State v. Black

Accordingly, that the Chan- initial diversions which violated the stat- we conclude judgment of know- question. ouster based on utes in cellor’s ing under or willful misconduct Tenn.Code case, of this find view the facts we fully supported by Ann. 8-47-101 is no in the the defendant raises merit issues findings jury the defendant (i.e. appeal regarding good on this his faith misapplied public knowingly willingly have instructed should been required and failed to financial funds make good to into account his faith and that take reports County to the Claiborne Commis- concerning his questions good faith should found, Having pretermit the sion. so we jury). to have submitted been litiga- regarding rights civil issues raised against in Dis- tion defendant Federal OTHER ERRORS trict Court. The defendant insists that Chan judgment is Chancery Court cellor other errors which affect committed affirmed, and this cause remanded. First, ed of the trial. the outcome to appeal of this taxed the defen- Costs are contends that the Chancellor defendant dant. excluding in evidence that the ouster erred politically oth case was motivated DROWOTA, REID, C.J., and O’BRIEN public in had County er officials Claiborne DAUGHTREY, JJ., concur. committed acts of misconduct similar those the defendant. Such committed purposes

evidence is irrelevant for of as sessing application of Ann. Tenn.Code 8-47-101 the defendant. We conclude excluding in properly the Chancellor acted the evidence.

Second, defendant contends that permitting the Chancellor erred James Tennessee, Appellee, STATE III, County Estep, D. the Claiborne attor plaintiff in ney, prosecuting act as BLACK, Byron Defendant- Lewis rep simultaneously when he was case Appellant. resenting litigation. the defendant in other Estep participation litigation in this Tennessee, Supreme little, any, if more than the amounted at Nashville. (county attorney), as is use of title Aug. 1991. Ann. 8- appropriate under Tenn.Code §§ Moreover, and 8-47-110. as was Chancellor, evi by the there no found any way

dence that the defendant was prejudiced by Estep’s participation in this

litigation.

Finally, find no merit the de we objection ac Chancellor’s fendant’s persons excluding jury panel from the tion employees the Claiborne who were and members of the County system school employees. families of such immediate appropriate an effort This exclusion was jury, no and there is to obtain unbiased the defendant was evidence jury selection prejudiced manner process. Burson, Atty.

Charles W. Gen. and Re- Hammond, porter, Atty. Linda Ann Asst. Gen., Smith, Gen., Jerry Deputy Atty. L. Barnard, Blackburn, Weakley Cheryl E. Gen., Attys. appellee. Asst. for Dist. Alderman, McNally, Ross E. Patrick T. DeVasher, Jeffrey A. Sr. De- Asst. Public fenders, defendant-appellant. Capital Case Resource Center of Tennes- see, Inc., Redick, Jr., Director, William P. amicus curiae. Attys.

Tennessee Dist. General Confer- ence, Bonds, George R. Secre- Executive tary, amicus curiae.

OPINION

DROWOTA, Justice. The Defendant raises issues in numerous appeal, including his direct whether Monday, March 1988. The Penalty hours of Tennessee Death Statute violates Today a ma- bodies of the three victims were found the Tennessee Constitution. Monday evening jority upholds p.m. the constitu- around 9:30 At the of this Court murders, Penalty on tionality of the Death Statute time of Defendant was Feder- furlough Metropolitan Tennessee under both the State and from the weekend majority A the Court County. al Constitutions. in Davidson The De- Workhouse also, sentence, two-year after a careful entire serving review fendant was record, sen- affirms the convictions and the shooting, pleading guilty to malicious after Two members of this tence of death. felony. holding major- Court concur with the challenges the suffi- Since the Defendant affirmed, guilt ity the verdict of but evidence, ciency convicting we shall they would the sentence reverse presented at trial. summarize the evidence sentencing hearing. a new remand for Ange- boyfriend of The Defendant was the remand, dissenting jus- part As of that Clay, hus- separated who had from her la oppor- Defendant the tices would allow the band, her Clay, year before Bennie about tunity present evidence to the Court Clay was the father Lato- death. Bennie electrocution as a means allegation Clay ya and Lakeisha. Bennie testified imposing penalty is the death cruel death, Angela he Clay’s time of of Article punishment unusual violation reconcile, Angela attempting to I, the Tennessee Constitution. Section the Defendant was an obstacle but dissenting justices not reach The two do He further testified reconciliation. constitutionality of the the issue of the relationship the De- Angela began a Penalty Tennessee Death Statute. separation and that at after their fendant Defendant, Black, Byron was The Lewis seeing both the Defendant times she was Angela triple of murders of convicted December, 1986, the De- and himself. daughters, Lato- Clay, age and her two Clay had altercation and Bennie fendant Lakeisha, age ya, age 6. He re- and during dispute Angela. As Bennie a over of ceived life sentences for murders car, Defen- returning to his Clay was indictment) Angela Clay (Count ofOne car, him. One shot hit the shot at dant (Count the indict- Latoya Clay and Three of foot, right Clay in another hit ment) to death for the and was sentenced left hit him in the back his another shot (Count Clay Two murder of Lakeisha through his left The bullet that went arm.

indictment). aggravat- The found six Clay lodged bone. arm under collar ing circumstances.1 running up the he started testified that him, con- tragic the Defendant chased street and appears these bizarre and It finally tinuing Clay unable morning to shoot. was early in the murders occurred (7)The 39-2-203(i). while the de- penalty murder was committed shall 1. T.C.A. No upon finding, committing, engaged or imposed a was an but unanimous was fendant indicated, of, of one or of the existence heretofore or at- accomplice the commission was statutory aggravating circum- more of commit, fleeing tempting com- or was after stances, following: which shall be limited to the commit, any attempting mitting first de- or (1) per- against a arson, The murder was committed murder, rape, robbery, burglary, gree (12) age years of and the son less than twelve piracy, larceny, kidnapping, or unlawful aircraft (18) eighteen years age, or defendant was older; placing discharging throwing, destruc- or bomb; or tive device (2) previously was convicted The defendant (12) committed "mass murder” The defendant felonies, present one other than or more more as murder of three or which is defined charge, the use or threat of vio- which involve persons Tennessee within a within state of person; lence to months, (48) perpetrat- period forty-eight heinous, (5) especially atro- The murder was in common scheme or ed in a similar fashion cious, involved torture or or cruel it plan. mind; depravity of aggra- contests three of the six The Defendant (6) pur- for the The murder was committed (5), (6) vating circumstances: with, preventing avoiding, interfering pose or prosecution or of the defendant a lawful arrest another; down, to run farther. He fell and the her knocks at the door. Ms. Bell answered telephone try him calls to to locate Defendant stood over and had cocked made other daugh- gun Angela Clay up daughter to the her and then went to her when ran Bell, pushed away. Angela apartment Defendant and him ter’s with Lenette but no Clay hospital, responded then took Bennie knocks on the door. to the one to their days. Angela’s where All he remained for seven the shades were drawn and pled guilty shooting parked apartment. Defendant car outside of her was sentence, they police. received the workhouse in- It then decided to call the which furloughs. cluded weekend police approximately at 9:30 arrived 28, 1988, evening, Friday p.m., p.m. Monday On afternoon around 5:30 March signs entry March the Defendant was re- no of forced into the and found apartment; leased from the the door was locked. workhouse on a weekend Officer open furlough. He returned to James was able a window after the workhouse evening prying off a bedroom window screen. All Monday, on the March lights flashlight off. He shined approximately p.m. were 5:15 after the murders committed, pool into a child’s room and saw a of blood were but before the bodies body on the bed and the of a small child on were discovered. room, the floor. He exited the and officers Angela daughters and her two last secured the scene. Sunday evening seen p.m. around 11 Investigation revealed the bodies Angela’s sister, Bell, Lenette had borrowed Angela year daughter, her nine old Angela’s Sunday. Angela car on was em- Latoya, Angela, in the master bedroom. ployed Hospital, at Vanderbilt where she bed, lying apparently who was had p.m. p.m. daily. worked from 1:30 to 10 top been shot once in the of the head as she arranged Bell pick up Angela Lenette slept and was rendered unconscious imme- hospital p.m. at 10 When Lenette Bell diately and died within minutes. Dr. hospital, arrived at the the Defendant was Harlan, Charles Chief Medical Examiner waiting Angela. Angela’s also there for County, for Davidson testified that she was children, who were with Lenette Bell while probably from a shot distance of six to their working, mother was chose to ride gunshot twelve inches and that her wound the with Defendant and their mother from type usually large was the caused hospital. the Angela The Defendant drove caliber bullet. daughters and her two to the home of Bell, grandmother Amelia the mother and Latoya’s body partially was found on the of the victims. Ms. Bell testified that the bed, partially wedged and off the bed be- car, left Defendant her house in his and tween the and a chest bed of drawers. She daughter granddaughters that her and left through had shot once the neck been and daughter’s her house her car 10:20 about pillow chest. Blood on her and a bullet p.m. Angela p.m. returned about 11 to bedding hole in the indicated she had been pick up forgotten. an iron she lying had That on the bed when shot. Dr. Harlan daugh- the last time Ms. Bell her was saw testified that she was shot from a distance Ange- greater twenty-four ter alive. Lenette Bell testified that than inches from her telephoned approximately path type la 11:20 the skin surface. The bullet and p.m. evening. That was the last time of shot indicated that death was not instan- spoke likely of the witnesses to the deceased taneous but occurred within three to untimely being before her death. ten after her minutes shot. Bullet fragments were recovered from her left daughter When Ms. Bell’s failed to re- lung. Both victims under the were bedcov- morning, turn the iron next the she tele- they ers when were shot. phoned daughter got her but no answer. Lakeisha, six, Angela throughout body age She continued to call The was found day lying the but received no answer. She be- in the second bedroom facedown on daugh- came concerned and asked another the floor next to her bed. She had been twice, Angela’s apartment. chest, ter to drive to No one shot once in the once in the Angela’s apartment she let pelvic area. Harlan that she when did not Dr. testified bleeding Angela, in. later he told “If had died from a result of a him Sometime gunshot nobody you.” I you, wound the She was shot can’t have won’t have to chest. murders, Angela’s from distance to inches and Three before the of six twelve weeks Meacham, had the thirty neighbor, died within to minutes after Patricia heard five knocking on the door being shot. on her arm indi- Defendant and Abrasions sought Angela’s apartment threat- grazed cated a bullet her as she window had protect Friday in. ening from the attacker. Bul- kick door herself killings, Angela and Defen- let and blood stains on the bed indi- before the holes lying arguing. she when cated that was in bed shot dant were seen and had moved from the bed to the floor midnight night Around the bodies being bloody finger after shot. There were discovered, police to the Metro- were went running marks down the rail from the head politan Defen- Workhouse to interview the of the bed to the foot the bed. The size dant. When informed a detective of the wounds and absence bullet girlfriend his had been found murdered large re- casings indicated that caliber looked apartment, her the Defendant volver had been used kill victims. shocked, distraught, visibly upset, and was projectile pil- began crying. from the When two other detectives

