State v. Bland

perceived the action not in the best corporation and further interests avarice, malice, or self- was motivated

it in the record does

interest. evidence disputed of material fact. present a issue motions are sustained

Consequently,

the suit is dismissed. case is to the trial court for remanded

any proceedings further consistent with this

opinion. against Nelson.

Costs are assessed

ANDERSON, C.J., DROWOTA, JJ., HOLDER, concur.

BIRCH Tennessee, Appellee,

STATE BLAND, Appellant.

Andre S. Tennessee,

Supreme Court

at Jackson.

Dec.

653

655 Johnson, Odell,

William A. L. Patricia Memphis, Appellant. Walkup, Attorney

John Knox General and Moore, Reporter, Michael E. Solicitor Gener- al, Taylor, Bridgers, Darían B. William David General, Attorneys Jus- Assistant Criminal Nashville, Pierotti, Division, tice John W. General, Attorney D. District Thomas Henderson, Henry, Dis- David C. Assistant General, Attorneys Memphis, Appel- trict lee.

OPINION DROWOTA, Justice. ease, defendant, capital Andre this Bland, premeditated convicted of

S. murder, degree attempted aggravated first robbery, aggravated robbery, and especially attempted degree In the sen- first murder.1 tencing hearing, juiy aggrava- found one ting espe- “[t]he circumstance: murder was heinous, it cially atrocious or in that cruel physical abuse involved torture serious beyond necessary produce death.” ap- judge imposed fifty year attempted In this 1. The trial an effective murder. attempted aggra- peal, challenge those con- for the defendant does not convictions robbery, especially aggravated robbery, vated victions or sentences. 39-13-204(i)(5) (1991 Tenn.Code Ann. game apartment at the of Charles Sanders in Repl. Supp.). Finding & 1996 ag- that the Apartment Complex the Southbrook in Mem- gravating outweighed circumstance mitigat- phis. crap game When the ended around ing beyond circumstances' a reasonable p.m., 10:00 young these men wandered out- doubt, sentenced the defendant to and, point side at some between 10:30 and electrocution. p.m., 11:30 decided to rob strangers, two Earnest Nugent, Norman and Marcel whom appeal On direct to the Court of Criminal they arriving had seen complex at the earlier. Appeals, the challenged both his Nugent along complex had come fully conviction and sentence. After consid- Norman to visit a friend. Norman and Nu- claims, ering the defendant’s the Court of arrived, gent they both testified that when Appeals Criminal affirmed the trial court’s standing four to six judgment. Thereafter, men were around in the pursuant to Tenn. lot, 39-13-206(a)(l) (1996 parking they nearing Code Ann. and as were Nor- Supp.),2 later, thirty the case was docketed in this man’s car to leave Court. about minutes them, group approached of men asked The defendant raised several issues this were, they from, who they where were Court, but after carefully examining the en- they any money. whether When Nor- law, tire record including the thor- Nugent men, man ignored group ough opinion' Ap- of the Court of Criminal party one of the defendant’s struck Norman peals briefs of the defendant and the in the back of the head as he was about to State, Court, 9, 1996, on December en- get ran, into his car. Norman As fled. he. limiting tered an Order review to four issues being pursued by Norman realized he was setting argument the cause for oral men, urg- one of the and he heard someone April 1997term of Court in Jackson. See ing person shoot, another and then heard Tenn. R. S.Ct. 12.3 gun escaped fire. Norman unhurt to a below, explained For the reasons we have nearby service station and called 911. alleged determined that none of the errors Moreover, have merit. sup- the evidence meantime, Nugent, who had locked ports jury’s findings aggrava- as to the ear, himself inside Norman’s found himself ting circumstances, mitigating and and the trapped by and group surrounded of men disproportionate sentence of death is not or as they tried to force him out of the car. arbitrary. Accordingly, the defendant’s con- time, murder, About this the victim of the degree viction for first murder and sentence Sanders,4 twenty-year-old (Terry) Ontrain by of death electrocution are affirmed. lot, car, parking got drove into the out of his approached surrounding and the men Nu- FACTUAL BACKGROUND gent. According Nugent, the men said presented guilt phase Sanders, The evidence at something who turned and head- of the trial evening established that on the replying. ed back to his car The without 9,1992, defendant, October then nineteen gun, hitting defendant then fired a Sanders old, years along Darryl Bailey, with right leg. Bleeding profusely, Martell in his Sanders Pollard, Sanders, feet, Carlos yards, through and two men known some 273 fled almost 100 Yogi, crap apartment complex. as Steve and attended The 2."Whenever; imposed Supreme provides is for 3. Tennessee Court Rule 12 judgment pertinent part setting murder and when the as follows: "Prior has to the court, argument, oral become final in the trial the Court shall review the record the defendant assigned. right appeal and briefs and consider all errors shall of direct have from the trial may designating Court enter an order those is- Appeals. court to the Court of Criminal argument.” sues it wishes addressed at oral affirmance the conviction and the sentence of automatically death shall be reviewed Supreme Upon Tennessee Court. the affirmance 4. Sanders was not related to either Charles or Appeals, Sanders, the Court of Criminal the clerk shall crap game; Carlos hosts of the Supreme docket the case in the Court and the any there is no indication that he knew proceed case shall in accordance with the Ten- men involved in the attack on Norman and Nu- Appellate gent. nessee Rules of Procedure.” money, and his took his watch The men then who was Darryl Bailey jogged after Sanders him, him, finally, the defen- When, beat leg injury. kicked limping from the leg. The Nugent in the chase, again in the shot shot Sanders dant the defendant disbanded, leaving Nu- attempted under a then again, group to hide of men leg Sanders However, Nugent made parking discov- lot. gent lying Sanders was pickup truck. apartment of Norman’s shot him at least two upstairs and the defendant it ered lay friend, until an ambulance he underneath waited more times while where he three Bailey Darryl The defendant and the truck. arrived. truck, Sanders, pleading under the

then left the scene trans- on The first ambulance apartment help, for and ran back around hospital. One of ported Sanders to Nugent was complex to the car where unit arrived paramedics testified trapped. call, but receiving the minutes after nine Adams, who Upon hearing gunfire, Henry very grave condition Sanders’ upstairs apartment, in an looked out lived died their Sanders time of arrival. large shiny saw a man back door and hospital. way to the on the ambulance shooting gun kneeling as if under down later, urging of his mother days at the Two fired, then truck. Adams heard three shots learning after grandmother and gun turn and run. saw the man with the him, looking the defendant police were God, please Hearing screaming, a man “Oh Police De- Memphis into the turned himself me,” just after mid- help Adams called on the afternoon October partment to his back Adams returned night. When the kill- days two after approximately lot, parking into he saw door to look out time, gave a ing. At that trying to crawl out from underneath someone shooting confessed to in which he statement truck, yell- pickup person and heard the a chrome 9-millim- Sanders with Nugent and ing pleading help for a short while following the defendant’s pistol. The eter longer. of the crime: account Floyd green pickup P. owned the Johnson Carlos, Me, Darryl, daddy, Carlos’ Little refuge, taken truck under which Sanders had shooting dice. named Pat were guy and a over- upstairs apartment also and Johnson’s in- house were inside Carlos Sanders’ We shooting area in which the oc- looked the Little Apartments. side Southbrook hearing after curred. Johnson testified that he came on the door and knocked Steve gunshots, he out his window and three looked I pistol that got the 9-millimeter out and his truck lying partially a man under saw up came got I By that time had. upper body exposed and covered with his Little got gun from and outdoors man was testified that the blood. Johnson saying he Yogi approached me And Steve. out, God, Because he calling help me!” “Oh up in the fixing rob that was was dude safety, stayed on for his own Johnson feared Carlos, Martell, Darryl, Yogi, house. attempted balcony, but to calm Sanders his there, and standing were out and me Steve him encouraging by talking down to him and going to rob the Yogi telling us he was was with still. Johnson said he talked to remain gun, the 9-millime- gave I him the dude. minutes until the for ten or fifteen Sanders out had come By that time the dudes ter. ambulance arrived. say- him Yogi approached apartment. him, they got then something to and ing fought for his life under While Sanders hit Then he physical into contact. truck, Darryl Bailey re- and the defendant and ran. dude broke loose Bailey helped the dude and the car. turned to Norman’s ear and locked got dude passenger The other through group of men break Darryl ob- grabbed in. Steve and the automo- himself pull Nugent from window and hitting started jects ground and the men before from Nugent scuffled with bile. Darryl pulled the dude fled, jacket the car window. Nugent his breaking free. As Steve, Darryl, Yogi, car. up out of the According to Mar- his pulled was off back. Martell, Carlos, they hitting the dude shouted, was “he has someone tell Pollard when gun up. got I objects they picked leg. Nugent in the shot gun,” the defendant Yogi, above, back from proof and dude the Cad- Based summarized up jumped illac drove [the victim] and out guilty found first and started us. I towards And then shot murder, degree premeditated especially ag- leg. him in his Then he went around the gravated robbery, attempted degree building I building and went around the murder, attempted aggravated robbery. and leg again. and shot him in his And then proceeded sentencing The trial up he had tried crawl truck I under a phase on the conviction for first mur- again. him up shot Then he continued presented der. The State two witnesses. I under the truck. went back around the again Dr. Elkins testified that someone with corner, they continuing was to beat injury the victim’s could live from two to got the dude that out of the ear. Then I up fifteen minutes and be conscious to four to up legs. walked and shot both his I five minutes. Since victim’s femoral kill, shooting why wasn’t that’s I shot severed, nerve been bruised and around, leg. them in I their turned threw and because the muscles and nerves of his gun Apart- Kings and ran to the Gate right thigh completely destroyed, had been house, my girlfriend ments over to Teresa _ Dr. Elkins testified that the victim would Wiggs sleep. and then we went to experienced pain have from the wounds police why When asked he shot Sand- leg during his the time he remained con- time, replied, ers the first scious. they beating “Because when on the dude, jumped approached he out and us and The second State witness was victim’s said, up?’ “What’s And I turned around and mother, Lewis, a deaf testi- Vivian mute who leg.” I shot him in his The defendant said through interpreter. an fied She testified Nugent get shot he “so he couldn’t good that her son was and had sweet and away.” getting any The defendant denied in any never been trouble. She said that the money or valuables from either Sanders or daughters, two-years-old victim’s two small Nugent being robbery. involved in the trial, four-years-old at the time of were He knew the other men “went the dude “very, very worried” and wanted to see their pockets” they got any- if but did not know father. Lewis also testified her son’s however, thing. Nugent, testified that he family “very, very murder his hurt.” had left addition, police was robbed. found an check, unemployment bloody presented dollar bill and defense three witnesses: mother, change, keys, cap Marilyn Boyd; assorted and a black his near defendant’s Bland; pickup grandmother, Virginia truck where Sanders was killed. maternal missing Sanders’ was also never wallet the defendant himself. The defendant had found. known his father never raised grandmother, mother and who both testified Elkins, pathologist Dr. Sandra a forensic police at that he had turned himself into the Sanders, performed autopsy who had on urging. dropped their defendant had the cause of his death was testified high grade, out of school in the eleventh wounds, multiple gunshot one of which lacer- suspended being when he was “disre- artery ated his femoral and caused him to spectful juvenile to a teacher.” He had a sepa- Dr. bleed to death. Elkins found nine eleven, beginning age record at the of con- gunshot right leg, rate to the victim’s wounds batteries, multiple sisting of assaults and car extending groin upper from the area of the thefts, drug and at least one conviction. The knee, thigh just to above the which included testified that he shot the victim defendant exit From the both entrance and wounds. if ran his car as wounds, because the victim back to of exit Dr. entrance and combination “fixing get gun something;” to or he was actually Elkins that the victim had deduced Darryl why know he and that he did not person A been shot four or five times. victim; testified, followed the that he had been drink- injuries, the victim’s Dr. Elkins spur ing and the crime was a of the moment could live from two to fifteen minutes and be decision; that the victim was shot sever- suffering conscious four to five minutes after gun “kept on al times because the automatic such wound. guilt, presumption of places it with a expressed remorse and repeating shots.” He illustrating why has the burden trying kill the repeated that he was not to support is insufficient the evidence leg.” why him in the victim: I shot “[t]hat’s Tuggle, v. jury’s State S.W.2d verdict. he carried also admitted that The defendant (Tenn.1982). Questions concerning 913, 914 drugs and that he had gun because he sold witnesses, weight and credibility of killing. drugs night on the selling been evidence, well as all given value to be for the de- closing argument, counsel During are by the evidence raised factual issues education, youth, lack of stressed his fendant This Court trier of fact. by the resolved parent upbringing. single reweigh reevaluate the evidence. does jury proof, deter Based on (Tenn. 832, 835 Cabbage, 571 S.W.2d State v. proven the exis mined that the State had 1978). its may this Court substitute Nor aggravating circumstance be tence of one by the trier for those drawn inferences yond a reasonable doubt: murder “[t]he v. Liakas from circumstantial evidence. fact heinous, cruel in that especially atrocious or 298, 305, State, 199 Tenn. 286 S.W.2d physical abuse it involved torture or serious (1956). Therefore, appeal, on the State beyond necessary produce death.” strongest legitimate view of entitled to the 39-13-204(i)(5) (1991 § Ann. Tenn.Code and all reasonable and the trial evidence addition, Repl. Supp.). & may legitimate inferences which be drawn aggravating circumstance out found that the Consequently, in consid from evidence. mitigating beyond weighed the claim that the evidence ering the defendant’s doubt, result, sufficient, determine, as a sen after a reasonable we must is not by light electrocu most fa reviewing tenced the defendant the evidence State, any rational judgment tion. The trial court entered a whether vorable trier of fact could have found jury’s with the verdict and the accordance degree murder guilty premeditated Appeals of Criminal affirmed.5 After Court R.App. P. beyond a reasonable doubt. Tenn. considering the er reviewing the record and 13(e); Virginia, 443 U.S. Jackson defendant, assigned by rors we affirm (1979); S.Ct. 61 L.Ed.2d judgment of the trial court and Court of (Tenn.1994). Cazes, 875 S.W.2d 253 Appeals. Criminal killing, first-degree mur- At the time of the THE SUFFICIENCY OF EVIDENCE “intentional, premedi- defined as an der was killing of another.” tated and deliberate Brown, Relying upon State v. (1991). 39-13-202(a)(l) § Ann. Tenn.Code (Tenn.1992), the defendant contends as the “conscious ob- “Intentional” is defined Appeals the trial court and Court Criminal engage in the conduct or jective or desire to finding the evidence sufficient to erred §Ann. 39-11- cause the result.” Tenn.Code premeditation establish and deliberation. Premeditation, 106(a)(18) (1991 on Repl.). argues only proof ele- He these hand, exercise of requires “the other repeated gunshots. ments is Ann. judgment.” Tenn.Code reflection and (1991 jury, ap 39-13-201(b)(2) guilty Finally, A verdict Repl.). de- court, proved by proof purpose” the trial accredits the testi a “cool requires liberation mony period of the witnesses for the State and of reflection that includes some prosecu passion from all conflicts favor which the mind is free resolves Grace, Ann. 39-13- theory. Tenn. Code tion’s S.W.2d excitement. (1991 Brown, (Tenn.1973). 201(b)(1) guilt Repl.); A re verdict 539. presumption of innocence and re- moves affirming death. opinion the sentence of opinion petition of an However, its on the to rehear filed statute, State, interpretation of the Appeals the better Criminal ex- the Court of adopt, that the Court of Criminal pressed jurisdiction which we is about its over the doubt timely dispose jurisdiction of a possible interpretation Appeals to observing of retains that one (1996 capital 39-13-206(a)(l) rehearing case in Supp.) petition of a filed for Tenn.Code Ann. See jurisdic- has been affirmed. which the death sentence divest the intermediate court of would filing R.App. capital immediately upon P. 39. the Tenn. tion of a case victim, premeditation again during

