in excluding the testimony. First, our conclusion that a defendant bears the burden of establishing his or her incompetency necessarily means that he or she has not been found to be incompetent before or during the competency proceeding itself. As a result, nothing prevents a defendant from invoking an applicable privilege during a competency proceeding as a matter of law. Moreover, the trial court is free to reconsider the issue of the defendant’s invocation of privileges while evidence of the defendant’s mental status is presented during the hearing by both the defense and prosecution.
Second, a defendant’s right to present evidence to meet the burden of proof does not eliminate the trial court’s discretion in determining relevance and materiality of the evidence. Here, the defendant presented extensive expert testimony to show that he was not competent to stand trial. The expert witnesses related the basis of their opinions, which included analysis of the defendant’s family background, history of head injuries, and mental illness.... In sum, the defendant’s exercise of his privileges did not prevent the trial court from fully considering the material evidence and making a thorough assessment of the relevant issues pertaining to the defendant’s competency to stand trial. Accordingly, we conclude that the trial court did not err in excluding the testimony of the witnesses.
State v. Reid, 164 S.W.3d at 309. After a review of the evidence in this case, and based upon the above-quoted rationale of the Supreme Court, we conclude that the trial court did not err in limiting the testimony of Reverend Ingle. Defendant is not entitled to relief on this issue.
10. Testimony of Maureen McGinley
Defendant sought to introduce the testimony of Maureen McGinley at the competency hearing. Ms. McGinley served as Defendant’s jury consultant during the Captain D’s murder trial in April 1999. Ms. McGinley had not had any contact with Defendant following that trial. Yet, Defendant wanted to elicit testimony from her regarding his actions during April 1999 to buttress his contention that he was incompetent to stand trial in this case.
As this court has explained, a hearing to determine if a defendant is competent to stand trial does not focus on the defendant’s guilt or innocence or even the defendant’s mental condition at the time of the crime. Instead, a competency hearing is “a very narrow inquiry aimed at determining whether one who is charged with a criminal offense is presently competent to stand trial.” State v. Stacy, 556 S.W.2d 552, 553 (Tenn.Crim.App.1977). The testimony of Maureen McGinley as to Defendant’s conduct during his April 1999 trial has not been shown to be relevant to the issue of Defendant’s competency at the time of the hearing in this case. Moreover, a memorandum authored by Ms. McGinley was admitted into the record and considered by the trial court. The memorandum set forth Defendant’s behavior during his April 1999 trial. Defendant is not entitled to relief on this issue.
11. Testimony of Carla Crocker
Defendant also contends that the trial court erred in excluding the testimony of Carla Crocker, the Public Affairs Officer for the Davidson County Sheriffs Office, from his competency hearing. Ms. Crocker would have testified that in March 1999, Defendant attempted to call a press conference in which he intended to discuss a dispute with the sheriffs office involving an allegation that a chicken bone had been found in his cell. In excluding Ms. Crocker’s testimony, the court concluded that (1) the event was too remote in time and was therefore not relevant and (2) the court had prevented the press conference by issuing a gag order. Defendant admitted that Ms. Crocker had not had any contact with Defendant since the incident in March 1999.
We conclude that Ms. Crocker’s testimony was not relevant to Defendant’s current competency. See Tenn. R. Evid. 401. We cannot determine that the trial court erred in excluding the testimony of Carla Crocker. Defendant is not entitled to relief on this issue.
12. Denial of funds for evaluation of Defendant by Dr. Xavier Amador
As has been previously discussed, during the competency proceedings Defendant moved to have Dr. Xavier Amador testify on Defendant’s behalf. The court denied the request. The court had previously approved funds for Dr. Amador to evaluate Defendant’s competency, but the court rescinded its previous ruling. The court explained that it had previously approved funds in the abstract for Dr. Amador, to keep a monitor on Defendant’s condition, but the monitoring had not occurred. Dr. Amador had not seen Defendant in six months. Defendant had been evaluated by a defense expert, would be evaluated by an expert on behalf of the State, and would be evaluated by an independent expert. Accordingly, the court determined that there was no reason to have Dr. Amador evaluate Defendant currently. The court further explained that time was of the essence. The court also noted that Supreme Court Rule 18 did not permit it to hire a second expert, especially an out-of-state expert.
Defendant argues that the trial court’s ruling “might have made sense” if the court had rendered a decision on the testimony of Dr. Auble, Dr. Martell, and Dr. Caruso. However, Defendant asserts that once the court secured a second independent evaluation of Defendant, the court was obligated to provide funds to enable Dr. Amador, who had extensive experience with Defendant, to perform an evaluation. Defendant cites to no case law to support his assertion that the court was obligated to provide funds for Dr. Amador once the court sought a second independent evaluation. Defendant further contends that the trial court’s ruling constitutes a denial of his right to call witnesses on his own behalf, as well as his rights to due process and a fair trial.
Defendant’s assertions are not supported by statute or case law. Tennessee Code Annotated Section 40-14-207 provides that in capital cases where a defendant has been found indigent, the court may, in its discretion, determine that expert services are necessary to ensure that the constitutional rights of the defendant are protected. The Supreme Court has analyzed section 40-14-207 of the Tennessee Code and has held that it does not entitle a defendant to an expert of his choice. Rather, an indigent defendant must be provided with the tools necessary to present an adequate defense. State v. Smith, 857 S.W.2d 1, 12 (Tenn.1993). The court provided funds for Defendant to obtain the services of Dr. Pamela Auble. Dr. Auble, unlike Dr. Amador, had maintained a continuous relationship with Defendant. Moreover, Dr. Amador’s practice was in New York, and Defendant did not demonstrate the need for an out-of-state expert as contemplated by Supreme Court Rule 13.
Based on the foregoing, we conclude Defendant is not entitled to relief on this issue.
13. Denial of continuance of competency hearing
As has been previously set forth, Defendant contends that the trial court erred in denying his request to defer the testimony of state expert Dr. Daniel Martell until such time as he had prepared his written report and defense counsel had the opportunity to review the report with the aid of their experts. Specifically, Defendant asserts that he was given insufficient time to prepare for the cross-examination of Dr. Martell. The circumstances surrounding Dr. Martell’s evaluation and testimony are as follows. Dr. Martell, who lives in California, arrived in Nashville on March 14, 2000, and evaluated Defendant and his competency to stand trial that night. Dr. Martell had actually traveled to Nashville to participate in a deposition in an unrelated capital case. The trial court contacted the federal judge who was supervising the other matter and requested that the State be permitted to “borrow” Dr. Martell so he could present testimony in this case during a lunch break. Dr. Martell did not have time to prepare a written report of his findings prior to his testimony. As a result, defense counsel requested that Dr. Martell’s testimony be deferred until he could prepare a written report and counsel had been given adequate time to review the report with the aid of experts. The trial court refused to delay Dr. Martell’s testimony. In denying Defendant’s request, the court noted that exigent circumstances existed due to the filing of the competency motion so close in time to the selection of the jury. The court acknowledged that the defense did not have much time to prepare for Dr. Martell’s testimony, but stated that the State did not have much time to prepare either.
Defendant asserts that his counsel was not given an opportunity to investigate the evidence provided by Dr. Martell prior to its admission. Defendant notes that to provide effective representation, counsel must conduct appropriate factual and legal investigations. Nichols v. State, 90 S.W.3d 576, 587 (Tenn.2002); Baxter v. Rose, 523 S.W.2d 930, 932, 935 (Tenn.1975). While counsel was not provided with Dr. Martell’s report prior to his testimony, counsel received Dr. Martell’s notes from the evaluation and met with Dr. Martell about his findings. Further, Defendant has not demonstrated any harm resulting from the court’s ruling on this issue. Given the unique circumstances surrounding Dr. Martell’s evaluation and testimony, we determine that the trial court did not abuse its discretion in denying a continuance of the competency hearing.
14. Testimony of Dr. Daniel Martell as expert in the field of psychology
Defendant contends that the trial court erred in allowing Dr. Martell to testify as an expert in the field of forensic neuropsychology because he is not licensed to practice psychology in the State of Tennessee. During cross-examination, defense counsel asked Dr. Martell if he had evaluated Defendant with regard to the issue of competency as a psychologist. Dr. Martell responded that he had. The trial court concluded, however, that Dr. Martell had performed a forensic evaluation of Defendant’s competence and had not engaged in the practice of psychology as defined by Tennessee Code Annotated Section 63-11-211(b)(5).
The Supreme Court addressed the same issue in Coe v. State, 17 S.W.3d 193 (Tenn.2000). The Supreme Court determined in that case that Dr. Martell had performed a forensic evaluation, which did not constitute the practice of psychology under Tennessee Code Annotated Section 63-11-203(a) and therefore no authorization was required by Tennessee Code Annotated Section 63 — 11—211 (b)(5). Id. at 224-25. In reaching its decision, the Supreme Court explained that the only purpose of Dr. Martell’s evaluation was to determine whether Coe was competent. Dr. Martell’s evaluation “was not for the purpose of ‘preventing or eliminating’ any psychological illness of [Coe] and ‘enhancing’ his mental health. Therefore, the performance of the forensic evaluation did not constitute the practice of psychology.” Id. at 225. The same is true in this case. Although Dr. Martell testified that his examination of Defendant was “the practice of psychology,” the purpose of Dr. Martell’s examination of Defendant was to determine his competency to stand trial. The examination was not for the purpose of preventing or eliminating any psychological illness of Defendant and enhancing his mental health. See Tenn.Code Ann. § 63-ll-203(a) defining the “practice of psychologist.” Accordingly, Dr. Martell’s evaluation did not constitute the practice of psychology. The trial court did not err in allowing Dr. Martell to testify as an expert witness. Defendant is not entitled to relief on this issue.
15. Second court-ordered evaluation of defendant and monitoring by Dr. Farooque
Following testimony by Defendant’s expert, the State’s expert, and the court-appointed mental health expert at the competency hearing, the court ordered a second evaluation of Defendant. The court found the testimony of the three experts to be conflicting and determined that a second evaluation of Defendant by a court-appointed expert was necessary. The court based its reasoning in part on the fact that it questioned the credibility of Dr. Caruso, the independent expert it had previously appointed.
Dr. Caruso’s written report stated that he had to remind Defendant during his evaluation that the insanity defense was available to him. However, Defendant was being evaluated for the purposes of competency to stand trial, not insanity at the time of the crimes. Following his testimony, Dr. Caruso sent a fax to the court explaining that he may have unintentionally misstated Defendant’s knowledge of his charges in his report and in his testimony before the court. The court found that Dr. Caruso’s report lacked credibility due to the fact that his finding that Defendant was unaware of the charges against him could not be verified by the tape recordings Dr. Caruso made, as the tape recorder had malfunctioned during that portion of the interview. Additionally, the court questioned Dr. Caruso’s credibility because he submitted a bill to the court in an amount of $20,250 for his evaluation of Defendant, when he had agreed to accept a fee of $7,500.
Tennessee Code Annotated Section 33-7-301 sets forth the procedure a court must undertake in appointing a competency expert. The Code, however, sets forth no procedure for the court to follow when it questions the credibility of the expert it has appointed under the Code. It is quite obvious that the court questioned the credibility of the expert it had appointed. Defendant asserts that because Tennessee Code Annotated Section 33-7-301 does not specifically provide that the court may order a second evaluation, the court erred in doing so. However, we cannot agree.
Given the circumstances of this case, we find it was within the trial court’s discretion to order a second evaluation. Defendant surmises that the court ordered the second evaluation because the court did not approve of the opinion given by Dr. Caruso. However, the court explained that it had absolutely no interest in trying any incompetent defendant, especially one whose life was at stake. The court, however, felt it was necessary for Defendant to undergo a second evaluation, given the conflicting testimony by the three experts. Moreover, Dr. Caruso had opined that although he believed Defendant was currently incompetent, he may become competent with the use of medication. Therefore, the court instructed that the second evaluation include recommendations regarding the need for medication. Given these circumstances and the fact that the court questioned the credibility and accuracy of the court-appointed expert, the court did not err in ordering a second evaluation of Defendant.
Similarly, Defendant argues that the trial court erred in designating Dr. Rokeya Farooque to monitor Defendant’s competency following the competency hearing. Defendant submits that the trial court had no legal authority to appoint an independent evaluator after it appointed Dr. Caruso. However, as set forth above, given the circumstances of this case, we find no error in the continued monitoring of Defendant by Dr. Farooque and the MTMHI forensic staff. As the trial court explained in its order denying Defendant’s motion for new trial, the court had not had any discussions with Dr. Caruso concerning continued monitoring of Defendant following the competency hearing. Although Dr. Caruso had agreed to evaluate Defendant for a fee of $7,500, he sent a request for payment on the amount of $20,250. As a result, the trial court determined that it should not employ a private psychiatrist when a qualified forensic team from a state hospital was available. Defendant has failed to set forth any prejudice that resulted from the trial court’s order that Dr. Farooque monitor Defendant’s competence throughout trial.
Defendant is not entitled to relief on this issue.
16. Rebuttal testimony of Dr. Caruso
Defendant submits that the trial court erred in refusing to allow Dr. Caruso to offer rebuttal testimony following the testimony by the evaluation team as to its evaluation of Defendant. However, the court allowed Dr. Auble, Defendant’s designated expert, to testify on rebuttal. Moreover, the court had stated in open court and through its written orders that it questioned the credibility and accuracy of Dr. Caruso and his findings.
The issue of whether to allow rebuttal testimony, as well as the scope of that testimony, lies within the sound discretion of the trial court. State v. Thompson, 43 S.W.8d 516 (Tenn.Crim.App.2000). The court’s ruling on this issue will not be overturned absent a clear abuse of discretion. State v. Kendricks, 947 S.W.2d 875, 884 (Tenn.Crim.App.1996). The trial court found that Defendant was not prejudiced by the court’s refusal to allow the rebuttal testimony of Dr. Caruso, and Defendant has failed to show on appeal how he was prejudiced by the court’s ruling that Dr. Caruso could not testify in rebuttal to the testimony of the evaluation team from MTMHI. After a review of the record, we cannot determine that the trial court abused its discretion in refusing to allow Dr. Caruso to testify on rebuttal at the competency hearing. Defendant is not entitled to relief on this issue.
17. [Deleted: Competency of Defendant to stand trial]
18. Defense counsel’s motion to withdraw
Following the competency hearing, defense counsel moved for withdrawal of further representation of Defendant. Defense counsel asserted that they could not effectively represent Defendant because he did not trust them and believed that they were trying to kill him. The trial court denied the motion. The trial court noted that Defendant’s main complaint with his attorneys was that they had focused too much time on the competency and penalty phases, rather than the guilt phase. The court determined that any attorneys in their stead would pursue the same strategy. The court also noted that it was not uncommon for defendants to disagree and be dissatisfied with their attorneys. The court pointed out that Defendant’s attorneys were very well acquainted with the facts of the case and Defendant’s mental health and family history. Accordingly, the court found that Defendant’s current attorneys were uniquely qualified to represent Defendant in this capital murder trial. The court determined that the replacement of Defendant’s attorneys was not warranted and denied the motion.
Tennessee Code Annotated Section 40-14-205 provides that the court may allow an appointed attorney to withdraw upon good cause shown. The trial court’s decision on withdrawal in a pending criminal matter rests within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. State v. Branam, 855 S.W.2d 563, 566 (Tenn.1993); State v. Russell, 10 S.W.3d 270, 274 (Tenn.Crim.App.1999). At the time of Defendant’s trial, Tennessee’s Code of Professional Responsibility was in effect. See Tenn. S.Ct. R. 8 (2000). Under the Code of Professional Responsibility, mandatory withdrawal of an attorney from representation is required when:
(1)The lawyer knows or it is obvious that the client is bringing the legal action, conducting the defense, or asserting a position in the litigation, or is otherwise having steps taken for the client, merely for the purpose of harassing or maliciously injuring any person.
(2) The lawyer knows or it is obvious that continued employment will result in violation of a Disciplinary Rule.
(3) The lawyer’s mental or physical condition renders it unreasonably difficult for the lawyer to carry out the employment effectively.
(4) The lawyer is discharged by his client.
Tenn. S.Ct. R. 8, DR 2-110(B). None of the instances requiring mandatory withdrawal is present in this case. Accordingly, mandatory withdrawal was not required. Defendant asserts, however, that permissive withdrawal was warranted by DR 2-110(C)(l)(d), which provides that counsel may request withdrawal because the client “[b]y other conduct renders it unreasonably difficult for the lawyer to carry out the employment effectively.” Tenn. S.Ct. R. 8, DR 2-110(C)(l)(d). On appeal, Defendant contends that his relationship with his attorneys was compromised to a degree that made counsel’s effective representation of him impossible. As a result, Defendant contends that the trial court erred in denying counsel’s motion to withdraw. We conclude, however, that the trial court did not err in denying counsel’s motion to withdraw, given the circumstances of this case.
In this case, the court found that counsel were uniquely qualified to represent Defendant. The Tennessee Supreme Court has stated that “[t]he advantage of familiarity with [a] case will generally outweigh any possible advantages to be gained in the fresh viewpoint of successor counsel.” Parton v. State, 2 Tenn.Crim.App. 626, 455 S.W.2d 645, 650 (1970). Defense counsel’s motion to withdraw was made with two weeks remaining until jury selection was set to begin. Defendant would have been adversely affected if the court had allowed withdrawal of counsel at such a late date. Moreover, as the trial court noted, the appointment of new counsel would not have resolved the issues Defendant had with his attorneys concerning what he believed was his best trial strategy.
We further note that subsequent to Defendant’s trial, Tennessee adopted the Rules of Professional Conduct. See Tenn. S.Ct. R. 8, RPC (2003). Under the Rules of Professional Conduct, withdrawal of representation by counsel is mandatory where continued representation will result in a violation of the Rules of Professional Conduct or other law, where counsel’s physical or mental condition materially affects his ability to represent the client, or where counsel is discharged by the client. Tenn. S.Ct. R. 8, RPC 1.16. Further, counsel may withdraw from representation of a client if the withdrawal can be accomplished without material adverse effect on the interests of the client, or if: the client persists in a course of action that the lawyer reasonably believes is criminal or fraudulent; the client uses the lawyer’s services to perpetrate a crime or fraud; the client insists upon pursuing an objective that the lawyer considers repugnant or imprudent; the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and the client has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; the representation will result in an unanticipated and substantial financial burden on the lawyer or has been rendered unreasonably difficult by the client; other good cause for withdrawal exists; or the client agrees to the withdrawal of the lawyer in writing. Id. The Rules of Professional Conduct were not in effect until March 1, 2003, and thus were not applicable at the time of Defendant’s trial. However, we determine that even if this case were remanded for a new trial and tried under the new Rules of Professional Conduct, mandatory withdrawal would not be required, given the same set of circumstances. Moreover, permissive withdrawal of defense counsel in this instance would have resulted in a material adverse effect on the interests of Defendant. Accordingly, assuming arguendo that it was error on the part of the trial court to deny counsel’s motion to withdraw, such error would be harmless in light of the new Rules of Professional Conduct. A new trial would not give Defendant any benefit. As the trial court noted, appointment of new counsel would not have resolved the issues Defendant had with defense counsel. As a result of the foregoing, the trial court did not abuse its discretion in denying defense counsel’s motion to withdraw.
19. “Religious tests” in voir dire
Defendant contends that the exclusion of jurors who express religious objections to the death penalty constitutes a religious test, which is prohibited by Article I, Section 6 of the Tennessee Constitution. Defendant filed a motion to prohibit the use of this “religious test,” which the trial court denied. Defendant acknowledges that the Tennessee Supreme Court has held that the exclusion of jurors who express religious objections to the death penalty is not a religious test, per se, citing State v. Jones, 789 S.W.2d 545, 547 (Tenn.1990).
Moreover, the Supreme Court affirmed this court’s holding in defendant’s prior appeal of the Captain D’s murders in State v. Reid, that the exclusion of prospective jurors by a trial court because of their moral or religious based reluctance to impose the death penalty is not error. State v. Reid, 91 S.W.3d 247, 289-90 (Tenn.2002). “In this regard, potential jurors are removed for cause not because of their religious opinion or affiliation but because the jurors are unable to view the proceedings impartially and perform their duties in accordance with the juror’s oath.” Id. at 290. Questioning of a juror with regard to the death penalty does not amount to a religious test. Id. (citing Wolf v. Sundquist, 955 S.W.2d 626, 631 (TenmApp.), perm. app. denied, (Tenn.1997)). Defendant acknowledges that the Tennessee Supreme Court has rejected this argument, but makes the argument in order to preserve it for later review. See State v. Gomez, 163 S.W.3d 632, 651 (Tenn.2005) (“Indeed, a defendant is never precluded from raising an issue simply because a prior decision has rejected it.”). Defendant is not entitled to relief on this issue.
20. Instruction to venire that some aggravating factors relate to circumstances of the victim
Defendant contends that the trial court erred when it stated to the first panel of potential jurors, in giving general instructions about the nature of a capital case, that aggravating circumstances are specifically defined by the legislature and “relate to circumstances about the crime or circumstances about the victim.” Defendant asserts that this statement could have misled the jury into believing that victim impact evidence constituted an aggravating circumstance. Defendant admits that several of the aggravating circumstances relate to circumstances of the victim. However, Defendant submits that the court must state the law fully and accurately, and this statement by the court may have misled the jury. Defendant further admits that the trial court later properly instructed the jury that victim impact evidence is not the same thing as an aggravating circumstance. However, Defendant submits that the proper instruction only served to heighten the jury’s confusion.
Defendant failed to enter a contemporaneous objection to the trial court’s statement; therefore, this issue is waived for purposes of appeal. Tenn. R.App. P. 36(a). Moreover, in the same general instruction to the panel of potential jurors, the trial court instructed the jury that they must rely on the aggravating circumstances delineated by the legislature, that they could not make up their own aggravating circumstances, that the court would tell them what the potential aggravating circumstances were, that they would have to unanimously agree that the aggravating circumstances existed, and they would have to agree that the aggravating circumstances existed beyond a reasonable doubt. This court cannot determine that the trial court’s statement misled the jury. Defendant is not entitled to relief on this issue.