One was collected room, de- lying Defendant’s Latoya apparently low was entered whole where ceased, he Fragments pro- changed, meanor tears time she was shot. He the last jectiles were collected from the wall became “dull.” stated above head; Sunday, Angela’s Angela were from time he had seen others collected he p.m., was found. March at about when where Lakeisha mattress dropped her at her mother’s house after off telephone The receiver from kitchen picking up her at work. He then went master was found bedroom. residence, he where Charlotte Waldon’s telephone from bedroom was the master supper a late her and other had lying hallway in the between two bed- he left Ms. friends. He stated Waldon’s fingerprints rooms. The Defendant’s were p.m., to his moth- house about 11:30 drove only prints recovered from tele- slept 6:30 apartment where he until er’s phones. fingerprints Two his Monday. cooperative Defendant was a.m. phone hallway, in the one found on police turned over to the what willingly telephone was on the kitchen receiver gun,” a nine shot “only he claimed was in the found master bedroom. he he Ruger .22 caliber said had used Clay’s upstairs neighbors, Angela Patri- Clay. Bennie shoot nineteen-year-old cia her Meacham and other wit- Waldon and several Charlotte Gardner, reported daughter, Donzaloe came to testified that the Defendant nesses 1:00 1:30 a.m. on March 28 between p.m., approximately 8:30 Ms. Waldon’s at they nois- had been awakened four loud dinner, 9:30 approximately left at ate and es, quick followed a two in succession again that p.m. He did not come back seconds, pause then two more noises of 30 evening. somebody had ham- “sounded like a which investigation, formal hitting countertop real After further two mer on a hard.” from De- taped statements were taken they were so loud both arose noises The first interview was conduct- from and out the window but fendant. bed looked morning, Tuesday nothing. approximately come ed at 6:30 saw The noises seemed to the De- 29. In the first statement apartment from below. March that, Angela leaving fendant claimed after connecting the Defendant The evidence house, girls Angela’s mother’s and killings circumstantial. There was house, straight gone had to his mother’s he relationship between was evidence that night. he the rest of the where remained had Angela and Defendant not been was conducted at example, For in October The second interview tranquil. morn- approximately door ten o’clock the same had kicked in the front Defendant expert firearms from Significantly, a ing attorney present. with Defendant’s statement, the Defendant said TBI testified that the .44 caliber bullet his second dropped Angela her two cali- Latoya’s pillow, that he off and the .44 from recovered He then body, children at her mother’s house. Lakeisha’s a removed from ber bullet Angela’s apartment stated that he went to fragment from the automobile driven bullet Sunday night, he not recall later did shot Clay day the Defendant by Bennie time, she there. He sat exact and wasn’t him, removed and the .44 caliber bullet for apartment in front of the in his car out fired Clay’s body had all been from Bennie then left. He period a short of time and weapon. from the same time, Angela’s car returned a second saw al- defense was that of The Defendant’s and, open, inside the finding the door went nephew testified ibi. His mother stated, apartment. The Defendant “I went night the victims were the effect that the I and I inside and saw all of them there murdered, to his the Defendant had come seeing Angela, panicked.” He described p.m. and had home around mother’s Latoya lying dead in their and Lakeisha night. remained there all the covers over them. He said beds with “may telephone hearing he touched the while sentencing have” At the Defendant apartment. he in the He noticed that testimony a former teach- presented the on the telephones had been thrown er, friends, mother, wife, former aunt he floor and remembered that was afraid good stu- siblings that he had been a might get he his fin- touch them because father, dent, good provider, a good a on them. He said he had not gerprints helpful, polite, friendly, responsible, sought assistance for victims because person they sup- nonviolent whom would Locking get “I didn’t want involved.” given a life sentence. His port if he was door, apartment he then left the minister, brother-in-law, testified about There, to his house. drove back mother’s religious conversion. the Defendant’s girl- although just he had discovered his the Metro psychological co-ordinator dead, friend and her children in his own Defen- Department testified that Sheriff’s words, eight got “I me at least seven or “model inmate.” dant was a sleep my hours of mother’s couch.” report The Defendant did not the deaths or I. anyone night tell he what had seen morning. Tuesday until the interview first contends that The Defendant ruling he was erred in the trial court During suggested he interview days Ten before competent to stand trial. Later, Clay Bennie was the murderer. counsel, trial, of defense upon motion Defen- police when officers informed the hearing pur conducted a trial court they the caliber dant that could determine compe assessing the Defendant’s poses of weapon Clay, Bennie used to shoot During hearing, trial. tency to stand Clay the Defendant said that he had shot con stated that he had the trial court caliber, Magnum, a .357 not a .22 competence out the standard of set sidered weapon into the Cumber- had thrown the States, Dusky v. United ac- previously He had told an land River. (1960), Mackey v. 4 L.Ed.2d 824 gun he had sold the used to quaintance (Tenn.Crim.App. 537 S.W.2d 704 acquaintance Clay. The same shoot Bennie 1975), as the most recent case of Defen- as well that he had seen the also testified (Tenn. Benton, large pistol pos- in his caliber dant with Crim.App.1988). Dusky In v. United years or five before. session four States, Supreme supra, the United States Clay agreed to the bullet Bennie have the standard under which Court described removed from his shoulder. surgically a Defen a trial court determines whether gun that the used the Clay testified trial: competent dant is to stand to him had looked like a Defendant shoot de- slug the test must be whether The "... “big pistol” [the caliber or revolver. present ability to has sufficient Clay from was a .44 caliber bullet. removed fendant] process judicial (e.g., hend he un- lawyer consult with with a the was his reasonable degree understanding distinguish roles of of rational able to between the the —and did judge jury), he has a rational well as and not understand his whether understanding proceedings role, factual of the and to counsel’s was unable fathom against possible consequences him.” 80 S.Ct. at 788-89. the of the In trial. opinion, their the Defendant was unable to adopted Dusky The standard was in Mack- attorney in preparation assist his the his State, supra, which held: ey v. presented The the defense. testimo- and “Both Tennessee decisions the feder- ny psychologist, psychiatrist, a of a clinical prohibit constitution the trial of a de- al and from the Dede Wallace a social worker condition fendant whose mental is such Center, had Mental Health all of whom also capacity lacks to that he understand They the Defendant. conclud- interviewed proceedings object the nature and competent to ed that the Defendant was him, against to consult with counsel and stand trial. The consensus of mental his preparing to assist defense.” professionals health Defen- was at 707. I.Q. end of the dant’s was the lower competency hearing purpose of a Anchor) (76, range according to Dr. normal guilt Defendant’s or does not concern the psychotic and not that the Defendant was innocence, or even his mental condition at delusional, although probably he suf- Stacy, In the time crime. personality of some sort. fered a disorder (Tenn.Crim.App.1977), 556 S.W.2d 552 hearing, the At trial inquiry as the conclusion of the Court described the follows: stated, of this judge “Given the seriousness hearing competency very is a nar- “[A] appoint matter, going I to a feel I’m determining inquiry row aimed at wheth- psychiatrist independent do an evalua- charged is with a criminal er one who court.” He report tion back to the and presently competent stand offense to do the appointed Dr. William Kenner trial. In this a defendant is con- for and reset the matter further evaluation competent trial if he has sidered to stand Kenner, interviewing hearing. Dr. after mind and discretion which would enable Defendant, the Defendant charges testified that appreciate against him to thereon, competent.” The court there- him, “clearly proceedings and enable stated, “I upon think that the Defendant proper him to make a defense.” 556 with his presently ability has the to consult at 553. degree of lawyer rational with reasonable judge, discussing The trial the burden understanding, a rational as he has proof, stated: “If the Defendant raises a understanding of the pro- well as factional question competency, then the viable about my opinion, him. he is ceedings against prove competency is on state burden Later, competent after the to stand trial.” [by preponderance evidence counsel had begun trial and defense had competent Defendant stand trial].” issue, again Dr. Kenner testified raised the The Defendant evidence submits dire that conclusion after voir hearing the'competency estab- adduced time, interviewing Defendant a second he capacity under- that he lacked the lished competent.” “still found the Defendant object proceed- the nature and stand the Defendant not Dr. Kenner stated that against him that he had insuffi- ings only beyond went the minimum met but ability to counsel and to consult with cient Relying competency. on Dr. threshold his defense. preparing assist its own Kenner’s evaluation and observa- hearing the Defen- competency At the dire, during Defendant voir tions of testimony of Ken- presented the Dr. dant ruling that De- judge trial reaffirmed Anchor, psychologist who licensed neth competent to stand trial. fendant was Defendant, had tested interviewed enunciated Alderman, Under the standards one of the Defendant’s of Ross Benton, we are of the Dusky, Mackey of their testimo- attorneys. substance compre- opinion that the Defendant understood did not ny was that Defendant 175 sufficiency object proceedings Where the of the evidence is nature challenged, question the relevant for an against him and to consult was able with whether, viewing appellate court is after preparing assist counsel in his defense. light in the most favorable to preponderate against does not the evidence evidence finding prosecution, any rational trier of fact competence. the trial court’s elements of

could have found the essential II. beyond a reasonable the crime doubt. 99 Virginia, Jackson challenges The Defendant next the suffi- 13(e), Rule 61 L.Ed.2d 560 convicting ciency of the He con- evidence. Moreover, may a conviction T.R.A.P. be tends that the trial court erred overrul- entirely based on circumstantial evidence ing judgment acquittal his motion for a clearly the facts are “so interwoven where as to all counts of the indictment. He finger guilt and connected presented that the at trial avers evidence pointed unerringly the Defendant and insufficient to rational convince Duncan, alone.” Defendant State guilty trier of fact that he was of the (Tenn.1985); S.W.2d charged beyond offenses a reasonable (Tenn.1983); Williams, 657 S.W.2d 13(e), Rule doubt. T.R.A.P. Crawford, State v. 225 Tenn. The Defendant submits that there were S.W.2d eyewitnesses no to the offenses for which against he proof was convicted and that the The Defendant was with the victims him entirely consists of circumstantial evi- evening they murdered. He had were dence. He further contends that it is rea- Angela just fighting Clay been a few that, sonable to believe at the time of the days killings. before the The Defendant murders, person some other himself than previously Angela. had threatened kill possession gun had with which he The evidence established that the Defen Clay shot Bennie in 1986. The State re- fingerprints telephones dant’s on two evidence, sponds body although that the that were thrown on the floor of the vic nature, unerringly pointed circumstantial in fingerprints apartment. tims’ No other finger guilt to the Defendant and telephones. were found on the The .44 effectively every excluded theory other or Latoya’s pil caliber bullet recovered from hypothesis except that of Defendant’s low, the .44 from caliber bullet taken Lakei guilt. body, fragment sha’s from the bullet principles govern Clay day Bennie which our automobile driven him, by jury review of a conviction are the Defendant shot and the .44 well caliber approved by Clay’s body A settled. verdict bullet from Bennie removed judge testimony weapon trial credits the all fired from the same had been Clay. witnesses for the State and resolves all the Defendant used to shoot Bennie theory. gave conflict in favor of the The Defendant inconsistent state State’s Williams, regarding weap State v. 410 ments location of Hatchett, on, telling person gun one he had sold the State v. (Tenn.1978). appeal, telling police On the State that he had thrown strongest legitimate gun is entitled to the view the into the Cumberland River. De legit gave of the evidence and all fendant inconsistent statements reasonable also evening may regarding imate inferences which drawn his whereabouts the Cabbage, therefrom. State v. 571 S.W.2d the murders. He first told authorities of (Tenn.1978). against entering A and did not mention verdict alibi statement, apartment. in presumption Defendant removes the victims’ a second presumption guilt entering apartment nocence and raises a he admitted Grace, appeal, seeing of the victims. He de bodies (Tenn.1973), victims, asleep has which the Defendant scribed the and under bedcovers, overcoming. just the burden of as the murderer would have Brown, (Tenn.1977). them, seen them when he killed and not as way Sterling Gray the as well do it same upon

one come the scene after who had did, kill they and his damn The dead would have seen them—one that self.” were floor, partially one off court replied, victim on the Defendant “Huh?” trial her The defendant’s statements were bed. admitted this evidence as a tacit admission damaging. finding Paine, that He stated after by generally, the Defendant. See girlfriend his her chil- Evidence, the bodies of Tennessee Law dren, apartment, the he left locked the Cohen, Sheppeard, Paine Tennessee Cf. door, and, shootings, reporting the without Evidence, 803(1.2).3, (2d Law p. home, his mother’s he returned to where Ed.1990)(for Ten of rule under new status get sleep. tried some His excuse for to Evidence). nessee Rules this unusual behavior—he didn’t want to gave cautionary instruc- The trial court a get involved. close to on at the jury tion this evidence upon foregoing Based circumstantial guilt phase follows: as evidence, hesitancy holding in we have no heard you the jury, “Members of have against that the evidence the Defendant remained testimony that the Defendant support Black sufficient to the three was his made in silent a statement was when degree beyond first murder convictions a not presence at a time when he was does reasonable doubt. The evidence not custody. Such evi- under arrest in preponderate in of his innocence and favor caution. dence should be received with against guilt. his against the accused Statements directed may, in presence and in his the absence III. entitled any explanation, denial or be next an evi- Defendant raises weight as On the other to evidence. alleges the trial dentiary issue. He hand, or less might silence be more allowing prosecution a wit court erred probative equivocal, and of little value. testify regarding telephone ness a con to actually If finds Defendant jury witness, the Defen versation between accusatory heard and understood dant, Angela Clay. jury-out After a statements, they made un- and that were admissibility tele hearing on the the Defendant der circumstances conversation, admit phone judge the trial if might expected denied them to have call concerning telephone ted evidence a to true, they jury not then should ap Angela by the Clay made Defendant consider the Defendant’s silence whether proximately two weeks before the murders. was an admission of truth Bell, sister, Angela’s Lenette testified that statements, give the silence whatev- recog telephone and she answered the had jury it weight er is entitled.” believes When the nized Defendant’s voice. rely case parties Both on the of Ledune Angela, to Len- speak to Defendant asked (Tenn.Crim. 936, 939 telephone. At gave her ette sister App.1979), in which the states: call, during phone Lenette point some long recognized the “Tennessee has going do say, “You’re Angela heard rule that when statement is made asked Gray on Lenette Sterling who?”2 hearing presence and of one accused Angela had said and her what she sister of an and the statement tends to offense do her, going to “He said he was told him, incriminating or is of an incriminate Angela holding was Sterling Gray on me.” character, not de- and such statement is could the Defendant telephone so that him, objected way nied or in to her saying what she was have heard statement and the fact of his both the from the receiver Lenette took sister. deny any response it or make if failure to he the Defendant Angela and told it, might against admissible him evi- Sterling he Gray, “do a intended ing meaning Judge of this reference. The State Sterling Gray Criminal Court was a 2. depending general died, estranged apparently along was on the notori- with his Nashville who ety Judge Gray’s January convey wife, death to apparent murder-suicide threatening nature of Defendant's statement. presented at trial concern- proof No 1988. showing bias. impeach the witness acquiescence in its truth. dence of his Relying the case of Delaware Van omitted.] [Citations Arsdall, 475 cases this In recent times in criminal (1986), held that the trial court L.Ed.2d 674 admissions has been mod- rule of tacit in this unique fact situation “under the by developments, and ified constitutional prior witness’s statements case” the where applied the it will not be where statement testimony with his police to were consistent deny police occurred after and failure arrest, long prior to his made and were interrogation. custody and [Citations pending the argument there was no However, still via- the rule is omitted.] testimony charge affected his could have silence takes ble if the accusation and was of the indictment and the evidence prior police custody.” place only “marginally and would have relevant” at 939. S.W.2d the confused case. argument is that The Defendant’s basic allow argues that failure to Defendant no accusation was made that would have charges pending violat- introduction of the Ange- him demanded a denial from because right ed to confrontation under his accusing telling him of la’s sister was not Constitution Sixth Amendment going her sister he was to kill her but I, Article of the Tennessee Section informing him that he should commit su- criminal defendant Constitution. “[A] icide. Much of the resolution of this issue Confron- states a violation of the [federal] depends on the intonation of the accusation showing pro- by that he was tation Clause reply. and of the Defendant’s appro- engaging in hibited from otherwise The record that the statement establishes designed to priate cross-examination show of Lenette Bell identified the Defendant as part form of on the prototypical bias accusation, target of an that the Defen- witness, jury thereby exposing to the dant knew well reference that was be- jurors appropri- could the facts from which made, ing the accusation of an inferences relating to the relia- ately draw incriminating character, and that the accu- Delaware v. Van bility of the witnesses.” objected by sation was not denied or 1436; Arsdall, at 106 S.Ct. at 475 U.S. opinion Defendant. We are of the Kentucky, 488 U.S. see also Olden v. testimony relating adoptive Defendant’s The 102 L.Ed.2d 513 109 S.Ct. properly by admission was admitted a reasonable defendant must show that trial court. significantly might received a have credi- impression of the witness’s different IV. pursue permitted to bility had counsel been alleges The Defendant that the trial De- proposed line of cross-examination. his allowing court erred in not defense counsel Arsdall, 475 U.S. at laware Van prosecution con to cross-examine witness improper denial at 1436. Such an 106 S.Ct. cerning pending felony indictment subject right to confrontation against unsuccessfully him. Defendant Id., analysis. harmless error sought impeach prosecution witness at 1438. by examining him Clay Bennie about relevance,” of “marginal Because of pending County in Davidson indictment of the wit the obvious bias this issue and charging posses him with Criminal Court Defendant, if the trial against ness possession for resale and sion of cocaine restricting cross-examination court erred during of a felo a firearm the commission be point, any error was harmless Clay had been arrested on these ny. yond a reasonable doubt. See charges August several months (Tenn. Taylor, 668 daughters killed after wife Crim.App.1984). been removed from his and the bullet had shoulder. V. next avers that asserts that the evidence Defendant

