*1 corporation dis- against available dies and that section that date
solved before
48-l-1013(a) applies to bar the (repealed) further answer
petitioner’s claims. We Industries, comply with Inc. did Piper in effect before statutes
the dissolution provisions
January require corpo- final
to ensure the distribution assets, require do not
rate but which fund for
corporation to establish reserve arising more than two
contingent claims Finally, we after the dissolution.
years doctrine the trust fund
answer while applied in Tennessee previously
has been corporations, application its
to solvent necessarily limited Tennes-
this case is 48-l-1013(a) section
see Code Annotated
(repealed). copy is directed to transmit
The Clerk opinion to the United States Court Third and to the Appeals for the Circuit in accordance Tennessee Su-
parties with 23(8). Rule
preme Court to the in this Court are taxed
Costs Harry T. and Marilene
petitioners, Kradel
Kradel. of Tennessee
STATE
Bobby G. GODSEY. Tennessee, Court of
Supreme
at Knoxville.
Nov.
OPINION III, DROWOTA, C.J., FRANK F. court, opinion delivered the ANDERSON, RILEY E. JANICE M. BARKER, HOLDER and M. WILLIAM joined. JJ.
Bobby Godsey G. was convicted of first degree felony during perpetra- murder Following tion of child abuse. sentencing hearing, jury imposed upon finding sentence of death circumstance, single aggravating “[t]he against committed a person (12) years than age less twelve eighteen years age, defendant was older,”1 outweighed mitigating circum- beyond stances a reasonable doubt. The aggravat- defendant was also convicted of abuse, imposed ed child and the trial court twenty-five years a consecutive sentence of of Criminal conviction. Court Appeals Godsey’s conviction for reversed *6 abuse, concluding child aggravated Assembly did not intend to the General permit separate punish- conviction and aggravated ment for child abuse when the defendant has been convicted of first de- gree felony during perpetra- murder the The Court aggravated tion of child abuse. Appeals Godsey’s affirmed of Criminal degree murder. How- conviction for first ever, Appeals found the Court of Criminal comparatively the sentence of death dis- Wallace, De- Stephen M. District Public penalty imposed proportionate to the fender, Blountville, Tennessee and James Godsey’s modified sen- similar cases and Bowman, Tennessee, City, for T. Johnson pos- the imprisonment without tence life appellant/appellee, Bobby Godsey. G. Godsey and the sibility parole. Both Summers, permission for Attorney applications Paul & State filed G. General Moore, by this Court. Reporter; appeal, granted Michael Solicitor Gener- which were al; Lustre, the record and Attorney carefully reviewing B. Assistant After Alice authorities, affirm General; Wells, we Greeley legal H. District Attor- the relevant Ap- General; Staubus, of Criminal ney Barry portion and Assis- of the Court General, sentence of ap- peals’ finding decision Attorney tant for the District modifying the disproportionate and pellee/appellant, Tennessee. State of 39-13-204(i)(l). 1. Tenn.Code Ann. to wake p.m. 7:15 upstairs around imprisonment sey went sentence life
defendant’s n without dinner, re- he discovered We victim for possibility parole. brought Godsey breathing. of Criminal portion the Court was not verse victim downstairs, Mar- finding dual convictions Ms. Appeals’ decision and while the victim attempted felony the defendant shall called inappro- aggravated child abuse abuse and door hospital was next Because CPR. sepa- priate and reinstate the defendant’s Marshall Ms. apartment complex, to the aggravat- and rate conviction sentence hospital to the to drive victim decided respects, In all ed child abuse. other Ms. arrived When Marshall herself.4 Appeals the Court of decision of Criminal breathing the victim not hospital, is affirmed. had beating. was not He and his heart face, his bruises on on his small vomit
Guilt Phase Proof forehead, ear, not but he was jaw, guilt phase proof during offered externally. approximately bleeding After during trial demonstrates successfully minutes, personnel medical defendant, twenty-two- fall of him and an endotra- inserted resuscitated into an year-old Bobby Godsey, moved “twist-type” X-rays revealed cheal tube. girlfriend, with his Robin Mar- apartment above fracture of the victim’s arm shall, five-year-old and her three children: fracture. suggested a skull right elbow Ginger, four-year-old Dylan, and seven- the endotracheal X-rays also revealed that Price, in this month-old Evan the victim properly positioned tube was 1, 1996, January case. On Ms. Marshall ventilating both properly was not therefore day her spent the with her children and to correct lungs. The tube was retracted friend, Christian, Christy and Christian’s problem. Godsey from work children. arrived home needed, the further Because tests were later, p.m. A Ms. around 4:30 short time in- pediatric to the victim was transferred Godsey Marshall left the victim with alone City care unit at the Med- tensive Johnson apart- drove while she Christian to her three A CAT5 scan revealed ical Center. complex.2 ment on the other side of the fractures, one on two on one side and skull *7 time Ms. Marshall returned a short When half of the other side the back later,3 lying the victim was on her bed. mod- showed skull. scan also victim’s put to in his She offered victim to bed swelling. erately severe severe brain crib, do it. but the defendant said he would bi- medical examinations revealed Further began went and Ms. Marshall downstairs hemorrhages. retinal lateral preparing Godsey dinner. came down- spent and the defendant later, Ms. Marshall stairs a short time and Ms. Marshall day at the and most of the next Godsey videotaped night movie and watched a the victim. waiting for news about approximately hospital one hour. God- When time, daughter who had re- Ms. children care for Christian's 2. At this Marshall’s other visiting her Christian were mother. with Ms. Marshall after mained went home. gone six 3. Ms. Marshall testified that she was she was minutes. The defendant stated that scan, tomogra- computerized axial 5.A CAT gone minutes at three most. gather “ana- x-rays the use phy, involves information from a cross-sectional tomical accompany did not Ms. Mar- 4. The defendant body....” Medical plane of the Steadman’s emergency he was room because shall to (5th ed.1984). arrange Dictionary 1459 had to not dressed because he At on January gums bleeding, noon Detective Darla had been and the t-shirt Kingsport Depart- Anderson of the Police had teething the victim’s blood on it. God- ment came hospital to the and interviewed sey also told Detective Anderson about the Godsey injuries. about the victim’s He vomiting in the car on the way victim approxi- told Detective Anderson that for room, emergency and Detective mately five months he had lived with Ms. photographed Anderson the stains. De- Marshall and her three children. He stat- tective Anderson stated that the defendant provided ed that he care for the children in freely provided information and described evenings p.m. from 8:00 or 9:00 until him cooperative at the time she exam- approximately p.m., 10:45 or 11:00 while trial, apartment. ined the At the State Godsey Ms. Marshall worked. admitted offered DNA test results to that show put nap he had the victim down for a stains on crib sheet and on the defen- going before downstairs to watch a movie dant’s t-shirt were blood stains and that Marshall, Godsey with Ms. said the but the blood had come from the victim. How- victim was fine at that time. God- When ever, hospital personnel testified that the later, sey returned an hour he noticed the bleeding externally victim was not when he breathing. Godsey victim was not sug- room, emergency arrived at and the gested may the victim’s arm have autopsy signs showed no of external bleed- injured Godsey when him moved onto ing. unsuccessfully the toddler bed and at- Godsey hospital returned to the after tempted Godsey “yellow CPR. said some Anderson, speaking and la- with Detective mouth, stuff’ came out of the victim’s but p.m., sup- evening, ter that around 6 life breathing. Godsey the victim was not port was the victim withdrawn because then carried victim downstairs and Hospital personnel was brain dead. testi- asked Ms. Marshall to call 911. Godsey fied both Ms. Marshall afternoon, Later Detective distraught upset were about apartment Anderson drove the victim’s child’s death. Godsey returning and met as he was An autopsy revealed that the victim had hospital. Godsey apart- drove back to the suffered a severe blow to the of his back ment and allowed Detective Anderson to head, fractures, causing brain skull swell- inspect photograph the victim’s bed- brain, ing, oxygen and a lack of to the room, though even Detective Anderson did Bleeding which led to his death. into the not have a search warrant. Detective scalp soft tissue of the around the frac- photographed Anderson the room and not- discovered, but no intracra- tures was also approximately ed that the crib was located bleeding present, nial and no bone *8 two feet from the toddler bed and that the autopsy The displacement was detected. approximately bed was six inches ioddler and the confirmed that the skull fractures found from the floor. Detective Anderson approximately arm fracture occurred on toys scattered inside the crib and stains addition, autopsy In the the same time. the sheet. Detective Anderson did not revealed a laceration of one of the victim’s any damaged notice bloc 1 or items the autopsy intervertebral discs. The also re- Godsey room. also allowed Detective suffering from vealed that the victim was Anderson to the crib sheet and Temóle which occurs when bed, hypostatic pneumonia, Godsey blanket from the victim’s and it cannot damaged the is so that the he had brain gave Detective Anderson t-shirt day. secretions. In Godsey explained produce coughing or clear previous worn the case, the was worsened be- teething, that the victim had been his this condition squeez- stopped he stopped crying. had When amount of vomit been cause small autop- huffing The breaths. lungs. ing, into the victim’s the was short inhaled victim injuries or sy prior Nonetheless, no defendant claimed revealed evidence the abuse. the de- breathing when the was still him to his crib. When fendant returned Godsey and returned Ms. Marshall why given had so by he asked the officers died, the victim and apartment their after the inci- many differing statements about thereafter, Kings- the shortly officers of it dent, responded, “I wanted Godsey port Department arrived and asked Police imme- Godsey was look like an accident.” department police to come the them of Evan diately for the murder arrested being further interviews. After advised Miranda6 Godsey signed a Price. warnings, his
waiver, agreeing police. to talk to God- expert The several medical State offered up sey’s leading recollection of the events Craven, Bickley Dr. including, witnesses from departure to Ms. Marshall’s the Valley at Holston who treated the victim his apartment was consistent with earlier that the Hospital. Dr. Craven confirmed again initially any He statement. denied an antibiotic victim had treated with been however, Eventually, Godsey wrongdoing. days twelve for sinusitis some before that, short during revealed the time Ms. incident, time, no and at there had gone, Marshall had been he become testi- Dr. also evidence of abuse. Craven had abused angry physically and the vic- from medical records fied the child’s stop crying. tim he because would not Center, Practice where Family however, Godsey, gave police several ear several times for child had been seen accounts had differing happened. of what infections, not indicate respiratory and did statements, very Godsey In three similar prior abuse. swinging said that he had victim by crying his ankles to and hit stop his had Mohon, pediatric physician Dr. who victim’s head toddler rail on the bed City treated the victim the Johnson head and In and his arm on the floor. Center, opined that most of Medical statement, prefaced by another he which by the could explanations given truth,” saying, going you “I’m to tell inju- not have caused the victim’s severe Godsey by admitted he became irritated However, inju- he that the ries. testified him crying, grabbed the victim’s with account ries consistent were crib, leg, jerked arm and him out grabbed had the victim the defendant though caught arm was even child’s caught arm arm leg, and the victim’s railing, the crib and between threw and then thrown the victim railing, the crib bed, victim toward the feet toddler two hit forcefully that he the tile floor so bed, away. victim missed landed against the wall. slid under the bed floor, bed, hit on the tile slid under However, acknowledged that Dr. Mohon in the