State v. Stephenson

Full title: STATE of Tennessee v. Jonathan Wesley STEPHENSON

Court: Supreme Court of Tennessee

Date published: Jun 2, 2006

195 S.W.3d 574 (Tenn. 2006)

Opinion

January 4, 2006 Session.

June 2, 2006.

Appeal from the Circuit Court, Cocke County, Ben W. Hooper, II, J.

John E. Herbison, Nashville, Tennessee; Carl R. Ogle, Jefferson City, Tennessee; and Tim S. Moore, Newport, Tennessee, for the Appellant-Defendant, Jonathan Stephenson.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Angele Michele Gregory and Michelle Chapman McIntire, Assistant Attorneys General; Al Schmutzer, Jr., District Attorney General; and James B. Dunn, Assistant District Attorney General, for the Appellee-Plaintiff, State of Tennessee.

JANICE M. HOLDER, J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J., and E. RILEY ANDERSON, and CORNELIA A. CLARK, JJ., joined. ADOLPHO A. BIRCH, JR., concurred in part, dissented in part, and filed a separate opinion.

OPINION

JANICE M. HOLDER, JUSTICE.

The appeal in this capital case arises from the resentencing of Jonathan Wesley Stephenson, who was convicted in 1990 of first degree murder and conspiracy to commit first degree murder for his role in the contract killing of his wife. Following the resentencing hearing, the jury imposed a sentence of death, and the Court of Criminal Appeals affirmed. Upon automatic appeal under Tennessee Code Annotated section 39-13-206(a)(1), we designated the following issues for oral argument:¹ 1) Do dual sentences of incarceration for conspiracy and death for first degree murder in this case violate double jeopardy; 2) Did the trial court err in admitting the prior testimony of two witnesses, Glen Brewer and Michael Litz; 3) Did the trial court err in not considering the defendant's motion to suppress his statement to the police; 4) Did the trial court lack jurisdiction to resentence the defendant; and 5) Is the defendant's death sentence comparatively proportionate and is the sentence valid under the mandatory review of Tennessee Code Annotated section 39-13-206(c)(1). Having carefully reviewed the record and relevant legal authority, we conclude that none of the errors alleged by the defendant warrants relief. With respect to issues not herein specifically addressed, we affirm the decision of the Court of Criminal Appeals. Relevant portions of that opinion are published hereafter as an appendix. Accordingly, the judgment of the Court of Criminal Appeals is affirmed.

1 "Prior to the setting of oral argument, the Court shall review the record and briefs and consider all errors assigned. The Court may enter an order designating those issues it wishes addressed at oral argument. . . ." Tenn. R. Sup.Ct. 12.2.

I. BACKGROUND

In March 1990, Jonathan Wesley Stephenson ("the defendant") was charged with first degree murder and conspiracy to commit first degree murder for his role in the contract killing of his wife, Lisa Stephenson ("Mrs. Stephenson"). Ralph Thompson, Jr. ("Thompson") was charged as a co-defendant in both indictments. Thompson received a life sentence for Mrs. Stephenson's murder, plus a sentence of twenty-five years for conspiracy to commit murder. The defendant was also convicted of both counts of the indictment. The jury sentenced the defendant to death for the first degree murder, and the trial court imposed a consecutive sentence of twenty-five years for the conspiracy. On direct appeal, this Court affirmed both of the defendant's convictions but remanded for resentencing. State v. Stephenson, 878 S.W.2d 530 (Tenn. 1994).² On remand, the parties agreed that the defendant would receive a sentence of life without parole for the first degree murder and a sentence of sixty years for the conspiracy. In 1998, the defendant filed a petition for writ of habeas corpus challenging the legality of his sentence of life without parole. In Stephenson v. Carlton, 28 S.W.3d 910, 912 (Tenn. 2000), this Court held that the defendant's sentence of life without parole was illegal because such sentence was not statutorily authorized at the time of the offense. We declared the sentence of life without parole void and remanded the case to the trial court for further proceedings. Following a resentencing hearing, the jury again imposed a sentence of death, and the Court of Criminal Appeals affirmed.

2 This Court remanded for resentencing due to fundamental errors in the sentencing phase of trial, which rendered the verdict facially void. See Stephenson, 878 S.W.2d at 552-57. The jury was instructed that to impose the sentence of death, it must find that evidence of aggravating circumstances outweighs mitigating evidence. Id. at 553. The applicable statute required, however, that the evidence of aggravating circumstances outweigh any mitigating evidence " beyond a reasonable doubt." Id. (quoting Tenn. Code Ann. § 39-13-204(g)(2)(B) (1991) (emphasis added)). To compound matters, the jury was given an outdated verdict form that also omitted the proper standard of proof. Id.

At the resentencing hearing, the State presented proof showing that in December 1989, the defendant was married to Mrs. Stephenson and had a four-year-old son and an eight-month-old son. The defendant worked as a tractor-trailer driver in Morristown, Tennessee. In March 1989, the defendant met Julia Ann Webb ("Webb") at a bar in Knoxville, Tennessee, and the two became romantically involved. The defendant told Webb that his wife had been killed in a traffic accident five years earlier and that afterwards he had an affair with his wife's sister, "Kathy." He also told Webb that he had a child with each woman.

In 1989, on numerous occasions, the defendant asked Glen Franklin Brewer ("Brewer"), a co-worker, to kill the wife of a friend. However, the description of the residence of the proposed victim matched the defendant's own home. On one occasion the defendant offered Brewer a boat, a motor, and a pickup truck in return for the requested killing. On another occasion the defendant offered Brewer $3,000.00 in return for the killing, and on yet another occasion, the defendant offered Brewer $5,000.00 from life insurance proceeds. The defendant complained to Brewer that his wife was receiving expensive psychiatric treatment and medication and that he feared he would "lose everything he had worked for" if he divorced her. In the fall of 1989, the defendant offered another man, Steven Michael Litz ("Litz"), who was a friend of Thompson, $5,000.00 to kill the defendant's wife because, the defendant said, she was going to divorce him and "take everything he'd ever worked for."

On the evening of December 3, 1989, the defendant and Thompson took Thompson's 30/30 rifle and went to the home of Dave Robertson ("Robertson"), the defendant's employer, at around 7:30 p.m. After instructing Robertson to tell anyone who asked that he and Thompson had been at Robertson's house until 9:45 p.m., the defendant left with Thompson. The two men drove to an isolated area in Cocke County, Tennessee, near the home of Thompson's uncle. Thompson had previously suggested that location as an out-of-the-way place where the defendant could "get rid of" Mrs. Stephenson. Mrs. Stephenson was lured to the remote location to pick up money for the defendant that was supposedly owed to him for "running" drugs. Thompson and the defendant waited there until Mrs. Stephenson arrived. As she sat in her vehicle, Mrs. Stephenson was shot at close range through the car's windshield. The bullet struck Mrs. Stephenson in the forehead and caused massive head injuries. The defendant told law enforcement officers that Thompson shot the victim, and the State's evidence showed that the defendant had offered to give Thompson a truck, a boat, and a motor for killing the victim. Thompson, however, testified that the defendant shot Mrs. Stephenson. Thompson added that, at the defendant's insistence, he also fired the rifle. The two then drove to the defendant's place of work, and the defendant subsequently headed to Ohio in an eighteen-wheeler truck. When Thompson asked about the defendant's children, the defendant told him that they would be all right because his father-in-law would check on them.

On his way out of the state, the defendant met Webb in Harrogate, Tennessee. He informed Webb that "Kathy" had just been killed by some people to whom she owed money. He explained that he and Thompson had gone to the scene of the killing where "Kathy" was found dead. The defendant and Thompson fought there with two men who had killed "Kathy," and they thought that the men were dead. The defendant said that he had not contacted the police because the police were in league with the killers. He told Webb that his children were with "Kathy's" father³ and commented, "I didn't love her but I'm going to miss the Bitch." Webb recalled that she was with the defendant the weekend prior to Mrs. Stephenson's murder and that at that time the defendant purchased ammunition for a rifle at a K-Mart store.

3 The two young boys were actually left alone at the defendant's house until Mrs. Stephenson's father found them the next day.

After meeting with Webb, the defendant drove his truck to Ohio. Upon the discovery of his wife's body, the defendant was called back to Tennessee for questioning. The defendant initially denied involvement in his wife's murder. After Thompson and Robertson implicated him in Mrs. Stephenson's death, the defendant confessed to having Thompson kill her. At the time of Mrs. Stephenson's death, the defendant was the beneficiary of a $5,000.00 life insurance policy covering his wife. The defendant's sons, who were teenagers by the time of the resentencing hearing, were adopted by Mrs. Stephenson's parents and had no contact with their father, who, according to his former father-in-law, had never shown any remorse for the killing. At a separate trial, Thompson was convicted of first degree murder and was sentenced to life in prison.

In mitigation, the defendant presented evidence concerning his family history, psychological condition, and life in prison. Testimony from the defendant's parents and his younger brother painted a picture of a relatively normal childhood, although the defendant's mother testified that the defendant had suffered some emotional problems and was once hospitalized after attempting suicide. The defendant, the second of three sons, was described as "a regular kid" and as "a typical teenager" with a good sense of humor, who was quick-witted and more interested in sports than school. Because of his father's career as an officer in the United States Air Force, the family moved often. The defendant's mother worked outside the home. The defendant's brother testified about how the defendant had "raised" him while their mother and father worked. After twenty years of marriage, the defendant's parents divorced. Upset over the divorce, the defendant left his home in Anchorage, Alaska, as soon as he graduated from high school and went to live with his grandparents in Morristown and Newport, Tennessee. Prior to his convictions in this case, the defendant had no criminal record.