The Defendant testimony con- allowing trial court erred pending indictment was admissible penalty because elec to exclude the death alleged by Defen- cerning threats made evening against parties punishment. on the dant third and unusual is cruel trocution were discovered. before the victims’ bodies suffering experi Citing accounts Defendant, when interviewed electrocution, argues he enced Workhouse, stated that Metropolitan had itself is not unconstitu if death that even residence on he went to Waldon’s Charlotte tional, a means of death electrocution as dropped Sunday evening after he had Eighth Amendment. T.C.A. violates Angela daughters off at her and her two requires any person sen 40-23-114 initially that he mother’s house. He stated put to death to death shall be tenced her supper Charlotte and had a late Adkins, electrocution.3 home, left around 11:30 other friends at her (Tenn.1987), Defendant apartment, p.m., drove to his mother’s electrocution, alleged that the use of also night. stayed rest of the he the where more humane forms there are when of her and several Charlotte Waldon injection, vio killing, such as lethal legal friends that Defendant was testified against prohibition constitutional lates the 9:30 the home between 8:30 and Charlotte’s punishment. Justice Moten, cruel and Cheryl one unusual evening 27th. of March Court, that, stated: friends, Fones, the speaking the also testified when the left, said, I “When leave and Defendant he humanity of that com validity and “The here, any light I through if see come back Legisla to the plaint be addressed should on, through door.” I shoot will ... punish authority over This Court’s ture. Gooch, friend, testified that Gary another adjudication crime ends with ment for “if he didn’t say he heard Defendant that Barber, State v. See constitutionality.” in, going shoot the door get he was (Tenn.1988); 659, 670 753 S.W.2d objected to the tes- down.” The Defendant (Tenn.1984). Caldwell, 459, 466 671 S.W.2d trial and Gooch. The timony of Moten federal cases Tennessee and a list of [For and ad- judge the evidence relevant found Teague v. see argument, rejecting that implicit it as “an admission mitted (Tenn. State, n. 13 772 S.W.2d a fire- possession [Defendant was] Crim.App.1988).] if The Defendant insists that even arm.” relevant, subject testimony were ap- on raised as an issue Although not proba- prejudicial more than evidence was Reid, dissenting in his peal, Justice Chief tive, testimony relat- since there was other he remand opinion, states that “would possession of a ing to the Defendant’s the defen- afford to the trial court to case Banks, State v. weapon. present evidence opportunity to dant the (Tenn.1978). 951 as a means allegation electrocution that opinion that Defendant’s are of the We penalty is cruel and imposing the death evening weapon the possession of a of Article in violation punishment unusual ac entirely relevant to this murders was Tennessee Constitu- I, 16 of the Section properly considered and the trial court tion as a “that electrocution tion.” He states probative preju than the evidence more may penalty imposing the method of presentation its properly dicial and allowed punishment” cruel and unusual case, in this if proof jury. Under therefore, re- would, like the trial court to regard, in this it was any there error He further states this issue. examine McKay, 680 State v. harmless. Cf. electrocu- suggests that “the literature ... (Tenn.1984) robbery (prior admissi 452 neces- suffering beyond, tion involves weapon). prove possession of murder ble to extinguish employed to sary ‘in method ” dissenting opinion VI. humanely.’ life to review evidence the trial court asks complains that next The Defendant by electrocution pain inflicted denying his motion the actual the trial court erred 1913, Chapter changed 36. from was 3. The method of execution hanging Public Acts of electrocution

179 “concerning na- of evidence admission this method order to determine whether The trial electrocution.” and effect of “un- ture extinguishing prisoner’s life involves following pre- motion court ovérruled cruelty.” necessary submits hearing. The Defendant trial opinion majority A of this Court is of the allowing him to in not trial court’s error constitutionally per- electrocution is a of electro- on the nature introduce evidence argu- method of execution. missible cutions, prejudicial because was dissenting opinion has ment raised proce- evidence deprived of relevant summarily rejected by uniformly and been surrounding elec- dures and circumstances See, e.g., State and Federal Courts. both sentencing hearing. during the trocution F.2d 720 Dugger, 721 Sullivan re repeatedly has (order); This Court (11th Cir.1983) Spinkellink type of evidence (5th to allow this fused F.2d Cir. Wainwright, cert, because sentencing penalty in death case 1978), denied, 440 con the factors to be it is irrelevant (1979); v. New 59 L.Ed.2d 796 Dix jury. This information sidered (N.D.Ga. some, F.Supp. Legislature. properly presented to 77, more 1984); F.Supp. Hopper, Mitchell v. Wilcoxson, 39- See State v. State, (S.D.Ga.1982); Stripling v. Adkins, State v. Buenoa Ga. 401 S.E.2d Johnson, 665; (Fla.1990); 565 So.2d no 542, (Tenn.1982). only evi- The 548 State, 456, (Ind. 474 v. 553 N.E.2d Wallace during the sentenc- is relevant dence which 1990); Coleman, 45 Ohio St.3d v. State is that evidence ing phase capital in a case (1989); 298, 622, 544 N.E.2d 633 Pruett v. disprove to establish or is relevant which 304, 186, State, 189 282 Ark. aggravating circumstances the existence of Com., 124, (1984); 314 v. Va. Stockton State, v. mitigating factors. Cozzolino 371, (1984); S.E.2d Booker v. (Tenn.1979). cert, 584 S.W.2d 765 (Fla.1981), denied, 910, 918 397 So.2d 957, 493, L.Ed.2d 261 454 U.S. VIII. (1981); Shaw, 273 S.C. State cert, alleges that the tri Defendant denied, 799, 804-805, 255 S.E.2d to denying him funds erred in al court 437, L.Ed.2d 329 100 S.Ct. in order to psychologist employ juristic a also, Louisiana v. See State of responses candid that the full and insure Resweber, complete jurors would be prospective from (1947) (carrying out execution L.Ed. ly evaluated. murderer, execution after first convicted in electric failed due to mechanical defect trial, counsel filed defendant Prior to the chair, cruel and unusual did not constitute juristic employ a for funds a motion punishment). Defendant’s re- Noting that psychologist. 1(B)(10) comply with Section quest did not Court, and presented The issue to this trial court Rule Supreme Court VII, be discussed Section which will that, held request. The court denied the admission of evidence deals with the with, it complied if the rule had been even surrounding procedures and circumstances appoint process no due need find would presented to the sen- to be electrocution juristic psychologist. a tencing jury. contends that without The Defendant VII. psychologist, he was juristic of a assistance propensities full denied a evaluation next contends that The Defendant and bias jurors for fairness testimony, prospective before court’s exclusion trial impartial right to an surrounding denied and was procedures jury, about rights to a fair trial. process execution, jury and due itself and electrocution 40-14-207(b) court allows the trial chair, process due T.C.A. denied him his electric grant the discretion hearing. capital in a case sentencing right a fair in- necessary to expert services seeking funds for pretrial motion filed a Defendant occurred to him from the rights any prejudice of an sure that the constitutional tentatively protected. sequester selected indigent properly defendant are failure per rule of se- showing any special jurors but advocates a se There has been no tentatively questration jurors selected jury expert need for a selection or that the capital judge in case has abused its dis- cases. trial cretion. McKay, 452- (Tenn.1984), directly this Court held that a trial

Although there is no case on 453 sepa- jurisdiction, judge has the discretion to allow the point in this other states jurors tentatively of a trial court’s ration of selected have addressed the issue appropriate they until are propriety denying a motion for funds for admonitions sequestered in expert required found that sworn and to be jury selection have felony capital noncapital cases. there is no error in the trial court’s denial both showing is no that the trial court particu- the defendant has failed to There where discretion, that there expert, even in this case abused its larize his need for such an misconduct, Williams, the fail- any jury or that penalty cases. In they sequester jurors 446 ure to before 304 N.C. 284 S.E.2d the Defendant (N.C.1981), prejudiced in re- sworn the court found no error way. find no merit to this issue. fusing expert We selection when Poe, no reasonable likelihood also State record showed See (Tenn.1988). appointment expert of an would have materially in his de- assisted defendant X. of assistance

fense or that the absence deprived the defendant of a fair trial. See argues that the tri The Defendant Yates, 280 S.C. 310 S.E.2d also State prospec excusing erred in certain al court Annot. 34 A.L.R.3d feelings jurors because of their about tive (1990 Supp.). 17§ allowing ques penalty the death without dire tioning by Defendant’s counsel. Voir IX. First, as follows: individual was conducted issues— dire was conducted as two The Defendant next asserts voir (1) prospective juror's sequester the effect of the that the trial court’s refusal to regarding penalty the death on the tentatively jurors selected before trial was views capital trial, ability the law of juror’s counsel to follow error. Prior defense (2) juror’s sentencing prospective the tentatively jury selected mem moved that information about the exposure to outside sequestered. bers The trial court over general pre admonishing pro case. The court conducted a ruled the motion. After matters; these liminary case examination on spective jurors not to talk about the and, give did not newspaper juror’s or if the answers anyone or to read the with cause, the grounds for excusal for local news on tele clear watch or listen to the State, defense, radio, by fully then prospec followed vision and the court allowed explored juror. these issues each during voir dire at with jurors separate tive jurors had com thirty-six prospective day. each After similar admoni When the end of dire, parties con tions, jury pleted individual voir the court continued to allow on other matters tentatively group ducted voir dire alternates who had been peremptory challenges. prior and exercised their separate over the weekend selected beginning being sworn and the to their challenges the trial The Defendant sworn, jurors After the the trial. regarding prospective actions six court’s sequestered for the remainder of they were says that the trial court’s re- jurors. He trial. him to conduct voir dire of fusal to allow jurors, after the trial court had the failure to se- these Defendant asserts that six preliminary examination jurors concluded from its quester tentatively selected denied penalty juror’s that the views on the death rights impartial his to a fair trial him law, following showing prevent would their vio- Defendant makes no jury. particularly similar attacks state the face of rights Defendant’s under the lated where, here, properly jury has been Defendant’s as and federal constitutions. terms meaning in of the argument appears to be that on the instructed broader not voir dire capital judges cases should in accordance in the statute used regarding their views on prospective jurors Williams, 526-530 690 S.W.2d v. State ex- penalty the court’s See, Henley, because (Tenn.1985). e.g., State v. might the free and truth- amination inhibit (Tenn.1989); Tay v. State opinions. juror’s expression ful (Tenn.1989); lor, State 771 S.W.2d Thompson, court committed no We find the trial Hines, 758 S.W.2d responses case. The present error in the Cf . (Tenn.1988). jurors that their prospective revealed prevent penalty on would views the death case, court’s defi- In instant the trial substantially impair performance “atrocious,” “heinous,” of the terms nitions jurors as in accordance with their duties “cruel,” “depravity,” and “torture” re- and their oaths. This their instructions vagueness and narrowed moved Witt, Wainwright met the standard eligible pen- for the death persons class of 83 L.Ed.2d 841 more have committed alty to those who Texas, (1985), and Adams v. defined aggravated murder. Torture was 65 L.Ed.2d 581 Williams, jury so in- supra, and the Under the standard set this Court structed, physi- “the infliction of severe 506, 517-518 Alley, he pain upon the victim while cal or mental (Tenn.1989),according the court’s find- trial alive and conscious. or she remains correctness, ing presumption of bias a occurred, proving that such torture error occurred in this no reversible case necessarily, proves also the court’s refusal to allow the defendant depravity of mind murder involved jurors. these to rehabilitate See State murderer, of one the state of mind because Strouth, (Tenn.1981). willfully physical inflicts such who severe depraved.” pain or mental victim XI. 529. As described earlier 690 S.W.2d at The Defendant contends killing mother opinion, after Lakeisha’s overruling trial erred in motion to court bedroom, adjoining Latoya in the and sister statutory aggravating dismiss the circum the bedroom of the Defendant then entered stance enumerated T.C.A. 39-2- frightened six-year-old defenseless 203(i)(5)because the statute is unconstitu proceeded to kill her. Bullet child and vague. tionally found that stains that Lakei- holes and blood revealed Two, Clay, fell murder of Lakeisha Count bed, for shot once in her Officer sha was aggravating under the circumstance stated bedroom, James, her ob- he entered when 2—203(i)(5)(1982) in in that T.C.A. § 39— of on the bed and pool served a blood heinous, especially atro “the murder was fragments projectiles were recovered or cruel in that it involved torture or cious Abrasions on Lakei- from the mattress. ap At trial and on depravity of mind.”4 grazed her sha’s arm indicated a bullet had argues peal, Defendant that this circum from the sought protect to herself as she unconstitutionally vague in stance is viola finger bloody Defendant. There were Amend Eighth of the and Fourteenth tion running on the rail from the head marks Constitution ments to the United States of the She was the bed to the foot bed. I, Sections 8 and of the and Article of her lying face down on the floor found Tennessee Constitution. twice, room, having once in the been shot pelvic in She was chest and once area. previously upheld has the va- This Court of six to twelve inches in shot from a distance aggravating this circumstance lidity of physical abuse be- involved torture or serious new criminal code this circumstance In the 4. yond necessary produce T.C.A. changed to death.” “The murder was that has been to read: atrocious, (1990 heinous, Supp.). especially that it or cruel in 39-13-204 in one thirty five to minutes Two victims were bedroom and La- died between Clay keisha in a second bedroom of the being after shot. Three of this was members apartment. small that Witnesses established jury Court have concluded could that the be heard shots could outside have execu- found this brutal senseless apartment. The La- child, State avers that had helpless tion style murder of a who first, mother, herself, keisha been shot Lakeisha’s protect could not evinces torture or Angela Clay, would not have remained defined depravity of mind as in Williams. position her covers in bed under the pronouncement recent of the most where she could have been killed with Supreme regarding United Court States single gunshot wound to the head. There substantially aggravating circumstance proof Angela Clay was no moved had (i)(5) similar that in v. Ari Walton if or been moved after she was shot. Even zona, U.S. -, 3056- visually Lakeisha witness mur- did not (1990), as upholding 111 L.Ed.2d certainly family, ders of her she heard the heinous, “specially Arizona’s constitutional gunshots. could have identified the She depraved” aggravating cruel circum or Defendant. limiting given stance under the definitions opinion proof We are of the Supreme those terms Arizona supports finding that mother Lakeisha’s limiting adopted by Court. The definitions lay sleeping shot as she in her was first court are to those Arizona similar neighbors upstairs heard bed. Since the Williams, adopted by supra. blasts, Clay surely gun Angela would pro This is without merit and cannot issue first shots had have awoken if the fired vide a basis for relief. at Lakeisha the second been those aimed XII. proof sup- is sufficient to bedroom. The finding aggravating port the of this circum- also The Defendant contends stance. in denying the trial court erred his motion judgment acquittal for a the statu Considering validity re tory aggravating circumstance contained aggravating maining statutory circum 39-2-203(i)(6), T.C.A. to a mur relative created insuffi stances error purpose der for the of avoid “committed support jury’s ciency the evidence to with, ing, interfering preventing or a law finding on this contested circumstance ful prosecution or the defendant arrest preju harmless could not have created found or another.” The the existence A Defendant. harmless error dice statutory aggravating of this circumstance analysis applied to these circum may be and returned a verdict of death as Count Bobo, 727 stances. indictment, regarding Two of the the death Cone, daughter Clay, six-year-old Lakeisha (Tenn.1984). Clay, body found in a Angela whose separate from the bedroom bodies XIII. The Defendant other two victims. avers that the court Defendant next avers trial ei insufficient evidence at there was judgment motion for a denying erred sentencing phases guilt ther acquittal “mass statu- as to the murder” murders; sequence of the trial as to the tory aggravating circumstance enumerated therefore, no La there was evidence that 39-2-203(i)(12). The jury in T.C.A. found § of her Clay keisha witnessed murders Clay, that the of Lakeisha Count murder her mother and/or sister. Two, aggravating circum- fell under the 39-2-203(0(12): indeed stance stated Section

