# FILED
June 15, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE SUPREME COUR T OF TENNESSEE AT NASHVILLE

FOR PUBLICA

TION Filed: June 15, 1998
STATE OF TENNESSEE, ) ) APPELLEE, ) CHEATHAM CIRCUIT ) v. ) Hon. Allen W . Wallac e, Judge ) JAMES BLANTON, ) No. 01S01-9605-CC-00093 ) APPELLANT. )

FOR APPELLANT : FOR APPELLEE : Michael E. Terry John Knox Walkup Nashville Attorney General and Repor ter Mark Ivandick Michael E. Moore Clarksville Solicitor General Kathy Morante Deputy Attorney General Darian B. Taylor Assistant Attorney Gener al Nashville Dan M. Alsobrooks District Attorney General J. Kenneth Atkins Assistant District A

ttorney General Pro Tem James W. Kirby Assistant District A

ttorney General Charlotte



# O P I N I O N

COURT OF CRIMINAL APPE ALS AFFIRMED HOLDER, J.2 OPINION

In this ca pital cas e, the de fendan t, James Blanton , was convic ted by a jury of two counts of firs t degree premeditated murder, four counts of grand larceny, and three counts of first degree burglary. A jury sentenced him to death on both counts of first degree murde r based on three aggrav ating circumstances: (1) the defendant was convicted of one or more previous violent felonies; (2) the murder was committed for the purpose of avoiding, inter fering with, or preventing a lawful arrest or prosecution of the d efendant or another; (3) the murder was committed wh ile the defendant was engage d in committing, or w

as an accomplice in the commissi on of, or was attempting to c ommit, or was fleeing after committing or attempting to commit, any first degr ee murder, arson, rape, robbery, burglary, lar ceny, kidnappin g, aircraft piracy, or unlawful throwin g, placing or discharg ing of a destructive dev ice or bomb. Tenn. Code Ann. § 39-2-203(i)(2), (6)

& (7) (1982). In additi on to the above aggrav ating circumstances, the jury found that Mrs. Vester's murder was especially heinous, atrocious and cruel in that it involved tortur

e or depravity of mind. Tenn. Code Ann. § 39-2-203(i)(5). The jury found that no mitigati ng circumstances sufficiently outweighed the aggravating circumstances.
On direct appeal to the Tennessee C ourt of Criminal Appeals, the defendant challenged both his conv ictions and his sentences. The appellate court found that two of the grand larceny convicti ons should have been merged. The appellate court, howev er, affirmed both the defendant's remaining convictions and his sentences.

Th e d ef en da nt

ha s a pp ea le d to t hi s C ou rt ra is in g n um er

ou s i ss ue s. We ha ve th or ou gh ly re vi ew ed th os e i ss ue s a dd re ss ed by th e p ar ti es ' b ri ef s. We have carefully exami ned the law, the record and the thorough opinion of the3 Court of Criminal Appeals. We ha ve found that all of the defendant 's issues are devoid of merit and that the ev idence amply supports the j ury's findings as to aggravating and mitigating circumstanc es. The sentence of death was neithe r imposed arbitrarily nor was the sentence dispr oportionate to sentences imposed in similar cases. Accordingly, the judgment of the Court of Criminal Appeals upholding the defendant's convi ctions and sentencing him to death by electrocution is affirmed.

FACTUAL BA CKGROUND
In the early morning hours of June 16, 1988, eight men successf ully escaped from the Kentucky State Peni tentiary at Eddyvi lle, Kentucky. The eight escaped convicts wer

e identified as the defendant, Derri ck Quintero, William Hall, Joseph Montgomery , Ronnie Hudson, Bobby Sher man, Leo Sperling and Floyd Cook. Sherman w as apprehended on June 17, 1988. Sperl ing and Cook were apprehended on June 18, 1988. Montgomery and Hudson were seen in Lebanon, Kentucky, on June 19, 1988, and captured in Kentucky on J une 22, 1988. Hall was captured in July of 1988. The defendant an d Quintero were captured shortly after Ha ll's apprehension.

A 1966 Chevrolet truck owned by Curtis R ogers was stolen in

Eddyville, Kentucky, on the day of the con victs' escape. A number of the escapees apparently stole the truck to facilitate their escape. The truck was later located in a wooded area of Stewart C ounty, Tennessee. Two paperw eights with Cumberland Electric logos and several kniv es were found in or around the truck. The owner of the truck testified that he had never seen the paperw eights before. The paperweights wer

e later identified as items tak en from the Cherry residenc e, located near the murder scene.4 Stewart County, Tennessee , is located in close pr oximity to the Tennessee-Kentucky border. A rash of burglaries in the Leatherwood Resort area of Stewart County began to occur following the convicts' escape from the penitentiary in Eddyv

ille, Kentucky. The burg larized residences w ere owned by Jim McMinn, Essie Settl es, Alfred Cherry, Thomas H arris, Neal Foster, and John and Virginia Craw

ford. These homes were either s ummer cabins or permanent residences.
On Saturday, June 18, 1988, Ji m McMinn of Clarksvi lle, Tennessee, visited his cabin in

the Leatherwood area. He ar rived at his cabin at approximately noon. He went fishing in his boat at approximately 1:00 p. m. and returned around 3:00 p.m. Upon r eturning, he noticed that tw o boxes of 20 gauge shotgun shells w ere lying on the floor o

f his cabin. He went to the bedroom where he discov ered that his loaded .22 rev olver was missin g. The telephone in his cabin had been r emoved from the wall, and the o utside portion of the phone line had been severed. Mr. McMinn attempted to st art his truck but discovere d that th e ignition had been destroyed . Both his telepho ne and an axe were lying in the bed of his disabled truck. Mr. McMinn walked to a neighbor's house and called the sheriff's depar tment.
The Stewart County Sheri ff's Department had received sev eral reports of suspicious

individua ls in the Lea

therwood ar

ea. The department became concerned that the escaped conv icts were in the area.The department, therefore, conducted a search of the Le atherwood community. The search lasted from approximately 11:00 p.m. on Saturday, June 18, until 3:00 p.m. on June 19. The department was unsucc essful in locating any of the escaped inmates.5 On Sunday, June 19, at approx imately 1:30 p.m., Essie Set tles discovered that her 1982 F ord Fairmont and some tools w ere missing from her garage in Dover, Tennessee. The car was located approximately one w

eek later in Kentucky. Authoriti es found a hammer, two crowbar s, steel cutters, a hacksaw, a punch, two screwdrivers,and a chisel inside Ms. Settles' stolen automobile. A chain saw that was missing from Ms. Settles' garage, however, was not recovered.
On Wednesday, June 22, Kentucky authoriti es apprehended both Hudson and Montgomery near the l ocation where the authorities found Ms. Settles' car . The convicts exchanged fire with the authorities prior to the convicts' apprehension. Hudson and Montgomery had in their possession Mr. McMinn's .22 caliber pistol and Neal Foster's .22 caliber pistol.

Hudson's brother testified th at Hudson and Montgomery w ere waiting for him at his apartment in Lebanon, Kentucky, on Sund ay, June 19, 1988. He stated that the two men wer e in a white car with Tennessee plates. He stated that he and Robert Payne accompani ed Hudson and Montgomery to a riverbank where the convicts hid the car. Judy Hudson also visited wi

th Hudson and Montgomery at the riv

erbank. The following morni ng, the two escaped conv icts followed Ms. Hudson to her home in Campbellsville,Kentucky. They stay ed with Ms. Hudson until the evening when she escorted the convicts to Martha Grover's apartment. The convicts stay ed with Ms. Grover

until early Tuesday mor ning. The witnesses testified that they never saw the defendant with Hudson or Montgome ry.