Dr. Eric S. Engum, a clinical psychologist specializing in clinical neuropsychology and forensic psychology, testified that he performed a two-day comprehensive evaluation of the defendant. Dr. Engum described the defendant as alert, responsive, articulate, and much more intelligent than the average convict. Despite a past history of Attention Deficit Disorder and a potential learning disability, the defendant had a comprehensive I.Q. of 118, a verbal I.Q. of 121, and a performance I.Q. of 111. According to Dr. Engum, the defendant falls into the "bright normal if not superior range of intellectual functioning," and an achievement test showed that he performs at above the high school graduate level in basic academic skills. Dr. Engum found no evidence of brain damage. The defendant's attention and concentration were good, and he performed above average on neuropsychological tests administered during the evaluation. Dr. Engum testified that the defendant suffers from a significant level of depression but that he "masks" his condition. According to Dr. Engum, the defendant, who has a passive-aggressive personality, is resigned, withdrawn, and feels helpless. Nevertheless, the defendant's psychological difficulties do not interfere with his ability to perform his assigned tasks in prison, where he functions well. Dr. Engum diagnosed the defendant as suffering from a depressive disorder not otherwise specified and from a personality disorder not otherwise specified with schizoid, depressive, and avoidant features. Dr. Engum opined that prisoners with the defendant's psychological traits do not have major problems while incarcerated and generally are not recidivists.

Dr. Engum and other witnesses, including members of the defendant's family, correctional employees, and church workers, testified about the defendant's life at the Northeastern Correctional Center in Mountain City. The defendant served as a clerk in the law library, completed a program in paralegal studies and training in construction work, was an inmate advisor for the disciplinary board, spoke with troubled juveniles, participated in religious programs, was ordained as a minister, and played bass guitar in a multi-racial gospel band. He was described as a good inmate, an asset to the prison, "the cream of the crop," and "a good individual." Questioning by the State revealed that the defendant had several disciplinary reports prior to coming to the Northeastern Correctional Center but that he had only one minor disciplinary problem since then. His family members and church workers testified about the high esteem in which the defendant was held by the other prisoners and their families. The defendant's family testified that he had changed after coming to Northeastern Correctional Center. His mother described him as "very bitter and very angry" when he went to prison but said that he was now a different person: kind, thoughtful, hopeful, and caring. The defendant's father testified that Mrs. Stephenson's father will not allow the defendant's parents to see their two grandsons and that, although the defendant has asked his father to contact his sons for him, the defendant's former father-in-law obstructs any communication with the boys. In response to the State's questions, witnesses admitted that the defendant had never expressed remorse for killing his wife.

Based on this proof, the jury found that the State had proven beyond a reasonable doubt one aggravating circumstance, that the defendant committed the murder for remuneration or the promise of remuneration or employed another to commit the murder for remuneration or the promise of remuneration. Tenn. Code Ann. § 39-13-204(i)(4) (1989). In addition, the jury found that the State had proven that this aggravating circumstance outweighed any mitigating circumstances beyond a reasonable doubt. As a result, the jury sentenced the defendant to death for the first degree murder. The trial court ordered that the death sentence and the sixty-year sentence for conspiracy to commit the first degree murder run consecutively.⁴

4 The judgment form states that the death sentence runs consecutively to the conspiracy sentence. Literally interpreted, this would mean that the defendant could be executed only after the conspiracy sentence is served. At the motion for new trial, the court and counsel for the State agreed that the conspiracy sentence runs consecutively to the death sentence.

II. ANALYSIS A. DOUBLE JEOPARDY

The defendant contends that dual sentences of incarceration for conspiracy to commit first degree murder and death for first degree murder based on the aggravating circumstance that the killing was committed for remuneration constitute multiple punishments for the same conduct, thereby violating the provisions against double jeopardy in the Fifth and Fourteenth Amendments to the United States Constitution⁵ and article I, section 10 of the Tennessee Constitution.⁶ He acknowledges that on direct appeal of his first trial this Court rejected his claim that convictions for both conspiracy to commit first degree murder and first degree murder violated double jeopardy under the United States Constitution. We held that conspiracy to commit a crime is a different offense from the crime that is the object of the conspiracy. State v. Stephenson, 878 S.W.2d at 538. In the habeas corpus case in which this Court invalidated the defendant's agreed sentence of life without parole, the Court stated that its ruling did not affect the defendant's separate conviction and sentence for conspiracy to commit first degree murder. See Stephenson v. Carlton, 28 S.W.3d at 912 n. 3. Generally, the "law of the case" forecloses argument on an issue that was previously decided in an appeal of the same case. See State v. Jefferson, 31 S.W.3d 558, 560-61 (Tenn. 2000). However, an issue may be reconsidered despite being decided in a prior appeal if

5 The double jeopardy clause of the Fifth Amendment to the United States Constitution, which is applicable to the states through the Fourteenth Amendment, provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb."

6 The double jeopardy clause of the Tennessee Constitution provides that "no person shall, for the same offense, be twice put in jeopardy of life or limb." Tenn. Const. art. 1, § 10.

(1) the evidence offered at the hearing on remand was substantially different from the evidence at the first proceeding; (2) the prior ruling was clearly erroneous and would result in a manifest injustice if allowed to stand; or (3) the prior decision is contrary to a change in the controlling law occurring between the first and second appeal.

State v. Carter, 114 S.W.3d 895, 902 (Tenn. 2003). The defendant argues that changes in the law since his first appeal require that this Court revisit his double jeopardy claim.

1. United States Constitution

The defendant's theory is that the decisions of the United States Supreme Court in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Sattazahn v. Pennsylvania, 537 U.S. 101, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003), amount to a change in the controlling law, which allows the issue of double jeopardy to be reconsidered. See Carter, 114 S.W.3d at 902. The defendant asserts that under Ring, the aggravating circumstances found in Tennessee Code Annotated section 39-13-204(i) must be considered elements of the offense of capital murder. He says that Sattazahn extended the Ring analysis to double jeopardy so that in his case punishments for both conspiracy and capital murder violate double jeopardy. We disagree that our prior holding has been affected by either Ring or Sattazahn and reaffirm that it is constitutionally permissible for the defendant to be convicted of and sentenced for both first degree murder and conspiracy to commit first degree murder.

In Ring, the United States Supreme Court held that Arizona's capital sentencing procedure violated the Sixth Amendment⁷ right of a defendant to have a jury determine any fact upon which the legislature conditions an increase in his or her maximum punishment. 536 U.S. at 609, 122 S.Ct. 2428. Under Arizona's capital sentencing procedure, the trial judge was allowed to determine the presence or absence of enumerated aggravating and mitigating circumstances. The United States Supreme Court explained that because Arizona's enumerated aggravating factors operated as "'the functional equivalent of an element of a greater offense,'" these factors must be found by a jury rather than by the trial judge. Id. (quoting Apprendi v. New Jersey, 530 U.S. 466, 494 n. 19, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). Ring did not hold, however, that the enumerated aggravating factors were actual elements of an offense for purposes of a double jeopardy analysis under the Fifth Amendment, nor did it imply that the test established by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), would have to be revised to incorporate aggravating factors as actual elements of a crime. The " Blockburger test" for determining when multiple convictions violate double jeopardy requires that courts examine the offenses to ascertain "whether each [statutory] provision requires proof of a fact which the other does not." Blockburger, 284 U.S. at 304, 52 S.Ct. 180.

7 The Sixth Amendment to the United States Constitution provides, in pertinent part: "In all criminal prosecutions, the accused shall enjoy the right to a . . . trial, by an impartial jury."

In Sattazahn, the United States Supreme Court held that when a defendant who is convicted of murder and sentenced to life imprisonment because the jury is unable to agree on a sentence succeeds in having his or her conviction reversed on appeal, double jeopardy does not prevent the state from seeking the death penalty on retrial. 537 U.S. at 112-13, 123 S.Ct. 732. Thus, Sattazahn involved only the prior acquittal prong of double jeopardy. In part III of the opinion, Justice Scalia, writing for a three-judge plurality, explained that Ring held that aggravating circumstances making a defendant eligible for the death penalty operate as "'the functional equivalent of an element of a greater offense'" and that for the purposes of the Sixth Amendment's jury-trial guarantee, the offense of "murder" is a distinct, lesser included offense of "murder plus one or more aggravating circumstances." 537 U.S. at 111, 123 S.Ct. 732 (quoting Ring, 536 U.S. at 609, 122 S.Ct. 2428). Justice Scalia concluded by stating, "We can think of no principled reason to distinguish, in this context, between what constitutes an offense for purposes of the Sixth Amendment's jury-trial guarantee and what constitutes an 'offence' for purposes of the Fifth Amendment's Double Jeopardy Clause." Id.

Contrary to the defendant's contention, Sattazahn does not alter the holding of Ring. The defendant contends that because the four dissenting justices would have held that death was not an available sentence on retrial, they agree with Justice Scalia's application of the analysis in Ring to double jeopardy. However, a majority of the justices of the United States Supreme Court did not join in the language in Sattazahn relied upon by the defendant. Moreover, the dissent did not rely upon Ring. Under these circumstances, the more reasonable conclusion is that only two other justices, Rehnquist and Thomas, agreed with Justice Scalia's reasoning. We conclude that the majority opinion in Sattazahn cannot be read to hold directly or by implication that aggravating circumstances must be included as actual elements of the offense of capital murder for purposes of the statutory elements test under Blockburger. See also People v. Hogan, 114 P.3d 42, 57-58 (Colo.Ct.App. 2004) (non-capital case adopting a similar interpretation of Ring and Sattazahn in response to a double jeopardy challenge).

The Blockburger test is satisfied in this case because first degree murder requires proof of a killing but does not require proof of an agreement to commit a killing. Compare Tenn. Code Ann. § 39-13-202(a)(1) (premeditated first degree murder) with id. § 39-12-103(a) (1989) (criminal conspiracy). Therefore, the defendant's convictions for both first degree murder and conspiracy to commit first degree murder are constitutionally permissible. Ring and Sattazahn do not compel the conclusion that the federal constitution's prohibition against double jeopardy is violated in this case.