The elements the casual chase which questions jury ensued, deliberation and are for the again upon discovery of the and vic- may by proof be established pickup tim the truck. under These circum- surrounding killing. the support finding premeditation stances a Brown, 836 S.W.2d at 539. There are sever leaving and deliberation. After the victim support al factors which to tend the existence begging help pickup underneath the of these elements which include: the use a truck, the defendant returned to Norman’s victim; deadly weapon upon an unarmed the beating car where he stood and observed the particular cruelty killing; declarations robbery Nugent. and This fact illustrates MU; by the defendant of an intent to evi dispassion. Nugent calmness and When procurement weapon; prepara dence of of a run, away began broke to someone killing tions before the concealment yelled gun, that he a defendant crime, immediately and calmness after the Nugent again, shot twice. Once defen- Brown, killing. 541-42; at S.W.2d coolly responded dant to the situation West, (Tenn.1992). 844 S.W.2d shooting person. another Thereaf- unarmed ter, “dumped” gun in the defendant an Considering proof in this rec effort to conceal to the crime and went his State, light ord in the most favorable to the girlfriend’s asleep. house and fell Calmness do, required agree we are to we with the immediately following killing is evidence Appeals Court of Criminal that the evidence cool, dispassionate, premeditated murder. premeditation is sufficient to establish West, 844 S.W.2d at Contrary deliberation. to the defendant’s assertion, repeated gunshots existence of Clearly, the evidence this record is suffi- only to the victim is not the evidence support cient to conclusion that de- Here, premeditation and deliberation. fendant, passion provocation without defendant shot an victim unarmed after purpose, consciously engaged in with a cool victim had turned around and back headed the conduct which caused the victim’s death attempted towards car. When the victim exercising judgment after and reflection. him, get away, the defendant foUowed at a Therefore, we conclude that the evidence pace, During rather slow some 273 feet. premedi- tWs record is sufficient to establish chase, victim, again the defendant shot the tation and deliberation. consciously choosing engage in the con time, being duct. After shot a second OF SUFFICIENCY EVIDENCE- sought refuge pickup victim truck. under AGGRAVATING CIRCUMSTANCE point, trapped At that the victim was If, claimed, helpless. as the he Pursuant Ann. 39-13- Tenn.Code victim, intended to disable the he would (1991 206(e)(1)(B)—(C) Repl. Supp.), & point. have ended the assault at that In we have examined the to determine evidence stead, consciously the defendant chose to support aggra- whether it is sufficient to kneel shoot down and the unarmed victim at vating circumstance found least two or three more times while he was support jury’s whether it is sufficient to pickup underneath the truck. Even assum finding aggravating circumstance claimed, ing, as the defendant that the auto outweighed any mitigating circumstances be- weapon matic continued to fire after he had yond a reasonable doubt. We conclude that trigger, proof in this ease released the clearly support sufficient to evidence that, minimum, shows at a findings. these pulled trigger separate on three occa correctly instruct The trial court began to return sions—once when the victim jury as to the of the terms car, chase, ed the definitions to his once and once “heinous,” “atrocious,” and “cruel” accor while the victim tried to Mde underneath the dance with Court’s decision pickup jury logically truck. The could have (Tenn.1985); Williams, 517, 529 concluded that the defendant had time to Odom, 18, 26 see also State v. reflect and choose a course of action (Tenn.1996). Also in accordance with gun retreating when he first fired his

661 (Tenn.1986); 256 Cooper, 718 S.W.2d Williams, jury State v. the trial court instructed (Tenn. McNish, 490 727 infliction of severe v. S.W.2d means “the State that “torture” 1987); Campbell, 664 pain upon the victim v. S.W.2d physical or mental State (Tenn.1984). and conscious.” he or she remains alive while during proof introduced the State Id. The Moreover, is suffi the evidence The clearly torture.6 the trial established jury’s finding that support the cient to leg. in the once defendant shot victim so found circumstance statutory aggravating Proof bleeding profusely. began victim The beyond circumstances outweighed mitigating sentencing hearing estab- at the introduced mitigation of the a reasonable doubt. femo- bruising of the victim’s lished that offense, cooper his relied pain. great De- ral nerve would have caused youth, lack of a police, his ation with bleeding from the wound and spite the education, record, and absence lack of adult he pain, victim fled as fast as resulting Although from the home. of his father They pursued him could from his attackers. eventually turned Bland proof shows that feet, shooting yards, almost 100 for some 273 Memphis police, did so he himself into the chase. No terri- again him doubt only urging grandmother of his at the fied, seek- crawled under a truck the victim police had institut only after relentless. mother and ing refuge, but the defendant was Moreover, for him. victim several ed an intensive search He knelt down and shot the young time of leg while the victim was was at the other times while the defendant truck, dy- nineteen, murder, then no adult left and had underneath help. pleading record, the truck for ing victim under admitted that he criminal Bland out, God, repeatedly “Oh Sanders called began at juvenile record which an extensive me,” please help as the defendant and multiple assaults and included age eleven and away of the shoot- friend ran from the scene had not Though the defendant batteries. testimony, ing. According to the medical school, attended school completed high he alive, con- the victim could have remained suspend grade through the eleventh minutes pain and in for four to five scious disrespectful to a teacher. being ed According shot. to the testimo- after he was he suffered from no evidence that There is alive, ny eyewitnesses, the victim was of two weight given mental disease or defect. conscious, pleading help, attempting mitigating aggravating pickup to crawl out from underneath the jury. of the entirely province within they truck fifteen minutes after for ten to mitigation jury whether or not determines gunshots. The facts and circum- first heard circum aggravating exists and whether clearly surrounding this murder are stances mitigation beyond a reason outweigh stances torture as that term sufficient to establish Barber, State v. S.W.2d able doubt. Williams, supra, has been defined State v. (Tenn.1988). opinion We are of jury’s finding that support and to support is sufficient to the evidence atrocious, heinous, especially murder aggravating circum jury’s finding that cruel, in that it involved torture or serious mitigating circumstances outweighed stance necessary pro- physical beyond that abuse beyond a reasonable doubt. Ann. 39-13- Tenn.Code duce death. (1991 204(i)(5) v. Repl.). See also State REVIEW PROPORTIONALITY (Tenn.1990); Jones, State v. 789 S.W.2d 545 next claims (Tenn.1989); The defendant State Henley, 774 S.W.2d penal disproportionate (Tenn.1989); his sentence is Taylor, v. 771 S.W.2d cases, considering both (Tenn.1988); ty imposed in similar Sutton, v. 761 S.W.2d (Tenn.1988); crime and the defendant. the nature of the Porterfield, 746 S.W.2d findings. juiy’s See State finding case was not invalidate specific in this 6. The (Tenn. 1989)(up- Henley, cruel 2. torture.” In- that the murder was "1. deed, "atrocious, cruel, torture”); rely upon the "serious the State did not holding verdict of prong (Tenn. physical Teel, of the statute. The failure abuse” see also State language repeat of the stat- verdict to 1990). defining aggravating circumstance does ute 662 later, asserting years

