*1 Davis, denied, 178, 182, to amend is Foman v. 83 the event the motion (1962): give explanation court 9 L.Ed.2d trial must reasoned for his action. grant opportunity [T]he denial of an is amend within discretion of the judge trial stated in his We note Court, outright District but refusal order that “the motion to amend too comes grant any justifying the leave without late,” being a but we do not consider that as appearing reason for the is not an denial the motion or a reasoned consideration of discretion; merely exercise of it is abuse explanation for his action. There is no time of that discretion and inconsistent with apply limit that to the motion to would spirit Federal Rules. present amend case. principles, Consistent with these we re- concerning no determination We make cently held that it was an abuse of discre- motion, summary judgment except to vacate tion for a district court to dismiss a suit on present opinion order. It is our original complaint the basis of the without allowed; and motion to amend must be after considering ruling pending first on a allowed, is the trial the motion to amend Co., motion to amend. Marks v. Oil Shell may the motion for sum- court then consider (6th Cir.1987). In 830 F.2d Marks mary judgment. we stated: herein, For the reasons stated the sum- policy liberality Given the behind Rule vacated, mary judgment and the case is 15(a), apparent it is that when a motion pro- trial court for further remanded to the considered, much amend is not even ceedings opinion. consistent with this granted, less not an abuse of discretion Espey

has [v. occurred. The court appeal of this are taxed to the The costs (11th Wainwright, 734 F.2d 748 Cir. appellee. 1984) ] determined unless the dis dismissing

trict court’s reason for ANDERSON, J., BYERS, and JOHN K. “readily appar motions to amend were Judge, concur. Senior ent” the dismissal could not be sus tained. 734 F.2d at 750. Because the

district court did not consider the mo tion, “readily we can no such discern

apparent” reasons here.... Therefore, we hold that dismissal of the upon original complaint

suit based considering without first the motion to Tennessee, Appellee, STATE amend was an abuse of discretion. The court district should have evaluated light Marks’ motion in of Fed.R.Civ.P. HOWELL, Wayne Appellant. Michael 15(a) policy and its of amend- liberal Tennessee, Supreme Court of ment. at Jackson. (footnote Marks, 830 F.2d at 69-70 omitted added.) emphasis & Nov. AND

FINDINGS CONCLUSIONS reasoning persuasive, The above opinion give it trial must is our court proponent full of a motion to amend a motion, chance to be heard on the must light consider motion in of the amend 15.01, policy ment embodied T.R.C.P. allowed; freely amendments must be

240 *5 Ward, Shelby Mark Asst. Public

W. Co. Defender, Wharton, Shelby County A.C. *6 Defender, appellant. Memphis, Public for Burson, Atty. Report- Charles W. Gen. & er, Gen., Atty. Inglis, K. Asst. Nash- Debra ville, Pierotti, Gen., Atty. John W. Dist. Jr., Kitchen, Beasley, Jerry R. James C. Gen., Attys. Wright, Glenn I. Asst. Dist. Memphis, appellee.

OPINION

ANDERSON, Justice. defendant, capital

In this Michael Howell, Wayne guilty grand of was found larceny first-degree felony and the murder Kennedy, guilty pre- but not Alvin found first-degree murder.1 In the sen- meditated hearing, jury tencing Memphis found two (1) aggravating circumstances: that the de- previously fendant was convicted of one or more felonies which involved the use or (2) person; that threat of violence to the the murder was the defen- committed while engaged committing felony. dant was a 39-2-203(i)(2) § Tenn.Code Ann. conviction, Appeals 1. Howell's co-defendant Watson was convicted affirmed her Criminal first-degree felony murder and was sentenced application appeal. this Court denied her to imprisonment. to life The Court of jury rejected girlfriend, aggravating the house of his brother’s Cheri circumstance arriving, that the murder was committed showed Goff. After prevent prosecution or to lawful arrest keys Lynn Goff a set of Whitsett defendant, § Ann. Tenn.Code 39-2- Corporation he property Memphis where 203(i)(6) (1982), worked, but found that there were no previously that had and announced mitigating sufficiently circumstances sub- going go get “he him a truck.” The was outweigh aggrava- two stantial the other going “he was down hard defendant also said circumstances, ting and sentenced the defen- time, going he was to take some to death dant electrocution. The court people making After state- with him.” these ordered the death defendant’s sentence ments, her tele- Goff said defendant used consecutively death run with a sentence for phone gun getting to call someone about a 26-year murder in Oklahoma and a sentence had for him. Goff also testified that she Florida, attempted murder in con- previously carrying the defendant a sil- seen victions arose out events occurred white, bone, handgun ver with a handle. shortly Memphis after the murder. night, Later after 8:00 that same sometime appeal, raises On the defendant numerous p.m., Terry Lee Ellis drove Howell and Wat- review, involving for our alleged issues er- son to Road and them at the Raines left occurring guilt phase. rors at trial in the We Ryder Lynn near Whit- Truck Terminal carefully have considered the defendant’s Earlier, p.m., the property. sett around 7:30 contentions and have decided that has none by the stopped defendant and Watson had We, therefore, merit. affirm the defendant’s Brink, home of Robert the husband of one guilt phase. conviction Brink Howell asked Watson’s friends. said Middlebrooks, In State v. 840 S.W.2d 317 money the tele- to borrow some and used (Tenn.1992), majority of this Court conclud- phone, stay long. but did application ed cir- Sunday, a.m. on November Around 2:30 cumstance set in Tenn.Code Ann. 39- forth purchased the defendant Watson 2-203(i)(7), occurred while candy Quick-Shop bar at the Food Store engaged committing the defendant was Henderson, Memphis. Macon in Cassandra felony, population does not narrow duty the clerk on testified that the defendant death-eligible felony murder defendants as writing driving pickup white truck required under Tennessee and United on the on the and a workman’s rack door *7 Constitutions, essentially because it States back, parked side which he had on the blind duplicates the elements of the of offense that as store. Henderson also said first-degree felony Applying murder. store, leaving bumped into Howell was he holding to this case Middlebrooks results customer, Graves, Rodney another who was felony aggra- invalidation of the murder store, and a out entering fight broke vating requires determi- circumstance a fight, between the two men. After jury’s nation of of whether consideration in the Henderson said she saw the defendant aggravating was that circumstance harmless parking pistol. a Rod- store lot with silver beyond Upon a doubt. careful reasonable fight, ney Graves testified after record, review of the we conclude that the Howell outside and returned went felony submission of gun carrying a silver front door of the store consideration, circumstance for handle, nothing happened and with but bone beyond a harmless error reasonable premises. defendant left doubt.

We, therefore, evening affirm defendant’s day, sometime in the Later that 1,1987, death sentence. the defendant and Watson November Stanley drove truck to John- the Whitsett BACKGROUND FACTUAL that Howell son’s house. Johnson testified Saturday, .38 caliber waving nickel-plated On between was around October handle, the defen- p.m., pistol a.m. and a bone 10:00 1:00 defendant and Watson, In addi- girlfriend, dant to as “Jesus his Mona Lisa walked to referred Christ.” tion, “any- day, Monday, Johnson said Howell told him that Later November us, body approximately p.m., messes with I’ll introduce them to 9:00 Charlene Thereafter, parking Calhoun was shot in the lot of Jesus Christ.” between 9:00 and her apartment complex p.m., near 40 in Dell returning 10:00 Cheri Goff said Interstate she was Oklahoma, City, Toyota and her 1987 Tercel home from a movie with some friends when was stolen. A witness who heard the shoot- driving she saw the defendant a white truck ing get said he saw a man and a woman into Lynn logo with a Whitsett on the side and light-colored Toyota hatchback and drive red sideboards on the back. away Lynn after the shots were fired. The 'p.m. At 11:05 on November Ten- only Whitsett truck was found 125 feet from Highway nessee Patrol Officer Aaron Chism shooting, the scene of the with its interior on stopped by said he Loeb’s 7-Eleven Market fire, palm prints and the defendant’s left on Shelby Whitten Road off Interstate 40 the truck’s fenders. County, victim, and saw Kennedy, Alvin morning Tuesday, On the November working job midnight at his on the shift. 1987, Stanley Johnson said he saw Howell Between 12:20 and 12:40 a.m. that same Memphis, they and Watson in were driv- night, Brian Moser said he came into the ing compact a small car. The defendant purchase beer, Loeb’s six-pack store money asked Johnson for and said that “he but there was no clerk the store. As a had a get little heat on him [and] had to out result, minutes, waiting after a few Moser $20, gave town.” Johnson said he Howell go said he decided to across the street to the promised try couple raise a purchase Southland 7-Eleven and his beer. evening. hundred dollars more a.m., At 12:45 stopped Charles Allen night, That the defendant and Watson purchase Loeb’s gasoline. 7-Eleven to some came to Johnson’s house. After Johnson told pay gas, When he went to for his Allen found the defendant he had not been able to raise Kennedy’s body lying behind the any money, counter Howell asked Johnson to his sell pool blood, register open, the cash gun drawer for him. When Johnson said he couldn’t and all of paper money missing. get gun, As a for the the defendant $5 decided to result, Allen said he keep ran across the street to it. Johnson also told the defendant the Southland story killing 7-Eleven and asked the being clerk was broad- cast, police. TV, to call the picture being that his was shown on reported and it was that he killed a man for Upon investigation, it was discovered that Johnson testified that he $17. asked the Kennedy had been shot once from close $17?,” “Why replied, and Howell range in upper right forehead. The “Yeah, safe, open he wouldn’t so I told immediately wound had rendered him uncon- him I’d him introduce to Jesus if Christ he scious, and he had died within a time. short am, open wouldn’t the safe. You know how I It was also discovered that miss- $111.16 they’re talk, If enough Stan. old I wasn’t ing tape from the store. The from the cash *8 going to They’re enough leave a witness. old register indicated that the last transaction to giving die.” After the defendant and $30 had occurred at 12:24 a.m. promising try by to to find for him the $200 night, next Johnson said Howell and Watson Bauer, Susan the clerk at the 7- Southland left, and again. he never saw them Eleven across the street from the Loeb’s store, later, testified that she remembered Watson Almost a month on November purchasing and the defendant and a beer the defendant and Watson were arrest- candy a.m., bar at her City, Florida, store around 12:20 in ed Panama after a shoot-out approximately 20 minutes Allen police high-speed before came with and a They chase. asking in police. her to call driving the said she Toyota She were the stolen from Okla- they they homa, remembered when in replaced came because tags but had the Oklahoma parked the Whitsett truck on plates the blind side with Tennessee from another vehicle. store, of the thought suspi- police which she was nickel-plated Florida found a Smith & cious for that night. time of Wesson .38 revolver a on bone handle lawyer the that stated passenger’s

the floorboard of side where Oklahoma Watson later during preliminary the had seated. Ballistics that had lied the been she that killed tests indicated the bullet had to hearing escape in order the death Kennedy gun, had from however, Alvin been fired this Memphis judge, trial herself. The body the as had bullet taken from of the objection sustained the State’s that the evi- in Charlene Calhoun Oklahoma. hearsay self-serving, dence was and and Except ruled the evidence inadmissible. by The introduced last evidence the State attempt impeach this to Watson’s former tes- testimony of was the redacted co-defendant timony, presented the defendant no testimo- given of April Mona in 1988 at Lisa Watson ny phase guilt on his behalf preliminary the defendant’s Oklahoma hear- trial. ing for the murder of Charlene Calhoun. agreed testify against to Watson defen- evidence, upon Based found in Although dant for a sentence. return life guilty first-degree the defendant murder testify she later decided to both the felony perpetration grand in a and trial, trial and Tennessee the Oklahoma Wat- larceny, guilty premeditated but not first- questioned son on direct examination degree murder. preliminary prosecutors at the Oklahoma sentencing phase, incorpo- state hearing. and de- She testified that she presented guilt rated the evidence 40 from Mem- fendant had driven Interstate phase, proof that and introduced the defen- Lynn in phis to Whitsett truck Oklahoma robbery dant of armed in had been convicted on and 1987. Watson said November Wyoming first-degree in in they trip, drank beer and shot cocaine robbery Oklahoma and of armed Oklahoma, they got City, to Dell when first-degree attempted murder in Florida they got she off the interstate and said 1988. complex stopped apartment at an to walk walking around. After around a few In mitigation, theory the defendant’s main minutes, said Howell shot Charlene Watson damage, was that he brain suffered from Calhoun, car, her the two them took ability wrong- appreciate his therefore to they Lynn set fire to Whitsett truck of his conform his conduct fulness conduct or igniting lighter fluid she had thrown on the requirements impaired. the law was Then, she front seat. Watson said and the The defendant’s mother testified that Howell Memphis defendant drove back to in Cal- very loving come a was a son who had from ear, Florida houn’s and thereafter to on No- poor family. testified that the de- She also vember heavily, de- fendant’s father drank and the up witnessing grew fendant his father beat- during the On cross-examination Oklahoma ing mother her. defendant’s testified hearing, public preliminary the Oklahoma de- Howell, children, the fifth of nine had representing fender Howell asked Watson prematurely been as a result of one born Memphis questions shooting prior a about beating. being diagnosed such After trip to their to Oklahoma. Watson testified special being placed slow learner and edu- Oklahoma, going she and the before classes, the mother said cation defendant’s gone defendant had into convenience store finally dropped in the Howell out school Memphis purchase six-pack of beer. eighth grade and to work fa- went on his handed beer told After Howell her the garbage ther’s truck. car, go her to said the defen- Watson pulled gun dant and shot the clerk de- presented The other evidence *9 head, gun it and that was the same Howell fendant’s sister and mother demonstrated had earlier. shown her injuries dur- that he had suffered four head trial, Once, working Later, ing life. at the Tennessee Howell’s de- his while truck, in the garbage to was hit impeach prelimi- fense tried defendant counsel his compactor head the truck door and naiy hearing testimony of Watson. He at- time, during a testimony skull fractured. Another tempted introduce from Wat- was to fight, hit him in head lawyer one of his brothers son’s Oklahoma and the defendant’s jack. and knocked him out bumper with a the defendant should have been allowed to injury individual, third occurred when a winch engage sequestered cable voir dire of broke loose and him prospective jurors. knocked unconscious In particular, those working while he was a argues on river boat. The that his counsel should injury last occurred when he jurors was knocked question have been allowed to con- taking unconscious alter several left cerning pretrial hooks publicity the content during boxing match in Wyoming pris- they exposed. to which were on. goal The ultimate of voir dire to witness, The defendant’s other Phillip Dr. jurors unbiased, see that competent, are Murphy, a psychologist, clinical testified that impartial, and the decision of to how conduct battery he administered a psychological prospective jurors voir dire of rests within tests to Howell November of 1988. Dr. the sound discretion of the trial court. State Murphy said that the test results showed Harris, 54, (Tenn.1992); 839 S.W.2d “definite damage,” evidence of brain and that Simon, (Tenn. 635 S.W.2d