On June 1 9, 1988, the Stewa rt County S heriff 's Depart ment rec eived two additional reports of burgl aries in the Leatherwood c ommunity. Mr. Alfred Cherry's trailer

had been burglarized. Mr. Cherry testified that his trailer w as6 approximately three-

tenths of a mile from the murder vi ctims' residence. On Sunday, June 19, Mr. Cher ry and several family

members visited the trai ler and discovered that the back do or had been removed. The inside of the trailer was in disarray. The bed w as unmade, and wet towels were in the shower.The refrigerator light switch had been taped down to prohibit the light fro m operating when the refrigerator door was opened. Mr. C herry also discov ered that the trailer next door had bee n burglarized.
Mr. Cherry testifie d that two bedspr eads, a green bla nket, a sleepin g bag, a portable radio/tape play er, fifteen cassette tapes, a rechar geable flashlight, a small handsaw, five or six knives, coffee mugs,various canned goods, al cohol, a toothbrush, underwear and paperweights with the Cumberland Electric logo were missing. Mr. Cherr

y positively i dentified the paperweights found in the 1966 Chevrolet truck owne d by Mr. Roge rs. Mr. Cher ry also pos itively iden tified t wo knives found at the Foster r esidence and stated that a third knife found outside of the Foster's residence w as identical to a knife taken from h is trailer. The valu e of the property taken from the Cher ry's trailer w

as estimated at $ 600.00 to $ 700.00.
Thomas Harris owned the trailer located next to Mr. Cherry's trailer. He stated that the back door of his tr ailer had been pried off and that his trailer was ransacked. The refrigerator light had been removed, and the sink was full of dirty dishes. There w

as food still in a skill et on the stove. He testified that wet towels and sheets wer

e strewn about, and cig arette burns were all over the floors. All of his canned food items, quilts, blankets, silverware, butcher knives, and a fishing tackle box h ad been taken. The value of the proper ty taken from Mr. Thomas' trailer w

as estimated at $ 400.00 to $ 500.00.7 Mr. Harris also tes

tified that several unauthor ized long distance tel ephone calls were placed from hi s trailer. Three of the unauthor ized calls had been placed to a number in Springt own, Texas . These c alls occu rred on Su nday, June 19, at 3:51 a.m., 8:55 a.m. and 9:19 a.m. Two additional unauthoriz ed calls wer e placed to a telephone number in Hopew ell, Pennsy

lvania, at 4:00 a.m. and 9:19 a.m. The telephone number called in Springtown, Texas , was listed to a Bryan Quintero. The telepho ne number called in Hopewel l, Pennsylvania, w as listed to a B

arbara Vasser. Ms. Vas ser was Willi am Hall's g irlfriend a t the time the calls were placed.
On Monday evening, J une 20, John Corlew and Ar thur Jenkins arrive

d at the Leatherwood boat dock. They launched their boat and night -fished in the Leatherwood Bay. They t estified that between 11:30 p.m. and 1:00 a.m. they heard shots that appeared to emanate f rom the direction of the murder victims' residence. Mr. Corl ew testified that he first hear d two shots that were

fairly clear. Then a pause ensued before he heard two a dditional shots followed by another pause and one last shot. Mr. Corlew testified that the first two shots sounded like repercussions from a pi stol or a high-power ed rifle. Mr. Jenkins r

emembered hearing only four shots.

Corlew and Jenkins r

eturned to the boat dock around midni ght to rest. At approximately 12:00 or 12:15 a.m., Mr. Jenkins saw a red GMC or Chevr

olet pick-up truck driv

e to the boat dock. A man exite d the truck and reached for the gas pump which appeared to be locked. The man then walked across the front of the restaurant and went around the corner for app roximately five or six seconds. The man returned to his t ruck and left. Mr. Jenkins testified that later a 1977 or 1978 Pon tiac pull ed into th e dock are a, circled around a nd drove away. Mr. Corl ew contacted the Stewar t County Sheriff's Department w hen he learned of the murders.8 On Tuesday, June 21, Neal Fost er discovered that his

house had been burglarized. Mr. Foster left his home on June 16 and did not return until around 8:30 a.m. on Tuesday, June 21. When Mr. Foster opened his garage door, he could see that the door into the house was open. He immediatel y left and went to a neighbor's house to cal l the sheriff's department.

Mr. Foster testified that the inside of his house had bee n ransacked. He stated that food was on a kitche n counter, two deer steaks were in the microwave, and his bi noculars were sitti ng on a kitchen counter. H e stated that a green ammunition box, a pl astic bag full of old coins, a flashlight, and the holster for his .22 caliber RG pistol were on the floor of the living room. He further stated th at the ha llway floor was littere d with a Diet Pepsi can inside two other tin cans, a tin can of old coins, a notebook that once had old coins in it, some socks, a shoe box, and a p air of white tennis shoes that did not belong to him. Towels were strewn around the house. He testified that the shower curtain in his bathroom was torn and that a pocket knife, towels , socks, a .22 caliber cartridge box, and a 20 gauge shotgun shell w ere all on the bathroom counter. The beds were unmade and had items spr ead on top of them. The dresser drawers were open, and items were scattered all around the bedroom, includi ng two walkie-talk

ies, a belt buckle, a hacks aw, a 12 gauge shotgun barrel and a pad that Mr. Foster once had o n his 20 gauge shotgun.
Mr. Foster testified that he kept several guns in a walk-in closet. He stated that he had a .22 caliber pistol, a Glenfield Model 60 .22 caliber rifle, a Marlin .30-30 caliber lever action rifle, a 20 gauge shotgun, a sing le shot shotgun, and a Remington 100 12 gauge shotgun. The 12 gauge s hotgun was rendered inoperable by bei ng sawed off too closely and was lying on hi s bed. A portion of both the stock and the bar rel of the 12 gauge shotgun h ad been sawed off and the spring from the stock w as lying near the g un. The 20 gauge shotgun9 was missing from his ho use. He, however, i dentified the 20 gauge shotgun found in the murder victims' car as his own. He was able to identify the 20 gauge shotgun by its seri al number. Foster's full name c arved into the gun.
A portion of the 20 gauge's barrel had also been sawed off an d left in Foster's bedroom. Mr.Foster sta ted that his .30-30 lev

er action r

ifle and some .30-30 accelerator rifle bul lets were also missi ng from his house. The rifle w as never recovered. M r. Foster further testified that .30-30 caliber rifle sh ells, 20 gauge shotgun shells a nd 12 gauge shotgun shell s were missing after the burglary. The missi ng 20 gauge shotgun shel ls ranged from 4 through 7 1⁄2 shot and were of Sears, Winchester, Fed eral and Montgomery brands. Coins were also missing from Mr. F oster's house.

