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State of Tennessee v. Richard Hale Austin
Citation: Not availableDocket: W1999-00281-CCA-R3-DD
Court: Court of Criminal Appeals of Tennessee; March 5, 2001; Tennessee; State Appellate Court
Original Court Document: View Document
Richard Hale Austin was convicted in 1977 by a Shelby County jury for being an accessory before the fact in the first-degree murder of Julian Watkins, a reserve deputy sheriff, and was sentenced to death. His conviction was affirmed on direct appeal and post-conviction relief requests. In 1997, Austin was granted habeas corpus relief by the Sixth Circuit Court of Appeals, leading to a new sentencing hearing due to ineffective assistance of counsel and issues with jury instructions. At the re-sentencing hearing, a jury again found the aggravating factor of murder for remuneration and imposed a death sentence. Austin appealed this decision, raising multiple issues including juror disqualification, evidence admission, prosecutorial misconduct, and the constitutionality of Tennessee’s death penalty statutes. After thorough review, the court affirmed the death sentence, with the opinion delivered by Judge David G. Hayes, joined by Judges Joe G. Riley and John Everett Williams. The State had filed notice to seek the death penalty based on two aggravating circumstances upon remand for re-sentencing. The defendant was found guilty of murder committed for remuneration or the promise of remuneration, as well as for preventing lawful arrest or prosecution. Following a sentencing hearing on March 1, 1999, the jury identified the aggravating circumstance of remuneration and determined that mitigating factors did not outweigh it, resulting in a death sentence approved by the trial court. The Appellant raised several issues on appeal, including: 1. Denial of the motion to disqualify the Tennessee Supreme Court or State Attorney General and quashing of subpoenas. 2. Control over juror selection. 3. Erroneous exclusion of hearsay evidence. 4. Admission of testimony regarding threats from the Appellant. 5. Cross-examination of a witness about jail treatment of "snitches." 6. Compelling testimony from a witness. 7. Introduction of victim impact evidence. 8. Allegations of prosecutorial misconduct in closing arguments. 9. Jury instructions on fairness compared to co-defendants’ sentences. 10. Refusal to consider life without parole as a sentencing option. 11. Jury instructions regarding parole eligibility. 12. Constitutionality of aggravating circumstance (i)(4). 13. Delay in imposing the death sentence. 14. Constitutionality of Tennessee's death penalty statutes. 15. Claims of an arbitrary and disproportionate sentence. After reviewing these issues, the court found no legal errors that warranted reversal and affirmed the death sentence. Background facts established the Appellant’s involvement in the 1977 murder of Julian Watkins, a reserve deputy sheriff investigating illegal gambling related to the Appellant’s pool hall. Casteel and Blankenship did not locate Watkins on their initial visit but returned on May 23, 1977, when Blankenship killed him. Following the murder, Blankenship was seen with a significant amount of money and was arrested on May 24, 1977. He pleaded guilty to the crime and received a life sentence. Casteel and Austin were indicted for murder, but their trials were separated after Casteel agreed to testify against Austin, claiming Austin hired him to kill Watkins. During a re-sentencing hearing on March 1, 1999, Carolyn Watkins-Cupp, the victim’s widow, testified about her marriage to Julian Watkins, their three children, and his community involvement. She described him as a loving and hardworking individual whose murder devastated their family and forced her to close their business. She recounted the morning of the murder, detailing her activities with her children and the moment she learned of her husband's death at Shelby Body Works. Bart Watkins, the victim’s son, provided testimony about an encounter the family had the previous evening with a man who came to their house seeking assistance with a car. After using the phone, the man left without further incident. The following day, after learning of his father's murder, Bart recalled the man’s visit, and the police used the children's descriptions to create a composite sketch of the unidentified visitor. Bart and Randy Watkins identified Jack Charles Blankenship from a police line-up. Floyd Alton Cupp, a retired Memphis police officer, recounted his assignment to a gambling investigation at The Golden Cue, owned by Poppy Popenheimer and managed by Richard Austin. Due to Cupp's recognizability, Julian Watkins, a reserve deputy, operated undercover, frequenting the club to observe and document illegal gambling activities. These observations led to indictments against several individuals, including the Appellant, and a raid on April 20, 1977, where officers found the Appellant and Julian Watkins engaged in Three Card Monte. Cupp acknowledged that Julian Watkins' testimony was essential for the case against the Appellant, despite the gambling charges being minor offenses that could prevent a person from holding an amusement license. Indictments against the Appellant included charges related to maintaining a gambling premises and assisting in a Three Card Monte game. On May 23, 1977, Julian Watkins was found murdered, having sustained multiple gunshot wounds. Officers Jewell and Swain responded to the crime scene and received a suspect description. The following day, Lieutenant Otis Anderson and Officer Danny Presley stopped Jack Charles Blankenship for suspected DUI, during which they found a loaded firearm in his vehicle. Blankenship, who attempted to bribe the officers, was identified as having recently escaped from prison. Detective Mike Bonham, investigating Watkins' murder, recognized Blankenship from a composite sketch provided by the Watkins children and discovered that the license plate of Blankenship's vehicle had been altered. On May 25, 1977, the Appellant became a suspect in Julian Watkins' murder. Marilyn Lee Pryor, a cashier/cook at The Golden Cue and the Appellant's employee, testified about interactions with the Appellant and Watkins. Pryor learned of Watkins’ law enforcement identity only after he visited the club post-raid. She recalled the Appellant making derogatory comments about Watkins, including a remark about him deserving to be shot. The night before Watkins’ murder, a man resembling Jack Charles Blankenship visited The Golden Cue and later left with the Appellant and Terry Casteel. The Appellant returned alone before dawn and later indicated he and Casteel had business to attend to. The following day, Vice Squad officers visited The Golden Cue seeking the Appellant's whereabouts, prompting Pryor to be subpoenaed. The Appellant called her, advising her not to worry about the subpoena. Casteel and Mary Scivilia later took Pryor to Greenwood, Mississippi, where