the brain impaired abnormalities Howell’s 1982); see Virginia, also Mu’Min v. ability appreciate wrongfulness of his (1991). conduct or conform his conduct to the re- highly Where the crime is publicized, the quirements of the law to the extent that his procedure grant better tois the defendants judgment substantially' was affected. Dr. individual, dire, sequestered, voir but it is Murphy diagnosed the suffering defendant as only “significant possibility” where there is organic from chronic syndrome brain and a juror exposed potentially that a has been personality resultant disorder. Extensive prejudicial material that individual voir dire however, testing, medical failed to show evi- Harris, 65; is mandated. 839 S.W.2d at damage. dence of brain Porterfield, upon proof, jury Based found the (Tenn.1988); Claybrook, and State v. existence of aggravating two circumstances (Tenn.1987). addition, beyond a jury reasonable doubt. The found questions publicity about the content of the (1) the defendant previously was convict- jurors to which exposed might have been be ed of one or more felonies which involved the helpful in assessing juror impar whether use or threat of person, violence to the Tenn. tial, questions such but are not constitutional 39-2-203(i)(2) § (1982), Code Ann. ly compelled, and the trial court’s failure to the murder was committed while the questions ask these is not reversible error engaged defendant was in committing a felo- unless it the defendant’s trial fun rendered 2—203(i)(7) ny, Tenn.Code Ann. 39— damentally unfair. Virginia, Mu’Min v. addition, jury found that there were at -, S.Ct. at 1905. no mitigating sufficiently circumstances sub- outweigh stantial to the two cir- case, In this the record demonstrates that result, cumstances. As sentenced prospective jurors examined, the 78 the defendant to death. around percent, or about 64 had some pretrial exposure either at the

PART I. committed, time the crime shortly began. before the trial The trial court re- GUILT PHASE —TRIAL ERRORS jurors fused individual voir dire of all who Jury A. Individual Voir Dire something had heard or read about the case The first issue details, raised the defen but specific did not remember but the dant is whether the trial court erred in refus court indicated that individual voir dire ing to pro allow individual voir dire on permitted jurors would be for those who spective jurors’ exposure pretrial publicity. they indicated that specific did remember the The defendant many However, contends that reports. content of news none of jurors exposed pretrial publicity had been jurors actually who heard the indi- ease crime, crime, about this they the Oklahoma specific cated that remembered details crime, *10 result, the Florida any pretrial addition, as counsel for of publicity. of the In 248 exposed provides. state jury dant receives what the law

those members of the who were they Id., 89, publicity could 2279. pretrial to stated that 487 U.S. at 108 S.Ct. at impartial based would render an verdict permitted In this the defendant was solely presented at trial. on evidence peremptory all of the chal- to exercise 15 record, upon this conclude Based we lenges death-eligible allowed defendant is not its discre that the trial court did abuse 24, the record under Tenn.R.Crim.P. refusing to allow individual voir dire tion support charge of im- systematic does prospective jurors respect with of ability chal- pairment of to exercise those his pretrial reports of news to which content addition, no lenges. there is evidence that A find they exposed. had been trial court’s jury ultimately case was which heard the juror may ings impartiality overturned be partial. or unfair Yount, error,” v. only for “manifest Patton Accordingly, as we find no reversible error 2885, 2889, 1025, 1031, 104 467 U.S. S.Ct. dire. a result the restriction voir (1984), and find no such L.Ed.2d 847 wé on error this record. Jury Challenges Dire and B. Voir Next, the defendant contends For Cause pro ask trial court’s failure to allow him to jurors they The next we address is whether spective exactly what knew about issue failing to certain pretrial publicity impaired trial court erred strike the case from the they jurors cause challenges prospective for because right peremptory to his use his opinions having preconceived intelligently rights to due admitted and violated his argues that impartial The defendant right to a fair and about case. process, his for jurors have been excused jury Amend two should under the Sixth and Fourteenth 24(b)(2), under cause Tenn.R.Crim.P. Constitution. ments the U.S. juror part, if a “admits to provides, It settled that the Sixth is well subject having opinion, he formed an shall be guarantee a defen Fourteenth Amendments challenge unless for cause the examination right life to an dant on trial for his unequivocally impar- that he can be shows Witt, Wainwright impartial jury, see tial.” 412, 844, L.Ed.2d 841 U.S. 105 S.Ct. (1985), challenges peremptory and the use of A has discretion trial court wide impartial means to the end of an is a achieve juror, ruling qualifications of a Oklahoma, 81, 88, 108 jury. Ross v. U.S. (Tenn. Kilburn, 199, 782 S.W.2d 2273, 2278, 101 L.Ed.2d 80 S.Ct. Crim.App.1989), irrespective of whether but However, although right per to exercise judge have the two the trial should excluded challenges “one most im emptory is of the cause, challenged jurors any in this error accused,” portant rights secured to the jury heard regard is harmless unless who Alabama, Swain U.S. impartial. State v. the case was not fair and (1965), (Tenn.1989). Thompson, challenges is right peremptory to exercise long-settled principle defendant is a that a It Ross, 487 not of constitutional dimension. ruling on disagrees a trial court’s who at 108 S.Ct. must, pre challenges for cause order ruling him deprived the claim that the long as the that sits serve

As trial, challenges impairment peremptory fair or of a exercise impartial, denial however, then, jurors. Even challenges does to remove right peremptory to exercise juror correctly Id. failure to exclude Amendment. not violate the Sixth only if the addition, grounds challenges are for reversal peremptory cause because peremptory all of required by exhausts his and are not a creature statute incompetent juror is forced Constitution, challenges and an impairment denial Ross, challenges him. peremptory upon does right to exercise Jones, 2279; and State v. process clause not violate the due (Tenn.1990). long as the defen- Fourteenth Amendment

249 The pretrial record reflects that one of the publicity. The defendant con- jurors, Benson, challenged Michael tends that prospective did not because 52 of the 78 jurors jury. exposed serve on the Accordingly, any pretrial publicity error in were record, refusing mentioning him the defendant’s criminal excuse cause and of and suspected killing that he was a itself does not entitle the second defendant to a new Memphis, convenience store clerk in trial unless the the trial ultimately heard the grant change court’s failure of venue impartial. case was not fair and State v. deprived right by him of his Thompson, to trial 768 at 246. impartial jury, right his process, to due and reflects, however, The record also right his guaran- fundamental fairness challenged juror, Carver, Ricky other did teed the Sixth and Fourteenth Amend- jury. State, serve on the On voir dire ments to the In support U.S. Constitution. Carver stated that opinions he had but be- argument, of his the defendant cites Irvin v. any lieved he could preconceived set aside Dowd, 717, 1639, 366 U.S. 81 S.Ct. 6 L.Ed.2d opinion require and prove the State to be- yond a reasonable doubt that the defendant guilty. matter of a change of venue The addresses itself to the sound discretion of the judge The trial jurors excused other court, trial change and denial of of venue they cause after they testified had formed only will appeal be reversed on for an affir opinions on the merits of the case and would mative and clear abuse discretion. State not be able to opinions set aside those and Bates, 868, (Tenn.1991); 804 S.W.2d render a verdict on the evidence alone. Un- Melson, 342, and 638 S.W.2d jurors, like those Carver testified that he (Tenn.1982). case, In this we find no abuse preconceived could set aside his opinions and part of discretion on judge. of the trial solely render a verdict based on the evidence Hoover, 594 S.W.2d presented at trial. hearing After this testi- (Tenn.Crim.App.1979), the court listed a mony observing demeanor, Carver’s group of 17 factors to be considered in deter judge trial overruled challenge for cause. mining grant whether to change of venue. reviewing record, After we conclude Among nature, extent, these are the that the trial court did not abuse its discre timing pretrial publicity. of the Although refusing tion in to excuse either Benson or publicity there had been about the most Carver for cause. “Jurors need not be total years trial, of it had occurred two before the ly ignorant of the facts of the ease on which despite the fact approximately they sit [and] [e]ven the formation of an percent prospective jurors recalled the opinion on the disqualify merits will not offense, jurors occurrence of the none of the juror if lay can opinion [he] aside [his] actually who heard the case could remember render a verdict based pre on the evidence any of reports. the details of the news Sammons, sented in court.” State v. very facts of this case are different from the 869 (Tenn.Crim.App.1982). See Dowd, supra, facts Irvin v. the case relied Florida, Murphy also 421 U.S. 799- upon by the defendant. 2031, 2035-36, 44 L.Ed.2d 589 Dowd, supra, In Irvin v. two-thirds (1975); Dowd, 717, 722-23, Irvin v. jurors actually exposed seated had been to a 1639, 1642-43, (1961); S.Ct. barrage pretrial publicity right up until State, and Adams v. trial, already the time of had formed an (Tenn.1978). opinion guilty, the defendant was Accordingly, we find no merit to the defen- acknowledged familiarity with material facts argument. dant’s Irvin, and circumstances of the case. 725-28, U.S. at 1644-45. Change C. of Venue addition, even the headlines of one of the The next issue we newspapers reported address is wheth local during jury selec- er the trial court denying jurors erred “impartial defen tion that are hard to find.” Id., dant’s change motion for a of venue due to 366 U.S. at 81 S.Ct. at Al- *12 1986)).2 testimony is at jurors former though of the said that he could Whenever each issue, underlying question is “whether impartial, Supreme the U.S. Court con the be stake, imposing, upon party his not cluded that life at it is fairness allows the “[w]ith offered, in requiring petitioner against handling much that be tried now the too whom by huge so a atmosphere an undisturbed the on the occasion.” Fed. witness earlier note, a public passion and other advisory wave committee R.Evid. (1). (b), of the except. than one in which two-thirds members The U.S.C.A. subd. admit, hearing testimony, any pos before designed rule in cases was to ensure fairness Id., sessing guilt.” in his U.S. a belief testimony is admitted. Accord when former 728, 81 at 1645. ingly, a mean given the rule must be literal ing, of the rule must be and each element Dowd, jury in Irvin v. Unlike the testimony admit satisfied before former jurors’ pretrial exposure publicity in this — Salerno, ted. See United States v. moderate, ranged case from nonexistent to 2503, 120 -, L.Ed.2d 255 any no “undue ex- and there is evidence Shelby against citement the defendant” First, contends that the defendant Watson County precluded fair which would have in- unavailable she did not not because 21(a). trial. Tenn.R.Crim.P. See also See privilege against self-incrimination voke her Melson, at 360. Accord- State testimony preliminary hearing until after the ingly, find no abuse of discretion we jury. it was admitted read to While motion trial court’s denial the defendant’s procedure for the would have been better change of venue. privi- trial to have invoke the court Watson lege of the against self-incrimination out Preliminary D. Oklahoma admitting jury’s presence prelimi- before- Hearing Testimony nary her hearing testimony, invoked Watson We next consider whether privilege against and did self-incrimination admitting testimony trial court erred in during testify the trial. Since invocation Watson, co-defendant, given at Mona Lisa privilege against self-incrimination hearing preliminary unavailable, the defendant’s Okla a witness State renders charges him against homa on the (Tenn.1980), Armes, state of Charlene Calhoun. present case since the circumstances testimony The trial court admitted this under finding of conclusively support a unavailabili- testimony exception to hear the former argu- ty, find no the defendant’s we merit to rule, say provides: ment. (b) Hearsay exceptions although defendant next contends that The following The are not excluded opportunity he to cross examine Wat-: had hearsay rule if the is unavailable declarant hearing, he preliminary son at the Oklahoma as a witness: develop her a similar motive did not have testimony Former hearing testimony preliminary because the Testimony given a witness another as separate charges in another state. involved proceed- hearing of the same or a different represented by a argues He that he was also ing, party against ... if the whom lawyer proceedings, in those who different oppor- had an testimony is now offered ... develop inquire into had no real motive to tunity develop similar motive to killing of Alvin the facts relevant direct, cross, ex- testimony by or redirect result, Kennedy in As a Tennessee. amination. for- admission of the defendant asserts that testimony hearsay 804(b)(1) rule mer violated (adopted Fed.R.Evid. this Court under right his to confrontation the Sixth of the law Tennessee as statement (Tenn. the U.S. and Fourteenth Amendments to Causby, supra, gov- Causby, adopted in State v. is the 2. This was tried before the Tennessee Rules case adopted erning and became effective of Evidence were standard. Therefore, rule, January federal Cir.1983). I, (3rd Constitution, part, 9 of Article the Ten- F.2d 319 This con comports Advisory nessee Constitution. clusion Commit tee Note to that observes: “The Rule 804 Sixth Amendment U.S. Consti require identity common ... law did of is tution, applicable which is to the states insuring sues as a means of that the former Amendment, through the Fourteenth see *13 handling equivalent of the witness was the of Texas, Pointer v. 380 U.S. if opportunity what would now done the be (1965), provides “[i]n all presented. were Modem decisions reduce prosecutions, enjoy criminal the accused shall requirement identity.” the to ‘substantial’ right the to be confronted with the witnesses (b), (1); except. U.S.C.A. at subd. see against corresponding provision him.” The Cohen, Sheppeard, also Paine & Tennessee the provides of Tennessee Constitution Evidence, 804(b)(2).1, (2d p. Law Sec. prosecutions, “[t]hat in all criminal the ac 1990). ed. right hath to cused the ... meet the witness I, § face to es face.” Tenn. Const. art. 9. identity The defendant’s as the killer of previously This Court has held that the for Kennedy Alvin and Charlene Calhoun was an testimony exception hearsay mer to the rule hearing issue in both the Oklahoma and the reliability”3 has sufficient “indicia of so that testimony identifying Tennessee trial. The comports admission evidence thereunder Kennedy defendant as the killer of Alvin right According of confrontation.4 circumstantially established defendant’s ly, if preliminary hearing Watson’s Oklahoma identity Calhoun, as the killer Charlene testimony requirements met the of the for Kennedy since were Calhoun shot with testimony hearsay exception, mer it would Likewise, gun. testimony same Watson’s satisfy right also of confrontation. identifying person the defendant as the who shot circumstantially Charlene Calhoun es- Causby, supra, first-degree a identity tablished the defendant’s as the thief this Court held that the trial Whitsett track killer of Alvin properly court a admitted co-defendant’s for- Kennedy. Consequently, the defendant had testimony mer juvenile from a transfer hear- explore similar motive to identification ing testimony exception under the former preliminary issues at the hearing. Oklahoma hearsay rule because defendants had See, Pizarro, e.g., fact, 717 F.2d at 349. full opportunity and similar motive to de- point any defendant has failed to velop testimony. prior Several factors matter developed that would have been in reaching conclusion, were considered in cross-examination that was not raised in the emphasis placed but the most on the fact Therefore, prior proceedings. we conclude that at both hearing the transfer and the that a develop similar motive existed to Wat- subsequent trial, testimony was ad- preliminary hearing testimony son’s with re- “[wjhether dressed the same issue of spect killings both Charlene Cal- not the defendants had committed the of- houn, Kennedy in and Alvin Tennessee. charged. fense” Causby, 706 S.W.2d at 632. Complete identity of the issues is It is true that defendant was not necessary. considering represented Other courts by the counsel in same the Okla what constitutes a similar motive hearing have con homa Tennessee trial. How ever, cluded that if in requires only the issues both cases are party rule similar, sufficiently requirement against testimony of simi whom the is offered have lar motive is opportunity satisfied. United States v. Li An and similar motive. iden cavoli, (6th Cir.1984); tity 725 F.2d lawyers necessary. is not Tennessee Pizarra, Evidence, Moreover, United States v. 717 F.2d Law p. 460. (7th Cir.1983); Corp. relating Zenith Radio facts Matsu to the murder Alvin Kenne Co., 1190, dy F.Supp. brought shita Electric Indus. on were out Watson’s cross-ex (E.D.Pa.1980), in part, amination rev’d the defendant’s Oklahoma coun- aff'd Roberts, 56, 66, Causby, 3. Ohio v. 4. (1980). L.Ed.2d Oklahoma, hearing preliminary testi- party against [the “If the whom Watson

