*1 HOUSTON, Appellant, Richard Tennessee, Appellee.

STATE of

Supreme Court of Tennessee. 7, 1980.

Jan. *2 wounds, indicating that Mr. the exit

near floor lying on back Balsinger was were fired when two shots restroom Balsinger’s range. Mr. him close into at receipts of the business wallet *3 Knoxville, Moore, appellant. for Roger D. missing. Leech, Jr., Atty. Gen. & Re- later, William M. two de- hours Approximately three Jr., Jolley, Atty. porter, Robert L. Asst. Department Police Knoxville tectives of the Nashville, Gen., appellee. description fitting the an saw automobile by Mr. given as automobile get-away

the chase, speeds but at brief Hill. After a OPINION hour, the automobile miles an up seventy COOPER, Justice. occupants— There were two stopped. was appeal description This us on Rich- of the by case before who fit the appellant, area judgment a entered in station leaving ard Houston from the service suspect seen a wearing County, the Criminal Ten- he was not except Court Knox for the fact companion. Specifically, jacket, nessee. and a female See T.C.A. 39-2406. leather identity know- jury’s appellant’s judgment approved learning the the verdicts and On an suspect in earlier robbery by had been a (1) finding appellant guilty that he the called for offi- fixing robbery, deadly weapon pun- use of a and his the detectives investigation. Balsinger assigned to the in state cers imprisonment ishment at life the the scene the (2) finding search of automobile penitentiary, appellant A and .at and credit Balsinger’s wallet up turned Mr. degree and guilty of murder in the first A station. service receipts from the card fixing by at electro- punishment his death tests laboratory later shown gun, Far- cution. The victim of both crimes was Balsinger was kill Mr. used to gun been operator of Stanley Balsinger, ris Stan’s also found. Knoxville, Tennessee. For Gulf Station stated, judgment reasons hereinafter was search of automobile While the the trial court affirmed. trying to made, was seen appellant being money to his pass a “roll” of surreptitiously was at Stanley Balsinger’s body found possession The officers took companion. 21, 1978, p. April about 7:15 m. on several bills money, discovered operated. he restroom of service station blood, formally and stained with were The customer of the station who found under arrest. placed appellant Hill, de- body, gave police a Kenneth leaving description man he saw tailed of a motel room subsequent A search vicinity of the men’s restroom moments companion and his appellant rented to discovered, body and of the before the was one as the jacket, a leather such up turned scene. the man left the automobile which leaving the scene person seen worn male, a black description was that of officers murder. The robbery tall, 165 to approximately clothing six feet be- other found trousers also afro, wearing a brown pounds, with short had been laun- appellant that longing to coat, ’65 driving white '64 or Appellant’s leather com- dered, wet. and were still lights and square tail laundered appellant Ford Fairlane with panion stated side. missing passenger’s from the blood stains. clothing chrome to remove his Thereafter, gave to investi- statement to to the scene Detectives called Bal- in which stated gate crime that Mr. officers investigating determined times, moment ac- spur-of-the once singer robbery had been shot three gun, mouth, heart, tion, Balsinger grabbed and once once in the that Mr. away sought break two wounds (appellant) abdomen. The latter that he upper off gun went escape, found and that powder slugs were marked ad- struggle. Appellant Balsinger’s body accidentally in on the tile floor under Mr. driving elude the officers at an excessive taking Balsing- mitted a billfold from Mr. speed. We think the information pocket shooting. er’s after the rate of officers, coupled possessed by the with the Appellant insists trial court commit- driving appellant, was suffi- manner of prejudicial failing suppress ted error in stopping appel- justify cient to the officers evidence found the officers in the search part ongoing lant’s automobile as taken ap- automobile and that from robbery and police investigation of the pellant Specifical- at the time of his arrest. Balsinger. Stanley death of ly, appellant insists automobile was cause, stopped probable without and that arrested until af Appellant was not search, subsequent being without bene- stopped and incrimi ter automobile was illegal. fit of a search warrant was We see in the automobile nating evidence found no merit in either insistence under the evi- evidence, appellant’s person. and on dence this case. *4 appellant fit the coupled the fact that with Porter, (9th seen leav description person In v. 361 415 of the Wilson F.2d detailed killing, 1966), Cir. the Court held that a founded station after the service justified the suspicion necessary justify is all that is probable constituted cause Goad, person the brief in the course 549 detention a appellant. arrest of State See police investigation basis from v. McLen (Tenn.1977); 377 State S.W.2d —“some which the court can determine de nan, (Tenn.1973), cert. S.W.2d harassing.” arbitrary detention was not or nied, 38 L.Ed.2d 94 S.Ct. U.S. Porter, supra. nothing (1973); We take it as settled that there is Wilson ipso facto unconstitutional in the brief stop if the insists that even Appellant detention of citizens under circumstances legal, subsequent his automobile justifying purposes an arrest for automobile, being without search of the inquiry limited in the course of routine warrant, was invalid. benefit of a police investigations. ... A line con an automobile A search of between for routine reasonable detention a warrant authority of ducted without the investigation which could and detention cause probable by magistrate upon issued a capricious be characterized as and arbi- one. is, presumptively, an unreasonable trary cannot drawn. But due neatly be (Tenn.1976). Hughes, 544 State v. S.W.2d regard of ef- practical for the necessities exceptions to recognized But there are well requires fective law that the enforcement may search An officer of the law this rule. brief, validity of informal detention if the a warrant an automobile without recognized appears from the whenever it voluntarily gives owner of the automobile totality that the de- of the circumstances without a war He also can search consent. taining have had reasona- officers could cause if, time, probable has rant at the grounds their actions. A founded ble for contains evidence the automobile to believe necessary, some suspicion is all that existing if the circumstances of a crime and from which can basis the court determine probably es vehicle will are such that the arbitrary that the detention was not can be search warrant cape before the Porter, supra at harassing. Wilson v. Implement Mfg. Dyke Taylor obtained. Co., 20 L.Ed.2d 88 S.Ct. case, In this a crime had been com States, (1968); Carroll v. United stopped appel mitted. The who officers 69 L.Ed. 45 S.Ct. given specific lant’s automobile had been suppres at the suspected hearing of rob description person of the On case, trial Balsinger, hearing and also had sion in this bing killing voluntarily description appellant both that given been found detailed his search of automo suspect given left the his consent to a automobile in which the arrest, and that the scene before his automobile fit bile at Appellant’s crime scene. present exigent circumstances attempted to there were description. He also was in such search, dy. Finally, automobile even justified which would have out of condition, quickly moved if had not been forth- could be appellant’s consent sup- coming. opinion In our the evidence circumstances jurisdiction. These findings on both is- ports judge’s the trial forth set requirements opinion, our met the sues. Carroll, search supra, for a warrantless automobile, justified and would of an summary, In the evidence shows that on appel- searching officers in the action of the automobile, the officers stopping appellant’s automobile, not vol- appellant had if description lant’s he fit informed him that shooting to the search. suspect untarily in a and that his automo- consented description fit the automobile bile sought trial, also appellant Preliminary suspect leaving by the scene of used implicated the statement suppress per- the crime. officers then asked Stanley and murder of robbery him In to search the re- mission automobile. trial contends the Balsinger. Appellant appellant passenger sponse, asked testimony to be his have found judge should keys. gave automobile for the She them given statement was that his credible and He, turn, gave keys to him. involuntarily. they officers so that could make a search. coerced into he was part testified This action consent, voluntary opin- piece constituted in our a blank signing rights waiver and ion. later added the paper, and that the officers *5 This appellant. statement attributed Further, case, supra, in the Carroll officers testimony was contradicted of Court held that a warrantless search an rights and the the waiver of who witnessed valid, stopped on a is highway automobile Both Officers of giving the statement. even of of without consent the owner the defendant Crawley Brock and testified automobile, (1) where the officer has rea rights. voluntarily signed the waiver of probable sonable or cause to believe threats, no that subject to officers testified automobile contains items sei Both zure, physical coercion was promises must be mova automobile or mental reasonably the state- get appellant ble the sense that the officer to make used to subject suppres- of the may ment, believes that moved out of the was the which so, jurisdiction by free to do someone and that the statement hearing, sion thus the car’s never be contents found after it was reduced signed by appellant if again a warrant must be obtained. writing. 42, 47-52, Maroney, v. 399 U.S.

