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State v. Henderson3/7/2001
hrases out of context." 942 S.W.2d at 521. It is absolutely obvious that when the phrase "let the mind rest easily" is considered in context, it is referring to the jury's determination, based on a consideration of all the evidence, that the State has satisfied its burden of establishing the existence of the aggravating circumstance and establishing that the aggravating circumstance outweighs the mitigating circumstances beyond a reasonable doubt. In short, the trial court's instruction on reasonable doubt properly reflects the evidentiary certainty required by principles of due process. This issue has no merit.
XXX. FAILURE TO INSTRUCT THE JURY THAT APPELLANTS ARE HUMAN BEINGS
Appellants contend that their death sentences must be vacated because the trial court failed to instruct the jury that Appellants are human beings and that the jury can consider that fact as a mitigating circumstance. We disagree.
In support of their argument that their death sentences must be vacated because the trial court failed to instruct the jury that they are human beings, Appellants cite Tennessee Code Annotated section 39- 13-204, which states in relevant part,
The trial judge shall also include in the instructions for the jury to weigh and consider any mitigating circumstances raised by the evidence at either the guilt or sentencing hearing, or both, which shall include, but not be limited to, those circumstances set forth in subsection (j). No distinction shall be made between mitigating circumstances as set forth in subsection (j) and those otherwise raised by the evidence which are specifically requested by either the state or the defense to be instructed to the jury. These instructions and the manner of arriving at a sentence shall be given in the oral charge and in writing to the jury for its deliberations. Tenn. Code Ann. § 39-13-204(e)(1) (1991).
Appellants argue that because the fact that they are human beings was raised by the evidence, the trial court was required to grant their request to instruct the jury that Appellants are human beings.
The Tennessee Supreme Court has held that the above statute requires a trial court to "instruct the jury on non-statutory mitigating circumstances when raised by the evidence and specifically requested by either the State or the defendant." State v. Odom, 928 S.W.2d 18, 30 (Tenn. 1996). However, the supreme court has also stated that the right to have the jury instructed on non-statutory mitigating circumstances is statutory rather than constitutional in nature and thus, the failure to instruct the jury on non-statutory mitigating circumstances when raised by the evidence is subject to harmless error analysis. State v. Hodges, 944 S.W.2d 346, 351-52 (Tenn. 1997). The supreme court also stated that "in determining whether instructions are erroneous, this Court must review the charge in its entirety and read it as a whole." Id. at 352. "A charge should be considered prejudicially erroneous if it fails to fairly submit the legal issues or if it misleads the jury as to the applicable law." Id. Compare, Brimmer v. State, 29 S.W.3d 497, 520-21 (Tenn. Crim. App. 1998).
Assuming arguendo that the trial court erred when it failed to instruct the jury about the obvious fact that Appellants are human beings, it is absolutely clear that any such error was harmless. The record indicates that the trial court instructed the jury to consider, but not limit its consideration, to twenty mitigating circumstances for Appellant Dellinger and fourteen mitigating circumstances for Appellant Sutton. The trial court then instructed the jury that it could also consider
Any other mitigating factor which is ra
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