The authorities were able to lift several latent pr ints at the Foster residence. A latent left thumb print matching that of Quintero was found on a full box of Federal 12 gauge sh otgun shells. A latent r ight ring fingerpr

int matching Quintero was found on another F ederal 12 gauge shotgun s hell box. A right middle finger and a right index fingerprint matchi ng the defendant's were found on a Federal field load 12 gaug e shotgun shell box. A right palm print matching that of Quintero was lifted from one of the gun stocks. A latent r ight ring fingerprint matching that of Hall was lifted from a Di et Pepsi can.
Wayne Vester, the murder victims' s on, attempted to reach his parents by telephone once on Monday, June 20,and twice on Tuesday, June 21. Wayne became concerned by his failed attempts to reach his parents. He then called Howard Allor wh o lived approximately a quarter mile from his par ents. Mr. Allor stated that he had last seen Mr. and Mrs. Vester on the morni ng of June 17, when he ate breakfast with them. Mr. Allor informed Wayne that his parents' car was gone and that he believ ed they were in Nashv

ille.10 Wayne Vester unsuccessfully attempted to l ocate his parents in Nashv ille. On June 22, he again called M r. Allor and asked him to c heck on his parents. Mr. Allor drove to Wayne's parents' residence where he discovered their dead bodies. He attempted to telephone the sheriff from the victims' res idence, but the phone was dead. He then returned to his home and cont acted the sheriff's department.
Wayne Vester and his 12-year-old s on had visited his parent s the weekend prior to the murders. Wayne Vester state d that they arrived at his parents' house on the evening of Friday, June 17, and left Sunday, June 19, at approximately 5:00 or 6 :00 p.m. He had taken grocer ies to his parents includ ing Pepsi Colas, lunch meat, bread, and milk.
David Hicks, the Sher

iff of Stewart County, was notified of the Vester murders at approximately 1:00 or 1:30 p.m. on Wednesday, June 22. The Tennessee Bureau of Investigati on ("T.B.I.") conducted the primar y investigation of the crime scene.

The victims' residence h ad one entryway w hich was through a screen door located at the side of the house opposite to the victims' bedrooms. The screen door, however, did not appear to be damaged. An unopene d Pepsi Cola can lay beside the walkway to the house's door. The packages of Pepsi Cola that Wayne Vester brought to his parents were no longer on the p orch. The screen in the front bedroom wi ndow was missing,and the window was open. A concrete block had been placed un derneath the front bedroom window . The concrete block appeared to hav e been taken from in front of a shed located at the back of the house. A cloth gl ove which matched a gl ove found at the Crawford residence was on the ground by the concrete block. The victims' maroon 1985 P ontiac Bonnevil le was missing.11 There were three windo ws along the back of the v ictims' house. The missing front window screen was lying on the ground near Mrs. Vester's bedroom window whi ch was one of the back wi ndows. The wires to the telephone connection box outsi de the victims' resid ence had been damaged, and the line was dead. A li ve 20 gauge Federal s hotgun shell with #6 bi rd shot was found lying near the electr ical box. A spent 20 g auge #4 shot Federal shotg un shell casing was found near the shed approximately 18 feet from Mr. Veste r's back bedroom window. The e vidence later showed that the spent shell was likely discharg ed from the sawed-off 20 gauge shotg un taken from the Foster residence.
Mr. Vester's window frame was visibly bent, and a few of the glass louvers were broken. Shards of g lass were found lying on Mr. Vester's bed. Both the screen and curtain cover ing his window had holes in them which ind icated that Mr. Vester was shot at least once from outside the house. Mr. Vester's body w as found on the floor next to his bed. The covers were draw n back, and there was blood on both the pillow and the bed. Number 4 and #5 bird shot pe llets were retrieved from Mr. Vest er's room. Two shot shel l filler wads wer e found beside Mr. Vester's body, and a 20 gauge plastic shot w ad was recovered from bes ide his head. A plastic shot s leeve, one shot shell, a pl astic shot wad, and sev eral shot pell ets, all e ither #4 o r #5 bird sh ot, were re covered f rom Mr. Ve ster's bo dy.
Mrs. Vester's body w

as found lying on the floor of her bedroom next to the bathroom in a p ool of dried blo od. Mrs. Vester was sh ot twice with a 20 gauge shotgun, once with a hig h-powered rifle, and stabbed thirteen times. A copper jacketed bullet was recovered from her body. The screen covering Mrs. Vester's bedroom window had a hole in it. The condition of the glass louvers, which were open and not broken, indicated that the high-powered rifle or shot gun was held close to the window when fired. At least one shot entered Mrs. Vester's w indow.12 Evidence i ndicated that one shot enter

ed Mrs. Ves

ter's wi ndow, hit h er arm, ricocheted off the heating unit cover and went out the living room window where the shot wad created a star -shaped hole. Both blood and tis sue were found on the heating unit cover and on the ceiling. Shot w as sprayed all over

the house, especially the kitchen . All of the shot pellets found in the house were either #4 or #5 shot.
Blood was found on Mrs. Vester's bed, and there was a considerable amount of blood on the bathroom floor. Blood w as splattered on both the bathtub and the commode. The bottoms of Mrs. V ester's feet were also c overed in blood.

The autho rities

found a pocketboo k and a po rtion o f The Tennessean , dated Monday, June 20, 1988, on the victims' sofa. The local mai l carrier testified that the victims did not receive The Tennessean via mail. A liv e 20 gauge shotgun shell w

ith #7 1⁄2 shot was found ly ing on the floor in the front bedroom next to a ra nsacked jewelry box.
The medical examiner, Dr. C harles Harlan, testified that the victims died approximately one and one-half to two hours after they consumed dinner. He stated that a minimum of three different w eapons were used in murderi ng the victims. Mrs. Ves

ter's body sustained thr ee gunshot wounds. Gunshot wound A was located at the rig ht portion of her chest just bel ow the collarbone. A copper jacket entered the body at w ound A and lodged in Mrs. Ve ster's left arm. The wound measured approximatel y a quarter of an inch i n diameter and was basically round in sh ape. Shotgun wound B was located in the upper arm. The defect from this gunshot measured 3.4 i nches by 1.8 inches and w as jagged with an irregular edge. Ther e were also multiple tan gential abrasions associated with wound B. Shotgun wound C was to the right forearm. Mrs. Vester's two forearm13 bones were severed le aving the h and and wri st attach ed to the body only by a peninsula of soft tissue. Dr. H arlan testified that the gunsho t wound to the right arm could have been from either a high-velocity

rifle or a shotgun. He c ould not determine the order in whi ch the wounds were inflicted.

Dr. Harlan further testified that Mrs. Vester's body had sustained 13 stab wounds. She was stabbed once in the middle of the back and 12 ti mes in the head, neck and shoulder regi on. A majority of the stab w ounds were inflicted to the left side of her head and neck. Dr. Harlan surmised that th e puncture wounds were made by a squared object with a sharp edge, such as a kit chen or hunting knife. Two stab wounds severed the right and left common carotid arteries. The right car

otid artery was 90 percent severed, and the left w as 10 percent severed. Dr. Harlan testified that the inj uries to the carotid arter ies would have been fatal. He fur ther stated that the gunshot w ound severing the right forearm would have been fatal without hospital treatment. Based on his autopsy, Dr. Harlan de termined that Mrs. Vester could have surviv ed the brutal attack for up to 15 minutes.
Mr. Vester's body had sustained two gunshot wounds. The central defect from shotgun wound A was located at the head and neck junctur e. The total dispersal pattern of shotgun pellets was 13 inches. Wound A caused significant injury to the left lung, aorta, and pulmonary artery. Shotgun wound B was to Mr. Vester's right breast . The total dispersal pattern of shot-gun pellets was approximately six to eight inches. Shotgun wound B caused trauma to Mr. Vester's right lung

and to the liver. Dr. Harlan recovered sh otgun pellets and a shot column from Mr. Vester's chest and abdomen.