sel. mony] against is the placed is now offered one said she had lied blame previously, testimony was offered escape whom the Howell the death order him to apparent requiring objected no unfairness and the trial herself. The State prior accept self-serving conduct of cross-exami- agreed, ruling his own court the evidence nation_” 804, advisory inadmissible, com- hearsay Fed.R.Evid. for impeach- even (b), note, 28 mittee U.S.C.A. subd. purposes. ment except. The defendant’s contention reasons, Moreover, party, for tactical was not evidence of Watson’s recantation may engage rigorous “not to decide hearsay impeach it because was offered cross-examination, any or even cross-ex statement, Hearsay “a ment is correct. — Salerno, at -, amination at all.” *14 other than one made the declarant while dissenting). (Stephens, at 2511 J. S.Ct. hearing, testifying the trial at or offered motive, may a similar but party have prove evidence the truth of the matter to not on Id. simply choose to act it. 801(c).5 Tenn.R.Evid. State asserted.” long party had a similar the [A]s purposes are impeachment ments used testimony in the develop to the motive of prove not to the truth the state admitted prior proceeding, is no there unfairness ment, credibility that the but to show the of against the tes- requiring party the whom Paine, Cohen, Shep suspect. & witness prior timony accept now to her offered 801.8, peard, Tennessee Law Evidence of develop not the testi- develop decision to or (2d 1990). Accordingly, prior in p. 388 ed. fully. mony impeach consistent offered statements — Salerno, at -, 112 S.Ct. at U.S. v. U.S. id., hearsay, are the court ment not trial 2511, (Stevens, J., dissenting) (emphasis n. 6 allowed defendant to intro should have the added). duce evidence of Watson’s recantation. foregoing, As of we conclude a result the had that counsel Moreover, defendant’s Oklahoma agree that trial we the Tennessee similar motive to defendant’s im to allow the defendant to court’s refusal develop testimony to about counsel Watson’s testimony evi peach Watson’s former with Kennedy’s preliminary at Alvin the his she later recanted violated dence that Accordingly, con- hearing in Oklahoma. we rights under the Sixth confrontation Okla- clude that the admission Watson’s to the U.S. Fourteenth Amendments Consti hearing testimony re- preliminary homa with tution, I, § the Article 9 of Tennessee Kennedy spect of Alvin to the murder protecting to a de Constitution. addition hearsay not the rule nor Memphis did violate right to confront the witnesses fendant’s rights the under defendant’s confrontation trial, time the and federal con the state to the Sixth and Fourteenth Amendments guarantee also to the de frontation clauses Constitution, I, § 9 of and Article U.S. cross opportunity for effective fendant “an the Tennessee Constitution. Fensterer, examination,” Delaware v. 15, 294, 15, 20, 106 292, 88 L.Ed.2d S.Ct. U.S. Refusal Admit Recantation

E. to (1985), “expose can so defendant Testimony of Watson’s jurors ... jury the facts from which to relating appropriately it draw inferences asserts that was [can] The defendant next reliability of the witness.” Davis trial to refuse to allow to error for the court 1105, Alaska, 308, 318, 94 415 U.S. impeach prelimi- him Oklahoma to Watson’s (1974). However, 1111, nary hearing testimony that L.Ed.2d evidence trial, error does testimony. of a constitutional her At existence she recanted automatically to a rever sought proof from entitle defendant to introduce defendant 1967, Supreme has attorney Court that after the sal. Since U.S. Watson’s Oklahoma Tenn.R.Evid. common law. Although Rules Evidence were states Tennessee the Tennessee trial, 801, except Advisoiy for the not in effect the time Commission Comments. hearsay, Rule 801 re- of conduct as definition presence repeatedly principle testimony, reaffirmed the an tive or nature Chapman California, corroborating nounced in 386 U.S. evidence contra- absence (1967), 87 S.Ct. 17 L.Ed.2d dicting points, on the witness material an otherwise valid conviction should not be per- extent of cross-examination otherwise may reviewing say set aside if court mitted, prose- strength and the overall the whole record that the error constitutional cution’s case. Id. beyond

was harmless doubt. reasonable is no There doubt that in Wat- Arsdall, Delaware v. Van 475 U.S. testimony important son’s former was prosecution’s only ease as direct evidence Indeed, Supreme has Court re Kennedy. killed Howev- peatedly stated “the Constitution enti er, proof her the corroborative Oklahoma trial, tles a criminal defendant to a not a fair testimony preliminary hearing was over- Arsdall, perfect at 681- one.” Van prosecution’s whelming and the overall case 82, 106 S.Ct. at 1436-37. Moreover, strong. was otherwise The trial court Van Arsdall refused testimony was informed that Watson’s allow impeach the the defendant hearing preliminary given Oklahoma key state’s questioning witness him about exchange charges for the against being her against charge dismissal of criminal second-degree plea lowered murder and a him agreed after had speak he with the *15 imprisonment. of recommendation life prosecutor against about the case the defen- Moreover, evidence, excluding the the even agreed dant. The Court with the defendant proof, ample beyond Watson is to convict that the trial court committed constitutional Causby, doubt. reasonable See error, but concluded that the error was (citations omitted). at 628 Witnesses testi- beyond harmless In reasonable doubt. so they fied that saw the defendant with the holding, emphasized the Court that: weapon night murder the Alvin Ken- before The harmless error recognizes doctrine the nedy was murdered. Another witness testi- principle purpose that the central of a fied to the defendant’s made admission the ques- criminal trial is to decide the factual night going the he was before murder that tion guilt innocence, of the defendant’s go people hard this time down and take some promotes public respect and for the crimi- him, with and still another witness testified process by nal focusing underlying on the Kennedy to his after admission the murder. fairness of the trial rather than on the addition, the store convenience clerk virtually presence inevitable of immaterial working at the store across the street from error. regardless Reversal error of its Kennedy the the site of murder testified that judgment, encourages effect on the liti- Howell and Watson in her store were within gants judicial process to abuse the and minutes of the time the was commit- public bestirs the to ridicule it. ted, they driving that and were the stolen Arsdall, 681-82, 106 Van 475 U.S. at S.Ct. at Moreover, truck. Whitsett ballistics tests (citations quotation 1436-37 and internal gun the showed that found in defendant’s omitted). marks possession by police Florida when he was determining whether the consti apprehended gun was the used to kill same tutionally improper denial of a defendant’s Kennedy in Memphis, Alvin and Charlene opportunity impeach a witness is harmless Calhoun Oklahoma. standard, Chapman under the correct whether, inquiry assuming damag Although is largely is cir evidence ing cumstantial, potential of the may cross-examination were be conviction based en fully realized, the error tirely was nonetheless circumstantial evidence “where facts Id., beyond clearly harmless a reasonable doubt. are ‘so interwoven connected that 684-85, A finger guilt pointed unerringly 106 S.Ct. at 1438. inquiry are number factors relevant to this the defendant and the defendant alone.’” (Tenn. including importance Duncan, of the witness’ testi State v. 1985) mony prosecution’s cumula- (quoting Crawford, 225 Tenn. (1971)). use the defendants on the week- Even alcohol murder, we that that excluding proof, the Watson conclude end of the we conclude testimony record part the circumstantial evidence omission of this of Watson’s guilt unerringly ample point finger even if not have been harmless error would defendant alone. waived, light especially of the fact that the intent and mental evidence was relevant to factors, evaluating we After the relevant state, and defendant was convicted of any that cast on Watson’s conclude doubt murder, felony premeditated murder. and her testi- reliability as a witness former mony la- by impeachment evidence that she unsworn, that general statement ter made G. Proof Other Crimes testimony was would have been false issue raised the defen hold the trial The last Accordingly,

minimal. we that phase respect guilt to admit evidence that Watson is wheth court’s failure dant hearing admitting her testi- preliminary later recanted trial erred in evidence er the court mony beyond a reasonable was harmless commission other defendant’s doubt. trial and Florida. The crimes Oklahoma that the defendant court admitted evidence Testimony