Chambers credibility of witness 1975, 1979-1981, 26 The issue 90 L.Ed.2d 419 S.Ct. fact, States, (1970); Brinegar primarily 338 es is that of the trier v. United 1302, (1949); he has judge, 69 93 L.Ed. 1879 since S.Ct. this instance trial (Tenn. Parker, v. the witnesses opportunity State S.W.2d to hear 1975). undergo they examina them as observe Cabbage, 571 S.W.2d 832 tion. See State case, noted, the In this as heretofore offi- State, 219 Tenn. (Tenn.1978); Bolin v. stopped appellant’s cers that automobile (1966). basis in see no We 405 S.W.2d appellant probable had cause believe court justify this which would the record left automo- the scene of crime trial holding differently than the bile; and, accordingly, had reason believe the issue of credibility. the issue of Once the automobile contained evidence resolved, credible credibility there pros- would assistance in be material record that statement evidence Further, appellant. there was ecution of po investigating given by appellant to was no passenger in the automobile. There rights afford waiver officers lice complicity passen- direct evidence of doctrine the Miranda appellant ed under justify then ger the crime which would voluntary. passenger were other than police taking into custo- question prospective jurors concerning Appellant questions also their validity of the “bind-over penalty, order” of the General death and in attitudes toward the County, cause, Sessions Court for Knox excusing juror Tennessee. who stated he testimony upon insists that imposition could not consider appellant was bound over to the penalty. Appellant insists death grand jury predicated upon was in fact concomitant result of these actions was to and, hearsay consequently, was invalid. impartial deny jury.” him a trial “an “except court has held that for docu- argument. see no in this We merit mentary proof ownership and written ‘impartial jury’ guaranteed by “The con- reports witnesses, expert probable cause is one which provisions stitutional is of to bind over a Jury defendant to the Grand impartial beginning frame of mind at the upon must be based legally competent evi- trial, legal only by is influenced dence which would at trial.” be admissible competent produced during tri- evidence Waugh State, (Tenn. 564 S.W.2d al, and bases its verdict evidence 1978). out, however, point We went on to with the commis- connecting defendant “[ajdmission incompetent evidence charged, sion of the . . . .” 20 crime hearing] preliminary . . . will [in Ed., Phrases, page Words and Perm. not mag- invalidate a bind-over order if the State, quoted as in Durham v. 182 Tenn. istrate also competent had before him evi- S.W.2d dence sufficient in proba- itself to establish requires only Impartiality ble cause.” Here there was sufficient evi- against jury bias the accused freedom from dence being aside from that which is at- prosecution, and for but freedom from hearsay. magistrate tacked as had be- against jury bias for the accused and fore him the statement in which Missouri, prosecution. Hayes v. 120 U.S. shooting admitted the robbery and of Stan- 70-71, (1887); 30 L.Ed. 578 ley Balsinger, and physical also the Spinkellink Wainwright, 578 F.2d taken from appellant and that found in his 593-596, denied, (5th Cir.), cert. automobile. *6 (1978); 796 99 S.Ct. 59 L.Ed.2d Appellant assigned has as error the State, (1873). A Eason v. 65 Tenn. 466 action of judge denying appel the trial juror the law and in who cannot follow lant’s motions for Appel a continuance. judge capital pun on struction of the trial lant, counsel, through defense moved for a impartial to the state. ishment is not See continuance separate on two occasions. Spinkellink Wainwright, supra, at 595- v. predicated The first motion was on the Illinois, Witherspoon In 391 v. ground that counsel had not had sufficient 510, 513-514, 1770, 1772,20 88 S.Ct. L.Ed.2d prepare time to The trial. second was Ohio, 438 and Lockett v. predicated ground appellant on the that 2960-2961, L.Ed.2d 973 S.Ct. process employ either had or was in the of (1978), held that the Supreme the Court judge, pointing other counsel. The trial judge properly excuse such a trial could out that counsel had had five and one-half say on to juror for The Court went cause. prepare appellant’s months in which to de conclude, simply that cannot either on “[w]e fense and new counsel proposed that the of before or as a the basis the record now us was deceased at the time the motion for notice, judicial that the exclusion matter of filed, continuance was overruled the mo jurors opposed capital punishment re of tions. see discretion in the We no abuse of unrepresentative jury sults in an on the judge’s rulings, any trial nor do we find guilt substantially of or increases the issue evidence in the record that was 517-518, at risk of conviction.” 391 U.S. prejudiced by being required proceed (emphasis supplied). at We S.Ct. 1774-1775 trial. record, nothing find nor has counsel evidence,