she informed police of her location. After testifying for the State, the Appellant contacted her, threatening her life for providing a statement. Terry Lee Casteel, who pleaded guilty to Watkins' murder and received a twenty-year sentence, detailed his arrival in Memphis, employment at The Golden Cue, and presence during the police raid that led to the Appellant's arrest. Casteel recounted the Appellant's anger towards Watkins after the raid, voicing concerns about potential legal repercussions. During a conversation at the Appellant's home, they discussed methods for committing an "undetectable murder," with Casteel suggesting a crossbow. Although they discussed acquiring one, no purchase was made. Shortly thereafter, the Appellant learned that Blankenship had escaped from prison. The Appellant visited The Golden Cue and informed Casteel he was meeting someone at Lamar and Pendleton, advising Casteel to inform Joann if he did not return by a certain time. Concerned for his safety, Casteel accompanied the Appellant, who was driving a 1976 Cadillac. Upon arriving at Lamar and Pendleton, they waited in a parking lot until Jack Charles Blankenship arrived. After confirming identities, they returned to The Golden Cue, where the Appellant introduced Casteel as his brother. Following a brief period, the Appellant and Blankenship went to the Appellant’s office while Casteel remained outside. After about thirty minutes, the two men emerged, and Blankenship expressed a need for accommodation. The Appellant suggested that Blankenship could stay in a trailer owned by his wife in Mississippi and instructed Casteel to drive him there. On the way, they stopped for beer but could not locate the trailer. After a call to the Appellant, he arrived with Joann and guided them to the trailer. Once they left Blankenship there, Casteel was awakened by the Appellant the following morning, and they drove back to the trailer. The Appellant then asked Casteel to take Blankenship to a body shop owned by Julian Watkins. After a brief visit to the shop, Blankenship shot Watkins multiple times, killing him. Following the murder, Blankenship returned to the vehicle and reported to the Appellant, expressing satisfaction with the act. The Appellant paid Blankenship $1,000, who then reloaded his gun. Afterward, the Appellant and Casteel returned to The Golden Cue. A few days later, the Appellant advised Casteel to leave town due to being wanted for questioning. Casteel fled to Alabama and later Florida but returned to Memphis after receiving a call from the Appellant’s wife. He was arrested on January 6, 1978, and initially denied any involvement in Watkins' murder. However, after being informed of a lack of evidence against him, he disclosed details of the murder to police. As mitigation, it was presented that co-defendant Terry Casteel pleaded guilty to second-degree murder and received a twenty-year sentence. Levi Haywood testified that Terry Casteel, a fellow inmate at Shelby County Jail, revealed he had been beaten by police for refusing to implicate the Appellant in Julian Watkins' murder. Casteel later admitted to implicating the Appellant to avoid further harm and expressed regret for lying. Haywood noted that inmates recognized Casteel as a "snitch," acknowledging the risks associated with that label, including potential violence or death. James D. Causey, a Shelby County attorney, reviewed the Appellant’s gambling indictments in 1977. He opined that the State’s case was weak, making a conviction for professional gambling unlikely, and stated that if convicted, the Appellant would likely face only a fine. Causey noted that most gambling charges are settled without trials, although a conviction could result in losing a business license. Joann Austin Skelton, the Appellant’s ex-wife, testified about past threats from the Appellant's brother, A.C. Austin, following the murder charges against the Appellant. She recalled no details about the murder itself and clarified that the business license for The Golden Cue was never in the Appellant's name. Gloria Shettles, a private investigator, discussed her work with Terry Casteel's parole file. Casteel was taken into custody on July 6, 1977, and pled guilty in February 1978, serving the required time without early parole. Shettles cited letters from the District Attorney's Office indicating that they would not oppose clemency for Casteel after he served a significant portion of his sentence, noting his cooperation in prosecuting the Appellant and his lesser involvement in Watkins' murder. Troy Bullock, who managed Terminex in Arkansas in 1977, testified about an initial meeting with the Appellant, during which they discussed high-stakes gambling. Shortly after, Casteel contacted Bullock regarding a crossbow, claiming he needed it for "silent hunting," to which Bullock expressed concern over the legality of crossbows. Bullock, after attending a Terminex meeting in Memphis, received a message to contact Jack Charles Blankenship, a childhood acquaintance and escaped convict. Concerned about the implications, Bullock expressed his reluctance to Casteel, stating he had too much at stake and discarded Blankenship's contact information. Casteel, however, indicated he would manage the situation. Brenda Morrison, an inmate relations coordinator at Riverbend Maximum Security Institution, provided testimony regarding the Appellant’s history and living conditions. She noted the Appellant's time at the old Tennessee State Penitentiary, where he faced severe conditions, including extreme temperatures and pest infestations. Despite being placed in administrative segregation for much of his sentence, the Appellant exhibited good behavior and was not a disciplinary issue. In October 1989, the Appellant was transferred to Riverbend, where he became a teacher’s aide, assisting inmates with their GED preparation. Morrison praised the Appellant for his respectful demeanor and dedication to helping others, even during personal tragedies involving the deaths of his father and brother. Charles Tracy, a correctional teacher at Riverbend, corroborated Morrison's account, emphasizing the Appellant's role in delivering lessons and supporting fellow inmates. Additionally, retired correctional officers Hardin Green and John Owen testified about the Appellant's exemplary conduct and his protective actions during a 1985 prison riot, highlighting his positive interactions and reputation among staff. Steve Pickle, a death row inmate, ignited a fire during a riot when inmates from the general population attempted to access death row. He expressed to them that their presence would endanger both officers and inmates, emphasizing their own appeals against the death penalty. Inmates Hardin Green and John Owen credited Pickle with saving their lives and the lives of five officers during the incident. T.J. Walker, who served a life sentence and shared time with Pickle on death row from 1990 to 1998, testified that Pickle