The defendant is therefore Gregg Georgia, that his Four in 428 153, 2909, U.S. 96 S.Ct. 49 L.Ed.2d 859 comparatively disproportionate. sentence is (1976),7 again the Court reviewed the Geor- Initially, emphasize statutory we that com- gia capital sentencing statutes which had parative proportionality review must be dis- response been in amended to Furman to tinguished from Eighth traditional Amend- arbitrary limit discretion and avoid proportionality analysis, ment which is the imposition inconsistent penalty. of the death appropriateness “abstract evaluation of the Among the features of the amended statuto- particular Pulley a sentence for a crime.” ry requirement scheme was a that the Geor- Harris, 37, 42-43, 871, 465 U.S. 104 S.Ct. gia Supreme every Court “review death sen- 875, (1984). contrast, By 79 L.Ed.2d 29 com- imposed tence to determine whether it was parative proportionality “presumes review passion, prejudice, under the influence or penalty that disproportionate the death is not factor, any arbitrary other whether evi- to the crime in the traditional sense. It supports findings statutory dence of a purports inquire pen- ‘[wjhether instead whether the circumstance, aggravating alty unacceptable particu- dispropor- is nonetheless in a sentence of death is or excessive penalty imposed tionate to the in similar disproportionate lar pun- case because eases, considering both the crime and the imposed ishment on others convicted of the ” Id., 204, defendant.’ 428 U.S. at 96 S.Ct. at Id., 42-43, same crime.” 465 U.S. at rejecting argument 2939-40. After that S.Ct. at 875-76. penalty prohibited by Eighth the death is general principle, comparative pro- regardless As a Amendment of the circumstances offense, offender, the character of the portionality review can be properly under- followed, procedure or the upheld the Court light stood if in juris- considered of its scheme, Georgia statutory the amended con- prudential origins. begin We our review cluding expressed that “the concerns in Fur- awith 1972 decision of the United States penalty man that of death not be im- which, Supreme effect, Court invalidated posed arbitrary capricious in an manner all of the death statutes of the states by carefully can be met drafted statute that government. and the federal Furman v. ensures that sentencing authority giv- is 238, 2726, Georgia, 408 U.S. S.Ct. Id., adequate en guidance.” information and (1972). Furman, L.Ed.2d 346 the Court 195, 428 U.S. at at 2935-36. S.Ct. One Georgia held that the statute was violative of aspect Georgia ap- statute cited with Eighth prohibition against Amendment’s proval by Supreme the United States Court punishment cruel and unusual because the in Gregg appellate was the review feature Georgia system left the decision of whether a against which was described as “a cheek defendant lived or died to the unfettered arbitrary imposition random jury. According Id., discretion of the 206, Fur- penalty.” 428 U.S. at 96 S.Ct. at man, Georgia 2940-41. system, under the which was representative of the other statutes effect Responding to the United States throughout country, a sentence of death Supreme Gregg, supra, Court decision “wantonly

was unconstitutional because 1977, Assembly, in Tennessee General enact freakishly imposed” ... and cruel and unusu- capital sentencing ed a scheme con way being al “in the same struck comparative proportionality tained a review Id., lightning is cruel and unusual.” 408 U.S. provision Georgia was based 309-10, (Stewart, J., at 2762-63 S.Ct. Raybin, statute.8 Death See David “New Enacted,” concurring). Penalty Statute Judicial Newslet- decided, Furman, day Gregg response 7. On the same Tennessee enacted a 1973, capital sentencing Supreme scheme in Public Acts approved United States Court also 1973, 192, 2,§ Ch. which was held unconstitu- statutory capital sentencing schemes of Florida II, § tional under Art. 17 of the Tennessee Con- Florida, 242, and Texas. See 428 U.S. Proffitt provisions stitution because its embraced more (1976); 96 S.Ct. 49 L.Ed.2d 913 Jurek v. subject subject matter than one and not all of Texas, 428 U.S. 96 S.Ct. 49 L.Ed.2d Hailey, caption. was set forth in the State v. (1976). result, (Tenn.1974). S.W.2d 712 As a the Gener- every ter, pellate required case University College of Tennessee of Law court 1977). imposed penalty is and the pp. (May ap- which the death 11-12 Because of the it.”); see also Walton v. Gregg, provisions requests proval given such at the Arizona, 655-56, enactment, comparative pro- S.Ct. time of its 497 U.S. 3047, 3058, (1990); McCles 111 L.Ed.2d 511 portionality provision included in the Ten- Kemp, 279, 306-08, key v. 107 sentencing 481 U.S. S.Ct. capital nessee scheme was con- (1987) 1756, 1774-75, See constitutionally (pre L.Ed.2d 262 required. be 95 sidered to (“These disproportionate p. appel- sumption 11 not Judicial Newsletter at that sentence system procedures appear imposed late where it is under a review to be consti- insure, guidance at tutionally required to on a furnishes sufficient sentene least level, through constitutionally aggravating penalty that the death er valid statewide is fashion.”).9 circumstances, and a imposed arbitrary mitigating in an That federal commonly until the conclusions of the view was held the United court does not review explicitly highest long propor as the Supreme rejected States Court state’s court so tionality comparative proportionality good idea that review was undertaken review faith).10 Pulley, 465 constitutionally required. important is as an While additional (“There 50-51, arbitrary capricious safeguard against U.S. 104 S.Ct. at 879-80 sentencing, comparative proportionality ... in our for holding no basis re comparative ap- constitutionally required.11 proportionality by an view is not review Montana, 565.035(3); year § Assembly al Mont.Code that same amended the defini- Stat. Ann. Nebraska, provided 46-18-310(3); degree tion § 2521.03; § of first murder and a man- Neb.Rev.Stat. 29- datory penalty persons for all convicted of Nev.Rev.Stat. Nevada. accessory that offense or as an before the fact of 177.055(2)(d); Hampshire, § N.H. New Rev. Sat. 1974, Ch. crime. Public Acts 462. In Col- 630:5(XI); Jersey, § Ann. New NJ.Rev.Stat. State, (Tenn.1977), lins v. 550 S.W.2d 643 how- Mexico, 2C:ll-3(e); § N.M. Stat. Ann. New ever, the 1974 statute was held unconstitutional York, 31-20A-4(C); § N.Y.Crim. New Proc. Supreme under three United States Court deci- Carolina, 470.30(3); § N.C. North Gen.Stat. invalidating, Eighth sions as violative Ohio, 15A-2000(d); § Ohio Rev.Code Ann. Amendments, prescribing statutes Fourteenth 2929.05(A); Oklahoma, 21, Okla. Stat. tit. mandatory sentence of death conviction 701.13(C)(3); Pennsylvania, § 42 Pa. Cons.Stat. degree first murder. See Woodson v. North Car- Carolina, 9711(h); § S.C.Code Ann. 16-3- South 280, olina, 2978, U.S. 96 S.Ct. L.Ed.2d 428 49 Dakota, 25(C); S.D. Codified Laws Ann. South Louisiana, 325, (1976); 944 Roberts v. U.S. 428 23A-27A-12; § § Virginia, Va.Code Ann. 17- 3001, (1976); 96 49 L.Ed.2d 974 S.Ct. Williams 110.1; § Washington, Wash. Rev.Code 10-95- Oklahoma, 907, 3218, v. 428 U.S. 49 S.Ct. 130(2); § Wyoming, Wyo. Stat. 6-2-103. Three Thereafter, (1976). 8, February L.Ed.2d 1215 on decision, states, required by judicial other com 1977, the Governor commuted sentence of all parative proportionality including: review Ar prisoners imprisonment, death row life and on State, kansas, 772, 852 S.W.2d Sheridan v. 11, 1977, April the death statute became Arizona, Richmond, (Ark.1993); v. passed effective when over the Governor’s veto. 186, Florida, (1976); State, 758, Ariz. 560 P.2d 41 Brown See Miller v. 762-63 1327, (Fla.1981). Wainwright, (Tenn.1979). 392 So.2d Although capital sentencing been modified scheme has somewhat over intervening twenty years, the 1977 enactment is statutory capital sentencing 10. The Tennessee capital sentencing of the current stat- basis against repeatedly upheld scheme has been con- 1981, 33; e.g. ute. Public Acts See Ch. Public attack, and, numbers, raw stitutional from the 1989, 591, 1990, Acts Ch. and Public Ch. Acts appears purpose performing its intended be 1038. reserving sentence for the "worst of the 1996, persons approximately 492 were bad.” In commonly held 9.This view was other state degree murder indictments named legislatures adopting as well. Those states statu- persons of first State. were convicted tory comparative provisions requiring propor- year. murder in returned, Five death were sentences Alabama, tionality review include: Ala.Code receiving individuals a sen- with 33 Connecticut, 13A—5—53(b)(3); § Conn. Gen.Stat. possibility imprisonment tence of life without the Delaware, 53a-46b(b)(3); § tit. Del.Code Ann. parole, 64 individuals received a sen- while 11, Georgia, § § 4209(g); Ga.Code Ann. 17-10- imprisonment possibility of life with the tence Idaho, 19-2827(c); 35(c)(3); § Idaho Code Ken- parole. 532.075(3); tucky, Ky.Rev.Stat. §Ann. Louisi- ana, Crim. Pro. Ann. art. and La. La.Code 905.9 Indeed, 28, 1; Pulley, supra, Sup.Ct. Maryland, in the wake of nine R. Section Md.Code 414(e); twenty-nine initially Mississippi, other states which con- Ann. Miss. [Crim. Law] Missouri, 99-19-105(3); proportionality comparative ducted review have Code Mo.Rev. Ann. Therefore, 320, adopting Ramsey, an to com- see approach also State review, (Mo.1993) (en banc). parative proportionality ap- contrast, a state By 327-28 pellate statutory court must evaluate the reviewing employing precedent- court language legislative at issue and the intent seeking approach compares the case before light jurisprudential background it to other cases in which the defendants Webb, Gregg. Furman and See State 238 were convicted of the same or similar crimes (1996). Conn. 680 A.2d crimes, by examining the facts of the defendants, characteristics of the and the Despite any the lack of federal constitu- standard, aggravating mitigating ap- tional factors involved. there are two basic Webb, State, supra; proaches statutory comparative propor- e.g. See Tichnell v. (1) (1983). method; tionality frequency review: Md. 13-23 A.2d (2) precedent-seeking method. explicitly adopting Without the nomencla- Webb, 209; Marshall, 680 A.2d at State v. ture, applied precedent- has this Court (1992). 109, 130 N.J. 613 A.2d 1059 Both seeking approach past eighteen years. for the approaches goal share a common is to which Barber, 659, e.g., 753 See S.W.2d particular a determine whether sentence is Cazes, (Tenn.1988); 665-66 State v. 875 disproportionate imposed to the sentences (Tenn.1994). 253 The Tennessee S.W.2d for similar crimes and similar defendants. Georgia statute was modeled after same, goal ap- Id. While the is the approved Gregg. frequency scheme proaches fundamentally are different approach pub- had not even within surfaced principle application. In general, jurisprudence in penalty lished death 1977 frequency employs complicated method12 a when our and it is incon- statute enacted analysis attempts pur- statistical that type specific analysis sistent with the of fact ports quantify, to with near mathematical by ap- employed Georgia and described and precision, leading the various factors proved by Supreme the United States Court imposition nonimposition or of the death Gregg. There is no indication that our penalty frequency and the with which the Legislature contemplated complicated a sta- imposed in circum- death certain inquiry statutory tistical Marshall, when it enacted the e.g., supra; stances. See State v. Pirtle, proportionality provision in 628, review 1977. See 127 904 245 Wash.2d P.2d Webb, (1995). Moreover, 680 at A.2d 209. the Gen- approach This has been criticized as Assembly eral has never amended stat- attempt quantify an unworkable “to the un- n Webb, 209; quantifiable.” modify precedent- See 680 A.2d at ute to eliminate or (1995). provisions repealed statutory Jersey Supreme either or over- The New Court has See, acknowledged heavily” mandating that it relies on ruled court decisions it. Arkan- "more State, 613, precedent-seeking frequency review than on sas Willett v. 322 Ark. 937, (1995) analysis, explicitly (stating and it has refused to set an 945-46 that Su- Arkansas arbitrary numerical standard at which defen- preme longer proportion- Court will no conduct Arizona, Salazar, reviews); "generally" penalty. dants receive the death Id. ality 173 Ariz. Although Washington 399, 566, Su- (1992) 662 A.2d at 460. (stating 844 P.2d 583-84 that preme appears frequency Court to utilize the Supreme pro- Court will discontinue Arizona Connecticut, approach degree, quantifying reviews); to some portionality 1995 Conn. comparison aggravating circum- 16, 3(b) Idaho, the number of (Reg.Sess.); § Acts 1994 Idaho stances, victims, convictions, (S.B.1302); Maryland, Sess. Laws 127 1992 Md. recently Court stated: Nevada, (H.B.590); Laws 331 1985 Nev. Stat. 527; 265, Oklahoma, Laws, 1985 Okla. Sess. Ch. quantified are We have those factors that 1; Pennsylvania, § Pa.Legis.Serv. 1997 Act objective easily quantifiable in order to be as 1997-28, (S.B.423); Wyoming, Wyo. Stat. suggest propor- possible. By as this we do not 6-4-103(d). tionality can be reduced is a statistical task or numbers, point to but that numbers can applied "pure” frequency heart, a No state has proportionality At its areas of concern. approach conducting comparative method when always subjective judgment a review will be appeared proportionality Although it fairly review. particular to whether a death sentence Marshall, Jersey supra, Washington’s do represents New would so the values inherent in opted frequency sentencing aggravated Court instead to utilize both the murder. scheme 628, 245, Pirtle, precedent-seeking method. 127 Wash.2d 904 P.2d method State v. DiFrisco, (1995). 142 N.J. State v. A.2d sentencing, for the difference utilized sis approach which has been seeking necessarily dispropor- is not pro- comparative review this Court since required to deter- is not tionate. This Court was enacted. vision less than death that a sentence mine pur are mindful We charac- case similar imposed never review proportionality poses comparative duty contrary, our under teristics. On person that a possibility are to eliminate no is to assure that similarity standard by the action of to death will be sentenced Webb, is affirmed. death sentence abberant against the jury guard and to an aberrant proportionality A.2d at 203. “Since imposition of the death capricious or random pre- intended to review is requirement on stated, previously penalty.13 As we have inflict the caprice in the decision vent capital cases insures comparative review of of a isolated decision penalty, [death] consistency imposition rationality and uncon- mercy not render afford does Barber, at penalty. of the death imposed on de- death sentences stitutional Kandies, 665-66; 342 N.C. see also State sys- sentenced under fendants who were (1996). light S.E.2d risk of that does not create substantial tem jurisprudential background against Gregg, caprice.” arbitrariness Cf. adopted, com statutory provision was our 96 S.Ct. at 2939. U.S. Assembly’s use of the the General bined with is that our “disproportionate,” it clear word view, precedent-seeking In our is performing comparative review function in to effectively enables this Court method proof not to search for that defendant’s comparative proportional goal of achieve symmetrical, perfectly is but death sentence review—identifying aberrant sentences. ity identify invalidate the aberrant death comparative reviewing court allowed its If a Id.; Groseclose, 615 v. sentence. State governed by analysis to be proportionality (Tenn.1981) (trial 142, 150 court re S.W.2d analysis, the con quantitative statistical and arbitrary ports designed prevent are ex cept “individualized consideration” penal capricious imposition or of the death Ohio, 586, v. 438 U.S. pounded Lockett Webb, 211; ty); v. see also 680 A.2d at State 2954, 2964-65, 604-05, 57 L.Ed.2d 98 S.Ct. (1994). 334, If Bey, 137 N.J. 645 A.2d 685 C.J., opinion), (1978)(Burger, plurality 973 whole, lacking plainly as a is taken Williams, v. 308 be frustrated. State would those in in circumstances consistent with (1983); 335, 47, v. 301 356 State N.C. S.E.2d penalty has similar cases which the death 572, 63, 72 300 Copeland, 278 S.C. S.E.2d imposed, the of death been sentence (1982). being disproportionate. reviewed is case (Mo. comparative pro 320, performing our Ramsey, v. 328 State function, 1993).14 by the guided are portionality we Even if a receives banc defendant provides that statute which language of the the circumstances of death sentence when reviewing capital cases appellate courts are similar to those of an offense the offense sentence of whether “[t]he a life should determine has received for which disproportionate to the sentence, dispro is excessive sentence is not cases, considering imposed in similar penalty some portionate where the Court can discern of the crime and the defen v. the nature the lesser sentence. See State both basis for 39-13-206(c)(l)(D) (Tenn.1986). § Carter, 241, Ann. dant.” Tenn.Code 714 251 S.W.2d (1991 Supp.1996).15 Though Moreover, Repl. & ba- where there is no discernible 2940; 206, disproportionate.” He fails this case is Gregg, at State death in 428 U.S. at 96 S.Ct. 13. Welcome, 1235, (La.1983); paragraph. The full v. 458 So.2d 1238 the remainder of this to cite McNeill, Tichnell, 15; support 346 468 A.2d at State v. speaks and does not paragraph for itself 284, 233, (1997); State v. 485 S.E.2d 289 N.C. conclusion. Justice Reid’s 415, Pirtle, (S.D.1996); Rhines, 457 548 N.W.2d at 276. 904 P.2d § 15.Previously at Ann. 39- codified Tenn.Code (1982) 2-205(c)(4) 39- and Tenn.Code Ann. singles in his dissent the Justice Reid out 14. 2406(c)(4) (Supp.1977). Ramsey, quote v. and concludes above from State standard, "applying sentence 666 issue,16 prisonment