21. Questioning of potential juror regarding her opinion of mental health as mitigation evidence in the case of State v. Coe
Defendant next contends that the trial court erred in refusing to allow questioning of a potential juror on her opinion as to whether she believed it was proper for the attorneys who had represented capital defendant Robert Glen Coe to claim that he was mentally incompetent as a defense to his impending execution. In response to the question, the potential juror responded: “I didn’t think anything about that because I didn’t know anything about that.” The State then objected to further questioning on the grounds of relevancy. The court sustained the objection.
Defendant contends that as a result of the court’s limitation on questioning of the potential juror, Defendant was not able to conduct the voir dire in such a manner that would enable him to determine if a potential juror would consider, in good faith, the mitigating circumstance of mental health. However, the court did not limit counsel’s ability to question the potential juror on whether she would consider mental health as a mitigating circumstance. Instead, the court refused to allow questioning of the juror on a subject about which the juror had advised she had no knowledge. The court’s limitation on defense counsel’s questioning of the juror about her knowledge and opinion of the Coe case did not impede Defendant’s ability to determine if the potential juror would consider, in good faith, the mitigating circumstance of mental health.
The control of voir dire proceedings rests within the sound discretion of the trial court, and this court will not interfere with the exercise of this discretion unless clear abuse appears on the face of the record. State v. Howell, 868 S.W.2d 238, 247 (Tenn.1993), cert. denied, 510 U.S. 1215, 114 S.Ct. 1339, 127 L.Ed.2d 687 (1994). Defendant has failed to demonstrate an abuse of discretion by the trial court on this issue, and therefore is not entitled to relief on this issue.
22. Failure to excuse juror J.R. for cause
Defendant asserts that the trial court should have excluded juror J.R. for cause. In response to the juror questionnaire, Ms. R. stated that she strongly favored the death penalty and that she would have difficulty in imposing a sentence of life or life without the possibility of parole in a murder case. Ms. R. explained that if a person was in his right mind and knew what he was doing, then she would be in favor of imposing the death penalty. However, she also explained that she would listen to the facts of the case, and if the aggravating factors did not outweigh the mitigating factors, she could consider both the sentences of life and life without the possibility of parole. She further explained that she could follow the law and her oath as a juror.
Defense counsel also asked Ms. R. about her views on the death penalty, and she again explained that she was in favor of the death penalty. However, upon further questioning by defense counsel, Ms. R. stated that she would consider mitigating factors in making a decision on the appropriate sentence and would consider the sentences of life and life without the possibility of parole. In response to questioning by the State, Ms. R. again confirmed that she would listen to all of the evidence, weigh both aggravating and mitigating circumstances, and consider sentences of life and life without the possibility of parole. Defense counsel did not challenge juror R. immediately following her individual voir dire. However, the defense did later challenge Ms. R. At that time, the trial court denied the challenge for cause. The trial court ruled that Ms. R. could follow her oath as a juror and determined that Ms. R. would be an appropriate juror for the case.
In determining when a prospective juror may be excused for cause because of his or her views on the death penalty, the standard is “whether the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” State v. Austin, 87 S.W.3d 447, 472-73 (Tenn.2002) (citing Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985)). “[T]his standard likewise does not require that a juror’s biases be proved with ‘unmistakable clarity.’ ” Id. at 473. However, the trial judge must have the “definite impression” that a prospective juror could not follow the law. State v. Hutchison, 898 S.W.2d 161, 167 (Tenn.1994) (citing Wainwright v. Witt, 469 U.S. at 425-26, 105 S.Ct. at 853). Finally, the trial court’s finding of bias of a juror because of his or her views concerning the death penalty are accorded a presumption of correctness, and the defendant must establish by convincing evidence that the trial court’s determination was erroneous before an appellate court will overturn that decision. State v. Alley, 776 S.W.2d 506, 518 (Tenn.1989), cert. denied, 493 U.S. 1036, 110 S.Ct. 758, 107 L.Ed.2d 775 (1990).
After reviewing the answers and responses of J.R., we conclude that the trial court did not err in failing to exclude her for cause. Ms. R. was extensively questioned as to whether she could apply the law to the evidence and consider all forms of punishment in this case. She responded that she would be able to do so. Defendant is not entitled to relief on this issue.
23. Questioning of prospective jurors as to whether they believed the death penalty is a “moral function” of the government
During voir dire, the State asked potential jurors if they believed the death penalty was an “appropriate and moral function of the government in certain first degree murder cases as set out by law.” Defendant contends that the trial court erred in allowing this question to be asked because the question implies that a juror who will not return a death sentence is immoral. However, Defendant did not object to this question. Accordingly, Defendant has waived appellate consideration of this issue. See State v. Thornton, 10 S.W.3d 229, 234 (Tenn.Crim.App.1999) (citing Tenn.R.App. P. 36(a)); State v. Green, 947 5.W.2d 186, 188 (Tenn.Crim.App.1997). Moreover, the scope and extent of voir dire is entrusted to the discretion of the trial court, and a trial court’s rulings will not be reversed on appeal absent an abuse of discretion. State v. Smith, 993 S.W.2d 6, 28 (Tenn.1999). Defendant has failed to show an. abuse of discretion by the trial court; therefore, he is not entitled to relief on this issue.
24. Questioning of prospective jurors regarding what they had learned about eyewitness identification from watching television
During the group voir dire in this case, defense counsel attempted to ask a member of the panel what he had learned about eyewitness identification from watching television shows. The defense had included a similar question on the juror questionnaire. The State objected to the question during voir dire, and the court sustained the objection. In making its ruling, the court explained that the question was irrelevant to the potential juror’s qualification to sit on the jury. The court further explained that the defense’s question could elicit responses that would taint the entire panel. The trial court noted in its order denying the motion for new trial that “[t]he relevant inquiry was whether, regardless of each juror’s personal knowledge concerning [eyewitness identification] evidence, he or she could objectively listen to and evaluate it during this trial.”
Rule 24(a) of the Tennessee Rules of Criminal Procedure provides that the trial court “shall permit questioning by the parties for the purposes of discovering bases for challenge for cause and enabling an intelligent exercise of peremptory challenges.” As previously set forth, however, the scope and extent of voir dire is entrusted to the discretion of the trial court, and a trial court’s rulings will not be reversed on appeal absent an abuse of discretion. Smith, 993 S.W.2d at 28.
The trial court allowed the defense to inquire about the potential jurors’ knowledge of eyewitness identification on the questionnaire. Moreover, the court allowed counsel to ask potential jurors if they had learned anything outside of the courtroom that would affect their ability to consider eyewitness testimony fairly and impartially. Defense counsel also asked the panel numerous questions on the issue of eyewitness identification. Defendant asserts that by asking the potential juror what he had learned through watching television shows, counsel was merely attempting to make sure that the juror had not viewed programs that depicted eyewitness identifications as infallible or immune from error. After a review of the voir dire, we conclude that defense counsel was not restricted from asking about whether potential jurors believed or had learned from an outside source that identifications are infallible or immune from error. In fact, defense counsel announced to the panel that she wanted to ask a general question, which she stated as follows: “Is there anybody here who believes that people never make mistakes in recognizing other people? Is there anybody here who believes that?” No one from the panel responded affirmatively. The trial court’s refusal to allow questioning of a potential juror as to his viewing of a television show that included the subject of eyewitness identification was not error. Defendant has failed to show that the trial court erred in this ruling, and is therefore not entitled to relief on this issue.
25. Questioning of witness J.G. regarding the color of the perpetrator’s gun
Witness J.G. required the use of an interpreter at trial. Mr. G., a Spanish speaking native of Mexico, was assisted by an interpreter from Puerto Rico. During the State’s case-in-chief, the prosecutor questioned G. about the color of the gun used during the homicides. G., through his interpreter, responded that the gun was a “gold-type color.” The prosecutor asked two follow up questions, inquiring as to whether the gun was shiny like gold or had a gold tint. Each time, G. responded that it was a gold or gold-like color. The prosecutor subsequently asked the interpreter to ask G. to describe the difference in silver and gold. At that point, the defense objected, arguing that the question of the color of the gun had been asked and answered. The prosecutor explained that he believed there might be a problem in the translation between the Mexican witness and the Puerto Rican interpreter. The prosecutor stated he wanted to ask one clarifying question. The judge then allowed the following question: “Could you ask, the question is, what is silver in Mexico; what is silver in Mexico versus gold in Mexico?” G. responded: “I call silver a gold color.”
Defendant contends that the issue of the color of the gun was crucial because witness R.B. testified that the gun he had sold to Defendant was “nickel-plated.” Defendant asserts that G. did not refer to the color silver until the State suggested the proper answer in its question. Accordingly, Defendant contends that the trial court erred in allowing the repetitive questioning regarding the color of the gun.
It is the longstanding principle that the “propriety, scope, manner and control of examination of witnesses is within the trial court’s discretion and will not be interfered with in the absence of an abuse of discretion.” State v. Harris, 839 S.W.2d 54, 72 (Tenn.1992). In the order denying the motion for new trial, the trial court explained that G. had previously expressed concern that his thoughts were not being accurately conveyed at times due to variations among the dialects of his Spanish speaking interpreters. Moreover, this court cannot conclude that the trial court’s allowance of a clarifying question results in prejudicial error, especially in light of the fact that the defense fully cross-examined G. and highlighted his previous testimony that the color of the gun was a golden color. Defendant has failed to show an abuse of discretion by the trial court. Defendant is not entitled to relief on this issue.
26. Admission of photograph of defendant
Exhibit 2 to Defendant’s trial is a photograph of Defendant standing in front of a black automobile. In the photograph, Defendant is wearing a pair of black tennis shoes. Witness J.G. testified that the shoes worn by Defendant in the photograph were similar to the shoes he wore on the night of the robbery and murders at McDonald’s. The photograph was admitted over the objection of the defense. Specifically, the defense contended at trial and contends on appeal that the photograph should not have been admitted into evidence because the photograph does not clearly depict a pair of shoes, and the admission of the photograph was, therefore, error. Defendant further argues that the photograph should have been excluded pursuant to Tennessee Rule of Evidence 403, which reads: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Defendant argues that the photograph at issue is not admissible because it does not clearly depict a pair of shoes, and that, even if it did, there was no way that G. could state with certainty that the shoes in the photograph were the same shoes worn by the perpetrator.
It is within a trial court’s discretion to admit photographic evidence at trial, and this court will not reverse the trial court’s determination absent an abuse of discretion. State v. Banks, 564 S.W.2d 947, 949 (Tenn.1978). However, before a photograph may be admitted into evidence, the relevance of the photograph must be established, and the probative value of the photograph must outweigh any prejudicial effect. State v. Braden, 867 S.W.2d 750, 758 (Tenn.Crim.App.1993). We conclude that the photograph was relevant to the description of Defendant on the night in question, and we further determine that the admission of the photograph was not outweighed by any prejudicial effect. The photograph at issue is a clear depiction of Defendant wearing a pair of black tennis shoes. We cannot determine that the trial court erred in allowing the admission of the photograph. Defendant has failed to show that the photograph was' not relevant to G.’ description of Defendant or that the admission of the photograph was error under Rule 403. Defendant is not entitled to relief on this issue.
27. Impeachment of witness G. with transcript of preliminary hearing
Defendant contends that the trial court committed reversible error when it denied defense counsel’s request to impeach G. with his testimony at the preliminary hearing. At the preliminary hearing, G. testified that Defendant’s hair was black and it came out of the baseball cap he was wearing on both the sides of the cap and in the back. During G.’ cross-examination at trial, he testified that the man at the restaurant on the night in question had hair coming out of the sides of the baseball cap. He further testified that he did not recall having said that the perpetrator’s hair extended from the back of the cap and that as he recalled, the hair was only coming out from the sides of the cap. The defense, however, had G. view the composite sketch, and G. admitted that he had assisted the police in the formulation of the sketch. G. admitted that the man pictured in the sketch had hair coming out of the back of the baseball cap. Moreover, defense counsel asked: “But you did see hair coming out of the back of the head,” and G. responded: “Yes, coming out of the baseball cap.” Thereafter, the defense requested that it be permitted to cross-examine G. with his testimony at the preliminary hearing. The defense specifically requested that it be permitted to show the transcript to G. to show him exactly what his testimony had been at the preliminary hearing. The trial court denied the request.
In denying defense counsel’s request, the court explained that the transcript was produced in English, and it had not been established that G. could read English. Moreover, there was not a verbatim transcription of G.’ words at the preliminary hearing. Instead, there was a transcription of the interpreter’s translation of what G. said.
The propriety, scope, manner and control of cross-examination of witnesses lies within the discretion of the trial court. State v. Dishman, 915 S.W.2d 458, 463 (Tenn.Crim.App.1995) (citing Coffee v. State, 188 Tenn. 1, 4, 216 S.W.2d 702, 703 (1948); Davis v. State, 186 Tenn. 545, 212 S.W.2d 374, 375 (1948)). This court will not disturb the limits placed upon the cross-examination by the trial court, unless the trial court has unreasonably restricted the right. Id. (citing State v. Fowler, 213 Tenn. 239, 253, 373 S.W.2d 460, 466 (1963); State v. Johnson, 670 S.W.2d 634, 636 (Tenn.Crim.App.1984)). We cannot conclude that the trial court unreasonably restricted the cross-examination of G. when it denied the defense’s request to impeach him with his testimony at the preliminary hearing. As the trial court noted, there was no proof that the witness would have been able to read the English transcript to either confirm or deny that he made the statement as set forth in the transcript. Moreover, G. admitted during cross-examination by the defense that the composite sketch depicted the perpetrator with hair coming out of the back of the baseball cap. He also admitted that he saw hair coming out of “the back of the head.” Defendant has failed to show that he was prejudiced by the court’s denial of cross-examination of G. with the use of the preliminary hearing testimony. Defendant is not entitled to relief on this issue.
28. Re-cross Examination of witness G.
On redirect examination of witness G., the State questioned G. about the length of Defendant’s hair on the night of the murders as opposed to the length of his hair the first time he saw Defendant in court after his arrest. During re-cross by the defense, counsel attempted to introduce a photograph of Defendant for the purpose of asking if Defendant’s hair in the photograph is different from the hair of the man G. encountered at McDonald’s on the night of the robbery and murders. The trial court denied Defendant’s request to cross-examine G. with the photograph. The trial court ruled that such questioning of G. was not proper for re-cross examination. The court further advised that counsel could have introduced the photograph during its cross-examination of G. The trial court explained that the prosecutor’s redirect examination of G. regarding the length of Defendant’s hair on the night in question and in court did not open the door for the questioning and introduction of the photograph as proposed by defense counsel.
As set forth supra the propriety, scope, manner and control of cross-examination of witnesses lies within the discretion of the trial court, and this court will not disturb the limits placed upon the cross-examination, unless the trial court has unreasonably restricted the right. State v. Dishman, 915 S.W.2d at 463. Defendant has not shown how he was prejudiced by the trial court’s ruling on this issue. Further, after a review of the record before us, we cannot conclude that the trial court committed reversible error in its refusal to allow the questioning and introduction of the photograph as requested by Defendant. Defendant is not entitled to relief on this issue.
29. Crime scene video
Defendant contends that the trial court erred in admitting into evidence the videotape of the crime scene. Defendant contends that the videotape was cumulative of testimony of other witnesses. Specifically, defendant contends that the videotape was not necessary to establish the position of the bodies or the description of the crime scene. Defendant further contends that the depiction of the crime scene in the videotape was “gruesome and graphic” and thus prejudicial. Defendant submits that the only purpose of the video was to inflame and prejudice the jury against him.
The admissibility of a videotape of a crime scene is within the sound discretion of the trial judge, and his or her ruling on admissibility will not be disturbed on appeal absent a clear showing of an abuse of that discretion. State v. Carruthers, 35 S.W.3d [516] at 576-57 [ (Tenn.2000)], cert. denied, 533 U.S. 953, 121 S.Ct. 2600, 150 L.Ed.2d 757 (2001); State v. Banks, 564 S.W.2d 947, 949 (Tenn.1978); see also State v. Van Tran, 864 S.W.2d 465, 477 (Tenn.1993), cert. denied, 511 U.S. 1046, 114 S.Ct. 1577, 128 L.Ed.2d 220 (1994). As the Supreme Court stated in Carruthers, the modern trend is to vest more discretion in the trial judge’s rulings on admissibility. Carruthers, 35 S.W.3d at 577 (citing State v. Banks, 564 S.W.2d at 949; State v. Bailey, No. 01C01-9403-CC-00105, 1995 WL 424996 (Tenn.Crim.App., Nashville, July 20, 1995); perm. app. denied, (Tenn. Jan. 8,1996)).
Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401. However, relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” Tenn. R. Evid. 403. Prejudicial evidence is not excluded as a matter of law. Carruthers, 35 S.W.3d at 577 (citing State v. Gentry, 881 S.W.2d 1, 6 (Tenn.Crim.App.1998)). The court must still determine the relevance of the visual evidence and weigh its probative value against any undue prejudice. Id. The term “undue prejudice” has been defined as “[a]n undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Banks, 564 S.W.2d at 950-51.
In Banks, the Supreme Court gave the trial courts guidance for determining the admissibility of relevant photographic evidence. A trial court should consider: the accuracy and clarity of the picture and its value as evidence; whether the picture depicts the body as it was found; the adequacy of testimonial evidence in relating the facts to the jury; and the need for the evidence to establish a prima facie case of guilt or to rebut Defendant’s contentions. Banks, 564 S.W.2d at 951. In this case, the trial court found that the video was relevant to show the position of the victims, to give an accurate description of the crime scene, to corroborate the testimony of G., to show the location of the victims’ hats, to show the location of the shell casings, and to show intent. The court further found that the probative value of the videotape was not substantially outweighed by the danger of unfair prejudice. Defendant advances the argument that the video was graphic and gruesome, but the only contention he makes in this regard is that the video shows the bloody bodies of the victims as they were found at the crime scene and items left behind by medical personnel who rendered aid to Brown and G. before transporting them to the hospital. The crime scene video of most homicides will necessarily depict the bodies of the victims as they were found and the blood of the victims. If this court were to accept defendant’s argument in this regard, no crime scene videotapes of murders would ever be admissible.
This court further concludes that while the videotape and the other evidence admitted in this case may have contained some of the same material, it was not error to admit the videotape. See State v. Bigbee, 885 S.W.2d 797, 807 (Tenn.1994), holding that it was not error to admit a videotape of the crime scene although it depicted images similar to those of photographs also admitted. Each of the different forms of evidence admitted in this case served different purposes and were probative of the issues to be decided by the jury. As a result, the trial court did not abuse its discretion in admitting the videotape into evidence. See id.; see also State v. Lee, No. 02C01-9608-CC-00085, 1997 WL 686258, *9 (Tenn.Crim.App., Jackson, Nov. 5, 1997), perm. app. denied, (Tenn. Aug. 3, 1998). The probative value of the video of the crime scene is not outweighed by the danger of any unfair prejudice.
Defendant is not entitled to relief on this issue.
30. Photograph of crime scene
Defendant moved pretrial to exclude all still photographs of the crime scene. The court denied the motion, ruling that prior to the introduction of any photograph the State must give notice so that a hearing could be held outside the presence of the jury to determine admissibility. At trial, the court allowed the State to introduce a still photograph of the crime scene, which depicts blood at the scene and bloody footprints. Defendant contends that the admission of this photograph was error.
As set forth supra, it is within the trial court’s discretion to admit photographic evidence at trial, and this court will not reverse the trial court’s determination absent an abuse of discretion. Banks, 564 S.W.2d at 949. In its order denying the Defendant’s motion for new trial, the court found that the photograph was not particularly gruesome, it assisted paramedic Randy Stratton with his testimony that the area where J.G. was found was small and there was virtually no way for paramedics to attempt to save G.’ life without contaminating the scene, it was relevant to the State’s theory that unidentified bloody prints discovered at the scene were likely those of emergency personnel as opposed to the perpetrator, and its relevance was not substantially outweighed by the danger of unfair prejudice.
After a review of the record, we conclude that the trial court did not err in allowing the introduction of the photograph. While it depicts blood at the scene, we conclude that the photograph is not particularly gruesome. Moreover, we also agree that the photograph assisted witness Randy Stratton in his testimony. The probative value of the photograph is not substantially outweighed by the danger of unfair prejudice. Accordingly, Defendant is not entitled to relief on this issue.
31. Photographs of defendant with various hair lengths
During the testimony of Detective Postiglione, the State submitted for evidence a collection of photographs that depicted Defendant with various hair lengths. Defendant contends that the admission of the photographs was error because some of the photographs dated back to 1996 and, therefore, were not relevant to the time period at issue, spring and summer of 1997. Defendant further contends that the State offered proof that Defendant had altered the length of his hair during the relevant time period. Therefore, Defendant asserts that the admission of this cumulative evidence was irrelevant.
The trial court determined in its order denying the motion for new trial that the exact length of the Defendant’s hair at the time in question was unknown. Therefore, through the photographs, the State “invited the jurors to observe the defendant’s appearance with hat of various lengths and decide if his appearance could have been consistent with that of the perpetrator.” The court specifically found that the probative value of the photographs was not outweighed by the danger of unfat prejudice.
After reviewing the photographs, the record in general, and Defendant’s arguments, we cannot conclude that the trial court erred in allowing the collection of photographs to be introduced into evidence. The photographs were relevant to the issue of Defendant’s appearance as compared to that of the perpetrator. Defendant has failed to show how the relevance of the photographs were substantially outweighed by the danger of unfair prejudice. Further, Defendant has failed to demonstrate that the trial court abused its discretion in permitting the photographs to be admitted. Accordingly, this court cannot reverse the trial court on this issue. See Banks, 564 S.W.2d at 949.