Following a break inter- the wall. indica- sign injuries of older there was no statement, view, Godsey gave a final previous child abuse and conceded tive writing signed at 3:40 was reduced caused could have been injuries that the n .m. that, it, angered the defendant said *9 by grossly negligent behavior. reckless squeezed he by crying, the victim’s Marshall, defense, Ms. biceps Testifying for victim’s head between his and fore- mother, seconds, said defendant ten until the the victim’s arm for about victim Arizona, (1966). U.S. S.Ct. 16 L.Ed.2d 6. See Miranda usually was responsible for the Scotty Trivett, care of her who had been at the hos- children between 8:00 p.m. pital and 10:30 each night admitted, on the the victim was night, that he a good relationship had with testified that the victim’s head struck the the victim children, hospital and with her jerked other two door when Ms. Marshall it and that open she had not inside, seen or heard and carried the victim scream- defendant abuse the night ing help. victim on the Trivett also testified that the incident, although she conceded that arrived at hospital about she did not thirty later, know what occurred while she minutes very upset, crying driving her friend home. and hugging Ms. Mar- Ms. Marshall. Trivett called shall police testified report the victim suffered fre- what he had witnessed quent infections, respiratory and at the when he heard a television account indicat- incident, time of this ing he had been that the cutting defendant had charged been teeth, which caused gums cross-examination, his with murder. bleed. On Tri- She said that stains the blood vett acknowledged on the de- ap- the victim fendant’s peared t-shirt came from the victim’s to be dead when Ms. Marshall car- bleeding gums. She ried him hospital. asserted that the de- into the fendant had never struck the victim or Metros, Ruby an oncology social worker been “mean to him.” at City Center, Johnson Medical stayed with Ms. Marshall and the defen- Christian, Daniel a friend and former dant throughout day most of the on Janu- defendant, roommate and co-worker of the ary that, times, 1996. She testified testified that the defendant loved the vic- they appeared calm, relatively and at other tim and had “fatherly served role” to times, they appeared very upset. Metros victim, providing monetary both very said the defendant was emotional support. emotional Christian recalled that when he learned that victim would be the defendant had turned down his invita- support disconnected from life and when tion to attend the Citrus Bowl in Florida he go was allowed to into the victim’s so that spend he could holidays with hospital room for the last time. Ms. Marshall and her children. Boercker, Geoffrey Dr. specialist employer, Jenkins, defendant’s Silas medication, trauma testified that most of characterized the defendant as an excellent injuries victim’s brain were caused worker. Jenkins had seen the defendant heart stoppage and that the arm fracture with the victim on two occasions and no- probably occurred around the time of the ticed the defendant a good had relation- opined cardiac arrest. He the vic- ship with the victim provided good tim’s torn disc could have been caused care to the victim. striking victim the metal frame on the Christian, Christy friend, neighbor toddler bed. Dr. Boercker also testified testified that always the defendant had misplacement of the endotracheal children, been kind with the providing for tube lessened victim what little chance the them financially. She said the defendant had for survival. Dr. Boercker noted that especially had an good relationship had, fact, with the victim teething at the victim, treating the victim as his own time of his death. Dr. Boercker testified child. Christian heard play- length the defendant inju- as to the various classes ing just with the victim before she left with ries associated with an abused child and Ms. go apartment Marshall to to her any injuries own noted an absence of these evening on the the incident any prior occurred. and of indication of abuse. Dr. *10 than against person a less also either committed noted the absence of Boercker (12) hematomas, years age and defendant the or which twelve epidural subdural age, older.” normally eighteen years present in severe decelera- was 13—204(i)(l). injuries. §Ann. these Tenn.Code tion head absence of 39— that injuries led Dr. Boercker to conclude testimony presented the The defendant cardiop- by death was caused a the victim’s witnesses, all of whom testified of several ulmonary arrest rather than “traumatic life. The defen- background and about his injury, child brain abuse/non-accidental an unstable childhood dant had suffered trauma,” Dr. by autopsy. as noted family moved dysfunctional poor, a in this said that the head trauma Boercker moved The defendant had frequently. enough not a was severe to cause case He had age times seventeen. by least ten opined cardiac arrest. Dr. Boercker fire age in a house at the trapped likely vomiting, the head trauma caused alcoholic, four; an who and his father was a laryngospasm resulted in upon emotionally abusive discover- became airways the victim’s and caused res- closed mother had a child ing that the defendant’s arrest, eventually, ar- piratory and cardiac affair. result an extramarital as the if rest. Dr. Boercker conceded that even he divorced when parents The defendant’s correct, opinion his as to cause of death is old, his had years five and father was precipitated cardiop- head trauma support no financial or emotional provided arrest, ulmonary which caused the victim’s The defen- the defendant thereafter. death. step-father also abused alcohol dant’s rebuttal, McCormick, Dr. emotionally William toward the defen- was abusive defendant, performed the au- dant, medical examiner who totally ignoring often father, spinal that the in- topsy, biological testified victim’s while who looked like his jury and broken arm had occurred simul- showering on defendant’s attention taneously cardiopulmonary with the arrest. and sister. brother Dr. McCormick also stated that the vic- in- average The defendant was above by aspirating tim’s death was not caused very in ele- telligence performed well only because the had a small vomit victim mentary by his school. He was described lungs. amount of vomit his On cross- child, shy, studi- very sweet teachers examination, opined Dr. McCormick ous, the defen- accident-prone. When but injuries sustained could victim old, years his mother dant was thirteen of either reckless or have been result caring baby girl, child of began for a intentional conduct. his own The defendant was left on friend. proof,
Based found marijuana. began using alcohol and mur- degree of first guilty fourteen, adjudged By the defendant was aggra- by aggravated der child abuse and juvenile in a home delinquent lived trial proceeded child abuse. The vated re- He was several months. released sentencing on the phase first sopho- high to his own school his turn murder conviction. perform well. year, but he did more very poor, skipped grades were and he His
Sentencing Phase Proof during great quit He school school deal. began junior year high school and presented proof no further his The State seriously with working. He involved sentencing hearing, relying upon was she aggra- and was devastated when single girlfriend at trial to establish the his proof circumstance, with his pregnant She was vating “[t]he murder moved. *11 left, when she but the defendant was not aggravating mined that the circumstance pregnancy. aware of the outweighed mitigating She returned circumstances be- when the child was two and one-half yond a reasonable doubt and sentenced the months old and left the child with the defendant to death. The trial court im- defendant and his mother. The defendant posed a twenty-five-year consecutive sen- helped baby, his mother care for the aggravated tence for the child con- abuse bought diapers he the child and other viction. needed items. The defendant and his fam- stated, As Appeals Court Criminal ily cared for the child for six and one-half affirmed the first murder convic- months, when eight but the child was tion, dispro- but found the death sentence old, one-half months the child’s mother portionate and modified the sentence to baby took pretext having on the imprisonment possibility life without the photograph taken and never returned. parole. Appeals The Court of Criminal Later, the defendant’s mother learned aggravated also vacated the for conviction newspaper from a notice the child had abuse, finding legislative no intent to placed adoption. for The defendant’s permit separate punish- conviction and letter, mother wrote a but was informed aggravated ment for child abuse when the legal right she had no or claim to the defendant has been convicted of first de- child. family The defendant and his never gree felony during perpetra- again. saw the child The defendant’s grant- tion of child abuse. We adoption
mother said the child’s had a ed both the State’s and the defendant’s devastating on effect the defendant. applications permission appeal
Later, join attempted part now affirm in in part and reverse army with his best friend. The defen- Appeals. decision of the Court of Criminal very high dant scored on the recruitment test, Recording
screening years but he was Electronic of Statement seventeen parental old and needed consent com- initially by police, When interviewed plete process. The defendant was knowing anything the defendant denied very disappointed when his father refused injuries about how the victim sustained the consent, to give his and the defendant was resulting Questioning pro- his death. join eighteen unable to when he turned gave ceeded and the defendant about nine military changed policy because the had its different versions of occurred. One what by accept persons that time and would not present during of the officers interro- high diploma. who had no school Since gation pref- testified the defendant turning eighteen, the defendant has been eighth by saying aced the version he was joyriding, driving convicted of under the “going to tell ... truth.” the whole The intoxicant, of an underage pos- influence had acknowledged defendant then he alcohol, driving session of on a re- attempted to throw the victim onto the voked license-all misdemeanor offenses. bed, missed, floor, that the victim hit the The defense rested after the defendant’s bed, slid under the and hit the wall. This testified, expressing mother love her account, version, eighth most con- asking jury spare son and his life. injuries physical sistent with the sustained statement, trial jury court instructed the as to the victim. After this there interview, single aggravating it circumstance and as was a break and when resumed, mitigating sign seventeen circumstances the defendant refused to recounting eighth raised the evidence. The deter- written statement *12 vio- suspect a in substantial Instead, that obtained from he maintained he version. recording requirement would squeezed had lation of the did not throw the victim but stop in an his Id. at 592. Unlike suppressed. victim’s head effort be Court, a the Minnesota Su- crying, signed Supreme and he written statement Alaska interrogation part this No to determine wheth- preme effect. refused Court electronically The supported recorded. detec- was er Minnesota Constitution that acknowledged they could have imposition tives the requirement. recorder, tape but ex- easily obtained a is no The that there defendant admits rule, as a
plained
normally,
that “we don’t
that
in
requiring
authority
Tennessee
our
record
interviews.”
electronically recorded.
terrogations be
Appeals,
in the
of Criminal
As
Court
State v. Live
upon
The
relies
defendant contends
this Court
his
(Tenn.Crim.App.
say,
65
941 S.W.2d
have
police
to the
should
statements
1996),
a
refusing to allow
held that
they
suppressed because
were
elec-
independent blood
defendant to obtain an
tronically
He
recorded.
relies
deci-
analysis
driving prosecution
in a drunk
supreme
from
courts
sions
two other state
fa
suppression of evidence
tantamount to
interrogations
custodial
requiring that
be
is a
or useful to the defense and
vorable
State,
Stephan
recorded.
711 P.2d
See
statutory
violation of
defendant’s
(Alaska
Scales,
1985);
State v.
process rights.
due
The defendant asserts
(Minn.1994).
N.W.2d
officers
this case
that the failure
Stephan,
In
Supreme
the Alaska
Court
electronically
interrogation
record
police
held
the failure
to create an
process rights by denying
violated his due
recording of a
interro-
electronic
custodial
him
only opportunity to have an exact
place
in a
gation occurring
of detention
police.
he
record of what
said to
rights
due
generally
process
violates the
view,
Ap-
In
of Criminal
our
Court
suspect
under
Alaska Constitution.