In addition, even if aggravating circumstance (i)(4) is considered an element of the offense of "capital premeditated first degree murder," double jeopardy is not violated under Blockburger. "Capital murder" based on the (i)(4) aggravating circumstance requires proof of payment or promise of payment as a motive for the murder. Conspiracy does not require proof of payment or a promise of payment, or commission of the underlying crime, but only an agreement to engage in criminal conduct. Furthermore, under federal law, even when two charges are identical under the Blockburger test, cumulative punishment is not prohibited if such was the intention of the legislature. Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). Although there is no provision in the Tennessee Code expressly providing for separate punishment for the conspiracy and the completed offense, Tennessee Code Annotated section 39-12-106(c) (1989), which provides that a person may be convicted of conspiracy and the offense that was the object of the conspiracy, implies that multiple punishment is contemplated. See also Tenn. Code Ann. § 39-12-106 (1989), Sentencing Commission Comments ("[T]he conspiracy is not merged with the completed offense.").

2. Tennessee Constitution

Arguing that the applicable test for double jeopardy under the state constitution has changed since the time of his conviction and sentence for conspiracy as a result of State v. Denton, 938 S.W.2d 373 (Tenn. 1996), the defendant also raises a double jeopardy challenge under article I, section 10 of the Tennessee Constitution. Even under Denton, the defendant's convictions do not violate his right against double jeopardy. Under Denton, resolution of a double jeopardy question under the Tennessee Constitution depends upon 1) a Blockburger analysis of the statutory offense; 2) an analysis, guided by the principles of Duchac v. State, 505 S.W.2d 237 (Tenn. 1973), of the evidence used to prove the offenses; 3) a consideration of whether there were multiple victims or discrete acts; and 4) a comparison of the purposes of the respective statutes. 938 S.W.2d at 381. First, in the defendant's direct appeal we determined that the offenses are not the same under the Blockburger test. State v. Stephenson, 878 S.W.2d at 538. Second, we conclude that the same evidence is not required to prove both offenses. The defendant's conviction for first degree murder required proof of his criminal responsibility for the victim's death and proof of the victim's death. Tenn. Code Ann. § 39-13-202(a)(1) (1989) (premeditated first degree murder). However, his conviction for conspiracy to commit first degree murder required proof of an agreement to commit the murder, not necessarily proof of a killing. Tenn. Code Ann. § 39-12-103(a) (1989) (criminal conspiracy). Third, although there was only one victim, the defendant committed separate and distinct acts. The defendant's act of murder, which he committed by employing another to commit the murder for remuneration or the promise of remuneration, is separate and distinct from the defendant's entering into an agreement with Thompson to have Mrs. Stephenson killed. In addition, the defendant's agreement with Thompson to have Mrs. Stephenson killed is separate and distinct from the act satisfying the (i)(4) aggravating circumstance, the defendant's act of offering Thompson a boat, motor, and pickup truck in exchange for the completed killing. Finally, the legislative purpose of the statutes is different. The first degree murder statute is intended to deter premeditated, intentional killings, while the conspiracy statute is intended to deter agreements to commit any criminal offense. Accordingly, the double jeopardy clause of the Tennessee Constitution was not violated by sentencing the defendant for both conspiracy and first degree murder or by applying the (i)(4) aggravating circumstance to impose the death penalty for Mrs. Stephenson's murder.

B. ADMISSION OF PRIOR TESTIMONY

Over the defendant's objection, the trial court allowed the State to read into the record the former testimony of both Brewer and Litz, each of whom testified at the defendant's first trial in 1990 that the defendant had offered to pay him for killing his wife, or a "friend's wife" in the case of Brewer. At the time of the resentencing hearing, Brewer was in poor health and living in Oklahoma, although he was not so ill that he could not have appeared. Litz could not be located by the State despite several attempts to find him.⁸ At the resentencing hearing, the defendant complained that the State had not established that either witness was "unavailable" as required for admission of this evidence under Rule 804 of the Tennessee Rules of Evidence.⁹ In addition, the defendant contended in the Motion for New Trial that admission of this prior testimony violated his rights of confrontation found in both the state and federal constitutions.¹⁰ In the Court of Criminal Appeals, the defendant also relied on Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), to support his confrontation claim. The Court of Criminal Appeals held that the Confrontation Clause was not applicable to sentencing hearings and that Crawford did not expand its application to a capital sentencing hearing. The Court of Criminal Appeals did not address the defendant's separate claim under article I, section 9 of the Tennessee Constitution.

8 In the Motion for New Trial, defense counsel indicated that their investigator had located Litz and that Litz was in prison.

9 Rule 804 of the Tennessee Rules of Evidence provides, in pertinent part, as follows:

(a) Definition of Unavailability. "Unavailability of a witness" includes situations in which the declarant:

(1) is exempted by ruling of the court on the grounds of privilege from testifying concerning the subject matter of the declarant's statement; or

(2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so;

or

(3) demonstrates a lack of memory of the subject matter of the declarant's statement;

or

(4) is unable to be present or to testify at the hearing because of the declarant's death or then existing physical or mental illness or infirmity; or

(5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance by process; or

(6) for depositions in civil actions only, is at a greater distance than 100 miles from the place of trial or hearing.

A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.

(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(1) Former Testimony. Testimony given as a witness at another hearing of the same or a different proceeding or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered had both an opportunity and a similar motive to develop the testimony by direct, cross, or redirect examination.

10 Article I, section 9 of the Tennessee Constitution provides "[t]hat in all criminal prosecutions, the accused hath the right . . . to meet the witnesses face to face." The Sixth Amendment of the United States Constitution guarantees an accused in a criminal proceeding the right to confront the witnesses against him, and this right is binding on the states through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).

1. Rules of Evidence

The defendant's argument that the witnesses' prior testimony should have been precluded under the Tennessee Rules of Evidence is misplaced. This Court has repeatedly held that the rules of evidence do not limit the admissibility of evidence, including hearsay, at a capital sentencing hearing. See Carter, 114 S.W.3d at 903; State v. Austin, 87 S.W.3d 447, 459 (Tenn. 2002); State v. Sims, 45 S.W.3d 1, 14 (Tenn. 2001). Moreover, Tennessee Code Annotated section 39-13-204(c) provides: "Any . . . 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." Thus, the prerequisites for admission of the two witnesses' testimony under Rule 804(b)(1) of the Tennessee Rules of Evidence do not apply to this resentencing hearing.

2. United States Constitution and Tennessee Constitution

We also conclude that the defendant's Sixth Amendment right of confrontation was not violated by the admission of the former testimony of Brewer and Litz. In Crawford v. Washington, the United States Supreme Court held that the Confrontation Clause bars the admission of "testimonial" statements by an unavailable witness unless the defendant has had a prior opportunity to cross-examine the witness. 541 U.S. at 68, 124 S.Ct. 1354. With respect to testimonial statements, the Court held that "the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." Id. Thus, Crawford placed restrictions similar to Rule 804(b)(1) on the admission of testimonial statements. The defendant concedes that Crawford's cross-examination prong is met; however, he continues to argue that the witnesses were not unavailable. Crawford does not address the use of hearsay at sentencing.

The United States Supreme Court has never expressly held that the Sixth Amendment right to confrontation does not apply at sentencing; however, the various circuit courts of appeal have repeatedly so held.¹¹ The United States Supreme Court decision usually cited for this principle is Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), a capital case decided on due process grounds and involving fully discretionary sentencing by a judge. The continuing validity of Williams has been questioned. See, e.g., Susan N. Herman, The Tail that Wagged the Dog: Bifurcated Fact-Finding under the Federal Sentencing Guidelines and the Limits of Due Process, 66 S. Cal. L.Rev. 289, 317-21 (1992); Alan C. Michaels, Trial Rights at Sentencing, 81 N.C. L.Rev. 1771, 1837-39 (2003). However, the federal appellate courts continue to hold that the Sixth Amendment right of confrontation does not apply at sentencing, even after Crawford. See United States v. Stone, 432 F.3d 651, 654 (6th Cir. 2005) (stating that Crawford does not change prior rule that confrontation clause does not apply to sentencing); United States v. Chau, 426 F.3d 1318, 1322-23 (11th Cir. 2005) (refusing to consider Crawford's application at sentencing as plain error and noting that other circuit courts have unanimously held that Crawford does not alter the previous rule that the Confrontation Clause does not apply at sentencing hearings); United States v. Monteiro, 417 F.3d 208, 215 (1st Cir. 2005); United States v. Roche, 415 F.3d 614, 618 (7th Cir. 2005); United States v. Luciano, 414 F.3d 174, 179 (1st Cir. 2005); United States v. Fleck, 413 F.3d 883, 894 (8th Cir. 2005).

11 See, e.g., Szabo v. Walls, 313 F.3d 392, 398 (7th Cir. 2002); United States v. Garcia-Sanchez, 189 F.3d 1143, 1149 (9th Cir. 1999); United States v. Bingham, 81 F.3d 617, 630 (6th Cir. 1996); United States v. Petty, 982 F.2d 1365, 1367 (9th Cir. 1993); United States v. Silverman, 976 F.2d 1502, 1510 (6th Cir. 1992) (en banc); United States v. Wise, 976 F.2d 393, 402 (8th Cir. 1992) (en banc); United States v. Tardiff, 969 F.2d 1283, 1287 (1st Cir. 1992); United States v. Johnson, 935 F.2d 47, 50 (4th Cir. 1991); United States v. Kikumura, 918 F.2d 1084, 1102 (3d Cir. 1990); United States v. Marshall, 910 F.2d 1241, 1244 (5th Cir. 1990); United States v. Beaulieu, 893 F.2d 1177, 1180-81 (10th Cir. 1990).

Even if the Confrontation Clause were deemed to apply to capital sentencing proceedings, the defendant's rights under that clause were not violated. The United States Supreme Court, in Crawford, stated that "[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." 541 U.S. at 68-69, 124 S.Ct. 1354. Here, although the witnesses were not present at sentencing, the defendant had the opportunity to confront both witnesses at trial, and the entire cross-examination of each witness was read to the jury during the resentencing hearing. Moreover, the defendant's own statement to police was sufficient to support the jury's finding of the (i)(4) aggravating circumstance.