The contends there was State murder’ support “The defendant committed ‘mass application to sufficient evidence as the murder of three or aggravating circumstance. which defined statutory this 203(i)(l), (2) challenged not three of the 5. The Defendant has circumstances, aggravating 39-2- §§ T.C.A. guaranteed by of law Article persons process within the of Tennessee due

more state months, or (48) I, ‘[tjhat no taken period forty-eight within man shall be a freehold, his imprisoned, in a or deseized of perpetrated a similar fashion outlawed, or privileges, or or plan.” common scheme or liberties exiled, destroyed or or manner The Defendant asserts that life, property, deprived liberty of his or statutory aggravating “mass murder” cir by judgment peers or but inapplicable facts of cumstance was to the ” land.’ law of the and should sub this case not have been jury. mitted to the The Defendant correct case, in with “In this accordance ly reported only that there is one states of statutory rule construc- established case where this Court has addressed tion, T.C.A. we have concluded that cir statutory aggravating “mass murder” 2—203(i)(12) constitutionally may be § 39— upon Defendant lan cumstance. relies triggering if the offenses are applied Bobo, guage found in S.W.2d State by that have been only shown convictions (Tenn.1987), 39-2-203(i)(12) that § hearing prior sentencing entered pertains perpetrated to “mass murders they to estab- are utilized to at which be period” extended but re over an definite aggravating ‘We lish this circumstance. quires by this reversal Court because not declare a statute unconstitutional will proof in this case fails to show do other- reasonably when we are able to murders were committed over an “extend meaning pur- preserve its wise—to period ed” of time. As accurate the State through constitutionally a correct pose out, ly points phrase above-cited is dic Cothron, construction. See Williams v. Bobo, In ta. the defendant at (1956).’ 199 Tenn. constitutionality tacked the of the mass Mitchell, 699, 702 Mitchell v. aggravating murder circumstance because (Tenn.1980).” 727 at 954-55. expressly require the subsection does not that, by “for this holding that the State show that a Defendant has concluded We of the show be- apply, been “convicted” murder of three or the State must section (1) persons yond the defen- provision more and because the a reasonable doubt ambiguous interpreted since it could or more be not dant had been convicted of three require murders, including he conviction or it could be con the one for which (2) tried, require showing strued to a three or the State of just has been within Tennessee, (3) forty-eight agreed period more convictions of a murder. We within months, (4) (48) perpetrated similar that there were two reasonable construc fashion, (5) or tions of the statute. We in a scheme then stated: common plan.” 727 S.W.2d at 956. opinion “We are that while the Bobo, phrase, period the third “within 39-2-203(i)(12) language of T.C.A. § into forty-eight (48) months” not called permit read to could be the State only question. dealing We were present evidence murders other than phrase, “that the had been first Defendant the defendant’s record of convictions or of three more murders.” convicted aggravating circumstance be- show doubt, yond language a reasonable such a con- subsection “within (48) months,” forty-eight of period struction would violate a number would guarantees, applicable Constitutional includ- to the kinds of serial murders be Atlanta, rights impartial by Wayne to a ing by trial committed Williams York, by indictment of Sam” or jury, presentation, by to an the “Son in New him, against Bundy witnesses “Ted” in Florida. confront Theodore self-incrimination, against guaranteed language applicable also to multi- all would I, by ple Article Tennessee Con- murders such as committed those Essentially, therefore, sniper such a Whitman fire from stitution. Charles J. campus. procedure University would result in a on the of Texas construction tower in the prejudicial unfair and as to violate the The “mass as used so term murderer” apply multiple hearing statute can com- The record of the on murders the motion multiple mitted close in for a trial that time or murders new shows Robert Skinner singly longer period practicing committed had law over a been since 1961 and time, during principle that time his years. practice not to exceed four are had We criminal opinion been defense work. He had han- encompasses that the statute dled situation thousands criminal cases and had where a defendant is simulta- tried, case, had more than ten homicide He neously present as in cases. had for a represented the Defendant in in- separate series of the case but related homicides volving shooting Clay of Bennie but part committed as of a common scheme or represent had refused to plan. Defendant attempted this case and had to refer him to Defender’s office. Public Defendant XIV. requested still assist him dur- Skinner alleges The Defendant next ing this interview so Skinner consulted by granting the trial court erred not him a police with Defendant and officers about upon new trial based the use at trial of his the status of the had case. an Skinner tape second recorded statement which was extended discussion the Defendant re- the result of the ineffective assistance of garding culpability and alibi. From during pretrial counsel custodial interro Defendant, previous relationship with the gation. protestations Skinner believed Defendant’s thing of innocence and felt that the best for court, The trial at the conclusion of the clarify the Defendant to do would be trial, hearing on the motion for new dis- prior inconsistencies in his statements and two-pronged cussed the test of Strickland accurately completely, truthfully and dis- Washington, evening mur- close his activities the stated, 80 L.Ed.2d 674 He “In already given a state- ders. Defendant had prevail, order to the defendant must show which, police contrary to his ment representation that both counsel’s fell be- statements, placed other had him at the objective low an standard of reasonable- night. murder scene that He knew there ness, and that there exists a reasonable fingerprints telephones. He on the probability unprofes- that but for counsel’s had made other inconsistent statements error, proceedings sional the results of the concerning his alibi. his earlier state- would have been different.” He then cited ment, picked up Angela Clay he stated he Strickland stated: “The reasonable- home, p.m., her took and went may ness of counsel's actions deter- Charlotte Waldon’s house for a late dinner. substantially by mined or influenced told officers he had Charlotte Waldon had defendant’s own statements or actions. evening there earlier in the and left been based, usually quite Counsel’s actions are p.m. around 9:30 informed, properly, strategic choices appears Defen- by From the record it made the Defendant and on information willingly police supplied by dant talked with after Skin- the defendant.” apprised dangers ner him of the of further The Court then stated that whether coun- interviews that Skinner and Defen- representation objective sel’s fell below an together dant decided that it was the best standard of was a close reasonableness strategy speak him to with officers question and one he need not decide be- up anything tell the truth and “clear if I cause “even were to decide it fell below going by.” he to stand reasonableness, objective an standard of proceeding given, would the results of the The advice or the servic been different, probabili- attorney, or is there a reasonable es rendered must be within ty proceeding range that the competence results of the would the demanded at Rose, torneys have been I have no different.... trouble criminal cases. Baxter v. finding (Tenn.1975). proceed- that the results of the mere ings would not have been different.” fact that counsel advises an accused to