Livesay.
peals properly
distinguished
Stephan,
Specifically,
reckless, the 1995 amendment rendered that be The defendant also asserts disagree. the statute unconstitutional. We in from killing the this case resulted cause Barber, 659, v. 753 671 State S.W.2d conduct, knowing the facts do not establish (Tenn.1988), up this Court considered and life,” disregard for human as a “reckless constitutionality pre held the of the 1989 Arizona, 481 U.S. required by Tison v. statute, culpable a which did not contain 1676, 1688, 137, 127 107 95 L.Ed.2d S.Ct. Middlebrooks, mental state. In State v. (1987), imposi constitutionally support (Tenn.1992), 317, 840 S.W.2d 336 reaf we penalty. disagree. tion the We and upheld firmed our decision Barber First, Appeals Court of Criminal felony constitutionality of the murder out, correctly pointed Tison involved also it a though statute even did not contain kill the who themselves did not defendants culpable mental more recent state. Even actions Here defendant’s own victims. 888, ly Kimbrough, v. 924 State Florida, In Enmund v. killed victim. (Tenn.1996), felony 890 we described the 3368, 782, 102 73 L.Ed.2d 458 U.S. S.Ct. murder doctrine as follows: (1982), Supreme the United States felony-murder, approved imposition of the death typical case of Court
In the felony on the actual killer in a respect penalty is no malice ‘fact’ with there homicide; murder, the Court Tison reaffirmed supplied the malice is respect participants position felo with by the ‘law5. There an intended reckless indif ny felony murder who exhibit and an unintended homicide. Furthermore, part in the human life. plays malice which commis ference aggravated child state for felony culpable law mental sion of the is transferred abuse, higher “knowing,” is a standard As result to the homicide. than “reckless indifference.” felony See Tenn. rule underlying murder when the 39-ll-106(a)(2)(20) Code Ann. (defining in, of, directly integral results an part or is Therefore, knowing). State, the Court of Crimi- homicide.” v. Barnett 783 So.2d Appeals correctly nal that 927, concluded both (Ala.Crim.App.2000); see also statutory elements and the facts of this Campos, N.M. 921 P.2d case establish reckless indifference. (1996)(outlining ap 1270-72 varying plications merger doctrine in differ The defendant’s argument next jurisdictions). ent that the process statute violates due be cause the constituting acts generally Courts have declined felony child abuse upon murder the merger implicates hold doctrine conviction is based the same acts that any principle of constitutional law. See caused the victim’s death. The defendant Olk-Long, Rhode v. e.g., 84 F.3d process contends due requires (8th Cir.l996)(rejecting the defendant’s felony upon the underlying be based acts process due to her challenge conviction separate causing from those death. The felony upon child endanger based points jurisdictions to other because argument ment lacked a con apply merger preclude doctrine to basis, depending stitutional instead felony murder conviction assaul- based on merger doctrine); Lopez, *15 Wanrow, tive See offenses. State v. 91 131, 1078, (1992)(ob- 847 1089 Ariz. P.2d 301, 1320, Wash.2d 588 P.2d 1322-1324 serving that the court could no conceive of Annotation, (1978); generally “Appli see impediment constitutional “precluding cation of Felony Murder Doctrine "Where classifying legislature from child abuse Felony Relied Is an Includible in that results the death of the child as a Homicide,” Offense with the A.L.R.3d 40 felony- predicate felony triggers (1971). 1341 responds The State that the statute”); State, Mapps murder v. 520 merger a statutory is rule of con doctrine 92, (Fla.Dist.Ct.App.l988)(re 93-94 So.2d struction, principle not a of constitutional jecting argument felony that the mur law, only applies that the rule when aggravated der statute that included legislature has not enumerated the predicate as a abuse offense was unconsti support felonies that a will conviction for tutional); Tremblay, State 4 Or.App. v. felony agree. murder. We 512, 507, (1971)(observing 479 P.2d 511 century, Conceived in the nineteenth merger impli that the doctrine does not ... merger developed doctrine was as a law). any principle cate of constitutional for explanation
shorthand the conclusion Instead, merger courts have viewed the felony-murder that the rule should principle discerning legis doctrine as a for applied be in circumstances where and, specifically, intent a lative more as (or only underlying “predicate”) felony principle preserves meaningful “some committed the defendant was as- Legislature’s in domain which the careful sault. The name the doctrine derived graduation of homicide offenses can be from the characterization of the assault Hansen, 36 implemented.” Cal.Rptr.2d as an that “merged” offense with the 609, Accordingly, P.2d at 885 resulting homicide. widely doctrine not been ac merger has Hansen, 300, Commonwealth, People cepted. v. 9 Cal.4th 36 Cal. See Cotton v. 35 (2001). 241, 609, 1022, 511, Rptr.2d 244 Va.App. 885 P.2d 1028 546 S.E.2d (emphasis original). broadly, applied largely More “the The doctrine has been merger felony felony doctrine bars the use of the those states where the murder stat
775 his merger doctrine bars that the list felonies assertion specifically ute fails felony murder is without for felony conv conviction capable of supporting explicitly merit. “legislature iction.9 Where felony predi particular is a states that argues that the defendant Finally, ‘merger’ felony felony-murder, no cate aggravated on felony murder predicating 1089; Lopez, see also occurs.” 847 P.2d process re violates the due child abuse State, 93; Huntley v. 520
Mapps,
So.2d
Anthony, 817 S.W.2d
v.
strictions
State
890,
(1999);
227,
271
518 S.E.2d
Ga.
893
299,
(Tenn.1991),
aggravat
unless
306
803,
Rhomberg,
v.
516 N.W.2d
805
State
substantially increases the
ed child abuse
(Iowa 1994);
Jones,
People
209 Mich.
v.
that necessar
risk of harm over
above
128,
(1995);
212,
App.
129
530 N.W.2d
present
itself. We dis
ily
in the crime
759,
Cromey,
State v.
348 N.W.2d
Anthony,
held that
agree. In
this Court
State,
(Minn.1984); Faraga
514 So.2d
v.
kidnapping and rob
dual convictions
Williams,
295,
(Miss.1987); State v.
302-03
kidnapping
if the
bery
inappropriate
(Mo.Ct.App.2000);
115-17
S.W.3d
In
robbery.
essentially incidental to
(Okla.
McCann,
907 P.2d
contrast,
felony
mur
qualifies
a murder
Tremblay,
P.2d at
Crim.App.1995);
felony
closely
underlying
if
only
der
511;
generally 40
Homi
see
Am.Jur.2d.
time, place,
killing
to the
connected
(1999).
cide 66
causation,
continuity
of action.
(Tenn.2000).
Pierce,
Appeals
As
the Court of Criminal
words,
felony
murder doctrine
recognized,
case
As
other
General
“inci
requires
underlying
in
felonies be
sembly
expressed
has
an unmistakable
time,
place, causa
qualify dental” to the
killing
tent to have
child abuse
tion,
continuity
Apply
Id.
felony
as a
action.
capable
supporting
convic
*16
Anthony
suggests
the
ing
tion
as
degree felony
of first
murder. Under
circumstances,
long-stand
this
merger
require rejection of
such
the
doctrine would
ing
felony
murder doctrine.
applied
preclude
portion
not be
a convic
should
murder,
Anthony to
analysis employed
The
in
de
degree felony
tion for first
even
n
convic
the
of dual
though
consequence
permissibility
death is the
of an termine
in
context
inapplicable
aggravated
simply
child
The
tions is
abuse.
defendant’s
See,
Barnett,
killing
during the
e.g.,
(ap-
for a
committed
783 So.2d
930-31
conviction
felony);
any
Common-
plying
merger
perpetration
the first
of
forcible
doctrine where
147,
Wade,
N.E.2d
degree felony
allowing
v.
428 Mass.
697
murder statute
convic-
wealth
541,
merger
(1998)(applying
doc-
felonies
545-546
tion based
certain enumerated
degree felony murder
"any
felony clearly dangerous
where the first
trine
other
609,
life"); Hansen,
killing
for a
Cal.Rptr.2d
conviction
36
statute authorized
human
any
during
fel-
merger
perpetration
(applying
committed
885 P.2d
1025-1026
ony
by
imprisonment); Cam-
degree felony
punishable
life
mur-
doctrine where
second
pos,
(applying the
killing
a
P.2d at 1270-1272
authorized conviction for
921
der statute
degree felony
any
inherently
where
first
during
felony
merger doctrine
dan-
committed
State,
life);
possible
gerous
did not enumerate
v.
264 Ga.
murder statute
human
Foster
Branch,
felonies);
296,
369,
244
predicate
Or.
(1994)(applying the
444 S.E.2d
297
97,
766,
(1966)(applying the
degree felony
P.2d
767
merger
a first
415
doctrine where
degree
second
fel-
merger
for
doctrine where the
authorized a conviction
a
murder statute
ony
authorized conviction
killing
during
perpetration
murder statute
committed
felony
any
Ill.App.3d
killing during
perpetration of
felony”); People Morgan,
v.
307
"a
725,
206,
707,
designated by
specifically
than
N.E.2d
209
other
those
240 Ill.Dec.
legislature
capable
supporting a first
(1999)(applying
merger
where a
as
doctrine
conviction).
felony
degree felony
murder
murder statute authorized
first
determining
felony may
whether a
prop-
adopted by
General
Assembly
re
erly support a
felony
conviction of
Bowers,
murder.
sponse
Kerry
Phillip
No.
(Tenn.Crim.App.,
Aggravated Child Abuse: Lesser 1989), Aug. filed and that the statute Included Offense was commonly “Scotty known as the Trex The State charged the defendant Ducker, with ler Law.” S.W.3d at 893. The felony aggravated both murder and child found, provision, intent of this we was abuse, the felony upon which the murder permit punish dual convictions but to charge was The based. convicted the killing the reckless of a child de as first offenses, defendant of both but the Court gree Accordingly, murder. Id. in the ab Appeals of Criminal set aside the convic- legislative contrary, sence of intent to the abuse, aggravated tion for child concluding we aggravated found child be a abuse to it is a lesser included felony offense of killing lesser included offense of reckless murder. of a child. Initially present we note that the issue However, Assembly the General case, in this ed whether dual convictions again the first degree amended murder felony predicate murder and the of by statute repealing separate provision aggravated fense of child abuse are per defining killing of a reckless child and mitted under Ann. Tenn.Code 39-13- amending felony murder add statute to 202(a)(2), statute, felony murder was aggravated felo- child abuse as one of the expressly pretermitted in State v. Ducker. capable supporting nies conviction 889, 893, (Tenn.2000). See n. degree felony first previously murder. As issue Ducker was whether aggra stated, prosecuted con- Godsey was vated abuse was lesser-included felony victed under the murder statute child, killing offense of of a pursu reckless Therefore, amended in 1995.11 the issue 39-13-202(a)(4) ant to Tenn.Code Ann. whether, appeal under the (1994),10the statute in effect at that time. statute, felony murder dual convictions for crime, child, This killing reckless of a felony aggravated child abuse statutory provision defined entirely child abuse are permissi- separate and from distinct the statutory ble. provision felony defining murder. As a *17 The by adding ag- State contends that result, that a legislative we concluded in gravated child to the list of abuse felonies permit tent to dual convictions and sen capable of a supporting conviction for felo- present appear tences did not to be under murder, ny Legislature expressed its killing provi the 1994 of a reckless child Ducker, permit punish- intent convictions and sion. 27 S.W.3d 893. ac We felony ment both for murder and for knowledged defining statute as aggravated degree underlying felony, first murder the reckless child abuse. killing of by child In aggravated support argument, a child abuse of this the State 1, July Godsey 10. That statute until was effective 1995 The statute under which was con- provided pertinent part in as follows: provides pertinent part victed as follows: (4)[a] Degree “First ... murder is reckless “(a) (2) degree killing First murder is ... A (16) killing years of a child than sixteen less of perpetration of another in the committed age, if aggravat- the child's death results from attempt perpetrate aggravated or ... abuse, 39-15-402, by § ed child as defined § Tenn.Code child abuse....” Ann. 39-13- by against committed the defendant 202(a)(2) (b).& child."