Dr. Harlan determined that Mr. Vester's chest defect i ndicated a wound consistent with being

shot from a shotgun at a range of approximately six to ten14 feet. The neck wound was sustained by a shotgun discharge from approximately 10 to 12 f eet away. Dr . Harlan te stified that Mr. Ve ster coul d have survi ved five minutes or a little longer.
Following the discovery of the victim's bodies, the Stewart County Sheriff's Department began checking cabins in the surrounding area. On Thursday, the officers discovered that the Crawford residence, less than a quarter of a mile from the Vesters' residence, had been burglarized. J ohn and Virginia Craw ford, from Davidson County, had been at their trailer from the evening of Friday, J une 17, unti l Sunday, June 19, around 2 :00 or 2:3 0 p.m. W hen they l eft on Su nday, everything had been clean and orderly at the trailer. When the Crawfords were notified that their trailer had been burglarized, they drove to the trail er and found that the back door had been pried open with a pick. The kitc hen was a mess. Canned foods, crackers, and candy bars from the cabinet and refrig erator had been eate n. Prints wer e lifted from sev

eral it ems in th e trail er. A la

tent left thumb print matching that of Hall was lifted from the bottom of a can of ham. A latent right index fing erprint left by the defendant w as lifted from a Butterfinger candy wrapper found insi de the refrigerator. The Cr awfords identified two g loves found at the trailer, one white jersey and one brown jersey, as belonging to Mrs. Crawford. A patch on one of the g loves had been sewn on by Mrs. Crawford. Mr. Crawford testified that a flashlight had also been taken from the trailer. One of the gloves found at the Craw fords' trailer matched a gl ove found outside the Vesters' front bedroom windo w. A fiber analysis

of the two gloves ind icated that it was likely that they were originally sold together as a pair.
On June 21, 1988, around 8 a.m., employ ees of the Memphis Funeral Home observed three men in a maroon Pontiac, later identif ied as the victims' car. The three men in the Pontiac entered the funeral home parking l ot and parked approximately 250 feet from the building. Two empl oyees of the funeral15 home testified that one man got out of the front seat, took off his tank top and put on three additional shir ts. The two other men also ex ited the car. Neither witness could make a positive identification of the three men. They, however, testified that all three men w ere white and about the same hei ght, but two of the men were probably 180 pounds and had darker hair.
The three men remained in the parkin g lot for approximately five to seven minutes. Then, after one of them took a satchel out of the trunk, the three men proceeded to walk tow

ards a hospital across the street from the funeral home. One of the men turned, walked back to the car, and appeared to hav e placed an item back into the car. He then joined the two other men, and they all three walked off. The funeral home workers assumed tha t the three men were construction worker

s working at the hosp ital. When, however, the car w as not picked up by Thursday, the funeral employees noticed that the car and its license plate number matched the des cription of a missing car reported in the newspaper. They then contac ted the Memphis Police Depar tment.
On the morning of Thursday, June 23, the Memphis Police Cr ime Scene Squad responded to the call from the Memphis Funeral Home. The poli ce found a 1985 maroon Pontiac Bonneville in the funeral hom e's parking lot. The vehicle matched the description of the victims' vehicle. The keys were in the car's ignition. The officers found the saw ed-off 20 gauge shotgun taken from the Foster residence under the flo or mat behind the driver' s seat. The gun was later identified as being the gun that likely discharg ed the spent shell outside of the victims' residence. The police also discover ed a .30-30 caliber cartr idge under the floor mat which matched ammuniti on taken from Mr. Foster's r esidence. A crumpled Budweiser beer can was found under a seat. Three latent prints identified as belonging to the defendant were lifted from the Budweiser can. No other prints were found in the car. The officer noted that the ex tremely hot16 temperatures in

Memphis

at the ti me the ca r was fo und made i t difficu lt to lift prints. Other items retr ieved from the vehicle i ncluded a Ray-O-Vac flash light, electrical tape, thirteen 20 gauge shotgun shells, three 12-ounce Pepsi Colas, one 12-pack of Pepsi Colas, a por table electric air compr essor, a Black & Decker car vacuum, and a brown umbrella.
Curtis Jones, who w

as a security guard at the Memphis Greyhound bus station, testified that he worked Tuesdays and W ednesdays at the bus station in June of 1988. The bus station was located in downtown Memphis appro ximately one mile from the Memphis Funeral Home. His job at the bus sta tion was to keep individuals out w

ho did not have business at the station. Mr. Jones sat in a booth at the station and watched the doors to observe w ho came in and to determine whether they later purchased tickets. Periodically, he would walk around and ask people whether they had tickets or if they were waiting for someone to arrive.

Mr. Jones recalled three me n enterin g the bus st ation eit her Tues day, June 21, or Wednesday, June 22, between 11 a.m. an d 1 p.m. Two of the men sat down and watched tel evision. One of the two s eated men spoke to a man seated nearby. The third man, who had darker skin and appeared Hispan ic, used a telephone. Mr. Jones appr oached the two seated men and asked them whether they had tickets. A man, whom he identified as the defe ndant, told him that they would leav

e as soon as their friend finish ed using the telephone. The three men remained in the station five to ten minutes. Later that same day, the Memphis police stopped by the bus station with a photo graphic line-up of the eight escapees. Mr. Jones responded that the defend ant, Quintero, and Hall had previously been at the station. Later in the w eek, Mr. Jones spoke with Agent Stout of the T.B.I. Mr. Jon es again identified the defendant, Qui ntero, and17 Hall from a line-up. Mr.Jones made an in-court identification of the defendant as the person with whom he had spoken at the bus station.
Agent Stout also interviewed two employees at the Blue Movies West adult bookstore and entertainment c enter located across the str eet from the bus station. Shirley Deni se Morrow testified tha t she worked as a cashi er in the booksto re in June of 1988 . On Tues day, June 21, the d ay before her birth day, three men entered the bookstore ar ound 9:00 or 10:00 a.m. Two of the men were white and one appear ed Mexican. The men traded a few silver dollars an d half dollars for tokens. Ms. Morrow also purchased a few silver dollars and half dollar s for her self.

The men went to the back of the establi shment to watch movies. Approximately ten minutes later, the men then returned to the front of the establishment. They attempted to sell Ms. Morrow what appeared to be a class ring and a we dding ban d. Ms. Morro w declined and sugges ted they t ry a pawn shop. One of the men then indicated that they did not have any i dentification and offered Ms. Morrow $ 50.00 to let them stay in the movie house until their transportation arriv

ed. Ms. Morrow decl ined their offer. A dancer then came o ut from the back of the establishment and sai d something to the men. The men left, and Ms. Morrow c

ontacted the police.
Agent Stout showed Ms. M orrow a photographic array of the eight escapees. Ms. Morrow identified the defendant, Quintero, and H all as the three men who visited the books tore. Agent Stout took six silver dollars that the men had sold to Ms. Morrow . The silver dollars were later identified by Mr. Foster as identical to coins stolen from his residence. Ms. Morrow also made an in-court identification of the defendant.18 Hall was eventuall

y captured in El Paso, Tex as. Both the defendant and Quintero were captured i n Mexico near El Paso. Barbara Vasser, Hall' s girlfriend at the time, testified that after Hal l called her for a third ti me following the escape, her mother called the Pennsy lvania State Police. M s. Vasser testified that she was afraid for Hall's s

afety so she agreed that if Hal l called again, she w ould set up a time and place where she could wire Hall money. Hall called Ms. Vas ser on July 6, 1988. Vasser ag reed to wire him money to the Western Union on North Stanton Street in El Paso, Tex as. The Federal Bureau of Investigation ("F.B.I.") was notified, and surveillance was established at the W estern Union. Hall entered the Western Union in El Paso at approx imately 2:20 p.m. and was apprehended.
The F.B.I. subsequently r eceived leads that both the defendant and Quintero were stayi ng at the Santa Fe Hotel in Juarez, Mexico. J uarez is located just across the border from El Paso, Texas. On July 1 0, 1988, Quintero and the defendant were apprehended at the hotel by Mexican officials and transported across the international br idge. F.B.I. agents met w ith Mexican officials at a border check point and took custody of both the def endant and Quintero. An old wallet with an impr