Appellant questions also the actions us to been able to direct constituted in judge allowing jury, of the trial the state to indicates that the as can argument think the above state, We do not case, this was the partial to biased on repre as comment against categorized the was not a be appellant, properly or But, so, guilt. jury the of if testify. sentative on issue the failure to appellant’s the not have affected the comment could that by appellant The the insistence appellant. prejudice to the verdict prospective juror who was excused for California, 18, 87 386 U.S. Chapman See cause, Stone, Mr. did make it unmis (1967). 824, L.Ed.2d 705 takeably clear that he would not consider penalty the death is not borne out the further that insists record. A review of the voir dire examina to sustain a the was insufficient evidence he tion of Mr. that testified he Stone shows murder. guilty verdict of for first considering could not follow the law the is specifically that there Appellant argues range punishment, of he would not killing was deliberate penalty consider the death and would auto agree. Pre We can not premeditated. or against imposition matically vote of to be deter question of fact is a meditation death, sentence “could not” all the circumstanc jury from mined capital punishment inflict under cir LaChance, 524 killing. es State testimony cumstances. made it man (Tenn.1975). circum A S.W.2d datory for the trial to excuse Mr. premed the inference service, stance from which jury if Stone from repeated drawn is shots impartial. itation victim. State blows inflicted admissibility photograph The (Tenn.1976); Bullington, 532 S.W.2d victim, Stanley Balsinger, into evi State, 213 S.W.2d 187 Tenn. Franks v. challenged by appellant dence is on the Here, victim was robbery ground prejudicial photo effect pointed out shot three times. As graph outweighed probative far its value. evidence, state, could “from the posi photograph question shows shots. The following sequence of infer the tion body of the deceased’s on the restroom in the mouth originally shot victim floor, and relevant to show the location of resulting in the lead mark standing, while on the floor bullets found rest four feet seven ings (wall) tile about through room paths those bullets ground. initial shot inches from body. see no abuse of deceased’s We fell, he was After the victim was not fatal. admitting discretion the trial court in twice, and in the picture Banks, directly in the heart into evidence. State v. shot (Tenn.1978). from the 564 S.W.2d inference shown stomach. This these bullets paths of and where the bullets pros Appellant also insists *7 with that agree We the state were found.” ecution, closing in its argument, commented killing detailed the circumstances of testify, to on the defendant’s failure killing findings supports the that above improper argu this was error and Balsinger premeditated. Stanley of could have affected the verdict ment prejudice appellant. of er- remaining assignments Appellant’s sentencing phase of to the ror are directed commenting The record shows that trial court Appellant insists the the trial. plausibility appellant’s statement limiting proof on (1) appellant’s erred Balsinger concerning struggle with his (2) allowing the mitigation, issue of washroom, prosecutor stated “[h]e concerning appel- present evidence state was executed this man that sits before hearing testimony. Ap- suppression lant’s you today during as sat there the course Chapter Public pellant also insists that trial, man chose to arm him- this who Annotated (Tennessee Code self, Acts of 1977 . .” go who chose to down . . As seq.) et is unconstitutional. argu- this 39-2402 appellant objected § Counsel specifi- assignment, appellant mistrial, latter which was ment and moved for a con- Act violates the alleges that the cally denied. protections stitutional established sentencing proceeding, evidence [i]n Eighth and Fourteenth may presented Amendments to the be any as to matter United States Constitution punish- Article court deems relevant to the include, Sections nine and sixteen of the ment and Tennessee but not be limited to, the nature Constitution. and circumstances of the crime; character, the defendant’s back- state, In this a trial charge on a of first condition; ground history, physical degree is a bifurcated proceeding, murder any tending evidence to establish or rebut with the jury determining first the defend- aggravating circumstances enumerat- guilt ant’s charge. or innocence of below; ed . . Where it is found that the defendant tending to establish or rebut any mitigat- guilty murder, first pro- second Any factors. such evidence which the ceeding is held before the jury same probative court deems to have value on determine the impris- sentence —either life punishment may issue of be received onment or imposed. death —to The regardless admissibility of its under the may impose the penalty death only upon rules of evidence. finding that aggravating one or more cir- cumstances, hearing proof presented After on the is- statute, listed in the are punishment, sue of present, jury unanimously and further that such circumstance following statutory or found the aggravating circumstances are outweighed by any circumstances: mitigating circumstance.1 respect With the evidence -may (5) be introduced on heinous, especially murder was issues, these provides, the statute atrocious, in T.C.A. or cruel in that involved tor- 39-2404(c) mind; ture or depravity of 39-2404(i) provides: burglary, larceny, kidnapping, piracy, T.C.A. § aircraft throwing, placing discharging penalty may imposed No death unanimous of tory or unlawful or but finding, indicated, as heretofore destructive device or bomb. (8) existence of one