777
of-
as a lesser-included
v. voted child abuse
upon this Court’s decision State
relies
”
(Tenn.
(Empha-
934,
‘any
of homicide.’
Blackburn,
kind
fense
694 S.W.2d
936
original.)
sis in
1985),
that the
where this Court concluded
con-
Legislature
multiple
to allow
intended
Generally,
is correct
the State
felony mur-
punishments
victions
tried
a defendant can be
asserting
felony.
The State
underlying
der and
felony mur
degree
first
and convicted for
points out that
in Blackburn this Court
felony
single
in a
underlying
der and
statutory
“[njothing
observed that
the constitutional
violating
trial without
of murder in the first
definitions
jeopardy.
double
prohibitions
against
felony
and of the felonies listed
[the
Indeed,
Blackburn,
at 936-37.
694 S.W.2d
legislative
a
in-
statute]
indicates
require dismissal
jeopardy does not
double
punishment
tent
that conviction and
merger
or
“the two statutes
where
permitted.”
should not be
both offenses
Blackburn,
separate
directed to
evils.”
Id.
at 937.
694 S.W.2d
(citing Albernaz v. Unit
694
at 936
S.W.2d
343,
States,
333,
In
that the
101 S.Ct.
response,
says
defendant
ed
450 U.S.
(1981));
see also
Appeals correctly
While the General in such eighteen years age under bly designated neglect has child abuse and injury neglects a manner to inflict or kind any lesser included offense of adversely as to affect the such child so homicide, argues the Gener- health and welfare commits child’s Assembly designate aggravated al did misdemeanor; provided, that if Class A child abuse a lesser included offense of neglected six the abused Therefore, according homicide. *18 less, is years penalty or the a age of State, Legislature the did not intend to felony. DClass felony for preclude dual convictions mur- (b) (c) aggravated sup- der child As and of this statute are and abuse. Subsections (b) assertion, ad- port points procedural this the State to in nature. Subsection Ducker, authority juvenile courts to the of comment in 27 S.W.3d dresses Court’s section, (Tenn.2000): arising 893, 1 under this n. child hear matters “[w]hile (c) provi- the as and states explicitly designated has been a subsection abuse supplementary or homi- the are any offense ‘of kind of sions of section lesser-include statutory 39-15-401(d), provisions. § other Ann. cumulative to cide’ in Tenn.Code (d) part provides in relevant designated aggrar the has not Subsection legislature 778
that child and neglect “may ny felony abuse a murder and underlying be the any clearly expressed lesser included offense of kind of a legisla- of absence homicide, assault, statutory contrary, or sexual of- tive intent to the was rendered in presumed fense if the victim is a and 1985. The Assembly child the evi- General is supports charge dence a under this sec- know state of the law at the time it 15—401(d). See, § tion.” Ann. e.g., Washington Tenn.Code acts. v. Robertson 39— (Tenn.2000). County, S.W.3d Aggravated child gov abuse is Therefore, Assembly when the General 39-15-402, § erned TenmCode Ann. felony murder in 1995 amended statute provides part in relevant as follows: aggravated to add child the list of abuse to (a) person A ag- commits the offense of capable supporting felony felonies of gravated aggravated child abuse or child conviction, the Assembly General neglect who commits the child of offense presumed is dual have known that con- neglect or abuse 39-15- defined felony aggravated victions for murder and n and: permissible be child abuse would (1) The act of or neglect abuse results in of a contrary. absence clear intent to the child; bodily injury serious to the or Although Assembly specifical- the General (2) weapon deadly A is used accom- ly designated neglect child abuse and plish the act of abuse. homicide, lesser included offense of there (b) A violation of this section is a Class is no designation aggravated similar Felony; provided, that, B if the abused Indeed, child abuse. we have evaluated neglected or child is six years age clearly and no relevant statutes find less, penalty A felony. is a Class expressed legislative prohibit intent added.) (Emphasis Legislature While the stated, previously dual convictions. As specifically provided has that child abuse key punishment in multiple issue cases is neglect “may and abe lesser included of- Denton, legislative intent. 938 S.W.2d at any homicide,” fense aggra- kind of Legislature indicated Where has vated child abuse statute is silent and con- intended, punishment cumulative no similar designation. tains “Omissions analysis jeopardy pro- double need not significant express are when statutes Id., ceed any further. S.W.2d categories certain but not others.” Car- case, reading n. 14. In this the child abuse Co., ver v. Citizen Util. abuse, neglect, aggravated child and (Tenn.1997). addition, as the State con- felony together, murder statutes we con- tends, aggravated child abuse statute legislative clude that intent to allow (a), incorporates only por- subsection punishment cumulative is clear. There- containing tion the definition of child abuse fore, aggravated hold that child abuse we aggravated neglect. child abuse felony is not lesser included offense statute does not refer subsection even per- murder and that dual convictions are (d), portion designating statute Accordingly, missible in this context. neglect child abuse and included lesser judgment Appeals Court Criminal offense homicide. Given that subsection vacating the defendant’s (a) separate distinct from subsection abuse conviction is reversed the judg- (a) (d), incorporation of subsection does ment of the trial court is reinstated. (d) also mean subsection has Aggravating Circumstance incorporated. *19 (i)(l) Narrowing — im Finally, perhaps most Middlebrooks, portantly, Relying upon Court’s decision Black State 840 burn, (Tenn.1992), for defendant permitting dual convictions felo- S.W.2d 317 the
779 whose murder only to those defendants may seek that the State not next contends years age. of felony murder under twelve penalty the death victims aggravated by narrowing child abuse the perpetration the of that The State asserts aggravating circumstance where the sole victims those of murderers to whose class 39-13-204(i)(l) Ann. twelve, Tenn.Code the General age the of —“the are under person against murder committed the dis- Assembly recognize has chosen (12) years age of less than twelve size, ability be- strength, crepancy age, years of eighteen defendant was assailant, as the as well victim and tween that The contends or older.” defendant vulnerability younger of chil- heightened duplicates circumstance aggravating dren, who, de- generally are less able age aggra- of element of offense assailant, themselves, describe their fend and therefore does vated child abuse attack, assistance, or even to seek flee death-eligi- sufficiently narrow class of Given the nature of crime. articulate Eighth Amend- ble defendants under factors, says making that these State ment to the United States Constitution victims those who kill such vulnerable I, 16 the Tennessee and Article Section of death-eligible than reasonable and is more ag- that this Acknowledging Constitution. narrowing of the meaningful constitutes allowed gravating circumstance has been of all murderers. class support a sentence of life without the analysis our with Middle- begin We parole aggravated possibility felony of brooks, where, majority this Court of murder, Lacy, child see State v. 983 abuse defendant is convicted held “when the (Tenn.Crim.App.1997), the S.W.2d solely the basis first murder on of points out Middlebrooks murder,” felony of mur- felony use apply penalty does not outside the death not per- circumstance is aggravating der Butler, context. See S.W.2d narrow the missible because it “does not (Tenn.1998). The re- defendant also suffi- death-eligible murderers class lies a law review article which ex- ciently Eighth Amendment under pre- pressed theory Middlebrooks and Article the United States Constitution aggravating cludes the use of circumstance I, of the Tennessee Constitution Section 16 (i)(l) impose penalty the death for felo- duplicates it the elements because ny murders based on Id., In so at 346. offense.” Wade, Gary R. The Trexler abuse. See holding, we observed Middlebrooks, Saga: Hale & 23 Mem. St. (1993).12
L.Rev. 319 instructing sentencing Automatically felony in a felo- body underlying on the that, contends unlike Middle- ny-murder nothing case to aid the does (i)(l) brooks, aggravating circumstance distinguishing jury in task of between its provides meaningful in this case issue defendants homicides and first-degree offense, underlying narrowing because imposing the death purpose for the abuse, felony aggravated child murder dim, distinctions penalty. Relevant all applies to defendants whose felony in a mur- participants since all eighteen years age, are under victims der, degrees of regardless varying aggravating applies circumstance while the (i)(l) aggravating Lloyd circumstance Jul- to consider footnote 3 in State v. James Cf. 03C01-9511-CV-00371, ian, II, WL charged rape of a child No. where the indictment 24, 1997)(sug- (Tenn.Crim.App., July aggravated kidnapping especially as the might if it gesting trial court err murder). that the felony felony underlying considering penalty the death allowed a *20 child; culpability, sentencing bodily stage injury deadly enter the or ... the a weapon § with at is used.” 39- aggravating least one factor Tenn.Code Ann. statutes, felony 15-402.13 Under these against them. by child be aggravated may murder abuse added). Id. at 342 (emphasis eigh against person committed less than To determine the concern whether However, (i)(l) years aggra teen old. addressed in Middlebrooks exists this vating applies only circumstance if vic case, again we look felony must to the years tim is less than old. twelve Unlike murder statute under which the defendant felony aggravating murder circum convicted, was degree which defines first Middlebrooks, ap stance issue killing murder as of commit “[a] another equally felony murderers, plied to all attempt ted in the perpetration of or (i)(l) by aggravating circumstance does not perpetrate aggravated ... child apply aggravated its terms to all child ” § abuse.... Tenn.Code Ann. 39-13- cir aggravating abuse murderers. This 202(a)(2). is neglect Child abuse and de simply duplicate cumstance does fined as follows: offense, underlying felony elements of the (a) Any person knowingly, who other by aggravated murder child It abuse.14 means, by than accidental treats child death-eligible narrows the class of defen (18) under eighteen years such age of only it de applies dants because those inflict injury neglects manner as to or fendants whose victims less murder are such a child as to adversely so affect the years age. agree than twelve of We with child’s health and welfare commits a that, adopting aggrava State misdemeanor; provided, Class A that if circumstance, Assembly ting the General neglected the abused is six or child recognized no doubt victims under years less, age of or is a penalty years typically age twelve of more felony. Class D vulnerable than between thirteen those (a) § (emphasis Tenn.Code Ann. 39-15^401 years age. younger of A seventeen added). aggravated Child abuse becomes victim is less defend or able to himself when the “act abuse in serious of results herself less able to flee. The General entirety provides: In its the statute of the victim is an essential element of 13. abuse, (a) felony, aggravated A child aggra- Class person A commits the of offense such, Id.., jury. aggravated charged vated must be to the child abuse or child ne- glect who of child commits offense S.W.3d at 899. had The defendant in Ducker neglect abuse or as defined in 39-15-401 aggravated been convicted of counts of two and: Therefore, key child abuse. issue (1) neglect The act abuse or results in felony appropriate purposes classification child; injury bodily serious to the or However, sentencing. when the is (2) deadly weapon accomplish A is used to seeking felony a conviction for murder the act of abuse. abuse, aggravated punish- child the enhanced (b) A of this section a Class B violation is portion aggravated ment of the child abuse that, Felony; provided, or if the abused If is statute is not relevant. the defendant neglected years age child is six guilty felony aggravated found murder less, penalty felony. is a Class A abuse, sentencing provisions child for first sentencing apply, murder will not the aggravated stating In so we are aware that aggravated provisions for child abuse. There- felony punishable child abuse if is as Class A fore, fact, age of the victim contained in sub- years age. the victim six is under (b) Ducker, aggravated of the child section abuse stat- held the State this Court that when portion ute not an element of the offense invoking punishment essential this enhanced statute, felony age by aggravated child abuse abuse.