185 267, 1981); State, v. 593 S.W.2d police make a to the does not Houston statement (Tenn.1980). inadequate representation constitute as a 276-277 law, State, Phelps of 435 matter v. So.2d challenges that Defendant also 158, (Ala.Crim.App.1983),particularly 161 (1982) pro portion 39-2-203(g) which of § where advice makes it clear that the unanimously that, deter jury vides if the ultimately lies decision the accused. statutory mines least one or several that at Kesting, Pa.Super. v. 274 Commonwealth have aggravating circumstances been 79, 1262, (1979). gener 1265 417 A.2d See beyond a proved by the State reasonable Annot., “Adequacy Defense ally of Coun by outweighed not miti doubt and are Representation of sel’s Criminal Client Re circumstances, gating “the sentence shall Matters”, garding and Related Confessions (Emphasis supplied.) Defen be death.” 180, (1981). 19-20 7 A.L.R.4th § portion of the stat dant contends opinion are that under the We of I, 19, Article of the Tennes ute violates § Washington standard of and Strickland of our Con see Constitution. This section Rose, representation Baxter v. counsel’s Rights, stitution’s Declaration of like the not require does a new trial. Constitu First Amendment the Federal tion, guarantees speech of freedom of and XV. press. last clause of the final issue, his As last defendant asserts I, 19, requires Article sentence of § that, reasons, for several Tennessee libel, jury “in all indictments for shall penalty death statute is unconstitutional right have a to determine the law and the under and the state federal constitutions. facts, court, of the under the direction as argument support of cases.” Defendant contends other criminal penalty provide does adequate statute not language 39-2-203(g), that the “shall” of § guidance judge jury, the defen or which instructed the trial court specifically dant contends that T.C.A. 39- § case, present deprives jury of its 2-203(f) (1982)6: (1) (g) no pre have I, 19, powers Article constitutional under § proof determining scribed of standards impose its own decision. statutory aggravating whether circum I, outweigh circumstances, This with some mitigating stances section Article § (2) assign changes, part not proof do the burden of on the has been Declaration Rights aggravating issue of whether in the constitutions of Ten- circum found circumstances, outweigh apparently stances mitigating nessee since 1796. It derived (3) language require essentially if in Arti- sentence of death from identical IX, jury statutory aggravating Pennsylvania finds that the cle Constitu- § Laska, outweigh mitigating Legal factors L. A factors. tion 1790. See Tennessee, specific previ History These contentions have been Constitutional rejected 1772-1972, n. ously addressed and Mem.St.U.L.Rev. 6 See, Swindler, 8 e.g., Boyd, several cases. see also Sources & (Tenn.1990); 797 S.W.2d 597-99 Constitu- State Documents United States (Tenn. tion, Thompson, p. During the last half 1989); Wright, century England State v. the seventeenth Melson, (Tenn.1988); country, disputed 638 this it was whether in State v. (Tenn.1982); trials on seditious libels the 6.W.2d indictments for Pritchett, right general jury return a ver- had (Tenn. Dicks, English not guilty guilty.7 dict of Some history leading 6. These were amended after the trial of 7. For the the events sections I, adoption last of Article sentence require prove this case to that the State that the provisions other and similar constitutional states, statutory aggravating outweigh circumstances Tenn. see Harris beyond any mitigating circumstances reason- McManus, (1881); Commonwealth v. 143 Pa. 39-2-203(f) (1990 (g) able doubt. T.C.A. (Mitchell, J., (1891) concurring); 22 A. 761 Howe, Supp.). Law, Judges Criminal Juries fense, finding judges jury party and American held that the and the had only publication guilty, they judg- could find the of innocent or as in their fact the truth the ment found these in of of the innuendoes but that elements the act question guilt party charged; is, in they, of or innocence these the that under court, solely cases was a matter of for the the direction of the said law whether alleged legally guilty by court since the terms of the libel he him the was —tried land, writing subject dispute given by in were and not law of the that law them guide then, legal and the intent was claimed as a infer- the court for their un- —and convicted, placed system, ence. This of if doctrine had freedom der our the instruc- tions, affecting speech press mercy of the at the if erroneous in a matter judges appointed by rights prisoner, re- the crown and was the of the could be viewed, particularly incompatible re- with the demo- and the case reversed and trial, espoused by may cratic values the new nation. manded for a new that the law IX, 7, adoption correctly given guidance for the of the of Article of the be § all, Pennsylvania jury, in the and if convicted at be convicted Constitution 1790 and (32 Ill, according passage of Fox’s Libel Act Geo. c. to law. This is all that was 60) intended, by language in the of the Parliament 1792 were intended to and all Constitution, right jury prosecu- fairly interpreted, in means. affirm the of the all intended, change It not nor does it was judge tions for seditious the law libel province rights the ancient aof and the facts as in other criminal cases. cases, jury in criminal only give but The intended effect of this constitutional jury, jury, the or rather to secure to the language upon ex- the criminal law was right precisely cases to do libel State, Harris plained in 75 Tenn. at 547- they always had done in other crim- what 548: cases, inal to act under the instructions history, In view of this and the contest court, judge application England that had been had over given facts of the law to them to the question, when the Constitution result, proven, and declare the either to framed, providing was when for the free- legal guilt, innocent or as the ele- press speech, dom of the and freedom of by proven the court are ments defined Rights in the Bill of inserted the was contrary. (Emphasis sup- exist or the quoted, principle of Mr. section and the plied.) Fox’s Bill was “in Libel embodied—that recently, this has reit- Even more libel, jury all indictments for shall provision erated that a constitutional like right have the to determine the law and I, 19, in Article “is the main § they may the facts”—not as think the not declaratory of the common law” and is, the direction of the law but “under enlarge or extend traditional meant to court, as in other criminal cases.” In State, jury. Dykes province words, plain should determine the law 65, 861, (1956). Tenn. 296 S.W.2d they did in a for and the facts as trial murder, larceny, dispute or for other There has been some as I, By precise jury the immemo- role of the under Article crime. How was that? law, determining judge rial traditions of the common of the law § Ford v. guilt See universal custom of the courts ad- of an accused.8 State, (1898); law, ministering instruct- 101 Tenn. 47 S.W. 703 court State, supra n. was, Howe, supra; Harris v. ing jury as to what the law legal at 598-601. It is well rec- what were the elements of the of- 52 Harv.L.Rev. State, (1939); Wright v. 217 Tenn. 394 S.W.2d Harv.L.Rev. 584-588 38 Ann.Cases 1915D, (1965) (instruction jury judges 1261-1263. that, they the law and the facts and if found the regard, In this the Court has held that the use 8. convictions, requisite prior "the verdict would given “should" and "will" in instructions guilty being be" that defendant a habit guilt phase degree trial first murder I, criminal, 19). ual did not violate Article I, Taylor, does not violate Article 19. State v. (Tenn. 1989). Cf. by the the defen- however, right analysis only not briefs of ognized, to have by also amicus jury punishment part was not and the State but assess dant right Capital at common law. Resource of trial filed Case briefs 100, 107, State, 130 Tenn. Woods v. and the Tennessee Tennessee Center also S.W. see Hunter Attorneys General Conference. District State, 900, 902 ago, in the Court Over decade State, Tenn. Corlew Cozzolino power to de- constitutionality (Tenn.1979), examined appropriate punishment clare the I, 16, penalty death under Article of the § crime mode of that and the for assessment and concluded: power the punishment the of was within detailing precise scope the of Without might legislative body, assign which that clause, protection by that the afforded both, jury duty judge or the or to places greater hold that it no restric- we mandating particular sentence while punishments may tion on the be to granting degrees of discretion various fed- imposed by this state than does the Latham, 186 Tenn. the sentencer. State v. eral constitution. 38, (1916); 30, 534, 188 S.W. 536 v. Woods Austin, 738, 618 741 In State v. S.W.2d State, 107, Tenn. at 169 at 559. 130 S.W. (Tenn.1981), fact, the Court reiterated In at common law death was mandato- ry punishment for all convicted murderers. nothing is either the state or the there 183, California, 402 v. McGautha constitution, historically or federal other- 1454, 1462-1463, 197-195, 28 wise, imposition precludes the of which (1971). L.Ed.2d 711 with the penalty the death accordance procedures under the circumstances facts, light In is the of these it clear that present the statutes of provided for in I, the last mandate of sentence Article the state. 19, does was not meant to and not affect § sentencing the criminal punishment of decisions, the ten since these years In the indisputable While is defendants.9 it consistently posi the has adhered power pre- Assembly of the General per not a se penalty that the death tion procedures guidelines cap- scribe I, See, e.g., of Article 16. Hous violation § sentencing may subject ital to constitu- be (Tenn. 267, State, 276 v. 593 S.W.2d ton restraints, tional the final clause Article 383, 1980); Laney, 654 S.W.2d 389 State v. I, 19, among is not these.10 § 676 (Tenn.1983); Sheffield, v. State (Tenn.1984); Caldwell, 542, presenting 547 State v. addition the issues (Tenn.1984); 459, v. regarding raised the con- 466 State defendant 671 S.W.2d 441, (Tenn. guidelines 451 stitutionality statutory Porterfield, of the for Barber, 659, 1988); 670 determining appropri- whether death is an v. (Tenn.1988); Alley, 776 S.W.2d penalty, ate this also affords the case 506, Boyd, opportunity to 518 v. 797 Court the re-examine 589, (Tenn.1990). constitutionality penalty itself continue of the death We I, interpretation of of the Tennessee this the Ten under Article to abide § Constitution, but, light We are assisted nessee Constitution.11 charged longer judge that it is the 9. It is that at time of the Constitution need no of note degree applies in trials for first murder the the law as to the facts the facts and it power disregard jury’s judge had the This of the court. instruc- under direction mitigating finding recom- circumstances and necessary statutory remains under the sen- tion tencing a life mendation of sentence sentence adopted by General scheme Assem- State, death. Leach defendant See bly. 584, 597, (1897); Lancas- Tenn. 42 S.W. State, Tenn. 18 S.W. ter I, provides: excessive bail "That § 11.Article (1874); (1891), State, Tenn. Greer v. required, fines im shall not be nor excessive Lewis Tenn. punishments posed, in nor cruel and unusual holding 10. Our to mean should not be construed flicted.” hearing sentencing capital fenses, increasing evident, importance proof state constitution when the or the see, capital jurisprudence, e.g., al law in presumption great. J. (Emphasis supplied.) Walsh, Acker Challenging and E. language The underlined has been included Constitutions, Penalty Death under State each Tennessee’s three constitutions (1989), take this Vand.L.Rev. 1299 we undisputed and it is that the framers of our opportunity to set forth in more detail our recognized acceptability constitutions I, analysis of this issue under Article 16. § earlier, capital punishment. As stated that, Initially recognize al we the common law rule mandated death for though Eighth Amendment to the Fed and, murderers; except all convicted for I, eral Constitution and Article are period one brief from 1915 to textually parallel, this does not foreclose penalty statutorily has been sanc- I, interpretation language of Article punishment first tioned the offense of expansive more that of the sim than degree ap- murder in Tennessee.13 isAs provision. ilar federal See California then, parent, founding since the of this Greenwood, 35, 50, 108 legislative en- state both constitutions and L.Ed.2d 30 California contemplated imposition actments have Ramos, 992, 1013-1014, 463 103 S.Ct. penalty; nothing in of the death the 3446, 3460, (1983); 77 L.Ed.2d 1171 Doe v. legislative history constitutional or of this 834, (Tenn.1988); Norris, 751 838 S.W.2d per State mandates that death is invalid se (Tenn. State, 758, Miller v. 584 S.W.2d 760 punishment as cruel and unusual under 1978). issue, however, analysis Our of this I, Article 16. § yield does not results different from those by Supreme reached the United States legislative accept Historical- and Court and of almost all of our sister punishment, signif ance of a mode of while courts.12 icant, dispositive should not decid when legislative history and constitutional ing punishment Tennes whether a violates of Tennessee indicates a clear intent that prohibition against see’s constitutional cru penalty ap- is in some cases death punishment. el and unusual To so hold I, propriate punishment. form of Article organic both limit the law of the would 8, provides: § constitution to the moral sentiments of its impris- That no man shall be taken or subjecting to drafters and risk individuals oned, freehold, or disseized of his liber- legislative power. Gregg the abuse of See outlawed, exiled, privileges, ties or or or 153, 19, 174, 428 U.S. n. 96 Georgia, v. destroyed deprived any or in manner or 2909, 2925, 19, n. 49 L.Ed.2d 859 life, liberty, property, by of his or but (1976) Dulles, (plurality opinion); Trop v.