was a respected figure who provided assistance and tutoring to fellow inmates, including support for GED preparation. Walker recounted a situation where he contemplated killing another inmate over a gambling debt, but Pickle intervened, demonstrating his role as a peacemaker. Jack Charles Blankenship, who initially denied Pickle's involvement in the murder of Julian Watkins, later recounted that Pickle paid him $980 to commit the crime. After the murder, Blankenship engaged in erratic behavior before being arrested. He ultimately pleaded guilty to premeditated murder and was sentenced to life in prison. Reverend Joseph Ingle, who has known Pickle for nearly 22 years through prison ministry, testified to Pickle's exemplary conduct and respect among inmates, noting that he maintained a high classification level that allowed him to participate in educational programs. Ingle described Pickle as kind and deeply respected for his behavior throughout his time on death row. Blanken ship initially denied the Appellant's involvement in the murder, believing he was being honorable, as he felt a "snitch" could not survive in prison. He noted that the Appellant reduced the contract price for the murder by twenty dollars, having received a case of Schlitz beer from him the prior evening. Testimonies from family members painted a positive picture of the Appellant's character. His great-nephew, Jimmy Edwards Jr., described him as kind and gentle, expressing disbelief over the conviction. The Appellant's stepdaughter, Marcia Birdsong, highlighted his generosity, recounting instances where he helped her elderly grandparents and provided comfort after her husband's death. The Appellant's sister, Midge Edwards, reminisced about their close family ties and the Appellant's affinity for sports and pool, noting his skill in the game. Dr. Mark Cunningham, a clinical and forensic psychologist, evaluated the Appellant's adjustment to prison life and his influence on fellow inmates. He concluded that the Appellant is likely to continue adjusting well to incarceration, with a low risk of violent behavior. Dr. Cunningham's extensive evaluation included direct interviews, intelligence and personality assessments, and a review of prison records. He identified a consistent pattern of positive behavior over the past twenty-two years, with only one disciplinary write-up during that time. On cross-examination, he noted the Appellant's IQ score of 87, classifying it as lower average intelligence. Richard Austin has actively participated in constructive roles while incarcerated, maintaining a close relationship with his family. During a 1986 riot, he intervened to protect staff from rioting inmates, demonstrating a proactive approach rather than inciting violence. He has a history of alerting correctional officers to potential violence, allowing for preventive measures to be taken. His involvement extends to counseling inmates against violence and serving as a GED tutor, positively influencing others. Correctional officers have testified to his beneficial impact on inmate behavior. Dr. Cunningham, who assessed Austin, noted his age (59) and cited statistics indicating that inmates over 60 are unlikely to commit serious violence. The jury was instructed on statutory aggravating factors related to the murder, including motivations of remuneration and avoidance of arrest. They were also directed to consider mitigating factors, such as Austin's positive contributions to prison life and assistance during the riot. After deliberation, the jury concluded that the State proved the aggravating circumstances beyond a reasonable doubt and found that these factors outweighed the mitigating circumstances, resulting in a death sentence for the murder of Julian Watkins. The Appellant filed a "Motion to Disqualify Supreme Court and/or Attorney General" during the re-sentencing hearing in Shelby County Criminal Court, asserting that the Tennessee Supreme Court's appointment of the Attorney General compromises impartiality and violates the separation of powers as outlined in the Tennessee Constitution and relevant statutes. The Appellant also issued subpoenas to various judicial figures, including Supreme Court justices and the Attorney General, which the trial court denied, deeming the motion premature. The Court of Criminal Appeals upheld this denial, emphasizing that none of the subpoenaed individuals were involved at the trial level. The Tennessee Supreme Court later denied the Appellant's application for extraordinary appeal related to this matter. After the death penalty was reimposed, the Appellant sought permission to issue subpoenas and take testimony to demonstrate the alleged political connections between the Tennessee Supreme Court and Attorney General Paul Summers, claiming a due process violation due to lack of impartiality. This motion was also denied on jurisdictional grounds, with the court noting that disqualification claims against the Tennessee Supreme Court must be raised before the challenged judges. The Appellant now contests the previous rulings, arguing that he could have proved the Supreme Court instructed the Attorney General to resign and would not be reappointed. The excerpt reveals that the Court had previously reached a private agreement to appoint Mr. Paul Summers as Attorney General, despite the Supreme Court's public claims of a neutral selection process. This situation indicates a political connection between the Supreme Court and the Attorney General's office. The Appellant's challenge, which raises constitutional concerns about Tennessee’s method for selecting the Attorney General, essentially seeks the recusal of current Justices based on perceived favoritism towards Summers, who is also compared favorably with former Attorney General Walkup. The right to a fair trial before an impartial tribunal is emphasized as a fundamental constitutional right, supported by Article VI.11 of the Tennessee Constitution, which prohibits judges with vested interests in a case from presiding over it. The purpose of this provision is to mitigate potential prejudgment and bias in judicial proceedings. While a judge's decision to recuse is discretionary, motions for recusal must be presented to the justices in question. The Appellant has not yet filed his motion with the Supreme Court but is entitled to do so after the Court accepts his case for review. The accepted practice for seeking disqualification involves filing a motion for recusal accompanied by supporting affidavits of prejudice, although no specific procedural guidelines are explicitly outlined in the Canons or case law. No authority exists for issuing subpoenas or discovery procedures to support a motion to disqualify a judge. Consequently, the Appellant’s request to disqualify the Tennessee Supreme Court justices from reviewing his appeal is denied. The appropriate venue for the Appellant's complaint is the Tennessee Supreme Court. In the jury selection process, the Appellant sought