The Tennessee Constitution requires "face-to-face" confrontation; thus, it affords a defendant greater constitutional protection than does the United States Constitution. See State v. Deuter, 839 S.W.2d 391, 395 (Tenn. 1992). Nonetheless, we also conclude that the right to confrontation under the Tennessee Constitution did not bar the admission of the former testimony of Brewer and Litz during the penalty phrase. This conclusion is consistent with our previous observation that the admission of hearsay evidence during sentencing under Tennessee Code Annotated section 39-13-204(c) and its predecessors does not violate the right to confrontation. See State v. Smith, 857 S.W.2d 1, 23 (Tenn. 1993). Furthermore, we note that the defendant had the opportunity to confront Brewer and Litz face-to-face during the guilt phase of this capital case.

C. MOTION TO SUPPRESS

Before his first trial, the defendant filed a motion to suppress his statement to law enforcement officers. On appeal, he argued that his confession should have been suppressed because 1) his intoxication and emotional condition prevented a knowing, intelligent, and voluntary waiver of his right to remain silent; 2) the officers coerced his statement; 3) the officers did not inform him that an attorney hired by his father was present at the sheriff's office; and 4) he invoked his right to counsel. We held that the trial court did not err in refusing to suppress the statement. See State v. Stephenson, 878 S.W.2d at 542. Prior to the resentencing hearing, the defendant filed another motion to suppress his statement on the ground that he had been detained at the sheriff's department without probable cause in violation of the Fourth Amendment to the United States Constitution¹² and article I, section 7 of the Tennessee Constitution.¹³ We hold that the defendant waived this claim by not raising it as a ground in the first motion to suppress.

12 The Fourth Amendment provides that

[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment is applicable to the states through the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

13 Article I, section 7 of the Tennessee Constitution provides:

[t]hat the people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures; and that general warrants, whereby an officer may be commanded to search suspected places, without evidence of the fact committed, or to seize any person or persons not named, whose offences are not particularly described and supported by evidence, are dangerous to liberty and ought not to be granted.

This constitutional provision is identical in intent and purpose with the Fourth Amendment. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

The defendant argues that he is not precluded from challenging his statement on this ground because Tennessee Code Annotated section 39-13-204(c) (2003), which addresses the types of evidence admissible at a capital sentencing hearing, provides that subsection (c) "shall not be construed to authorize the introduction of any evidence secured in violation of the constitution of the United States or the constitution of Tennessee." He contends that if evidence obtained in violation of a defendant's Fourth Amendment rights is accepted by the sentencer and used to enhance the defendant's sentence, the government will profit from its lawless behavior, and the sentencer becomes a partner in official lawlessness. In addition, the defendant points to language in previous cases indicating that this Court will consider significant errors regardless of whether they are called to the trial court's attention because this Court is required by statute to review a sentence of death. See State v. Martin, 702 S.W.2d 560, 564 (Tenn. 1985) (overruled on other grounds by State v. Brown, 836 S.W.2d 530 (Tenn. 1992)). However, the defendant has waived this challenge. The fact that the defendant's sentence was overturned on appeal does not provide him with a second opportunity to litigate pre-trial issues that could have been raised before his original trial.

Rule 12(b)(3) of the Tennessee Rules of Criminal Procedure requires that all motions to suppress evidence be presented prior to trial. Failure to make the motion before trial results in waiver, although a court may grant relief from the waiver for cause shown. Tenn. R.Crim. P. 12(f). Waiver is supported by the traditional reading of both Rule 12 and the word "trial" as referring to the proceeding at which guilt is determined, with sentencing being only a part of that unified criminal process. In addition, the language in Tennessee Code Annotated section 39-13-204(c) prohibiting the use of unconstitutionally secured evidence does not indicate that the General Assembly contemplated that the doctrine of waiver should not apply at capital sentencing. Furthermore, the remand for resentencing should not be construed as re-opening this issue. Cf. State v. O'Hara, 1 Ohio App.3d 50, 439 N.E.2d 431, 432 (1980) (granting of new trial did not permit defendant to raise a motion to suppress where no such motion to suppress was made prior to first trial, where new trial was granted for purposes wholly aside from the grounds for the motion, and where a rule of criminal procedure required a motion to suppress to be made seven days before trial).

D. JURISDICTION OF THE TRIAL COURT

Upon declaring the defendant's sentence of life without parole void in Stephenson v. Carlton, this Court remanded the case to "the trial court" for further proceedings. 28 S.W.3d at 912. Mandate thereupon issued to the Criminal Court for Johnson County, the habeas corpus court, which entered a final judgment on December 5, 2000, declaring the defendant's sentence of life without parole null and void and ordering that a copy of the judgment be forwarded to several persons, including the Circuit Court Clerk of Cocke County and the District Attorney General of Cocke County where the defendant was originally tried. The defendant filed an objection to the jurisdiction of the Cocke County Circuit Court; however, the trial court concluded that the Cocke County Circuit Court retained jurisdiction based on the original remand and mandate for resentencing entered following the direct appeal in 1994.

The defendant asserts that the trial court had no jurisdiction to resentence him because there was neither mandate or remand by the appellate court nor transfer of the case from the Johnson County Criminal Court to the Cocke County Circuit Court. Relying on McLaney v. Bell, 59 S.W.3d 90, 95 (Tenn. 2001), the defendant argues that this Court should have remanded the case to the original trial court after voiding the judgment. In McLaney, we held that the sentence would be void under certain circumstances and remanded the case to the habeas corpus court to determine whether these circumstances existed and, if so, to transfer the case to the trial court "for appropriate disposition." Id. at 95-96. In the present case, while the Johnson County Criminal Court did not state that it was "transferring" the case to Cocke County, it sent the Cocke County Circuit Court a copy of the order declaring the defendant's sentence null and void. Upon receipt of such an order, the Cocke County Circuit Court, as the original conviction court, was obligated to exercise its subject matter jurisdiction to impose a sentence on the defendant's first degree murder conviction, which remained valid and in effect. Moreover, as the court with exclusive subject matter jurisdiction of the defendant's conviction for first degree murder, the Cocke County Circuit Court also possessed the inherent authority to impose a sentence for that conviction. The actions of the Johnson County Criminal Court in declaring the defendant's sentence null and void created sufficient reasonable necessity to prompt the Cocke County Circuit Court to exercise its inherent authority. Therefore, the defendant's argument regarding jurisdiction is without merit.

E. MANDATORY REVIEW FACTORS

Tennessee Code Annotated section 39-13-206(c)(1) (2003) requires that courts reviewing a sentence of death for first degree murder determine whether:

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

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

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

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

Our review of the record confirms that the death sentence in this case was not imposed in an arbitrary fashion. We also conclude that the evidence that the defendant offered to give Thompson a boat, a motor, and a truck is sufficient to support the jury's finding of aggravating circumstance (i)(4), that the defendant committed the murder for remuneration or the promise of remuneration or employed another to commit the murder for remuneration or the promise of remuneration. See Tenn. Code Ann. § 39-13-204(i)(4).

We further conclude that the evidence was sufficient to support the jury's finding that the aggravating circumstance outweighed the mitigating circumstances beyond a reasonable doubt. In determining whether the evidence supports the jury's finding, the proper standard is whether, after reviewing the evidence in the light most favorable to the State, a rational trier of fact could have found that the aggravating circumstance(s) outweighed the mitigating circumstance(s) beyond a reasonable doubt. See State v. Henderson, 24 S.W.3d 307, 313 (Tenn. 2000); State v. Bland, 958 S.W.2d 651, 661 (Tenn. 1997). A rational juror could have found that the (i)(4) aggravating circumstance outweighed the various mitigating circumstances presented by the defendant, including his family history, psychological condition, and his life in prison, beyond a reasonable doubt.

In conducting a comparative proportionality review as required by Tennessee Code Annotated section 39-13-206(c)(1)(D), we have previously stated that

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

State v. Powers, 101 S.W.3d 383, 403 (Tenn. 2003) (quoting State v. Hall, 976 S.W.2d 121, 135 (Tenn. 1998)) (citations omitted). In considering proportionality, we look at the facts and circumstances of the crimes, the characteristics of the defendant, and the aggravating and mitigating circumstances involved, and compare the present case with others in which a defendant was convicted of the same or similar crimes. See State v. Godsey, 60 S.W.3d 759, 782 (Tenn. 2001). The pool from which we select similar cases includes "only 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, regardless of the sentence actually imposed." Id. at 783 (footnotes omitted). The following factors are useful in identifying and comparing similar cases: 1) the means and manner of death; 2) the motivation for killing; 3) the place of death; 4) the similarity of the victims and treatment of the victims; 5) the absence or presence of premeditation, provocation, and justification; and 6) the injury to and effects on non-decedent victims. See Bland, 958 S.W.2d at 667. In comparing defendants, we consider the following non-exclusive factors: 1) prior criminal history; 2) age, race, and gender; 3) mental, emotional, and physical condition; 4) role in the murder; 5) cooperation with authorities; 6) remorse; 7) knowledge of helplessness of victim; and 8) capacity for rehabilitation. See id.

In this case, we begin by reviewing the nature of the offense. The defendant approached at least two persons offering payment to kill his wife before he conspired with Thompson to murder Mrs. Stephenson, the mother of two young children. Mrs. Stephenson, who was lured under false pretenses to the remote location where she was killed, was shot in the head with a rifle at close range. The defendant's role in the murder was significant. He instigated the plan to murder his wife, offered Thompson remuneration for the killing, and was present at the scene when her premeditated murder took place. There was no evidence of provocation or justification for Mrs. Stephenson's murder.

We also consider evidence regarding the defendant and his background. The defendant, a white male, had no prior criminal history. He initially denied involvement in his wife's murder. While the defendant was diagnosed with a depressive disorder and a personality disorder, the defense expert, Dr. Engum, opined that the defendant's psychological difficulties do not interfere with his ability to perform his assigned tasks in prison. There was no evidence of brain damage. There was also no evidence presented to show that the defendant exhibited remorse for killing his wife.