F. Redaction Oklahoma, had shot Charlene Calhoun Drug Regarding Use police in in a shoot-out with been involved is Florida, The next issue we address grounds on the that evidence redacting trial erred in whether the court identity was relevant to issues hearing part preliminary of Watson’s flight of the defendant. testimony which indicated she drinking shooting had been defendant in a It criminal is well settled Kennedy killing. The de cocaine before trial, has commit evidence that *16 for the contends that it was error fendant wholly independent of crime ted some other testimony because trial court to exclude this charged, though even it that for which he is to it been the mental would have relevant character, usually crime the same is a of his at the state the defendant and intent of it is irrelevant. not admissible because testimony of The redacted time the murder. (Tenn. State, 227, 229 Bunch was complains about the defendant 1980). addition, the In obvious because hear given by preliminary later Watson defendant, evidence to the prejudice of such first ing preliminary a week after the held prejudicial constitutes er its admission often hearing. ror, of a requiring the reversal conviction. issue as the defendant raised this While Id. trial, new review error in his motion for a our did not record shows that Howell the However, if that the defen evidence request portion this the trial court to include separate has committed crime dant proceeding in record the Oklahoma to one on trial is relevant from the distinct also proof. of the record the Our review actually in the case on in issue some matter trial, during shows that the the trial, as evidence is probative and if value its parts proof in the other of Watson’s included upon prejudicial its effect outweighed not drug

testimony regarding the defendant’s defendant, may be then such evidence the Memphis from to Oklahoma. use on the ride Id. cases have properly admitted. Previous that of crimes other than held that evidence Accordingly, the defendant did since was on trial was which the defendant for during request proof the admitted that be being as relevant to such properly admitted trial, the bring the the and did not issue defendant, identity of State as the the issues the for a until motion trial court’s attention (Tenn. Taylor, 697-98 669 S.W.2d filed, that new was we conclude trial attempt 1983), flight or defendant’s the waived the defendant. issue has been Zagorsky 701 36(a). addition, State v. to evade arrest. In because Tenn.RApp.P. (Tenn.1985). drug and evidence of jury the heard other pos- plicable, While the his and that defendant admits that the defendant waived the session of weapon the murder special Oklahoma he failed to make a issue because and Florida was relevant the instructions, object request for the faded to Tennessee, charges in he contends instructions, to the court’s omission of such probative the details of offenses value of to raise the in his and failed issue motion for outweighed by committed in those states was a new trial. prejudicial disagree. effect. We Reece, supra, this Court held The fact that Charlene Calhoun had been prior that where the State’s case is weak and gun shot with the same used to kill Alvin for im- inconsistent statements admitted Kennedy highly was relevant and critical to peachment extremely damaging, are the fail- proving identity the defendant’s Kenne- as give limiting ure to instruction that dy’s addition, killer. the fact that only statements are to be considered on the Whitsett truck was found at the scene credibility may issue of amount to fundamen- shooting highly Calhoun’s was relevant to the reversal, constituting grounds tal error identity Kennedy’s defendant’s as killer be- special request. even in the absence of a cause the truck had been seen Loeb’s near Reece, holding, This how- Moreover, near the time murder. ever, exceptional was “limited to those cases proof regarding killing of Charlene Cal- impeaching testimony in which the is ex- was, part, houn most as circum- tremely damaging, limiting for a need possible, scribed as with the witnesses usual- apparent, instruction failure to ly referring happened to what as a “shoot- give prejudice it results substantial ing,” “alleged shooting.” rights the accused.” Id. testimony concerning the defendant’s Our review of the record convinces us that detailed, apprehension in Florida was more the “fundamental error” rule police officers testifying how the Reece, supra, applicable is not to this case. defendant shot at them car when the was An important factor for Reece court stopped, was during high-speed chase. prior however, the fact inconsistent state- testimony, This relevant impeach damaging so ments used were guilt establishing flight defendant’s his instruction, give limiting failure to connecting weapon, him with the murder essence, thereby establishing guilt person allowed the to consider the his as the Kennedy. impeachment who killed evidence as substantive evi- *17 dence, thereby and allowed inadmissible record, upon Based our review of the we hearsay precedence evidence to take over probative conclude that the the value of evi given by testimony under oath the on witness presented regarding dence the Oklahoma case, testimony the this about stand. the killing, shoot-out, outweighed and the Florida the defendant’s other was relevant to crimes prejudicial result, its effect. As a we hold guilt, hearsay and problems his no were in- properly that the trial court admitted this volved. respect evidence with to the defendant’s identity flight. Zagorski, and See 701 Accordingly, although significant is a there 813; Taylor, S.W.2d at and 669 S.W.2d testimony possibility of misuse with about crimes, defendant’s commission of other and limiting preventing instructions are critical

Next, the defendant that contends improper prejudicial proof and use of the if properly even the trial court admitted see, Fisher, crimes, e.g., crimes, other 670 proof of the other the failure of the 232, (Tenn.Crim.App.1983), 237 S.W.2d we proof trial court to the instruct that this that the trial did not commit only on conclude court questions could be used the identi give ty failing limiting error to flight amounted to er reversible “fundamental ror,” respect proof relying upon our instructions with to the of other opinion in State v. Reece, (Tenn.1982). 637 858 crimes. The defendant waived the issue The State, however, requesting limiting contends that the “funda not instruction and inap- raising mental error” rule of State is v. Reece not the issue his motion a new 256

trial, 3(e), offenses, utilize death-eligible to a state must Tenn.R.App.P. and the failure reliability procedures funda- that assure give limiting instructions was neither additional West, appro is in the determination that death the prejudicial mental nor error. State (Tenn.1989). 387, punishment given case. priate capital In this 396 Carolina, limiting v. North give to See Woodson for the failure the blame (1976). 280, 2978, S.Ct. instructions “must be laid the defendant’s State, reliability requirement, To meet a state feet.” Laird v. permit to indi must the sentencer make an (Tenn.Crim.App.1978). determination on the basis of the vidualized H. Conclusion circum character of the the individual Stephens, crime. stances the Zant completes This our of the defen- review U.S. S.Ct. respect alleged dant’s to contentions (1983). Thus, defen L.Ed.2d phase. find guilt trial court errors We present and have the dant entitled during no that reversible error occurred fully consider all relevant evidence sentencer and, guilt phase accordingly, we affirm mitigation Skipper v. of the sentence. guilt. defendant’s Carolina, 1, 4, 106 South 1670-71, L.Ed.2d II. PART not error to ex- We conclude it was SENTENCING PHASE clude the later recant- evidence Watson hearing lawyers preliminary to her ed Preliminary A. Recantation of testimony in which she identified Howell Testimony Hearing triggerman. The evidence overwhelm- During sentencing phase, as in person ing that who the defendant was in guilt phase, sought Kennedy, implicitly killed Alvin and he had testimony troduce from Watson’s Oklahoma absolutely There is admitted it to a witness. attorney, Oklahoma at defendant’s proof no in the record that Watson was during the torney, said she lied that Watson killer. find that the evidence of Watson’s We hearing preliminary escape in order to mitigating to the recantation was irrelevant court, how death herself. The trial Ann. circumstance set out in Tenn.Code ever, objection to the sustained the State’s 39-2-203(j)(5) defen- grounds testimony relevance circumstances dant’s character go hearsay, finding that the evidence did crime. attempt to mitigation, but instead was an re-litigate defendant. the innocence B. State’s Cross-Examination the trial The defendant contends that Murphy Dr. evi- ruling was erroneous because the court’s defendant next contends statutory cir- mitigating dence went was committed the state prejudicial error an ac- “[t]he cumstance that defendant was *18 study to it used a in the manner which complice by anoth- in the murder committed Murphy. Dr. On direct exam cross-examine participation person er and the defendant’s ination, tests Murphy Dr. testified Ann, relatively minor.” Tenn.Code was defendant, results of which given the the (1982). addition, de- 39—2—203(j)(5) the damage,” brain evidence of showed “definite argues that the trial court’s exclusion fendant susceptible to very and not reliable were rights his under the of this violated evidence by the attempts malingering faking or to Eighth Amendments and Fourteenth cross-examination, the State defendant. On disagree. U.S. Constitution. We if fa objection, Murphy, over he was asked Faust, Amendment, Hart and Gilmecki miliar with the Eighth

Under in which children through study conducted applicable states which is neuropsychologi Amendment, been instructed to fake see Robinson v. had Fourteenth were then sent cal exams and results California, (1962), Murphy evalúa- qualified experts, such as restricting the class after L.Ed.2d objection to courts,” in connection with that he was not Murphy replied Dr. tion. Faust, and Gil- Hart use of the pro- then the State’s study. The State familiar with jury’s sense objection, study, if he diminished Murphy, over mecki ceeded to ask neuropsy- imposing the death responsibility that 93% of the surprised would be final jury’s tests abnormal decision was chologists implied had found the fact, Mississippi, Dr. “when, were.” none of them v. in violation of Caldwell limitations explained the 86 L.Ed.2d Murphy then studies, profes- conceded that disagree. but such We psy- indicates that general sional literature mislead prosecutor’s involved a Caldwell sometimes inaccurate chological tests are judge, by the trial endorsed ing argument, can be faked. final but was not jury’s death sentence that a that this line contends The defendant of the appeal. The statement reviewable au- because the was error cross-examination an eviden- in this case concerned trial court study ac- was not nature of the thoritative to the defen ruling directed tiary and was by by Murphy or established knowledged counsel, jury. The asserted not the dant’s by McCay required independent evidence as See is without merit. violation Caldwell Mitchell, Tenn.App. 463 S.W.2d v. (Tenn. State, v. 797 S.W.2d Johnson (1970).6 710, 720 387, 396 1990); Taylor, 771 (Tenn.1989). State, any that response argues The jury was harmless because the error was statements, arguments, and that

instructed Argument Sympathy Instruction D. are not evidence remarks of counsel that the trial argues Next the defendant disregarded supported if not be should given “anti-sympathy” instruction court’s evidence, Murphy conceded and because trial guilt phase of the sentencing and familiar with this although he was not that Eighth Amend rights under the violated his pro- study, of other particular he was aware is without merit. See State ment. This issue indicating psycholog- fessional literature Smith, 1, 21 (Tenn.1993); State 857 S.W.2d can inaccurate and ical tests are sometimes (Tenn.1990). Boyd, agree. be faked. We nature contends that Requiring proof of the authoritative defendant also jury, study charge effect of not of the has the “wholesome trial court’s refusal defendant, “you permitting this issue to be determined are requested by the Here, Dr. sympathy of counsel.” Id. based mere statements consider elicited allowed to Murphy, although Eighth he was not familiar with violated the presented,” on evidence State, study con- specific used al requirement that a be Amendment literature ceded that there is authoritative any mitigating evidence. to consider lowed expertise indicates that they his field of jury that The trial court instructed inaccurate psychological tests are sometimes any weigh and consider were “authorized context, we con- and can be faked. by the ... raised mitigating circumstances by indepen- that the failure to establish clude throughout the entire course evidence nature of the the authoritative dent evidence informing trial,” them in addition Faust, study harm- circumstances, Hart and Gilmeeki in statutory mitigating less error. they to consider were structed them or character “any aspect of the defendant’s Judge’s Statement The Trial

C. offense any circumstances of the record *19 Sentencing During by the the defendant shown favorable to from precluded jury was not proof.” The argues that the trial defendant next by the Jones, considering mitigating evidence counsel, I “Mr. judge’s comment to his without merit. given. The issue is ruled, charge appellate for the it’s a matter have Mitchell, Advisory McCay supra. Commis- See expert by treatises v. Impeachment learned 6. governed Rule 618 of the Tennessee is now sion Comments. holding Evidence which restates Rules of 258 State, 641, Edward v. 540