statute itself is silent on the possibility parole, without electrocution, pool universe from which we choose the regardless or death comparison “similar cases” for actually imposed.17 includes “all See Footnote 14, supra cases which the defendant (listing convicted other states with same limitation). “[Bjecause first-degree Sup.Ct. murder.” Tenn. propor- Rule aim tionality review is to ascertain what other 12.

capital sentencing have done authorities offenses, purposes comparative pro capital only For similar murder review, portionality we eliminate from the cases that could be deemed similar ... are imposition “universe” and include in the more narrow penal- those which of the death “pool” comparison only for ty properly sentencing those cases in before the au- Tichnell, capital sentencing hearing which a thority was actu for determination.” 468 ally 15-16; 515; Whitfield, conducted to determine whether the sen A.2d at 837 S.W.2d at Smith, Rhines, imprisonment, 1285; tence should be life life im- 548 P.2d at N.W.2d states, judicial regardless imposed; Some either statute or deci- of the sentence and three pool comparison sion limit the for pool death-eligible include in the all homicides. imposed. in which a sentence state, of death has been Hampshire One other New has not defined Alabama, State, 645, See v. Beck 396 So.2d pool comparison because it has no death Arkansas, (Ala.1980); 328, State, Sanders v. 317 Ark. cases, though capital sentencing it has a 391, Arizona, (1994); Supreme scheme. The United States Court has White, 500, 869, (1991); 168 Ariz. P.2d approved more limited "universes” than Florida, State, 133, Williams v. 437 So.2d provided by Gregg our Rule 12. See 428 U.S. at (Fla.1983); Commonwealth, Kentucky, Gall v. 205, 56, 56; Proffitt, n. S.Ct. n. (Ky.1980); Mississippi, King 607 S.W.2d 97 U.S. at 96 S.Ct. at 2969-70. State, (Miss. 1982); Nebraska, 421 So.2d 1009 Palmer, Neb. 399 N.W.2d pool comparison 17. We do not include in (1986); Jersey, 733 3; New N.J. Stat. Ann. 2C:11- degree first murder cases in which the State did Ohio, 111, Steffen, State v. 31 Ohio St.3d 509 penalty not seek the death or a sentence other 383, Carolina, (1987); N.E.2d 395 South State v. agreed upon part plea than death was as of a 572, (1982). Copeland, 278 S.C. 300 S.E.2d 63 Webb, bargaining agreement. See 680 A.2d at pool Other states include cases in which 211, Whitfield, (including sought 837 S.W.2d at 515 penally the State and a sentenc held, ing hearing regardless pool comparison degree of the murder Connecticut, imposed. See Practice Book cases in which the did death State not seek the Delaware, 4066A(b); State, § Flamer v. 490 A.2d penalty agree upon or a sentence less than death 104, (Del. 1983); Tichnell, Maryland, 139 468 hearing implicitly without a amounts to review 13-23; Missouri, Whitfield, at State A.2d v. 837 ing prosecutorial generally discretion which is 503, Montana, (Mo.1992) (en banc); S.W.2d 515 review). subject judicial not to Under current Smith, 158, 1272, State v. 280 Mont. 931 P.2d sentencing hearing may law a be conducted Nevada, (1996); State, 1285 Biondi v. 101 Nev. determine whether the sentence should be life 252, (1985); Mexico, 699 P.2d 1062 New State v. imprisonment imprisonment or life without the Garcia, 771, (1983); 99 664 N.M. P.2d 969 North possibility parole, even if the State does not Carolina, Williams, 355; 301 S.E.2d at Okla penalty. § seek the death Tenn.Code Ann. 39- homa, State, 1025, (Okla. Liles v. 702 P.2d 1036 (1996 law, 13-204(a) Supp.) prior penal Under Dakota, Rhines, Crim.App.1985); South 548 ty hearing only sought was held if the State 455; Virginia, N.W.2d at Jenkins v. Common penalty. pool We include in the for com wealth, 445, 360, (1992); 244 Va. 423 S.E.2d 371 parison only degree those first murder cases in Washington, Wash. Rev.Code Ann. which the State seeks the death and a 10.95.130(2)(b). Finally, some states include course, sentencing hearing is held. Of the deci pool death-eligible in the all homicide convic- prosecute penalty may sion to or seek the death Georgia, tions or indictments. Ga.Code Ann. deliberately impermissible not be based an Idaho, Creech, 7(a); § 17-10-3 State v. 105 Idaho race, religion consideration "such as or other 362, 463, (1983); Louisiana, 670 P.2d 476 State Boles, Oyler v. arbitrary classification.” 368 U.S. Martin, 300, (La.1979); v. 376 So.2d 312-13 448, 456, 501, 506, 446 82 S.Ct. 7 L.Ed.2d York, (death-eligible New N.Y. Jud. Law 211-a decision, (1962). By are this defendants in no indictments); Pennsylvania, Commonwealth v. way precluded relying upon utilizing 428, from 700, (1984); Frey, 504 Pa. 475 A.2d murder State, 541, entire "universe” of first Wyoming, Engberg v. 686 P.2d attempting cases when to establish claim for (Wyo.1984). twenty Of the states which still review, prosecution Equal Protection require selective under comparative eight pool limit the Clause, States, Wayte v. 470 U.S. comparison see United to cases in which a death sen- 1524, 1531, imposed; eight 84 L.Ed.2d 547 tence was 105 S.Ct. consider cases (1985). capital sentencing hearing which a was held (Tenn. Accord, State, Caughron, v. at 455-56. Flamer 490 A.2d 855 S.W.2d 526 State (Tenn. 1993); Harris, at 139. State S.W.2d 54 (Tenn. 1992); Black, 815 S.W.2d 166 Selecting similar from the cases 1991). Marshall, Compare at 1083. A.2d pool for not comparison is an exact science. precisely or are No two cases defendants our reading Also from a evident ag Though identical. consideration to a prior cases are criteria relevant several mitigating as gravating and circumstances comparison of of defen the characteristics reports revealed the Rule 12 is a crucial (1) pri- dants which include: defendant’s process, element of we limited to are not activity; or criminal or criminal record exactly those in which the same cases (3) (2) race, age, gender; the defendant’s aggravating circumstances been found. have mental, physical emotional or the defendant’s Barber, 667; at v. Brim S.W.2d (4) condition; the defendant’s involvement (Tenn.1994). mer, S.W.2d (5) murder; coop role defendant’s cases, choosing comparing similar (6) authorities; eration with defendant’s many are Court considers variables which (7) remorse; knowledge the defendant’s readily subject complete not enumeration (8) vietim(s); helplessness of the defendant’s Barber, 665; and definition. S.W.2d Id.; capacity for rehabilitation. see also Williams, 301 S.E.2d at 355. This Court has Sup.Ct. Report Judge Tenn. Rule Trial previously attempted explicitly enu Capital by no an Cases. While means factors, merate than aggravating other list, exhaustive examination and consider circumstances, mitigating which are relevant ation of these other salient allows factors conducting to identifying similar cases and identify this Court to similar deter cases and However, proportionality clearly review. mine whether the sentence death in the comparative discernible from a review of the under be case review should invalidated proportionality discussions contained our disproportionate. prior decisions are several other factors rele vant to the process of and com identification fulfilling To this Court in assist (1) parison of similar which include: statutory duty, our the State and the defen (2) death; the means of the manner of death fully dant each case must the issue brief torturous, etc.); (3) (e.g., violent, motiva by specifically identifying those sinular cases (4) (5) death; killing; place tion for the comparative proportionality relevant similarity victims’ addressing inquiry.18 proportionality When conditions, including age, physical and mental review, parties the briefs of the shall contain and the killing; victims’ treatment the setting nature (6) a section forth the and circum presence the premeditation; absence or (7) stances of the crimes that are to be claimed presence the provocation; absence or to that the has (8) similar of which presence justification; absence or convicted, including statutory ag (9) been injury to and on nondece- effects Barber, gravating circumstances found supra; dent victims. See see also (Tenn.1997); mitigating the evidence of circumstances. v. 944 Hodges, State S.W.2d 346 addition, Bush, (Tenn.1997); parties In shall include v. State 942 S.W.2d 489 Smith, (Tenn.1994); section a discussion of the character and v. State 893 S.W.2d 908 Nichols, (Tenn.1994); in the record defendants involved State 877 S.W.2d 722 Brimmer, Cazes, crimes, to the from the supra; supra; extent ascertainable State Smith, decisions, (Tenn.1993); reports, appellate 12 court 868 561 v. Rule S.W.2d Howell, (Tenn.1993); sentencing hearings 868 238 State v. records of the trials and S.W.2d Tran, (Tenn.1993); cases.19 Van 864 S.W.2d 465 in those compar- alty Presently 18. we database will be used Court locate similar cases for this proportionality by using ative litigants. review traditional and accessible to the by reviewing research the more methods reports five Rule file in the than hundred 12 on Webb, 207, 4, 75; at n. Section 19. 680 A.2d Cf process We Clerk’s office in Nashville. are in the La.Sup.Ct. (requiring prosecution R. 905.9.1 selecting specific in the criteria to be used defense to a "sentence review memoran- file pen- preparation of a Tennessee death CD-Rom 668 decide, instance,