781 General As The Tennessee per Assembly reasonably concluded that re appellate courts sembly has directed young and abuse these sons who attack whether viewing capital cases determine culpable mur among the most victims State, or of death excessive See, v. P.3d sentence e.g. “[t]he Gilson 8 derers. imposed disproportionate penalty 883, (finding leg (Okla.Crim.App.2000) 923 cases, considering both the nature chil similar protects islative action vulnerable Tenn. Thus, the crime and defendant.” legally justified). hold that of dren we 39-13-206(c)(l)(D). (i)(l) In State Ann. suffi Code aggravating circumstance (Tenn.1997), Bland, we 651 class v. 958 S.W.2d ciently meaningfully narrows the analysis of this an exhaustive defendants, undertook death-eligible of even defen full in a statutory provision involved felony of dants who have been convicted jurispru language, purpose, quiry into perpetration of Woodard, legislative history background, parte Ex dential child abuse. See also (Ala.1993) proportionality review. 1065, (up comparative of 631 1071-72 So.2d statutory comparative emphasized a holding constitutionality of similar We circumstance); from traditional proportionality is different age aggravating of victim Wood, 702, analy 88, Eighth proportionality Amendment v. 132 Idaho 967 P.2d State sis, (1998); evaluation of the (upholding age of which is “abstract 716-17 a similar partic a for a aggravating against appropriateness a of sentence victim circumstance Harris, Pulley v. 465 U.S. narrowing challenge); Peo ular crime.” constitutional 875, 37, 871, 364, 42-43, L.Ed.2d ple Rissley, 165 104 S.Ct. v. Ill.2d 209 Ill.Dec. (1984). contrast, statutory compara 205, 133, In (up N.E.2d 152-53 “presumes that proportionality a tive review holding age aggra similar of the victim Wilson, circumstance); penalty disproportionate is not vating v. 685 the death State (La.1996) It in the traditional sense. (upholding 1071-72 crime So.2d instead whether age purports inquire cir aggravating similar victim cumstance). unacceptable penalty nonetheless disproportionate to
particular case because
convict
Statutory Comparative
punishment imposed on others
Proportionality
Bland, 958 S.W.2d
ed of the same crime.”
Review
(Tenn.1997)
Pulley,
(quoting
at 662
Appeals
The Court of Criminal
a well-
875-76).
42-43,
104 S.Ct. at
U.S.
sen-
opinion
reasoned
concluded that the
has charac
Supreme Court
United States
disproportion-
tence of death
this case is
comparative proportion
statutory
terized
penalty imposed
to the
in similar cases.
ate
the ran
ality
against
as “a check
review
result,
Appeals
As
Court Criminal
imposition
or
arbitrary
dom
imprisonment
modified the sentence to life
Gregg Georgia,
U.S.
penalty.”
parole.
possibility
without the
2909, 2940-41,
State
875
270-71
S.W.2d
(Tenn.1994).
easily
sentencing
not
satisfied.
employ
precedent-
When
We
Bland,
seeking
analysis.
properly
method
is
instructed
the trial
958
at
approach requires
appropriately
S.W.2d
665. This
court
considers
evi-
See,
State,
613,
1997-28,
(S.B.423)
Pa.Legis.Serv.
§
Willett v.
322 Ark.
911
Act
1
15.
937,
(same);
6-4-103(d) (same).
(stating
Wyo.
§
945-46
that Ar-
Stat.
Supreme
longer
kansas
Court will no
conduct
reviews);
Salazar,
proportionality
206,
State
2940;
v.
173
Gregg,
428
U.S. at
96 S.Ct.
399,
566,
(1992) (stat-
Bland,
665;
Webb,
Ariz.
844 P.2d
583-84
State
958 S.W.2d at
v.
238
ing
Supreme
389,
147,
Arizona
Court will dis-
(1996);
Conn.
680 A.2d
211
State v.
review);
proportionality
1235,
Welcome,
1983);
continue
1995
(La.
Conn.
458 So.2d
1258
16, 3(b)
15;
McNeill,
(Reg.Sess.)
Tichnell,
§
(repealing
Acts
the stat-
468 A.2d at
State v.
346
233,
284,
utory provision requiring proportionality
(1997);
re-
485 S.E.2d
289
N.C.
view);
(S.B.1302)
334,
(1994);
Bey,
1994
Sess.
Idaho
Laws 127
685
137 N.J.
645 A.2d
415,
(same);
(H.B.590)
Rhines,
(S.D.1996);
1992 Md. Laws 331
548
457
N.W.2d
628,
(same);
(same);
Pirtle,
1985 Nev. Stat. 527
127 Wash.2d
P.2d
Laws,
(same);
(1995).
Sess.
Okla.
Ch.
convicted of first
cir- which
mitigating
aggravating
dence
12;
murder,”
Sup.Ct. Rule
statutory
Tenn.
degree
under
scheme
cumstances
constitutional,
death Bland,
similar
disproportionate
we select
958 S.W.2d
exception,
rare
should be the
sentences
comparative proportionality17
cases
The fact that no death sentence
norm.
only those first
pool that
includes
from a
dispro-
has
invalidated as
previously been
in which the State
cases
*23
portionate in
is an indication
Tennessee
capital sentenc-
penalty,
a
seeks
death
capital sentencing
is func-
our
scheme
held,18
sentencing
ing hearing is
Cobb, 251
tioning properly. See State v.
the sentence
determines whether
285,
1,
(noting
A.2d
125
Conn.
743
imprison-
imprisonment,
life
should be life
be un-
disproportionate
sentences will
possibility
parole,
or
ment without
authority
sentencing
likely where the
actually
death,
sentence
regardless
correctly
appropriately
fol-
instructed
propor-
the aim of
imposed.19 “[B]ecause
Jacobs,
statute);
2001
State v.
lows
what other
tionality review is
ascertain
(La.2001) (noting that since
WL 507878
have
capital sentencing authorities
done
only
death
had been set
1976
one
sentence
offenses,
capital murder
with similar
in
disproportionate).
aside
Louisiana as
similar
only
be deemed
cases
could
is sim-
Comparative proportionality review
imposition of the
... are those in which
ply
safeguard
appellate
final
in the initial
a
properly before the sen-
penalty
death
process to
that no aberrant death
ensure
authority
determination.”
tencing
for
sentence
affirmed.
Tichnell,
15-16;
at
see also State
468 A.2d
(Mo.
S.W.2d, 503, 515
Whitfield,
v.
837
12
we receive Rule
re
While
158,
Smith,
1992);
280 Mont.
931
ports
in
cases in
State v.
judges
from trial
“all
Bland,
706,
(1986);
733
N.J. Stat. Ann.
pointed
17.
in
are
399 N.W.2d
As
out
defendants
2C:11-3;
utilizing
precluded
relying
Steffen,
§
not
from
v.
31 Ohio St.3d
State
degree
111,
383,
(1987);
the entire "universe” of first
murder
v.
509
395
State
N.E.2d
attempting
(1982).
cases when
to establish a claim for
572,
63
Copeland, 278 S.C.
300 S.E.2d
prosecution
Equal
Protec-
selective
under
which a
Eight other states consider cases in
Clause,
States,
Wayte
tion
see
v. United
470
sentencing hearing actually was held
capital
598,
1531,
608,
1524,
105
84
U.S.
S.Ct.
sentencing option, regardless
a
and death was
Bland,
(1985).
L.Ed.2d 547
See
958 S.W.2d
actually imposed.
sentence
See Flamer
666,
at
n. 17.
State,
104,
(Del.1983);
v.
139
State
490 A.2d
503,
(Mo.1992)
Whitfield,
v.
837 S.W.2d
515
twenty
require
18.
Of the
states
still
Smith,
158,
(en banc);
v.
280 Mont.
931
State
review, only
comparative
three
include
states
Garcia,
1272,
(1996);
99
1285
State v.
P.2d
pool
death-eligible homicide convic
in the
all
771,
(1983); State v.