See S.W.2d 649 The defendant next contends that Smith, (Tenn.1976); 22 sentencing 857 S.W.2d at statute is unconstitutional be cf. (instruction Melson, mercy); impermissibly on 638 cause it S.W.2d interferes with the (instruction jury’s mercy). impose at 366 discretion to decline penalty, thereby “pre death creates a Finally, the defendant contends that sumption argues of death.” The defendant prosecutor’s closing argument sen language providing aggra that if the tencing hearing requesting jury that the not vating “circumstance or circumstances are sorry feel for the defendant because of his outweighed by any mitigating circum injuries telling head them to overcome stances, death,” the sentence shall be Tenn. sympathy for their the defendant violated the (1982), § 39-2-203(g) requires Code Ann. Eighth Amendment. Examination of this ar sentence of death when the gument prosecu in context reveals that the mitigating evenly factors are balanced. jury urging tor was not to return a life argument rejected This was addressed and mitigating sentence based on the circum Boyd, supra, State v. where we found that presented by stances the defendant. Such no statutory “[t]here is likelihood that this argument proper. This issue has no merit. ” language imposes “presumption of death.” Bane, Boyd, 797 S.W.2d at 596. See also 853 Constitutionality E. 488; Wright, S.W.2d State 756 S.W.2d Penalty the Death 669, (Tenn.1988); Teague, 674 and State v. The defendant first asserts that the (Tenn.1984). 785, According- 680 S.W.2d penalty punish death is cruel and unusual ly, argu- we find no merit to the defendant’s Relying dissenting opinion ment. on the in ment. Dicks, (Tenn. 126, State v. 615 S.W.2d lines, Along 1981) the same the defendant (Brock, C.J., dissenting), the defendant argues that “the sentence shall be death” circumstances, contends that under all portion statutory language quoted punish death is cruel and unusual I, § above violates Article 19 of the Tennes Eighth ment under the Amendment to the Constitution, requires see that “in all Constitution, I, § and Article 16 of the libel, jury indictments for shall have a Tennessee find Constitution. We no merit to facts, right to determine the law and the argument, this which has been considered court, under the direction of the other rejected many times this Court. criminal cases.” Howell contends that Bane, (Tenn. 853 S.W.2d language impermissibly “shall” interferes Smith, 1993); 23; 857 S.W.2d at State v. jury’s impose with the absolute discretion to Black, (Tenn.1991); I, § its own decision under Article McCormick, S.W.2d (Tenn.1989). rejected argument This was addressed and Black, supra, this Court where we Next, argues the defendant language found that the of Tenn.Code Ann. sentenced, par statute under which he was § 39-2-203(g) does not violate Article ticularly § 39-2-203(g) Ann. Tenn.Code Id., I, of the Tennessee Constitution. (1982), imper- is unconstitutional because it 186-87; Bane, see also S.W.2d missibly places proof upon the burden of Accordingly, at 490. we find no mer- prove mitigating circum argument. it to this outweigh aggravating stances circumstances Next, Mullaney in violation of the dictates of the defendant contends that the sen- Wilbur, tencing Eighth statute violates the and Four- L.Ed.2d 508 find no merit to this teenth Amendments to Constitution We the U.S. statute, argument require because “the taken in con it does not to find because text, clearly beyond aggrava- outlines where the burden reasonable doubt proof Boyd, ting outweighed by lies.” 797 S.W.2d at 596. See circumstances are not Bane, 488; Thompson, mitigating support in order to also 853 S.W.2d at circumstances again, argument at 251-52. a death sentence. Once

259 prior rejected consisting of the by stance defendant’s has been addressed convictions, intro- Thompson, supra, felony which were court. In State after violent support aggravating duced in of the circum- reviewing language of Tenn.Code Ann. (1982), prior § at violent the relevant stan- stance trial. Evidence 39-2-203 Amendment, felony Wyoming Eighth included: a 1984 dards under we con- convictions phrasing robbery; “the armed a 1988 Okla- [of statute] cluded that conviction for murder, for operate first-degree homa for preclude does not consideration of conviction he a 1988 any mitigating penalty; factors and that it which received death relevant murder; eighth attempted Florida for satisfies the constraints of the amend- conviction 252; at a rob- Thompson, 768 see and 1988 Florida conviction for armed ment.” S.W.2d Bane, bery. Accordingly, 853 also 489. argument to find the defendant’s be with-

we Texas, 249, 108 486 Satterwhite U.S. out merit. (1988), 1792, S.Ct. the U.S. Supreme applied Chapman, first Court argument The last raised the de supra, analysis error to federal harmless attacking constitutionality fendant of the capital occurring errors sen- constitutional penalty is that fails death Tennessee’s statute Id., 261, tencing proceedings. 486 U.S. at sufficiently eligi narrow the class of death case, 108 In that constitu- S.Ct. at 1800. Eighth ble defendants under the Amendment tional in viola- error —admission evidence Constitution, I, § to the U.S. and Article 16 tion the defendant’s Amendment Sixth Constitution, of the Tennessee all because right to submit- consult with counsel before persons felony eligi convicted of murder are ting designed to psychiatric to a examination penalty death ble for the on the sole basis dangerousness8 future determine they underlying felony. committed the —was held to harmless. be Middlebrooks, In State v. later, years Mississipp Two Clemons v. (Tenn.1992), this Court held that it is uncon- 738, 1441, i, 494 110 S.Ct. 108 L.Ed.2d U.S. Constitution, stitutional under the Tennessee (1990), the Court held that a sen I, when 16, Section felony Article to use the mur- relied, in tencing jury weighing in a has circumstance, state aggravating der Tenn.Code constitutionally 2—203(i)(7)(1982) part, aggravating on § invalid [now Ann. 39-13- 39— circumstance, 204(i)(7) (1991)], appellate may state re courts support imposition weigh remaining aggravating circum penalty felony death conviction of mur- evidence, if der, against mitigating stances although support it can impo- be used law, permissible Chap premeditated apply the death under state or sition of analysis. majority man The murder. We determined that the use harmless error felony reviewing that a aggravating murder circumstance Clemons held Court du- plicated underlying capable examining the elements of the struck crime balance death-eligi- sentencing authority, judge jury, and failed to narrow the class be it I, an required deciding ble murderers Article and of whether the elimination of Sec- by improperly aggravating tion of the circum Tennessee Constitution and considered balance, Eighth denying Amendment to the United States stance affected the without Constitution.7 We must now on the basis determine individualized determination whether, based the facts in this of the individual and the character Clemons, sentencing jury’s consideration of the invalid of the crime. circumstances felony Bar (quoting circumstance U.S. S.Ct. Florida, beyond clay 939, 103 harmless doubt where reasonable (1983), remaining aggravating is one in which the there circum- L.Ed.2d case Middlebrooks, required by grounds. decision in tional 840 S.W.2d at Middlebrooks See I, 346; § 16 of the We Art. Tennessee Constitution. Stephens, 462 103 S.Ct. Zant v. U.S. at analy reviewed federal constitutional law in our at 2742. duplication sis to determine whether the also Eighth violated Amendment United Smith, 8. See Estelle v. Constitution, States but Middlebrooks was decid 68 L.Ed.2d separate independent ed on state constitu *21 260

plurality Supreme aggravating subject found that the Florida invalid circumstance was Bobo, apply analysis analysis. could harmless error Court to harmless error State v. (Tenn.1987), reviewing imposed by when a death sentence 727 945 S.W.2d the State com- who, law, judge by introducing a trial as a matter of state mitted error evidence of an- erroneously nonstatutory aggra- considered a other murder for which the defendant had circumstance). vating aggrava- not been convicted to establish the ting circumstances of mass murder. con-We majority The Clemons did not consider beyond cluded that the error was harmless jury findings concerning mitigating written doubt, fully reasonable because the record necessary appel- circumstances for effective supported aggravators, two other valid reweighing analysis, late or harmless error mitigating little contained evidence cir- but instead commented: cumstances. impressed Nor are we with the claim that Cone, Again, jury findings concerning without written in State v. 665 S.W.2d 87 (Tenn.1984), mitigating appellate aggravating circumstances courts four circumstances however, perform proper jury; cannot their were found role. Fon- this Court Proffitt, upheld support zeo and found the evidence insufficient to we the Florida one permitting aggravators, death scheme a trial but concluded that judge jury’s beyond to override recommendation error was harmless a reasonable life, though clearly even there were no written doubt because the evidence estab- jury findings. appellate remaining aggravators An court also is lished the three found Workman, adequately any jury. able evaluate evidence See also State v. (error (Tenn.1984) relating mitigating admitting factors without the issue, jury findings. opinion specifi- an assistance of written evidence on ultimate cally presence statutory aggravating aof Clemons, U.S. S.Ct. at 1449. circumstance, beyond was harmless a reason- Black, case, Stringer In a more recent overwhelming because there was able. doubt — U.S. -, 117 L.Ed.2d remaining aggra- evidence the other four (1992), applied the Court stated that as vating paucity circumstances and a of evi- capital sentencing jury’s to a consideration of circumstances); mitigating dence of State v. factor, aggravating Chapman invalid (Tenn.1984) (error Campbell, 664 S.W.2d 281 requires harmless error standard that an admitting evidence of convictions for non- conclude, appellate beyond court a reason aggrava- violent felonies order to establish doubt, able the sentence would have ting prior felony circumstance of violent con- sentencing authority been the same had the beyond victions was harmless a reasonable given weight aggravating no to the invalid prior doubt because evidence of violent felo- — Id., at -, factor. U.S. S.Ct. ny support convictions was introduced to requirement deprive 1137. A lesser would aggravator, supporting the evidence the two precision the defendant that individu aggravating other circumstances was over- alized consideration demands. Id. More whelming, and there was no evidence of miti- over, “the bald assertion that an error of circumstances).9 gating constitutional dimensions was ‘harmless’ can principled explanation not substitute for a guarantee precision In order to how the court reached that conclusion.” So sentencing that individualized considerations — Florida, -, -, chor provide principled explanation demand and impor for our conclusion in each it is (O’Connor, concurring). J. tant, review, conducting error when harmless Court, Clemons, prior completely This the record for the concluded examine sentencing jury’s presence potentially influ- that a consideration of an of factors which Clemons, Bane, 489; Smith, 9. Since we have reviewed a number of 853 S.W.2d at 857 S.W.2d at capital 25; Evans, (Tenn. cases in which an invalid or unconstitu State v. tional circumstance was considered Middlebrooks, 322; 1992); 840 S.W.2d at sentencing jury, but have been unable to (Tenn.1991). Terry, 813 S.W.2d 420 See, e.g., conclude that the error was harmless. *22 courts,11 not dowe er, other state unlike ultimately imposed. ence the sentence determina- factor the to, prime the consider it include, limited the are not These but harmless be- error was ag- tion of whether strength remaining valid and number emphasis on doubt. circumstances, yond a reasonable ar- prosecutor’s gravating argument is during invalid circumstance sentencing, admitted gument the evidence at in our anal- considerations but one of several aggravator, and the the invalid to establish nature, strength mitigating ysis. quality and evidence.10 in harm significant factor The third factors, these examining the first of When ag invalid analysis is an whether less error of re necessarily consider the number

we was established gravating circumstance maining aggravating circumstances valid materially inaccurate that was evidence aggravating circumstances since the effect of aggra- only support the invalid to admissible sentencing usually increases with vator, otherwise the evidence was or whether even proven; circumstances but number of sentencing guilt or in either the admissible remaining more crucial than the sum Clemons, 494 U.S. proceeding. phases of the qualitative circumstances is the aggravating 1451, 5, n. 5. n. circumstance, its substance nature of each an invalid jury’s consideration of evaluating a quantum persuasiveness, as well as the and factor, important to ask it is aggravating respect, the proof supporting it. In that the sen- that factor from removal of whether impor assigns Tennessee statute no relative any removes evi consideration also tencer’s aggravating statutory tance to the various consideration, or jury’s total from the dence nature, By very their circumstances. invalid reliance on the the State’s whether however, cases, proof in certain under the jury improperly circumstance allowed may aggravating circumstances be some though the any Even evidence. consider objectively qualitatively persuasive and more aggravating weigh invalid jury cannot particularly others. That reliable than factors, any mitigating against factor aggravating circumstance remain true of the evidence of jury properly can consider ing in case. Tenn.Code Ann. 39-2- crime and the character circumstances of the 203(i)(2) (1982) (previous of felo convictions making an individualized of the defendant per involving use violence to the nies the death sentence of whether determination son). addition, present as the case illus aggrava respect, In that justified. Id. trates, aggravating circum the effect of the duplicates the elements ting factor which may where on the sentence increase stance ten has less relative underlying crime prior proof of more than one violent there is im affect the sentence dency prejudicially felony conviction. factors which aggravating posed than invalid into the sen factor, interject inadmissible evidence the extent to which