32. Questioning of witness R.B.
R.B., whose father lived in the same boarding house as Defendant, testified that in January 1997, Defendant asked him to obtain a .25 automatic handgun. Defendant advised that he wanted the handgun for his personal protection. B. explained that he was a truck driver and met Defendant through his father. Mr. B. sold Defendant two .25 automatic handguns during January 1997. The first handgun was a Davis .25 automatic, which B. described as nickel-plated with black handle grips. After selling Defendant the first handgun, B. testified that Defendant requested another handgun. The second handgun was also a .25 automatic, which was nickel-plated with pink handles. Further, Mr. B. testified that he gave Defendant a box of ammunition that came in a green and yellow box, but he could not recall the brand of the ammunition.
During the cross-examination of witness R.B., the defense asked B. if there had been extensive media coverage of the McDonald’s murders in Nashville. B. responded that he assumed there had been, but because he drove a truck, he was not in Nashville a lot. The defense then sought to ask Mr. B. if he had ever seen the composite sketch of the perpetrator and if so, if he believed the sketch resembled Defendant. The trial court instructed the defense not to ask the question because counsel did not know the response to the question, and it was possible that his response might include a reference to one of the Defendant’s other trials, which would cause a mistrial. The trial court concluded that any probative value of the response was “greatly outweighed by the possibility that B. would cause a mistrial by mentioning the unrelated murders.” Defendant submits that the trial court should have allowed a jury-out hearing on the issue, but he did not make such a request at trial.
The trial court ruled pretrial that no mention of Defendant’s previous cases could be referenced at this trial. Accordingly, the court appears to have had concerns that the questioning regarding the media’s extensive coverage of the McDonald’s murders could lead into the witness’s discussion of the media coverage in the Captain D’s and Baskin Robbins’s murders. The trial court ultimately concluded that the questioning was excluded by Rule of Evidence 403. Rule of Evidence 403 excludes evidence if the probative value of the evidence is “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Tenn. R. Evid. 403. Defendant did not request a jury-out hearing to make an offer of proof on this issue; therefore, the answer to defense counsel’s question of whether B. had seen the sketch remains a mystery. Further, counsel expressed interest in knowing whether B. believed the sketch looked like Defendant. Again, however, no offer of proof was made; therefore, the question remains unanswered. In the absence of an offer of proof on this issue, Defendant cannot show that he was prejudiced by the trial court’s ruling. Accordingly, we conclude that any error by the trial court on this issue was harmless. See Tenn. R.Crim. P. 52(a). Defendant is not entitled to relief on this issue.
33. Testimony of B.B.
B.B. testified that he became acquainted with Defendant in early 1997, while working out at Hermitage Fitness Center. He testified that in March 1997, after Defendant overheard him talking with other members of the fitness club about the stock market, Defendant approached him for financial advice. Defendant advised that he had $3,000 he wanted to invest and asked Mr. B.’s advice on how he should invest the money. Mr. B. advised that he should invest the money in a mutual fund. When he saw Defendant a few weeks later, Defendant advised that he had invested the money in a mutual fund.
Defendant contends that the trial court erred in permitting B.’s testimony because it impermissibly reflects upon Defendant’s financial condition. We have previously concluded that the trial court did not err in permitting the limited proof of Defendant’s financial condition. We further hold that the trial court did not err in permitting the testimony of Mr. B., as it was relevant to show that although Defendant had been unemployed since February, he had either acquired or intended to acquire $3,000 and was seeking advice on how to invest the money. The relevance of this testimony was not outweighed by the danger of unfair prejudice. See Tenn. R. Evid. 403.
Defendant is not entitled to relief on this issue.
34. Trial court’s refusal to instruct jury that it could convict defendant of premeditated murder or felony murder, but not both
Defendant contends that the trial court should have instructed the jury it could convict him of premeditated murder or felony murder, but not both. Defendant concedes, however, that the Supreme Court rejected this argument in State v. Cribbs, 967 S.W.2d 773, 787-88 (Tenn.1998). Therefore, Defendant asserts this issue strictly for the purpose of preserving it for further review. Accordingly, Defendant is not entitled to relief on this issue.
35. Instruction to jury that punishment for the crime of first degree murder would be considered at separate sentencing hearing if Defendant was found guilty
Defendant contends that a portion of the court’s instructions to the jury should have been deleted. Specifically, Defendant asserts that the jury should not have been instructed during the guilt-innocence phase of the trial that a separate sentencing hearing would be held if the jury found Defendant guilty of first degree murder. The trial court instructed the jury pursuant to Tennessee Pattern Jury Instruction 7.01(b) and 7.03(b) as follows:
If you so find, then it shall be your duty after a separate sentencing hearing to determine whether the defendant will be sentenced to death, life imprisonment without the possibility of parole, or life in prison, but you will not consider punishment for this offense at this time.
Defendant argues that the above-quoted portion of the jury charge was improper despite the fact that it was technically accurate, because the instruction had the possibility of diverting the jury’s attention from their sole task during that proceeding, which was to determine Defendant’s guilt or innocence. However, this court has held that a trial court’s failure to instruct the jury as to its role in punishing the defendant in a separate sentencing hearing if they found Defendant guilty of first degree murder necessitated a new trial. State v. Fuino, 608 S.W.2d 892, 895 (Tenn.Crim.App.1980). In Fuino this court specifically ordered the trial court to instruct the jury as to their duty to fix punishment after a separate sentencing hearing in the event of a verdict of first degree murder on remand. Id. at 896. Accordingly, the trial court did not err in giving the contested instruction. Defendant is not entitled to relief on this issue.
36.Use of styrofoam heads by Dr. Levy as demonstrative evidence
During Dr. Bruce Levy’s testimony, he used styrofoam heads to demonstrate, with a pen, the head wounds suffered by the victims. Defendant objected to the use of the demonstrative evidence, contending that the heads were unduly prejudicial. Defendant made this argument in the appeal of his Montgomery County convictions, and this court rejected his challenge. The Supreme Court has affirmed our conclusion that the use of styrofoam heads by the medical examiner was not error. Reid, 164 S.W.3d at 344. In rejecting Defendant’s argument this court stated, and our Supreme Court has agreed with the following:
This court approved the use of this type of demonstrative evidence in State v. Robert E. Cole, No. 02C01-9207-CR-00165, 1993 WL 539185, *3 (Tenn.Crim. App., Jackson, Dec. 30, 1993). In Cole, this court concluded that the evidence was “highly probative as to the issues to be decided by the jury. Under the circumstances, the trial court did not err in admitting the challenged evidence.” Id. (citing State v. King, 718 S.W.2d 241 (Tenn.1986); State v. Sexton, 724 S.W.2d 371 (Tenn.Crim.App.1986)).
This court cannot find that the use of the styrofoam heads was inappropriate in this case as the appellant urges. The trial court did not err in its ruling that the use of the styrofoam heads would assist [the medical examiner] in demonstrating the location of the wounds. This issue is without merit.
Reid, 164 S.W.3d at 344.
The trial court in this case specifically found that the styrofoam heads would assist Dr. Levy in demonstrating the location of the victims’ wounds. This court cannot determine that the trial court erred in allowing the use of the demonstrative evidence. Defendant is not entitled to relief on this issue.
37. Recall of witness R.B. by the State
The trial court allowed the State to recall witness R.B. to correct his earlier testimony. Mr. B. had testified at trial that he sold Defendant a Larsen .25 automatic handgun. After his testimony, the witness reviewed an earlier police report and realized that he had misstated the brand of the handgun during his testimony at trial. The defense objected to the recall of witness B. However, the trial court allowed the recall of Mr. B. for the limited purpose of clarifying his misstatement as to the brand of the handgun. The court allowed the recall because Mr. B. was correcting his testimony as to the brand of the gun, but was not adding to his testimony. On recall, Mr. B. testified that the handgun he sold to Defendant was not a Larsen handgun, but was a Raven handgun.
Defendant contends that the trial court’s action in permitting the recall of Mr. B. had the effect of allowing him to be a more credible witness than he actually was. Moreover, Defendant contends that the recall of Mr. B. must be compared to his request to recall Dr. Caruso at the competency hearing. However, the recall of witness B. differed greatly from the requested recall of Dr. Caruso. First, Mr. B. was a lay witness who made a misstatement on the stand. Dr. Caruso was an expert who had been compensated for his opinions and had provided his opinions in a written report. Second, Mr. B. merely needed to correct his testimony on the stand as to the brand of handgun he sold to Defendant. Dr. Caruso, however, would have been required to amend his expert report and alter the basis of his expert opinions. Furthermore, the trial court found that the circumstances surrounding the requested recall of Dr. Caruso were suspicious and lacking in credibihty. No such finding was made as to witness B.
The trial court has discretion in determining whether it will allow a party to recall a witness, and it does not constitute error absent an abuse of discretion. State v. Caughron, 855 S.W.2d 526, 539 (Tenn.1993); Lillard v. State, 528 S.W.2d 207, 212 (Tenn.Crim.App.1975). We cannot conclude that the trial court abused its discretion in allowing the State to recall R.B. Defendant is not entitled to relief on this issue.
38.Constitutionality of Tenn.Code Ann. Sec. 39-13-204
Defendant asserts that Tennessee Code Annotated Section 39-13-204 is unconstitutional. He asserts multiple challenges to the death penalty statutes, but acknowledges that the constitutional challenges he asserts have been decided adversely to him by the Supreme Court. He raises this issue merely to preserve it for later review.
The death penalty statutes have repeatedly been held constitutional. See e.g., State v. Reid, 91 S.W.3d 247, 313 (Tenn.2002); State v. Keen, 31 S.W.3d 196, 233 (Tenn.2000), cert. denied, 532 U.S. 907, 121 S.Ct. 1233, 149 L.Ed.2d 142 (2001); State v. Nesbit, 978 S.W.2d 872, 902 (Tenn.1998), cert. denied, 526 U.S. 1052, 119 S.Ct. 1359, 143 L.Ed.2d 520 (1999); State v. Vann, 976 S.W.2d 93, 117 (Tenn.1998), cert. denied, 526 U.S. 1071, 119 S.Ct. 1467, 143 L.Ed.2d 551 (1999); State v. Bland, 958 S.W.2d 651, 663 (Tenn.1997), cert. denied, 523 U.S. 1083, 118 S.Ct. 1536, 140 L.Ed.2d 686 (1998); State v. Cazes, 875 S.W.2d 253 (Tenn.1994); State v. Bigbee, 885 S.W.2d 797, 813-14 (Tenn.1994); State v. Smith, 857 S.W.2d 1, 21-22 (Tenn.), cert. denied, 510 U.S. 996, 114 S.Ct. 561, 126 L.Ed.2d 461 (1993); State v. Bane, 853 S.W.2d 483, 488 (Tenn.1993); State v. Harris, 839 S.W.2d 54 (Tenn.1992).
Accordingly, Defendant is not entitled to relief on this issue.
39. Admission of victim impact evidence
Defendant next contends that the trial court erred in denying his motion to exclude all victim impact evidence. Specifically, defendant argues that State v. Nesbit, 978 S.W.2d 872 (Tenn.1998), the case allowing victim impact testimony, had not been decided at the time of the crimes at issue; therefore, allowing victim impact testimony in this case would constitute a violation of Defendant’s right to be free from ex post facto laws. Defendant acknowledges that the Supreme Court rejected this precise issue against him in State v. Reid, 91 S.W.3d 247 (Tenn.2002), but asserts it for the purpose of preserving it for later review. Defendant is not entitled to relief on this issue.
40. [Deleted: Use of “mass murder” aggravating circumstance when defendant had not been convicted of other murders at the time of the commission of the crimes in this case]
41. [Deleted: Admission of evidence of the Captain D’s murders to establish the “mass murder” aggravating circumstance]
42. “Avoiding Arrest” aggravating circumstance
Defendant moved in a pretrial motion to strike aggravating circumstance (i)(6), the “avoiding arrest” aggravator, because it duplicates the elements of the underlying offense and therefore fails to narrow the class of death-eligible offenders in violation of the state and federal constitutions and it duplicates the elements of the (i)(7) aggravator and therefore fails to narrow the class of death-eligible offenders. The trial court denied Defendant’s motion. On appeal, Defendant argues that the trial court erred in denying the motion. However, Defendant acknowledges that the Supreme Court has rejected his arguments. See State v. Bush, 942 S.W.2d 489, 504 (Tenn.1997) where the Supreme Court approved the use of the (i)(6) aggravator when an offense in addition to a murder occurred and State v. Blanton, 975 S.W.2d 269, 280 (Tenn.1998) where the Supreme Court approved the use of the (i)(6) and (i)(7) aggravators in the same case. Despite the Supreme Court’s rejection of Defendant’s arguments, he makes them in this appeal for the purpose of preserving the issue for further review. Defendant is not entitled to relief on this issue.
43.Life photographs of victims
Defendant challenges the introduction of photographs taken of the victims before they were murdered. Defendant asserts that the photographs, introduced during the victim impact testimony, served only to inflame the jurors and appeal to their emotions. The State counters that the photographs were probative of the issue of the impact of the death on the victims’ family members and to show those unique characteristics which provide a brief glimpse into the life of the victims. The Supreme Court has held:
[generally, victim impact evidence should be limited to information to show those unique characteristics which provide a brief glimpse into the life of the individual who has been killed, the contemporaneous and prospective circumstances surrounding the individual’s death, and how those circumstances financially, emotionally, psychologically or physically impacted upon members of the victim’s immediate family.
Nesbit, 978 S.W.2d at 887. In this case, the photographs were introduced to provide a brief glimpse into the lives of the victims, as allowed by Nesbit. Accordingly, the court did not err in allowing the introduction of these photographs. Defendant is not entitled to relief on this issue.
44. Victim impact testimony by family members
During the penalty phase, I.R., wife of Ronald Santiago, testified as to the effect her husband’s death had on her life and the lives of her children. In so doing, she discussed the last time she and her children had seen Mr. Santiago. She also testified that her daughter will not allow anyone to call her “princess” because that is the nickname Mr. Santiago had for his daughter. D.B., Andrea Brown’s father, testified as to the difficulties he and his family were having in dealing with his daughter’s death. In his testimony he advised that his daughter’s room remained exactly the same, and they had kept the car that Andrea bought just before she was killed. He further stated: “It’s been real hard to learn that she won’t be here anymore.” Defendant maintains that these passages of testimony exceed the permissible scope of victim impact evidence.
Defendant did not object to the testimony by either I.R. or D.B.; therefore, this issue is waived. See State v. Thornton, 10 S.W.3d 229, 234 (Tenn.Crim.App.1999) (citing Tenn.R.App. P. 36(a)); State v. Green, 947 S.W.2d at 188. Further, we find that the testimony by Ms. R. and Mr. Brown was proper victim impact testimony under Nesbit, 978 S.W.2d at 879. Accordingly, Defendant is not entitled to relief on this issue.
45. Non-statutory mitigating circumstances
Defendant requested that the trial court instruct the jury as to twenty-four specific non-statutory mitigating circumstances. Defendant asked that the non-statutory mitigators be charged verbatim. The trial court denied Defendant’s request. Instead, the court instructed the jury on eleven general categories of mitigating circumstances. Defendant contends that the trial court erred in charging the general non-statutory mitigators, but admits that the trial court’s instruction complied with current case law.
The Supreme Court affirmed the trial court’s denial of a similar request made by Defendant in his appeal of his convictions of the Captain D’s murders. In that case, Defendant requested that the trial court instruct the jury as to twenty-eight specific non-statutory mitigating circumstances. Reid, 91 S.W.3d at 305. In affirming the trial court’s denial of Defendant’s request for the twenty-eight non-statutory mitigators, the Supreme Court relied on State v. Odom, 928 S.W.2d 18, 31 (Tenn.1996), where the court had held that instructions on non-statutory mitigating circumstances must not be fact specific and thereby imply to the jury that the court had made a finding of fact in contravention of Article VI, Section 9 of the Tennessee Constitution. The Reid Court determined that the trial court had not erred in providing instructions to the jury, as it had provided non-statutory mitigating circumstances drafted in general categories, which were drafted in a similar style to the statutory mitigating circumstances and were substantially the same as the instructions requested by Defendant. Reid, 91 S.W.3d at 307.
In this case, the trial court complied with Tennessee case law in charging the jury with the eleven general non-statutory mitigating circumstances. The mitigating circumstances were drafted in a style similar to the statutory circumstances, they embodied the requests made by Defendant, and they reflected the proof presented during the sentencing hearing. Aceord-ingly, the trial court did not err in this regard. Defendant is not entitled to relief on this issue.
46. Jury instruction on victim impact testimony
As previously set forth, Defendant filed a motion to exclude all victim impact evidence. Defendant also challenged the victim impact jury instruction in State v. Nesbit, 978 S.W.2d 872, 892 (Tenn.1998). The instruction reads as follows:
You may consider the victim impact evidence in determining the appropriateness of the death penalty only if you first find that the existence of one or more aggravating circumstances has been proven beyond a reasonable doubt by evidence independent from the victim impact evidence, and find that the aggravating circumstance(s) found outweigh the finding of one or more mitigating circumstances beyond a reasonable doubt.
Defendant contends that the Nesbit instruction is illogical and that victim impact evidence is irrelevant under the death penalty statute. However, victim impact evidence has been declared constitutional by the United States Supreme Court and the Tennessee Supreme Court. Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991); State v. Nesbit, 978 S.W.2d 872, 889 (Tenn.1998), cert. denied, 526 U.S. 1052, 119 S.Ct. 1359, 143 L.Ed.2d 520 (1999). Furthermore, the argument advanced by defendant that victim impact testimony is irrelevant and should be excluded under Tennessee’s current capital sentencing system, has been rejected by the Supreme Court. See State v. Reid, 91 S.W.3d at 282-83, holding that any contradiction between the statute and the Nesbit instruction inures to the benefit of Defendant; therefore, this argument does not entitle Defendant to relief.
47. [Deleted: Sufficiency of evidence to support jury’s finding that aggravating circumstances outweighed mitigating factors beyond a reasonable doubt]
48. [Deleted: Proportionality Review]
[Deleted: CONCLUSION]
[OPINION BY ADOLPHO A. BIRCH, JR., SP. J., type=concurring-in-part-and-dissenting-in-part]
ADOLPHO A. BIRCH, JR., SP. J.,
concurring and dissenting.
I concur in the conclusion of the majority that Reid’s convictions should be affirmed. As to the sentences of death, however, I respectfully dissent. I continue to adhere to my view, expressed many times before, that the comparative proportionality review protocol currently embraced by the majority is inadequate to shield defendants from the arbitrary and disproportionate imposition of the death penalty. See State v. Reid, 164 S.W.3d 286, 323-325 (Tenn.2005) (Birch, J., concurring and dissenting), and cases cited therein. Accordingly, I respectfully dissent from that portion of the majority opinion affirming the imposition of the death penalty in this case.
Aside from the above, I would urge the Executive to follow the lead of California and Florida, whose Governors have suspended executions by lethal chemical until in-depth investigations can be conducted into the propriety of using a certain chemical as a killing agent. I am led to believe that Tennessee includes the same lethal ehemical(s) in its protocol as do California and Florida.
Paul Dennis REID, Jr. ex rel. Linda MARTINIANO v. STATE of Tennessee. and Paul Dennis Reid, Jr. v. State of Tennessee.
Supreme Court of Tennessee, at Nashville.
Oct. 3, 2012 Session.
Jan. 24, 2013.
Kelly A. Gleason and Bradley A. Mac-Lean, Office of the Post-Conviction Defender, Nashville, Tennessee, for the appellants, Paul Dennis Reid, Jr. and Linda Martiniano.
Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; James E. Gaylord, Assistant Attorney General, for the appellee, State of Tennessee.
Christopher Brett Jaeger, J. Patrick Warfield, and Gregory D. Smith, Nashville, Tennessee, for the Amici Curiae, Jerry P. Black, Terry A. Maroney, Steven J. Mulroy, Christopher Slobogin, Jeffrey Us-man, and Penny J. White.
[OPINION BY WILLIAM C. KOCH, JR., J., type=majority]
OPINION
WILLIAM C. KOCH, JR., J.,
delivered the opinion of the Court,
in which GARY R. WADE, C.J., JANICE M. HOLDER, CORNELIA A. CLARK, and SHARON G. LEE, JJ., joined.
This appeal raises the question of whether a prisoner facing the death penalty has the mental capacity to abandon the pursuit of post-conviction relief in his three murder eases. After the prisoner decided not to seek a new trial in any of these cases, one of his sisters, in cooperation with the Office of the Post-Conviction Defender, filed a “next friend” petition in each of the prisoner’s three murder cases, requesting the courts to declare the prisoner incompetent, thereby enabling her to pursue post-conviction relief on his behalf. The Criminal Court for Davidson County and the Circuit Court for Montgomery County conducted separate hearings in 2008. Each court denied the petitions after determining that the prisoner’s sister and the Office of the Post-Conviction Defender had failed to establish by clear and convincing evidence that the prisoner lacked the capacity to make rational decisions regarding the pursuit of post-conviction relief. The Court of Criminal Appeals affirmed both of these judgments. Reid v. State, Nos. M2009-00128-CCA-R3-PD, M2009-00360-CCA-R3-PD, M2009-01557-CCA-R3-PD, 2011 WL 3444171 (Tenn.Crim.App. Aug. 8, 2011). We granted the prisoner’s Tenn. R.App. P. 11 application. We have determined that both trial courts employed the correct legal standard for determining whether the prisoner possessed the mental capacity to rationally forego seeking post-conviction relief and also that the prisoner’s sister and the Office of the Post-Conviction Defender failed to prove by clear and convincing evidence that the prisoner lacked the capacity to make rational decisions regarding the pursuit of post-conviction relief. For the sake of consistency, we further hold that, in all future cases, Tennessee’s courts should employ the mental competency standard of Tenn. Sup.Ct. R. 28, § 11(B) whenever the issue of a prisoner’s competency to pursue post-conviction relief is properly raised.
I.