or more of the statu- The murder was committed the de- circumstances, aggravating which shall custody fendant while he was in lawful or in following: be limited to the place during a escape or lawful confinement his (1) against The murder was committed custody place from lawful or from a person years age less than twelve and the of lawful confinement. eighteen years age, defendant was er. or old- (9) against any The murder was committed officer, official, peace corrections corrections (2) previously The defendant was convict- fireman, engaged employee or who was felonies, ed one or more other than duties, performance of his and the de- present charge, which involved the use or reasonably fendant knew or should have person. threat of violence to the officer, peace known that such victim was a (3) knowingly The defendant created a official, employee corrections corrections or great persons, risk of death to two or more fireman, engaged performance of his murdered, during other than the victim duties. act of murder. (10) against committed murder was (4) The defendant committed the murder any present attorney judge, or former district promise for remuneration or the of remuner- general attorney general, or state assistant ation, employed another to commit the attorney general district state or assistant promise murder for remuneration or the attorney general due to or because remuneration. duty heinous, exercise of his official or status and the especially The murder was atrocious, occupied defendant knew that the victim or cruel in said that it involved torture *8 depravity or of mind. office. (6) pur- (11) The against murder was committed for the The committed a murder was pose avoiding, with, interfering prevent- of national, state, or popularly or local elected offi- ing prosecution a lawful arrest or cial, of the de- due to or because of the official’slawful fendant or another. status, duties or and the defendant knew that (7) The was committed while the murder the victim was such an official. engaged committing, defendant was was an was in or or imposed mitigating No fac limitation of, accomplice in the commission by tors that the defendant. See raised commit, attempting fleeing or was Ohio, 39-2404(j). § TCA Cf. Lockett v. commit, committing attempting after or S.Ct. L.Ed.2d any degree murder, arson, rape, robbery, first by jury Here, been guilt had decided (6) The murder was committed testimony of the with, to the introduction prior or interfering purpose avoiding, of only as presented the evidence is prosecution and or preventing lawful arrest of the sentence. another[; on the issue of the defendant or bears and] The murder was committed while complains of the ac also committing, or engaged defendant was excluding evidence judge of the tion trial of, accomplice commission was an in the appellant’s trial concerning effect commit, or was attempting or was parents on his could have execution possible fleeing committing attempting or after having appellant of effects and the societal arson, murder, first any commit executed. kidnap- rape, robbery, burglary, larceiiy, Ohio, 98 S.Ct. 438 U.S. In Lockett v. ping, piracy, aircraft or unlawful throw- (1978), the Su- L.Ed.2d ing, placing discharging or of destruc- that the: Court held preme tive or device bomb. re- Amendments Fourteenth Eighth and unanimously also found that jury sentencer, in all but quire that suf- mitigating there “are no circumstances case, preclud- not be capital kind of rarest ficiently outweigh substantial to the statu- mitigating fac- considering aas ed from tory aggravating circumstance or circum- character tor, any aspect defendant’s above,” appel- stances so listed and fixed of any of the circumstances record and or by lant’s as sentence death electrocution. proffers offense that the defendant trial sentencing hearing, death. a sentence less than as a basis for In permitted the de state show that however, foot- in a emphasizes, The Court testimony suppression hear fendant’s in the “[n]othing in this that note to this sentence ing contrary given was to the statement authority of the traditional opinion limits him to investigating officers and irrelevant, exclude, not as evidence court to trial formed the basis of his contention at character, prior bearing on the defendant’s Balsinger pre the killing that was not record, offense.” circumstances hearing, ap In the suppression meditated. n. 98 S.Ct. at 2965 kill pellant denied with the connection 39—2404(c) broader than is even T.C.A. § and, effect, that been charged he had in Lockett requirement set forth police. Appellant framed also ad Ohio, introduction supra, permits suppression hearing mitted in the court “any matter arrested on four different occa been But, punishment.” to the deems relevant robbery sions and had been convicted in this by appellant evidence tendered Washington, Contrary 1973 in to the D.C. punish- the issue of case was not relevant evi appellant, insistence of we think this properly excluded. ment and was dence relevant the nature and was to show assignment of error remaining defend the crime circumstances upon attack constitutional history—ar presents broad background ant’s character sen penalty al of the death parties specifically ity are eas which the deter providing for the tencing proceeding hear explore sentencing lowed to on con punishment by the ing—and consequently was admissible. See mination degree. first 39-2404(c). murder in the are also viction for T.C.A. We seq. As noted 39-2404 et this evi T.C.A. Sections opinion consideration brief, “specifi trial in its sentencing phase the state dence in the Ch. Acts alleges that 1977 Tenn.Pub. cally holding Sim precluded life sentence States, provides for an ‘automatic’ mons