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State v. Thomas2/27/2004
>(7) Any proof that shows that he has family members that will provide him with love and support while in prison.
(8) Any proof that, although he is in jail, he provides love and support to other members of his family.
(9) Any positive relationship that he had with other adults and children.
(10) Any other mitigating factor which is raised by the evidence produced by either the prosecution or defense at either the guilt 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.
The charge reveals that five out of the eight requested instructions were provided to the jury. The factors not specifically included in the charge are: (1) residual doubt, (2) the family's inability to feed itself, and (3) the Defendant's regret for past acts.
With respect to the first of these factors, the Eighth Amendment of the United States Constitution does not require a lingering or residual doubt instruction. See Franklin v. Lynaugh, 487 U.S. 164, 173-74, 108 S. Ct. 2320, 2326-28 (1988). In Franklin, the United States Supreme Court stated:
Our decisions mandating jury consideration of mitigating circumstances provide no support for petitioner's claim because "residual doubt" about guilt is not a mitigating circumstance. We have defined mitigating circumstances as facts about the defendant's character or background, or the circumstances of the particular offense, that may call for a penalty less than death. "Residual doubt" is not a fact about the defendant or the circumstances of the crime. It is instead a lingering uncertainty about facts, a state of mind that exists somewhere between "beyond a reasonable doubt" and "absolute certainty." . . . Nothing in our cases mandates the imposition of this heightened burden of proof at capital sentencing.
Id. at 188 (O'Connor, J., concurring) (citations omitted). See also State v. Bigbee, 885 S.W.2d 797, 813 (Tenn. 1994). Accordingly, the trial court did not commit a federal constitutional error in denying Defendant Thomas' request for an instruction on lingering or residual doubt.
Defendant Thomas argues that the trial court was required to grant his request for this instruction under state law. Our supreme court has determined that residual doubt is a nonstatuory mitigating circumstance. See State v. McKinney, 74 S.W.3d 291, 307 (Tenn. 2002); State v.Hartman, 42 S.W.3d 44, 55-56 (Tenn. 2001). Our criminal code provides, in relevant part, that
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).
Tenn. Code Ann. ยง 39-13-204(e)(1). Thus, where the issue of residual doubt is raised by the evidence, a jury instruction is appropriate. See State v. Odom, 928 S.W.2d 18, 30 (Tenn. 1996). Such evidence "may consist of proof . . . that indicates the defendant did not commit the offense, notwithstanding the jury's verdict following the guilt phase." McKinney, 74 S.W.3d at 307. In this case, Defendant Thomas testified that he did not commit the murder of James Day. Therefore, the trial court should have provided the jury an instruction on residual doubt.
Our supreme court has concluded that a convicted defendant's right to have t
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