Comparative proportionality re to in the first whether a Cazes, rigid, objective particular is not a test. view defendant should receive the death conducting proportionality penalty. appellate at 270. In task under 39-13- S.W.2d 206(c)(1)(D) review, cases, attempt employ compare we do not to mathe is to similar not Williams, isolation, techniques. gauge, culpability matical or scientific to of a evaluating compar specific at 301 S.E.2d defendant or the of a heinousness Webb, proportionality light particular ative crime. See 680 A.2d at 204. above, reviewing conducting comparative propor- of the factors delineated Our role in rely upon court experienced tionality second-guess must also review is not to judgment decision, jury’s identity and intuition of its own members. but to and invalidate Ramsey, 327-28; at S.W.2d aberrant death sentences. East, 535, 652, N.C. S.E.2d disagree- As a result this fundamental (1997); Williams, 356; 301 S.E.2d at see also Court, ment about role Justice Marshall, previously 613 A.2d at 1075. As Reid, Harris, beginning in State v. explained, the sentence of not dis (Tenn.1992) (C.J.Reid, S.W.2d 84-85 dis- unless, proportionate, the case taken as a majori- senting), repeatedly charged has plainly lacking

whole is in circumstances con ty failing apply “to articulate and sistent with those in cases where the death comparative standard for review ...” How- imposed. has been ever, Harris, dissent, present as in proposed Justice Reid did not articulate a ease, agrees In this Justice Reid any standard nor offer constructive advice to proof premeditation that the shows and tor majority to methodology on correct the supports ture evidence alleged criticizing error. This trend of jury’s finding aggravating circum majority’s comparative proportionality re- outweighs mitigating stance analysis, offering view at the same time while doubt, beyond a he reasonable but concludes specific suggestions improvement no has disproportion that the sentence of death is intervening years.20 over the five continued ate, stating proof that “the does not show possess appeal this defendant the characteristics Even the three direct deci- society’s decency, repulsive most sense of has sions this Court where Justice Reid very agreed and most destructive to the fabric of the sentence of death is not Bush, disproportionate, society.” Since Justice Reid does not enu see 942 S.W.2d at Smith, Howell, 527; 585; merate the most at characteristics which are repulsive society, provided can Justice Reid has no destructive we S.W.2d objective express guidance assume that he has utilized his own as to the criteria subjective judgment analysis employed to make the determina and structured he to con- view, jurors equipped tion. our are better clude that the sentence of death was J., (Tenn.1997) (Reid, addressing propriety da" of the sentence and S.W.2d concur- discussing degree murder ring); Hodges, each first case State v. imposed, (Tenn.1997) J., district along in which the sentence was (Reid, dissenting). basis for synopsis awith of the facts about the crime possi- prior Reid’s assertion that it is not Justice appeal). and the defendant in the case on approach to articulate an for com- ble alternative parative dissenting opinion a not review in is Middlebrooks, 317, 20. See State v. 840 S.W.2d C.J., Howell, (Reid, 868 S.W.2d at 272 clear. C.J., (Tenn.1992)(Reid, concurring 354—55 and ("An concurring) adequate compar- structure for Tran, 465, dissenting); State v. Van 864 S.W.2d proportionality ative review cannot be set forth C.J., (Tenn.1993) (Reid, concurring 485 and dis dissent.”) in a Jurists in other states have taken 238, Howell, senting); State v. 868 S.W.2d 271 Rhines, e.g. on State v. 548 the task. See N.W.2d C.J., (Tenn.1993)(Reid, concurring); State v. 415, J., (S.D.1996) (Amundson, dissenting); 461 Smith, 561, (Tenn.1993) (Reid, 868 S.W.2d 585 29, Brett, 136, 892 P.2d 71 State v. 126 Wash.2d 57, C.J., Hurley, concurring); v. 876 S.W.2d State Lord, J., (1995) (Utter, dissenting); 117 State v. C.J., (Tenn.1993) (Reid, dissenting); 71 Cazes, State 177, 829, (1991) (Utter 822 228 Wash.2d P.2d 253, (Reid, C.J., 272 875 S.W.2d dissent Smith, JJ., dissenting); 105 Nichols, and State ing); State v. 877 S.W.2d Jeffries (1986 ) (Utter, C.J., (Tenn.1994) (Reid, Wash.2d J., P.2d dissenting); Indeed, Smith, (Tenn.1994) (Reid, many majority dissenting). decisions Bush, J., dissenting opinions. concurring dissenting); actually begin State v. as fact, explanations the of disproportionate. applied the in context of Howell, Smith, example, For Reid in the offense. Justice for the conclusion hand- states “means of death was a disproportion- that the is not that the Bush sentence commonly undoubtedly the most used explanations gun, appear ate to be well-written of weapon of homicide. Use of this surrounding the facts the commission of instrument how against culpability.” weigh not for or rationality offense does demonstrate in his anywhere fails to mention imposed, analysis similar to the Justice Reid sentence causing analysis gunshot employed by that wounds consistently which has been a of a majority by this death inflicted the course of and often criticized were Court unarmed, injured in victim majority Reid. from a chase Justice One distinction which The other factors relied proportionality re- fled his life. comparative discussion in con- prior support Reid of his apparent, is however. The con- Justice view opinions suspect. Particularly clusion bother- curring not discuss or cite a are also do even case, “the single degree similar con- some is Reid’s statement murder Justice comparison, reasonably expect possibility supports in victim sidered could Bush, “place finding proportionality. of death was See violence” because 527; Smith, 585; apartment complex an parking at 868 S.W.2d at lot of S.W.2d Howell, Likewise, a location Memphis, 272-73. in South at which unlawful S.W.2d at activity, drug games, prior including dealing, dice those cases which Justice Reid has drunkenness, robbery, public dispropor- found the of death to be assault and sentence tionate, objective is unexpected.” abiding he has no crite- A law citizen articulated anywhere he chooses. analysis, ria or framework for nor has he free travel or she Where, here, randomly is mur- cited or discussed similar first mur- a citizen finding. perpetrator area support e.g., high der cases dered a crime and a See 346; Nichols, death, Hodges, 944 is the citi- S.W.2d at convicted and sentenced to 744; Gazes, neighborhood travel into at 272. zen’s decision to S.W.2d penalty bearing has no on whether the death ease, majority In this this a Court has is Also disproportionate. troublesome is Jus- carefully many factors articulated relevant to tice observation that Reid’s review, comparative proportionality en- Considering no adult criminal record. gaged lengthy history of its discussion juvenile extensive defendant’s record purpose. Justice Reid continues char- nineteen-years-old that he at the time comparative acterize our discussions offense, rec- his lack of criminal adult proportionality “conclusory” review as Finally, ord has little relevance. Justice “perfunctory.” specif- benefit Without the has Reid’s assertion however, suggestions ic guidance,21 capacity completely is with- for rehabilitation analysis employed by majority in this support out in the record. unaccountably gained case has Justice Reid’s in a dissenting For first time or con- guarded approval.22 curring and dis- opinion Justice Reid cites fact, find- applies support Reid the fac cusses other cases to Justice three However, majority ing. tors enumerated in deter the State did not seek mining disproportionate. There- in two cases. However, fore, analysis, compara- similar applying they Justice are not respect to specific proportionality considers tive review. Reid facts isolation and With recognize sought fails to that the factors are to be the third pro- proportionality stated 1 of states: "The 21. As is in footnote Justice Reid’s Justice Reid opinion, dissenting proportion- the discussion of by majority this case an- cedure outlined in ality opinion review in was revised and ex- this many problems prior those swers of the raised in panded dissenting after of the the initial drafts majority which decisions. The sets a course opinions expansion primari- were received. complies develop procedure into a which could ly response dissenting was a Reid’s to Justice with the and the constitutions.” statute that, opinion. We as a result of re- note our was re- opinion sponse, dissenting Justice Reid's expanded. vised and penalty, robbery, but the ongoing defendant sentenced to to the scene of the watched imprisonment life possibility car, without the group drag Nugent of men from the parole. Though the details of the case are not Nugent and did hesitate to shoot twice opinion, not clear from Justice Reid’s we escape. robbery when he tried to When the emphasize that the isolated decision completed disposed the defendant used, mercy sentencer to afford does not render gun girlfriend’s he had and went to his disproportion- the death sentence in this case apartment slept. and The defendant de- sum, ate. analysis Justice Reid’s does not shooting spur scribed the as a of the moment whole, case, demonstrate that this taken as a drinking decision. He that he said had been in plainly lacking is circumstances consistent selling drugs prior shooting. and to the penalty with those cases in which the death Though young when the murder was commit- imposed. has been ted, old, only years lacking nineteen a and record, criminal adult the defendant Application principles of com history eight had a criminal which dated back parative proportionality review convinces us years and included numerous assaults and the sentence of in death this case is batteries. disproportionate neither excessive nor penalty imposed considering in similar cases argues pen- The defendant that the death the nature the crime and the defendant. alty disproportionate is in this case because 39-13-206(c)(l)(D) (1991 Tenn.Code Ann. this generally Court has affirmed those studied, Repl. Supp.). 1996& We have com imposed death sentences for more “atro- pared, analyzed and cases a and conducted cious” it murders. While is true that this meaningful proportionality review as outlined Court has reviewed and affirmed the death Barber, herein and in 753 S.W.2d at 663-68. penalty in involving more atrocious kill- conscientious, independent, We have made an crime, ings present than the this fact does case, thorough review of this as we have disproportionate penalty not invalidate as every capital in other case which has come Barber, imposed in this case. S.W.2d at past eighteen before this Court over the Moreover, previously 664-65. as we have review, years. As a result of that we are of recognized, in the fact that there are cases opinion premeditated killing that the given life sentence has been for imposition this victim warrants of the death perhaps murders that were also “more atro- penalty. cious” than the not murder this case does provocation explanation, Without penalty disproportionate mean the death unresisting, shot an retreating defendant vic- Barber, this case. 753 S.W.2d at 664-65 injured tim and then chased the man some 91 cases). (citing discussing conducting yards, shooting him once more certainly our review we have course of the chase. not The defendant was examples killings found of more atrocious severely injured deterred when victim impose which the declined death truck; instead, sought refuge pickup under a penalty.23 helpless he knelt down and shot the man North, Jay For instance Jack ignored several more times. The defendant 02C01-9512-CC-00369, No. 1996 WL pleas help dying the victim’s left him Jackson, 12, 1996), (Tenn.Crim.App., at Dec. pickup under truck. The victim re- (Tenn.1997), alive, conscious, app. and a denied pain for at mained minutes, forty- the home of the co-defendant entered perhaps least three to four year early morning five victim in the long according as ten or fifteen old minutes multiple hours times testimony eyewitnesses. and shot victim Unaffected exceptional cruelty using single shotgun. shot sawed-off of his actions to- Sanders, oc- Terry returned first shot was to the victim’s arm and ward Barber, sought comparative propor- 23. As we stated in in which State: sentence, tionality review is conducted this Court in all the defendant received a life this Court Id,, penalty cases. 753 S.W.2d at n. conducting always considers those cases when Though always we include citations to do comparative proportionality review. or discussions of other first murder cases disproportionate. living curred in the room. The victim then Bland’s sentence Cfi Gregg, fled into the bathroom and was shot two supra, 428 U.S. at 96 S.Ct. lay as begging times more he on the floor spare to life. The defendants his cause of review, conducting have our we also gunshot death was a wound victim’s bearing reviewed similarities to other head. Both North and his ad- co-defendant of this and the char- crime being However, mitted to at the scene. both defendant, acter of the defen- being trigger denied man each and example, sentence. dants received a life For person planning blamed the other Jr., Morning Craft, State v. James instigating killing. proof The showed Moorlet, No. Lewis C.C.A. 1989 WL engaged gang that were defendants Jackson, (Tenn.Crim.App., at Mar. activity prove and committed the murder to 1989), (Tenn.1989), seventy app. denied their gang worthiness to other members. victim, year a operator old owner and of North Neither nor his co-defendant were liquor Memphis, his business store closed victim, acquainted with the but there was p.m. Finding at 11 to his a car. went proof some that North’s mother had social- flat, parking tire the car he drove from the during with the period ized victim a time change lot to of the store the front to living when North his with father. Craft, along per- with tire. several other twenty years North was at the old time of sons, tire, change helped the victim killing. Though graduate he did nearly completed, when the task was school, high from had North received a GED. victim was shot three times. was ob- Craft prior North had a for burglary. conviction running served from the scene with the investigation, the course of the North gun firing wounded victim a at him. The gave conflicting police, statements to the ini- gunshot victim died from the a short wounds tially denying any killing. involvement in the later, time one of which his aorta. severed According to judge, the trial North testified proof The showed Craft and Moorlet both at sentencing trial and at in a robbing shortly had discussed victim be- “tearful, jury emotional manner.” The found fore the crime was had committed. Craft guilty degree premeditated North of first triggerman named Moorlet as the to several murder and also found that the State had witnesses The testified the State. proven the aggravating existence three jury guilty found both Craft Moorlet beyond doubt, circumstances24 a reasonable degree perpe- first murder in the committed including the circumstance returned robbery. tration of a State relied