individual voir dire to assess potential jurors' exposure to collateral consequences from the retrial of State v. William Groseclose and Ronald Rickman, which had recently concluded with life sentences. The trial court denied this request, leading the Appellant to argue a violation of his Sixth and Fourteenth Amendment rights to an impartial jury and due process. The standard practice in Tennessee permits collective juror examination, and even in capital cases, individual voir dire is not mandated unless there is a significant possibility of juror exposure to prejudicial information. The trial court maintains discretion in allowing individual juror questioning. In this instance, the trial court took precautions to ensure impartiality, as only one juror was removed for cause due to prior opinions. The defense did not effectively utilize the media coverage of the Groseclose/Rickman case to question jurors about their potential biases related to the Appellant’s re-sentencing. The necessity of individual voir dire in the current case is not warranted due to media coverage of unrelated crimes, as pretrial knowledge does not compel such a procedure. The trial judge's instructions to jurors emphasized that their verdict must be based solely on evidence presented in court, negating concerns about pretrial publicity. The jury is presumed to follow court instructions, and therefore, the trial court did not abuse its discretion in denying individual voir dire. The appellant also claims that he was denied an impartial jury due to the trial court’s decision to excuse certain jurors for cause based on their opposition to the death penalty. The court has the authority to excuse jurors without counsel examination under Tennessee Rule of Criminal Procedure 24(b). The standard for excusing jurors revolves around whether their views would impede their duties as jurors, as established in Wainwright v. Witt. The trial judge must form a "definite impression" that a juror cannot follow the law, and such findings are presumed correct. The appellant carries the burden of proving that the trial court's findings were erroneous. The removals for cause were supported by jurors' explicit refusals to sign a death penalty verdict, highlighting their inability to comply with the legal requirements of juror duty. Several jurors expressed their strong opposition to the death penalty during the voir dire process. Juror Eslahi, Juror Buffaloe, Juror Massey, Juror Brown, Juror Corken, Alternate Juror Brooks, and Alternate Juror Hudson all indicated their inability to impose the death penalty based on personal convictions. Their consistent responses demonstrated a firm stance against capital punishment, leading to their dismissal as jurors in the case. Additionally, the Appellant claimed the trial court erred by not allowing questioning of potential Juror Clothier regarding a recent high-profile homicide case in Jasper, Texas, which involved the dragging death of an African-American man by white supremacists. The Appellant argued that such questioning would have helped assess Juror Clothier's impartiality and ability to render a capital verdict. However, the record indicates that the trial court did not prevent questioning on this case, and Juror Clothier’s position was not explicitly documented in relation to the Jasper case. During jury selection, potential Juror McMillon was excused for similarly refusing to impose the death penalty, reinforcing the standard for juror dismissal when such convictions are present. The legal standards referenced support the trial court's decisions regarding juror qualifications. Juror Clothier expressed uncertainty about being able to sign a verdict for the death penalty, even if the aggravating circumstances outweighed any mitigating evidence. She acknowledged the legal requirement for the death penalty in certain cases but cited her religious beliefs as a barrier to imposing such a sentence. General Henderson emphasized the necessity for all twelve jurors to agree on the verdict and questioned whether Clothier could set aside her personal feelings. Clothier reiterated her doubt, stating she might not be able to sign a death sentence, despite believing it could be justified in specific cases. The court also addressed claims regarding the impartiality of the jurors, specifically mentioning potential Juror Scott, who stated that her decisions are based on the Bible but maintained that her religious beliefs would not influence her judgment in the case. The court clarified that jurors are judges of the facts and can weigh mitigating evidence against aggravating circumstances without a requirement for unanimous agreement on mitigation. A question was raised regarding the possibility of imposing the death penalty in cases similar to the Jasper murder case, where the crime is deemed extremely heinous and no mitigating factors are found. In response, the State objected to the defense's hypothetical scenarios, arguing that if a juror had a close relative murdered, they would be disqualified from serving on the jury. The court intervened during voir dire, asking juror Ms. Clothier if she could consider all forms of punishment, to which she responded affirmatively. However, when asked if she could sign a verdict imposing the death penalty, she replied negatively and was subsequently excused. The court also addressed inquiries related to jurors' religious beliefs, specifically regarding whether such beliefs would influence their decision-making in the case. The State objected to these inquiries, and the court upheld the objection, stating that while general philosophical questions are permissible, inquiries into religious preferences are not. Citing *Morgan v. Illinois*, the appellate argument highlighted that a juror's claim of being guided by the Bible warranted questioning about its potential impact on their verdict. However, the court maintained that the right to question jurors is limited to material and relevant inquiries for the case. The court concluded that it was appropriate to restrict questions about religious beliefs, as a juror had already indicated their beliefs would not affect their judgment. The jury selection process should not require jurors to disclose their religious affiliations or beliefs in detail, thereby preserving the integrity of the voir dire process. The relevance of the Appellant's religious convictions to the case was deemed non-existent, as it did not pertain to the parties or issues at re-sentencing. Any alleged error by the court in limiting voir dire was rendered moot due to the Appellant's use of a peremptory strike against juror Scott and failure to exhaust peremptory challenges. Citing *Ross v. Oklahoma*, the Appellant's challenge to the juror was waived. The Appellant also contested the exclusion of specific hearsay evidence during re-sentencing, arguing that such evidence should not be automatically excluded in capital cases if it establishes or rebuts aggravating circumstances. The