v. United cir aggravating requiring notice of (1968) wherein thus 19 L.Ed.2d 1247 en can be the sentence testimony before the court cumstances held a defendant’s proof that the contends used hanced. He further hearing in a could not be suppression *9 ‘au after his circumstances guilt. aggravating against him at trial on the issue sentence,” tomatic’ life sentence imposed has been “automatic life any vio in sense oth jeopardy. The defendant also er than that imprisonment lates..double life is the mini contends vague that the statute is because degree mum sentence for first murder. No of its allowing jury ‘weigh’ aggravat imposed imposed sentence is or can ing circumstances; and mitigating the jury “sentencing until after the hear Tenn.Code 39-2404(c) Ann. Section . ing.” 39-2404(a). T.C.A. The § standards is unconstitutional because it violates the provided in T.C.A. 39-2404 are not ele § right to by allowing confrontation the ad guide ments of the offense but establish evidence; mission of hearsay aggra jury’s lines for the exercise of the discretion vating 2, 3, circumstances vague and 5 are in determining punishment. Notice of the that Tenn.Code overbroad; Ann. Sec only aggravating circumstances which can 39-2404(h) tion . . . violates due be provided relied on the state is in process jury because the. is not informed of 2404(i). T.C.A. Section Under the hold 39— the imposition life hung sentence on a ing Spinkellink Wainwright, in 578 F.2d jury, and imposition of a death (5th 1978), denied, 609-610 Cir. cert. sentence pun constitutes cruel and unusual 796,. S.Ct. 59 L.Ed.2d ishment Eight under the Amendment of the statutory this notice is sufficient to meet united States Constitution and Article I requirement the constitutional proc due 16 of the § Tennessee Constitution.” ess. insistence, As to the latter this court has As to the contention that the is statute previously prohib held that this state is not vague jury “weigh” because it allows the ited from imposing penalty the death in the aggravating circumstances, mitigating manner set forth in T.C.A. 39-2402 seq. et § Supreme Court has it clear made that a by the placed restrictions on it jury given guidance determining must be Eighth and Fourteenth amendments of the punishment penalty when the death is a Constitution, United States and Article I possible punishment: Sections Nine and Sixteen Tennessee State, Constitution. Since the jury See Cozzolino v. members of a will (Tenn.1979) little, S.W.2d 765 State, and Miller if any, previous experience (Tenn.1979). S.W.2d 758 sentencing, they unlikely are to be skilled dealing they with the information are Appellant also insists that the Tennessee given sentencing hearing]. . [in Act, effect, imposes an “automatic life clear, however, problem It seems that the sentence” at the conclusion the trial on jury given will be if alleviated the issue of guilt. Appellant then reasons guidance regarding the factors about the premise, from this proceeding pro- that the State, crime and the defendant that the vided in the Act jury’s finding to follow the organized representing society, deems of guilt for murder in the first particularly sentencing to the relevant something other than a true sentence hear- Gregg Georgia, decision. ing, but is rather pun- an enhancement of 2909, 2934, 49 L.Ed.2d 859 proceeding ishment or a trial for separate “aggravated distinct crime of first de- gree murder.” then reasons fur- legislature provided of Tennessee ther that if the Tennessee Death Penalty the necessary guidance jury by de- Act creates punish- “an enhancement of tailing in the statute the manner in which ment, it is unconstitutional that there is the jury punishment, is to arrive at the provision requiring given notice to be by instructing jury to consider aggravating defendant of the circum- mitigat- of aggravating circumstances and stances to proven by the state.” provided circumstances as in subsections appellant’s reasoning (e), (f), basic fault with (g) of Tennessee Code Annotat- is that provide Act does not for an ed 39-2404.2 Subsection of the act (e) closing arguments sentencing After weigh instructions for the and con- any hearing, mitigating in his shall include sider the trial circumstances and *10 (j) the 39-2404(i) and set forth T.C.A. § provides all evidence introduced at that to be mitigating factors sentencing and guilt hearings .may aggravating the and both sentencing by by arriving jury at the jury be considered the in considered any that hearing, admonishment with the punishment. statutory fac factor, just specified the sections, arriving pun- Under these in at mitigation. tors, in may considered be ishment, jury the must first determine for the presented are These circumstances has of the proved whether the state exercising “weigh” in to jury consider statutory aggravating circumstances be- determining in discretion its “controlled” finds jury doubt. If yond a reasonable the jury imposed. The what sentence should according proven to that none have been mandatory ver is not to return required standard, return required jury the the must mitigating It must consider dict death. imprisonment. a verdict T.C.A. of life charge that the statute factors. As to the 2404(f). § 39— allowing jury the vague is because its death, punishment To arrive at a the cir “weigh" aggravating mitigating jury state has estab- must find that the cumstances, in mind that it must borne statutory aggravating lished a circumstance is the normal weighing the of evidence beyond Additionally, a reasonable doubt. And, jury jury. where the function however, jury must find that the statu- guidance as to what given adequate is tory aggravating circumstance not out- jury consider, that requirement weighed mitigating by one or more factors. mitigating factors weigh aggravating and put separate These determinations must be not make the evidence does by shown writing given judge in to the trial and, unconsti vague consequently, statute death, along with the sentence of thus as- 1338, Pierre, 572 P.2d tutional. See State suring gone through jury has 1977), denied, 439 (Utah cert. 1347-1348 analysis arriving correct at a death sen- (1978). 