P.2d sideration of in cases which the State did (S.D.1996). Accord, effect, N.W.2d 455-56 penalty, not seek the death (Del. State, Flamer v. A.2d prior would be using decision 1983). pool Not included in the invalidating similar State as a basis for a death cases first degree Webb, murder penalty eases an unrelated case. which the State did not seek death A.2d at 211-12. Such po- a course could penalty first degree in tentially discourage cases the State both from which a sentence other than exercising death was its discretion to seek the agreed upon part plea of a bargaining penalty from engaging plea agreement. Webb, See bargaining A.2d at charged with defendant with Whitfield, 837 Indeed, aWhen first murder. such a pleads guilty, he or she extends course could result seeking the State *24 a justice substantial benefit to the penalty criminal the ultimate in every first system, in exchange, enti- State is murder case. Id. Proportionality review not, tled to a be, extend less harsh than sentence is never intended to a might otherwise if given be the case is for reviewing pros- vehicle exercise Mann, to a jury. reasons, submitted See ecutorial discretion. For these 503, (Tenn.1997) 959 S.W.2d (citing 509 do not we consider cases in which the States, 742, Brady v. United 397 U.S. 752- penalty State did not the death seek when 53, 1463, 1471-72, 90 S.Ct. 25 conducting comparative L.Ed.2d 747 proportionality re- (1970)). Therefore, while the im- sentence view. posed part plea agreement likely a Comparative proportionality will be harsh than the im- less sentence review also is a dispropor not search for posed by jury a after a trial and sentenc- tionate or aberrant life cases. As we have it ing hearing, does not follow that the less stated, previously even if a defendant re harsh resulting sentence from plea a death ceives sentence the circum when jury renders the sentence aberrant dis- or stances of the offense are similar to those proportionate. A imposed by sentence a of an offense for which a defendant has
jury simply compared cannot logically be sentence, a received life the death sentence to a plea sentence that from results disproportionate is not where the Court agreement. The circumstances are differ- can discern some basis for the lesser sen respects. ent in all Bland, 665; tence. See 958 S.W.2d at addition, (Tenn. Carter, 241, consideration cases 714 S.W.2d 251 1986). State, reasons, in which the for whatever duty similarity Our under the stan did not penalty seek death would nec is to dard assure that no aberrant essarily require Bland, us to scrutinize what is sentence is affirmed. 958 S.W.2d Webb, 203). ultimately discretionary prosecutorial (citing at 665 at 680 A.2d As Webb, decision. A.2d Supreme See 680 at 211-12. the United aptly States Court so previously We have declined to review the proportionality require stated: “Since the prosecutorial discretion, exercise of see on prevent ment is to review intended Cazes, 253, at and it caprice S.W.2d would be to inflict the [death] decision inappropriate particularly penalty, to do so in con the isolated decision to ducting comparative proportionality mercy re not unconstitu afford does render view, our to imposed where function limited tional death sentences on defen sentences, identifying system aberrant death not dants who under a were sentenced identifying potential capital cases. Con- that does not a substantial risk of create
'785
Fowler,
cases);
see also State v.
ing
caprice.” Gregg,
or
428 U.S.
arbitrariness
(2001).
Such
at
548 S.E.2d
96 S.Ct.
2939.
N.C.
knowledge
important
is an
institutional
Having
explained
defined and
propor-
comparative
purposes
tool for
selecting
pool,
emphasize
we must
this
tionality
Id. To further assist
review.
pool
from
not an exact
similar cases
Court,
the State and the
have directed
we
no
crimes or defen
science because
two
in each
fully
brief
issue
Bland,
precisely
dants are
identical.
discuss cases and factors rele-
case and to
at 667.
have
tools
We
various
in-
proportionality
comparative
to the
vant
locating
available
use
similar cases.
Bland,
S.W.2d at 667. This
quiry.
reports,
Rule 12
are not
We review
disposal
its
all the tools at
Court utilizes
in the
only
Appellate
on file
Court Clerk’s
complete compara-
thorough and
conduct a
Nashville,
now
but
also
avail
office
every
case.
review
proportionality
tive
ROM, making
ac
able on CD
them more
cessible,
for defendants.20
particularly
However,
employ
not
dowe
reports
have
been filed
While Rule
analysis
attempts
quanti
statistical
case,21
every prior
this
and trial
Court
imposition
leading
factors
fy
various
to
judges
working
across
State are
non-imposition
penalty.
of the death
reports are
gether to ensure that
these
Comparative proportionality
Id.
*25
in
and
be
being filed
current cases
will
objective
a
which
rigid,
not
test
review is
Nonetheless,
filed
future cases.
we em
scientific tech
employs mathematical or
phasize
reports
merely
Rule 12
are
a
Bland,
668; Cazes,
at
niques.
958 S.W.2d
starting point
conducting compara
when
approach
of
at 270. This sort
875 S.W.2d
proportionality
reports
These
tive
review.
as an unwork
rightly
has been
criticized
always supplemented by
are
traditional
attempt
quantify
unquantifia
the
able
“to
research,
legal
of
methods
which enables
Bland,
(quot
at 664
See
958 S.W.2d
ble.”
appellate
opin
us to
court
locate written
209);
Webb, 680 A.2d
see also
ing,
at
ions,
first
generally
are available on
pre
As
Ramsey, 864
327-28.22
the
degree murder cases included within
of death is
viously explained, a sentence
pool
comparison.
opin
for
These written
unless, the
tak
case
disproportionate,
of
ions detail the facts and circumstances
lacking in circum
plainly
as a
is
en
whole
Furthermore,
appel
case.
other
each
like
those in cases
consistent with
stances
courts,
experi
this Court
on the
late
draws
has
im
penalty
the death
where
judgment
enced
and institutional knowl
posed.
edge
evaluating
of members when
its
cases,
comparing
In
similar
comparative proportionality
a death sen
of
Bland,
(cit-
many
in-
considers
variables
tence. See
victims’ circumstances
ing
pool
that the
of similar cases includes
conditions,
ical and mental
and the victims’ only
penalty
in which
cases
the death
was
(6)
during
killing;
treatment
the ab-
held,
sought,
sentencing hearing
a
and
(7)
sence
presence
premeditation;
or
of
sentencing jury
appro
determined the
presence
provocation;
the absence or
of
priate
sentence. Whether out-of-state
(8)
presence
justification;
or
absence
pool
cases should be included
(9)
injury
to and
on
effects
nonde-
purposes
comparative
similar cases for
Bland,
victims.
cedent
Initially reviewing we note marks, abuse, burns, cigarette bite such isolation, case in as the record each the child’s suspicious scarring around not the suggests, appropriate anal not call for anal area. The defendant did *27 ysis conducting comparative propor when right away; instead emergency assistance tionality review. The defendant correct. called the child’s mother and awaited he comparative pro for inquiry The relevant waited, he the victim her arrival. While case, portionality review is whether this breathing, still stopped yet defendant whole, plainly lacking taken as a The emergency did not call for assistance. circumstances consistent with those 911 her arrival. child’s mother called penalty cases where the death has provide to medical The defendant refused Bland, To imposed. at 665. S.W.2d to concerning the nurs- information victim to room, whether this case can be said according determine emergency at the es circumstances witnesses, consis plainly lacking appeared be unconcerned about to penalty those in which death lit- tent with defendant demonstrated his son. The imposed, now consider and in a has been we will or no for the offense tle remorse prior capital police, in which the defendant to blamed the victim’s cases statement victim, encouraging him murdering spoiling was a child mother convicted amenability to upon by the to rehabil- including cry. those cases relied him Torres’ by the question into itation called and the defendant. was State testimony of a fellow inmate who fourteen-year-old stated black victim male that Torres had he partici- felony indicated was was convicted The murder. evi- mocked, dence pating Legal Program “juke to showed the victim was Lives [i.e., burned, upon, severely urinated beaten people, mislead] whoever was knuckles, cut, raped with Also, brass with a charging him.” proof offered at the stick, genitals and his were beaten. Two sentencing hearing by Torres indicated large lacerations formed an “X” across his fifteen, age that at about pled he had chest, deep and two to stab wounds his guilty sexually abusing five-year-old his eventually chest caused death. his The step-brother. during victim was alive and conscious (Tenn. Keen, In S.W.3d torture, hours, which lasted for and he was 2000), twenty-seven-year-old defendant defendant, pleading saying with the was degree felony convicted first mur- just go he get wanted to school and an der his girlfriend’s eight-year-old strongly education. The evidence indicat- daughter, during perpetra- committed ed that the torture and were killing racial- rape. sentencing tion of a the defen- ly motivated. Middlebrooks offered evi- dant, jury applied aggravating two cir- in mitigation dence he show that had cumstances, including young age of the problems. mental No evidence indicated victim, and the fact that the murder was crime, any that he felt remorse for the heinous, atrocious, especially or cruel in strong there was little evidence to show that it physical involved torture serious or potential The im- rehabilitation. beyond necessary produce abuse posed penalty upon finding 205; § death. Ann. Id. Tenn.Code 39- circumstance, single aggravating the mur- 204(i)(l) (5).& evidence The estab- 13— heinous, atrocious, der especially was raped lished that the defendant the child depravi- cruel in that it involved torture or her, choking possibly while with a shoe- ty of mind. Tenn.Code Ann. 39-2- lace. Id. 203-204. When the child 203(i)(5) (1982). stopped breathing, the defendant threw Vann, (Tenn. In State v. her into a river. An autopsy Id. at 203. 1998), the defendant was convicted of felo- multiple scrapes revealed and bruises to ny during perpetration of a face a deep liga- child’s and neck and rape of eight-year-old daughter. his The ture mark around of her the front neck. proof indicated that the victim’s death was Id. autopsy at 204. The further indicated ligature strangulation. result of The the child was when she alive was jury applied aggravating three circum- thrown into the river. Id. sentencing stances in the defendant highly intelligent suffering but was victim, young age death: disorder, from post-trau- attention deficit prior aggravat- defendant’s convictions for disorder, matic depres- stress and serious *28 rape, ed fact that murder was and the the Additionally, sion. Id. the defendant had heinous, especially atrocious or cruel in sexually a abused child. Id. as physical that it torture involved or serious prior 205. The defendant had no criminal necessary produce that beyond abuse record and remorse demonstrated follow- 13—204(i)(l), § death. Tenn.Code Ann. 39— ing the offense. Id. at 221. (2) (5). testimony & Medical indicated Middlebrooks,