Paul Dennis Reid, Jr. is currently facing-seven sentences of death. Two juries in Davidson County and one jury in Montgomery County convicted him of three sets of execution-style murders, of seven persons total, that occurred within a two-month period in 1997 at three fast food restaurants in Middle Tennessee.
Mr. Reid is also a human conundrum. On one hand, he is undeniably brain-damaged. A lesion on his left temporal lobe interferes with his ability to communicate and possibly compromises his grip on reality. Mr. Reid claims that he subscribes to a series of elaborate delusions in which he is the subject of constant government surveillance and remote mind control. He insists that his trials were mock trials, that the attorneys representing him were actors, and that his death sentence was actually a secret ten- to twelve-year sentence. In addition, he has claimed that he is engaged to a woman who his psychiatrists believe is a figment of his imagination. He has also displayed a penchant for making peculiar statements, particularly to his own legal team.
On the other hand, Mr. Reid has told several mental health professionals over the years that his delusions are actually an elaborate, self-serving hoax that he has successfully employed to avoid prosecution in the past. The question at the core of this case is this: Is Paul Reid a mentally ill man who tries to appear sane or a sane man who tries to appear mentally ill? Does he truly believe he is trapped in an Orwellian nightmare of government surveillance and thought control, or are his delusions more like an elaborate piece of performance art used to gain attention and to amuse himself in prison? Perhaps it is a bit of both. Paul Reid’s psyche has proved to be a tough nut to crack.
The procedural history following Mr. Reid’s convictions is labyrinthine. Mr. Reid’s cases have presented more than one issue of first impression. This Court, the Court of Criminal Appeals, and the trial courts have been required to construct new rules and procedures along the way. Today, at a unique juncture in this litigation, all three of Mr. Reid’s cases are before this Court. We granted his Tenn. R.App. P. 11 application because these cases will enable us to address and realign the standards courts use to determine the competency of petitioners seeking relief from a judgment under the Post-Conviction Procedure Act.
As the law now stands, Tennessee courts apply one standard for determining whether a capital post-conviction petitioner has the mental capacity to withdraw a previously filed petition for post-conviction relief. However, the courts apply another standard for determining a petitioner’s capacity with regard to due process tolling of the statute of limitations for filing a post-conviction petition or for determining whether a “next friend” should be permitted to pursue post-conviction relief on the petitioner’s behalf. While these two standards are worded differently, we have come to believe that they really are — or at least should be — asking the same question. Accordingly, this opinion enables us to articulate a single competency standard applicable to all phases of a post-conviction proceeding.
II.
Mr. Reid was born with hearing loss caused by a deformed ear. He had an unstable childhood. After his parents divorced when he was three years old, Mr. Reid and one of his sisters continued to live with his father and paternal grandmother. He sustained head trauma on a number of occasions during his developmental period, including one occasion when he was hit on the side of his head with a brick.
By the age of four or five, Mr. Reid was causing problems in the neighborhood and was seriously misbehaving at home. On one occasion, he set fire to his grandmother’s bed while she was in it. On another occasion he beat his grandmother’s dog to death with a baseball bat. Mr. Reid returned to live with his mother and his other sister after his mother learned that his father was planning to put him up for adoption. However, when he was sixteen years old, Mr. Reid was asked to leave his mother’s house because he had attempted to sexually assault both his mother and sister. From that time on, Mr. Reid was basically on his own.
Mr. Reid’s brushes with the law steadily became more serious as time passed. His juvenile record included charges of automobile theft, simple assault, and check forgery. In 1982, he was charged with committing several armed robberies in Texas. He was never tried on these charges because he was hospitalized after being found to be incompetent. In 1984, Mr. Reid was convicted in Texas of aggravated robbery. The assistant district attorney who prosecuted Mr. Reid in that case testified that during these proceedings, Mr. Reid “performed antics” whenever the jury was present but “stopped ‘putting on’ when the jury was not in the courtroom.” Years later, Mr. Reid bragged that he had “fooled the shrinks” to one of the psychologists who testified on his behalf in the three cases currently before this Court. He also told another psychologist that he had “faked delusions in the past.”
At some point, Mr. Reid moved to Tennessee to pursue a career in country music. Even though he found employment at a Shoney’s restaurant, he experienced financial difficulties. He discussed with two fellow employees how he could obtain money by robbing a fast food restaurant at night when there would be no witnesses, and he sought their assistance in obtaining a pistol. Despite his financial problems, Mr. Reid quit his job at Shoney’s in early February 1997. He was given no severance pay and had no other job.
Early on the morning of February 16, 1997, Steve Hampton and Sarah Jackson were forced to the floor and fatally shot from behind as they were preparing to open the Captain D’s fast food restaurant on Lebanon Road in Donelson. The restaurant was approximately 2.1 miles from the Shoney’s restaurant where Mr. Reid had been employed. Approximately $7,000 was taken from the restaurant, as well as Mr. Hampton’s wallet containing $600.
On March 23, 1997, a McDonald’s fast food restaurant on Donelson Pike in Hermitage was robbed at closing time. Three employees, Andrea Brown, Robert Sewell, and Ronald Santiago, were murdered execution-style. A fourth employee, J.G., would also have been murdered, but the assailant’s pistol jammed. The assailant stabbed Mr. G. repeatedly and left him for dead, after taking the contents of the restaurant’s safe. Even though Mr. G. was seriously wounded, he was able to call 9-1-1 for help. Mr. G. later testified as a key witness against Mr. Reid.
On April 23, 1997, the Baskin-Robbins ice cream shop on Wilma Rudolph Boulevard in Clarksville was robbed around closing time. When the authorities arrived, the two employees could not be found, but the cash register was open and the top of the safe had been removed. On April 24, 1997, the bodies of the two employees, Angela Holmes and Michelle Mace, were discovered at the Dunbar Cave State Natural Area. Both victims had received deep stab wounds to their necks, as well as stab wounds, cuts, and abrasions to other parts of their bodies. They had bled to death.
On June 12,1997, Mr. Reid was arrested after attempting to kidnap the manager of a Shone/s restaurant in Cheatham County. At that time, he was enrolled as a student at Volunteer State Community College and was unemployed. Mr. Reid was' eventually charged with and indicted for (1) the robbery of the Captain D’s restaurant and the murders of Mr. Hampton and Ms. Jackson, (2) the robbery of the McDonald’s restaurant and the murders of Ms. Brown and Messrs. Sewell and Santiago, and (3) the robbery of the Baskin-Robbins shop and the murders of Msses. Holmes and Mace.
In 1999, Mr. Reid was tried in Davidson County for the crimes he committed at the Captain D’s restaurant in Donelson. No issue was raised regarding his competence to stand trial during this proceeding. However, during the penalty phase of the trial, Mr. Reid presented mitigation evidence regarding his childhood, the damage to the left frontal lobe of his brain caused by repeated trauma to his head, and the diagnoses of his current psychological conditions. The jury sentenced Mr. Reid to death for the murders of Mr. Hampton and Ms. Jackson, and the trial court imposed a 25-year sentence for his especially aggravated robbery conviction to be served consecutively to his two death sentences.
Later in 1999, Mr. Reid was tried in Montgomery County for the crimes he committed relating to the robbery of the Baskin-Robbins shop in Clarksville. Eight days before trial, Mr. Reid asserted that he was not competent to stand trial. To support this claim, he presented the testimony of the same clinical neuropsychologist and clinical psychologist who had presented mitigation testimony at his earlier trial in Davidson County. After the State’s psychiatrist and an independent psychiatrist appointed by the trial court opined that Mr. Reid was competent to stand trial, the trial court held that Mr. Reid had failed to prove that he was incompetent. During the penalty phase of the trial, Mr. Reid called four of the experts who had offered mitigation evidence in the Captain D’s trial. The jury found Mr. Reid guilty of two counts of first degree premeditated murder, two counts of aggravated kidnapping, and one count of especially aggravated robbery and sentenced him to death for each of the first degree murder convictions.
In 2000, Mr. Reid was tried in Davidson County for the crimes he had committed at the McDonald’s restaurant in Hermitage. Following an extensive pretrial hearing, the trial court found that Mr. Reid was competent to stand trial. During the penalty phase of the trial, Mr. Reid presented the same four experts who had testified on his behalf in the Captain D’s trial and the Baskin-Robbins trial. These experts discussed his unstable childhood, his history of brain trauma, and his current psychological condition. The jury convicted Mr. Reid of three counts of premeditated murder, three counts of felony murder, one count of attempted murder, and one count of especially aggravated robbery. The jury sentenced Mr. Reid to death for the murders of Ms. Brown and Messrs. Sewell and Santiago.
When this Court affirmed Mr. Reid’s convictions and sentences in the Captain D’s case, we set an April 29, 200B execution date. On April 14, 2003, Mr. Reid wrote a 92-page letter addressed to the Governor, this Court, the Attorney General and Reporter, and the District Attorney General, stating that he did not intend to pursue his post-conviction remedies in the Captain D’s case. At the conclusion of his letter, Mr. Reid stated that “[a]fter four (4) years of serious, meticulous consideration, I elect to discontinue any post-conviction appeal in the Captain D’s case.... I accept the juries’ [sic] verdict in the Capt. D’s case, as well as the punishment imposed, death by lethal injection.”
On April 22, 2003, this Court declined to stay Mr. Reid’s execution. Thereafter, Mr. Reid’s lawyers and J.K., one of his sisters acting as his “next friend,” filed a petition for writ of habeas corpus in the United States District Court for the Middle District of Tennessee. Mr. Reid testified that he was not interested in pursuing habeas corpus relief. However, Ms. K. submitted reports from a psychiatrist and two psychologists, and argued that Mr. Reid was not competent to make that decision. The district court dismissed the “next friend” petition after concluding that Ms. K. had failed to establish a prima facie case that Mr. Reid was incompetent. On April 28, 2003, the United States Court of Appeals for the Sixth Circuit entered an order staying. Mr. Reid’s execution and remanding the case to the district court for a full hearing on Mr. Reid’s competency.
On, April 28, 2003, just hours before his scheduled execution, Mr. Reid temporarily changed his mind about pursuing post-conviction relief and filed an 8-page pro se petition in the Criminal Court for Davidson County. As a result of this petition, the trial court stayed Mr. Reid’s execution and appointed the Office of the Post-Conviction Defender to represent him. However, on September 29, 2003, Mr. Reid prepared a letter addressed to the trial court clerk stating that moments after the United States Court of Appeals stayed his execution, his attorney “encouraged me to sign a document which dealt with appealing the Captain D’s case ... however, I was not given the opportunity to read the document, nor actually fathom exactly what I signed.” Mr. Reid continued, “I errored [sic] in signing the appeal document. Therefore, I elect to withdraw the appeal document I signed in the Captain D’s case.”
On November 30, 2004, the PosL-Conviction Defender filed an amended petition on Mr. Reid’s behalf in the Criminal Court for Davidson County. This amended petition was not signed or verified by Mr. Reid. Instead, the Post-Conviction Defender stated that he believed that Mr. Reid was “currently incompetent” and requested the trial court to declare Mr. Reid incompetent and to stay the post-conviction proceedings. In an order dated January 10, 2005, the trial court scheduled a hearing to determine whether Mr. Reid was competent “to proceed at the post-conviction level” and announced a set of procedures to govern that hearing. This procedure called for (1) using the competency standard articulated in State v. Nix, 40 S.W.3d 459, 468 (Tenn.2001), and (2) placing the burden on Mr. Reid to prove that he was incompetent by clear and convincing evidence. Both the Court of Criminal Appeals and this Court denied Mr. Reid’s application for a Tenn. R.App. P. 10 extraordinary appeal.
On January 17, 2005, at the beginning of the evidentiary hearing, the Office of the Post-Conviction Defender filed a motion to continue, as well as a second amended petition for post-conviction relief. Over the State’s objection, the trial court granted Mr. Reid permission to pursue a Tenn. RApp. P. 9 interlocutory appeal from its January 10, 2005 order. The Court of Criminal Appeals declined to grant the interlocutory appeal. However, on June 26. 2005, this Court granted Mr. Reid permission to appeal.
Mr. Reid’s execution date for his convictions in the Baskin-Robbins case was originally set for October 5, 2005. On September 23, 2005, while the interlocutory appeal in the Captain D’s case was pending, the Office of the Post-Conviction Defender filed a motion in the Circuit Court for Montgomery County asking to be appointed to represent Mr. Reid in the post-conviction proceedings involving the Baskin-Robbins case. The Office of the Post-Conviction Defender also filed a petition for post-conviction relief. Like the amended petition filed in Davidson County in the Captain D’s case, this petition was neither signed nor verified by Mr. Reid. However, the Office of the Post-Conviction Defender asserted that it was its “firmly held opinion” and “good faith belief’ that Mr. Reid was “mentally incompetent and unable to verify the petition or otherwise participate in the post-conviction action.”
On September 29, 2005, the trial court granted a stay of execution, appointed the Office of the Post-Conviction Defender to represent Mr. Reid, and stayed the proceedings in Montgomery County pending the disposition of Mr. Reid’s incompetency claims in the Captain D’s case. The Court of Criminal Appeals denied the State’s Tenn. R.App. P. 10 application for an extraordinary appeal from the September 29, 2005 order. However, on November 29, 2005, this Court granted the State’s application for an extraordinary appeal to address the requirements and procedure for considering a petition for post-conviction relief filed by a prisoner’s “next friend” that has not been verified under oath or signed by the prisoner.
On May 23, 2006, while the appeals involving the viability of the post-conviction proceedings in the Captain D’s and Baskin-Robbins cases were pending, Linda Martiniano, Mr. Reid’s other sister, filed a “next friend” petition in the Circuit Court for Montgomery County seeking post-conviction relief in the Baskin-Robbins case. She also filed a “next friend” petition in the United States District Court for the Middle District of Tennessee, seeking habeas corpus relief in the Baskin-Robbins case. On June 13, 2006, the trial court in Montgomery County dismissed Ms. Martiniano’s “next friend” petition on the ground that she had failed to make a prima facie showing that Mr. Reid was incompetent.
On June 22, 2006, this Court filed its amended opinion in the Tenn. R.App. P. 10 appeal from the Montgomery County court’s September 29, 2005 order. We held that post-conviction trial courts lack the authority to consider petitions for post-conviction relief that have not been signed or verified under oath by the prisoner, unless the petition was submitted by a qualified “next friend.” In that regard, we held that a prisoner’s “next friend” must make two threshold showings:
First, a “next friend” must provide an adequate explanation — such as inaccessibility, mental incompetence, or other disability — why the real party in interest cannot appear on his own behalf to prosecute the action.... Second, the “next friend” must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate ..., and it has been further suggested that a “next friend” must have some significant relationship with the real party in interest.
Holton v. State, 201 S.W.3d at 632 (quoting Whitmore v. Arkansas, 495 U.S. 149, 163-64, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990)).
We also held that in order to proceed under the theory that the prisoner is incompetent, the “next friend” must make a prima facie showing of incompetence by attaching to the petition “affidavits, depositions, medical reports, or other credible evidence that contain specific factual allegations showing the petitioner’s incompetence.” Holton v. State, 201 S.W.3d at 634 (quoting State v. Nix, 40 S.W.3d at 464). Once this prima facie showing is made, the trial court must conduct a hearing to determine whether the prisoner is incompetent. In doing so, we held, the trial court should utilize the civil competency standard of State v. Nix that inquires whether the petitioner is able to manage his personal affairs and understand his legal rights and liabilities. See State v. Nix, 40 S.W.3d at 463. Under this framework, we found that the Office of the Post-Conviction Defender’s petition in the Baskin-Robbins case “failed to establish a basis for allowing the Defender to proceed as ‘next friend’ ” because Mr. Reid “has never been found mentally incompetent by any court [in Tennessee]” and because the Office of the Post-Conviction Defender had failed to “make a prima facie showing of [Mr.] Reid’s alleged current mental incompetency.” Holton v. State, 201 S.W.3d at 635.
On June 26, 2006, this Court issued its opinion in the interlocutory appeal from the Davidson County court’s June 10, 2005 order regarding the petitions for post-conviction relief in the Captain D’s case. We affirmed the trial court’s decision to conduct an evidentiary hearing into Mr. Reid’s competency to pursue post-conviction relief. In doing so, we held that persons seeking to have a prisoner declared incompetent for the purposes of proceeding with a petition for post-conviction relief have the burden of proving by clear and convincing evidence that the prisoner is incompetent, Reid v. State, 197 S.W.3d at 703-05, and that the prisoner’s competency should be determined using the civil competency standard articulated in State v. Nix. Reid v. State, 197 S.W.3d at 701-02.
Even though the Montgomery County court had summarily dismissed her “next friend” petition for post-conviction relief, Ms. Martiniano fared better in federal court. On June 27, 2006, the district court conducted a hearing and determined that Ms. Martiniano had made a prima facie showing that Mr. Reid was incompetent. Accordingly, the district court stayed Mr. Reid’s execution in the Baskin-Robbins case and ordered a full hearing on Mr. Reid’s competency to pursue federal habeas corpus relief.
The district court never conducted an evidentiary hearing to determine whether Mr. Reid was competent to pursue habeas corpus relief. At a status conference on August 24, 2006, the State withdrew its opposition to Ms. Martiniano proceeding as Mr. Reid’s “next friend” in the habeas corpus proceeding. The State informed the district court that, based on a recent evaluation of Mr. Reid by its forensic neuropsychologist, it had concluded that “Mr. Reid is incompetent to make a rational decision to waive his capital appeals in accordance with the standards set forth in Rees v. Peyton,” The State later reaffirmed this concession in another “next friend” federal habeas corpus proceeding in which Ms. Martiniano challenged the constitutionality of Tennessee’s lethal injection protocol.
On July 3, 2007, the Court of Criminal Appeals reversed the Montgomery County court’s dismissal of Ms. Martiniano’s “next friend” petition and remanded the case with directions to conduct an evidentiary hearing to determine whether Mr. Reid was incompetent to pursue post-conviction relief on his own behalf.
The Davidson County court conducted hearings on July 31, 2007, and September 4 and 5, 2007, regarding Mr. Reid’s competence to withdraw his pro se post-conviction petition, pursuant to Tenn. Sup.Ct. R. 28, § 11. During these proceedings, the State did not concede that Mr. Reid was incompetent as it had in the habeas corpus hearings in the district court. In fact, the State vigorously asserted that Mr. Reid was competent under the Rees v. Peyton competency standard articulated in Tenn. Sup.Ct. R. 28, § 11(B)(1).
On December 20, 2007, the Davidson County court filed an order addressing Mr. Reid’s request to withdraw his pro se petition for post-conviction relief in the Captain D’s case. The court declined to find definitively that Mr. Reid was incompetent; however, it declined to permit Mr. Reid to withdraw his pro se petition for post-conviction relief. In reaching its decision, the trial court noted that this proceeding was entitled to heightened scrutiny because it involved the death penalty and that the State had conceded in the federal habeas corpus proceedings that Mr. Reid was incompetent under the Rees standard.
On December 26, 2007, Ms. Martiniano filed a “next friend” petition in the Criminal Court for Davidson County seeking post-conviction relief for her brother in the McDonald’s case. With the filing of this petition, the Davidson County court had two questions before it in the McDonald’s case — whether Mr. Reid was incompetent between December 27, 2006, and December 26, 2007, to toll the post-conviction statute of limitations and, if so, whether Ms. Martiniano should be permitted to pursue post-conviction relief as her brother’s “next friend.” In addition, the Davidson County court had before it in the Captain D’s case the question of whether Ms. Martiniano should be permitted to proceed as her brother’s “next friend” and to file an amended petition for post-conviction relief. Similarly, the Montgomery County court had before it the question of whether Ms. Martiniano should be permitted to proceed as her brother’s “next friend” in the Baskin-Robbins case.
The Davidson County court conducted hearings on May 12 and 13, 2008, to determine Mr. Reid’s competency under the State v. Nix standard. The Montgomery County court conducted similar hearings on May 14 and 15, 2008. On December 12, 2008, the Davidson County court entered a lengthy order concluding that Mr. Reid had failed to prove that he was incompetent for the purposes of seeking post-conviction relief in the Captain D’s and McDonald’s cases. As a result of this conclusion, the Davidson County court denied Ms. Martiniano’s motion to proceed as Mr. Reed’s “next friend” and ordered Mr. Reid to proceed with his original pro se petition for post-conviction relief in the Captain D’s case.
Six days later, on December 18, 2008, the Montgomery County court entered a lengthy order concluding that Mr. Reid had failed to prove that he was incompetent for the purpose of seeking post-conviction relief in the Baskin-Robbins case and, therefore, that Ms. Martiniano’s motion seeking to pursue post-conviction relief as her brother’s “next friend” should be denied. The Court of Criminal Appeals consolidated these two cases on appeal and on August 8, 2011, filed an opinion affirming the judgments of both trial courts. Reid v. State, Nos. M2009-00128-CCA-R3-PD, M2009-00360-CCA-R3-PD, & M2009-01557-CCA-R3-PD, 2011 WL 3444171 (Tenn.Crim.App. Aug. 8, 2011).
III.
During all the periods of time relevant to seeking post-conviction relief from Mr. Reid’s capital convictions, this Court employed two standards for determining competency in a post-conviction proceeding. The choice of the proper standard was dictated by the stage of the proceeding when the issue of competency arose.
The Court first addressed the issue of competency in 2001 in a case that concerned due process tolling of the one-year statute of limitations for post-conviction petitions. After noting that due process requires that prisoners be able to seek post-conviction relief in a meaningful time and in a meaningful manner, we held that the statute of limitations should be tolled during periods when a petitioner is mentally incompetent. State v. Nix, 40 S.W.3d at 462.
We also determined that post-conviction proceedings were civil proceedings for statute of limitations purposes. Accordingly, we decided that due process would be satisfied by using the “civil competency standard” to determine whether the statute of limitations should be tolled. State v. Nix, 40 S.W.3d at 463. We summarized this standard as a two-prong test — a petitioner is mentally incompetent when he or she is “unable either to manage his [or her] personal affairs or to understand his [or her] legal rights and liabilities.” State v. Nix, 40 S.W.3d at 461, 463. Noting that “mental illness is not the equivalent of mental incompetence,” we also concluded that this standard would avoid situations in which “the mere assertion of a psychological problem” could result in a finding of incompetency. State v. Nix, 40 S.W.3d at 463.