58 L.Ed.2d 99 S.Ct. suggested procedure tence. This is the also raises the issue of 201.6, the Model Penal Code Comment against him hearsay evidence 9, 1959), admission (Tent. page 72 Draft No. noted sentencing and insists that hearing by approval with States Su- United right to Texas, this violates his confrontation preme Court Jureck unconstitutional. thus renders the statute n. n. state, by “no inadmissi- procedure pointed As out L.Ed.2d 929 against de- jury hearsay with ble was admitted followed the instant case admit- only hearsay finding aggravating three circumstances fendant. by admissions and statements mitigating and no circumstances. ted were (g) jury unanimously If the determines statutory aggravating circumstances statutory aggravating at least one (i) circum- section forth in subsection of this set which statutory aggravating or stance several cir- at the evidence ei- be raised proved by cumstances have been state sentencing hearing, guilt or both. or ther the doubt, beyond a reasonable and said circum- arriv- manner of and the These instructions outweighed stance or circumstances are not given ing charge in the oral shall be at sentence circumstances, by any mitigating sen- jury writing delib- for its to the penalty If tence shall be death. the sentence of the the death erations. jury, jury shall unanimously (f) jury determines If the statutory writing aggravating reduce circumstance cumstances so found and there were no ciently statutory aggravating circumstances statutory aggravating or cir- beyond proved a reasonable the state been (2) signify doubt, unanimously determines or if the mitigating suffi- circumstances statutory aggravating or circumstance that a statutory outweigh substantial proved the state have been circumstances aggravating circumstance or circumstances beyond but that said cir- reasonable doubt findings so found. These and verdict shall be outweighed are cumstance by circumstances provided judge upon circumstances, returned a form mitigating one or more by the court . ... imprisonment. The shall be life sentence jury then return its shall verdict provided the court . form *11 defendant. The killing This evidence is in this case was properly accomplished ad Buckingham State, mitted. See v. 540 by deadly the weapon, thereby use of a 660, S.W.2d (Tenn.Cr.App.1976) 663-664 raising presumption existence denied, cert. 97 support malice sufficient conviction (1977); Hathcock, L.Ed.2d 764 Sheets State, second degree murder. Thomas v. S.W.2d (Tenn.Cr.App.1975).” Tenn. 358 S.W.2d 315 This presumption upon thrusts the the charges further defendant that T.C.A. 39-2404(h) process reducing due degree violates burden of the that it of homicide deprives the jury sentencing of “accurate and the the burden of State establish- provides: information.” This section killing was the murder in the first If the jury State, ultimately agree degree. cannot Bailey as to 479 S.W.2d 829 punishment, judge shall dismiss the (Tenn.Cr.App.1972). Neither has carried shall, judge impose and the a sen- this burden. tence of life imprisonment. The judge small, This murder was committed in a shall jury, not instruct nor shall the unlighted service station rest room. There attorneys be permitted to comment at eyewitnesses no and only proof jury, time to the on the effect of the comes from the confession defend- jury’s agree punishment. failure on ant: does deprive statute call, I stopped phone to make a we jury of any knowledge of relevant evidence stopped right behind Gulf Service or aggravating circumstances or mitigating phone Station. I walked down to use the circumstances, necessary for them to fix my call cousin. When I went to the punishment. prevent It does no more than service the attendant going station was from informing counsel into guess the bathroom. I to check jury of disagreement the effect its something. I started towards him to ask imposed. sentence should they telephone. if I did ask I had a him. after-effect jury’s of a deliberation is not a green sticking wallet noticed a out of his proper the jury. consideration for See Far right pocket, just I decided to take it. I State, ris v. (Tenn. S.W.2d week, place my had no live in the last 1976). lady, my split up. old and I I wife When Having concluded that the Tennessee approached him, stepped I when towards Death Penalty Act is constitutional and him, pulled I gun my out of waist finding prejudicial error committed in band, grabbed pistol he saw me and trial judgment entered in the trial barrel good and we for a tassled three- court of death electrocution affirmed. (3-5) minutes, five me give I told him to date of the May execution set for no, the money, pistol he had the said pointed me, and was trying towards pull trigger by putting his thumb HARBISON, JJ., FONES and and JOHN against my forefinger. He said this BYERS, Justice, Special K. concur. said, damn will I thing won’t fire it. man HENRY, J., dissents. just give money, way, he said no me the HENRY, Justice, dissenting. will be around in a other man here just go few said man let minutes. I me I respectfully dissent from the action of bathroom, just out of the let me out of affirming the Court in the conviction of bathroom, just get away. first and the let me murder sentence of death wrestling electrocution.. Both of us were still was

