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State v. Henderson3/7/2001
ised by the evidence produced by either the prosecution or defense at either the guilty or sentencing hearing; that is, you shall consider any aspect of the defendant's character or record, or any aspect of the circumstances of the offense favorable to the defendant which is supported by the evidence.
No distinction shall be made between mitigating circumstances listed above and other mitigating circumstances raised by the evidence although not specifically listed.
It is clear that the trial court's failure to instruct the jury that Appellants are human beings did not result in an instruction that "fails to fairly submit the legal issues" or "misleads the jury as to the applicable law." Clearly, the trial court's instruction did not prevent the jury from considering the obvious and readily apparent fact that Appellants are human beings. Indeed, the instruction expressly informed the jury that it could consider anything to be a mitigating circumstance if it was raised by the evidence. Further, the very nature of every one of the specific mitigating circumstances that were listed necessarily encompassed the fact that Appellants are human beings. In short, we conclude that even if the trial court erred when it failed to instruct the jury that Appellants are human beings, it is absolutely clear that any such error was harmless. See Tenn. R. Crim. P. 52(a). This issue has no merit.
XXXI. FAILURE TO ANSWER THE JURY'S QUESTION
Appellants contend that the trial court erred when it failed to answer the jury's question about whether life sentences in this case would run concurrently with or consecutively to life sentences imposed for the Sevier County first degree murder convictions. We disagree.
At some point during deliberations in the sentencing phase, the jury submitted the following written question to the trial court:
If James Dellinger and Gary Sutton were given life in prison from Sevier County and they are given life in prison in Blount County-will the prison terms be consecutive and/or concurrent.
The trial court gave the following written response: "You should concern yourself with the sentences in these cases only."
Appellants have cited no authority for their proposition, and we conclude that the trial court acted properly. In State v. Smith, 857 S.W.2d 1 (Tenn. 1993), the Tennessee Supreme Court held that the trial court acted properly when it refused to answer the following questions from the jury:
(1) Define life sentence;
(2) Define consecutive and concurrent life terms and which would apply if a second life sentence was given;
(3) When would parole apply. Id. at 10-11.
The supreme court stated that the trial court's refusal to answer the questions was proper because providing a jury with this sort of information could result in death sentences that are based on sheer speculation and on factors other than those enumerated in the governing statutes. Id. at 11. Similarly, if the trial court had answered the jury's question in this case, this could have encouraged the jury to base its decision on whether to impose death sentences on speculation about what may happen in the future rather than on the factors delineated by the death penalty statutes. Thus, we conclude that under Smith, the trial court properly refused to answer the jury's question. This issue has no merit.
XXXII. WHETHER THE AGGRAVATING FACTOR APPLIED BY THE JURY IS A DUPLICATION OF THE CRIME
Appellants contend that their death sentences are unconstitutional because the aggravating circumstance applied by the jury is a duplication of the offence for which
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