relevant legal framework allows for the admission of evidence deemed pertinent to sentencing, including the nature of the crime and the defendant's character, as long as the defendant can respond to any hearsay admitted. Previous Supreme Court rulings underscore that mitigating evidence is crucial in sentencing and must be considered, affirming the importance of the defendant's background and character in determining appropriate sentencing outcomes. Defendants with disadvantaged backgrounds or mental health issues may be deemed less culpable than those without such circumstances, as established in Goad v. State. The relevant sentencing law is determined by the statute in effect at the time of the crime, as highlighted in State v. Brimmer. Evidence related to punishment is admissible, per State v. Teague, but may be excluded if it prejudices the trial's fairness, as noted in State v. Vincent C. Sims. The trial court has discretion over evidence admissibility, which will not be overturned unless there is an abuse of discretion, according to State v. Caughron. During a re-sentencing hearing, Jack Charles Blankenship, who had previously denied the appellant's involvement in a murder, recanted his earlier statements, claiming he wanted to "set the record straight" and implicated the appellant. The defense sought to introduce Blankenship’s earlier deposition as mitigating evidence to show doubt regarding the appellant's involvement. However, the trial court allowed the deposition only for impeachment purposes and instructed the jury that it could not be considered substantive evidence in the case, emphasizing its limited use in the proceedings. A deposition from Jack Charles Blankenship was initially allowed for impeachment purposes only, which the Appellant contests, asserting it should have been admitted as substantive evidence. The State concedes that the trial court erred by limiting the deposition's introduction, as it was relevant to counter the aggravating factor regarding murder for remuneration and to support the Appellant's mitigating evidence of residual doubt. Despite this acknowledgment, the State claims the error was harmless under Tennessee procedural rules. The Appellant argues, referencing *Satterwhite v. Texas*, that the error is not harmless and should be evaluated as a constitutional error, which requires the State to prove beyond a reasonable doubt that the error did not influence the trial's outcome. The legal standards for assessing harmless error differ for constitutional violations, emphasizing that the focus should be on whether the error contributed to the verdict, rather than the sufficiency of legally admitted evidence. The Appellant's claim is supported by precedents indicating that the exclusion of crucial testimony constitutes a violation of the right to a fair trial, necessitating a constitutional harmless error analysis when evidence could undermine the reliability of the sentencing process. The court examined whether the State could prove that the trial court's error in excluding Blankenship's deposition would not have altered the verdict. It concluded that even if the deposition had been admitted, the outcome would remain unchanged because the defense had effectively questioned Blankenship and presented substantial parts of the deposition. Blankenship's prior inconsistent statements were acknowledged, and his long-standing denial of the Appellant’s involvement was emphasized to the jury. Thus, the trial court's limitation on the deposition’s consideration was deemed a harmless error. Regarding the capital sentencing aggravating factor, the State sought to demonstrate that the Appellant commissioned the murder of Julian Watkins to evade gambling prosecution. Officer Cupp testified that Watkins investigated the Appellant for gambling-related charges. The defense sought to introduce a "Request for Indictments" document to show other individuals who might have motives, but the trial court excluded it as hearsay. Although the Appellant argued that the evidence was relevant, the court found the defense's theory too speculative and lacking substantive linkage to the murder, affirming that the trial court did not err in excluding the document. Lastly, during the cross-examination of Terry Casteel, a discussion arose regarding transportation involving a Cadillac, indicating that the inquiry was focused on the details surrounding the vehicle's use in relation to the case. Casteel confirmed he had keys to the automobile in question and had driven it multiple times. He was informed that Richard Austin reported his car stolen to the Memphis Police Department, but this testimony was objected to by General Henderson as hearsay. The court overruled the objection, yet later sustained it, resulting in the exclusion of the testimony. The appellant argued that the trial court's ruling was erroneous, claiming it was vital to rebut the prosecution's theory that Austin hired Casteel and Blankenship to murder Watkins. The appellant contended that if Austin and Casteel were conspiring, Austin would not have reported the car stolen, thus providing essential mitigation evidence. Despite the hearsay ruling, the court determined that any error was harmless, as the jury had already heard Casteel affirm that Austin reported his car stolen, and no curative instruction was provided to disregard this information. Furthermore, the defense did not demonstrate that the vehicle was stolen before the murder or offer proof of such, leading to the conclusion that the exclusion of evidence did not affect the verdict. Additionally, the appellant presented testimony from two former prison guards, Hardin Green and John Owen, regarding the appellant's actions during the 1985 prison riot. They described how he protected guards from rioting inmates, asserting that his intervention saved lives during the uprising. Reverend Joseph Ingle, a minister with a long-standing pastoral relationship with the Appellant, testified regarding the 1985 prison riot, asserting that death row inmates were not involved and that the riot was instigated by general population inmates attempting to free death row inmates. He noted that Lieutenant Owen, a prison guard, had expressed gratitude towards the Appellant. The trial court sustained an objection from the State regarding the relevance of this testimony, determining it was cumulative of prior witness accounts and did not constitute an abuse of discretion. Additionally, Marilyn Lee Pryor testified about statements made by the Appellant following a raid in 1977, including a threat against Julian Watkins. She recounted being questioned by police and later informed the Appellant about her testimony for the State, which led to him making threatening remarks towards her. The Appellant argued that this testimony should not have been admitted under Rule 608(b) of the Tennessee Rules of Evidence, as it did not pertain to his truthfulness. The testimony regarding Mr. Austin's prior threats was