pistol, the door shut and it bathroom I. dark, just wrestling, and we were I hand, We deal trying pistol with a pull case murder in the out off, second degree only nothing going that and it pistol more. started started — distinguishing is the 2, 3, Premeditation 4 times. going off. It fired about go I saw murder opened the door to out characteristic When I essential previously picked up I ran degree, billfold and which involves first back to car. to kill. or actual intention design formed State, 218 Tenn. S.W.2d Clarke application is no for the There occasion course, may, of (1966). Premeditation jury, general that the verdict law the circumstances inferred from Judge, accredits the approved by the Trial however, proof of the cir- here the killing; for the testimony of the witness State *12 confession which theory solely in the in favor of the cumstances is resolves all conflicts Hatchett, of v. 560 S.W.2d premeditation. the State. State negates (Tenn.1978). There were no conflicts. blows, repeated shots it is And true proof. no There was other The defendant evi- are violence sufficient acts of other right to remain exercised constitutional State, 4 v. premeditation. McGill dence of testify. and did not The confession silent (1972). Tenn.Cr.App. S.W.2d It jury by police was read to the a officer. shots, according- Here, but there three story. tells the whole a fired as they were ly only proof, the to weapon of makes it deadly The use a wrestling of during the course of and result degree offered second murder. State in close defendant victim and between the 1; proof the no to it murder de- raise to room when defend- quarters in a dark fense to a lower offered none reduce it disengage himself. attempting ant degree of homicide. may may we may speculate, guess, we We may degree Nor it raised to first mur- contrary, but this is conjecture gov- der the statute application nothing proof and we proof, the whole erning felony murder. The defendant was proof. premeditation. We have but the counts, felony on viz.: mur- indicated three only be declared this Its existence der, common law murder armed rob- Court. bery. apparently apprehen- The State was purpose and is “a settled Premeditation sufficiency proof sive about the on State, 23 Tenn. design.” v. fixed Swan necessary murder felt it either count and ago, century than a Justice More obtain a conviction of armed It robbery. Green, for the Court speaking Nathan noted, court, open this Court put the State, (1837), 18 Tenn. Dale person held that a could not be convicted of eloquent phraseology: matter both felony underlying murder and the and, therefore, to enter a felony moved wilfully, that be done killing must [T]he murder, nolle prosequi felony leaving as to the act is, with intent that purpose, free to seek convictions both for State party is taken should which the life a robbery. common law murder and armed is, effect; deliberately, that have that explanation There is no for this trial tactic is, maliciously, that purpose; with cool finding robbery since a of armed added pre- aforethought; with with malice a nothing capital case unless State’s is, meditation, design must sufficiency assessment of the of its evidence act, by kill, before formed to led would not to the belief the trial In performed. is produced, the death inflicting pen- the death result in verdict words, “proof must be adduced other alty. death of the satisfy mind that the part of The result of this action on the ultimate result which slain was the party burden of was that took State deliberation, will, pre- concurring premeditation in the face of a confession— sought” party accused meditation negated it. Thus sole evidence—which at 552. supplied). 18 Tenn. (Emphasis of the rule that lost benefit State the test. This case fails premeditation indispensable element abe must that there It is fundamental occurring during supplied by a murder evidentiary basis constitutionally adequate felony. perpetration to sustain criminal I reduce this conviction. “The would conviction to murder prohibits Constitution criminal convic second sentence to except tion of any person upon proof imprisonment life and direct that the armed jackson guilt beyond a reasonable doubt.” robbery sentence be served consecutively. 307, 309, Virginia, 443 U.S. 99 S.Ct. (1979) (quoting from In L.Ed.2d re Winship, 397 U.S. (1970)).