jury in this that “[t]he murder was only felony aggravating murder circum- heinous, atrocious, especially or in that cruel Craft, sentencing hearing. stance at physical it involved torture or serious abuse twenty at time the offense was commit- beyond necessary produce death.” ted, IQ grade (1991 a low seventh 39-13-204(i)(5) Tenn.Code Ann. judge The trial characterized education. Repl.). However, jury im- declined to earlier, “easily years Craft as led.” Three pose penalty, returning instead a of burglary. Craft had been convicted Moor- imprisonment life without grade no parole. let had a twelfth education and possibility jury’s decision to IQ impose North, Though criminal record. his sentence less than death on judge, though listed as not known trial even the circumstances the crime reveal, trial judge, the trial conduct was described words of that he cold, drug no person absolutely was “a callous no “excellent.” There was evidence of life,” regard for in the killing. human does not render or alcohol influence Consider- commit, tempting fleeing 24. The "[t]he also found that murder was or was after commit- commit, purpose avoiding, ting attempting any committed for the interfer- or with, murder, arson, ing preventing robbery, larceny, prose- rape, burglary, or arrest lawful or another;” kidnapping, piracy, cution of the defendant or and that or throw- aircraft unlawful ing, discharging placing ‘‘[t]he murder was committed while defen- de- a destructive engaged committing, dant was vice or Tenn.Code 39-13- or was an bomb.” Ann. of, 204(i)(6) 996). (7) (1991 accomplice Supp.l & the commission or was at- & ing proof, jury trial, impose hiding the the declined to the where he was in a closet. At the penalty imposed death and instead a life proof defense offered to show that the victim upon sentence each defendant. Unlike this looking during had been for the defendant case, there was no evidence that the murder the months before the murder and intended by committed Craft and Moorlet involved dispute him to harm because of a over a unexplained, torture. Unlike the senseless “crap game.” proceeded The case to a sen- Bland, by murder committed the murder tencing hearing at which the defense offered by committed Craft and Moorlet occurred expert testimony that the defendant could be during perpetration spur the of a profit partic- rehabilitated and would from robbery. Though killing moment the was ipation long psychotherapy in a term counsel- certainly reprehensible, it not an act ing group. mitigating Other complete killing random violence as was the upon by relied the defendant included victim Despite this case. Bland’s assertions justification, participation, moral and ex- spur he to decided shoot Sanders on the treme emotional disturbance. defendant moment, upon helpless the the assault twenty-four at the time the offense was victim continued sometime and covered upon proof, jury committed. Based by some distance. The assault Craft and impose declined quickly Moorlet and the victim was ended imprisonment. returned a sentence life persons defenseless. One of who had Jones, case, unlike the defendant in this of- helping change been the victim the flat tire proof capacity of his rehabilitation. fered against testified for the State Craft and Proof that the vic- was also offered show nearly Moorlet. He said when the task was tim acquainted and Jones were and that the completed, began away, leaving he to walk threatening Jones. victim had been While tightening Craft and the victim behind murder, justification certainly no for the it is lug steps, taking bolts. After 15 or 20 a circumstance which reflects the char- the witness heard three shots and turned to contrast, acter of the defendant. the vic- firing gun see the wounded victim a at a stranger tim this ease was a to the defen- fleeing Clearly, Craft. the manner of the posed dant and no threat when he asked killing and the motive for the murder com- simply up?” Although “what’s the circum- distinguish- Moorlet are mitted Graft and stances of two are somewhat murders support given. able lesser sentence similar, offered, mitigation proof and the Likewise, Jones, in State v. Horace C.C.A. relationship between the defendant and the Jackson, (Tenn.Crim.App., No. Dee. explain given victim tee lesser sentence 1980), (Tenn.1981), app. denied im- Jones. posed a life in a facts case with review, upon our Based we conclude There, somewhat similar to the instant case. penal- following cases which the death forty-one year pool old victim was a ty many imposed has been have similarities Memphis hall in came in when defendant Tran, with this case. State v. Van shot him fell to three times. The victim (Tenn.1993), S.W.2d 465 this Court affirmed floor, down, lay he and as there face year sentence of a nineteen old again pulled trigger, defendant but who, victim, shooting defendant after another gun gun misfired. The defendant fired the seventy-four year a woman killed old two more times and then reloaded it. The case, robbery. in this the course of a As got up victim from the floor and ran to a lying already had been shot and was victim room in the back of the establishment where expla- provocation on the floor. Without stick in an he broke window with cue Tran, nation, like the Van attempt escape assaults. defendant’s case, put gun unresisting back the victim ran towards the back of the When helpless pulled hall, outside, victim’s head pool present ran the witnesses Tra,n Nam, trigger. was born in Viet Van then three more shots. but heard When inside, soldier who was the son of an American they returned the victim was de- case, Tran later, As in this Van police ap- a month killed war. ceased. Over father, up his and had prehended apartment grown in an without mother, finding, as that the murder was Along little Van in this education. heinous, atrocious, or cruel in that especially Memphis Tran was resettled a Catholic depravity of or mind. it involved torture agency relief attended school for a 39-2-203(i)(5) (1982) (re- § Tenn.Code Ann. dropping out. Tran short time before Van record, pealed). good employment had a and he had addition, prior no record. In he criminal (Tenn. Henley, In State v. cooperated the and ex- with authorities 1989), penalty imposed the jury pressed killings. for the in this remorse As case, the finding, in this that murder after case, single jury aggravating returned a heinous, atrocious, or in cruel especially was especially murder was circumstance—the depravity it or of mind. that involved torture heinous, atrocious, or cruel in that it involved (1982) (re 39-2-203(0(5) § Tenn.Code Ann. § Tenn.Code Ann. 39-2- depravity of mind. Bland, Henley had pealed). been Like 203(i) (1982) (repealed). Finding that day drugs on the drinking taking supported aggravating this circum- evidence victims, Henley a mar murder. forced no mitigating stance that there were couple acquainted, ried whom he was sufficiently substantial to out- gunpoint, from the to their house at road