One year later, in 2002, this Court returned to the question of competency in the context of petitioners facing the death penalty who decide to withdraw their petitions for post-conviction relief. On this occasion, we amended the Tennessee Rules of Post-Conviction Procedure to add a new section dealing with the withdrawal of petitions for post-conviction relief in eapi-tal cases. Rather than adopting the “civil competency standard” that we had adopted the year before in State v. Nix, we adopted a competency standard that tracked the standard adopted by the United States Supreme Court in Rees v. Peyton, 384 U.S. at 314, 86 S.Ct. 1505, for the withdrawal of habeas corpus petitions filed in federal court.
Accordingly, Tenn. Sup.Ct. R. 28, § 11(a)(4) requires that the trial court must determine, among other things, that a petitioner “is competent to decide whether to withdraw the post-conviction petition.” Tenn. Sup.Ct. R. 28, § 11(B)(1) states:
The standard for determining competency of a petitioner to withdraw a post-conviction petition and waive further post-conviction relief under this section is: whether the petitioner possesses the present capacity to appreciate the petitioner’s position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether the petitioner is suffering from a mental disease, disorder, or defect which may substantially affect the petitioner’s capacity.
Tenn. Sup.Ct. R. 28, § 11 contains other procedural directives. A petitioner filing a post-conviction petition is “presumed competent to withdraw a post-conviction petition.” Tenn. Sup.Ct. R. 28, § 11(B)(2). However, if a “genuine issue” of competency emerges, the trial court must appoint one or two mental health professionals to evaluate the petitioner, and these professionals must file their evaluations with the court. If a “genuine issue” of competency persists after the evaluations are filed, the trial court must conduct a separate hearing. Tenn. Sup.Ct. R. 28, § ll(B)(2)-(3). At the hearing, the petitioner has the burden of proving that he or she is mentally incompetent by clear and convincing evidence. Tenn.Code Ann. § 40 — 30—110(f).
In 2006, we returned to the question of competency in post-conviction proceedings in circumstances in which a prisoner’s “next friend” seeks to pursue post-conviction relief on a prisoner’s behalf because the prisoner lacks the mental capacity to pursue post-conviction relief. Rather than applying the newly minted competency standard in Tenn. Sup.Ct. R. 28, § 11(B)(1), we decided that the short-hand “civil competency standard” articulated in State v. Nix should be used when a prisoner’s “next friend” desires to pursue post-conviction relief on the prisoner’s behalf. Accordingly, we held that
the civil standard of mental incompetence adopted in Nix applies to the determination of whether a petitioner is competent to proceed in a post-conviction action. A petitioner is, therefore, incompetent to pursue post-conviction proceedings only if he [or she] is unable either to manage his [or her] personal affairs or to understand his [or her] legal rights and liabilities.
Reid v. State, 197 S.W.3d at 702.
None of the proceedings occurring after 2002 provided the Court with an occasion to elaborate on the principles or procedures that should be used in the application of the “civil competency standard” recognized in State v. Nix. However, in 2003, the Court of Appeals addressed the civil competency standard in detail in a case in which the court was called upon to decide whether an elderly widow had the capacity, during the relevant time period, “to manage her personal and financial affairs.” In re Conservatorship of Groves, 109 S.W.3d 317, 327 (Tenn.Ct.App.2003).
The foundation of the Groves court’s analysis of the civil competency standard was the “bedrock” principle of autonomy— the right of adults to live their lives consistent with their own personal values. Groves, 109 S.W.3d at 327. The court observed that the State may interfere with an adult’s autonomy only when his or her ability to be autonomous is partially or totally impaired. Groves, 109 S.W.3d at 328-29. The Groves court explained:
A person lacks the ability to be autonomous — to exercise free will — when he or she lacks the ability to absorb information, to understand its implications, to correctly perceive the environment, or to understand the relationship between his or her desires and actions. A person is likewise incapacitated when he or she cannot control his or her actions or behavior. When a person’s autonomy becomes impaired, public policy justifies others stepping in to make choices on the person’s behalf to promote the person’s best interests and to protect the person from harm. However, public policy also favors allowing incapacitated persons to retain as much autonomy as possible and selecting alternatives that restrict incapacitated persons’ autonomy as little as possible. TenmCode Ann. § 34-1-127 (2001) (requiring that the “least restrictive alternatives” be placed upon a disabled person consistent with adequate protection of the individual’s person and property).
Groves, 109 S.W.3d at 329.
With regard to the burden of proof, the Groves court emphasized that, in light of the importance of autonomy, “it is well-settled that the law presumes that adult persons are sane, rather than insane, and capable, rather than incapable.... Mental or physical impairment should never be presumed.” Groves, 109 S.W.3d at 329-30. Therefore, the party seeking a declaration of incompetency must prove its case by clear and convincing evidence. Groves, 109 S.W.3d at 330.
The Groves court also expounded on the meaning of capacity:
Capacity is not an abstract, all-or-nothing proposition. It involves a person’s actual ability to engage in a particular activity. Accordingly, the concept of capacity is task-specific. A person may be incapacitated with regard to one task or activity while retaining capacity in other areas because the skills necessary in one situation may differ from those required in another. Godinez v. Moran, [509 U.S. 389, 413, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993) ] (Blackmun, J., dissenting) (observing that “[a] person who is ‘competent’ to play basketball is not thereby ‘competent’ to play the violin.”).
Groves, 109 S.W.3d at 333-34. The court further explained that capacity is “situational and contextual.” Capacity is not static, and may be affected by many variables that change over time and fluctuate from moment to moment. Groves, 109 S.W.3d at 334.
Finally, the Groves court noted that capacity encompasses two concepts — functional capacity and decision-making capacity. Functional capacity depends upon decision-making capacity and “relates to a person’s ability to take care of oneself and one’s property.” Groves, 109 S.W.3d at 334. This corresponds to the “managing personal affairs” prong of the State v. Nix test. On the other hand, decision-making capacity “relates to one’s ability to make and communicate decisions with regard to caring for oneself and one’s property.” Groves, 109 S.W.3d at 334 (emphasis added). The Groves court explained that decision-making capacity involves “a person’s ability (1) to take in and understand information, (2) to process the information in accordance with his or her own personal values and goals, (3) to make a decision based on the information, and (4) to communicate the decision.” Groves, 109 S.W.3d at 335 (footnotes omitted). The court stressed that a person “does not lack decision-making capacity merely because he or she does things that others either do not understand or find disagreeable.” The court also noted that “[fjoolish, unconventional, eccentric, or unusual choices do not, by themselves, signal incapacity. However, choices that are based on deranged or delusional reasoning or irrational beliefs may signal decision-making incapacity.” Groves, 109 S.W.3d at 335-36 (footnotes omitted).
The Groves decision counsels that when a court seeks to evaluate a person’s decision-making capacity, the court should focus primarily “on the process a person uses to make a decision and only secondarily on the decision itself.” Groves, 109 S.W.3d at 336. Decision-making capacity hinges on whether a person can “understand pertinent information” and “reason and deliberate about choices particular to a specific decision.” Groves, 109 S.W.3d at 336. In other words, decision-making capacity is the “mental ability to make a rational decision.” Groves, 109 S.W.3d at 336 (quoting State Dep’t of Human Servs. v. Northern, 563 S.W.2d 197, 209 (Tenn.Ct. App.1978)). The adjective “rational” connotes “a decision based on a process of reasoning, not necessarily a decision that the prevailing majority would view as acceptable, sensible, or reasonable.” The court observed that a person may be “simultaneously capable and incapable with respect to different types of decisions,” so “capacity should be determined on a decision-specific basis.” Groves, 109 S.W.3d at 336. Under the Groves decision, then, civil competency depends on the person’s capacity for rational decision-making, and this inquiry is context-specific.
This recitation of the civil competency principles in the Groves opinion is very germane to this case. In accordance with this Court’s 2006 opinion, both the Davidson County court and the Montgomery County court stated that they would employ the civil competency standard adopted in State v. Nix to determine whether Ms. Martiniano, as Mr. Reid’s “next friend,” would be permitted to pursue post-conviction relief on her brother’s behalf. However, in addition to State v. Nix, both trial courts relied heavily on the principles contained in In re Conservatorship of Groves to determine whether Mr. Reid lacked the capacity to make rational decisions with regard to the pursuit of post-conviction relief.
The Court of Criminal Appeals affirmed the trial courts’ conclusions that Mr. Reid was competent to pursue post-conviction relief. However, the Court of Criminal Appeals based its analysis regarding Mr. Reid’s competency entirely on State v. Nix and did not address the trial courts’ reliance on Groves. By doing so, the Court of Criminal Appeals created an ambiguity with regard to the role that the competency principles in Groves should play in proceedings to determine whether a petitioner is competent for the purpose of pursuing post-conviction relief. We will address this ambiguity by determining the standard that courts should use to evaluate competency in a post-conviction proceeding and by determining whether both trial courts in this case properly applied the appropriate standard.
IV.
We will now turn to the evidence contained in these records regarding Mr. Reid’s competency to pursue post-conviction relief and the trial courts’ decisions regarding Mr. Reid’s competency. This evidence was introduced in three hearings: (1) a hearing conducted in 2007 by the Criminal Court for Davidson County in which the trial court employed the standard found in Tenn. Sup.Ct. R. 28, § 11(B) to determine whether Mr. Reid was competent to withdraw his post-conviction petition in the Captain D’s case, (2) a hearing conducted in 2008 by the Criminal Court for Davidson County to determine whether Ms. Martiniano and the Office of the Post-Conviction Defender could pursue post-conviction relief on Mr. Reid’s behalf in the Captain D’s and McDonald’s cases, and (3) a hearing conducted in 2008 by the Circuit Court for Montgomery County to address whether Ms. Martiniano and the Office of the Post-Conviction Defender could pursue post-conviction relief on Mr. Reid’s behalf in the Baskin-Robbins case.
A.
Mr. Reid’s competence is at issue because he appears to suffer from several significant delusions. All of the witnesses and parties acknowledge the following facts.
According to Mr. Reid, a government intelligence agency that he calls “Scientific Technology” has been monitoring and recording all of his activities since 1985. Mr. Reid has stated that Scientific Technology possesses video recordings that could exonerate him of the murders.
Mr. Reid has also stated that Scientific Technology has the ability to affect him both mentally and physically. According to Mr. Reid, Scientific Technology attempts to influence him in subtle ways, such as by causing him to forget things and to experience strange tastes and smells. He also states that Scientific Technology afflicts him with itching sensations. After his trials, Mr. Reid developed the belief that Scientific Technology controlled his legal proceedings and “coached” the attorneys, judges, and witnesses. Mr. Reid claims to believe that his trials were mock trials, and that his attorneys are actors, hired by Scientific Technology to participate in an elaborate experiment in which Mr. Reid is the test subject.
Mr. Reid also claims to have discovered that he was not actually sentenced to death. Instead, Mr. Reid says that he has lawyers in Washington, D.C., who negotiated for him a ten- to twelve-year sentence, to be served at eighty percent. Understandably, Mr. Reid’s position has made it difficult for his attorneys to solicit his cooperation during his post-conviction litigation.
Additionally, Mr. Reid claims to be engaged to a woman named Susan whom he met while a student at Volunteer State Community College. Mr. Reid has said that he has executed a will naming Susan as the beneficiary and that he mailed the will to a judge serving on the United States District Court in Nashville. Although none of the witnesses in this case appear to have investigated whether Susan is a real person whose identity Mr. Reid is protecting, they assume she is a figment of Mr. Reid’s imagination.
The parties and witnesses also generally agree that Mr. Reid has stated other, more mainstream, reasons for desiring to terminate his post-conviction appeals. He has said that he does not want a new trial because he does not want to hear people take the stand and say awful things about him again. He has also said that a new trial would be futile because three juries have already convicted him and a new trial would likely produce the same result. On the other hand, Mr. Reid has also said that he wishes to be executed because death is the only thing that would free him from the grasp of Scientific Technology. At other times, Mr. Reid maintains that he expects to be set free, to marry Susan, and to be given large sums of money.
The parties and witnesses also agree that Mr. Reid suffers from physical brain damage, although they differ over the extent to which this organic infirmity affects his cognition. On May 1, 1998, Dr. Robert Kessler, a neuroradiologist at Vanderbilt University, performed Magnetic Resonance Imaging (MRI) and Position Emission Tomography (PET) scans on Mr. Reid. Dr. Kessler conducted another MRI scan of Mr. Reid on August 18, 2006. These scans revealed that Mr. Reid has a lesion, or atrophied area, on the anterior part of the left temporal lobe of his brain. This condition may have been partially congenital (Mr. Reid was born with a deformity in his left ear that rendered him deaf), but the expert witnesses agree that the brain lesion was either caused or exacerbated by head injuries. For example, when Mr. Reid was five or six years old, another child hit him in the head with a brick. At age 13, Mr. Reid suffered an accident on a minibike which fractured his skull and put him in the hospital for a week.
The left temporal lobe is known as the language center of the brain, and indeed Mr. Reid’s speech patterns are strikingly unusual. Mr. Reid apparently tries to compensate for his lexical handicaps by memorizing esoteric vocabulary words that he often uses or pronounces incorrectly. The experts disagree whether Mr. Reid’s brain injury is the likely cause of his delusions or his déjávu-like claims that the same events keep happening to him again and again.
B.
In 2007, the Davidson County court held a competency hearing under Tenn. Sup.Ct. R. 28, § 11(B). The issue was whether Mr. Reid was competent to withdraw the petition for post-conviction relief that he filed just before his scheduled execution in April 2003. Following a preliminary hearing on December 1, 2006 pursuant to Tenn. Sup.Ct. R. 28 § 11(B)(3), the post-conviction court found that a “genuine issue” existed regarding Mr. Reid’s competency. Pursuant to Tenn. Sup.Ct. R. 28 § 11(B)(2), the court appointed two mental health professionals, Dr. George Woods and Dr. William Bernet, to evaluate Mr. Reid.
Dr. Woods is a forensic psychiatrist based in California. He first examined Mr. Reid in June 2006, and he evaluated him again in December 2007 under both the Tenn. Sup.Ct. R. 28, § 11(B) and State v. Nix competency standards. Dr. Woods diagnosed Mr. Reid as suffering from psychosis with paranoid delusions that were symptomatic of his brain damage, plus an unspecified cognitive disorder. He also concluded that Mr. Reid was incompetent under both standards.
Dr. Bernet is a forensic psychiatrist and full-time faculty member at Vanderbilt University. He directs Vanderbilt’s Forensic Services program. Dr. Bernet first evaluated Mr. Reid prior to Mr. Reid’s pretrial competency hearing in the Baskin-Robbins case in January and February 1999. At that time, Dr. Bernet diagnosed Mr. Reid with antisocial personality disorder, delusional paranoia, and “a tendency to malinger.” He nevertheless considered Mr. Reid competent to stand trial. Dr. Bernet also testified as the State’s rebuttal witness at the penalty phase of the Baskin-Robbins trial, and reiterated his belief that Mr. Reid was exaggerating his psychotic symptoms. State v. Reid, 164 S.W.3d at 303, 305.
The trial court conducted three days of hearings in July and September 2007. In addition to the testimony of Drs. Woods and Bernet, the court heard the testimony of several Department of Correction employees. Mr. Reid’s counsel also submitted a series of “expert notebooks” containing compilations of prior reports and testimony from mental health professionals introduced in earlier proceedings.
Dr. Bernet testified first, and focused on the history of Mr. Reid’s mental health issues. He noted that twelve mental health professionals had found Mr. Reid to be actively psychotic, while sixteen had concluded that Mr. Reid was not psychotic at all. While Dr. Bernet had initially diagnosed Mr. Reid as delusional, he had changed his diagnosis by the time of this hearing. Dr. Bernet testified that, when he examined Mr. Reid in 1999, Mr. Reid told him that he had made up all of the delusions but that he had repeated the lies so many times he was having difficulty separating fantasy from reality. He also told Dr. Bernet that his initial motivation for faking psychosis was to avoid prosecution in Texas.
Mr. Reid also explained to Dr. Bernet that in 1978 a defense attorney had tutored him on how to fake mental illness and that two Texas juries had subsequently- found him to be incompetent. Mr. Reid told Dr. Bernet that after he pleaded guilty to a robbery in Texas in 1984, he continued spreading his government surveillance stories (including sending letters to public officials) to draw attention to himself in hopes of getting that conviction overturned. During Dr. Bernet’s February 2007 examination, Mr. Reid told him that the delusions of government surveillance were now real. Dr. Bernet believed, however, that Mr. Reid was still essentially faking it. Dr. Bernet suggested that Mr. Reid’s mental issues always arose in conjunction with his legal troubles and disappeared whenever he was released from prison.
After testifying that Mr. Reid had a long list of coherent reasons why he wanted to withdraw his petition, Dr. Bernet concluded that Mr. Reid was competent under the Tenn. Sup.Ct. R. 28, § 11 standard. He diagnosed Mr. Reid as suffering from depression, antisocial personality disorder, and a language disorder related to his temporal lobe injury. He additionally described Mr. Reid as engaging in what he called “pseudologia fantástica,” which is a technical term for pathological lying. Dr. Bernet also stated that he believed Mr. Reid lied to others and to himself as a defense mechanism to avoid the. harsh truth that he murdered seven people. He also opined that significant aspects of Mr. Reid’s behavior were inconsistent with delusional disorder. For example, unlike most individuals who believe they are victims of government surveillance, Mr. Reid had not attempted to locate the hidden surveillance devices.
Dr. Bernet concluded that “either Mr. Reid is a non-psychotic but 'prevaricating individual who sometimes pretends to be delusional or he is a severely psychotic, delusional man who sometimes pretends to be totally free of delusions.” Dr. Bernet testified that he believed Mr. Reid to be the former. He also noted that if Mr. Reid was truly delusional and out of touch with reality, he was unlikely to be mentally competent. If Mr. Reid was lying, though, he would be competent.
Dr. Woods testified after Dr. Bernet and supported his testimony with a PowerPoint ™ presentation. Dr. Woods emphatically disagreed with Dr. Bernet’s conclusion that Mr. Reid was malingering. He believed Mr. Reid suffered from psychosis and cognitive disorders related to his left temporal lobe damage and that his mental health was inexorably deteriorating. He testified that Mr. Reid’s delusions prevented him from cooperating with his attorneys whom he believed to be actors controlled by Scientific Technology. According to Dr. Woods, Mr. Reid filtered everything through a lens of paranoid irrationality, and this psychosis completely undermined Mr. Reid’s ability to make rational decisions.
A series of Department of Correction employees, including mental health professionals, then testified that Mr. Reid rarely, if ever, spoke of Scientific Technology in their presence. One of them testified about prescribing the antidepressant Ela-vil to Mr. Reid and added that she would not have done so if she believed him to be delusional. Drs. Bernet and Woods were both recalled to the stand and reiterated their previous conclusions.
The trial court filed its order on December 20, 2007. The court’s procedural discussion is noteworthy for two reasons. First, the court observed that “Rule 28, Section 11 fails to mention who has the burden of proving competency and to what degree.” However, the court decided that it was “unnecessary to reach that issue” but suggested that “the burden of proof issue should be resolved by our appellate courts.” Second, the trial court decided to use Rumbaugh v. Procunier, 753 F.2d 395 (5th Cir.1985), as a framework for interpreting and applying Tenn. Sup.Ct. R. 28, §11. In Rumbaugh v. Procunier, the United States Court of Appeals for the Fifth Circuit stated that the Rees v. Peyton test requires answering the following three questions:
(1) Is the person suffering from a mental disease or defect?
(2) If the person is suffering from a mental disease or defect, does that disease or defect prevent him from understanding his legal position and the options available to him?
(3) If the person is suffering from a mental disease or defect which does not prevent him from understanding his legal position and the options available to him, does that disease or defect, nevertheless, prevent him from making a rational choice among his options?
If the answer to the first question is nof;] the court need go no further, the person is competent. If both the first and second questions are answered in the affirmative, the person is incompetent and the third question need not be addressed. If the first question is answered yes and the second is answered no, the third question is determinative; if yes, the person is incompetent, if no, the person is competent.
Rumbaugh v. Procunier, 753 F.2d at 398-99. The trial court’s analysis in its December 2007 order is structured according to this three-part inquiry. We agree with the trial court that the Rumbaugh framework is a useful tool for conducting a competency analysis under Tenn. Sup.Ct. R. 28, § 11.
In response to the first Rumbaugh question, the trial court found that Mr. Reid suffered from a mental disease or defect, namely his temporal lobe injury. In response to the second Rumbaugh question, the trial court found that Mr. Reid understood his legal position. Thus, the trial court believed that the answer to the third Rumbaugh question was dispositive, despite the fact that it presented a “difficult ... conundrum.”
The court found itself at the decisional crossroads articulated by Dr. Bernet — either Mr. Reid was a non-psychotie person trying to appear psychotic, or he was a psychotic person working hard at times to appear sane. The court observed that “[credible evidence exists in the record to support either position.” It noted that Mr. Reid had a long history of delusional claims but that he also had a history of questionable truthfulness relating to those claims. The court also noted that, presuming that Mr. Reid’s delusions were completely fabricated, the court would still be faced with whether those pathological lies affected Mr. Reid’s ability to make rational choices.
The trial court finally settled on “three possible scenarios:”
(1) The delusional system is false because [Mr. Reid] is a pathological liar and the lying has no effect on his ability to make rational choices among his options; (2) [Mr. Reid’s] delusions are real due to a delusional disorder and he is therefore unable to make rational choices among his options; or (3) the delusional system is false because [Mr. Reid] is a pathological liar but the lies have become so ingrained that he is now unable to remove himself from the lies and therefore cannot make rational choices among his options.