int of Mr. Foster's dri

ver's license w

as found on Quintero.
The defense attempted to present the testimony of both Quintero and Hall. Both convicts,however, invoked their privilege

against self-incrimina

tion and refused to testify. The trial court informed the jury tha t both Quintero and Hall had invoked their right not to testify and instructed both men to hold up their hands for the jury to observ e. The defendant was not allow ed to introduce into evidence the affidavits prepared by either Quintero or Hall.
The jury convicted the defendant of two counts of first degree premeditated murder, four counts of grand larceny, and three counts of first19 degree burglary. During the sentencing phase, the State introduced proof that in 1981 the defendant had been convicted of murder. The State also showed that the defendant pled guilty to fir st degree wanton endanger ment in 1985. An officer at the Kentucky State Penitentiary at Eddyvi lle, Kentucky, identified the defendant as one of the eight inmates w ho had escaped from the facility on June 16, 1988.
Finally, the State intr

oduced additional photographs a nd testimony concerning Mrs. Vester's body. Mrs. Vester was found lying in her bedroom just outside the bathroom. The State intr oduced photographs depicting the amount of blood on the bathroom floor and d epicting the blood on the bottoms of Mrs. Vester's feet. The State also intr oduced a photograph of Mrs. Vest er's body rolled over so that the jury could see the sev erity of her injuries

and the brutality of the attack.
In mitigation, the defendant present ed testimony that he was born on November 8, 1958, in Perry County, Kentucky. He spent a portion of his early childhood in Hazard Cou nty, Kentucky. Juli e Maddox, a psycholog ical examiner and an expert in the field of psy chological testing, testified as to the results of various tests that she ad ministered to the defendant. The first t est was the Bender Gestalt Test, whic h is designed to determine w hether a person has any severe brain damage. Ms. Maddox found no signs of traumatic brain damage in the defendant. The defendant, however, appe ared to be intellectually impaired.

The second test administered w as the Wide Range Achievement Test, revised ("WRAT"). The def endant achieved a score of 20 out of 66 in arithme tic placing him in the .1 perc entile and at a fourth grade lev el. The defendant achieved a score of 8 out of 51 in spelling which placed him in the .2 percentile20 and at a fourth grade level. The defendant scored 29 out of 89 in reading which placed him in the .2 percentil e and at a level lower than the third grade.

Ms. Maddox also administered the Wexler Adult Inte lligence Scale Revised Test ("Wexler") whic h measures I.Q. The defendant receiv ed a verbal I.Q. level of 74, a performance I. Q. level of 77, and a full-sc ale I.Q. level of 74. This score placed the defendant in the lower three percenti le range indicating that ninety-seven perc

ent of the population scored high er. The error range on this test is plus or min us five points. Ms. Mad dox testified that a score of 90 to 109 is considered averag e and a score of 70 or below i ndicates mild mental retardation.

Ms. Maddox further adminis tered a Minnesota Multi- Phase Personality Inventory ("MMPI”

) but stated that she had not broug ht that test with her. S he testified that there were no indications from the test that the defendant was malingering.

Next, the d efense presente d the tes timony of Susan Can non, exec utive director of PEACE, Inc. (Pr oject to End Abuse Through Couns eling and Education) located in Nashv ille, Tennessee. She introduce d into evidence the defendant's school records from firs t through eighth grade . She also testified that male children typically learn violent behavior at home and repeat it in their own home as an adult.
The defendant's maternal aunt, Lucy C oots, testified that she has li ved her entire life in Perry County, Kentucky. She testified that the defend ant's father, George Blanton, was a violent man who w

ould come home drunk and beat his wife and children.She further testified that the defendant g rew up under difficult family and economic condi tions. The defense presented two C BS21 documentaries on living conditions in Perry and Knott Counties, Kentucky , during the time the defendant was grow ing up. Ms. Coots testified that the documentaries accurately depicted the living c onditions of the defendant's family. After the defendant's father went to pr ison, the defendant's mother married another man who was a good fa ther to th e childre n. He died of cance r about two years after the marriag e. The defendant's mother died about three y ears after the death of the defendant's stepfather. Ms. Coots testified that the defendant often called her on the telephone and wrote her letters.

The defendant's brother and sister testif ied. They confirmed Ms. Coots' testimony concerning the Blanton family's liv ing conditions. The defendant had six siblings, one of whom died from muscular dyst rophy. Neither wi tness had seen or heard from the defendant in te n or eleven years. One of the defendant's brothers is incarcerat

ed in the Kentucky State Penitentiary at Eddyvi lle, Kentuck y.
In rebuttal, the State presented Dr. Samuel Craddock, w ho testified that he was part of an investi gation team that intervi ewed the defendant on April 17, 1991. From his examination, Dr. Craddock determined that the defendant was functioning in the low/av erage or dull/normal ra nge of intelligence depending on which edition of the Wexler Intelli gence Scale was used.
Finally, the State pres

ented testimony that the defendant had se nt several coded letters to Joseph Montgomery in the Kentucky St ate Penitentiary whi le the defendant was in the Tennessee Departme nt of Correction. Although the letters contained numerous capitaliz ation and spelling error s, they were intro

duced to rebut testimony that the defendant w as of low intelligenc

e.22 Based on this proof, the jury sentenced the defendant to death for the murders of Buford and Myrtle Vester.

HEINOUS, ATROCIOUS, AND CRUEL
The defendant argues that Tenn. Code Ann. § 39- 13-204(i)(5) was no t an appropriate basis for sentenci ng him to death. His arg ument is premised on the following contentions: (1) that the evidence i s insufficient to support applic ation of (i)(5); (2) that ther

e is no evidence indicating that the defendant stabbed or shot the victims; (3)

that the trial court er

red in instructing the

jury on the pre1989 version of (i)(5)

in 1991; and (4) that (i) (5) as instructed w as unconstitutionally v

ague prior to the 1989 amendment. We disagree.
Upon review, w

e find that the evidence is cl early sufficient to support a jury finding that Mr

s. Vester's murder was heinous, atrocious and cruel . The evidence indicates that M r. and Mrs. Vester w ere in their beds prior to being murdered. Mrs. Vester's room was separated from Mr. Vester's room by a small bathroom. The perpetrators positioned them selves by both Mr. and Mrs. Vesters' bedroom window s. The perpetrators then shot the Vesters from outside the house while the Vesters lay in their beds.
Mrs. Vester was initially shot at least once while she lay in bed. At least one shot originated from outside her bedroom window. She apparen tly attempted to save her life by fleeing into an adjacent bathr oom. The bathroom was in a direction away from her window and toward Mr. Vester's room which also received gunfire.The perpetrators then entered the Vester residence.