weigh statutoiy aggravating circum- demanding money. the victims at When stance, jury sentenced Van Tran tempted comply, Henley refused to take death. money, provocation, shot the and without help husband the wife. When the and then (Tenn. McNish, In State v. 727 S.W.2d 490 less, began moaning, unresisting wife Hen 1987), victim, widow, seventy year a old case, ley, like in this shot her two Bland was the face and a beaten about head with Later, poured gasoline Henley more times. glass vase The flower defendant. the house on fire. body on her and set found, victim alive when she was was but gunshot Though the from the husband died case, died a later. As short time in this wound, from the wife died burns smoke twenty-nine, young, McNish he was when inhalation. the offense. He committed had no Previously, criminal record. McNish had Barber, supra, In the defendant without injuries in sustained head an automobile acci provocation, helpless and unresist- struck prescription using drugs dent and was heavi seventy-five ing year old victim five times in ly Bland, to combat headaches. Similar to the head with a crescent wrench. victim drinking who he had been when he said by fending protect in Barber herself tried Sanders, Terry using killed had McNish been Terry her hands. off blows with Sand- drugs when he committed the murder. As ers, case, to protect tried victim this case, jury imposed sen death himself, seeking fleeing from the assault finding single tence cir upon aggravating refuge the truck. Barber was underneath especially the murder cumstance—that was twenty-nine when he committed the years old atrocious, heinous, or cruel in that it involved mitigation, murder. he relied his As depravity torture or of mind. Tenn.Code and, Bland, capacity like his for rehabilitation 39-2-203(i)(5) (1982) § (repealed). Ann. case, jury youth. As that in this found heinous, atrocious, especially the murder was (Tenn. Cooper, S.W.2d 256 or depravi- or cruel it involved torture 1986), defendant, thirtythree, age shot 39—2—203(i)(5) ty Ann. of mind. Tenn.Code estranged four times wife while was she (1982) addition, (Repealed). jury de- trapped glass and brick cashier’s inside termined that the murder committed Bland, Cooper un booth. As did shot an felony. See Barber v. course of armed, helpless provocation. victim without (Tenn.1994) State, 185, 189-90 Bland, Cooper Also did not his wife like shoot (concluding jury’s consideration rapid four succession. The victim times felony-murder aggravating circumstance was Cooper, time as in this to contem error). harmless once, plate Cooper fate. shot walked her Finally, Taylor, away, firing though the then turned back and resumed (Tenn.1989) ag- found three jury imposed penalty, at her. 771 S.W.2d 387 gravating disproportionate circumstances25 in addition to find- to the im- heinous, ing especially posed murder for similar crimes.

atrocious, or cruel in that it involved torture mind, depravity the circumstances of CONCLUSION the offense and the character of the defen- In accordance with the mandate of Tenn. in that dant case bear similarities 39-13-206(c)(l)(A) (D) (1991 Code Ann. & killing circumstances of this charac- Repl. Supp.), principles previ- & 1996 and the incarcerated, ter of this defendant. While discussed, ously we have considered the en- Taylor guard attacked a with a hand-made in tire record this cause and find that the case, knife. As this the attack was with- imposed not in an death was provocation. out The victim fled down the fashion; arbitrary sup- that the evidence hall, pursued by but was the defendant. discussed, ports, previously jury’s as the Though pled mercy, the victim the defen- findings statutory aggravating circum- Eventually, dant continued with the assault. supports stance and that the evidence the assault, leaving the defendant ended the jury’s finding aggravating that circum- conscious, severely victim alive and but outweighed mitigating stance assault, by wounded. Blinded but con- beyond a reasonable doubt. Tenn.Code Ann. scious, pain the victim out in called other 39—13—206(e)(1)(A)-(C) (1991 Repl. & 1996 prison inmates until he was removed to the Supp.). have We considered defendant’s Bland, hospital. Taylor As was was calm assignments of error have and determined cell, killing, returning after the to his con- respect that none have merit.' With to issues cealing weapon, changing and clothes. herein, specifically not addressed we affirm forty The victim died minutes later from Ap- the decision the Court of Criminal Bland, bleeding. Taylor internal Like relied peals, by Judge authored Paul G. Summers upon youth mitigation of the offense: joined by Judge and David H. Welles and twenty-one he was when he committed the Judge William M. Barker. defendant’s Bland, Taylor juve- murder. Also like had a by sentence of death electrocution is af- nile record. firmed. The sentence of be car- death will earlier, though As no two eases are stated provided by day out as on the ried law 6th identical, many the above six eases have simi- 1998, by April unless otherwise ordered larities with Bland. each the defen- proper Court or other authorities. unresisting dant assaulted an and defenseless provocation explanation. victim without or ANDERSON, C.J., HOLDER, J., and multiple In each ease wounds were inflicted concur. victim, causing pain suffering. and Sanders, Terry BIRCH, JJ., Like the victims in at separate least REID file and cases, Cooper Taylor, two of the were concurring dissenting opinions. trapped get away and unable to from the REID, Justice, concurring dissenting. Bland, defendant’s assault. Like two of the sufficiency very young26 The issues before the Court are defendants were when the of- twenty- comparative proportion- fense was committed—nineteen and of the evidence and Bland, ality agree I one. Also like of the defendants of the sentence of death. two drinking using drugs day majority that is sufficient to had been on the the evidence premeditation, reviewing support jury’s finding of the murder. After cases above, many support sufficient to discussed other cases not that the evidence is (i.e. described, opinion jury’s finding of the “infliction of herein we are of the that torture penalty imposed by jury physical pain upon this case or1mental the vic- severe capital reviewed cases 25. The found that the defendant had com- 26. This Court has felonies, involving defendants. Of the mitted violent that the defendant since 1977 110, ages of 19 and was in lawful confinement when he committed least were between murder, committed. At least 9 and that the victim was a correc- 25 when the offense was employee. years tions old when the offense was commit- Tenn.Code Ann. 39-2- were 19 (9) (1982) 23(f)(2),(8) (repealed). & ted. 1992) J., C.J., (Reid, Daughtrey, dissent- conscious”), he or she remains tim while ing)- outweighs aggravating circumstance that the However, I circumstances. mitigating requirements In addition to of death is find the sentence I,

would and Article Section Eighth Amendment disproportionate. requires a rational process constitutional due sen imposition of and consistent majority, stated United As See, Blodgett, Harris v. e.g., tence. Pulley v. Har Supreme Court held States (W.D.Wash.1994). F.Supp. 37, 104 ris, 465 U.S. S.Ct. L.Ed.2d system for a provides the State Where (1984), re comparative proportionality review, con procedure must appellate Eighth required is not Amend view process. requirements of due form with basic capital every Majority Opinion case. ment 408, 113 Collins, 506 U.S. See Herrera v. That, however, dispose at 663. does (1993). 853, 864, 122 S.Ct. L.Ed.2d Eighth issues. constitutional procedure an Consequently, effective requires “meaningful basis for Amendment comparative proportionality performing distinguishing which [the the few as the satisfy the statute as well review will many the penalty] imposed from death is and constitutions. state federal Furman v. cases in which it is not.” See majority, beginning with by As the noted 238, 313, 2726, Georgia, 408 U.S. S.Ct. (Tenn. Harris, 54, (1972) (White, J., 33 L.Ed.2d 346 con 1992) (C.J.Reid, dissenting), continuing and Tennessee, curring). aspect an essential years, I have criti- intervening over the five required by the “meaningful of that basis” failing “to and cized the for articulate Court proportion States is the United Constitution comparative proportion- apply a for standard ality by review Tenn.Code Ann. mandated ality of the death sentence....” review 39-13-206(c)(l)(D). law, Under Tennessee Harris, “develop I to and urged the Court may juries may “prosecutors indict and con procedures objective and apply criteria indifference, proof leaving vict on of reckless comparing degree and first murder cases all narrowing requirement the constitutional expressly analyze capital in each case those Middlebrooks, appellate to review.” State showing to be similar to or differ- features it (Tenn.1992) (Reid, C.J., Id. at from first murders.” ent other J., part Daughtrey, concurring in procedure and and proportionality 85. The review dissenting part). specific propor by majority in in this answers “[C]ase outlined the case prior many problems of raised in these tionality review ... ensures that dictates majority sets course Eighth decisions. The of the and Fourteenth Amendments procedure into a which com- develop could I, counterparts, §§ state Article and their plies with statute and constitutions.1 capital felony are met in and murders.” (Drowota, J., concurring at Id. and dis approaches discussing After the “two basic Court, senting). able to not “[T]his consider re- comparative proportionality statutory to spectrum just of view,” individual eases but rejects “frequency majority statewide, charged in adopts is with sentences cases being method” “unworkable” and as arbitrary, capricious, method,” guarding against and a reliable “precedent-seeking as punishment.” identify dispropor- imposition capital of means “to and invalidate” freakish Harris, (Tenn. Majority Opin- tionate of death.2 sentences S.W.2d procedure produce more Notwithstanding majority’s er the announced will somewhat shrill 1. response of verdicts ac- to the dissent in than the affirmation self-conscious routine cases, 668-669, pp. prior majority opinion, companied procedure by praise remains of present prompted case a revi- the dissents be seen. expansion majority opinion sion of frequency as the sole means 2. The method analysis pages. proce- proportionality The been determining proportionality, not has accomplishing proportionality re- dure for Missouri, jurisdiction, though adopted any articulated for the time view in this decision Jersey, Pennsylvania, Virginia uti- have New conclusoiy, prefunctory is not discernible in the systematic recording certain lized methods made cases. Since the statements comparison. These of statis- any factors for methods not the 116 sentences of Court has found statute, by comparisons courts in disproportionate tical are used those under the wheth- death majority However, ion at 663-665. The states appears that this there to be some lack of consistency accomplish purpose method in the for determining -will of com- standard if a disproportionate. sentence of is parative death' proportionality—“insuref ] rationali- acknowledges The Court that this case ty consistency imposition as “atrocious” as some cases in which the penalty.” opinion death Majority at 665. imposed, sentence of death has been and also compared determining eases to be that the case is not as “atrocious” as some rationality consistency in the sentence of imprison- cases which of life the sentence review, each by case under as announced imposed, ment was but finds these conclu- majority, capital will be “cases which a significance sions to be of no in determining sentencing hearing actually if disproportionate. conducted the sentence is Majority opinion majority determine whether sentence should 668. The states: be “Even if imprisonment, imprisonment life life defendant receives death sentence without when the the offense are possibility parole, electro- similar to those of an offense for which a cution, regardless actually sentence, defendant has a life received imposed.” opinion Majority at 666. It disproportionate death sentence is not where category should be that this noted of “similar the Court can some basis for discern cases” is different and smaller than the “uni- Majority opinion lesser sentence.” at 665. verse” all cases in which the accused has “unless, majority again: states the case degree murder, been convicted of first taken plainly lacking as a whole is in circum- contemplated by Sup.Ct. Rule See Tenn. stances consistent those in similar expressed R. 12. I concerns share the where imposed has been separate Justice Birch in his dissent on this disproportionate].” [the sentence is not Ma- point. jority opinion at The 668. standard based on these to statements seems be that the sen- then, time,3 The Court for the first enu- tence of disproportionate death is if the de- merates to be factors determined “relevant terminative factors are not “consistent” with to identifying cases conducting [for] similar in those cases in death has im- which been proportionality Majority Opinion review.” at posed. majority But the also states: “More- 667. The Court that the states enumeration over, where no there is discernible basis for invites, is not requires, exhaustive and even sentencing, the difference in the death sen- parties that counsel identify for the other necessarily tence disproportionate.” is not factors and cases deemed relevant to the Majority opinion, analy- at 665. Based on its proportionality Majority opinion inquiry. sis of cases in which the sentence of death provides 667. This counsel a framework imposed has those in been which it was proportionality. within which to address imposed, appears majority not it is re- quiring “many with in similarities” important The Court has taken an thus Majority which death was the sentence. step articulating a structured review opinion at 672. process determining if a sentence of disproportionate death is to Application identifying im- of the factors an- posed similar eases. nounced the Court circumstances of (1995), conjunction general comparison court’s while with the 904 P.2d 245 others are like See, Tennessee, defendant crime and the to other cases perfunctory e.g., at best. Guthrie precedent-seeking approach. e.g. under the State v. See State, (Ala.Crim.App.1996); 689 So.2d DiFrisco, NJ. A.2d 442 Moore, State v. 553 N.W.2d 250 Neb. (1995). majority The insists that the Court has (1996). "precedent seeking used the method” since the § enactment of Tenn.Code Ann. 39-2406 in capital governed by 3. case This is the 116th a However, gives the name of the method (Tenn.Code (1977)) (cur- statute Ann. 39-2406 insight proce little into the effectiveness of the rently codified at Ann. 39-13- Tenn.Code actually dure followed. Some states which em 206(c)(1)(D) requiring comparative (Supp.1996))