judgment peers of his or the law of the 86, 590, 597, 99, 2 356 U.S. 78 S.Ct. L.Ed.2d (Emphasis supplied.) land. (1958) opinion); (plurality 630 State v. I, 15, part: Article states in Ramseur, 123, 188, 524 A.2d 211 § 106 N.J. (1987). very generality by of the terms prisoners That all shall be bailable capital sureties, that, like sufficient unless for of- “cruel and unusual” indicates Vand.L.Rev., 1331, 151, term]; already serving supra, 12. See 42 at n. where defendant life rejecting 1917, 14, 1919, by for a list of decisions state courts Public Acts Ch. and Public Acts capital punishment per se 5, the contention that is [reinstating penalty]; Ch. death Public § unconstitutional under their state constitutions. 1973, 192, 2; 1974, Acts Ch. Public Acts Ch. § supreme When the state courts of California 462, 3; 1977, Ch. time § Public Acts 51. From penalty and Massachusetts declared the death penalty to time in Tennessee the death has been constitution, per se invalid under state appropriate punishment for other considered crimes, voters amended the state constitution to allow simple such as a second offense for capital punishment. imposition larceny, forgery, perjury, arson or horse steal- 1807, 73, 2, 4; ing, kidnap- Public Acts Ch. §§ 1829, 23, (mandatory § 13. See Public Acts Ch. 49, 1; 1935, ping, rape, 1837-1838, Public Acts Ch. Public § hanging); by Public Acts Ch. death 56, 1; 1974, 29; 1858, 4601; (Extra Acts Ch. Public Acts Ch. § Code Public Acts Ses- § 461; 36; robbery, sion) and armed Public Acts Ch. Ch. Public Acts Ch. 181 [abolishing penalty except rape death for 72. Third, go beyond Constitution, punishment does the framers of Federal law of Tennessee’s fundamental le- necessary accomplish authors is what defining terms delegated the these task objective. penological gitimate Thompson v. the courts. See Okla- Ramseur, (citing 524 A.2d at 210 homa, 108 S.Ct. 428 U.S. at Gregg Georgia, 101 L.Ed.2d 2925).14 deter The exact standards to be used to determining death whether the pun legislatively approved mine whether stan contemporary penalty conforms with ishment is cruel and unusual under decency, note that there we dards set Tennessee Constitution have never been nothing majority indicate Indeed, forth the courts of state. contemporary Tennesseans consider involving published there are few cases pun I, penalty per inappropriate se an death challenges constitutional under Article Indeed, prior part degree for murder. 16. These cases for the most ishment first Arti equate requirements Capital Re appear brief of the Case the amicus I, Eighth cle with those public opinion source Center admits Busler, See, e.g., Amendment. State v. throughout the United States favors (Tenn.1986); 312-313 Coz S.W.2d first- penalty punishment death State, 767; zolino Collins degree murder. State, S.W.2d Ca penalty That Tennesseans find Tenn. nupp v. ac- acceptable clearly evidenced Dobbins, Assembly, of the General that branch tions (Tenn.Crim.App.1988); government representative most Summers, (Tenn. responsive people the views Crim.App.1985). the United States Su- this state.15 When required to the While not follow in v. Geor- preme Court's decision Furman applied under the consti standards federal 238, 2726, 33 L.Ed.2d 408 U.S. 92 S.Ct. gia, State, tution, supra, see Miller v. we ad in (1972), and this Court’s decisions 346 analysis Gregg Georgia, here to the in v. 712, 714-715 Hailey, v. State 173, 2925, particular 428 at at U.S. 96 S.Ct. (Tenn.1974), 550 and Collins v. ly by Jersey Supreme as followed the New 643, (Tenn.1977),rendered 646-647 Ramseur, Court in A.2d at State v. 524 set- Tennessee’s statutes unconstitutional 210-216; reasoning persuasive and find the first de- ting punishment death as for the of also both decisions. See Common murder, Assembly re- gree the General 16, Zettlemoyer, v. 500 454 wealth Pa. attempt- of new sponded passage with acts 937, Camp A.2d 968-969 cure constitutional infirmities ing to the 1, bell, 929, 103 Wash.2d 691 P.2d 946-948 sought, like over found in these cases (1984). Under test of Gregg, the of quarters legislatures state three First, inquiries required. are [t]hree nation, penalty to the maintain death this punishment the for con- does the crime degree murder. punishment for first as de- contemporary form with standards of recently, punishment re- the Second, gross- More cency? punishment is the Code part as the Revised disproportionate to the offense? tained Criminal ly 2595, 2599-2602, (1986) analysis 91 L.Ed.2d 335 14. This method of has 106 S.Ct. been followed Supreme subsequent decision) (insane person). Court (plurality United States the determining cruel and whether death is cases punishment specific cir- under certain unusual forbidding legislative restrictions the 15. The Penry Lynaugh, U.S. v. 492 cumstances. See 302, minor, penalty a death the defendant is when 2953-2958, S.Ct., 2934, 106 L.Ed.2d 256 (1990 37-l-134(a)(l)(A) Supp.), or § T.C.A. defendant); (1989) (mentally Thomp- retarded (1990 retarded, mentally § T.C.A. 39-13-203 2687, Oklahoma, U.S. S.Ct. son v. legislature’s performance Supp.), the illustrate defendant); (1988) (juvenile L.Ed.2d 702 contemporary re- to of its role reflect attitudes McCleskey Kemp, v. U.S. S.Ct. capital garding punishment. 1771-1782, (1987) (racial dis- 95 L.Ed.2d crimination); Wainwright, 477 U.S. Ford v. Walsh, 591, 2930-2931; see Acker of 1989. Public Acts Ch. also & See 134; at n. a factor Vand.L.Rev. 1. § legislative properly left branch Nor, suggests, does the amicus brief government. Ramseur, A.2d State of executions Tennessee absence increasingly questioned, at 215-216. While support position contemporary jus- penological remains valid retribution a feeling, despite legislative approvals, is in penalty. for death tification against reality penalty. death As punishment is an [CJapital expression notice, judicial juries, can take even society’s outrage at particularly moral representatives more direct contem- may This be offensive conduct. function porary leg- mores of than the Tennesseans many, essential unappealing but it is islature, pen- impose continue society its citi- ordered asks juries alty, eighty imposed and over have rely legal processes rather zens to present since penalty the death statute wrongs. self-help their than to vindicate Further, the was enacted in 1977. absence at Georgia, 428 U.S. 96 S.Ct. Gregg v. has more to do of executions Tennessee Channeling at man’s instinct 2930. natural complexities of the law and the pur important for retribution “serves an legal system any public than with animus society pose stability promoting against penalty. death as Cf. governed by seeds law” “the Ramseur, 524 A.2d 212. begin to “people anarchy are sown” when analysis is prong A second our wheth society unwilling organized believe punishment disproportion grossly er the impose upon or criminal offend unable See, Busler, e.g., ate to the crime. ” they Fur punishment ers ‘deserve.’ propor (applying 704 S.W.2d at Georgia, 408 U.S. man v. tionality to a analysis habitual criminal sen J., (Stewart, concurring). at 2761 life). may dispro tence While death analysis engaged indepth in an We have portionate per se when the offense does underlying holding our of the rationale victim, see, e.g.,. not involve the death per does not se violate penalty the death Georgia, Coker I, of the Tennessee Constitu- Article (1977), 53 L.Ed.2d 982 defen holding and clarify tion in order to both our nor intent kill dant neither killed had an I, ac- parameters of Article 16. We lethal force contemplated nor use of ar- knowledge compelling serious others, Florida, see Enmund to guments presented appeal on this as 782, 3368, (1982), L.Ed.2d S.Ct. why unacceptable punishment is an death this is not true when the crime first- first-degree Most any in case of murder. degree As in Gregg murder. stated v. however, assertions, subject to are these Georgia, at 96 S.Ct. at 428 U.S. legitimate disagreement purely and are deliberately has been when a life taken legislature’s for the consideration. matters offender, by say we cannot Barber, in As this Court concluded State invariably disproportionate punishment is issue of whether “[t]he sanction, It is an to the crime. extreme cruel penalty the death constitutes not suitable the most extreme crimes. to is, punishment the last and in unusual determining in last consideration question moral which has been analysis, a is cruel and unusual under whether death by Legislature in this our resolved State I, goes it beyond Article is whether not people.” of the It is representative § necessary accomplish legit- to per- what “superimpose of this role penological objective. issues, The two morality” imate sonal in difficult support in factors often cited nor act as “a Campbell, most 691 P.2d at penalty general society.” deterrence and Den- good death are reflex of a democratic 494, 525, penalty States, retribution. Whether the death nis v. United (Frank- (1951) is a general serves as a deterrent crime S.Ct. L.Ed. J., reasons, debate, furter, subject continuing concurring). see For these Gregg 184-186, holdings prior at we reaffirm Georgia, 428 U.S. allega- present evidence on the per portunity not penalty Court that the death does impos- as a means of I, electrocution Tennessee tion that se violate Article § penalty is cruel and unusual ing the death Constitution. I, Article 16 of punishment violation sentence of We have reviewed the Tennessee Constitution. the mandates of death in accord with view, Because, require my these errors (1982) satisfied T.C.A. 39-2-205 and are resentencing, it is unneces a remand for imposition of the evidence warrants penalty per if sary to determine penalty. comparative proportion Our Constitution. se the Tennessee violates the sentence ality convinces us that review until That issue should be reserved dispropor of death is neither excessive nor there presented a case which Court is penalty imposed in similar tionate to requiring reversal of are no other issues cases, considering both the nature of judicial the sentence. Considerations the Defendant. Defendant delib crime and ap economy command this and restraint innocent, helpless, fright erately killed an Puckett, 2 Tenn. Cases proach, Beck see those of a cold ened child. His acts were (1877), rule 494-95 and it is a settled a total blooded executioner who showed pass the consti this Court will not on disregard for human life. This brutal absolutely tutionality of a unless statute places Defendant senseless murder necessary for the determination of the into the class of defendants Black deserv Murray, case. ing capital punishment dispro not and is rel. v. Ki State ex West portionate imposed to sentences in similar vett, 203 Tenn. See, Barber, cases. (Tenn.1988). The sentence of death penalty must Any discussion of the death provided by carried out as will be law begin recognition that the defen- October, with the day the 15th unless other have caused dant’s wanton and brutal acts wise ordered this Court or other untimely unnecessary death of a proper authority. The life sentences in being have caused inestimable III, human plus years, I Counts five to run society. damage fragile fabric of other, consecutively to each and consecu extin- Because the defendant’s acts have imposed tive to the death sentence in Count life, helpless guished the law is II, the victim’s years burglary and the 15 with a recognition directly. In to aid the victim firearm are affirmed. victim, wrong pro- does law best, though obviously inadequate, its ANDERSON, JJ., vide O’BRIEN and concur. and restitution to the means of redress REID, C.J., DAUGHTREY, J., against perpetrator and family victim’s part part. concur in and dissent See persons his estate. Since almost all sen- separate opinion. this, indigent, again, is tenced to death are REID, Justice, concurring part meaningless gesture. than a Chief little more dissenting part. and pun- right responsibility and Since holding lies with the law majority I concur in the ish for crimes committed affirmed, family, I the victim or his or her guilty that the but and not with verdict proper must address the treat- would reverse the sentence and remand for the law then regard, In this resentencing hearing grounds on the that ment of the defendant. responsibilities defendant support is insufficient to two law has two the evidence —the rights by society. Historically, society’s aggravating circumstances found retribution, 39-2-203(i)(5) (12), by life for vindicated jury, T.C.A. have been § life, tooth, stripe. stripe for aggravating that the circumstance in tooth for (5) Blackstone, unconstitutionally vague 4 *13. Of subsection W. Commentaries late, justification Fur- has found applied to the facts of this case. the law See, thermore, punishment I the case to the in deterrence of others. would remand 40-35-103(l)(B). op- e.g., court to afford the defendant the T.G.A. trial § 192 case, capital obligations by

In to minimum standards set the federal con- the law’s require purposes the defendant stitution. that “[f]or imposing penalty, the death defen- [the study past A of the case law over the punishment ... must be tailored dant’s] decade, however, reveals that there has personal responsibility and moral meaningful no review of the death been 782, Florida, guilt.” Enmund v. 458 U.S. penalty and the state statute under the 801, 3368, 3378, 102 S.Ct. 73 L.Ed.2d 1140 Tennessee Constitution. United States (1982). The criminal sentence must be di- acknowledged Supreme Court has that the personal rectly related to the offender’s only federal constitution states the mini Arizona, culpability. 481 Tison v. U.S. floor, standard, mum and that 137, 149, 1676, 1683, 107 S.Ct. 95 L.Ed.2d provide greater protec states are free to (1987). imposed 127 ... sentence “[T]he justice systems tions in their criminal than response should reflect a reasoned moral requires. the federal constitution Califor character, background, to the defendant’s Ramos, 992,1013-1014, 103 nia v. U.S. Penry Lynaugh, and crime.” U.S. 3446, 3460, (1983); L.Ed.2d S.Ct. 302, 2934, 2947, 109 S.Ct. 106 L.Ed.2d 256 Greenwood, also 486 U.S. see California Brown, (quoting U.S. California 35, 1625, 1630, 100 L.Ed.2d 30 108 S.Ct. 538, 545, 837, 841, 107 S.Ct. 93 L.Ed.2d (1988); Hass, 420 U.S. Oregon v. (1987) (concurring opinion) (emphasis in (1975); 1215, 1219, 43 L.Ed.2d 570 95 S.Ct. original). York, 40, 60-61, 392 U.S. Sibron v. New this, In all of the limit to the law which 1901-1902, 20 L.Ed.2d 917 S.Ct. go imposing punishment upon can acknowledged its This Court has defendant in for his crime and retribution Tennessee Con authority to hold that the society for the benefit of is set forth in the defen provides protection of a stitution That limit federal and state constitutions. rights beyond comparable feder dant’s punishments.” is “cruel and unusual U.S. guarantees. al constitutional See Doe v. Const, VIII; I, Tenn. Art. amend. Const. Norris, 16. (Tenn. State, Miller v. Georgia, Furman v. 1979). (1972), 33 L.Ed.2d 346 the Unit- Supreme The United Court has States Supreme ed States Court failed to find that evolving “an sense of de also found that un- penalty per se cruel and protec cency” determines the standard punishment Eighth usual forbidden definition, evolving By tion afforded. an Amendment Constitu- United States developing decency means a stan sense However, it did indicate in Furman tion. dignity respect. This Court dard of penalty by imposition that the of the death has not decided if our constitutional stan any procedure the sentencer which allows is, imposing the sentence of death dard for deciding standardless discretion who federal, evolving like the an standard. It and who dies cruel and unusual lives “evolving pronounced not standard has Furman; punishment. The decisions in decency” in that determines Tennessee Gregg Georgia, 428 96 S.Ct. validity punishment imposed under 49 L.Ed.2d 859 Woodson example, our constitution. For own Coz Carolina, 428 U.S.

North (Tenn. zolino v. (1976); and their com- 49 L.Ed.2d 944 1979), pre refused to detail “the flurry legisla- panion cases resulted protection scope cise afforded” during years activity tive in Tennessee I, “places that it Article 16 but concluded through attémpt 1977 in an from 1973 greater punishments no restriction on the penalty stat- ensure that Tennessee’s death may imposed by be this state than complied ute with the federal constitution. does the federal constitution.” response Georgia, In the Gen- Gregg v. doctrine, In this the Court accord with Assembly passed present capital eral appears to have continued to affirm sen- sentencing No court has found statute. statute, terms, by ascertaining whether by its offends the tences death that this