Mrs. Vester sustained a s hotgun blast to her rig ht forearm which sever ed both bones in her forearm. Her w rist, hand and lower ar

m were left attached to23 her upper forearm only by a small peninsula of skin and fles h. She sustained one shotgun blast to her ri ght shoulder which l eft a wound nearly three-and-onehalf inches by two inc

hes. She was also shot w ith a high-powered r

ifle. The high-powered rifle s hot entered her upper chest jus t below her right c

ollar bone.
The evidence indicates that Mrs. Vester struggled to save her life while her arm was practically severed from her body. The bottoms of her feet were covered in blood indicating that she had walked through her own pool of blood in an attempt to flee the attack. She, however, was stabbed once in the left cheek, seven times in the left side of her neck, twice in the fr ont of her neck (once on the left side and once on the rig ht side), once just below the right collar bone (next to the defect caused by the high-powered rifle), once to the left shou lder, and once in the middle of her back. The medical evidence presented indicates that Mrs. Vester could hav e remained alive for as long as fifteen minutes during the brutal attack or after receiving her wounds. She then apparently died face down in a pool of her own b lood. The evidence amply s upports a finding of torture under Tenn. Code Ann. § 39-13-204(i)(5).
"In proving that tortur

e occurred, the State, necessar ily, also proves that the murder involved depr avity of mind." State v. Willia ms , 690 S.W.2d 517, 529 (Tenn. 1985).The defendant's actions w

ere reprehe nsible. He

shot the vi ctims initially from outside their home. He then entered the victims' residence whereupon he inflicted numerous wounds upon Mrs. Vester. The multiplicity of the wounds, the infliction of gratuitous violence and the evidence of torture amply supports a finding of depravity of mind under Tenn. Cod e Ann. § 39-13-204(i)(5).

The defendant's next contention is that "there is no evidence th at James Blanton shot or stabbed [Mrs.] Vester." This contention, however, is best addressed by a sufficiency of the evidence review . The jury found the defendant24 guilty of murdering M rs. Vester. The Court of Cr iminal Appeals found that the evidence was suff icient to support t he convict ion. Upon review of th e record, we hold that the evidence was clearly sufficient to support the convictions.
The defendant's next assignment of error is that the trial court erred in instructing the jury

with the pre-1989 ver

sion of Tenn. Code Ann. § 39-13-204(i)(5). The defendant mur dered the victims in 1988 prior to the effective date of the 1989 revisi ons. Accordingly, the jury was proper ly charged as to the aggravating

circumstance as defined by the pre-1989 statute. State v. Brimmer , 876 S.W.2d 75 (Ten n. 1994).
The defendant argues that the pre-1989 v ersion of (i)(5), as ch arged, was unconstitutionally v

ague. He specifically

argues that the phrase "depra vity of mind" rendered the pre-1989 statut e unconstitutional. This Cour t, however, has previously held that

the pre-1989 (i)(5) ag gravating circumstance was neither unconstitutionally v

ague nor over broad. See State v. Willia ms , 690 S.W.2d 517, 526-30, 533 (Tenn. 1985); State v. Barber , 753 S.W.2d 659, 67 0 (Tenn. 1988), cert

. denied , 488 U.S. 900, 109 S.Ct. 248, 102 L. Ed.2d 236 (1988); State v. Black , 815 S.W.2d 166, 181 (Tenn. 1991) (Reid, C.J., Daughtrey, J. concurr ing and dissenting). This i ssue is without merit.

INSTRUCTING ON A

LL AGGRA

VATING CIRC UMSTANCES
The defendant makes basically thr ee assignments of error conc erning the trial judge's instr

uctions to the jury on th e aggravating ci rcumstances. First, he argues that the trial co urt erred in instructi ng the jury on ever y felony under Tenn. Code Ann. § 39-13-204(i)(7). He further argues that the trial court erred in instructing the jury

on all twelve ag gravating circ umstances. Finally, he argues25 that the trial court err

ed by failing to requi re the jury to find, purs uant to (i)(5), that the defendant ha

d the specifi c intent to t orture the v

ictim.
The jury f ound aggra vating circ umstanc e (i)(7) ap plicable . Specif ically, the jury found that the vic tims' murders were "committed while the defendant was engaged in committing or was an accomplice in the commission of, or was attempt ing to com mit, any f irst degre e murder , arson, r ape, rob bery, burgl ary, larceny, kidnaping, aircraft piracy, or unlawful throwing, placing, or discharg ing of a destructive devic

e or bomb." The defendant argues that becaus e the trial judge charged every felony listed under (i)(7), "one may conclude that the jury found murder in the commission of mu rder, or murder in the commission of air piracy."
The better practice certainl y is to charge those felonies that may be supported by the facts. State v. Buck , 670 S.W.2d 600, 60 8 (Tenn. 1984). Moreover, charging

all felonies under (i)(

7) without regard t

o whether the felonies are supported by the evi dence is error. We, however, find the error harmless as application of the (i)(7) aggravating ci rcumstance is amply suppor ted by the evidence.
The defendant assigns error in the trial judge's decision to instruct the jury on all twelve aggravating circumstances. The Court of Criminal Appeals held that, while error, the error was harmless , because the evidence suppor ted the jury's application of (i)(2), (i)(6), and (i)(7) for both murders. In addition, the jury found (i)(5) applicable onl y to the murder of Mrs. Ves ter. This finding indicates that the jury thoroughl

y reviewed the ev

idence and applied the aggr avating circumstances in a non-arb itrary manner. Upon r eview, we agr

ee with the appellate court's holding and find no reversible er ror as to instructing

the jury on all twelve aggravating circumstances.1 We note that the jury was instruc ted pursuant to State v. Willia ms , 690 S.W.2d 517 (Tenn . 1985), on circumstance (i)(5). 26 The defendant contends that (i)(5) r equired the jury to find

that the defendant had th e specific i ntent to tort ure the vic tim. 1 Circumstance (i)(5), however, does not req uire a mens rea . We find that (i)(5) focuses on the circumstances of the killi ng. We, therefore, hold that the torture prong of (i)(5) merely requires a j ury finding that the v ictim remained conscious and sustained severe physical or

mental pain and suffering between the infliction of the wounds and the time of death. W hether the defendant intended th e victim's suffering is irrelevant under (i )(5). This issue is w ithout merit.

COMPARA

TIVE PROPORTIONALITY REVIEW
In conducting a comparativ e proportionality rev

iew, we begin w

ith the presumption that the sentence of dea th is proportional with the crime of first degree murder. State v. Hall , 958 S.W.2d 679 (Tenn. 1997). A sentence of death may be found disproportionate if the case being reviewed is "plainly lacking in circumsta nces consistent with those in similar cases i n which the death penalty has previousl

y been imposed." Id . (citing State v. Ramsey , 864 S.W.2d 320, 328 (Mo. 1993)). A sentence of death is not dispropo rtionate merely because the circumstances of the off ense are similar to those of another offe nse for which a defendant has receiv ed a life sentence. State v. Bland , 958 S.W.2d 651 (Tenn. 19 97) (citing State v. Carter , 714 S.W.2d 241, 251 (Tenn. 1986)). Our inquiry, ther

efore, does not require a finding that a sentence "less than death was never imposed in a case with similar characteristics." Bland , 958 S.W.2d at 665. Our duty "is to assu re that no aberrant death sentence is affirmed." Id

. (citing State v. Webb , 680 A.2d 147, 203 (Conn. 1996)).27 Our proportionality r

eview is neither a rigid nor an objecti ve test. Hall , 958 S.W.2d at 699. The re is no "mathematical formula or scientific grid," and we are not bound to consider only c ases in which the same ag gravating circumstances were found applicable by a jury. Id .; State v. Brimmer , 876 S.W.2d 75, 84 (Tenn. 1994). This Cou rt considers man y variables when choos ing and comparin g cases. Bland , 958 S.W.2d at 667. Among these variables are: (1) the means of death; (2) the manner of death (e.g. , violent, torturous, etc.); (3) the motivati on for the killing; (4) the place of death; (5) the similarity of the victims’ circumstances including age, physical and mental conditions, and the victims’ treatment during the kill ing; (6) the absence or p resence of premeditation; (7) the absence or presence of provoc ation; (8) the absence or pr esence of justification; and (9) the injury to a nd effects on non-decedent victims. Id .; Hall , 958 S.W.2d at 699. Factors considered when comparing characte ristics of defendants include: (1) the defendant’s pr ior criminal record o r prior criminal activity; (2) the defendant’s age, race, and gender; (3) the defendant’s mental, emotional or physical condition; (