ploy precedent-seeking perform method ef reviews, State, e.g., proportionality fective see Lawrie v. 643 A.2d review. (Del. Pirtle, 1994); Wash.2d men- is no of the defendant’s character the defen- There evidence the crime and to the beyond that evi- emotional conditions not this to be one of the few tal or does show dant physical by his criminal acts. His should denced cases which the sentence death record, appear in the oth- list- does not imposed.4 identifying The first factor condition be weapon he was to fire the means er than able by the Court is of death. ed speed. defen- rate of The handgun, run at a moderate this means of death was offense. perpetrator the sole undoubtedly commonly most used instru- dant was police voluntarily weapon of this does He surrendered ment of homicide. Use which gave a full events weigh against culpability. The statement not transpired at time the offenses were was several shots into manner knowledge He full that injuries committed. leg inflicting caused victim’s fired victim final shots were when the approximately him to bleed to death However, he insist- completely helpless. losing after in about minutes consciousness intend to kill the at trial that he did not ed pre- minutes. on their five Based verdict suggest The would that torture, victim. evidence jury apparently meditation and rehabilitated, though might defendant be intentionally concluded that the defendant on little evidence that issue. there is direct leg times shot the victim several in one he expectation he would suffer as that not proof that the defendant is This shows This duration died. means of death and the citizen, engaged he was productive suffering extraordinary. is moti- not drugs, though illegal business of the common shooting entirely is not clear. vation for capable precipitous deadly vio- that he is reflects, far as the So record defendant short, lence, he, is a symptom strangers other. and the victim were to each society. as an instrument of violent well obviously The defendant took offense to the However, proof according assessed why the inquiry victim’s as to defendant majority’s identifying factors does trying others were another extricate among demonstrate stranger apparently from car. a locked This every Although murder is worst murderers. offense, provocation for the as there morally reprehensible socially destruc explanation is no other for the reasonable tive, proof not show this does shooting. park- place of death was the repulsive possess “to characteristics most ing apartment complex lot of an in South decency, society’s sense and most de of Memphis, a at which activi- location unlawful society.” of very fabric State structive ty, including drug dealing, games, rob- dice (Tenn.1993) Howell, 272 v. 868 S.W.2d assault, drunkenness, bery, public and was (Reid, J., The facts circum concurring). and unexpected and at which could the victim “comparable” the relied stances of reasonably expect possibility the of violence. significantly majority are more the young The victim a adult with no re- was case. In v. egregious than in this State Van physical The markable or mental conditions. Tran, (Tenn.1993), 465 the elder 864 S.W.2d premeditation. obviously jury found There execution-style. In both ly victim was killed justification the was no crime. (Tenn.1987), McNish, v. 727 S.W.2d State (Tenn. Barber, v. 753 S.W.2d 659 had some seri- and State defendant committed 1988), with juvenile elderly the victims were killed ous offenses but no criminal as had In 19-year-old multiple an He was blows to their heads. State record as adult. (Tenn.1989), vic- Henley, the the the offense committed. male at time was victims, majority the defendant’s effects on nondecedent 4. The factors to be considered under the activity, prior mitigating prior or criminal opinion aggravating cir- criminal record are the and race, cumstances, death, gender, defen- age, of and the condition, of the manner the defendant’s the means mental, death, physical or killing, the of emotional the motivation for the lace dant’s death, role mur- similarity defendant’s involvement or the of the victims’ circum- the der, authorities, cooperation physical including age, con- the defendant’s stances ditions, and mental remorse, killing, the defendant’s knowl- the defendant’s the victims’ treatment victim(s), premeditation, helplessness the defen- presence edge of of and the absence of or opin- capacity Majority presence provocation, rehabilitation. the absence dant’s absence or of injury presence justification, to and at 666-667. or ion tims, elderly couple, circumstances, an were killing, shot. The hus- or the victims’ and killed, young wife prior band but the was still alive defendants were and had minor poured gasoline when the criminal defendant on her records. and set the house on fire. She died of burns circumstances this case are consis- case, In present and smoke inhalation. tent with those similar cases which the the twenty-year-old victim was shot in the imprisonment sentence was life or life with- leg. The manner age parole. out identifying Consideration of the Tran, McNish, Barber, victims in Van provided by majority point factors Henley clearly distinguishable. are In State specific involving three similar life cases Cooper, (Tenn.1986), S.W.2d (with killing nothing senseless unusual about defendant had threatened stalked the death) the manner of of a victim who no victim, wife, his for some time before the prior relationship with the defendant present In murder. the victim was particularly who was not vulnerable because apparently interrupted killed when he a rob- eases, age In disability. or two of the bery progress. The motivation for the seek penalty. did not even the death killing in Cooper distinguishable. Christian, In State v. Darnell William Taylor, (Tenn.1989), S.W.2d ORIGINAL], [NO NUMBER IN WL defendant, incarcerated, guard while killed a Nashville, (Tenn.Crim.App., Apr. awith knife. The death sentence was im- (Tenn. 7, 1989)), app. Aug. denied posed aggravating on based four circum- 21-year-old 26-year-old shot the defendant previously stances: the defendant was con- victim night- after a minor altercation at a felonies; victed one or more violent upset club. The brother defendant’s became heinous, murder was especially atrocious or him when the victim asked to move because cruel; defendant was lawful confine- blocking he was the.victim’s wife’s view murder; ment when he committed Later, stage. when the victim and employee. victim was a corrections dancing, wife were the defendant be- stood 39-2-203(i)(2), (8), (5), Tenn.Code Ann. & pushed side them and victim. After (1982) (9) present case, (repealed). pushed back, pulled victim out aggravating found one circum- an pistol automatic and shot the victim in the heinous, especially stance: murder was chest. The victim was unarmed. The defen- atrocious cruel. Tenn.Code Ann. 39- dant rape, had three convictions: sec- 13-204(i)(5) (1991). The nature of the crime an burglary, burglary ond Taylor, in the aggravating reflected grade auto. The had an eleventh supporting penalty, psy- education and there no evidence of unquestionably distinguishable. are chological problems. The defendant was Citing Ramsey, State v. drinking at the time of the offense. The (Mo. 1993), majority banc holds that premeditated defendant of was convicted case, whole, plainly “[i]f taken as is degree first The State did not seek morder. lacking in circumstances consistent with penalty. the death in in similar which those cases the death Benson, Layne Jack Bedford penalty imposed, has been sentence (Nov. 12, 1996), Circuit No. 13964 the 31- being dispro- in death the case reviewed is year-old 20-year-old defendant robbed the Opinion portionate.” Majority Ap- at 665. victim of his and then him wallet stabbed standard, plying that the sentence of death in multiple in times the chest. The defendant disproportionate. this ease is convictions, prior ag- including had several majority’s attempt gravated

Notwithstanding burglary, receiving property, stolen distinguish carrying weapon, possession in the cases it reviewed which the a concealed jury drugs. impose penalty, declined to the death The had an eleventh defendant grade those cases share similarities than education there was no evidence more dif- present ferences with in had psychological problems. case. As this The defendant case, abuse, nothing extraordinary history drug there was about and alcohol but there death, he was influ- the manner of the motivation for the no evidence that under the of first de- Defendants are often convicted killing. The defendant was enee prose- in especially a trial which the felony gree convicted of murder murder after reason, cution, aggravated robbery. The State did not seek not seek the did whatever penalty. pool by the death the ma- penally. death defined However, jority such cases. would exclude the third State v. Torrance John- penalty is not cases son, Shelby County [NO Criminal Court proportionality sought equally are relevant NUMBER ON RULE 12 RE- CASE sought. death is as cases in which the PORT](Sentence 11, 1997), the imposed Jan. all murder convictions Without 44-year-old victim was shot chest and be, my pool, it would included jury ATM. throat while she was at an propor- opinion, quite to conduct the difficult only aggravating found as the circumstance tionality required by Tenn.Code review as prior convictions. Thus, 39-13-206(e)(l)(Supp.l996). Ann. However, report also Rule indicates pool that the of similar my because of view mitigating signifi- that the circumstance of no by majority is too cases described history cant criminal raised narrow, part respectfully I dissent from that no evidence evidence. There was majority opinion. drugs defendant was the influence of under or alcohol at the offense. There the time of agree majority I evidence with the that the no was no There is data con- co-defendant. support jury’s finding is sufficient to cerning Apparently, the defendant. the re- Further, premeditation agree I and torture. port up was mixed another one because support that the is sufficient to evidence per- the defendant data refers to different jury’s aggravating circum- finding that report son. It is unclear from the Rule 12 outweigh mitigating circum- stances pre- whether the defendant was convicted of However, Reid, I stances. like Justice would felony meditated murder. The State disproportionate find the death sought the penalty, death but im- this case. posed possibili- a sentence of life without the ty parole. proof

I would find that ease

does not show that the sentence of is disproportionate penalty imposed cases, considering

in similar the nature of the

crime and the I defendant. would therefore

remand the ease to the trial court for the

imposition imprisonment of a sentence of life Tennessee, Appellee, STATE of imprisonment parole. or life without BIRCH, Justice, concurring and Leroy HALL, Jr., Appellant. dissenting. Tennessee, Supreme Court concur, in principle, I with Justice Reid’s at Knoxville. however, would, pool I increase dissent. of similar cases include all which a 15, 1997. Dec. judge’s report required Supreme trial majority 12.1 Court Rule chose to ex- pool review proportionality

clude from all

cases which the did not seek the capi- all cases in which no sentencing hearing my held.

tal

view, discourages more exclusion

meaningful proportionality analysis. murder, report regardless interpret require the State

1. I all whether Rule 12 to penalty. in which seeks the death convicted of

Case Details

Case Name: State v. Bland

Court Name: Tennessee Supreme Court

Date Published: Dec 1, 1997

Citation: 958 S.W.2d 651

Docket Number: 02S01-9603-CR-00032

Court Abbreviation: Tenn.