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State v. Henderson3/7/2001
he Branam murder into evidence in order to establish the identity of Griffin's killers, the trial court should not have allowed the State to introduce Appellants' convictions for the Branam murder during the sentencing phase of trial in order to establish the aggravating circumstance that Appellants had previously been convicted of a felony involving violence to the person. As authority for this proposition, Appellants cite State v. Bigbee, 885 S.W.2d 797 (Tenn. 1994), in which the Tennessee Supreme Court held that when the State is seeking imposition of a death sentence on the basis that the defendant has previously been convicted of a felony involving violence to the person, the State may not introduce evidence about the specific facts of the prior crime during the sentencing phase when the conviction shows on its face that it involved violence to the person. Id. at 811.
We conclude that Appellants' reliance on Bigbee is misplaced. Nothing in Bigbee prevents the State from relying on a previous conviction for a felony involving violence to the person as an aggravating circumstance after the State has introduced the facts of the prior conviction during the guilt phase of trial in order to establish an element of first degree murder. Rather, Bigbee simply precludes the State from introducing the specific facts of the prior offense during the sentencing phase itself. Indeed, the State fully complied with this requirement. The record indicates that the State introduced no evidence about the specific facts of the Branam murder during the sentencing phase and the prosecutors made no mention of the specific facts during their closing arguments. Instead, the State merely used Appellants' convictions to establish that Dellinger had one prior conviction for felonies involving violence against the person and that Sutton had two prior convictions for a felony involving violence to the person. Further, the trial court instructed the jury that in imposing sentence, it could only consider "any of the statutory aggravating circumstances which have been raised during the sentencing phase" and that it "shall not take account of any other aggravating facts or circumstances as the basis for deciding whether the death penalty would be appropriate in this case." The jury is presumed to have followed those instructions. See State v. Nesbit, 978 S.W.2d 872, 885 (Tenn. 1998). Under these circumstances, we conclude that the trial court did not err when it allowed the State to introduce Appellants' convictions for the Branam murder during the sentencing phase. This issue has no merit.
XXV. THE STATE'S CLOSING ARGUMENT DURING THE SENTENCING PHASE
Appellants contend that the State's closing argument during the sentencing phase was improper and prejudicial. We disagree.
Initially, we note that the record indicates that Appellants did not make a single objection to anything that either of the two prosecutors said during their closing arguments during the sentencing phase. By failing to make a contemporaneous objection, Appellants waived this issue. Farmer, 927 S.W.2d at 591); Tenn. R. App. P. 36(a). However, notwithstanding waiver, we conclude that Appellants are not entitled to relief even on the merits.
Essentially, Appellants claim that the closing arguments of both prosecutors were improper because they included references to the fact that each Appellant had been previously convicted of first-degree murders. As support for this proposition, Appellants cite State v. Smith, 755 S.W.2d 757 (Tenn. 1988) and State v. Bigbee, 885 S.W.2d 797 (Tenn. 1994). However, Smith and Bigbee are clearly distinguishable from this case. In Smith, the Tennessee Supreme Court held that because the ju
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