The second calculus, require the sen tencing or which aggrava- prosecutor emphasizes the invalid additional conclusions tencing jury to draw closing argument, is rele- ting during factor phase guilt evidence.12 analysis. Howev- from to the harmless error vant argued it was harmless because circumstance jurisdictions consider similar factors in 10. Other only valid exclusively one analysis. People almost conducting See harmless error State, remained); Nev. aggravator Beets v. Sanders, Cal.Rptr. 51 Cal.3d (court (1991) concluded that 821 P.2d (jury's of invalid consideration P.2d aggrava juiy’s of two invalid consideration prejudice de special circumstances did beyond a rea ting was harmless circumstances empha prosecutor did not fendant because were three other because there doubt sonable jury); argument to the size those factors in his evidence). mitigating aggravators and no State, (Fla.1990) (court valid 564 So.2d 120 Preston jury’s that the consideration could not conclude Sanders, People 51 Cal.3d 11. See aggravating circumstance of an invalid (1990); other Cal.Rptr. 797 P.2d 561 prosecutor emphasized error because harmless supra at note 10. cited cases importance in his of the invalid circumstance aggravating argument, only closing two valid State, Campbell, supra, remained); 12. But see Shell v. circumstances support the (Miss.1992) (court improper evidence was admitted could not con So.2d 1323 circumstance, yet the error aggravating invalid jury’s of invalid clude consideration Finally, mitiga- all the relevant evidence CONCLUSION fully applying tion must be considered in carefully We have considered the defen- analysis guarantee harmless error alleged dant’s contentions as to the errors defendant receives an individualized sentenc- occurring during guilt sentencing — ing Stringer, determination. phases and conclude the defendant’s convic- -, 112 S.Ct. at 1137. As in the case of the tion and death sentence should be affirmed. *23 remaining statutory aggravating valid cir- of accordance with the mandate Tenn. cumstance, quantum we examine both the 39-2-205(c)(4)(D) (1982) § [now Code Ann. quality mitigating present- and of the factors 13—206(c)(1)(D) Tenn.Code Ann. by proof. 39— ed (1991)], we find that the sentence death present support- the evidence fashion, imposed arbitrary not in was ing remaining aggravating prior factor of overwhelmingly supports the evidence felony undisputed violent convictions is jury’s finding statutory aggravating of the overwhelming. In addition to the cold-blood- circumstance, supports and that the evidence execution-style Kennedy ed murder of in jury’s finding any of the absence of miti Tennessee, Memphis, the defendant commit- gating sufficiently circumstances substantial ted another similar cold-blooded execution- outweigh aggravating circumstance. style twenty-four murder in Oklahoma within Further, comparative proportionality our re Kennedy’s hours of murder. Less than thir- view reveals that the sentence in this case is later, ty days he committed an armed rob- disproportionate neither excessive nor to the bery engaged in Florida and later in a shoot- cases, penalty imposed considering in similar police capture, out with officers before his both the nature of the crime and character attempted which he was convicted of murder. Boyd, the defendant. See State v. 797 earlier, years A few he had been convicted in Johnson, (Tenn.1990); v. S.W.2d State Moreover, Wyoming robbery. for armed Bobo, (Tenn.1988); 762 S.W.2d 110 v. State prosecutor’s argument strongly emphasized (Tenn.1987); King, State convictions, felony the defendant’s violent (Tenn.1985); McKay, S.W.2d emphasis robbery. with little on the armed (Tenn.1985); v. Har S.W.2d State Furthermore, evidence, any no additional nor ries, (Tenn.1983); and State already properly evidence that was not be- Simon, (Tenn.1982). 635 S.W.2d 498 jury, support fore the was introduced in aggravating the invalid circumstance. Final- We, therefore, affirm the conviction of ly, mitigating in evidence this case fo- first-degree felony murder and the sentence cused on environmental conditions in child- of death. The sentence will be carried out as psychological testing hood and which was February, provided by day 10th law the interpreted damage. to demonstrate brain by this unless otherwise ordered Court This, turn, according psychologist, in proper authority. of this other Costs impaired judgment the defendant’s and abili- defendant, appeal against are assessed ty appreciate wrong. his conduct was Ex- Wayne Michael Howell. however, testing, tensive medical failed damage. show the claimed brain There was JJ., O’BRIEN, concur. DROWOTA virtually mitigating relating no evidence defendant, good character of the other DAUGHTREY, J., concurring in the explain than the evidence offered to his anti- only. results social behavior. REID, C.J., concurring separate see record, After careful review we opinion. beyond a conclude reasonable doubt that the sentence would have been the same had the REID, Justice, concurring. Chief jury given weight felony no to the invalid factor, affirming in of first and we affirm the I concur the conviction degree the sentence of death. sentence death. murder and beyond was harmless a reasonable doubt based on the record in that case. scope rights history has discussed September the Court

Since provision in constitutional appeal protected direct cases reviewed on twelve punishment: I against which sentence was death.1 stated cruel unusual Black, 815 dissent the constitutional scope The exact (Tenn.1991), case on I sat the first unusual” has been phrase “cruel and affirmed, of death was which the sentence poli- But the basic detailed this Court. imposition of is cruel death whether firmly estab- cy words reflected these Arti- punishment violation of unusual tradition of Anglo-American lished in the I, cle 16 of Tennessee Constitu- Section justice. in our Con- phrase criminal tion reserved until the Court is should be directly from the En- stitution taken presented there no errors a case which are 1688, and glish Rights of Declaration of requiring of the conviction or sen- reversal can be traced back principle represents it first The case before the Court is the tence. *24 concept basic Magna The Carta. is, my participated in in which I have underlying Eighth the Amendment noth- sufficiently opinion, require free of error to ing dignity of man. While less than the that basic consideration of issue. punish, power State has the Attorney The District General and counsel to assure that this Amendment stands obviously well-pre- for defendant were the limits of power be within exercised trial; pared prosecution presented standards_ recog- civilized The Court dignified in a forceful but fair case and States, 217 [Weems nized v. United U.S. lawyers put for the manner. The 349, 544, ] 30 54 L.Ed. 793 S.Ct. proof every its issue and State to not pre- the words the Amendment are every opportunity apparent utilized for the cise, scope and their is not static. judge the defendant. The trial benefit of meaning The must draw its Amendment qualities critically impor- demonstrated the decency evolving from the standards of conducting highly tant a emotional maturing progress that mark of a soci- legally exacting trial. record shows that ety. a competent case was decided 153, 171-173, Gregg Georgia, v. impartial jury. The record demonstrates 2924-2925, 2909, 96 49 L.Ed.2d 859 S.Ct. relatively that capital cases can be tried free (1976), expanded upon Supreme Court of error. requirements Eighth Amendment I in the decision to concur affirm the sen- of the United States Constitution: tence, penalty not because Tennessee death forbidding Thus the “cruel un- Clause law, my opinion, now meets constitutional punishments usual” “is not fastened standards, procedures but because the fol- meaning pub- as may acquire obsolete but proven and the facts ease satis- lowed enlightened opinion lic hu- becomes fy constitutionally the essentials of a valid States, justice.” mane v. United [Weems system. separately I write discuss 378, 553].... 217 U.S. at 30 S.Ct. and, constitutionality penalty of the death case, of this deficiencies in Ten- context penalty jurisprudence. foregoing precedents nessee’s death It is clear from has not Eighth Amendment been CONSTITUTIONALITY OF concept. As regarded a static Mr. DEATH PENALTY said, oft-quoted in an Chief Justice Warren Dulles, Trop phrase, must draw its non-capital v. 356 Amendment “[t]he 590, evolving 86, 99-100, meaning standards of 78 2 L.Ed.2d from the U.S. (1958), decency progress of a that mark the ma- Supreme 630 the United States Court Hale, (Tenn.1992); Tran, (Tenn.1993); 840 State v. Har 864 S.W.2d 465 S.W.2d 307 State v. Evans, ris, (Tenn.1992); Smith, (Tenn.1993); v. State 857 S.W.2d 1 State State v. Brown, Branam, (Tenn.1992); (Tenn.1993); State v. v. 838 S.W.2d 185 v. 855 S.W.2d 563 State Black, (Tenn.1993); (Tenn.1992); State v. Caughron, S.W.2d 526 State v. Bane, (Tenn.1993); (Tenn.1991); Terry, v. Mid S.W.2d 166 853 S.W.2d 483 State dlebrooks, (Tenn.1991). (Tenn.1992); S.W.2d 420 840 S.W.2d 317 Dulles,

taring society.” Trop rejected penalty appro- the death as an [356 597]. 78 S.Ct. at See also Jackson priate necessary criminal sanction. The (CA8 1968). Bishop, 404 F.2d Supreme “in Court concluded that the ab- California, Cf. Robinson v. [370 U.S. evidence, convincing sence of more ... death punishment as a for murder is not without (1962) Thus, an ]. assessment contem justification unconstitutionally and thus is not porary concerning values the infliction of a severe.” 428 U.S. at 96 S.Ct. at 2931. challenged ap sanction relevant to the Consequently, under the federal constitu- plication Eighth of the Amendment. As tion, properly when made an issue develop fully, infra, we below more see pleadings proof, the determination of 2926-2927, this not call assessment does capital punishment whether constitutes cruel subjective judgment. requires, for a It punishment requires and unusual an assess- rather, objective that we look to indicia contemporary ment of values Tennessee public that reflect the attitude toward concerning imposition penalty given sanction. particular death offense. That assess- pub But our cases also make clear that subjective ment cannot be but must include perceptions decency lic of standards of objective the consideration of indicia which respect to criminal sanctions are not However, public public reflect the attitude. conclusive. A also must accord conclusive; attitude is not the assessment man,” dignity with “the is the *25 dignity must also be human consistent with concept underlying Eighth “basic the finding capital pun- and must include a Dulles, Trop Amendment.” v. [356 U.S. at particular ishment for the offense accom- 100, (plurality opinion). at 597] 78 S.Ct. plishes purpose. some beneficial social A means, least, punishment This that the analysis performed similar must be under pun not be “excessive.” a form of When constitution, if the state even this Court (in case, ishment in the abstract determining should find that the standard for may capital punishment whether be ever capital punishment whether is cruel and un- murder) imposed as a sanction for rather higher required by usual is than that (the particular than in propriety Black, federal constitution. v. See State penalty applied death as a to be to a (Tenn.1991). cases, 166, 189 both crime) specific specific defendant for a there are factual issues that can be resolved consideration, inquiry under into “ex- only by proof. these issues First, Since are aspects. cessiveness” has two pleadings proof addressed in this punishment must not involve the unneces sary there is no basis on which this Court pain. infliction and wanton Fur 238, 392-93, contemporary can make an assessment Georgia, man v. [408 U.S. 2726, 2805-06, in values Tennessee under the United States S.Ct. 33 L.Ed.2d 346

(1972) C.J., Constitution or the (Burger, dissenting). Tennessee Constitution. ] See (9 Otto) Utah, Wilkerson v. U.S. [99 (1878); 136, 25 L.Ed. 345 v. Weems United PENALTY DEFICIENCIES IN DEATH States, [217 554]. U.S. S.Ct. JURISPRUDENCE Second, punishment gross not be must law, state and this Court Under federal severity ly proportion out of of the development responsibility bears the for the Dulles, Trop [356 crime. v. U.S. at imposition system penalty of a of death (dictum); (plurality opinion) 597] S.Ct. at jurisprudence which meets all constitutional States, v. United U.S. at [217 Weems statutory My requirements. view as to 30 S.Ct. at 549]. duty regard of the Court in this was set Gregg Georgia, Supreme v. Court forth State v. Black: that,

rejected though the contention histori- circumstances, particularly Under these cally the death had been the law was, light punishment, every implicitly, of the nature of the state and at least rec- judicial system, and ognized by language Eighth imperfection of the Amendment, society contemporary had in the broad discretion vested the district then, State, committed; is com the defendant v. fense