L.Ed.2d 368 holdings

Under Winship and Jack-

son, analyze we must record in crimi-

nal appeal sup- to insure that the evidence

ports a beyond conviction a reasonable Tennessee, Respondent,

doubt. STATE Any protect lesser standard will not against a violation of the Due Process Clause of the Fourteenth Amendment or *13 Jr., MITCHELL, Thomas Petitioner. from the mandate of own our constitution.

Moreover, 13(e), Tenn.R.App.P., spe- Rule Supreme Court of Tennessee. cifically provides guilt “[findings Jan. criminal actions . . . be set shall aside if the to sup- evidence is insufficient

port findings by the trier of fact of

guilt beyond a reasonable doubt.” language plain; its mandate is

clear.

I say cannot on this this record that de guilty

fendant was of murder in the first

dégree beyond reasonable To do doubt.

so I would to my base decision on

conjecture, This, speculation suspicion. do, may court because we are mandated apply requiring proof beyond a standard

a reasonable doubt. United v. Car States

ter, 173 U.S.App.D.C. (D.C. F.2d 1975).

Cir. evidentiary Absent a factual or

basis, we not infer premeditation

necessary support this conviction. An guilt may

inference of not be based

conjecture or surmise.

We deal being. with life of a human

I cringe thought sending at this

defendant electric chair the basis

of a conjecture that his uncontradicted ver-

sion of the I fatal events is find it false.

difficult in a death case full faith give credit admission that killed simultaneously robbed the victim and reject explanation out-of-hand his all again

details to him. I favorable remind felony

that we deal do not with a murder

prosecution.