4) the defendant’s involv ement or role in the murder; ( 5) the defendant’s cooperation with authorities; (6) the defendant’s remorse; (7) the defendant’s knowledge of helplessness of victim(s); and (8) the de fendant’s capacity for rehabilitation. Id .; Bland , 958 S.W.2d at 667.
Justice Reid opines in his dissenting opinion that a sentence of dea th in this case is disproportionate to sentences in simil ar capital cases because the evidence here doe s not show t hat the d efenda nt himse lf killed or was an act ive participant in the kill ing. By its ver dict, however, the j ury in this case found beyond a reasonable doubt that the defen dant committed premeditated first degree murder. An appellate court is no longer conc erned with the sufficiency of the evidence when performin g a comparative proportionality review . A reviewing court shall construe the c ircumstances of the case in a manner in full accord with the jury's verdi ct and compare those facts with the circumstances of similar28 cases. The reviewin g court, therefore, must consi der proven the fact that the defendant was involved in the crime to the degree that he is criminally responsible for the murder.
We have reviewed Rule 12 report s from trial judges submit ted over the past eig hteen y

ears in all cr iminal trials

for firs t degree murder

in whi ch life imprisonment or a sentence of death has been imposed. We have made an independent, conscientious and thorough review of this case, as we have in every other capital

case that has been before this Cour t. Considering the brutality of the defendant's cr ime and his characteristi cs, we find that imposition of the death penalty in this case is not disproportionate to the penalty imposed in similar cases. Mrs.Vester was sixty -nine years old at the time the defendant murdered her. She was shot at least once from outside her hous e while she lay in bed. Her husband was s hot and murdered in an adjacent ro om. He died of multiple shotgun wounds t o the head, neck and chest.

The evidence indicates that M rs. Vester struggl ed to evade the brutal attack th at severed her fore arm and le ft her wris t and han d attach ed only by a small peninsula of soft tissue. The r ecord indicates that she w as shot twice with a shotgun and shot once with a high-powered ri fle. She was then stabbed thirteen times. The stab wounds were to her face, head, neck, sho ulder, back and upper chest. The bottoms of her feet w ere covered in blood indi cating that she attempted to flee the attack by walking through her own pool of blood. Medical testimony indi cates that she surviv ed for as long as fifteen minutes following the infliction of her wounds.
The defendant had escaped from prison and wa s fleeing authorities w

hen he murdered the victims. The defendant had a criminal record of v iolent crimes which included a prior

murder conviction and fir st degree wanton endanger ment.29 The defendant has neither shown remor se nor appears to be a candidate for rehabili tation. The def endant c ommitte d these b rutal crim es only thr ee days after escaping from the confines of a penit entiary and entering s

ociety. The nature of Blanton's crime, his criminal background, his infliction of unnecessary and gratuitous violence and his complete disregard for human life p laces him into that class of criminals for whom a sentence of death is appr opriate.
Cases that are comparable conc erning multiplicity

of wounds, infliction of gratuitous violence,and the defendant's IQ range are as follows: State v. Payne , 791 S.W.2d 10 (Tenn. 1990); State v. Jones , 789 S.W.2d 545 (Te nn. 1990); State v. Thompson ; 768 S.W.2d 239 (Tenn. 1989); State v. McNish , 727 S.W.2d 490 (Tenn. 1987); State v. Barber , 753 S.W.2d 659 (Tenn. 1988); State v. Melson , 638 S.W.2d 342 (Te nn. 1982).

In State v. Payne , 791 S.W.2d 10 (Ten n. 1990), a twenty-year-old defendant was convicted on tw o counts of premeditated murder and sent enced to death on both counts. In Payne , the defendant stabbed one victim approximately forty-

two times and the other v ictim approximately nine times. The defendant's IQ was in the rang e of 70 to 100. This Court affirmed both sentences of death based on Tenn . Code Ann. § 39-2-203(i)(3) & (5).

In State v. Jones , 789 S.W.2d 545 (199 0), a thirty-eight year-old defendant was convicted of both pr emeditated and felony murder and sente nced to death. In Jones , the defendant bound, gagged and bl indfolded the victim who was then stabbed six times. The defendant's IQ was in the range of 70 to 100. This Court affirmed his death sentence based on Tenn. Code Ann. § 39-2-203(i)(2), (5) & (7).30 In State v. Thompson , 768 S.W.2d 239 (Te nn. 1989), a twenty-two-yearold defendant was convicted of felony murder and sentenced to death. In Thompson , the defendant abducted his female vic tim at gunpoint and took her to a remote location. He then repeatedly stabbed the victim inflicting two fatal wounds to the right l ung. Test imony ind icated th at the vict im could h ave remained cons cious for five to ten minutes. T he defenda nt's IQ was in the ran ge of 70 to 100. This Court affirmed the death s entence based on Tenn. Code Ann. § 39-2-203(i)(5), (6) & (7).

In State v. Barber , 753 S.W.2d 659 (Te nn. 1988), a twenty-nine-year-old defendant was convicted of felony murder and sentenced to death. In Barber , the defendant repeatedly struck his seventy-year -old female victim in the hea d with a crescent wrench. Evidence indicated that the victim remained alive while the blows were infli cted. The trial judge desc ribed the defendant's IQ as average. In mitigation, the trial judge li sted that the defendant was capable of rehabilitation. This Cour t affirmed the death sentence based on Tenn. Code Ann. § 39-2-203(i)(5) & (7).

In State v. McNish , 727 S.W.2d 490 (Te nn. 1987), a twenty-nine-year-old defendant was convicted of firs t degree murder and sentenced by the jury to death. In McNish , the defendant murdered a seventy -year-old female vic

tim by striking her in the he

ad repeatedly with a g lass vase. The victi m survived the attack for a short time but later died from hemorrhaging of the br ain. The defendant's estimated IQ was in the range of 70 to 10 0. This Court affirmed his sentence of death based on Tenn . Code Ann. § 39-2-203(i)(5).

In State v. Melson , 638 S.W.2d 342 (Te nn. 1982), a forty-eight-year-old defend ant was con victed of premedi tated mu rder and s entence d to deat h by a jury. In Melson , the victim died from multiple blunt traumas to the head and neck31 after the defendant struck the vic tim approximately 15 to 30 times with a hammer. The defendant's IQ was in th e range of 70 to 100. This Court affirmed the death sentence based on Tenn. Cod e Ann. § 39-2-203(i)(5) & (i)(6).

Cases in which this Court has affirmed a sentence of death w ith comparable or less gratu itous violence and multip licity of wounds and w ith a defendant having a lower IQ are as follows: State v. Smith , 893 S.W.2d 908 (Tenn. 1994); State v. Smith , 695 S.W.2d 954 (Tenn. 1985); State v. Coleman , 619 S.W.2d 112 (Te nn. 1981).