At this point, the trial court’s analysis became remarkably subtle. Ultimately, the court refused to allow Mr. Reid to withdraw his petition but stopped short of actually finding him incompetent. While “[t]he evidence before the court might arguably support one scenario over another,” the court found the choice between the three scenarios was “simply too close to call.”
The court decided that two factors “tip the proverbial scale in favor of protecting the petitioner’s rights.” The first factor was that Mr. Reid was facing the death penalty, which entitled him to heightened scrutiny and obviated against simply flipping a coin to decide which scenario the court would adopt. The second factor that the trial court believed was “significant” was the State’s concession in the pending federal habeas corpus proceedings that Mr. Reid was not competent under the Rees v. Peyton standard. Based on these considerations, the trial court decided that “[i]n such a close case with a constant ebb and flow in mental status,” it would be “problematic” and “unreasonable to permit a defendant to terminate an entire tier of review of his capital case.” Accordingly, the trial court stated that “[fjundamental fairness” dictated that Mr. Reid’s request to withdraw his post-conviction petition be denied.
The Davidson County court’s 2007 order included a significant caveat. The court noted that the State v. Nix standard would apply in the upcoming 2008 hearing and that this standard invoked other “considerations” that were “not before the court at this time.” Accordingly, the court observed that “the result might be different” under a different competency standard.
C.
On May 12 and 13, 2008, the Davidson County court conducted a hearing to determine Mr. Reid’s competency under the State v. Nix standard. The Captain D’s and McDonald’s cases were consolidated for this hearing, but the court released separate orders in light of the cases’ differing procedural postures. The question presented in the Captain D’s case was whether Ms. Martiniano should be permitted to assume control of Mr. Reid’s post-conviction appeals due to Mr. Reid’s present incompetence to proceed on his own petition that he filed in 2003. The McDonald’s case focused on whether Mr. Reid was competent during the one-year statute of limitations period from December 27, 2006 to December 26, 2007. If he was not competent during this period, then the statute of limitations would be tolled, and Ms. Martiniano could proceed on her “next friend” petition in that case.
The court heard testimony from Drs. Woods, Bernet, and Martell. All the exhibits from the 2007 Tenn. Sup.Ct. R. 28 hearing were entered into the record. Dr. Woods had examined Mr. Reid following the 2007 hearing. He opined that Mr. Reid remained delusional and afflicted with “fixed false beliefs that were unshakable,” and that his psychotic state was deteriorating. Dr. Woods testified that Mr. Reid “sees the truth as the delusions” and “the delusions as the accurate reflection of life.” He noted, for example, that Mr. Reid states that his real trials and death sentence are fake, while his imaginary lawyers and determinate sentence are real. Dr. Woods also testified that although Mr. Reid may appear to give intelligent answers to legal questions, he is really only “parroting” what he has been told without truly understanding it. In other words, Dr. Woods said that Mr. Reid’s cognition is shellacked with a “veneer,” “patina,” or “polish” of understanding that barely conceals the festering delusions underneath.
Dr. Woods testified that under the State v. Nix standard, Mr. Reid was unable to understand his legal rights and responsibilities, and that he was unable to manage his personal affairs. He maintained that Mr. Reid’s personal affairs included his legal affairs, and that Mr. Reid’s delusions about Scientific Technology affected both his daily activities and his ability to oversee his post-conviction litigation. Dr. Woods also noted that, unlike Drs. Bernet and Martell, he did not record his interviews because the American Psychological Association had expressed concerns about how it might alter the clinical relationship. While he acknowledged that Mr. Reid had lived normally before his arrest, Dr. Woods opined that this was typical of people who suffer delusional disorders— while they appear normal at first, they gradually descend deeper and deeper into madness.
Dr. Bernet testified after Dr. Woods. He too had examined Mr. Reid following the 2007 hearing. In addition to his own examinations, Dr. Bernet had read approximately thirty evaluations of Mr. Reid by other mental health professionals and had also recently interviewed prison officials. The Department of Correction employees told Dr. Bernet that Mr. Reid did not appear to have serious psychiatric problems, and that he had not mentioned government surveillance in their presence for years.
Dr. Bernet testified that Mr. Reid’s condition had not changed noticeably since his 2007 examination. He disagreed with Dr. Woods’s assessment that Mr. Reid was getting worse. Dr. Bernet noted that Mr. Reid was able to recall numerous details about his past hearings, as well as Dr. Bernet’s last interview with him. As before, Mr. Reid provided Dr. Bernet with numerous reasons for not wanting a new trial, none of which involved Scientific Technology. Dr. Bernet focused on one “eloquent” statement in particular, in which Mr. Reid said that he wanted to make the decision to pursue a new trial, one of the most important decisions in his life, himself. Mr. Reid said:
People come here to badger me and what have you, to get me to ... change my opinion. I try to be most ... decent and respectful to people and hold steadfast that I’m entitled to my vote, to my opinion, that when I step[ ] into the voting booth, that I won’t be disenfranchised, I won’t be manipulated, that I have the democratic right to cast my vote as I see fitting_We had a trial. I don’t appreciate the outcome of the trial, but I live with the results.
Dr. Bernet testified that Mr. Reid talked about Scientific Technology during the interview, but stated that this topic arose whenever he asked Mr. Reid to think about his crimes. According to Dr. Bernet, Mr. Reid typically only talks about Scientific Technology when his audience appears interested in it. For example, Dr. Bernet noted in his report that Mr. Reid talks at length to his lawyers about Scientific Technology but rarely, if ever, shares these ideas with psychiatrists at Riverbend Prison. Although he characterized Mr. Reid’s symptoms as “fantasies” or “lies,” Dr. Bernet admitted that Mr. Reid has not claimed his delusions were fabricated since 2003.
Dr. Bernet opined that Mr. Reid was narcissistic, with a high opinion of himself and a deep concern for what other people think about him. He testified that the Scientific Technology fantasy is designed to reassure both Mr. Reid and others that he could not have possibly committed the murders. Dr. Bernet theorized that, in the same way Mr. Reid’s fantasies about government surveillance protect him from acknowledging the horrible things he has done in the past, Mr. Reid’s fantasies about his imaginary fiancée reinterpret his future. Like his past, Mr. Reid’s future is dark because he actually will either die in prison or be executed. Both fantasies, then, shield Mr. Reid from harsh truths.
Dr. Bernet concluded that Mr. Reid’s delusions were not genuine delusions. He noted that Mr. Reid has “had thirty years experience in fabricating psychiatric symptoms.” Dr. Bernet testified that Mr. Reid has “gotten better and better at it.... It’s kind of a game with him.” Dr. Bernet also noted a recent study that found only five percent of people with traumatic brain injury experience delusions and that those who do tend to have much more severe injuries than Mr. Reid. Accordingly, Dr. Bernet testified that Mr. Reid was competent under the State v. Nix standard and that his fantasy defense mechanisms did not compromise his ability to manage his affairs or understand his legal rights and liabilities.
Dr. Daniel Martell also testified at the 2008 hearing in Davidson County. He is a forensic neuropsychologist who was retained by the State to assess Mr. Reid in conjunction with the Captain D’s trial in January 1999. At the sentencing phase of that trial, Dr. Martell testified that he had diagnosed Mr. Reid as suffering from a mild neurocognitive disorder, antisocial personality disorder, and a delusional disorder (in substantial remission) with grandiose and persecutory features. Dr. Martell also testified that these disorders had not substantially impaired Mr. Reid’s judgment or his capacity to conform his conduct to the law or to know right from wrong. State v. Reid, 91 S.W.3d at 270-71. In addition, Dr. Martell had testified at the McDonald’s trial and had concluded that Mr. Reid was not suffering from delusions at that time. He had also suggested that Mr. Reid had been exaggerating his symptoms for the purpose of an insanity defense. State v. Reid, 213 S.W.3d at 809-10. Dr. Martell examined Mr. Reid again in August 2006 and April 2008. It was Dr. Martell’s 2006 evaluation that led the Attorney General’s Office to concede Mr. Reid’s incompetency in federal court.
At the 2008 competency hearing, Dr. Martell testified that while Mr. Reid appeared “acutely disturbed” in 2006, his symptoms were diminished but still active in 2008. Dr. Martell continued to believe that Mr. Reid experienced some genuine delusions. However, he also testified that during his most recent interview with Mr. Reid, he had conducted tests indicating that Mr. Reid was malingering or exaggerating his symptoms. According to Dr. Martell, this made it difficult to determine which symptoms were genuine and which were exaggerations. Despite the psychotic symptoms, Dr. Martell concluded that Mr. Reid was able to manage his personal affairs.
Dr. Martell had difficulty reaching a conclusion under the “legal rights and liabilities” prong of the State v. Nix standard because he considered it vague. He believed that Mr. Reid had been competent to stand trial and that he was presently competent (for purposes of the Captain D’s case). However, Dr. Martell hesitated to state that Mr. Reid was competent during the period from December 2006 to December 2007 (for purposes of the McDonald’s case). He testified that Mr. Reid’s delusional disorder would wax and wane, as though Mr. Reid kept his delusions in a suitcase. According to Dr. Martell, the suitcase was open in 2006, and the delusions were running wild. However, in 2008, the delusions were more “encapsulated.” Dr. Martell opined that stress could be what exacerbates Mr. Reid’s symptoms.
Dr. Martell testified that he respected Dr. Bernet’s opinion. However, he noted that he found it difficult to decide whether Mr. Reid’s delusions undermined his competency. Dr. Martell noted that some new symptoms had sprung from the smithy of Mr. Reid’s psyche, including Mr. Reid’s theory that he was serving a determinate sentence. At the time of the 2008 interview, Mr. Reid’s imaginary ten- to twelve-year sentence had already expired. Mr. Reid told Dr. Martell that he remained in prison because he had refused to accept an apology from Scientific Technology. Mr. Reid also told Dr. Martell that Scientific Technology had caused him to experience strange smells and tastes, as well as a painful rectal itch. Nevertheless, although Dr. Martell had found Mr. Reid to be incompetent under the Rees v. Peyton standard for purposes of the federal habeas corpus proceedings in 2006, he concluded that Mr. Reid was presently competent for the Captain D’s case and competent during the statutory limitations period for the McDonald’s case.
On December 12, 2008, the Davidson County court filed two lengthy and detailed orders in the Captain D’s and McDonald’s cases. While these orders were substantively identical, they differed with regard to the procedural posture of each of the cases. At the outset, the court restated the holding in its 2007 order that “[this] court concluded, without specifically finding that [Mr. Reid] was incompetent, that a combination of factors, including the evidence presented, the waxing and waning nature of [Mr. Reid’s mental] condition and fundamental fairness concerns, warranted a finding that [Mr. Reid] not be permitted to withdraw his petition.” The court also reviewed, in depth, the testimony and findings from the 2007 hearing and the 2008 hearing.
To aid its analysis, the Davidson County court turned to In re Conservatorship of Groves. The court noted that
Tennessee case law interpreting the Nix civil competency standard is scant. However, a reported decision from the Tennessee Court of Appeals provides a thorough and informative analysis of the civil competency standard.
[Groves ] ... examined in detail each prong of the civil competency standard (as adopted in Nix). Although the Groves case examines competency in the context of a conservatorship proceeding, the analysis of the competency standard is equally applicable here.
The court then devoted approximately five pages to the same competency principles articulated in Groves, which we have already summarized in Section III.
The Davidson County court looked to Groves as its lodestar for analyzing Mr. Reid’s competency. The court began its discussion by stating that the “considerations set out in Groves ” provide “a useful starting point.” The court then considered whether Mr. Reid was able to manage his personal affairs under the Groves rubrics of “functional capacity” and “decision-making capacity.”
The court focused on Mr. Reid’s videotaped interviews with Drs. Martell and Bernet. According to the court, these interviews reflected that Mr. Reid had a “rational understanding of his personal affairs” and applied a “rational, decision-making process in making his choices.” The court found that Mr. Reid’s descriptions of the choices he made throughout the day, and his reasons underlying those choices, reveal that his functional and decision-making capacities remain intact. The trial court found that these choices “illustrate [Mr. Reid’s] understanding of his personal affairs.” Even though Mr. Reid had limited choices available to him as a prisoner, the court concluded that he had “a remarkable understanding of his daily choices and the reasons behind the choices he makes.” Accordingly, the court found that Mr. Reid was “not incompetent under Nix to manage his personal affairs.”
The trial court then turned to the “legal rights and liabilities” prong of the State v. Nix standard. “Again,” the court noted, “Groves provides a helpful framework for conducting this analysis.” The court determined that it “must examine closely whether [Mr. Reid] had the decision-making capacity described in Groves, including the injection of the adjective ‘rational’ to describe the quality and character of the decisions being made.” The court then quoted Groves for the proposition that “[d]ecision-making capacity involves a person’s ability (1) to take in and understand information, (2) to process the information in accordance with his or her own values and goals, (3) to make a decision based on the information, and (4) to communicate the decision.” Even though the court noted that this analysis was “difficult” in light of the divergent expert opinions concerning Mr. Reid’s ability to make rational decisions about his post-conviction matters, the court found Mr. Reid to be competent “in light of the autonomy recognized by [Groves ] and the clear and convincing evidence standard enumerated in [Reid v. State, 197 S.W.3d at 703-05].”
The trial court then recounted portions of the relevant expert testimony and recalled Mr. Reid’s own testimony in the 2007 hearing. The court found that Mr. Reid “had a remarkable grasp of his three complex capital cases.” The court believed that Mr. Reid’s responses to the court’s questions reflected “a rational understanding of his legal position.” The trial court also found that Mr. Reid had an “understanding of two relevant and valid post-conviction issues,” namely that his trial counsel was arguably deficient in failing to challenge the shoe prints found at the crime scene and a cache of coins seized from Mr. Reid’s home.
Ultimately, the trial court was faced with a dilemma similar to the one it faced in the 2007 proceedings, arising from the differing expert opinions. Dr. Woods testified that Mr. Reid was too deeply delusional to understand his legal rights and liabilities. Dr. Martell testified that Mr. Reid was delusional, but that his delusions did not impair his basic understanding of his legal rights and liabilities. Dr. Bernet testified that Mr. Reid was a habitual liar, and that even if Mr. Reid now believes his lies are the truth, he nonetheless can understand his legal rights and liabilities. After observing that “there is evidence to support all three positions,” the court resolved the “perplexing” dilemma by focusing on the clear and convincing evidence burden of proof. The court stated that
[T]he interplay between [Mr. Reid’s] understanding and the effects, if any, of the delusions or thoughts or fantasies about [Scientific [Technology on his understanding when inserting the descriptive term “rational” creates what this Court believes to be the seminal issue — does [Mr. Reid] have a rational understanding (in light of the delusions or fabricated stories that perhaps have become the “truth” to [Mr. Reid]) of his legal rights and liabilities?
The trial court could not eliminate any “serious or substantial doubt concerning the correctness of the conclusion of [Mr. Reid’s] incompetence.” Finding “substantial credible evidence,” the court held Mr. Reid was competent. The court thus had “substantial doubt” that he was incompetent under State v. Nix. The court noted that “the result could be different under a different competency standard or a different burden of proof.” Nevertheless, the court found that Ms. Martiniano had not borne her evidentiary burden. The court dismissed her “next friend” petition in both cases, and ordered that Mr. Reid would proceed on his original post-conviction petition in the Captain D’s case.
Two almost paradoxical observations are crucial for our purposes. First, the Davidson County court clearly differentiated the Tenn. Sup.Ct. R. 28, § 11 standard and the State v. Nix standard. By doing this, the court was simply following our lead. See Reid v. State, 197 S.W.3d at 696, 701-06; Holton v. State, 201 S.W.3d at 634-35. Second, however, it is also clear that the court applied the State v. Nix standard in light of In re Conservatorship of Groves and explicitly focused its attention on whether Mr. Reid could make “rational” procedural decisions. Thus, the trial court applied State v. Nix in a way that made it functionally equivalent to the standard in Tenn. Sup.Ct. R. 28, § 11. Although the trial court refrained from making a specific finding of rationality in 2007, it explicitly found in 2008, under a nearly identical standard, that Mr. Reid’s sister and the Office of the Post-Conviction Defender had failed to prove by clear and convincing evidence that Mr. Reid lacked the ability to make rational decisions regarding the management of his post-conviction petitions.
D.
On May 14 and 15, 2008, the Montgomery County court conducted a hearing to determine Mr. Reid’s competency with regard to the post-conviction proceedings in the Baskin-Robbins case. In a detailed order filed on December 18, 2008, the court reached the same result that the Davidson County court had reached in the McDonald’s case. It found that Mr. Reid was not entitled to due process tolling of the statute of limitations because he was competent to pursue post-conviction relief under the State v. Nix standard during the one-year period following the affirmance of his conviction and sentence on direct appeal.
During this hearing, the Montgomery County court received the testimony of Drs. Woods, Martell, and Bernet. In addition, Connie Westfall, a former investigator for the Office of the Post-Conviction Defender, and Dr. Michael First testified. The trial court’s order summarized the testimony of each witness. The court noted that none of the experts had examined Mr. Reid during the relevant time period to assess his competency under the State v. Nix standard, but that Dr. Woods had interviewed him during that period for other purposes.
Testifying first, Dr. Woods opined that Mr. Reid suffered from a genuine delusional break from reality and was not malingering or fantasizing. Dr. Woods testified that he believed that Mr. Reid’s delusions relate to control, i.e. that his physical, emotional, and intellectual functioning is monitored and orchestrated by Scientific Technology, and that these delusions affected Mr. Reid’s understanding of his legal affairs and rendered him incompetent under both prongs of State v. Nix. Dr. Woods conceded that Mr. Reid had previously held jobs, had been able to live on his own, had been married, had purchased a car on credit, had earned his GED, and had taken classes at Volunteer State Community College. He also agreed that Mr. Reid emphasized his delusions at some times more than others, and that Mr. Reid had told other mental health professionals that his delusions were fabricated. However, Dr. Woods did not agree that Mr. Reid’s delusional behavior waxed and waned in synchronicity with his legal troubles. Dr. Woods testified that Mr. Reid has “consistently” not wanted to be found incompetent or mentally ill.
Ms. Westfall testified next. She stated that she regularly visited Mr. Reid from May 2003 to December 2007, sometimes as often as every two weeks. She also testified that she kept records of Mr. Reid’s physical, mental, and emotional condition. Ms. Westfall testified that, during the relevant time period, no one from Mr. Reid’s legal team was able to conduct a meaningful and rational conversation with him about his case. Nor were they able to get Mr. Reid to set aside his beliefs about Scientific Technology. Ms. Westfall’s conclusion, as a layperson, was that Mr. Reid had “descended completely into his delusion.” Ms. Westfall also testified that the rational reasons Mr. Reid articulated for foregoing a new trial were “secondary” to his reasons that were based on Scientific Technology.
Dr. Martell’s testimony tracked the testimony he had given days before in the Davidson County proceedings. He stated that the lid to Mr. Reid’s “Pandora’s box” of delusions had been opened between 1999 and 2006, and that Mr. Reid’s delusions were, at that point, no longer “encapsulated.” However, according to Dr. Martell, Mr. Reid has an “elaborate history” of feigning symptoms and malingering. Thus, Dr. Martell opined that Mr. Reid’s lying was probably a symptom of his antisocial personality disorder. According to Dr. Martell, Mr. Reid was like “the boy who cried wolf,” and his case was a “diagnostic nightmare.” Nevertheless, even in 2006, Dr. Martell had noted that Mr. Reid was able to appreciate his legal position:
He’s always, over the times I’ve seen him, had an eloquent and rich understanding of the charges against him, of what’s going on with his cases; his delusions have never interfered with his capacity to understand the processes or the charges. [It has] interfered with some of his thinking about evidence he might put into play, for example [videotapes of his life that were recorded by Scientific Technology] that would prove his innocence.
But he’s had [a] fundamental understanding of the charges against him, of his attorneys, of the process, of the judges, of — what would happen in court ... he had told me even back in 1999 that after his automatic appeals that he didn’t want to pursue any post-conviction appeal.... I’m trying to convey that he had a detailed and rational understanding of what was going on in court in terms of his legal rights and liabilities.
Dr. Martell also opined that Mr. Reid was able to manage his personal affairs during the statute of limitations period because Mr. Reid had always been concerned about his personal appearance and health. While Dr. Martell considered Mr. Reid to be competent under State v. Nix, he said that he did not factor Mr. Reid’s capacity to have rational consultations with his attorneys into the State v. Nix analysis because he considered the issue to be outside the scope of State v. Nix.
Dr. Bernet testified after Dr. Martell. Even though he had not examined Mr. Reid during the statutory limitations period, he offered his opinion that Mr. Reid was competent under State v. Nix. Dr. Bernet testified regarding Mr. Reid’s long history of fabricating psychiatric symptoms, including the delusions of government surveillance. He recounted his interview with Mr. Reid in 1999, during which Mr. Reid told him about the origin of the Scientific Technology story and how he had been able to use the story to avoid prosecution.
Dr. Bernet also testified that Mr. Reid had been tested for, but not diagnosed with, a significant psychiatric disorder, pri- or to his arrest in Texas in 1977. Following his arrest, Mr. Reid acted flagrantly psychotic, but then was able to function normally on the streets following his release from custody. Dr. Bernet also reviewed Mr. Reid’s grades at Volunteer State Community College, as well as the papers Mr. Reid had written while he was a student. He testified that he found no indication of psychotic thinking in these materials. However, Mr. Reid’s symptoms resurfaced following his 1997 arrest in Tennessee. According to Dr. Bernet, this history illustrated a direct correlation between Mr. Reid’s legal issues and his psychiatric symptoms.
While Dr. Bernet acknowledged the possibility that Mr. Reid could be genuinely delusional, Dr. Bernet believed that Mr. Reid’s behavior differed significantly from that of the typical delusional patient and pointed toward malingering. Dr. Bernet thought that Mr. Reid’s government surveillance fantasies were a defense mechanism and that maintaining the fantasy was more important to Mr. Reid than looking fully competent so he could stop the appeals. Dr. Bernet also testified that Mr. Reid’s defense mechanism about Scientific Technology and his desire to end his appeals were compatible in the sense that both prevented him from having to face awful facts about his crime.