193 304, 2991, son, 428 U.S. at 96 S.Ct. at procedural and satisfies substantive law jurispru only principle the latest national minimum standard. of federal settled See, 506, e.g., Alley, appears State v. 776 S.W.2d “a life for a life.” See dence (Tenn.1989) 584, (adopting 518 federal standard 433 97 S.Ct. Georgia, Coker v. U.S. appellate jurors (1977). for review of excusal of 2861, “legal 53 L.Ed.2d 982 Such of their on the for cause because views doctrine-making in a state of nervous West, penalty); death State v. 767 S.W.2d breakdown,” Weisberg describes 387, (Tenn.1989) (adopting 396-397 broad juris Eighth Amendment current state power appellate suggested est review Death, Sup. prudence Deregulating 1983 Bullock, 376, 474 U.S. 106 S.Ct. Cabana v. (1983), 305, accentuates the Ct.Rev. 306 689, (1986)); 88 L.Ed.2d 704 v. capital pun courts in critical role of state Smith, 757, (Tenn.1988) Walsh, Acker & Chal ishment cases. See (accepting Phelps, v. 484 U.S. Lowenfield Penalty lenging the Death Under 231, 108 546, (1988) S.Ct. L.Ed.2d 568 Constitutions, 42 Vand.L.Rev. 1299 felony aggravating the use of murder as an Tennessee constitutional standards are circumstance); Barber, 753 State v. step destined walk in lock with the not 659, (Tenn.1988)(assuming compa 663-668 fluctuating federal standards uncertain proportionality is not re rative review relegate do not Tennessee citizens to Constitution, following quired by the State protec- of constitutional lowest levels Harris, 37, Pulley U.S. S.Ct. tion, guaranteed by those the national con- 871, (1984)); 79 L.Ed.2d State v. Porter stitution. 441, (Tenn.1988) field, 746 S.W.2d 450-451 (following Brown, Indeed, Assembly clearly 479 U.S. the General has California (1987)). 107 S.Ct. 93 L.Ed.2d 934 life is at indicated that when defendant’s effect, only stake, standards Tennessee of Tennessee are entitled to citizens guaranteed have been those announced the United greater protections than those Supreme required by States Recog- Court as by the States Constitution. United federal constitution. nizing higher the United standards than Supreme has found in the States applied by Yet the standards the United reflecting higher constitution and federal Supreme States Court are torn tension decency” in “contemporary standard of Gregg’s requirement between of chan- Tennessee, legislature has forbidden guided nelled and discretion to achieve persons under the the execution of who are measured, application pen consistent 37-l-134(a)(l), age eighteen, T.C.A. § alty designed rationally in a manner retarded, mentally are T.C.A. who distinguish those for whom death is an Compare v. Ken- 39-13-203. § appropriate sanction and the commandment Stanford tucky, 492 U.S. 109 S.Ct. Woodson, like cases 428 U.S. at (1989) (Eighth Amendment is L.Ed.2d 306 2978; Oklahoma, Eddings S.Ct. at by imposition of death on six- not violated 104, 102 U.S. S.Ct. 71 L.Ed.2d 1 olds); year Penry teen and seventeen Ohio, and Lockett v. 98 S.Ct. 2934, 106 Lynaugh, 492 U.S. 109 S.Ct. (1978), 57 L.Ed.2d 973 which hold that (1989) (Eighth L.Ed.2d 256 Amendment and, sentencing must be individualized prohibit subjecting mentally re- does not therefore, that the sentencer must not be ' penalty). Like- tarded defendant to precluded considering any mitigating from wise, although does the federal constitution Arizona, factor. See Walton U.S. require comparative not re- -, proportionality 3047, 3058-3068, view, Harris, Pulley v. (1990) (Scalia, J., concurring); L.Ed.2d 511 (1984), 871, 79 L.Ed.2d 29 the General Dicks, T.C.A. (Tenn.1981)(Brock, J., Assembly has mandated under dissenting). Despite 39-13-206(c)(l)(D) [previously 39-2- pronouncements there court’s 205(e)(4)] reviewing sentence of “heightened reliability” must be to ensure degree, in the first respect humanity “the fundamental un death for murder Amendment,” derlying Eighth determine whether the sen- Court must Wood designed represent imposed tence of death in each case “is are the community, peremptory “voir dire and and cause disproportionate penalty excessive to the chal- lenges can jury’s skew a imposed cases, in cross-sectional considering similar both jury represent- character” and since even a the nature of the crime and the defendant.” community of ative the local “is not neces- Comparative proportionality review is a sarily attitudinally representative of the means insuring against arbitrary of population of a state taken as a whole.” imposition penalty of the death and assur- Goodpaster, Review Judicial Death Sen- ing capital sentencing in Tennessee tences, Criminology 74 J.Crim.L. & “evolving decency” reflects the standard of (1983). Review of death sentences under- in By this state. the enactment of this taken with a broad awareness of the deci- statute, Assembly required the General has by juries sions made a number across this Court to focus on the accused and assessing Tennessee in death is an whether compare the circumstances of his offense appropriate punishment capi- assures that degree with those of other first murders. punishment only tal is inflicted where con- question The proportionality of traditional prevailing sistent with the standards of this punishment seeks to ascertain whether the represented by state as its citizens’ consen- proportional gravity of death is only appropriate sus and therefore where specific being crime for which it is I, under Art. 16 of the Tennessee Consti- imposed. comparative proportionality tution. analysis requires mandated the statute With the aid of the information available this Court examine on a state-wide Supreme under our Court Rule this imposed basis sentences all first rigorous Court can assure and thor- and, degree necessary, murder cases as ough comparative capital review of each factually similar homicides. The Court penalty rationally, case that the death is procedures must determine whether the de- constitutionally, imposed and therefore signed capricious- to curb arbitrariness and people this those few cases which in capital sentencing ness have failed to agree state that the ultimate sanction exclude from that sentence the defendant warranted. aggravated “whose crime does not seem so circumstances, particularly Under these compared many when to those of es- who light punishment, of the nature of the caped Kaplan, penalty.” the death imperfection judicial system, Punishment, Capital Problem discretion in the broad vested district U.Ill.L.Rev. 576. Such review was attorneys general of this see State v. assure, designed to “at least on a statewide Dicks, 136, 140-141, level, penalty imposed that the death is not indepen- Court should assert its full and arbitrary Raybin, in an fashion.” New authority dent under the State Constitution Enacted, Penalty Death Statute Judicial process whereby that the assure a defen- Newsletter, University of Tennessee Col- essentially dant is sentenced to death is Law, 1977). lege (May at 11 This review Court, through free of error. This examples of identifies “the most extreme review, appellate exercise strict must disproportionality among similarly situated require stringent compliance and exact thereby serving “to eliminate defendants” with the Tennessee Constitution and state irrationality currently sur- some of the Supreme statutes. The United States imposition sentence.” rounds of a death repeatedly emphasized Court has im- Harris, 465 104 S.Ct. Pulley v. U.S. at portance meaningful appellate review (Brennan, J., dissenting). at 890 against protect imposition the unlawful Comparative proportionality re- review penalty. the death Zant Stephens, See 862, 876, articulation of “standards of de- quires 462 U.S. 103 S.Ct. they evolve in Tennes-

cency” exist and Florida, L.Ed.2d 235 Barclay v. single 939, 973, commented that “a see. It has been may accurately (1983) (Stevens, reflect J., not dominant L.Ed.2d 1134 concur- since, (“the juries ring) community question whether, sentiment” while regu- in its analysis prior in the deci any has made practice, Supreme lar the Florida Court there stamp upon holding. court become a rubber for lower relied for this sions determinations”). death-penalty Williams, defined as In “torture” was or physical “infliction of severe mental I. she upon the victim he or re- pain while I principles guidance, now With these as and 690 S.W.2d at mains alive conscious.” narrow the constitu- address the issues of implies also that the inflic- 529. Williams aggravating tionality of certain circum- pain willful. of such must be Id. tion in this case stances found and the sufficien- any in the record to There is not evidence cy support them. The of the evidence finding in the victim the support a aggravat- jury required to is consider torture under this present case suffered ing mitigating deter- circumstances to and proof The that Lakeisha definition. shows mine is an appropriate if death sanction may that she Clay was shot twice and have purpose The considera- this case. of this time, at such conscious this but evi- been limit tion federal law is and under to direct finding support a of dence is insufficient to jury’s discretion “so to minimize meaning within of circumstance torture arbitrary capricious ac- wholly risk of 530; at (i)(5). Williams, 690 S.W.2d See impos- prevent jury tion” and to from Pritchett, v. S.W.2d unreasoned, ing penalty the death in an (Tenn.1981). Gregg v. emotional reaction murder. 2932; at Georgia, 96 S.Ct. (i)(5) proved may also be Circumstance Ramos, 999, 103 v. 463 U.S. at California Proof by showing “depravity of mind.” of jury S.Ct. The “the at 3452. must examine depravity ipso torture establishes of facto of the the circum- character individual and willfully one mind because mind of who crime,” Stephens, stances of the Zant pain or mental physical inflicts such severe U.S. at 103 S.Ct. at Williams, depraved. is on the victim “personal responsibility and defendant’s said, As is just at 529. there no Florida, guilt,” moral Enmund v. 458 U.S. upon in this case to base a torture which against 102 S.Ct. at measured finding depravity. this of Williams community. of the See conscience held, however, depravity may Court 320, 333, Mississippi, 472 U.S. Caldwell in the absence of torture without exist (1985) S.Ct. L.Ed.2d those which es- specifying circumstances (the jury decides should whether another “depravity mind.” such Id. tablished community”). die “on behalf simply “depravity” as The defined circumstances, aggravating As of six one perverse corruption; or “moral wicked case murder this found that the jury in though the this act.” Id. Even Clay Lakeisha satisfied the conditions words, exact instructed in these case was 39-2-203(i)(5) (1982). The defen T.C.A. § guidance. no they given real is un dant contends that this circumstance dictionary defini- An examination constitutionally vague. cir Aggravating clarify the three terms meant tions of (i)(5)requires murder in that a cumstance might “depravity” that it so be the term mind” for “depravity “torture” or volve guide jury’s discre- used to channel heinous, or “especially it to atrocious “corruption” and “wicked tion reveals case present The trial court in the cruel.” synonymous “depravity” are so act” jury on definitions of instructed the limiting clarifying no or they serve as established this Court these terms Likewise, means sim- “perverse” function. (Tenn. Williams, 690 object or action described is ply that the states, 1985). majority “The trial The away right from what “directed removed of the terms court’s definitions Heritage good.” Dic- See American any the class vagueness narrowed English tionary Language eligible penalty.” persons the death too, guides It, way jury’s in no discre- analysis no contains further opinion circumstance, degree those first murders which aggravating nor tion to degree quirements Godfrey Georgia, first 446 U.S. death warranted since (1980); good right. nor murder is neither 64 L.Ed.2d 398 Maynard Cartwright, subsequent to An examination of cases 100 L.Ed.2d 372 aggravating circum- which this Williams I Article Tennessee Constitu- support sentence of stance was used to tion. death discloses no further clarification or meaning “depravity limitation of the Supreme The United States Court has Teel, See, e.g., mind.” State v. aggravating it circum- made clear (Tenn.1990); Payne, 251 v. 791 State requiring “espe- stances that a murder be (Tenn.1990); Alley, S.W.2d 10 v. 776 State heinous, atrocious, cially or cruel” need not (Tenn.1989); Henley, v. S.W.2d State require construed to torture or serious be (Tenn.1989); 774 S.W.2d 908 State v. physical Maynard abuse. See v. Cart- (Tenn.1989); Thompson, 768 S.W.2d wright, 486 U.S. at 108 S.Ct. at 1859. Barber, 659, 668-669 State may identify “depravity The term of mind” (Tenn.1988); Porterfield, State v. leading leg- concerns distinct from those (Tenn.1988); State v. S.W.2d body to include torture of a islative victim (Tenn.1987); McNish, 727 S.W.2d warranting consideration as a circumstance Cooper, 718 S.W.2d However, if “de- of death as a sentence. Hartman, pravity aggravating of mind” is to be (Tenn.1985). It is unclear factor, defined so it aids the it must be they from these cases whether involve tor- determining jury under constitutional something key ture or more. The factors if exe- principles the accused should be aggravating used to test for this circum- cuted. stance are also unclear. One commentator principles In accord Williams length they “appear states that to be” the limiting proper Godfrey Georgia, kill, of time the defendant’s atti- used “depravity of mind” to construction of during killing, con- tude the victim’s given in those cases where torture ab- impending sciousness and realization of by adopting the sent would be established death, dangerousness of the instrumen- definition of that term set forth death, tality used to inflict the number of Jersey Supreme Court in New blows, and several other factors. S. Feld- Ramseur, 106 N.J. 524 A.2d 230- man, Criminal Offenses Defenses (1987), phrase it held that this where (1990 Supp.). There is no Tennessee marks analysis of such factors in this case. society’s punish severely concern to It is that this circumstance was notable purpose or those who murder without during the recent revision of the amended meaning distinguished from those phrase “depravity criminal code. The (albeit purpose a com- who murder for a statute, mind” was deleted from that purpose). This pletely unjustified term (i)(5) now limited to mur- circumstance greatest conduct that causes the isolates involving physical ders “torture or serious an ordered and terror within abhorrence beyond necessary produce abuse society, cannot either in because citizens 39-13-204(i)(5). T.C.A. death.” perception protect or in themselves fact case, was no evidence In this where there from these random acts of violence. torture, jury guidance received no it, likes killer who does it because he determining the defendant’s mind whether it makes him feel perhaps even because beyond materially “depraved” that of better, bystanders kills without rea- who first-degree any murderer. See State son, who kills children and others whose (Tenn.1988). Hines, 758 It indicate that there helplessness would involving torture appears that in cases not murder, was no reason to evinces what supply appellate has failed to on depravity of mind. we define as principled review a definition T.C.A. 39-2-203(i)(5) adequate satisfy the re- ^{[*] [*] [*] [*] [*] [*]} Analysis of the facts of this case under society What is concerned with here ... society’s complete depravity is the absence—from definition of re- Ramseur recognizable point of the inconsistency logic view—of in the veals an ordinarily motivations or emotions that regarding aggravating jury’s findings cir- explain murder. encompassed by The murders cumstances. (i)(5) aggravating circumstance are those determining whether a murder is hei- “any recogniz- committed without nous, atrocious or cruel in that it involves ordinarily explaining motivations” able mind, depravity jury must base also Yet the in this case found murder. findings something than the its more pur- that the murder was committed with a statutory ag- existence of one of the other although “completely unjustified pose, gravating part circumstances. Each prevent appre- purpose,” defendant’s every presumed word of a statute is the murders of the victim’s hension for meaning purpose have and should not killing A superfluous surplus- mother and sister. cannot be be construed as or as Collins, age. recognizable purpose, 522 and Tidwell v. S.W.2d committed for no Henderson, v. Marsh demonstrating “depravity therefore 221 Tenn. S.W.2d mind,” pur- and at the same time for the choosing It must assumed that in those preventing perpetrator’s pose of the identi- enough circumstances severe to warrant prosecu- fication arrest or and his “lawful penalty Assembly the death the General tion.” repeat intend did not itself in senseless I the also conclude that facts of this case case, duplication. example, For in this legally are insufficient to the so- establish showing that the defendant was an adult aggravating called “mass murder” factor age and the victim a child under the was 39-2-203(i)(12). in At first found T.C.A. § clearly aggravating twelve established the glance technically complies the evidence 39-2-203(i)(l). circumstance contained in § However, wording of the with statute. killing As heinous and senseless as such a legislative history clearly re- review the is, however, this factor should not be avail- was veals that this circumstance intended (i)(5). support able to circumstance The solely apply to serial murders like those express killing by inclusion of the of a child by Wayne in the late committed 1970s separate aggravating an adult as a circum- early by in Atlanta and the 1980s Williams stance indicates that this circumstance of Sam” in New York. “Son See State alone is not meant to be included within Bobo, (Tenn.1987). v. aggravating (i)(5) circumstance since to do legislative Even if the intent had been to (i)(5) super- so would render circumstance encompass multiple murders like the homi- interpretation fluous. Such an of the stat- only meaning by sniper ute not clarifies the of cir- cides inflicted at the Universi- (i)(5) prevents Texas, concludes, unin- majority cumstance but also ty of as the this “double-weighing” aggravating tended murder still does not fall under statute. encouraged by vagueness factors killing The sum and substance of this was previous statutory language. the de- the domestic involvement between victim. The facts of fendant and the adult embodying An instruction Ramseur generally this do not show what is case interpretation of definition and this circum- view, my in considered mass murder. (i)(5) guide jury would in “distin- stance support holding the evidence sufficient to guishing the few cases in which [the circumstance, pre- this the Court is “not many penalty imposed should from the be] meaning purpose serving the and be],” in it not cases which Furman [should enactment, substantially legislative but [is] Georgia, U.S. at S.Ct. at 2764 meaning altering purpose its and as writ- J., (White, concurring), and would isolate clearly and as intended.” ten State those murders characterized a vileness (Fones, Bobo, J., at 957 dissent- inhumanity beyond that inherent S.W.2d degree ing). every first murder. Clay killed cause he Lakeisha connection