In v. State 995 S.W.2d that anus the condition of the victim’s was (Tenn.1999), Middlebrooks, 561-62 a anal ongoing, repeated consistent with male, twenty-four-year-old partici- penetration. white that Witnesses testified the pated hospi- in the brutal murder no the torture of a defendant showed remorse at (6) (7) (1982). The 203(i)(l),(5), & defen- death, daughter’s nothing tal about his mitigating evidence capacity in the indicated a reha- dant had offered record influence of mari- under the bilitation. he had been he committed juana the time or alcohol (Tenn. Teel, 793 In State v. S.W.2d offense, past a mental and that he had the 1990), rape to the the defendant admitted impairment. fourteen-year-old girl. a and murder of that the defen- The established evidence (Tenn. Coe, In S.W.2d victim, a person dant the with whom drove 1983), stranger the the defendant was to a remote and acquainted, he was well into lured her victim. He eight-year-old by telling her that he secluded location spot, and car, to an isolated his drove boyfriend. to see Once taking was her her completed rape, the raped Coe her. When there, perform he forced her to fellatio and him. him that Jesus loved the victim told vaginally raped then her. The cause of the strangled At the defendant point, type some of neck trauma con- death was turned blue. When victim until she sisting strangulation, liga- manual either immediately die from victim did not or a or cut to the strangulation, ture blow strangulation, he her the neck stabbed jury aggravating neck. The found two knife as she pocket with a and watched circumstances, espe- that the murder was agonizing throes. Eventu- suffered cially atrocious cruel that it heinous or in the wooded area. ally, he left her die depravity involved torture or of mind and murder, convicted of first Coe was during that the murder was committed rape. Follow- kidnapping, felony, perpetration rape. of a Tenn.Code sentencing hearing jury sen- ing the 39-2-203(0(6) (1982) §Ann. & upon finding to death tenced the defendant (Tenn. Inch, mur- circumstances: aggravating four 1988), twenty-six-year-old defendant person less against der committed was children, babysitting a was friend’s includ- age; was years than murder twelve ing raped the victim. The defendant heinous, or cruel especially atrocious seven-year-old anally. vaginally victim torture, depravity or it involved The victim suffocated the defendant mind; committed for was keep his over her her held hand mouth with, interfering or purpose avoiding, screaming. from was con- defendant prosecution a lawful arrest or preventing degree felony victed of first another; mur- or and the of the defendant aggravated rape. Following murder and der committed while was hearing, jury found four sentencing committing attempting or engaged was the victim aggravating circumstances: was commit Ann. rape. Tenn.Code 39-2- years age; than the murder less twelve (7) (1982). 203(i)(l),(5),(6) & The defen- heinous, especially or cruel atrocious mitigating dant had offered as evidence torture, depravity in that it or involved he under the theory had been mind; for the the murder was committed or emotional influence of extreme mental with, avoiding, interfering purpose of or at the time he committed disturbance prosecution a lawful arrest or preventing offense. another; and the mur- of the defendant Having these similar perpetration reviewed during der was committed *29 victims,23 we capital involving Ann. 39-2- cases felony. of a Tenn.Code they required not cases as "similar” The asserts that our discussion of cause dissent agree that We with dissent inappropriate and Teel be- statute. Middlebrooks next consider the record in this case in forthcoming police, with eventually he ad- light of the adopted factors in Bland. The mitted his actions. Disinterested wit- record reveals that twenty-two-year- consistently nesses testified that the defen- old defendant reacted angrily and unex- dant appeared genuinely remorseful pectedly when the seven-month-old victim injuries the victim’s and his eventual would stop crying. The defendant death. The defendant offered evidence to victim, threw inflicting serious and ulti- suggest dependable that he had been a mately injuries. fatal episode The oc- capable worker and that he had above curred in the home the defendant shared average Overall, intelligence. the record victim, with had,a and the assault total suggests amenability an to rehabilitation. only duration of moments. The defen- dant’s certainly conduct was not the result only person The defendant is the in Ten- of adequate provocation justification. or nessee to receive death sentence based Indeed the helpless victim was against the (i)(l) solely on the aggravating circum- However, attack. there is no evidence to stance, the victim was less than twelve show that the premedi- violent acts were years age. respect mitigation, With fact, tated. In the evidence indicates that great the defendant offered a proof, deal of the defendant’s behavior entirely was un- herein, previously summarized about his expected highly unusual. The defen- unstable in poor, dysfunctional childhood dant history had no of abusing the victim. indeed, family; the trial court instructed The responsible defendant had been jury as to mitigating seventeen circum- caring for the victim for several hours in stances raised the evidence offered. evening while the victim’s mother worked, and the evidence indicated he had case, prior Unlike this in each of the kindly treated the victim and with affec- capital cases the found that the mur- tion, as if the victim were his own child. especially heinous, atrocious, der was prior defendant had no record of felo- cruel in it depravi- involved torture or convictions, ny although prior he had mis- ty of mind or physical serious abuse be- demeanor convictions for joyriding, driving yond necessary produce death. influence, under the driving on a re- Also, case, present unlike the in each of voked license. The defendant did not im- cases, prior these there was some evidence mediately victim, seek assistance for the case, only prior sexual abuse. one but the evidence offered at trial indicated Middlebrooks, jury’s was the sentence of injuries that the victim’s would not have a single aggravating based cir- immediately apparent, as there were cumstance, and support the evidence to injuries. no external coop- The defendant circumstance, that aggravating evidence of erated with during the authorities the in- torture, protracted severe and was so clear vestigation, allowing them access to the say it overwhelming is an warrant, apartment without a search cases, prior understatement. Of these turning over to them the crib sheet and case, present blanket as Torres is most similar to the well as his own t-shirt. Al- though the immediately yet, defendant was not significant there are several distinc- factually these killing cases are not similar to the vated than the in the instant case. consideration; however, they assertion, case under Given the defendant’s our consider- upon by
were relied the defendant to illustrate every prior capital involving ation of case every capital other case Tennessee appropriate. minor victims is involving aggra- a child victim is much more *30 Toms, arriv- hospital, upon both the in this the victim the Unlike evidence tions.24 the death. injuries upon learning of victim’s indicates that the fatal were al and case addition, in indi- single with act of that this case consistent violence the record po- in a of Al- the Godsey cooperated matter minutes. that with occurred cates Torres, Godsey apartment not call for to though, providing like did in access the lice immediately, the emergency assistance Final- providing physical and in evidence. testimony in this indicates ob- Appeals medical case ly, as the Court of Criminal no ex- apparent the victim sustained served, that in this indicates the record case injuries, so it is not clear that God- worker, ternal has Godsey is who a reliable inju- sey realized the extent of victim’s average general- and is intelligence, above Godsey discovered the victim ries. When to ly amenable rehabilitation. alerted breathing, immediately not he compared this case Having reviewed mother, attempted perform the victim’s in similar cases which a sentence prior CPR, im- Torres not and called 911. did imposed, has we conclude of death been he mediately call nor did call he when Appeals cor- that the Court of Criminal breathing. realized victim was not of death rectly held that sentence Toms, capital unlike and other cases Also aas disproportionate. case is Taken victims, in this involving evidence whole, in cir- plainly lacking this case is case does not establish torture or serious with those in similar cumstances consistent beyond necessary abuse physical has penalty in which the death cases also Significantly, death. there is produce Ap- As the Court Criminal imposed. no evidence this case to indicate that peals observed: had prior history defendant of abusive capital against other measured [w]hen the victim or chil- behavior toward other ... this case stands cases this State contrary, proof dren. To indicated spectrum, end with at one that the defendant had treated the victim cul- of traditional criminal least evidence well, caring for him and him providing for young pability, and with Moreover, if he were his own son. prior having comparatively favorable Torres, agreed unlike the medical experts history abusing the history and no there evidence indicate was no victim. Tor- prior abuse this case. Also unlike witnesses,
res,
case at
according
only is the sentence in this
to disinterested
Not
considered
Godsey
genuine
spectrum
end of the
when
demonstrated
remorse
one
by jurors
sentencing
agree
do not
asser-
decisions made
24. We
with
dissent's
cases, involving
Torres
case
in similar
tion that discussion of
in this
across
clearly
part of
problematic”
be
Torres
is a
"may be
since
will
similar defendants.
Torres
comparative
pool
purposes
propor-
pursuant
Code
reviewed
this Court
to Tenn.
review,
13—206(a)(l)(2000).
tionality
may appropri-
previously
and therefore
As
Ann.
39—
discussed,
stated,
regardless
ately
pool
compari-
be considered and
of similar cases for
any appeal.
emphasize
We
cases in
of the status of
son includes all first
consti-
penalty, a
our
of Torres does not
the State
the death
discussion
seeks
held,
validity
hearing
judgment
prejudgment of the
capital sentencing
is
and a sen-
tute a
pertinent
his
or sentence.
It is
tencing
whether the sentence
conviction
determines
life,
which a
is a similar case in
possibility
be
without the
here because it
should
life
imposed
penalty,
both the
appeal
juty
the death
parole, or death. Whether or not an
upon
any
herein relied
appeal
not
taken is
State and the defendant
taken and whether or
dissent,
determining
no
Unlike the
we discern
relevant
Torres.
concluded
discussing
con-
Torres in this
pool.
problem
Com-
with
which cases are included
parative proportionality review focuses
text.
*31
cases,
against capital
it is at one
of
imprisonment
end
sentence of life
without the
spectrum
against
when considered
possibility
parole.
the fol-
of
The evidence estab-
lowing similar cases in which
jury
re-
lished that the defendant was a friend of
jected a death
imposed
sentence and
parents.
raped
victim’s
He
the victim
imprisonment
sentence
life or life
with-
and choked her to death. At the time of
possibility
out the
parole
offense,
sentence.
the defendant had consumed a
fifth of
marijuana.
bourbon and smoked
Ware,
In State v. Paul William
No.
Moreover, the defendant had himself been
03C01-9705-CR-00164,
with those
trumpet
would
there
those who
are
fact,
imposed.
has
In
penalty
been
that the
majority
proof positive
opinion
circumstances of this case
substan-
should,
as it
proportionality protocol works
overall,
egregious,
than the cir-
tially less
temper
I move
their voices.
quickly
in which a
cumstances of similar cases
per-
I
protocol
from
This result comes
a
less than death has
im-
sentence
and
Conse-
ceive as flawed
unreliable.
posed. Accordingly,
agree
we
with the
view,
holding
quently, my
evidences
Appeals
Court of Criminal
the sen-
reliability
consistency.
nor
Rath-
neither
in this
imposed
tence of death
case is
flawed,
er,
and
protocol
remains
imposed in
disproportionate
penalty
to the
definition,
produces
protocol,
flawed
similar cases.
affirm the
We therefore
flawed result.
Appeals
decision of the Court of Criminal
underlying comparative
principle
modifying the sentence for the defendant’s
unjust to
review is that it is
proportionality
first
conviction to life im-
defen-
impose
death sentence
one
prisonment
possibility
pa-
without
defendants,
dant
other
convicted
when
13—206(d).
§Ann.
role. See Tenn.Code
39—
facts,
similar
receive
similar crimes with
(with or
imprisonment
of life
sentences
Conclusion
Using
appropriate
parole).
without
carefully reviewing
After
and
record
proportion-
protocol, properly
conducted
authorities,
legal
we
the relevant
conclude
ality
responds
problem
review
Appeals
Court
Criminal
cor-
judiciary
engage in a
permitting the
rectly
dispro-
found the sentence of death
process,
lack of
“judicial
leveling”
field
portionate
correctly
modified the de-
Thus,
description.
proportionality
a better
imprisonment
fendant’s sentence to life
an “addi-
review
a crucial role as
serves
possibility
parole.
re-
without
We
capri-
against arbitrary or
safeguard
tional
of Criminal
portion
Bland,
verse that
of the Court
sentencing.”
cious
Appeals’
setting
(Tenn.1997).
decision
aside
defen-
651,
In a line of
separate
Chalmers,
dant’s
conviction for
beginning
dissents
with State v.
respect
child abuse.
to issues not
With
perceived
I have
three
flaws
identified
opinion,
in this
affirm the
addressed
we
currently
by the
protocol
embraced
Appeals
of the Court of Criminal
(1)
decision
majority:
proportionality
test
Judge
by Presiding
Gary
authored
R.
(2)
overbroad;
“pool”
used for
of cases
joined
by Judge
(3)
Wade
James Cur-
the re-
comparison
inadequate; Ogle.
Judge
913,
Norma McGee
wood Witt
subjective.
view is
See 28 S.W.3d
too
(Tenn.2000) (Birch, J., concurring and
objec-
BIRCH, JR., J.,
my
I
to offer
dissenting).