Dr. Michael First, a psychiatrist and the editor of the DSM-IV and DSM-IV-TR, testified in rebuttal. He had personally interviewed Mr. Reid and had reviewed various reports concerning Mr. Reid’s mental condition. Dr. First was convinced that Mr. Reid was delusional and that, while these delusions could have been caused by brain damage, they could also have been caused by a non-organic delusional disorder. Dr. First testified that Dr. Bernet’s conclusions could not be reconciled with Ms. Westfall’s observations of Mr. Reid. Dr. First also took issue with Dr. Bernet’s theory that Mr. Reid’s delusions coincided with his legal troubles, and that Mr. Reid’s behavior was incongruous with the typical delusional patient.
In its December 18, 2008 order, the Montgomery County court noted that the State had conceded in federal court that Mr. Reid was not competent under the Rees v. Peyton standard. The court stated, however, that the State v. Nix standard, rather than Tenn. Sup.Ct. R. 28, § 11, applied in the present proceeding and that Ms. Martiniano faced the burden of proving Mr. Reid’s incompetence by clear and convincing evidence in light of Reid v. State, 197 S.W.3d at 703-05 and In re Conservatorship of Groves, 109 S.W.3d at 329-31.
Like the Davidson County court, the Montgomery County court employed In re Conse'rvatorship of Groves as an analytical framework for determining Mr. Reid’s competency under State v. Nix. The court found that Groves “provides an insightful dissection” of the “various components” of the Nix civil competency standard, and that “the core mental health concepts and interpretations” found in Groves were “equally applicable” in Mr. Reid’s case. It also observed that Groves “established the parameters of this inquiry.” In its discussion, the court “cite[d] extensively” the “core concepts” outlined in Groves before engaging in “application of the G'rovels] considerations to the facts of the present case.” The Montgomery County court’s recitation of Groves was similar to that of the Davidson County court. The court found that the issues underlying conserva-torships and competency in capital post-conviction cases share “baseline concepts and public policy considerations.” For example, autonomy is important in both contexts, and the law presumes in both contexts that adults are capable rather than incapable.
The Montgomery County court focused particularly on Groves’s discussion of functional and decision-making capacity. The court noted that competency is task-specific, situational, and contextual, and that a person’s competency level is not necessarily static. Significantly, the court said:
Based on the nature of the proof, it is clear that the crux of the inquiry here is [Mr. Reid’s] decision-making capacity. “Decision-making capacity involves a person’s ability (1) to take in and understand information, (2) to process the information in accordance with his or her own personal values and goals, (3) to make a decision based on the information, and (4) to communicate the decision.” [Groves, 109 S.W.3d] at 335.
Foolish, unconventional, eccentric, or unusual choices do not, by themselves, signal incapacity. However, choices that are based on deranged or delusional reasoning or irrational beliefs may signal decision-making incapacity.[” Groves, 109 S.W.3d] at 335-36.
The court, following Groves, defined decision-making capacity as the “mental ability to make a rational decision.” It is therefore clear that the court considered the “crux” of this case to be Mr. Reid’s “decision-making capacity,” which the court defined as the “mental ability to make a rational decision.”
To this end, the Montgomery County court began its analysis by exploring Mr. Reid’s ability to manage his personal affairs in light of his “functional and decision-making capacities].” While Drs. Bernet and Martell believed that Mr. Reid was able to manage his personal affairs during the statute of limitations period, Dr. Woods had testified that Mr. Reid believed his basic decisions were controlled by Scientific Technology. The court rejected Dr. Woods’s testimony, and found “no basis to find a significant impairment, if at all, in [Mr. Reid’s] functional or decision-making capacity to manage his personal affairs.” Thus, the court found that Ms. Martiniano failed to satisfy the first prong of the State v. Nix standard.
The trial court noted that the second prong of the State v. Nix standard — Mr. Reid’s understanding of his legal rights and liabilities — was “more difficult” to decide. The court again noted that it “utilize[d] the Groves considerations in this discussion.” While Drs. Bernet and Martell found Mr. Reid to be competent, Dr. Woods did not. Although Dr. First challenged Dr. Bernet’s findings on this issue, the court noted Dr. First’s concession that delusional disorder is difficult to diagnose and that few cases are known.
The court also signaled that it would be required to make some “credibility determinations” in this case because Dr. First relied extensively on materials provided by Mr. Reid’s advocates in the Office of the Post-Conviction Defender. The court observed that Dr. First’s reliance on these materials warranted a degree of skepticism in light of the fact that the employees of the Office of the Post-Conviction Defender were “attempting to save their client’s life.” The trial court found it significant that Drs. Bernet and Martell, who had extensive histories with Mr. Reid, had concluded that Mr. Reid understood his legal rights and liabilities despite his repeated references to the delusions or fantasies of Scientific Technology. Therefore, the trial court “accredited] their testimony in this regard” and held that Ms. Martiniano and the Office of the Post-Conviction Defender had failed to satisfy the second prong of the State v. Nix standard. Accordingly, the Montgomery County court held that Ms. Martiniano’s petition, as her brother’s “next friend,” seeking post-conviction relief in the Baskin-Robbins case should be dismissed.
V.
Three questions now await our decision. The first is what standard or standards should Tennessee’s courts use to determine whether a prisoner is competent in the context of a post-conviction proceeding. The second is whether the trial courts employed the correct standard in these cases. If the trial courts employed the correct standard, the third and final question is whether the evidence in the record supports the trial courts’ determination that Ms. Martiniano should not be permitted to pursue post-conviction relief as Mr. Reid’s “next friend,” because Mr. Reid is competent to make his own decisions regarding the pursuit of post-conviction relief.
A.
We will first address the continuing need for two competency standards in the context of post-conviction proceedings. Counsel for the State and counsel for Mr. Reid argue that we should abandon the State v. Nix standard because it lacks a rationality component and is not tailored to the post-conviction context. Both parties agree that competency should hinge on whether the prisoner filing the petition for post-conviction relief is capable of making rational choices with regard to the particular issue in question. We agree.
In the interest of uniformity and simplicity, we have determined that the standards and procedures in Tenn. Sup.Ct. R. 28, § 11 should henceforth be used in all post-conviction proceedings, including those currently awaiting decision, in which the issue of the petitioner’s competency is properly raised. Thus, Tenn. Sup.Ct. R. 28, § 11 will apply not only when a petitioner seeks to withdraw a previously-filed petition for post-conviction relief, but also when a petitioner seeks to toll the statute of limitations in Tenn.Code Ann. § 40-30-102(a) due to incompetency, and when a “next friend” seeks to have the prisoner declared incompetent.
In light of the importance our society ascribes to personal autonomy, the inquiry should begin with a presumption that the petitioner or prisoner is competent. Tenn. Sup.Ct. R. 28, § 11(B)(2); Groves, 109 S.W.3d at 329-30. To proceed on a “next friend” petition on the basis that the prisoner is incompetent, the “next friend” must make a prima facie showing that the prisoner is incompetent by submitting “affidavits, depositions, medical reports, or other credible evidence that contain specific factual allegations showing the petitioner’s incompetence.” Holton v. State, 201 S.W.3d at 634 (quoting State v. Nix, 40 S.W.3d at 464). The “next friend” must also demonstrate a “significant relationship” with the prisoner and must show that he or she is “truly dedicated to the best interests of the person on whose behalf he [or she] seeks to litigate.” Holton v. State, 201 S.W.3d at 632. If this prima facie showing is made, then the trial court should schedule a hearing to determine whether the prisoner is competent to manage his petition. In the absence of a “next friend,” the court may appoint a guardian ad litem to advocate on the petitioner’s behalf. See Reid v. State, 197 S.W.3d at 696, 705-06. To assure adequate preparation for the competency hearing, “the trial court may enter a scheduling order requiring the parties to provide notice of any expert witnesses and to provide a written report of the expert[s’] opinions at a designated time prior to the hearing.” Reid v. State, 197 S.W.3d at 703.
The competency standard applicable to these proceedings is whether the prisoner possesses “the present capacity to appreciate [his or her] position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether the petitioner is suffering from a mental disease, disorder, or defect which may substantially affect the petitioner’s capacity.” Tenn. Sup.Ct. R. 28, § 11(B)(1). The question is not whether the prisoner is able to care for himself or herself, but whether the prisoner is able to make rational decisions concerning the management of his or her post-conviction appeals. The prisoner (or the “next friend”) bears the burden of proving incompetency by clear and convincing evidence. Reid v. State, 197 S.W.3d at 703-05.
To provide structure to its Tenn. Sup.Ct. R. 28, § 11 analysis, the trial court should employ the three-step Rumbaugh test:
(1) Is the person suffering from a mental disease or defect?
(2) If the person is suffering from a mental disease or defect, does that disease or defect prevent him from understanding his legal position and the options available to him?
(3) If the person is suffering from a mental disease or defect which does not prevent him from understanding his legal position and the options available to him, does that disease or defect, nevertheless, prevent him from making a rational choice among his options?
If the answer to the first question is no[;] the court need go no further, the person is competent. If both the first and second questions are answered in the affirmative, the person is incompetent and the third question need not be addressed. If the first question is answered yes and the second is answered no, the third question is determinative; if yes, the person is incompetent, if no, the person is competent.
Rumbaugh v. Procunier, 753 F.2d at 398-99. The third step asks whether a prisoner, despite his or her mental disease or defect, is capable of making a rational choice from among the available post-conviction options. A decision may be rational even when it is not one that the majority would consider acceptable, sensible, or reasonable. A decision is rational when it is based on a process of reasoning. Groves, 109 S.W.3d at 336. A person’s decision-making process is rational when that person can (1) take in and understand information; (2) process the information in accordance with his or her personal values and goals; (3) make a decision based on the information; and (4) communicate the decision. Groves, 109 S.W.3d at 335.
B.
We next turn to the question of whether the trial courts applied the correct standard to determine whether Mr. Reid was competent to make decisions regarding the pursuit of post-conviction relief. Answering this question has been somewhat complicated by the procedural history of these cases.
In 2006, we unambiguously directed the trial courts to apply the “civil competency standard” found in State v. Nix, rather than the competency standard in Tenn. Sup.Ct. R. 28, § 11. When read literally and superficially, the State v. Nix standard did not explicitly require considering whether the prisoner had the capacity to make rational decisions. However, in their application of the State v. Nix standard, both trial courts infused their analysis of Mr. Reid’s competency to pursue post-conviction relief with the rational decision-making principles found in In re Conservatorship of Groves. The Nix/ Groves standard employed by the trial courts in these cases is functionally identical to the standard embodied in Tenn. Sup.Ct. R. 28, § 11(B)(1). Thus, the competency standard that both trial courts used in these cases is consistent with both State v. Nix and Tenn. Sup.Ct. R. 28, § ll. Accordingly, we find that both trial courts employed the correct legal standard when they were called upon to decide whether Mr. Reid was competent to make decisions regarding the pursuit of post-conviction relief.
C.
Our decision that the trial courts applied the correct legal standard to determine whether Mr. Reid was competent to make decisions regarding the pursuit of post-conviction relief leaves one question to be decided. We must now determine whether the record supports the trial courts’ conclusions that Ms. Martiniano and the Office of the Post-Conviction Defender failed to prove clearly and convincingly that Mr. Reid lacked the capacity to decide whether to pursue post-conviction relief.
In order for evidence to be clear and convincing, it must eliminate any “serious or substantial doubt about the correctness of the conclusions drawn from the evidence.” State v. Sexton, 368 S.W.3d 371, 404 (Tenn.2012) (quoting Grindstaff v. State, 297 S.W.3d 208, 221 (Tenn.2009)); Lane v. State, 316 S.W.3d 555, 562 (Tenn.2010). The truth of facts proved by clear and convincing evidence is “highly probable.” Goff v. Elmo Greer & Sons Constr. Co., 297 S.W.3d 175, 187 (Tenn.2009) (quoting Teter v. Republic Parking Sys., Inc., 181 S.W.3d 330, 341 (Tenn.2005)). Therefore, “clear and convincing evidence enables a fact-finder to form a firm belief or conviction regarding the truth of the facts.” Whether the evidence is clear and convincing is a question of law that appellate courts must review de novo without a presumption of correctness. In re Bernard T., 319 S.W.3d 586, 596-97 (Tenn.2010).
We find that the record supports the trial courts’ conclusions that Ms. Martiniano and the Office of the Post-Conviction Defender did not present clear and convincing evidence that Mr. Reid is not competent to make decisions regarding post-conviction relief. Although they made out a prima facie showing of incompetence, the expert witnesses who testified at Mr. Reid’s three competency hearings reached divergent conclusions concerning Mr. Reid’s competency. Both courts found Drs. Martell and Bernet to be more credible than Dr. Woods. The Montgomery County court also expressed skepticism about Dr. First’s analysis, despite the psychiatrist’s impressive resumé.
Both trial courts found legitimate reasons to doubt that Mr. Reid was not competent to manage his appeals. Weighing the evidence and assessing the credibility of witnesses is the trial court’s bailiwick, which we leave undisturbed. Howell v. State, 185 S.W.3d 319, 328 (Tenn.2006) (citing Nichols v. State, 90 S.W.3d 576, 586 (Tenn.2002)). As Dr. Bernet suggested, Mr. Reid may have been faking many of his delusions. As Dr. Martell suggested, Mr. Reid’s delusions may have been sufficiently “encapsulated” to allow him to make rational post-conviction decisions. In light of these expert opinions, both of which are based on hours of personal interviews with Mr. Reid, it is unsurprising that the post-conviction courts harbored “serious or substantial doubt[s]” that Mr. Reid was incompetent. After reviewing Mr. Reid’s voluminous post-conviction record, we find no compelling reason to overrule the trial courts’ disposition of this issue.
Therefore, we affirm the holdings of the Davidson County and Montgomery County courts and of the Court of Criminal Appeals. Ms. Martiniano and the Office of the Post-Conviction Defender failed to prove, by clear and convincing evidence, that Mr. Reid was incompetent during the statute of limitations periods for the McDonald’s and Baskin-Robbins cases and incompetent at the time of the hearing in the Captain D’s case. We will not wrest Mr. Reid’s autonomy from him under these circumstances. VI. Ms. Martiniano and the Office of the Post-Conviction Defender raise several additional issues on this appeal. We will deal with each of them in turn. A. Mr. Reid’s advocates first insist that the State’s concession in federal court that Mr. Reid is incompetent under the Rees v. Peyton standard should have pre-clusive effect in state court. Like the Court of Criminal Appeals, we find this argument unpersuasive. The circumstances in this case fail to satisfy the elements of res judicata, collateral estoppel, judicial estoppel, and equitable estoppel. Reid v. State, 2011 WL 8444171, at *29-31. We adopt the reasoning of the Court of Criminal Appeals on this issue and add three additional observations. First, it is significant that the petitioner’s burden of proving incompetency is higher in state court than in federal court. As previously noted, federal courts conduct the Rees v. Peyton inquiry under a “preponderance of the evidence” standard — the most lenient of all burdens of proof. See Comer v. Schriro, 480 F.3d 960, 970 (9th Cir.2007); Mason ex rel. Marson v. Vasquez, 5 F.3d 1220, 1225 (9th Cir.1993). In Tennessee state courts, by contrast, post-conviction petitioners must demonstrate incompetence by clear and convincing evidence, meaning that the court is left with no serious or substantial doubt concerning the correctness of the conclusions it derives from the evidence. Lane v. State, 316 S.W.3d at 562. Second, the record before us indicates that Mr. Reid’s mental state was at its worst around the time the State first conceded his incompetency in federal court. Dr. Martell, for example, testified that in 2006, Mr. Reid’s delusions had spilled out of his psychic “suitcase” and were permeating every area of Mr. Reid’s life. In 2008, in contrast, Dr. Martell noted that Mr. Reid appeared much more rational. Mr. Reid’s mind is a moving target. There is nothing irrational or dishonest in conceding incompetency when Mr. Reid was at his worst, but then contesting the issue when evidence suggested his mental health was improving. Third, during the proceedings in federal court, the State anticipated that a different legal standard, the arguably more lenient State v. Nix standard, would be used in the state courts. We are, therefore, inclined to think that when the State conceded Mr. Reid’s incompetence in federal court in 2006 and 2007, but contested the issue in state court in 2007 and 2008, this strategy was sensible under the circumstances and not inherently contradictory. The circumstances do not warrant the application of any sort of issue preclusion. B. Mr. Reid’s advocates argue next that the trial judge who presided over the proceedings in Davidson County should have recused herself from the case because of an appearance of bias. Like the Court of Criminal Appeals, we find this issue to be without merit. Reid v. State, 2011 WL 3444171, at *39-41. This trial judge has shepherded these two complex cases for the past fifteen years. During that time, the judge has demonstrated exceptional patience, fairness, thoroughness, and attention to detail. A trial judge’s recusal decision will be reversed only when the judge has abused his or her discretion by failing to step aside. State v. Hines, 919 S.W.2d 573, 578 (Tenn.1995) (citing State ex rel. Phillips v. Henderson, 220 Tenn. 701, 707, 423 S.W.2d 489, 492 (1968)). The arguments of Mr. Reid’s counsel demonstrate no abuse of discretion. We affirm and adopt the reasoning of the Court of Criminal Appeals on this issue. C. Mr. Reid’s advocates also take issue with the Davidson County court’s denial of funding for other expert witnesses Mr. Reid’s counsel hoped to call at the 2008 hearing. The trial court concluded that funding for these additional witnesses would have been unnecessarily duplicative and could lead to an “endless cycle” of rebuttal testimony because all the experts were familiar with the reports of the other experts and because these experts had previously agreed that Mr. Reid was not competent. Under Tenn.Code Ann. § 40-14-207(b) (2012) and Tenn. Sup.Ct. R. 13, § 5(a), a post-conviction court has discretion to provide funding for expert witnesses for an indigent capital petitioner when those services are “necessary to ensure that the constitutional rights of the defendant are properly protected.” This Court has held that, to obtain this funding, “a petitioner must demonstrate by specific factual proof that the services ... are necessary to establish a ground for post-conviction relief, and that the petitioner is unable to establish that ground for post-conviction relief by other available evidence.” Owens v. State, 908 S.W.2d 923, 928 (Tenn.1995). We agree with the Court of Criminal Appeals that the Davidson County court did not abuse its discretion in limiting the amount of funding available to Mr. Reid for expert services, and we adopt that court’s reasoning. Reid v. State, 2011 WL 3444171, at *35-39. D. Mr. Reid’s advocates contend that the Davidson County court erred by refusing to strike the testimony and evaluations of Drs. Bernet and Martell. They insist that the testimony of these experts should have been excluded because the State sent them to examine Mr. Reid without first notifying Mr. Reid’s counsel when the examinations would take place. Because Mr. Reid’s competency was at issue in this proceeding, the State was entitled to have him examined. Tenn. Code Ann. § 33-7-301(a)(2) (2007 & Supp. 2012). The State’s attorneys previously indicated at a status conference that they anticipated having these evaluations done by these two psychiatrists. Although the State should ideally have informed Mr. Reid’s counsel about the timing of the examinations, Mr. Reid’s counsel has failed to identify any prejudice that resulted from this failure to communicate. We adopt the reasoning of the Court of Criminal Appeals on this issue, and find that the argument lacks merit. Reid v. State, 2011 WL 3444171, at *33-35. E. Finally, Mr. Reid’s advocates object to Dr. Bernet’s testimony and report under Tenn. R. Evid. 702 and 703. These rules govern the admission of expert testimony and instruct the court to disallow an expert’s testimony if “the underlying facts or data indicate lack of trustworthiness.” We provided guidelines for making this determination in State v. Copeland, 226 S.W.3d 287, 301-02 (Tenn.2007) and McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257, 263-65 (Tenn.1997). Specifically, Mr. Reid’s advocates object to the term “pseudologia fantástica” as a component of Dr. Bernet’s diagnosis of Mr. Reid. The term first appears in the report Dr. Bernet prepared for the 2007 hearing. Counsel for Mr. Reid objected to the diagnosis before the 2007 and 2008 Davidson County hearings. The post-conviction court denied these motions and allowed Dr. Bernet to testify. Like the Court of Criminal Appeals, we find no abuse of discretion in the post-conviction court’s decision to admit Dr. Bernet’s testimony. Even if “pseudologia fantástica” is a scientifically questionable diagnosis, Dr. Bernet explained during his testimony that he used the term because he considered it helpful to convey his conclusion that Mr. Reid habitually lied, malingered, and exaggerated his symptoms. Once he realized that the term “created confusion” and became a “diversion” away from the issues, he decided the term was unnecessary and abandoned it. Another expert, Dr. Martell, similarly testified that Mr. Reid sometimes exaggerated or fabricated his symptoms, and his testimony was never challenged for lack of reliability. We adopt the reasoning of the Court of Criminal Appeals on this issue, and find Mr. Reid’s counsel’s arguments utterly without merit. Reid v. State, 2011 WL 3444171, at *31-33. VII. In summary, we have concluded that both the Davidson County court and the Montgomery County court applied the proper legal standard and analysis to determine whether Mr. Reid was competent to manage the pursuit of post-conviction relief with regard to his seven capital convictions. We have also concluded that the record supports both courts’ conclusion that Mr. Reid’s “next friend” and the Office of the Post-Conviction Defender failed to present clear and convincing evidence that Mr. Reid is incompetent. In light of the divergent diagnoses related to Mr. Reid’s idiosyncratic behavior, it was not error for the courts to harbor serious or substantial doubt that Mr. Reid is actually incompetent to make decisions regarding post-conviction relief. We have also decided that henceforth, all competency determinations made in the context of post-conviction proceedings shall be conducted using the competency standards contained in Tenn. Sup.Ct. R. 28, § 11 and discussed in this opinion. Accordingly, the judgments of the courts below dismissing the petitions for post-conviction relief filed by Ms. Martiniano and the Office of the Post-Conviction Defender are affirmed. Because Mr. Reid appears to be indigent, the costs of this appeal are assessed to the State of Tennessee. .The role of "next friend” is described in Tenn. R. Civ. P. 17.03. A "next friend” is simply a "duly appointed representative” who is authorized by the court to litigate on behalf of a minor or an incompetent person. A "next friend” is a fiduciary, similar to a guardian or conservator. Although the Tennessee Rules of Civil Procedure do not apply in post-conviction cases, Tenn. Sup.Ct. R. 28, § 3(B), we have recognized the traditional role of "next friends” in all legal proceedings as a feature of the common law. See Holton v. State, 201 S.W.3d 626, 631-35 (Tenn.2006).