deemed highly prejudicial, as it could unduly inflame the jury, with its potential negative impact outweighing its probative value. The Appellant's argument based on the Rules of Evidence was found to be incorrect. During a capital re-sentencing hearing, the court has broad discretion to admit evidence relevant to the punishment, including the nature of the crime, the defendant’s character, and any mitigating or aggravating factors. Evidence of threats made by the accused is typically admissible, as it can either contradict claims of innocence or suggest a consciousness of guilt. The testimony about the Appellant's preference for Ms. Pryor's death over her testimony was considered relevant to challenge the defense's mitigation theory and support residual doubt regarding his guilt. Therefore, this evidence was appropriately admitted. During the re-sentencing hearing, Levi Haywood testified about Terry Casteel's claims of being coerced into testifying against the Appellant. On cross-examination, Haywood admitted to previously omitting details about Casteel being beaten by police. The discussion included the dangers faced by informants (termed "snitches") in jail, where they could face violence, isolation, or worse. The Appellant objected to this testimony as speculative and irrelevant. However, the court maintained that, in capital sentencing hearings, relevant evidence may encompass various factors related to the crime and the defendant, thus allowing Haywood's testimony. Evidence deemed to have probative value regarding punishment may be admitted by the court, irrespective of standard evidentiary rules, as long as the defendant can fairly rebut any hearsay. Under TENN. CODE ANN. 39-2404(c), the State can introduce reliable testimony to counter any mitigating circumstances presented by the defense. In this case, the Appellant attempted to introduce "residual doubt" evidence, arguing that witness Terry Casteel implicated him due to police intimidation. The State responded by presenting evidence about Casteel's motivations, particularly regarding the treatment of informants, which was relevant to understanding Casteel's testimony. The court found no error in this evidentiary ruling. Regarding the Fifth Amendment rights of Jack Charles Blankenship, defense counsel obtained a writ to compel his testimony at the re-sentencing hearing. Upon arrival, Blankenship was advised to assert his Fifth Amendment privilege, which the trial court determined had expired due to the finalization of his conviction, thus compelling him to testify. Blankenship corroborated Casteel's testimony and recanted his prior exculpatory statements. The Appellant argued that this compulsion violated Blankenship's Fifth Amendment rights. However, it was established that a criminal defendant cannot assert a violation of a third party's privilege; only Blankenship could claim such a violation. Therefore, the Appellant lacked standing to contest the alleged infringement of Blankenship's rights, and the court did not need to consider the merits of this claim. "Residual doubt" evidence, defined as a belief that exists between reasonable doubt and absolute certainty of guilt, is admissible in capital re-sentencing hearings when it directly relates to mitigating factors or counters the State's aggravating evidence. Prohibiting evidence regarding the defendant's participation in the crime would significantly hinder the defendant's ability to present evidence that contradicts or explains aggravating circumstances. The admissibility of evidence hinges not on whether it proves the defendant's guilt but on its relevance to the crime's circumstances or aggravating/mitigating factors. In *State v. Nesbit*, the Tennessee Supreme Court determined that victim impact evidence is constitutionally permissible but not without limitations. Such evidence cannot be admitted if it is excessively prejudicial or if its probative value is outweighed by its prejudicial effect. Procedurally, the State must notify the trial court of its intention to present victim impact evidence, which must be assessed in a pre-trial hearing outside the jury’s presence, ensuring that evidence of aggravating circumstances is already established in the record. During the re-sentencing hearing, the State presented testimonies from the victim’s family, detailing the emotional loss caused by Julian Watkins' murder. The Appellant contested the admission of this victim impact evidence on two grounds: it posed a risk of undue prejudice, and the trial court failed to adhere to procedural requirements as outlined in *Nesbit*. Specifically, the Appellant argued that allowing Carolyn Watkins-Cupp, the victim's wife, to testify first violated the prerequisite that evidence of aggravating circumstances must be present beforehand. Additionally, the Appellant claimed errors in the prosecutor’s closing arguments regarding the function of victim impact evidence. The challenge to the admission of victim impact testimony focused solely on the testimonies of Carolyn Watkins-Cupp and Steve Watkins, with Carolyn recounting her marriage to Julian and their three children. Ms. Watkins-Cupp described the profound impact of her husband’s death on their family, noting that her children struggled to comprehend his absence and that his passing necessitated the closure of their business. Steve Watkins, the victim's youngest son, testified that his father's death created a significant void in his life, expressing that it is a daily reminder of loss. The victim impact testimony focused on the victim’s role as a father and husband, detailing the emotional and financial repercussions for the immediate family, which aligns with established legal precedents. The court recognized that the devastating nature of losing a loved one is self-evident and dismissed claims that Steve Watkins' testimony was merely repetitive or excessively prejudicial, as it provided unique insight into the family’s grief. The State properly informed the trial court of its intent to present victim impact evidence, conducting pretrial hearings to assess its admissibility. Although there was no proof of aggravating circumstances prior to Ms. Watkins-Cupp's testimony, the court deemed this omission harmless, as her testimony was essential for establishing the context of her husband’s murder. The trial court's decision to allow her to testify first, after a jury-out hearing, was justified to promote judicial efficiency, and the ruling was not considered reversible error. The court determined that Carolyn Watkins-Cupp's testimony, presented without prior evidence of an aggravator, did not render the capital sentencing process fundamentally unfair, deeming any error harmless under Tennessee Rule of Criminal Procedure 52(a). The Appellant argued that the prosecutor improperly instructed the jury on weighing victim impact evidence against mitigation evidence, violating the precedent set in State v. Nesbit, which clarified that victim impact evidence should