II. mother, the murder of her T.C.A. with aggravating cir these invalidation 39-2-203(i)(6) (7). Qualitatively, ex- jury requires found ex cumstances victim, aggra- age every cept for the has of whether the error that amination vating properly circumstance found up majority occurred harmless. from case arose the defendant’s emotional 2—203(i)(12) applicability holds of § 39— Angela Clay. the oth- involvement with On seemingly unsupported statement with hand, mitigation, the defendant er jury’s error in the consideration of presented testimony that before in- circumstance harmless and could “is Angela Clay, he had been a prejudice caused to the defen volvement not have person, Perhaps, past, responsible in the that he dant.” it has done nonviolent engaging quantitative prisoner, in a he suffered the Court a model was mitigating cir analysis aggravating psychological problems, and that his from simply by counting the number cumstances Clay behavior focused on the violent mitigating factors. aggravating family. See, Hines, 524; e.g., State v. As this Court stated Delk Bobo, 955-956; S.W.2d (Tenn.1979), line be- “the Cone, (Tenn. prejudicial error is in harmless and tween 1984). analysis procedure ignores Such mar- proportion degree direct determination by which reaches its proof gin by which the exceeds stan- appropriate sen of whether death is an required” support the results dard simply process The not one of tence. is jury. In this case the mar- reached cir tallying aggravating mitigating and I matter of gin is slim. would not find as a qualita of weighing cumstances but their jury’s consideration of these law that Thompson, tive values. See State v. aggravating invalid circumstances (Tenn.1989). As a re S.W.2d 251-252 error. harmless sult, mitigating may out one circumstance Furthermore, my opinion it is weigh aggravating circumstances or six Barber, See, e.g., error rely upon should not harmless vice versa. Harbison, 669; State v. S.W.2d at a sentence whenever one to affirm (Tenn.1986). aggravating circumstances found appeal. No error jury is invalidated on scheme, sentencing Because under our this function can regard to critical with weigh this all jury has “discretion hangs being’s life when a human harmless in terms of mitigating circumstances Comment, Deadly Mis in the balance. See significance, to com- value and their Capital Sen Harmless Error takes: aggravating pare quality them to the tencing, U.Chi.L.Rev. introduced,” Feldman, supra, proof (1987). analysis particu is Harmless error re- affirmatively pursue must this Court inappropriate in these circumstances larly aspect facts to what view of the determine capital sentencing scheme like Ten under satisfies each of the defendant’s conduct has the inde juror which each nessee’s aggravating circumstance. When duty aggravating pendent weighing manner, it analyzed is in this present case possesses the mitigating circumstances and ag- of invalid is clear that submission personal discretion determine unfettered cannot gravating circumstances mitigating any factors. the existence Once the to be harmless error. be said 13—204(f) (g); State v. See T.C.A. are remaining aggravating circumstances 39— (Tenn. 239, 250-251 Thompson, 768 S.W.2d essence, it is evi- to their factual distilled 1980). any beyond power is court It eligible that the defendant was found dent may error have affected the say how the victim penalty the death because for inherently subjective performance of these child, 2—203(i)(l); T.C.A. be- awas § 39— Pritchett, duties. involved the defendant had been cause Cf. Moore, Clay’s Angela at 139 earlier altercation with (Tenn.1981). I 2—203(i)(2); While husband, and be- do T.C.A. § 39— (2d 1987); Trial, ed. Com- 2:10-2:11 must be mate necessary it that there not deem Cases, 56 Cal. ment, Penalty The Death proof to mitigating evidence in the some Gardner, 1268, 1338-1339 L.Rev. feel analysis, I do harmless error foreclose Eighth Indignities Executions inappro analysis particularly is that such —An In- Methods Amendment Assessment present one where priate in a case like the Punishment, 39 Ohio St. Capital flicting I presented. mitigating evidence was literature, (1978). its with L.J. resentencing. remand for therefore would to achieve repeated failures descriptions of multiple electric execution and swift III. by prisoners before shocks endured appropri- that remand is I also conclude results, electrocution finally suggests that issue raised dispose fully of another ate to necessary suffering beyond involves imple- The sole method of in this case. extinguish life employed to “in method menting of death in this State a sentence Francis v. humanely.” Louisiana ex rel. Pri- 40-23-114. by electrocution. T.C.A. § Resweber, 67 S.Ct. 329 U.S. “Motion to defendant filed a or to trial the These accounts 91 L.Ed. Electrocu- Penalty Death Because Exclude that it Brennan’s statement confirm Justice Punishment.” tion Is Cruel and Unusual proce- imagine how such “difficult to motion, presented on No evidence was anything less than ‘death constitute dures and, support finding “no whatsoever form of torture by installments’—‘a [that] denied the position,” the trial court ” burning at the stake.’ rival that would motion. 1090-1091, Louisiana, 471 atU.S. Glass v. majority dismisses the claim that the J., (Brennan, dis- at 2166-2167 of death imposing method of the sentence Fran- (quoting ex rel. senting) Louisiana refer- punishment is cruel and unusual Resweber, cis v. Adkins, ence to State v. 381, 382). S.Ct. at stated, (Tenn.1987),in the Court which suggested Adkins, this Court In State v. punishment authority “This over Court’s prerogative of the sole it was the adjudication for crime ends with the hu- validity “the legislature to address constitutionality.” The Court’s observation complaint electrocution manity” of the of obviously overlooks the substance more humane replaced with should be prohibition against cruel and constitutional deci- legislative of execution. While forms to ex- punishment. unusual This refusal of concerning appropriate forms sions constitutionality issue of the amine the deference, great to are entitled punishment explains imposing the means of con- duty interpret it is this Court’s finding is no case trial court’s that there any declare void and stitution of this State not supporting position, but it does law State, Brinkley v. violating it. statute See electrocu- dispose proposition 1120, 371, 1122 143 125 Tenn. S.W. imposing the death as method of tion deter- alone cannot judgments Legislative punish- unusual penalty may be cruel and cruel and punishment is mine whether ment. 428 U.S. Gregg Georgia, v. unusual. See account included (opinion In addition to a brief 19, at 2925 n. 19 174 n. 96 S.Ct. at motions, pretrial Stevens, JJ.). sev- Stewart, Powell, defendant’s Fur- with the and articles, treatises opinions, thermore, and clauses widely accepted eral court it is the torture graphic descriptions punishment forbidding contain cruel and unusual prison- the federal lingering early death suffered state and in the found See, e.g., fram- is thrown.” intended their er “after the switch constitutions 1080, Louisiana, particular cruelty 471 1086- apply v. U.S. Glass ers 2159, 2164-2168, including method L.Ed.2d punishment, kinds of 105 S.Ct. J., administering penalty. the death Gard- (Brennan, dissenting); v. State 137-138; ner, Indignities Dicks, Hopkinson Executions —An Meth- Assessment (Wyo.1981) Eighth Amendment 632 P.2d Punishment, 39 Capital C.J., Inflicting (Rose, dissenting); the Ulti- ods Tools Granucci, penalty. Electrocution (1978); flicting the death “Nor Ohio St.L.J. in the as was first authorized United States and Unusual Punishments Cruel Inflict In killing criminals in 1888. a means of Meaning, 57 Cal.L.Rev. Original ed:” legislature ap- year the New York (1969); Georgia, see also Furman v. dismantling gallows of its proved the .377, at 2797-2798 92 S.Ct. U.S. construction of an “electric chair” be- (Burger, dissenting); ex C.J. Louisiana “the cause it believed electrocution to be Resweber, 329 U.S. at rel. Francis v. practical method known most humane and at 376. 67 S.Ct. carrying into effect to modern science apparently assumed in Adkins Court capital sentence of death in cases.” constitutionality of electrocution and Louisiana, 1082, 105 471 U.S. at Glass choosing one of considered the issue as (Brennan, J., dissenting) S.Ct. at 2160 constitutionally valid methods of between In- Report of the (quoting Commission penalty. This imposing the death Humane vestigate Report the Most ruled in the and the federal courts have Carrying Into Ef- Practical Method of carry as a means of past that electrocution Cases, Capital of death fect Sentence ing of death violates neither out a sentence (Transmitted Legislature of the at 3 See, the state nor the federal constitution. 1888)); York, H. January of New State Kemmler, 136 e.g., In re Bedau, Penalty in America The Death (1890); Dug 34 L.Ed. 519 Sullivan (3d 1982). thought At that time it was ed. (11th Cir.1983); Spinkel 721 F.2d 719 ger, “generate and that electrical science could (5th 578 F.2d Wainwright, link v. current person of the convict a apply to the Barber, Cir.1978); sufficient electricity of such known and Adkins, produce certainly instantane- force cert, denied, (Tenn.1987), at 664 ous, In re painless, and therefore death.” 909,107 2491, 96 L.Ed.2d 383 Kemmler, 10 S.Ct. at 932 136 U.S. at Caldwell, 671 S.W.2d added). (emphasis (Tenn.1984). Nonetheless, in none of then, that Kemmler was apparent, It is cases, Kemmler, except these In re any experience of actual decided without concerning the any presented evidence execution. No as a means of electrocution electrocution, including proof of facts of subjected to this yet had been prisoner unnecessary pain inflicted and wanton addition, only federal consti- ordeal. prisoner. on the in that case before the court tutional issue holdings on this previous This Court’s acted arbitrari- New York had was whether any but the issue have been made without unequally to violate applied the law ly arguments posed briefest discussion Amendment. The Court the Fourteenth part seem in to be but by defendants and fact, Eighth Kemmler, that the stated doc- reflection of the Cozzolino another inapplicable to the states. Amendment was I, requires no more under Article trine that 933. Its com- 10 S.Ct. at 136 U.S. at under the 16 than has been mandated constitutionality § regarding the ments the United Eighth Amendment. Since dictum. are therefore See electrocution in the Supreme in 1890 stated Court States Gardner, at 100-101. supra, 39 Ohio St.L.J. Kemmler, 136 at of In re U.S. case Supreme only other United States con- electrocution was a S.Ct. at on this issue is significance case of Court permissible method of execu- stitutionally Resweber, 329 ex rel. Francis Louisiana tion, a similar has concluded that this Court at which 67 S.Ct. under our constitu- position is warranted per electrocution question was not whether tion. Eighth Amendment but violates the se ren- under which In re initial execution The circumstances whether an aborted area, Kemmler, subsequent attempts in this to execute leading case ders plurality continuing unusual. The prisoner cruel and decided also weaken holding successive electrocutions that elec- held that authority of the case law cruel, unconstitutionally in- not but even method of is a constitutional trocution present dissent assumed that evidence to the court on the consti- electrocution involved Id., per painless instant and death. 329 U.S. at tutional issue of whether electrocution 474-475, punishment 67 S.Ct. at 381-382. se is cruel and unusual under Article I of the Tennessee Constitu- fact, Supreme the United States Court tion. has never reviewed evidence of the actual pain inflicted execution to determine extinguishing this method

whether IV. prisoner’s “unnecessary life involves cruel- reasons, I Based on the above would Utah, 130, 136, ty,” Wilkerson v. 99 U.S. present reverse sentence in the case (1878), something 25 L.Ed. more court for remand case trial life, extinguishment than the mere In re proceedings not inconsistent further with Kemmler, 447, 136 U.S. at S.Ct. at 933. opinion. summary rejection of constitutional say I am authorized to that Justice electrocution, challenges usually based joins DAUGHTREY me this dissent. Kemmler, upon the dicta in has thus al- impris- lowed our constitution to remain

oned the scientific and medical knowl- edge decency standards of late century. nineteenth This refusal completely contrary

consider the issue is principle “evolving standards of de- cency” at Eighth the heart of the Amend- I, ment and Article 16. Trop See McREYNOLDS, Commissioner, Elaine A. Dulles, Department of and Insur Commerce (1958) L.Ed.2d 630 (plurality opinion). ance, Tennessee, State of Court, potential It is time that this beneficiary century’s expe- of evidence of a COMPANY, CHEROKEE INSURANCE imposing electrocution, rience in re-exam- Plaintiff/Appellant. ine this issue. As Justice Brennan has written, FISHER, III, Drury In re Alexander & having pen- But concluded Fisher, Inc., Company, and D.A. alty in the abstract is consistent Inc., Defendants/Appellees. “evolving decency standards of Tennessee, Appeals Court of progress mark the maturing of a socie- Section, at Nashville. Middle ty,” Dulles, U.S., Trop v.

S.Ct., (plurality opinion), at 598 courts Sept. 1990. Eighth cannot now avoid the Amend- Appeal Application for Permission to proscription unnecessary ment’s of “the by Supreme Denied pain” carrying and wanton infliction of Dec. 1990. penalty simply by relying out that 19th-century precedents appear rested on

have inaccurate factual as- sumptions longer embody and that no meaning of the Gregg Amendment. U.S., supra,

Georgia, S.Ct., Stewart, (opinion at 2925 POW- ELL, STEVENS, J.J.). Louisiana, 471 U.S. at Glass Brennan, J., (mem., dissenting at 2169 certiorari). from denial of upon I would hold that remand the defen- case dant should be allowed to

Case Details

Case Name: State v. Black

Court Name: Tennessee Supreme Court

Date Published: Aug 5, 1991

Citation: 815 S.W.2d 166

Court Abbreviation: Tenn.