In mitigation, several witnesses testified that the defendant was an asset to the prison and that he functions well there. Witnesses mentioned the defendant's positive contributions to the prison community, particularly his work ministering to and assisting other prisoners. However, considering the nature of the crime and the defendant, we conclude that the murder of the defendant's wife places him into the class of defendants for whom the death penalty is an appropriate punishment.

The defendant's primary argument is that the death penalty is disproportionate in this case because Thompson received a life sentence for his role in the murder, while the defendant received a sentence of death. We have repeatedly rejected the argument that a sentence of death is disproportionate simply because a co-defendant who was involved in the same killing received a lesser sentence. See State v. Robinson, 146 S.W.3d 469, 503-04 (Tenn. 2004); State v. Middlebrooks, 995 S.W.2d 550, 565 (Tenn. 1999); State v. Cauthern, 967 S.W.2d 726, 741 (Tenn. 1998); State v. Henley, 774 S.W.2d 908, 918 (Tenn. 1989). Disparate sentences may exist if there is a rational basis for the decision of the jury to impose the death penalty on one perpetrator and not the other. See State v. Carter, 714 S.W.2d 241, 251 (Tenn. 1986). In the present case, the defendant's relationship to the victim and his role as leader in instigating and planning the murder distinguishes him from Thompson. Moreover, this Court has upheld death sentences in murder-for-hire cases where the actual killer received a sentence of life imprisonment. See State v. Austin, 87 S.W.3d 447 (Tenn. 2002); State v. Stevens, 78 S.W.3d 817 (Tenn. 2002); State v. Hutchison, 898 S.W.2d 161 (Tenn. 1994); State v. Groseclose, 615 S.W.2d 142 (Tenn. 1981).¹⁴

14 Although the defendant in Groseclose initially received the death penalty for hiring others to kill his wife, the defendant was granted federal habeas corpus relief and underwent a new sentencing hearing at which he received a life sentence.

In undertaking a proportionality review, we recognize that "no two cases involve identical circumstances." Stevens, 78 S.W.3d at 842. Our objective, therefore, is not to "'search for proof that a defendant's death sentence is perfectly symmetrical, but to identify and to invalidate the aberrant death sentence.'" Id. (quoting Bland, 958 S.W.2d at 665). Based upon an exhaustive review of the record and Supreme Court Rule 12 reports from trial judges in trials for first degree murder, we conclude that the sentence in the present case is proportionate when compared to other similar murders in which the death penalty was imposed. The following cases in which the death penalty was imposed support the proportionality of the defendant's sentence: State v. Austin, 87 S.W.3d 447 (Tenn. 2002) (defendant hired man to kill undercover police officer; sole aggravating circumstance (i)(4)); State v. Stevens, 78 S.W.3d 817 (Tenn. 2002) (defendant paid teenager $5,000.00 to kill his wife and mother-in-law to avoid financial difficulties of divorce; aggravating circumstances (i)(2) (prior violent felony conviction) and (i)(4)); State v. Hutchison, 898 S.W.2d 161 (Tenn. 1994) (man hired others to drown victim to get insurance money; sole aggravating circumstance (i)(4));¹⁵ and State v. Porterfield, 746 S.W.2d 441 (Tenn. 1988) (woman hired man to kill her husband; wife's aggravating circumstances (i)(4) and (5); hired killer [Porterfield] also received death sentence). After reviewing these cases, and many others not specifically cited, we conclude that the penalty imposed by the jury in this case is not disproportionate to the penalty imposed for similar crimes. The sentence thus satisfies the criteria of Tennessee Code Annotated section 39-13-206(c)(1)(A)-(D).

15 Hutchison's co-defendant, Millard Curnutt, who also was involved in the murder for hire scheme, received the death penalty but died in prison before this Court could review his sentence.

III. CONCLUSION

In accordance with Tennessee Code Annotated section 39-13-206(c)(1) and the principles adopted in prior decisions, we have considered the entire record and relevant legal authority. We conclude that the sentence of death has not been imposed arbitrarily, that the evidence supports the jury's finding of the statutory aggravating circumstance, that the evidence supports the jury's finding that the aggravating circumstance outweighs the mitigating circumstances beyond a reasonable doubt, and that the sentence is not excessive or disproportionate. Furthermore, we have reviewed all of the issues raised by the defendant and conclude that they do not warrant relief.¹⁶ With respect to issues not specifically addressed within this opinion, we affirm the decision of the Court of Criminal Appeals. Relevant portions of that opinion are published hereafter as an appendix. The defendant's sentence of death is affirmed and shall be carried out on the 11th day of October, 2006, unless otherwise ordered by this Court or proper authority.

16 The defendant also asserts that he is entitled to resentencing on both his convictions, not just his conviction for first degree murder, because nullification of the sentence of life without parole necessarily negated the agreement regarding the conspiracy sentence. Whatever merit this argument has was waived by his failure to file a petition to rehear in Stephenson v. Carlton challenging this Court's statement in footnote three of that opinion that invalidation of the sentence of life without parole did not affect the sixty-year sentence imposed for the conspiracy conviction. The defendant further asserts that because the trial court on remand in 1994 "forced him to change his plea and enter a Guilty Plea, . . . it negated and took the place of any prior finding of Guilt by a Cocke County Jury, therefore leaving him without a conviction of any kind." Because this argument was not raised in the Court of Criminal Appeals, it is waived.

It appearing that the defendant, Jonathan Wesley Stephenson, is indigent, costs of this appeal are taxed to the State of Tennessee.

ADOLPHO A. BIRCH, JR., concurred in part, dissented in part, and filed a separate opinion.

APPENDIX (Excerpts from the Court of Criminal Appeals' Decision) IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE November 16, 2004 Session STATE OF TENNESSEE v. JONATHAN WESLEY STEPHENSON Appeal from the Circuit Court for Cocke County, No. 5012 5040; Ben W. Hooper, II, Judge No. E2003-01091-CCA-R3-DD — Filed March 9, 2005

The Defendant, Jonathan Wesley Stephenson, appeals as of right his sentence of death. In 1990, he was convicted of first degree murder and conspiracy to commit first degree murder in the death of his wife. His conviction for murder was based on his role in the killing under the criminal responsibility statute. The jury sentenced the Defendant to death for the murder and the trial court imposed a consecutive sentence of twenty-five years in prison for the conspiracy. On direct appeal, our supreme court affirmed both convictions, but remanded for resentencing because of an error which nullified the jury's verdict. See State v. Stephenson, 878 S.W.2d 530, 534 (Tenn. 1994). On remand, by agreement of the parties, the Defendant was sentenced to life without parole for the murder and to sixty years for the conspiracy. In 1998, the Defendant filed a petition for writ of habeas corpus in the Circuit Court for Johnson County in which he challenged his life sentence. On appeal, this court affirmed the trial court's dismissal of the petition. See Jonathan Stephenson v. Howard Carlton, Warden, No. 03C01-9807-CR-00255, 1999 WL 318835 (Tenn.Crim.App., Knoxville, May 19, 1999), app. granted (Tenn. Sept. 20, 1999). On further review, the Tennessee Supreme Court concluded that the Defendant's life sentence for the murder conviction was illegal because life without parole was not a statutorily authorized punishment at the time of the offense. The Court remanded the case for further proceedings. See Stephenson v. Carlton, 28 S.W.3d 910, 912 (Tenn. 2000). After his life sentence was declared void, resentencing proceedings began in the Circuit Court for Cocke County. At the conclusion of the proof, the jury found as the sole aggravating circumstance that the "defendant committed the murder for remuneration or the promise of remuneration or employed another to commit the murder for remuneration or the promise of remuneration." Tenn. Code Ann. § 39-13-204(i)(4). The jury further found that the mitigating circumstances did not outweigh the aggravating circumstance and imposed the death penalty. The Defendant now appeals. We affirm the judgment of the trial court.

Tenn. R.App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.

David H. Welles, J., delivered the opinion of the court, in which David G. Hayes and Norma McGee Ogle, JJ., joined.

Carl R. Ogle, Jr., Jefferson City, Tennessee, John E. Herbison, Nashville, Tennessee, and Tim S. Moore, Newport, Tennessee, for the appellant, Jonathan Wesley Stephenson.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Angela M. Gregory, Assistant Attorney General; Al Schmutzer, Jr., District Attorney General; and James B. Dunn, Assistant District Attorney General, for the appellee, State of Tennessee.

[DELETED ISSUES] OPINION [DELETED RE-SENTENCING HEARING] Analysis [DELETED I. DOUBLE JEOPARDY] [DELETED II. AGGRAVATING CIRCUMSTANCES UNDER APPRENDI V. NEW JERSEY] [DELETED III. MOTION TO SUPPRESS] [DELETED IV. TRIAL TESTIMONY OF ABSENT FORMER WITNESSES] V. Admission of Rifle

The Defendant argues that because neither the cause nor the manner of the victim's death was disputed at sentencing, the admission of the rifle owned by Ralph Thompson served only to inflame the jury and prejudice it against the Defendant. He contends that the trial court erred in failing to balance the probative value against the prejudicial effect of introducing the rifle into evidence.

Tennessee Code Annotated section 39-13-204(c) provides for the admission of evidence in a capital sentencing proceeding as follows:

[E]vidence 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. . . .

The issue of a Defendant's guilt or innocence is not relevant at a resentencing proceeding. See State v. Hartman, 703 S.W.2d 106 (Tenn. 1985). "At a resentencing hearing, both the State and Defendant are entitled to offer evidence relating to the circumstances of the crime so that the sentencing jury will have essential background information 'to ensure that the jury acts from a base of knowledge in sentencing the Defendant.'" State v. Adkins, 725 S.W.2d 660, 663 (Tenn. 1987) (quoting State v. Teague, 680 S.W.2d 785, 788 (Tenn. 1984)).