not be treated as an aggravating factor. The prosecutor's closing argument emphasized the necessity of considering the crime's impact without explicitly instructing the jury to balance victim impact against mitigation evidence. The court found no indication that the prosecutor's comments prejudiced the sentencing outcome and ruled the claim without merit. Additionally, the Appellant alleged prosecutorial misconduct for arguing a false motive regarding his need for an amusement license to kill Watkins, noting that he never held such a license, yet the court did not find evidence of misconduct in this regard either. The Appellant's failure to object contemporaneously to the prosecutor's statements during closing arguments is pivotal, as established by case law, leading to a waiver of the issue on appeal. The court cites multiple precedents indicating that without a timely objection, the argument cannot be revisited. Additionally, the Appellant contends that the trial court violated constitutional rights by not instructing the jury to consider the sentences of co-defendants Terry Casteel and Jack Charles Blankenship as non-statutory mitigating factors. The trial court declined this request, reasoning that under the statutory framework for accessories before the fact, the sentence could vary significantly, and thus it was inappropriate to include information about co-defendants' sentences. The Appellant argues that the sentences of equally culpable defendants should indeed be considered as mitigating factors, referencing the Tennessee Supreme Court's ruling in State v. Odom, which allows for such consideration under certain circumstances. However, the Odom case clarifies that while trial courts must instruct juries on mitigating circumstances, there is no constitutional mandate to include non-statutory mitigating factors, especially under the sentencing law applicable at the time of the Appellant's offense in 1977. Consequently, the trial court's decision aligns with the legal standards of the era, which did not require the jury to be instructed on non-statutory mitigating circumstances. Tennessee Code Annotated § 39-2407 mandates that individuals convicted as accessories before the fact of first-degree murder face punishment of either life imprisonment or death, independent of the principal's conviction or sentence. § 39-2404(e) requires that, following closing arguments in a sentencing hearing, the judge instructs the jury to consider both mitigating and statutory aggravating circumstances based on evidence presented. The court found no error in declining to instruct the jury on the sentences of the appellant’s co-defendants, as such instruction is not required by statute or constitutionally. The appellant claimed entitlement to jury instruction regarding life imprisonment without the possibility of parole, introduced by a 1993 amendment. Although the appellant's offense occurred before this amendment, he argued that his remand sentencing hearing, conducted post-amendment, warranted the instruction. He raised several points: the absence of a life without parole option undermines a reasoned decision for death sentences; it violates evolving standards of decency; it constitutes excessive punishment if juries must impose death to prevent future crimes; and it infringes on equal protection rights. The analysis of mitigating circumstances related to co-defendant sentences, while acknowledged, was deemed unnecessary for the decision at hand. A mitigating factor in capital punishment cases is that if another equally culpable defendant is not sentenced to death, it may influence sentencing decisions (18 U.S.C.S. 3592(a)(4)). The Appellant's arguments regarding this matter were previously dismissed by the supreme court in State v. Keen. The court is bound by this precedent and finds the claim without merit. During jury deliberations, the jury inquired about the length of a life sentence and the potential for parole. The trial judge, limited in response after deliberations had begun, stated he could not answer due to existing legal instructions. The jury resumed deliberations and rendered a death verdict afterward. The Appellant contends that the trial court’s failure to address the jury's question violated constitutional rights, referencing Simmons v. South Carolina. However, the supreme court previously ruled in State v. Bush that the trial court's instruction to the jury was appropriate, asserting that in capital cases, parole eligibility is not an issue unless future dangerousness is questioned. The court reiterated that Tennessee law allows parole for life sentences, thus negating the need for jury instruction on parole availability. Furthermore, the court recognized a 1993 law allowing for life sentences without parole and required jurors to be informed about a minimum of twenty-five years before parole eligibility for life sentences. Jurors must be informed that a defendant sentenced to imprisonment cannot be eligible for parole. The Appellant, guilty of being an accessory before the fact to first-degree murder, challenges the constitutionality of the aggravating factor (i)(4), which pertains to committing murder for remuneration. The Appellant argues that the evidence used for his conviction overlaps with that which supports the (i)(4) aggravating factor, thus failing to achieve the necessary constitutional narrowing of death-eligible defendants as mandated by precedents such as *Zant v. Stephens* and *State v. Middlebrooks*. The Appellant contends that the duplication of evidence undermines the Eighth Amendment's requirement for distinguishing among murderers. The State acknowledges a prior rejection of this issue in the Appellant’s fourth post-conviction petition but suggests that the same analysis should apply here, despite not being the "law of the case." In response, the Appellant argues that the court incorrectly applied the decision in *State v. Stephenson*, as it was based on different statutory grounds than those applicable in this case. After reassessing the legal issue, the court maintains that its previous rationale remains valid. In the case of *State v. Stephenson*, the defendant was convicted of first-degree murder for hiring another individual to kill his wife. His conviction relied on the criminal responsibility statute, which holds individuals accountable for the actions of others when they intend to assist or benefit from the crime. The death sentence was based on the aggravating factor of committing murder for remuneration. The defendant argued that the necessary constitutional narrowing of death-eligible offenders was not achieved due to overlapping facts supporting both his conviction and the death sentence. However, the court refuted this claim, emphasizing that first-degree premeditated murder is defined as an intentional and deliberate act, and that the aggravating circumstance of hiring someone to commit murder does not duplicate the elements of the offense. The court concluded that