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State v. Thomas2/27/2004
urt then asked the parties to approach the bench, at which time the State renewed its challenge for cause. After considering argument by counsel for Defendant Thomas, the trial court excused Prospective Juror Pannell for cause, finding:
I think that his responses, in their totality - he, at best, has given some sort of qualified statement that he could, under his own perceived limited circumstances follow the law; and under the law, that's not good enough. He conceded that if the state proved what they were required to prove under the statute but it didn't meet his self-appointed criteria, then he couldn't go forward and follow the law. And I don't think that's what our system requires of a juror. And I - that's just the way he feels, and that's fine; but I'll note your exception. I'm going to go ahead and excuse him.
In determining when a prospective juror may be excused for cause because of his or her views on the death penalty, the standard is whether the juror's views would prevent or substantially impair the performance of his or her duties as a juror in accordance with his or her instructions and his or her oath. See State v. Austin, 87 S.W.3d 447, 472-73 (Tenn. 2002), cert. den. 71 USLW 3679, 123 S.Ct. 1899 (2003), (citing Wainwright v. Witt, 469 U.S. 412, 424, 105 S. Ct. 844, 852 (1985)). Moreover, this standard does not require that a juror's biases be proved with "unmistakable clarity." See id. at 473. However, the trial judge must have the definite impression that a prospective juror could not follow the law. See Hutchison, 898 S.W.2d at 167 (citing Wainwright v. Witt, 469 U.S. at 425-26, 105 S. Ct. at 853). Finally, the trial court's finding of bias of a juror because of his or her views concerning the death penalty are accorded a presumption of correctness, and the defendant must establish by convincing evidence that the trial court's determination was erroneous before an appellate court will overturn that decision. See State v. Alley, 776 S.W.2d 506, 518 (Tenn. 1989), cert. denied, 493 U.S. 1036, 110 S. Ct. 1758 (1990).
After reviewing the answers of Prospective Juror Pannell, we conclude that his answers left no leeway for rehabilitation. See State v. Strouth, 620 S.W.2d 467, 471 (Tenn. 1981), cert. denied, 455 U.S. 983, 102 S. Ct. 1491 (1982). Both the trial court and the prosecutor extensively questioned this prospective juror as to whether he could apply the law to the evidence and consider all forms of punishment in this case. Juror Pannell was consistent in responding that he would not impose the death penalty unless his own criteria were satisfied. This prospective juror met the standard for dismissal. See Hutchison, 898 S.W.2d at 167. We see no error.
V. Photographs of Victim
A. Photograph of Victim While Alive
Defendant Thomas submits that it was error for the trial court to permit introduction of a photograph of the victim while alive. At trial, defense counsel objected to introduction of the photograph. The photograph was taken after the April 1997 shooting but prior to the victim's death in October 1999. The trial court overruled the objection stating:
I think it's, first of all, relevant in that the state, of course, has the burden of proving that an individual - a living, breathing, human being was killed in these events. And the photograph, itself, is again, a very neutral one. It's black and white. It doesn't have family members around. He's not in a choir robe or a scout uniform or military uniform or anything of that sort. This is a very neutral sort of photograph - no wheelchair - nothing that would be designed to elicit sympathy . . . . I'll allow it to
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