attorneys general of this see State offenders; 126, 136, Dicks, death-eligible pared 140-141 with other [615 (Tenn.1981) ], and, last, this Court assert its should and the criminal acts defendant authority under the independent compared full and are the sentence is based pro- to assure Constitution and acts commit other similar offenders with “ whereby a defendant sentenced to cess helps a ‘reasoned process This achieve ted. essentially free of This death is error. back response to the defendant’s moral ” Court, through appel- the exercise of strict crime,’ Penry character, see v. ground, review, require stringent and must late 302, 318, Lynaugh, 492 U.S. compliance with the Tennessee Con- exact (1989) (quoting Cali 106 L.Ed.2d 256 and state The United stitution statutes. 538, 545, Brown, S.Ct. fornia repeatedly Supreme Court has em- States (O’Connor, (1987) J., 837, 841, 93 L.Ed.2d 934 phasized importance meaningful ap- concurring) original)), and is (emphasis pellate protect against review to the unlaw- only designed to for execution those select penalty. imposition ful of the death See death, the worst of the deserving most 862, 876, Stephens, [462 U.S. Zant bad. (1983) 2733, 2742, ]; 77 L.Ed.2d 235 S.Ct. Florida, 939, 973, 103 Barclay [463 THE DEATH- DEFINING ] ELIGIBLE CLASS (“the J., (Stevens, concurring) question is whether, regular practice, in its Flori- Review of a case which Supreme Court has become a rubber da logically begins to death has been sentenced stamp death-penalty court deter- lower of the class of death- definition minations.”). eligible defendants under the United States Black, Eighth Constitution. and Four S.W.2d at 194-95. Since State v. Under Amendments, dispropor has addressed some of the more teenth death is Court *26 significant except in punishment deficiencies Tennessee death tionate in all cases where but, resolved, kills, kill, penalty attempts have been or law. Some a defendant intends view, my ignored in or killing others have been lethal place, that a take or that force superficially. per treated imposed, a defendant’s will be or where felony underlying sonal in the is involvement involves, of Review of a sentence death a substantial and who exhibits reckless disre assignments by to the made addition error gard or to the value of human indifference by parties, the examination the Court Arizona, 137, life. Tison 481 U.S. 157- v. aspects three critical ease. See State 158, 1676, 1688, L.Ed.2d 107 S.Ct. Middlebrooks, 317, (1992), v. 840 S.W.2d Florida, 782, (1987); Enmund v. (Reid, C.J., concurring dissenting). The 797, 3368, 3377, 73 L.Ed.2d 1140 102 S.Ct. step the determination sen- first is Branam, 563, (1982); State v. disproportionate tence of death is not to the Middlebrooks, (Tenn.1993); committed, 570-71 State v. thereby establishing crime (Tenn.1992). 317, death-eligible as a member of the step The class of offenders. Id. second group Superimposed upon this defined narrowing of whether determination constitutional and defendants are additional process among has shown the defendant is statutory The federal constitu limitations. death-eligible Id. at worst of class. permit tion does not all murderers step comparative is a 351-52. The third pro death-eligible The class to be executed. whereby proportionality review the Court Supreme cess fashioned the United States finds, upon consideration the defendant ultimately selecting will Court for those who offense, that the sentence of death is v. in State Mid be executed was summarized penalties imposed disproportionate dlebrooks as follows: Proportion- Id. at 354-55. similar cases. necessary step first fairness, constitutionally a ality, As princi- measure of as a Amendment, First, Eighth under the Su- ple review. guiding the Court’s required the states to compared preme of- Court has of death is with the sentence Indeed, Assembly narrow the sentencers’ consideration of the the General has clear smaller, penalty culpable ly death to a more indicated that when a defendant’s life is stake, pre- class of homicide than citizens of defendants Tennessee are entitled Fmrman class of death-eligible greater protections guaran than murderers. those Harris, Pulley v. 37, See teed the United States Constitution. [465 (1984) 871, state, Recognizing higher than 79 L.Ed.2d 29 A standards ]. S.Ct. however, Supreme United States Court has found in only genuinely must not narrow defendants, reflecting the federal constitution and eligible the class of death but higher “contemporary standard of decen way reasonably justi- must do so Tennessee, cy” legislature has for imposition fies the of a more severe sen- persons bidden the execution of who are compared tence the defendant to others age eighteen, § under the T.C.A. 37-1- Stephens, of murder. Zant v. guilty found 134(a)(1), retarded, mentally and who are 877, A [462 U.S. 103 S.Ct. at 2742]. Compare T.C.A. 39-13-203. device, therefore, proper narrowing pro- Stanford Kentucky, [492 U.S. 2969, 109 S.Ct. principled way distinguish vides a (Eighth 106 L.Ed.2d 306 ] Amend case in penalty which the death was im- by imposition ment is not violated of death posed many from cases which it was olds); Pen year on sixteen and seventeen not, Godfrey Georgia, [446 U.S. ry Lynaugh, [492 U.S. 109 S.Ct. 64 L.Ed.2d 398 (1989)] (Eighth (1980)], and must differentiate a death prohibit subjecting Amendment does not even-handed, objective, in an case mentally pen retarded defendant to death substantially way rational from the alty). many murder eases in which the death Zant penalty may imposed. [462 not be 815 S.W.2d at 193. As U.S. at 2744]. Black, Court, since has also narrowed result, proper narrowing device insures group death-eligible defendants that, though even some defendants who finding disproportionate penal- death to be a fall within the restricted class of death- Branam, In ty. 855 S.W.2d 563 eligible manage defendants to avoid the (Tenn.1993), the Court found in a unanimous penalty, death those who it receive will be that, decision under the circumstances of that among the worst murderers —those whose disproportionate punishment death was serious, particularly crimes are accomplice trigger- who was not the *27 penalty peculiarly ap-

which the death is felony inman murder. The Court found in Gregg Georgia, [428 See propriate. Hale, (Tenn.1992), State v. 840 307 S.W.2d ]. S.Ct. disproportionate punishment that death was causing for misdemeanor child abuse Thus, 840 S.W.2d at 343. this Court has death of the child. recognized that the United States Constitu- significant by The most decision the Court death-eligible tion defines the class of defen- Middlebrooks, was State v. S.W.2d requires narrowing by but further dants also (Tenn.1992), ag the use of which addressed or statute court review. gravating the death- circumstances to narrow The State of Tennessee has constitution eligible for whom class those defendants and statute further those are limited who imposition ap the death is most death-eligible. in in As noted the dissent Middlebrooks the Court held propriate. State v. Black: felony aggravating that because the murder 2—203(i)(7)(1982) circumstance, § Tennessee constitutional standards are T.C.A. 39— 39-13-204(i)(7) ], step (Supp.1993) in [now not destined to walk lock with the essential fluctuating ly duplicated of the offense of uncertain and federal standards the elements murder, felony § relegate degree and do not Tennessee citizens to first T.C.A. 39-2- 202(a) (1982) 39-2-202(a)(1) § protec- and the lowest levels constitutional T.C.A. tion, popula guaranteed (Supp.1988), those the national con- it failed to narrow death-eligible felony murder defen- stitution. tion of the class fail to narrow Eighth circumstances that by the Amendment required dants Middlebrooks, not unconstitutional. I, for other reasons are Article Section and majority from the logical conclusion felony aggravating murder as an eliminating any provi- analysis be that Opinion’s would first-degree felony murder circumstance accomplish fails to of the statute that accomplished signifi- sion prosecutions, has two narrow imperative to the constitutional category It adds a new cant results. class invalid. imposi- immune from the who are defendants of death in those cases tion of the sentence at 352. Id. charged are first-de- where defendants with Middlebrooks, authority of On the gree only aggravating and the felony murder the sentence of subsequently Court reversed and, felony; is the it eliminates circumstance resentencing in for death remanded felony aggravating murder as an circum- (Tenn.1993), Bane, 853 S.W.2d selecting death-eligible those defen- stance circumstances found aggravating which the deserving are most of the sen- dants who 39-13-204(i)(5), by the were T.C.A. in those cases other tence of death where heinous, especially atrocious the murder was are aggravating present. circumstances cruel, murder; (i)(7), felony or However, only accomplished Middlebrooks (Tenn.1992), Evans, in which My partial and dis- solution. concurrence (i)(6), aggravating were circumstances sent in that case stated: murder committed to avoid lawful was murder; I, (i)(7) felony and State v. holding based on Article Section arrest and

This (Tenn.1993), Smith, step 16 of the Tennessee Constitution is (i)(2), jury’s aggravating in im circumstances were limiting the discretion toward (i)(7), convictions, felony posing capital punishment previous felony to a “demon not, strably blameworthy” smaller and more murder. The defendant Smith view, Maynard my death-eligible, murderers. because record class of v. Cart killing wright, 100 did not show that the was deliberate [486 U.S. (1988) However, by a accompanied or intentional conscious ]. L.Ed.2d 372 even or or a felony purpose producing murder circum death conscious eliminated, likely would occur. stance sentenc realization that death Tennessee Middlebrooks, includes in at 353. ing statute still the class of See death-eligible defendants accidental constitution al summary, the federal culpability unintentional murderers whose prosecution to seek a sentence of lows minimal. It still allows convictions kills, himself any death for defendant who felony degree persons first who kill, killing attempts to intends that take or accidentally unintentionally or killed imposed, will be or place or lethal force kill, who did not did not intend to kill those any personal involve defendant whose any person not intend that suffer and did felony underlying in the is substantial ment any physical harm. The statute still does disregard a reckless and who exhibits effectively limit of death- class human value of life. indifference to the *28 (which is eligible group defendants dif However, prohibits § 39-13-203 T.C.A. executed) actually to ferent from those mentally upon any imposition of re death deserving punish of those most death as 37-1-134(a)(1)(A) person; § tarded T.C.A therefore, and, it the Tennes ment violates upon any imposition of death prohibits the prohibition against constitutional cruel see age; person years less of State v. than 18 punishment. and unusual Branam, 570, raises the level 855 S.W.2d (Reid, J., concurring at 350 C. and 840 S.W.2d participation required of a defendant who of majori- dissenting). I further criticized the agent personally the lethal and did not wield ty’s reasoning because: persons from may be to exclude such read Hale, illogical: death-eligible group; and State aggravating ... is

The result any person excludes who that fails to the class 840 S.W.2d at circumstance narrow by the commis caused the of another duplicates it the elements of the death because unconstitutional, felony. not a Middle- sion of an act which is aggravating offense is but 268 any person charged eligible

brooks excludes with fel- the worst of the death class. There ony charged ag- support murder and not with some should be sufficient evidence to each gravating aggravating circumstance other than T.C.A. circumstance found. More than 13—204(i)(7), § felony aggravating murder. one Neverthe- circumstance should not be 39— less, the class still includes some based on of defendants the same acts the defendant. accidentally State, unintentionally who killed or and See Provence v. 337 So.2d kill, kill, (Fla.1976); Carter, those who did not not did intend but see also State v. (Tenn.1986). any person Aggravating did intend suffer S.W.2d cir physical felony harm. I factually would limit the mur- cumstances which are inconsistent eligible imposition given derers for the of the death should not be effect. See State v. cases, Black, penalty (Reid, C.J., those defendants like the at 197 concur S.W.2d present, proof ring killing dissenting). jury which the shows the The should be accompanied meaning was deliberate or intentional or aggra instructed as to the of each purpose producing vating jury conscious death or circumstance so as aid the See, Hines, likely application. e.g., a conscious realization that death its will State v. (Tenn.1988); occur. S.W.2d State v. Williams, (Tenn. The record in this ease shows the defen- 1985); Moore, State v. 350- death-eligible dant is a member of the class (Tenn.1981). under both the federal and state constitu- tions. The defendant’s own statement shows problems The often associated with the killing was deliberate or intentional. application aggravating definition and cir present cumstances are not in this even OF AND USE AGGRAVATING MITIGAT- though aggravating one invalid circumstance ING CIRCUMSTANCES TO ACCOM- charged. charged The defendant was PLISH PARTICULARIZED SEN- aggravating § circumstances T.C.A. 39- TENCING 13-204(i)(2),having previously been convicted involving one or more felonies violence to stage At the second of the death (i)(6), person; committing the murder to procedure, jury required at which the prevent prosecution lawful arrest aggravating mitigating consider circum- defendant; (i)(7), committing particularized stances in order to achieve during felony. the course of a sentencing, given the Court has not sufficient (i)(2) jury aggravating found circumstances guidance aggravating in the use and miti- (i)(7). (i)(7) Aggravating circumstance has, gating circumstances. The Court in- Middlebrooks, was found in stead, me, it seems to searched for some 341-47, aggrava to be an invalid basis on which to affirm the sentence ting charge circumstance on the of first- despite aggravating death a misuse of cir- murder, degree felony and the case was re cumstances, by finding most often of harm- However, re-sentencing. manded for less error. charging Court has found in this case that constitutionally This mandated function is (i)(7) error, affirmed was harmless and has accomplished by requiring jury to find the sentence of death. beyond a reasonable doubt existence of statutory aggravating previously one or more circum- I have indicated that harmless that, doubt, beyond analysis inappropriate stances and error one reasonable whenever outweigh any aggravating circumstances found circumstances mitigating appeal. I circumstances. T.C.A. 39-13- is found to be invalid on *29 204(g). Implicit regard in this is that exercise the ration- still subscribe to view with by previous al consideration of the substance of each cases considered the Court and aggravating mitigating and circumstance and in all cases where the Court must make a subjective regarding understanding practical of their use in decision the effect of accomplishing purpose aggravating the stated of deter- the circumstance found to be However, though in the mining only that the defendant is not a mem- harmless. even case, class, improperly eligible present of but also one of the court submitted ber the death

269 ordeal, as fourteen-year-old of The victim’s jury aggravating the the circumstance murder, 39-13-204(i)(7), majority opinion, began at § I in the felony T.C.A. described majority’s finding p.m. that brutal in the under and ended at 11 This p.m. concur 7:30 certainly this this error was one of the tragic the circumstances murder is and of doubt, beyond a and harmless reasonable of the bad.” “worst would have been the same sentence (Drowota, concurring and dis- J. Id. aggravating circumstance not had the invalid However, no there was insistence senting). Black, Stringer charged. v. been aggrava- of in the that the admission dissent -, -, 1130, 1137, 117 L.Ed.2d S.Ct. error, (i)(7), harm- ting if was circumstance less error. analysis The error issue harmless “principled a opinion undertakes The main beyond can that whether the Court conclude explanation” its that of conclusion admission aggravating a reasonable doubt the invalid aggravating circumstance was of invalid the jury did not influence the in its circumstance beyond a That reasonable doubt. harmless determination that the sentence would be quali- explanation “quantum is that the -, death. 503 U.S. at Id. ty” aggravation of all relevant evidence 1136. issue is not extent The fully must mitigation be examined and mitigating circum- aggravating objective problem The with this considered. supported by stances the evidence or were jurors not procedure that are logical aggravating whether the circumstances out- objective logical required or in deter- to be weighed mitigating A circumstances. mining sentence. This Court State finding support that the evidence (Tenn.1991), Terry, unani- S.W.2d 420 aggravating valid was over- circumstance that the erroneous instruction mously found mitigation whelming and the was evidence (i)(7) not aggravating circumstance was does, meager may, support this case beyond a reasonable doubt. harmless error jury’s finding beyond that a reasonable Pritchett, stated, quoting Court aggravating doubt circumstance out- (Tenn.1981), weighed mitigating circumstances, it but way knowing no and cannot We have necessarily does not was follow im- speculate jury would whether the have aggravating cir- influenced invalid posed death with one of the And, further, must cumstance. the Court aggravating circumstances withdrawn two aggra- that admission the invalid conclude and with the ne- from their consideration vating circumstance harmless be- error ag- cessity weighing remaining one sup- fore it can consider whether the record against miti- gravating circumstance ports jury’s finding aggravating cir- gating circumstances. outweighed mitigating cumstances circum- stances. Terry, at 425. Middlebrooks, that: the Court found lives of whether a defendant The decision though amply supports

Even the evidence “requires profoundly or moral evalua- dies crime,” aggravating circumstance of the mur- tion of the defendant’s character and heinous, atrocious, being especially sentencer, der in which the constitutional cruel or depravi- mandate, in that it involved torture “is afforded discretion.” substantial mind, ty Texas, Ann. Tenn.Code 39-2- Satterwhite 203(i)(5) (1982), we are unable conclude S.Ct. J., (Marshall, cir- dissenting). the elimination of (i)(7) beyond is harmless error

cumstance capi- character of a of the moral Because doubt. reasonable sentencing and the sub- tal determination The dissent Middle- in the placed hands stantial discretion emphasized sentencer, brooks that: of a predicting the reaction proceeding untainted kidnapped child sentencer This torture-murder of a cold on the basis of a unquestionably aggra- most constitutional error is one of the dangerously speculative enter- killings that Court has seen. record is vated *30 prise. recognized As the Court in Cald decision. It is on this I basis that concur Mississippi, 320, 330, well v. finding U.S. 105 with the of harmless error in this 2633, 2640, (1985), S.Ct. 86 L.Ed.2d 231 case.