ADOLPHO A.
concurs
continue
hope
majority
in the
analysis
tions to the
and dissents.
co,
comparative proportionality
148,
442,
review
142 N.J.
662 A.2d
may
Martini,
(citing
be reformed to more effectively
Jersey
fulfill
New
139 N.J.
(1994)).
goals
Essentially
for which it
Other states have intensive questions Recently, death-eligible regardless supplementation. all cases of of begun concerning whether penalty sought. death have to surface whether was See, sufficiently Morton, 12 is accu- Jersey v. 165 N.J. the Rule database e.g., New 235, 184, justify or reliance (holding complete A.2d 189 that rate 757 penalty in of death death-eligible the court “consider all Court crucial reviews would cases, is a of they capitally Especially significant or not cases. series whether were in The prosecuted, appeared articles which Tennessean because State’s decision newspaper. suggests not to of the articles prosecute capitally the defendant One in necessarily glaring pervasive does reflect on that flaws exist not the defen- Shiftman, deathworthiness”); dant’s Rule 12 See John lack of Wash- database. Brown, ington Missing Doubts About Death 132 Wash.2d Files Raise (1997) (“This Sentences, (Nashville), pool P.2d The Tennessean of similar 22, 2001, majority’s July cases those in which death at Al. admis- includes have not penalty sought reports and those in it sion that “Rule 12 was which Tichnell, is, best, not.”); in every prior was see also A.2d at filed case” (Md.1983) (including pool in the in Shiftman cases substantial understatement. writes, sought every first-degree which of five penalty, the State death “Three report preclude any murder convictions which noting [for but that “we do Moreover, greatest tencing that defendants one of the Act of sources Reform fairly consistently treated inconsistency capital sentencing may be and that in arise level, sentencing” be "unjustified disparity in elimi- prosecutorial where the 40-35-102(2), §Ann. possesses nated. See Tenn.Code almost unbridled discretion (3) (2000); 40-35-103(3)(noting prosecuted cases will be also id. choose which see example, cursory that are penalty "[(Inequalities For in sentences unre- death cases. Sentencing reports purpose lated to a Reform [the review of the Rule 12 filed in first avoided”). Thus, princi- under suggest seems to should be Act] murder cases Act, espoused Sentencing prosecutors ples in the Reform frequently in some counties seek penalty prosecu- in cases for this Court should strive to ensure incon- death sentencing region- such as sistencies death tors other counties do not seek the death in admittedly disparities prosecutorial decision-mak- penalty. this conclusion al in While is difficult, however, unscientific, ing possibility at least are corrected. It there exists receiving squarely whether the given chances this Court to address that a defendant’s inconsistently applied may penalty being if depend upon death penalty more upon comparative proportionality review cannot county crime than where the occurred prose- in which legislature take into those cases the crime itself. The account nature of intent, penalty. to seek the death in the Sen- cutors choose not expressed has its Criminal few, required] missing many inject pro- are from the database. into this Court’s So, too, every penalty is one of five death portionality possibility review real er- cases, more, remedied, records show. hun- What’s ror. Until this flawed database ... dreds of cases included the database yet stands as another obstacle to a fair and missing important details about the comparative proportionality reliable review crime, defendant, and victim.” Id. As iro- in Tennessee. it, Bland, ny would have Beyond majority the test used (Tenn.1997), S.W.2d 651 the case in which protocol and cases to included in the be “preparation this Court unveiled the of a comparison pool, there remains one addi penalty Tennessee Rom death data- CD proportionality tional area of concern in proportionali- base which will used [for be analysis-the objectivity identify lack of ty analysis] by this Court and accessible to ing which cases are “similar” to the case litigants,” is not included the database. purposes propor under review for the disturbingly, More the fact that life cases tionality analysis. provide I would a more likely are much more to be omitted from objective identifying means for the cases suggests the database than death cases comparison. I to be used for As stated placed significant defendants are at a Chalmers, objective some stan “[without disadvantage in their effort locate those courts, guide reviewing ‘propor dard to disproportion- cases which claims of tionality’ nothing more than a *35 becomes ality may be based. While “traditional reviewing statement that court was may, majority research methods” as the it in able to describe the case before terms suggests, supplement reports, the Rule 12 comparable capital to other cases.” 28 expensive, such are at once methods more (Birch, J., concurring and S.W.3d at 924 consuming,
time and difficult than a search approach taken in dissenting). The Wash Thus, of the Rule database. the errors In ington may Washington be instructive. database, and omissions from the Rule 12 Pirtle, Washington Supreme v. Court not, suggested whether as extensive as or quantifiable noted that details such as the present very real obstacle for defen- circumstances, aggravating vic number Moreover, platitudi- majority’s dants. tims, prior and convictions should be em “experienced judgment nous assertion that objective possi phasized “in order to be knowledge”2 and institutional will some- 245, P.2d ble.” 127 Wash.2d plaguing other how overcome the flaws (1995). Although court noted the Pirtle analysis proportionality facets of the is proportionality is not a task reducible likely to be of little comfort to defendants statistics, emphasized it nonetheless already facing protocol a review which is view, point can to areas of concern.” subjective. my too the errors and “numbers database, omissions in the Rule 12 whether Id. Majority op. comparison pool problems and inherent in at 785. quantifying such abstractions as motive and say
3. This is not to that the Court must en- type the Court to focus of murder have forced gage complex analysis in order to statistical precedent-seeking process similar to proportionality A conduct a reliable review. generally See New that used in Tennessee. analysis likely statistical would result in a Jersey Loftin, 157 N.J. 724 A.2d significant complexi- expense increase in and (1999) ("Because analysis frequency 148-52 ty appreciably increasing without the overall based, statistically conclusions and because reliability Jersey, of the review. New for ex- inherently sample sizes are drawn from small protocol ample, implemented has a statistical unreliable, in the we not had confidence have upon complex, based subdivided database of models.”). cases, produced by the capital sample but the small size of the results fatal, serious, ultimately inflicted and provided by dant the framework Within (3) conduct was Bland, injuries; the defendant’s could used to objective criteria be (4) the victim provoked justified; or cases not clearly more select which should be (5) appear helpless; killing did lessening thus the was comparison, used for (6) the defendant was subjectively premeditated; to be characterize inclination while victim’s caring for the victim cases in order to reach desired results. work; and the defendant Many in the mother was at factors recorded trial court’s for the victim. delayed seeking in first assistance report Rule 12 cases, All of Majority at 790. these type op. as the number and of See such factors, however, present are also aggravating mitigating factors found Torres,4 the “death” cases the jury, the defendant and victim’s v. one of race, majority comparison pool. age, gender, includes its existence Indeed, convictions, except aggrava- lack of for one additional prior the number jury5 victims, objectively by the may quantified. ting be circumstance found victim Torres suffered significant A case does not share evidence abuse, objective prior remarkably cases are number of these criteria should the two only be in rare similar. used instances. While subjective
more
factors such as motive and
may
in Torres
have
While
victim
may further
manner of death
refine
abuse,
majori
suffered more serious
too
comparison, these factors are
malleable
“plainly
ty’s conclusion that
this case
reliance.
on
justify primary
Emphasis
lacking in
similar to Torres
circumstances”
objective
consistency
factors would ensure
cases in
prior
seems inconsistent with
protocol.
the review
upheld
majority
which the
has sometimes
analysis
by comparison
so
scope
employed
death sentences
cases
they
no simi
majority appears
widely divergent
to be
amor-
share
rather
*36
circum
phous
undefined-expanding,
larity
single aggravating
contract-
but
and
In
ing,
analysis
jury.
found
the
State v.
shifting
by
and
as the
moves
stance
Bane,6
example,
the defendant was
from
to case. The
inher-
case
difficulties
stabbing
in
of
an el
applying
protocol
choking
ent
this
become evi-
convicted
and
planned robbery;
derly
during
dent
to the case
victim
applied
when
under sub-
upheld
majority
the Court
the death sentence on a
mission. The
lists several factors
“plainly
proportionality
finding
that
it
in
that
case was not
lack
considered
its
alia,
(1)
analysis.
in
with such cases as
ing
Inter
it notes that
circumstances”
Vann,7
violently
involving
eight-year-old
an
defendant reacted
when the vic- State
during
perpetration
killed
stop crying;
tim
defen- victim
would not
E1999-00866-CCA-R3-DD,
204(f)(1) (1993) (“victim
than
was less
twelve
4. No.
2001 WL
(Tenn.Crim.App.2001).
eighteen
The death
age,
years of
defendant was
and the
presently
imposed in Torres is
before
sentence
older”)
age
years of
and Tenn.Code Ann.
or
appellate
pur-
this
automatic
review
Court on
heinous,
39-13-204(i)(5) ("especially
§
atro-
39-13-206(a)(l)
§
suant to Tenn.Code Ann.
killing]
that
involved
[the
cious
cruel in
(2000).
currently pending.
I
That review
beyond
physical abuse
torture or serious
may
problematic
be
passing
note in
that it
Torres,
death”).
necessary
produce
rely upon
propor-
Torres in
Court to
its
WL 245137 at *1.
analysis
yet
tionality
when we have not
decid-
imposed in
ed whether the death sentence
(Tenn.2001).
6. 57
proportionate.
Torres is
aggravating
5. The
Torres found
in
(Tenn.1998).
7.
listed significantly above exhibit more GENERAL MOTORS CORPORATION. egregious than circumstances the case be- Tennessee, Supreme Court of Thus, Godsey’s fore the Court. death sen- at Nashville. appears tence to be aberrant. Because Godsey’s case is more consistent with Nov. typically cases for which defendants re- ceive a sentence of life or life without the
possibility parole, major- I concur in
ity’s modify decision to his sentence to life
imprisonment. light I the issues have discussed
above, I continue to be dissatisfied with comparative proportionality review
protocol majority. embraced Until protocol
the flaws our review are cor
rected, I am constrained to hold that com review,
parative proportionality applied majority, impression “creates an regulatory
enormous effort but achieves
negligible regulatory effects.” Carol S. Cf. Steiker,
Steiker and Jordan M. Sober Sec Thoughts:
ond on Two Dec Reflections Regulation Capi
ades Constitutional Punishment,
tal 109 Harv. L.Rev. 355
(1995) (generally discussing capital punish
ment). I Accordingly, respectfully dissent. alike, any exactly relationship little to the circumstances of cases are and therefore one might Godsey's case. Both of these cases involved of these distinctions in isolation infants, teenage The multitude and victims rather than render a case "dissimilar.” "heinous, atrocious, significance factors in Mid- both cases found the dissimilar Teel, however, aggravating are sufficient to or cruel” circumstance that was dhbrooks case, light inappropriate make those not found in this both cases involved cases *39 rapes, statutory requirement proportionality
brutal and neither case involved cir- analysis cases.” See typically found in child abuse be restricted to "similar cumstances notes, (2000). 39-13-206(c)(l)(D) majority correctly cases. As the no two Tenn.Code Ann.