In State v. Smith , 893 S.W.2d 908 (Te nn. 1994), a forty-one-year-old defendant was convicted of felony murder and sentenced to death. In Smith , the defendant broke into an eighty-eight-year-old woman's home. He robbed her, raped her, cut her throat and placed her into a bathtub f ull of water. The victim was alive when w

ater entered her lungs. The d efendant suffered from diminished intellectual capacity and was classified as "mentally retarded." This Court affirmed the death sentence based on Tenn. Code Ann. § 39-13-203(i)( 2) & (5).

In State v. Smith , 695 S.W.2d 954 (Te nn. 1985), a twenty-three-year-old defendant was convicted of felony murder and sentenced to death. In Smith , the defendant robbed and killed a sev enty-one-year-old male. The victim was s hot twice. The defendant's IQ w as in a range lower than Blanton's IQ range. The defendant, unlike Blanton, conf essed and cooperated with the police. This Court affirmed the death sentence ba sed on Tenn. Code Ann. § 39-2-203(i)(7).

In State v. Coleman , 819 S.W.2d 112 (Te nn. 1981), a twenty-two-year-old defendant was convicted of felony murder and sentenced to death. In Coleman , the defendant shot and robbed a sixty -nine-year-old v

ictim. The defendant's IQ32 was in a range low

er than Blanton's IQ range.This Court affirmed the death sentence based on Tenn. Code Ann. § 39-2 -203(i)(2) & (7).

Cases in which this Court has affirmed a sentence of death with less gratuitous violence and where the evidence di d not positively i dentify the shooter include: State v. Sample , 680 S.W.2d 447 (Tenn. 1984); State v. McKay , 680 S.W.2d 447 (Tenn. 1984); State v. Dicks , 615 S.W.2d 126 (Tenn. 1981); State v. Strouth , 620 S.W.2d 467 (Te nn. 1981).

In State v. Sample , 680 S.W.2d 447 (Te nn. 1984), a twenty-five-year-old defendant was convicted of felony murder and sentenced to death. In Sample , two clerks wer

e shot to death during a robber y. Sample appeared to be the leader in the commission of the cr ime with his partner M cKay who also recei ved a sentence of death. The evidence, how ever, did not establish the identity of the shooter. This Court affirmed the death sentence based on Tenn. Code Ann. § 39-2-203(i)(3),(6) & (7).

In State v. McKay , 680 S.W.2d 447 (Te nn. 1984), a twenty-five-year-old defendant was convicted of felony murder and sentenced to death. In McKay , two clerks wer

e shot during the course of a r obbery. Evidence did not indicate that McKay was the l eader in commission of the crime.Evidence also did not establish the shooter's identity. McKay was a codefendant with Sample who also received a sentence of death. Thi s Court affirmed the death sentence based on Tenn. Code Ann. § 39-2-203(i)(2), (3), (6) & (7).

In State v. Dicks , 615 S.W.2d 126 (Te nn. 1981), a twenty-one-year-old defendant was convicted of felony murder and sentenced to death. In Dicks , the defendant and his codefendant Strouth robbed a s tore. During the cours

e of the robbery, Strouth apparentl y slit the throat of a sev enty-year-old male w

ho bled to33 death. This Court affirmed the death sent ence based on Tenn. Code Ann § 39-2-203(i)(5) & (7).

In State v. Strouth , 620 S.W.2d 467 (Te nn. 1981), a nineteen-year-old defendant was convicted of felony murder and sentenced to death. In Strouth , a store clerk was ki lled during the course o f a robbery committed by Str outh and his codefendant Dicks. Strouth apparently inflicted the fatal throat laceration from which the victim b led to death. This Court affirmed the s entence of death based on Tenn. Code Ann. § 39-2-203(i)(5) & (7).

We also note that there are se veral cases with comparable violence in which defendants have recei ved life sentences. See State v. Jack Jay N orth , No. 02C01-9512-CC-00369 (Tenn. Crim. App., at Jackson, Dec. 12 , 1996), appeal denied , (Tenn. 1997) (sentencing t o life where victim shot multiple times with sawed-off shotgun) ; State v. James Morning Craft, Jr. and Lewis M oorlet , C.C.A. No. 31 (Tenn. Crim. App., at Jackson, Mar. 8, 1989) , appeal denied , (Tenn. 1989) (sentencing to l ife where victim shot three times). In both North and Craft , the defendants either admitted to bein g at the scene or showed remorse. Although these cas es are similar to some ex tent, the similarities do not make Blanton's death sentence dispr oportionate. In fact, the circumstances and violence of Mrs. Vester 's killing wer

e far worse than a great majority of the previously cited cases in which the death sentence has been affirmed b y this Court. Furthermore, this Court has previously

affirmed a number of additional cases in which both the gratuitous violence and the multiplicity of wounds were far less than those present in this case. See State v. Houston , 593 S.W.2d 267 (Tenn. 1980) (affirming death sentence based on (i)(5), (6) & (7) where victim shot three times); State v. Zagorski , 701 S.W.2d 808 (Tenn. 1985) (affirming sentence of death based on (i)(5) & (7) where defendant robbed v ictims then shot them and slit their thr oats); State v. King , 718 S.W.2d 241 (Tenn. 1986)34 (affirming death sentence based on aggravating circumstances (i)(2), (5), (6) & (7) where victi m placed in trunk of car then shot once in head with high- powered rifle); State v. Bates , 804 S.W.2d 868 (Tenn. 1991) (affirming sentence based on (i)(2), (6) & (7)

where defendant tied victim to tree and shot victi m in head with shotgun); State v. Brimmer , 876 S.W.2d 75 (Tenn. 1994) (affirming death sentence based on (i)(7) w here victim tied to a tr

ee and choked to death); State v. Hodges , 944 S.W.2d 346 (Tenn. 1997) (affirming death sentence bas ed on (i)(2) & (5) where victim bound and later strangled).
We have reviewed numerous cases in which either the death pe nalty or a lesser sentence has been imposed.While no two cases are identical, many cases share similariti es with the case now before us. In a great majorit y of the cases cited, defendants of comparable i ntellect beat, tortured and as saulted unresisting and defenseless v ictims without prov

ocation. Upon review

ing the facts of the case now before us, w e find that the multiplicity of wounds and the manner of their infliction upon Mr s. Vester were parti cularly heinous, atroc ious and cruel. Moreover, the infliction of gratuitous violence in this case appears to be worse than that inflicted in a substantial number of case s in which this Court has previously affirmed a sentence of death. Th e penalty imposed by a jury in this case is clearly not disproportionate to the penalty imposed for similar crimes.

CONCLUSION

In accordance with the mandate of Tenn. Code Ann. § 39-13-206(c)( 1) and the principles adopted in p rior decisions of this C ourt, we have consider ed the entire record in this case and find that the sentence of death w as not imposed in an arbitrary fashion. The evidence clearl y supports the jury

's finding of the aggravating ci rcumstances and that no mitig ating circumstances sufficiently outweighe

d the aggravating circumstances. Tenn. Code Ann.35 § 39-13-206(1)(A) - (C). We have carefully reviewed the defendant's assignments of error and hav e found that they are either dev oid of merit or do not requi re reversa l. Wit h respect to issues not speci fically ad dressed h erein, we affirm the decision of the Court of Cri minal Appeals, authored by J udge Paul G. Summers, joined in by Gary R. Wade and concurred in by Judge Joseph M. Tipton. The defendant's sentence of death by e lectrocution is affirmed. The sentence will be carr

ied out as provided by law on the 15th day of October, 1998, unless otherwise ordered by this Court or other proper authorities.

JANICE M. HOLDER, JUSTICE

CONCURRING: Anderson, C.J. Drowota, J.
SEPARATE CONCURRING AN D DISSENTING OPINIONS: Birch, J. Reid, J.