State v. Reid, 213 S.W.3d 792, 819-20 (Tenn.2006); State v. Reid, 91 S.W.3d 247, 267 (Tenn.2002).
State v. Reid, 164 S.W.3d 286, 302 (Tenn. 2005); State v. Reid, 91 S.W.3d at 268.
State v. Reid, 91 S.W.3d at 267.
State v. Reid, 91 S.W.3d at 266-268.
State v. Reid, 91 S.W.3d at 268, 287.
State v. Reid, 213 S.W.3d at 818; State v. Reid, 91 S.W.3d at 268, 287.
State v. Reid, 91 S.W.3d at 270.
State v. Reid, 164 S.W.3d at 305.
State v. Reid, 164 S.W.3d at 305.
State v. Reid, 213 S.W.3d at 806.
State v. Reid, 213 S.W.3d at 806; State v. Reid, 164 S.W.3d at 299-300; State v. Reid, 91 S.W.3d at 264.
State v. Reid, 213 S.W.3d at 806, 814; State v. Reid, 164 S.W.3d at 300; State v. Reid, 91 S.W.3d at 262, 264.
State v. Reid, 91 S.W.3d at 261-62.
State v. Reid, 213 S.W.3d at 805.
State v. Reid, 213 S.W.3d at 805-06, 824.
State v. Reid, 164 S.W.3d at 297-98.
State v. Reid, 164 S.W.3d at 298.
State v. Reid, 91 S.W.3d at 261.
State v. Reid, 91 S.W.3d at 268, 270.
State v. Reid, 91 S.W.3d at 267-71.
The Court of Criminal Appeals affirmed these convictions and sentences on May 31, 2001. State v. Reid, No. M1999-00803-CCA-R3-DD, 2001 WL 584283 (Tenn.Crim.App. May 31, 2001). This Court affirmed the convictions and sentences on November 26, 2002. State v. Reid, 91 S.W.3d 247 (Tenn.2002). .The Court of Criminal Appeals affirmed the convictions and sentences on December 29, 2003. State v. Reid, No. M2001-02753-CCA-R3-DD, 2003 WL 23021393 (Tenn.Crim.App. Dec. 29, 2003). This Court affirmed the convictions and sentences on May 24, 2005. State v. Reid, 164 S.W.3d 286 (Tenn.2005).
The Court of Criminal Appeals affirmed these convictions and sentences on June 3, 2005. State v. Reid, No. M2003-00539-CCA-R3-DD, 2005 WL 1315689 (Tenn.Crim.App. June 3, 2005). This Court affirmed the convictions and sentences on December 27, 2006. State v. Reid, 213 S.W.3d 792 (Tenn.2006).
State v. Reid, 91 S.W.3d at 288.
Kirkpatrick v. Bell, 64 Fed.Appx. 495 (6th Cir.2003). The habeas corpus petition filed by Ms. K. was eventually dismissed by the agreement of the parties because Mr. Reid filed a petition for post-conviction relief in state court soon after the United States Court of Appeals remanded the case to the district court for a full hearing on Mr. Reid’s competency. Martiniano v. Bell, 454 F.3d 616, 616-17 (6th Cir.2006).
Reid v. State, 197 S.W.3d 694, 697 (Tenn.2006).
Reid v. State, 197 S.W.3d at 697-98.
Reid v. State, 197 S.W.3d at 697-98.
State v. Reid, 164 S.W.3d at 323.
Holton v. State, 201 S.W.3d at 629.
Holton v. State, 201 S.W.3d at 629-30.
The Court of Criminal Appeals later reversed the dismissal of Ms. Martiniano’s petition and remanded the case to Montgomery County to determine whether Mr. Reid was competent under the State v. Nix standard. Reid ex rel. Martiniano v. State, No. M2006-01294-CCA-R3-PD, 2007 WL 1946652, at *10 (Tenn.Crim.App. July 3, 2007) (No Tenn. R.App. P. 11 application filed).
This Court filed its original opinion on May 4, 2006. However, in response to a petition for rehearing, we withdrew that opinion and filed an amended opinion on June 22, 2006. Holton v. State, 201 S.W.3d at 626.
However, we disagreed with the Davidson County court regarding the effect of a finding of incompetence. The trial court had established a bifurcated procedure to determine which post-conviction claims could proceed without Mr. Reid’s assistance. Rather, we held that if a person entitled to pursue post-conviction relief is found incompetent, the trial court should appoint a "next friend” or guardian ad litem to pursue post-conviction relief on behalf of the prisoner. Reid v. State, 197 S.W.3d at 696, 706.
On July 7, 2006, the United States Court of Appeals for the Sixth Circuit denied the State’s motion to vacate the stay of execution and remanded the case to the district court for further proceedings. Martiniano v. Bell, 454 F.3d at 617.
The State was referring to Rees v. Peyton, 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966). Melvin Rees was convicted of murder in a Virginia state court and was sentenced to death. The federal district and circuit courts denied his petition for writ of habeas corpus, and his lawyer filed a petition for writ of certiorari in the United States Supreme Court. After Mr. Rees requested his lawyer to withdraw the petition, his lawyer refused and requested a mental examination for Mr. Rees. While retaining jurisdiction over the case, the Court remanded the matter to the district court to determine whether Mr. Rees possessed the "capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises.” Rees v. Peyton, 384 U.S. at 314, 86 S.Ct. 1505. One year later, the Court put the case on hold indefinitely. Rees v. Peyton, 386 U.S. 989, 87 S.Ct. 1310, 18 L.Ed.2d 333 (1967). The Court took no further action in the case for twenty-nine years, and Mr. Rees died in prison in 1995. Rees v. Superintendent of Virginia State Penitentiary, 516 U.S. 802, 116 S.Ct. 271, 133 L.Ed.2d 10 (1995) (dismissing the petition for writ of certiorari due to the death of Mr. Rees). We have incorporated the competency standard of Rees v. Peyton into Tenn. Sup.Ct. R. 28, § 11, which applies when a petitioner facing the death penalty seeks to withdraw a previously filed petition for post-conviction relief. However, delays such as the twenty-nine year delay in Rees v. Peyton cannot occur under Tennessee law because we have held that when a prisoner lacks the capacity to pursue post-conviction relief, Tennessee courts must appoint a "next friend” or a guardian ad litem to pursue post-conviction relief on the incompetent prisoner's behalf. Reid v. State, 197 S.W.3d at 696, 705-06. Cf. Ryan v. Gonzales, Nos. 10-930, 11-218, - U.S. -, 133 S.Ct. 696, 184 L.Ed.2d 528 (2013) (holding that the disposition of Mr. Rees’s case was not precedent-setting; federal courts should not stay habeas corpus proceedings during periods of petitioner incompetency).
At a status conference on December 18, 2007, the State informed the district court that Mr. Reid’s mental state fluctuated. Although it cautioned that Mr. Reid could become competent in the future, the State reaffirmed its concession that Mr. Reid was, at that time, incompetent under the Rees standard and that Ms. Martiniano could proceed as his "next friend.”
Reid ex rel. Martiniano v. State, No. M2006-01294-CCA-R3-PD, 2007 WL 1946652, at *10 (Tenn.Crim.App. July 3, 2007) (No Tenn. R.App. P. 11 application filed). .We note that the burden of proof regarding competency in federal courts differs from the burden of proof in our courts. In some federal courts, neither party bears the burden of proving competence or incompetence. Rather, the court must determine competence under the Rees standard by a preponderance of the evidence. See Comer v. Schriro, 480 F.3d 960, 970 (9th Cir.2007); Mason ex rel. Marson v. Vasquez, 5 F.3d 1220, 1225 (9th Cir.1993) ("[After a prima facie showing, incompetence] is no one’s burden to sustain, rather it is for the court to determine by a preponderance of the evidence whether the petitioner is mentally competent to withdraw his petition.”). Other federal courts place the burden of proving incompetence by a preponderance of the evidence on the petitioner. See Wilson v. Lane, 697 F.Supp. 1500, 1502 (S.D.Ill.1988); Groseclose ex rel. Harries v. Dutton, 594 F.Supp. 949, 953 (M.D.Tenn.1984). This is in contrast to Tennessee law which places the burden on the post-conviction petitioner to prove incompetence by clear and convincing evidence. Tenn.Code Ann. § 40-30-110(f) (2012); Reid v. State, 197 S.W.3d at 703-05.
At the subsequent hearing on Mr. Reid’s pro se petition, both parties declined to present evidence. Mr. Reid’s petition for post-conviction relief was dismissed in an order dated May 24, 2009. This action terminated Mr. Reid’s post-conviction appeals, pending review by the Court of Criminal Appeals and this Court.
See generally Tenn.Code Ann. § 40-30-102(a) (2012). .Our "well-established” civil competency standard originated in Porter v. Porter, 22 Tenn. (3 Hum.) 586, 589 (1842), in which this Court found a person to be of "unsound mind” when she was "incapable of attending to any business or taking care of herself...." When we recently revisited Porter v. Porter, we noted that [w]hile the language from Porter still serves as a guide in the determination of whether an individual is of unsound mind, the modern test for determining whether an individual is of “unsound mind” for purposes of [Tenn.Code Ann. § 28-1-106] is whether that individual was unable to manage his or her day-to-day affairs at the time the cause of action accrued. Sherrill v. Souder, 325 S.W.3d 584, 600 (Tenn.2010). In 2011, the Tennessee General Assembly amended the civil tolling statute by replacing the phrase "of unsound mind” with "adjudicated incompetent.” Act of Mar. 24, 2011, ch. 47, § 17, 2011 Tenn. Pub. Acts-, -(codified at Tenn.Code Ann. § 28-1-106 (2000 & Supp.2012)).
See Tenn. Sup.Ct. R. 28.
In Re: Amendment to Supreme Court Rule 28, Sections 11 and 12 (Tenn. Order filed Nov. 21, 2002).
Both trial courts noted the different competency standards in State v. Nix and Tenn. Sup.Ct. R. 28, § 11(B)(1). The trial court in Davidson County also observed that While it is perplexing that two standards co-exist, the question of whether these two standards can be reconciled or whether they are functionally equivalent is not an issue to be resolved by this Court.... [0]ur supreme court is certainly aware of the two standards but chose to adopt the Nix standard here. This Court will apply the Nix competency standard in its analysis conducted below.
Even though it acknowledged the existence of two competency standards, the Court of Criminal Appeals observed: Although the trial courts and Reid may be "perplexed” by the supreme court’s adoption of different standards of competence in the post-conviction arena, it is clear to this Court that the standard of competence adopted by the supreme court in Nix applies to the ultimate question in the cases at hand. And despite Reid’s disagreement with the supreme court’s reasoning, we are bound by the decisions of our supreme court. Reid v. State, 2011 WL 3444171, at *28. .The evidence introduced at the 2007 hearing is relevant because we have now determined that the competency standard in Tenn. Sup.Ct. R. 28, § 11(B) is functionally equivalent to the State v. Nix standard when applied using the principles in In re Conseivatorship of Groves. A conflict between the 2007 decision and the 2008 decisions could require a remand. However, we have determined that no conflict exists because the Davidson County court did not find that Mr. Reid was incompetent based on the evidence introduced at the 2007 hearing.
Mr. Reid keeps a heavily underlined dictionary in his cell.
Dr. Woods, along with Dr. Xavier Amador, was recommended by Mr. Reid’s counsel. Dr. Bernet was not recommended by either party. However, the trial court selected him because of his prior interactions with Mr. Reid.
The transcripts and video recordings of Dr. Bernet’s interviews with Mr. Reid on February 13 and 27, 2007, are part of the record, as are Dr. Bernet’s interview with Mr. Reid on April 11, 2008, and Dr. Martell’s interview with Mr. Reid on April 22, 2008.
Dr. Bernet stressed that pseudologia fantástica is not a clinical diagnosis under the American Psychiatric Ass’n, Diagnostic and Statistical Manual on Mental Disorders xxxiii (4th ed. text rev. 2000) ("DSM-IV-TR”), but rather is a well-known symptom or pattern of behavior that differs from malingering.
The trial court found it significant that the Court of Criminal Appeals has relied on Rumbaugh v. Procunier in decisions involving the Rees v. Peyton standard. Pike v. State, No. E2002-00766-CCA-R3-PD, 2004 WL 1580503, at *16-17 (Tenn.Crim.App. July 15, 2004). Cf. Pike v. State, 164 S.W.3d 257, 265 (Tenn.2005) (citing this portion of Rumbaugh v. Procunier with approval); Hugueley v. State, No. W2009-00271-CCA-R3-PD, 2011 WL 2361824, at *37 (Tenn.Crim.App. June 8, 2011), perm. app. denied (Tenn. Dec. 13, 2011) (citing Rumbaugh v. Procunier while discussing Tenn. Sup.Ct. R. 28, § 11).
Recounting its own examination of Mr. Reid at the December 1, 2006 preliminary hearing, the trial court found that Mr. Reid had a clear understanding of his three homicide cases and the consequences of withdrawing his petition. After noting that "[ajlmost every expert agrees” that Mr. Reid’s mental status had diminished since his first murder trial, the trial court determined that Dr. Bernet's assessment of the issue was more credible than Dr. Woods’s assessment. The court found Dr. Woods’s position that Mr. Reid "had absolutely no understanding of his position” and that Mr. Reid’s "intelligent responses” to questions were the product of mental disease to be "disingenuous.” The court also found Dr. Woods’s arguments to be "circular,” and declared that his testimony was "not credible on this point.”
We cannot agree with the Court of Criminal Appeals’ statement that the Davidson County court "concluded” in its December 20, 2007 order "that Reid was not competent to withdraw his petition." Reid v. State, 2011 WL 3444171, at *3.
Dr. Martell, however, testified that it had always been his practice to tape interviews, and that he could think of no professional organization that prohibited or discouraged the taping of interviews.
By this time, Dr. Bernet had interviewed Mr. Reid on six occasions for a total of 13.7 hours.
In its May 27, 2009 order dismissing Mr. Reid’s pro se petition, the same court repeated this characterization of its 2007 order: Following a Rule 28 competency hearing, the Court held that while [Mr. Reid's] competency waxed and waned during this time, it stopped short of finding [Mr. Reid] incompetent under the Rees v. Peyton standard. Nonetheless, the Court concluded that fundamental fairness (in light of certain concessions by the Attorney General’s Office) dictated that [Mr. Reid’s] request to withdraw his pro se petition be denied, (emphasis added).
As in its 2007 order, the Davidson County court continued to take a dim view of Dr. Woods's credibility. The court found that Dr. Woods'[s] broad brush is disingenuous under the first Nix prong; therefore, the Court finds his testimony not to be credible on this specific issue. Rather than giving a concession when a response by [Mr. Reid] was genuine, Dr. Woods explains away objectively reasonable testimony as being rendered at the hand of Scientific Technology. The record does not bear out such a conclusion.
The trial court specifically noted Mr. Reid's choices (1) to rise early every morning, (2) to use his recreation time for exercise, (3) to refrain from joining in the usual recreation yard conversations because he finds them unedifying, (4) to select the television programs he desires to watch, (5) to select the type of food he eats, and (6) to select the items he buys at die prison commissary. The trial court also noted that Mr. Reid manages his commissary account, corresponds with persons outside of prison, and keeps a journal and that Mr. Reid has even prepared a will (although this will contained a delusional element if the beneficiary of the will is not a real person).
As we previously noted, at the subsequent hearing on this pro se petition, both parties declined to present evidence. Mr. Reid’s petition for post-conviction relief was dismissed in an order dated May 24, 2009. This terminated Mr. Reid’s post-conviction appeals, pending- review by the Court of Criminal Appeals and this Court.
One of the State’s attorneys described Dr. First as "the single most qualified individual I’ve ever met in my life.”
See Chico-Rodriguez v. State, 141 Idaho 579, 114 P.3d 137, 140 (Ct.App.2005), in which the Idaho Court of Appeals declined to adopt the State v. Nix standard when an inmate alleged that lack of mental competence should toll the statute of limitations for filing a petition for post-conviction relief. The court found the State v. Nix standard to be "unhelpful" because "the dispositive question” was not whether the inmate was able to manage his personal affairs, but "whether his mental illness prevented him from complying with the statute of limitation for filing a post-conviction action.”
As Judge Posner explained in Holmes v. Buss, 506 F.3d 576, 579 (7th Cir.2007): We do not think that creating different standards to govern the issue of competence to litigate ... is a fruitful approach. The multiplication of rules and standards, carrying in its train as it does endless debate over boundaries, is one of the banes of the American legal system, a source of its appalling complexity. Whatever the nature of the proceeding, the test should be whether the defendant (petitioner, appellant, etc.) is competent to play whatever role in relation to his case is necessary to enable it to be adequately presented. The test is unitary but its application will depend on the circumstances. They include not only the litigant’s particular mental condition but also the nature of the decision that he must be competent to make.
The State has expressed concern over the potential indeterminacy of the word "may” in the Tenn. Sup.Ct. R. 28, § 11 standard. In our view, the word "may” simply acknowledges the eternal epistemological uncertainty that inhabits any attempt to ascertain the inner workings of an unfamiliar mind. Furthermore, as this case illustrates, the clear and convincing evidence standard obviates the possibility of equivocal results.
The standard for determining competency to manage one’s post-conviction appeals differs from the standards governing competency to stand trial and competency to be executed. Competency to stand trial depends on whether the defendant has “the capacity to understand the nature and object of the proceedings against him, to consult with counsel and to assist in preparing his defense.” State v. Reid, 213 S.W.3d 792, 808 (Tenn.2006) (quoting State v. Black, 815 S.W.2d 166, 174 (Tenn.1991)). This is known as the Dusky standard or, in Tennessee, the Mackey standard. See Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (framing the competency test as "whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding [ ] and whether he has a rational as well as factual understanding of the proceedings against him"); Mackey v. State, 537 S.W.2d 704, 707 (Tenn.Crim.App.1975). Competency to be executed depends on whether the prisoner has "a rational understanding of his conviction, his impending execution, and the relationship between the two.” State v. Irick, 320 S.W.3d 284, 295 (Tenn.2010) (quoting Billiot v. Epps, 671 F.Supp.2d 840, 853 (S.D.Miss.2009)). Although some states require a prisoner to be able to work with counsel in order to be competent to be executed, in Van Tran we adopted the less rigorous "cognitive test” described by Justice Powell in Ford v. Wainwright, 477 U.S. 399, 421-22, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) (Powell, J., concurring in part); cf. Panetti v. Quarterman, 551 U.S. 930, 954-61, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007) (discussing the Ford competency standard). In Van Tran, we noted that once a conviction is final, "there is a lessened need for a defendant to assist in his or her defense given the availability of both state and federal collateral review of trial errors, and the expansion of the right to competent counsel at trial.” Van Tran v. State, 6 S.W.3d at 266. The same rationale applies to post-conviction petitions, such as Mr. Reid's.
See Holton v. State, 201 S.W.3d at 634-35; Reid v. State, 197 S.W.3d at 696, 702.
Following the testimony of Dr. Martell in the 2008 hearing in Davidson County, an assistant district attorney, perceiving that the trial court’s inquiry had gone beyond State v. Nix, stated; If the Court please, we were a little bit concerned ... obviously, the Nix standard is not real clear. Some of the questions Your Honor asked [Dr. Martell] about sound judgment, rational decisions, language like that that we didn't think ... applied to [the] Nix standard.... It seemed like [your questions assumed] kind of a mixture between the Rees standard and the Nix standard, whether or not ... [understanding your legal rights requires that you also would be exercising sound judgment or making rational decisions about those rights. We didn't think that Nix went that far. Following these comments, the parties agreed to submit briefs on whether State v. Nix implicated rational decision-making.
Tenn. Sup.Ct. R. 28, § 11(C) states that, on appeal from a Rule 28 competency hearing, "[t]he issue of competency will be reviewed as an issue of fact and the trial court’s finding will be presumed correct, unless the evidence in the record preponderates against it.” We have determined that, in harmony with Tenn. Code Ann. § 40-30-110(0 and Groves, incompetency is an “issue of fact” that must be established by clear and convincing evidence. Appellate courts should therefore review competency determinations using the same procedure we apply to other factual findings that require clear and convincing evidence. The reviewing court presumes the trial court’s underlying factual findings are correct (unless the evidence preponderates against them), and then determines de novo whether these facts establish incompetency by clear and convincing evidence. See Tenn. R.App. P. 13(d) (2012); In re Bernard T., 319 S.W.3d at 596-97.
We note again that, in the 2007 Rule 28 hearings, the Davidson County post-conviction court found the standard of proof for Rule 28 inquiries to be unclear, but found it unnecessary to reach the issue because it decided the case on fairness grounds. To the extent that this issue may appear unresolved, we clarify that the clear and convincing evidence standards applies in all three types of. post-conviction competency determinations at issue in this opinion. See Tenn. Code Ann. § 40-30-110(0.
In addition to Dr. Woods, the Office of the Post-Conviction Defender desired to call Drs. Xavier Amador, Ruben Gur, and Michael First.
Dr. Bernet interviewed Mr. Reid on April 11, 2008, and Dr. Martell met with Mr. Reid on April 22, 2008.