In the instant case, the sentencing jury was not the same jury which convicted the Defendant and was familiar with the nature and circumstances of the Defendant's crime only through the proof presented at the resentencing hearing. The rifle supported the testimony given by Dr. Blake as to the cause of death and the nature of the murder. As to the circumstances surrounding the murder, Agent Caldwell testified that the rifle was recovered from the home of Ralph Thompson and smelled as though it had been recently cleaned. The rifle thus served to connect the Defendant, who admitted in his statement to having hired Ralph Thompson to kill his wife, with Thompson. For his part, although Thompson denied killing the victim, he admitted owning the rifle and shooting it on the night of the murder. The rifle was admissible to show the nature and circumstances of the crime. This issue is without merit.

VI. Polygraph Test

During his testimony at sentencing, Agent Davenport read from the report he made some thirteen years earlier during his investigation of the Defendant's case. In testifying from the report, Agent Davenport noted that the Defendant had twice offered to take a polygraph test. The first reference occurred as Agent Davenport read the conclusion of his initial interview with the Defendant:

Stephenson stated that he had no objection to us looking at his truck or taking anything out of it. Stated he hadn't shot his shotgun in the past month or so.

He stated that he did not know anyone that would have killed his wife. Stephenson also agreed to take a polygraph test.

The defense did not object to this testimony. Continuing to read from his investigation report, Agent Davenport testified that at the conclusion of his second interview, "Stephenson stated that he was still willing to take a polygraph test." In response, the defense immediately moved for a mistrial. The court denied the motion and contemporaneously instructed the jury as follows:

Ladies and Gentleman of the jury, I think it's been mentioned, a polygraph test, in the reading of these reports.

Results of polygraph tests are absolutely inadmissible. The mere fact that the word has been mentioned on two occasions, I will instruct you not to draw any inference at all from that. None whatsoever, just disregard that statement and for the primary reason polygraph test results are totally inadmissible.

The Defendant asserts that Agent Davenport was reading from a previously prepared document with the intended purpose of putting polygraph evidence before the jury. He urges this Court not to countenance such "improper tactics" by the prosecution.

"[P]olygraph examination results, testimony on such results, or testimony regarding a Defendant's willingness or refusal to submit to a polygraph examination is not admissible during capital or non-capital sentencing hearings." State v. Pierce, 138 S.W.3d 820, 826 (Tenn. 2004). In this case, the transcript reflects that the references made by the State's witness to the Defendant's offers to take a polygraph test were not elicited by the prosecutor's particular line of questioning. Agent Davenport was asked, based on his investigation report, what the Defendant told him "in regards to that murder that evening" and what the Defendant said at his second interview. Regarding the admissibility of incompetent evidence, "the correct practice is to reject such evidence at once, and not permit it to go to the jury." Stokes v. State, 64 Tenn. 619, 621 (1875). Any potential error, however, resulting from unsolicited testimony that offers otherwise inadmissible testimony may be cured by a proper instruction to the jury to disregard the comment. See State v. West, 767 S.W.2d 387, 397 (Tenn. 1989); State v. Foster, 755 S.W.2d 846, 849 (Tenn.Crim.App. 1988). In response to the motion for mistrial, the trial court promptly instructed the jury to give no consideration, "none whatsoever," to the references to polygraph testing. This court concludes that the trial court took proper corrective action and did not err in refusing to grant a mistrial. This issue is without merit.

VII. Testimony about Victim's Ring

The Defendant submits that the trial court erred in allowing the admission of testimony about a ring that the Defendant had given to his girlfriend, Julie Webb. The Defendant argues that the testimony concerning the ring, "obviously intended to suggest that the Defendant had stolen the ring from his young son," was not relevant to either an aggravating circumstance or any mitigating factors at sentencing.

At the conclusion of Webb's testimony, the State sought to introduce the ring into evidence. The trial court sustained the Defendant's objection, but noted the possibility that the ring could be used in rebuttal. Thereafter, through cross-examination, the defense elicited testimony from Detective Caldwell that he was not aware of any "criminal record" that the Defendant had as a result of his investigation. The defense elicited further, similar testimony from Agent Davenport:

Q: [Mr. Ogle]: I know you indicated, Sheriff, that Mr. Stephenson told you he didn't have any criminal arrests, or anything like that. I take it you didn't take his word for that, you checked it, did you not?

A: [Davenport]: I believe I did.

Q: And you found no criminal background on Mr. Stephenson whatsoever?

A: I don't remember any, Mr. Ogle. I don't remember any.

Q: Certainly none reflected in your file, is there?

A: I can't find a criminal record. I don't remember a criminal record on Mr. Stephenson.

Q: And as general procedure, that's something you would check during an investigation?

A: That's correct.

Q: And if there were a criminal history that could be significant as far as the case is concerned, is that true?

Gen. Schmutzer: Your Honor, we'll stipulate we don't have a criminal history.

Based on the testimony of both Detective Caldwell and Agent Davenport regarding the lack of the Defendant's criminal history, the State again sought to introduce the ring. The trial court noted that the State's stipulation had not come until several questions regarding the lack of a criminal background had been asked and answered and ruled that the defense had "opened the door" through its questioning of these State's witnesses. Julie Webb was recalled and testified that the Defendant gave the ring to her in November 1989, and the ring was introduced for identification purposes.

Evidence relevant to the issue of punishment and therefore admissible at a capital sentencing hearing includes "any evidence tending to establish or rebut any mitigating factors." Tenn. Code Ann. § 39-13-204(c). "'Rebutting evidence' is that which tends to explain or controvert evidence produced by an adverse party." Cozzolino v. State, 584 S.W.2d at 765, 768 (Tenn. 1979) (citing State v. Anderson, 159 N.W.2d 809 (Iowa 1968); Hutchinson v. Shaheen, 55 A.D.2d 833, 390 N.Y.S.2d 317 (1976)). In this case, the Defendant gave notice that he intended to rely on the fact that he had "no significant prior record." See Tenn. Code Ann. § 39-13-204(j)(1). At the hearing, the Defendant then pursued a particular line of questioning with two State's witnesses which was designed to and did in fact support this mitigating factor. The State was entitled to offer proof in rebuttal. The testimony of the victim's father and the Defendant's girlfriend established that the Defendant had taken a ring belonging to his young son and given it to his girlfriend. The fact that the Defendant had not been convicted or even arrested for this offense is irrelevant. As the State correctly notes, when the Defendant relies on the Tennessee Code Annotated section 39-13-204(j)(1) statutory mitigating factor, "he inevitably becomes subject to rebuttal evidence offered by the prosecution showing prior criminal activity. Neither the prosecution nor the defense is limited under this statutory provision to proof of prior convictions." State v. Matson, 666 S.W.2d 41, 44 (Tenn. 1984). This issue is without merit.

VIII. Testimony Suggesting Lack of Remorse

The State elicited testimony that the Defendant had shown no remorse for the murder of his wife. The victim's father, for example, was asked whether the Defendant had "ever expressed to you and your wife any remorse or sorrow of having murdered her?" Mr. Saylor responded, "None whatsoever." Similar, though less direct, testimony was given by witnesses Wade Tate, Jack Sallie, and Judy Hyder. During a bench conference after the last of these witnesses had been asked whether the Defendant had ever "sought any counseling over remorse for his wife's death," defense counsel argued that "if he's asking about pastoral counseling, those discussions are privileged." The court responded that it assumed the defense had waived the privilege by calling the witness. Defense counsel further stated:

While we're up here, in order to preserve the record, I understand Your Honor's ruling on the questions about remorse, but to preserve the record I believe we need to make a motion to strike all those references.

The presence of remorse can be a mitigating factor, but we've not advanced that. The absence of remorse is not an aggravating factor. And this Cozzolino case says you can't rebut a proposition that's not been advanced. So, it's not relevant [to] punishment.

During closing argument, the prosecutor twice referred to the Defendant's apparent lack of remorse for his crime. First, he stated:

But I submit to you there's one thing that cuts against this man having changed and become a Christian, and that is simply nowhere in this record, nowhere from that witness stand have you heard one person say that this Defendant has shown any remorse or any sorrow over the death of his wife, over what he has done. None.

The prosecutor further argued:

Has he at any time ever shown any remorse? No. Well, I take that back. Probably the closest thing to it was that very night when [he] told Julie Webb, "I didn't love her but I'm going to miss the bitch." That was about the closest thing he's ever come to showing any sorrow or remorse for taking her life.

Before this Court, the Defendant asserts that by allowing such testimony and argument, the trial court erroneously permitted the State to interject a non-statutory aggravating circumstance into the proceeding. The State counters that the Defendant has waived this issue. In the alternative, the State contends that evidence regarding lack of remorse was proper rebuttal evidence to the Defendant's evidence of his reformed character and religious conversion while in prison.

Examining the closing argument first, this Court observes that the Defendant made no objection to the prosecutor's remarks. "It is well settled that without a contemporaneous objection to a prosecutor's statements, the error is waived." State v. Farmer, 927 S.W.2d 582, 591 (Tenn.Crim.App. 1996) (citing State v. Sutton, 562 S.W.2d 820, 825 (Tenn. 1978); State v. Compton, 642 S.W.2d 745, 747 (Tenn.Crim.App. 1982)).

With respect to the testimony concerning the Defendant's lack of a showing of remorse, the Defendant also failed to contemporaneously object to the prosecutor's questions. In fact, the Defendant only moved to strike references to remorse after the fourth witness had essentially completed her testimony. Nonetheless considering the issue, it lacks merit. As discussed in the previous section, the sentencing statute generally permits all evidence deemed relevant to the issue of punishment to be admitted in a capital sentencing proceeding. The prosecution is expressly permitted to rebut any mitigating factors relied on by a Defendant. See State v. Bane, 57 S.W.3d 411, 424 (Tenn. 2001) (citing Tenn. Code Ann. § 39-2-203(c) (1982); Terry v. State, 46 S.W.3d 147, 156 (Tenn. 2001)).

IX. Closing Argument — "Appeal to Vengeance"

In closing argument, the prosecutor stated:

You've heard the pleading by the family to not give him the death sentence, which you would expect.

It was a plea that the Saylors didn't get the opportunity to make for Lisa.