this aggravating factor effectively narrows the pool of death-eligible defendants, as not all individuals convicted under the criminal responsibility statute would fit this specific circumstance. Furthermore, the decision referenced *Richard H. Austin v. State*, noting that even when a conviction is based on being an accessory before the fact, the aggravating factor still satisfies the constitutional requirement for narrowing death eligibility. Consequently, the appellant's claim for relief was denied, and the court also addressed the propriety of not imposing a life sentence due to a twenty-year delay. The Appellant contends that a delay exceeding twenty years in executing the death penalty undermines the justification for the sentence, arguing that carrying it out now would violate the Eighth Amendment and the Tennessee Constitution's prohibition against cruel and unusual punishment. The Appellant references the U.S. Supreme Court's refusal to review the related case of Lackey v. Texas, which addressed the implications of prolonged delays on the death penalty's purposes of retribution and deterrence. The Appellant's claim, previously raised in a federal habeas corpus petition, was dismissed by the District Court for the Middle District of Tennessee, which found it not to present a valid federal claim but still addressed the issue substantively. The court noted that under the law at the time of the offense, an accessory before the fact was treated as a principal offender. Although the law has since changed with the repeal of certain statutes, the aggravating circumstance identified by the jury in the Petitioner’s case was deemed sufficient to narrow the class of death-eligible defendants. Justice Stevens, in his separate memorandum from the Lackey case, expressed concern about the effects of execution delays on the death penalty's intended social purposes and suggested that the issue warrants further examination by lower courts. The matter arose again in Knight v. Florida, where Justice Thomas also voiced his thoughts during a denial of certiorari. A defendant in capital cases cannot claim a violation of rights due to execution delays after utilizing various appellate and collateral procedures. Accepting the death penalty system implies acceptance of the inherent delays that come with it. Justice Thomas emphasizes that lower courts have consistently dismissed claims alleging that execution delays constitute a constitutional violation, reiterating that these claims are meritless. Specifically, the delay is often a result of the defendant's numerous appeals, not an intention to prolong suffering. The constitutionality of Tennessee’s death penalty statutes is upheld, as they effectively narrow the class of death-eligible defendants and ensure that the death penalty is not imposed arbitrarily or capriciously, with checks on prosecutorial discretion. Previous case law supports these assertions, reinforcing the legitimacy of the state's death penalty framework. The death penalty is administered without discrimination based on economics, race, geography, or gender, as established in various case law. Jury selection procedures ensure open inquiry into potentially prejudicial subjects. The death qualification process does not bias the jury composition towards a prosecution-friendly outcome. Defendants can address jurors' misconceptions about sentencing matters, including the costs of incarceration versus execution. There is no constitutional issue with requiring unanimous jury agreement to impose a life sentence or with the lack of explanation regarding non-unanimous verdicts. The requirement for jury unanimity in sentencing does not conflict with established precedents. The jury must determine if death is the appropriate penalty, and defendants are not denied closing arguments during the penalty phase. The appellate review process for death penalty cases is constitutionally sufficient, although comparative proportionality review is not mandated. The court must evaluate if the death sentence is disproportionate compared to similar cases, considering that similarity in circumstances does not automatically imply disproportionality. The appellate court's responsibility is to ensure that no arbitrary death sentences are upheld, rather than guaranteeing that a less severe sentence was never imposed in similar cases. The review begins with the presumption that a death sentence is proportionate to first-degree murder. Key factors for comparison in similar cases include: 1) means and manner of death; 2) motivation for the killing; 3) location of the crime; 4) victim’s circumstances (age, physical and mental condition, treatment during the killing); 5) provocation; 6) justification; and 7) injuries to non-decedent victims. Regarding the defendant’s characteristics, considerations include prior criminal record, age, race, gender, role in the murder, cooperation with authorities, remorse, knowledge of the victim's helplessness, and capacity for rehabilitation. The review selects cases from capital sentencing hearings to determine appropriate sentences. The Appellant's claim of disproportionality based on lesser sentences for co-defendants is rejected, as is reliance on a historical case regarding the punishment of accessories, which is no longer applicable under Tennessee law. The murder victim, a reserve deputy sheriff, was killed after agreeing to work undercover to expose illegal gambling. The Appellant arranged for the murder by hiring an escaped convict, who, under the guise of a customer, shot the victim outside his workplace. The murder was premeditated, and the Appellant had no prior criminal history. No evidence indicates mental or emotional impairment of the Appellant at the time of the murder. Mitigating evidence highlights his positive contributions to the prison community during incarceration. Despite his claim of a minor role, the Appellant's actions were crucial to the murder's execution, which would not have occurred without his planning. He has not cooperated with authorities and shows no remorse for the victim, Julian Watkins. A psychologist’s testimony regarding the low likelihood of violence from older inmates does not diminish the severity of the murder circumstances or exempt the Appellant from death penalty eligibility. Comparative analysis with other first-degree murder cases shows that the death penalty applied here is consistent and proportionate. The excerpt cites multiple cases where the death penalty was affirmed based on similar aggravating factors. The presence of only one aggravating factor has been deemed sufficient for proportionality in previous cases. The court concludes that the death sentence was not imposed arbitrarily, that sufficient evidence supports the aggravating circumstances, and that these outweigh any mitigating factors beyond a reasonable doubt. Consequently, the court affirms the death sentence, finding it neither excessive nor disproportionate in relation to similar cases.