Id. 407 (Marshall, J., dissenting). have its where. tencer untainted error decision The threat of an erroneous harmless-error Harmless-error on the determination thus looms much L.Ed.2d 83 McCleskey predictability.” S.Ct., violate a defendant’s is nowhere tence is marked rors gives lective Court of evidence that when experience, of human nature and varieties of human tion. tutional error on a subjective, sider can be “[w]hatever equipped to evaluate the effect of a consti judgment the same capital sentencing perhaps unknowable,’ ^[*] done bring for an actual guided reliability acknowledged Such judgment gleaned by allowing 1776-1777, quoting its 493, 503, instruction or a ^[*] to their deliberations and the sentencing 95 L.Ed.2d 262 intangibles apparent of what the sentencer would the absence of constitutional vein, sentencing Kemp, range analysis from an Id., channeled, ^[*] (opinion of the is later determined to 92 S.Ct. an judgment sentencing a court to substitute an “inherent lack of that “[i]ndividual constitutional error. weight of which is unknown constitutional appellate 92 S.Ct. at in the record. [481 U.S. context than else determination, capital sentencing impinges directly ^[*] appellate U.S., judgments, appropriate jury significant piece ” 2163, 2169, Peters v. are and their col Marshall, a sentencer (1987)], of the sen- ^[*] might determina court is ill inherently larger ‘qualities record.” rights Kiff, even n sen con J.). few ju jury’s would were was convicted. As a dicial error on this was thus nothing numerically, mission cumstance did not ing. Consequently, there was no inadmissi cumstances rather than one. ble evidence that could have affected the cutor The evidence of the offense and its nature Clemons v. jury sentence of death is warranted. See T.C.A. prove the elements of the crime. Submission of the ting circumstance that nature, facts and circumstances of the crime they upon guilt phase even if the State had not relied exposed the sentencers to no evidence which our statute and the federal stated in the main evidence sent error at not otherwise have come before them. Cf. other offenses analysis sentencers to consider evidence that would 1992) 39-13-204(c) The most making permissible would not have can regarding decision. require felony (Reid, C.J., dissenting) of the that was Harris, properly is whether the error in support properly aggravating its determination as to whether a Mississippi, there were two significant offense of which the defendant guilt phase). the absolute not the invalid 839 S.W.2d at with reference to the com (formerly before the go beyond opinion,3 consider evidence of the properly appropriate, super-technical ground argument of the invalid result, aggravator properly circumstance. Under fact 494 U.S. not rejection aggravating constitution, jury statements that In this before § 39— Finding preju harmless error permitted jury of the 54, heard at the admissible to (evidence jury except at sentenc 2—203(c)); 738, 748, heard no aggrava jury case, (1990). of the prose (Tenn. heard jury cir cir ab However, though even principle Court cannot harmless error found Rule 52 reasonably impact discover the of erroneous- of the Tennessee Rules of Criminal Proce ly 36(b) essentially considered material on an sub- dure and Rule Rules Tennessee decision,2 jective beyond a court can Appellate conclude Procedure. there was in Where but, reasonable doubt that there was no evi- fact error as in this the error could dence before a which could influence its jury, not have the verdict of the it is affected Comment, Deadly supra p. 2. See Mistakes: Harmless Er- 3. See Capital Sentencing, University ror in Chica- go Law Review 740 *31 death, opinion in the in as Court’s appropriate to find the error was harmless tenced case, similarity to in which the this its cases beyond a reasonable doubt. and, imposed, of death was not sentence aggravating cir No is made of the issue not not thus, any could be disproportionality, found 39-13- cumstance under T.C.A. determination, the ed. To make this Court 204(i)(2). The record shows that the defen murder cases degree examine first must also supporting this ag prior dant’s convictions im in of death is not which the sentence gravating circumstance were two convictions in posed. Limiting to those cases review robbery, of first of armed one conviction given of death com which a sentence was degree attempt and one conviction only the pares case under the review degree The to commit first murder. evi death-eligibility in as discussed standard mitigation meager. According dence in analysis. p. The step Supra, of the 265. one supports I ly, that the record the concur in v. Mid observation was made same jury’s finding the circum that dlebrooks: outweighed mitigating the circum stance obviously The Court has substituted imposition stances and the sentence of required proportionality at this review death. stage proceedings finding a third of the proof shows defendant to be COMPARATIVE PROPORTIONALITY which, group death-eligible of the member REVIEW Ten- constitution under federal deficiency in in greatest The this statute, includes eases in all which nessee present applied penalty death law as in proof standard of meets threshold state, meaning this is the total absence of practice This is ac- reckless indifference. exacting comparative proportionality ful and knowledged by in the statement Justice defining capital review. Where the statute penalty death is Drowota’s dissent narrowing, accomplish offense does not as punishment long so disproportionate not, comparative the Tennessee statute does of En- the reckless indifference standard component proportionality analysis is a vital Drowota, J., is mund Tison met. imposition in the constitutional of the death dissenting Consequently, at 349. Arizona, penalty. See Walton v. 497 U.S. punishment dis- Court has not found the 110 S.Ct. any of proportionate in the 84 cases (1990); McCleskey Kemp, 481 U.S. im- has which the sentence death been (1987); L.Ed.2d 262 Pul posed This alone since 1977. fact would Harris, ley v. pro- been suggest there has no effective L.Ed.2d portionality appeal. review comparative proportionality review conclusory this case consisted of state- ment, “Further, comparative proportion- beyond in which the our The need to look cases ality jury actually imposed a sentence death review reveals sentence this proportionality nor valid review disproportionate case neither excessive order to assure cases, imposed recognized Supreme in Rule 12 of the similar con- Rule infor- sidering the nature of crime and Court Rules. This sets forth the both of- regarding the defendant character of defendant.” This statement mation judge, on to a furnished the trial is followed citation series other fense comparative proportion- penalty was im- bases its cases in which the death Court ality requires Rule posed. revealing the lack of review. The addition first-degree any comparative report completed “in all mur- be articulated standard for Harris, review, or a imprisonment der proportionality see State v. cases which life C.J., (Reid, dissenting), imposed.” (Emphasis at 85 death is sentence all implicitly It establishes opinion supplied.) court’s also reflects a misunder- thus basic resulting degree in first murder convic- standing purpose of such review. If cases only to which this compared under as the universe cases the case review is tions determining look when whether cases in which the defendant has been sen- Court must *32 sentence of proportionate.4 Regard death is requires a dissent. It the formulation of whether, less of as some defendants have implementation standards and the proce- argued, provides Rule 12 an insufficient collecting basis dures for comparing and cases and for the comparative proportionality Court’s accomplished by can be only action of the 13—206(c)(1)(D) review under T.C.A. court. 39— (Supp.1991), the record shows that the ma Nevertheless, despite the deficiencies in jority present has not in the appeal followed procedure and information for a available Barber, Compare the Rule. State v. proper comparative review, proportionality 659, (Tenn.1988) (reviewing 664-665 comparison of the character of the defendant imprisonment cases in which life and sen crime, this case and the nature of his imposed). tences of death were any analysis, standard of would show that he deficiency Another in the compara- among Court’s is the worst of the bad. From the proportionality tive review is opening the absence of proof, lines of the which is discussed any process determining geographic for if opinion, or in detail in the main the defendant is patterns racial charging prosecuting and possess shown to the characteristics most capital cases arbitrary demonstrate an repulsive society’s exer- decency, sense of and prosecutorial cise of the function. The very Court most destructive to society. fabric of respect must discretionary powers proclamation broad His “going he was down given prosecutors. However, the statutes taking hard this time” and he would “be require and the constitution consistency him,” people some evinces a total disre- reliability in the capital life, administration of spect others, for his own and that of punishment. Oklahoma, Eddings See arrogant 455 an and callous defiance of an or- 104, 110, 869, 874, U.S. 102 S.Ct. 71 L.Ed.2d society, dered dangerous by made a fatalistic (1982). That responsibility ultimate eagerness rests for violence. The immediate and though on the Court. Even statistical procurement infor- efficient weapon shows a mation alone regarding prose- deadly number of purpose. quick, deliberate and His county judicial calculated, cutions may district weapon but against use of the not be a reliable determining stranger demonstrates, standard for at the market in tra- being the death arbitrarily legal language, ditional a heart bent on fatal capriciously imposed, the court should mischief. collect and review that information which weapon The defendant’s deification of the may adoption demonstrate the need for the exposed as Jesus Christ a consummate con- procedure of a that would ensure the avoid- tempt morality gratuitous and a defile- any ance of extraneous influences from the immorality ment of the sacred. His utter race, sex, or status of the defendant or vic- matched the efficient casualness tim, or prosecute the resources available to murders, again once to obtain $111.16 or defend a case. possession obtain aof vehicle. The deliber- adequate

An comparative clerk, structure for ateness of the murder of the market proportionality murder, review cannot be forth in purpose set his reasoned for the and the question appropriate 4. The proportionality procedures universe for review comparative proportionality analysis in death employed by Jersey Supreme the New Court in penalty Marshall, thoroughly cases is reviewed in State v. See, Marshall and the courts of other states. 109, (1992). 130 N.J. 613 A.2d 1059 State, 1078, e.g., Dawson v. 581 A.d 1109-1110 adopted While Marshall a broader universe than - (Del.1990), grounds, vacated on other U.S. 12, jurisdic that contained in Rule some other -, 1093, (1992); 112 S.Ct. 117 L.Ed.2d 309 tions have limited themselves to a review of cases State, 616, 422, Godfrey 248 Ga. 284 S.E.2d resulting degree in first murder convictions. See (1980); 181, Cummings, State v. 323 N.C. Moore, 457, e.g., State v. 210 Neb. 316 N.W.2d 541, (1988), 372 S.E.2d 551-553 vacated on other denied, 984, 2260, cert. 456 U.S. 102 S.Ct. 1021, 1464, grounds, 494 U.S. 110 S.Ct. (1982); Rupe, 72 L.Ed.2d 864 (1990); Frey, L.Ed.2d 602 Commonwealth v. 210, Wash.2d denied, 743 P.2d cert. 700, 707-709, denied, Pa. 475 A.2d cert. 108 S.Ct. (1984); L.Ed.2d 934 Rupe, 743 P.2d at 228-230. comparison cursory I also note for with the comparative proportionality analysis applied in life, enormity contempt moral val- of Ms up are in Ms divine summed

ues Johnson, “Yeah, he witness statement to the safe, I open so I him would wouldn’t told Even the him to Jesus introduce Christ.” the defendant pages the record show cold *33 danger against the embodiment be people are the most defenseless —de- unmitigat- meaningless violence liberate but ordinary human frailties of ed even the fear, jealousy, or anger, greed. circumstance, The valid in- prior defendant’s convictions felomes person, volving T.C.A. 39- violence 13-204(i)(2), compelling. It was shown had been twice convicted robbery. of armed He also had been convict- attempted degree first first ed of degree These felomes are murder. violent

among any penal the most serious in code deliberately show defendant’s violent period over nature an extended time. beyond record a reasonable doubt establishes that, upon of the defendant’s consideration background and the nature and character crime, the

and circumstances of the defen- deserving among dant is those most ultimate sanction. Black, I

For the stated in reasons objection renew electrocution as death; executing means of the sentence of but, grounds I do not consider rever-

sal of sentence. reasons, For I in the Court’s these concur death affirmance of the tMs case. WAMP, Petitioner/Appellee, Donald L. TENNESSEE OF AR STATE BOARD AND ENGINEERING

CHITECTURAL EXAMINERS, Respondent/Appellant.

Supreme Court of Tennessee.

Nov. 1993. Rehearing Denied Dec.