In response to the Defendant's objection, the prosecutor noted that the point of his argument was that the jury was not to allow sympathy or prejudice to guide its decision. The court allowed the argument to proceed. The prosecutor continued, stating that "His Honor will tell you at the end of his charge that you're not to let sympathy or prejudice guide your decision. That you use reason and common sense."

Citing State v. Bigbee, 885 S.W.2d 797, 812 (Tenn. 1994), the Defendant argues that this type of argument has been characterized by our supreme court as a "thinly veiled appeal to vengeance" which is not permissible in a capital proceeding and which error in part led to a reversal in that case. In Bigbee, the Court held that among other errors, a portion of the prosecutor's argument was improper as follows:

Finally, the prosecutor strayed beyond the bounds of acceptable argument by making a thinly veiled appeal to vengeance, reminding the jury that there had been no one there to ask for mercy for the victims of the killings in Sumner and Montgomery Counties, and encouraging the jury to give the Defendant the same consideration that he had given his victims. Although the prosecutor could have properly counseled the jury to avoid emotional responses that were not rooted in the trial evidence, the argument here encouraged the jury to make a retaliatory sentencing decision, rather than a decision based on a reasoned moral response to the evidence. As such, the argument was improper.

Bigbee, 885 S.W.2d at 812 (citations omitted). The Court also noted that the prosecutor's remarks encouraged the jury to further punish the Defendant for killings in Montgomery County for which he had previously been convicted and sentenced to life imprisonment. The Court concluded that while these errors "might have been harmless standing alone, we find that, considered cumulatively, the improper prosecutorial argument and the admission of irrelevant evidence affected the jury's sentencing determination to the Defendant's prejudice." Id.

On close examination, this Court concludes that the challenged portion of the prosecutor's argument did not rise to the level of the argument found improper in Bigbee. The prosecutor's remarks essentially urged the jury not to be swayed by sympathy or emotion in response to the pleas of the Defendant's family for a sentence other than death. We find nothing improper in the prosecutor's argument.

X. Closing Argument — Consideration of Proof

Regarding evidence of whether the Defendant himself or Ralph Thompson actually fired the fatal shot, the prosecutor told the jury to "listen closely to the charge from the judge" and "[i]f he tells you that it is important as to who pulled the trigger, then you consider it." The Defendant contends that the prosecutor's argument was "egregiously improper" in that it suggested to the jury that they should disregard any proof which the trial court did not expressly tell them it was important for them to consider including factual evidence that the Defendant himself may have committed the murder. The ultimate gist of the Defendant's argument is that the State could not prove the murder was committed for remuneration or promise of remuneration if the Defendant himself shot and killed his wife.

The record reflects that the challenged remarks were made as the prosecutor began to discuss its burden of proving an aggravating circumstance. The prosecutor stated:

The State, as you all well know, has to prove an aggravating circumstance, beyond a reasonable doubt.

And I submit to you the State has to go no further than the words that came from this Defendant's mouth on December 5th, when he finally came across to telling the truth about what happened to the officers, and you heard it because the aggravating circumstance is, that you employ another to commit a crime for remuneration or the promise of remuneration, there's absolutely no question.

Ralph asked me if he killed Lisa would I give him my boat, motor and truck and I told him I would. The same thing he'd offered Glen Brewer. I don't need to go any further than that, folks.

Now, apparently defense believes that maybe if they can show that their client pulled the trigger, that that doesn't apply. I submit to you, listen closely to the charge from the judge.

If he tells you that it is important as to who pulled the trigger, then you consider it. If he doesn't, I submit to you . . .

Following the Defendant's objection being overruled, the prosecutor continued:

Listen closely to the Court's charge. If he tells you to consider it I submit to you, I know you will, there'll be no question about it. If he doesn't, I submit to you, you don't.

That's not the end of it. The fact that the State has proved the aggravating circumstance, you're to go further and look at the mitigating circumstances.

Closing argument is a valuable privilege that should not be unduly restricted. See State v. Bane, 57 S.W.3d 411, 425 (Tenn. 2001) (citing Bigbee, 885 S.W.2d at 809). The trial court has wide discretion in controlling the course of arguments and will not be reversed absent an abuse of that discretion. Id. In the present case, the trial court overruled the objection to the prosecutor's argument, noting that the court had just instructed the jury that it would not be bound by any principles of law mentioned in counsel's argument, but was bound to apply the law only as instructed by the court. "The general principle in criminal cases is that there is a duty upon the Trial Judge to give the jury a complete charge on the law applicable to the facts of the case. The Defendant has a right to have every issue of fact raised by the evidence and material to his defense submitted to the jury upon proper instructions by the Judge." Poe v. State, 212 Tenn. 413, 370 S.W.2d 488, 489 (1963) (citing Crawford v. State, 44 Tenn. 190, 194-195 (Tenn. 1867); Green v. State, 154 Tenn. 26, 285 S.W. 554 (1926); Myers v. State, 185 Tenn. 264, 206 S.W.2d 30 (1947); Harbison v. Briggs Paint Co., 209 Tenn. 534, 354 S.W.2d 464 (1962)). In our view, the prosecutor's remarks served only to emphasize the trial court's charge to the jury and otherwise fell within the wide range of permissible argument. This issue is without merit.

XI. Victim Impact Evidence

The Defendant contends that no victim impact evidence was introduced by the State and the court's instruction served only to invite the jury to render a verdict based on sympathy for the victim's family. In its charge, the trial court instructed the jury regarding victim impact evidence 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 this victim impact evidence in no way relieves the State of its burden to prove beyond a reasonable doubt the 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 the alleged aggravating circumstance has been proven beyond a reasonable doubt by evidence independent from the victim impact evidence, and find that the aggravating circumstance found outweighs the finding of one or more mitigating circumstances beyond a reasonable doubt.

As both parties correctly recognize, victim impact evidence should generally 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." State v. Nesbit, 978 S.W.2d 872, 891 (Tenn. 1998) (citing Payne v. Tennessee, 501 U.S. 808, 822, 111 S.Ct. 2597, 115 L.Ed.2d 720; Payne, 501 U.S. at 830, 111 S.Ct. 2597, (O'Connor, J. concurring); Cargle v. State, 909 P.2d 806, 826 (Ok.Ct.Crim. App. 1995)). We must disagree with the Defendant's position that no such evidence was presented in this case. First, the victim's father provided the jury with a "brief glimpse" into his daughter's daily life. He described the rural setting where she and her family lived. The jury learned that the victim had a job painting small figurines at home which allowed her to also care for her two young children. The witness further testified that the victim's children were left alone at the time of the murder until he discovered them and took them to his own home. The jury heard that as a result of the victim's death, her father and mother adopted and continued to raise her children. Such evidence certainly touched on the circumstances surrounding the victim's death and its impact on her immediate family. The trial court did not err in instructing the jury accordingly.

XII. Instruction on Life Sentence

Shortly after the court completed its charge, the jury submitted a note with the following question:

In the Questionnaire that we filled out as prospective jurors it stated a life sentence consisted of fifty-one years. As stated by you, our judge, on Thursday, October 3rd, 2002, a life sentence in the State of Tennessee was not fifty-one years, it had changed. Please review this law for us. Thank you, the jury.

The court declined the defense's suggestion that the jury be instructed on a Defendant's eligibility for parole under current law. Instead, the court reiterated its earlier remarks to the jury regarding the meaning of a life sentence. The court stated:

Ladies and gentlemen of the jury: The question has been considered and let me reiterate what I had told you the other day when I brought to your attention that the Questionnaire was in error.

I told you then and I tell you again, totally disregard that question of your understanding of what the law was, that it was a fifty-one, you had to build fifty-one years. That is to be totally disregarded, it is of no concern to you.

When you stop and think for a moment of the many times that I have told you that your decision is based upon the evidence that you've heard and the law that I give you that applies to that evidence. You have not heard any evidence at all about what a life sentence is.

You must think no more about this question. It is of no concern to you in your deliberations in this case. The issue in this case is whether or not a life sentence should be imposed or the death penalty. That's the issue. It's not a question of what is a life sentence.

The Defendant submits that in response to the jury's inquiry, the trial court erred in refusing to instruct the jury that "a Defendant who receives a sentence of imprisonment for life shall not be eligible for parole consideration until the Defendant has served at least twenty-five (25) full calendar years of such sentence." See Tenn. Code Ann. § 39-13-204(e)(2).

As noted, the offense in the present case was committed in December 1989. At that time, there were two sentencing options: life imprisonment and death. See Tenn. Code Ann. § 39-13-203 (1989). In 1993, the sentencing law was amended to provide for a sentence of life without the possibility of parole. The amended statute was made expressly applicable to offenses committed on or after July 1, 1993. See 1993 Tenn. Pub. Acts ch. 473, § 16. Because the offense in this case was committed before the effective date of the amended statute, the trial court did not err in declining to instruct the jury regarding eligibility for parole under Tennessee Code Annotated section 39-13-204(e)(2).

Moreover, the trial court properly instructed the jury that the meaning of a life sentence should not be considered in its deliberations. State v. Bush, 942 S.W.2d 489 (Tenn. 1997), is most instructive on this issue. In that case, shortly after deliberations began, the jury inquired of the trial court, "How many years does the [defendant] serve if he gets life imprisonment and how long before parole?" Id. at 502. The trial court declined the Defendant's request to instruct the jury as to the availability of parole. Instead, the court instructed the jury only that "parole eligibility is not an issue in a capital case. . . ." Id. at 503. On appeal, our supreme court rejected the defendant's due process challenge to the trial court's instruction. In doing so, the court further stated, "[i]ndeed, the trial court's refusal to give defendant's requested response to the jury question was entirely consistent with prior decisions of this Court holding that the after-effect of a jury's verdict, such as parole availability, is not a proper instruction or consideration for the jury during deliberations." Id. (citing State v. Caughron, 855 S.W.2d 526, 543 (Tenn. 1993); State v. Payne, 791 S.W.2d 10, 21 (Tenn. 1990)). This issue is without merit.

