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State v. Thomas2/27/2004
he 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. See State v. Hodges, 944 S.W.2d 346, 351-52 (Tenn.), cert. den. 522 U.S. 999, 118 S.Ct. 567 (1997). "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. at 352. However, if "by their breadth, the instructions on non-statutory mitigating circumstances encompassed all the evidence presented by the defense," the omission of an instruction on a specific mitigating circumstance is harmless. Id. at 356.
Here, the trial court instructed the jury to consider "any aspect of the circumstances of the offense favorable to the defendant which is supported by the evidence." This broad instruction encompassed Defendant Thomas' denial of guilt and served to give the jury the opportunity and duty to consider any residual doubts about his culpability. Accordingly, we are confident that the trial court's failure to give a specific instruction on residual doubt had no effect on the jury's verdict, and Defendant Thomas is therefore entitled to no relief on this claim.
With regard to Defendant Thomas' regret for past acts and his family members' alleged inability to feed themselves, the trial court found that the testimony did not demonstrate regret for past acts. Rather, Defendant Thomas' mother testified that he had apologized for bringing his family down. Additionally, when asked whether Thomas had ever spoken of bringing down Faye Day's family, Ms. Barber responded, "The only thing - he told me that he was charged with this armored driver and that a man died from it." The trial judge concluded, "I don't even really remember any - any statements by the mother that he's shown any real regret for any past acts. . . . I didn't hear any inkling of remorse about any of those [prior aggravated robbery convictions]." Regarding the fact that his family members are unable to feed themselves, the trial court found there was no proof to support this instruction. Accordingly, these circumstances were not raised by the proof and the trial court did not err by failing to so instruct. Even assuming error, any such error was harmless given that the trial court did provide the jury with the catch-all instruction as to mitigating circumstances. It is clear that the trial court's refusal to instruct the jury as to Defendant Thomas' alleged regret for past acts and his family members' alleged inability to feed themselves did not result in an instruction that failed to fairly submit the legal issues or misled the jury as to the applicable law. Defendant Thomas is not entitled to relief on this claim.
XIII. Improper Cross-Examination of Defendant's Mother
During the penalty phase of the trial, the State sought to cross-examine Defendant Thomas' mother, Luella Barber, regarding a disciplinary write-up he received while in jail. The trial court permitted the questioning, finding, "I think that's appropriate because that has a direct bearing on what she's testified to with regard to him being a good person or whatever. . . . I'll allow you to ask about the jail incident." The State proceeded with the following questioning of Luella Barber:
Q: Okay. Are you aware of an incident that occurred in the jail back on June 7th of 2001 of this year?
A: An incident -
Q: Involving Andrew Thomas?
A: No, I'm not.
Q: Where he was part of a strip search
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 Tennessee Personal Injury Attorneys
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