XIII. Sequestration

During a recess after the close of the Defendant's proof, the following exchange took place:

THE COURT: Is it all right for them to take Lynn Fillers [a juror] to the funeral home, which is, is it Manes?

OFFICER BILLY WAYNE MOORE: Manes.

THE COURT: While we're taking this recess?

GEN. SCHMUTZER: The State has no objection.

MR. OGLE: No problem, Judge.

THE COURT: You're going to be taking him?

OFFICER BILL WAYNE MOORE: Yes.

THE COURT: I hate to rush him, but

. . .

Following the recess, proceedings resumed in the presence of the jury. Before this Court, the Defendant concedes that the trial court permitted the juror to leave court without objection from either party. He asserts, however, that the State nonetheless has the burden of proving that the alleged separation did not prejudice the Defendant.

First, the Defendant has waived this issue by failing to object and in fact consenting to the juror's departure from court. See Tenn. R.App. P. 36(a). Considering this issue despite the apparent waiver, this Court concludes that the Defendant's argument is without merit. In his brief, the Defendant accurately set forth the law regarding jury separation:

It is well-settled in Tennessee that once jury separation has been shown by the Defendant, the State then has the burden of showing that such separation did not result in prejudice against the Defendant. Gonzales v. State, 593 S.W.2d 288 (Tenn. 1980). "'It is the opportunity of tampering with a juror, afforded by the separation which constitutes the ground for a new trial, but if such separation afforded no such opportunity, there can be no cause for a new trial.'" Gonzales, 593 S.W.2d at 291, quoting Cartwright v. State, 80 Tenn. 620 (1883). The burden is on the State to offer a satisfactory explanation as to why there was a jury separation and that the separated juror had no communications with others, or that if communications were had, they did not relate to the case at trial. Gonzales, 593 S.W.2d at 291-92.

State v. Spadafina, 952 S.W.2d 444, 452 (Tenn.Crim.App. 1996). In arguing that the burden of persuasion is upon the state, the Defendant presumes that jury separation has in fact been established. "[A]t common law, the sequestration rule required that jurors be physically kept together within the presence of each other without food, drink, fire or light until a verdict was agreed upon." State v. Bondurant, 4 S.W.3d 662, 671 (Tenn. 1999). "[U]nder modern law, the test of keeping a jury 'together' is not a literal one, requiring each juror to be at all times in the presence of all others. . . . The real test is whether a juror passes from the attendance and control of the court officer." Id. (citing State v. Bartlett, 137 Vt. 400, 407 A.2d 163, 166 (1979)). In the instant case, the record reflects only that the court allowed the juror to be escorted to a funeral home in the presence of a court officer. The Defendant does not allege and the record contains nothing to support a finding that the juror in question was ever outside the presence or control of the officer. We therefore conclude that the Defendant has failed at the outset to establish jury separation. It follows that the burden has not shifted to the state to prove a lack of prejudice to the Defendant based on the alleged separation. This issue is without merit.

XIV. Cumulative Effect of Errors

Upon due consideration, this court concludes that there was no error in the re-sentencing of the Defendant. There being no error, the Defendant cannot prevail on this issue.

[DELETED XV. PROPORTIONALITY REVIEW] [DELETED XVI. JURISDICTION] Conclusion

This court has conducted the statutorily mandated comparative proportionality review and concluded that the sentenced imposed in the Defendant's case is proportionate to the penalty imposed in similar cases. We have considered the entire record and conclude that the sentence of death was not imposed arbitrarily, that the evidence supports the jury's finding of the (i)(4) aggravating circumstance beyond a reasonable doubt, and that the evidence supports the jury's finding that the aggravating circumstance outweighed the mitigating circumstances beyond a reasonable doubt. In addition, we have reviewed each of the issues raised by the Defendant and have found no reversible error. Accordingly, we affirm the judgment sentencing the Defendant to death.

DAVID H. WELLES, JUDGE

CONCUR:

DAVID D. HAYES, JUDGE

NORMA McGEE OGLE, JUDGE

ADOLPHO A. BIRCH, JR., J., concurring in part and dissenting in part.

While I concur in part with the conclusion of the majority affirming Stephenson's convictions, I respectfully dissent from that portion of the majority's opinion concluding that the Sixth Amendment right to confrontation of witnesses and the state constitutional right to confront witnesses "face-to-face" does not apply to capital sentencing hearings. The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. Similarly, Article I, section 9 of the Tennessee Constitution provides "[t]hat in all criminal prosecutions, the accused hath the right . . . to meet the witnesses face to face. . . ." It is disingenuous to argue that the sentencing phase of a capital murder case — tried before a jury — is not a critical part of a "criminal prosecution" covered by these provisions.¹

1 For instance, no one would seriously contend that the Sixth Amendment right to counsel does not apply during capital sentencing proceedings. See Strickland v. Washington, 466 U.S. 668, 686-87, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (There is no distinction between the right to counsel at the guilt phase and the right to counsel during the capital sentencing proceeding.).

I acknowledge that the United States Supreme Court has never expressly held that the right to confrontation applies during capital sentencing proceedings. The majority relies on decisions by lower federal courts, which hold — generally — that the right to confrontation does not apply at sentencing, to support the proposition that the Confrontation Clause does not apply during capital sentencing proceedings. I note, however, that of all the cases cited to bolster this proposition, only one — Szabo v. Walls ² — was a capital case. Furthermore, Szabo was a federal habeas corpus case wherein the primary question was whether the issue of ineffective assistance of counsel had been procedurally defaulted. Accordingly, the language cited for the proposition that the Confrontation Clause does not apply to a capital sentencing proceeding is arguably dicta, since the Confrontation Clause issue previously had been held procedurally waived. See Szabo, 313 F.3d at 398-99.³

2 313 F.3d 392 (7th Cir. 2002).

3 Several federal circuit cases seem to recognize that it is simply unclear whether the Confrontation Clause applies to capital sentencing proceedings. See, e.g., United States v. Higgs, 353 F.3d 281, 324 (4th Cir. 2003) ("[I]t even now remains unclear whether the Confrontation Clause applies [to capital sentencing proceedings.]"); see also United States v. Cantellano, 430 F.3d 1142, 1146 (11th Cir. 2005) (specifying that the Confrontation Clause protections under Crawford do not extend to non-capital sentencing). One recent Fourth Circuit case has recognized that the right to confrontation "appl[ies] equally to sentencing proceedings tried to a jury." Robinson v. Polk, 438 F.3d 350, 359 (4th Cir. 2006) (emphasis added).

In my view, the better-reasoned cases addressing this issue hold that while the Rules of Evidence may not strictly apply during sentencing, the fundamental constitutional rights to due process and confrontation do apply. See Gardner v. Florida, 430 U.S. 349, 362, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (concluding that a petitioner is denied due process of law when a death sentence is imposed on the basis of information that he had no opportunity to deny or explain); State v. Reid, 164 S.W.3d 286, 319 (Tenn. 2005) (explaining that the standards for admission of evidence set forth in Tennessee Code Annotated section 39-13-204(c) nevertheless "allow trial courts to exclude evidence that may violate the constitutional guarantees of due process or confrontation"). See also Perez v. State, 919 So.2d 347, 368-69 (Fla. 2005) (recognizing that at a capital sentencing hearing, under Crawford v. Washington, ⁴ out-of-court statements by witnesses that are testimonial in nature are barred under the Confrontation Clause, unless the witnesses are unavailable and the defendant had a prior opportunity to cross-examine them); Way v. State, 760 So.2d 903, 917 (Fla. 2000) (holding that "the confrontation clause applies to sentencing proceedings"); State v. Nobles, 357 N.C. 433, 584 S.E.2d 765, 769 (2003) (holding that the state failed to present evidence of good-faith efforts to produce the victim of a prior rape offense at the capital sentencing proceeding, thus barring admission of that victim's prior testimony to establish the aggravating circumstance, stating, "while the Rules of Evidence do not apply at sentencing, the right to confront witnesses does"); Littlejohn v. State, 85 P.3d 287, 296-97 (Okla.Crim.App. 2004) (construing the re-sentencing statute, pre- Crawford, which permits the admission of evidence and testimony from a prior trial during a re-sentencing hearing, to incorporate the Ohio v. Roberts ⁵ confrontation safeguards — unavailability, and adequate indicia of reliability); State v. Carter, 888 P.2d 629, 642 (Utah 1995) (construing the capital sentencing statute's provision, pre- Crawford, which permitted the admission of exhibits and testimony from a prior trial during re-sentencing, as implicating the defendant's right to confrontation unless there was a showing of unavailability of the witness and indicia of reliability under Roberts).

4 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

5 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).

Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, fundamentally changed the Confrontation Clause jurisprudence that had developed subsequent to Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597. Under Crawford, testimonial statements from witnesses absent from trial should be admitted only when the declarant is unavailable and the defendant had a prior opportunity to cross-examine those witnesses. 541 U.S. at 67, 124 S.Ct. 1354. Specifically, the Supreme Court held that "[w]here testimonial evidence is at issue . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." Id.

I believe that Crawford establishes the guidelines for Confrontation Clause analysis, and that the Confrontation Clause applies to capital sentencing proceedings. Applying Crawford, it is clear under the facts of this case that the statements admitted from Brewer and Litz were testimonial in nature, as they were read from the transcript of the previous trial. The majority focuses on the fact that the defendant had the opportunity to cross-examine these witnesses at the guilt phase of his trial. This ignores the fact that there is no evidence that the State made efforts to procure their testimony, or that they were unavailable to testify at this re-sentencing hearing as required under Crawford. Id. I find it significant that the testimony of these men went directly to the critical issue in the case, to wit: whether the defendant had employed co-defendant Ralph Thompson to commit the murder for remuneration or the promise of remuneration. Accordingly, I would find that without a showing of unavailability, it was error to admit their prior testimony.

Additionally, I do not agree with the imposition of the death penalty in this case because I continue to believe 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 at 323-325 (Birch, J., concurring and dissenting), and cases cited therein. For the foregoing reasons, I respectfully dissent from majority opinion affirming the imposition of the death penalty.