# FILED
September 21, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

### IN THE SUPREME COURT OF T ENNESSEE

AT NASHVILLE

FOR PUBLICA

TION STATE OF TENNESSEE, ) ) Filed : September 21, 1998 APPELLEE, ) ) HUMPHREY

S COUNTY v. ) ) Hon. Allen W. W allace WILLIAM E. HALL AND ) DERRICK D. QUINTERO, ) No. 01S01-9703-CC-00068 ) APPELLANT. )

FOR APPELLANT HA LL : FOR APPELLEE: Jennifer Davis Roberts John Knox Walkup Dickson, Tennessee Attorney General and Repor ter and Michael E. Moore Solicitor General Reese Bagwell Clarksville, Tenness

ee Darian B. Taylor

Assistant Attorney Gener al FOR APPELLA

NT QUINTERO: Nashville, Tennessee Shipp R. Weems Dan M. Alsobrooks District Public Defender District Attorney General Charlotte, Tennessee J. Kenneth Atkins and Special Prosecutor Charlotte, Tennessee Steve Stack Assistant Public Defender James W. Kirby Charlotte, Tennessee Assistant District A ttorney General Charlotte, Tennessee



# O P I N I O N

AFFIRMED. DROWOTA, J.1 These aggravatin g circumstances are now codi fied at Tenn. Code Ann. §39-13- 204(i)(2);a nd (5)-(8 ) (1997 R epl.). -2- In this capital case, the defendants, W illiam Eugene Hall, Jr., and Derrick Desmond Quintero, were co nvicted by a jury of two counts of murder during the perpetration of first degree bur glary, three counts of grand larceny, one count of petit larceny and three c ounts of first degree burgl ary. For their conv ictions of larceny and burglary, the defendants each were sentenced to eighty years incarc eration , which senten ces wer e ordere d to run consecutively

to the l ife sentences imposed for their conviction of the first de gree murder of Buford Vester. With respect to the first degr ee murder of Myrtle Vester, the jury found the proof established the following five aggrav ating circumstances: ( 1) the defendants were previously convicted of one or more felonies involving the use or threat of violence, Tenn. C ode Ann. § 39-2-203(i)(2) (1982); (2) the murder was especially hei nous, atrocious or cruel in that it involved torture or depravity of mind, Tenn. Code Ann. § 39-2-203(i) (5) (1982); (3) the murder was committed for the purpose of avoiding, i nterfering with, or p reventing a lawful arrest or prosecution of themselves or others, Tenn. Code Ann . § 39-2-203(i)(6) (1982); (4) the murder was committed while the defendant was engaged in committing or was an accomplice i n the commission of, or was at tempting to commit, or fleeing after committing or at tempting to commit, any firs t-degree murder, arson, rape, robbery, bu rglary, larceny, kidna ping, aircraft p iracy, or unlawful th rowing, placing or discharg ing of a destructive dev ice or bomb, Tenn Code Ann. § 39-2- 203(i)(7) (1982); and (

5) the murder was committ ed by the appellants whi le they were in lawful cust

ody or in a place of law ful confinement or during their escape from lawful custody or from a place of lawful confinement, Tenn. Code Ann . § 39-2-203(i)(8) (1982). 1 Finding that there w ere no mitigating cir

cumstances sufficiently substantial to outweigh the aggravating circumstances, the jury sentenced the defendants to dea th by electrocution for the murder of Myrtle Vester.2 "Whenever the death penal ty i s imposed for fi rst degree murder and when the judgment has become final i n the tri al court,the defendant shall hav

e the rig ht of dir

ect appeal f rom the trial court to t he Court of Cri minal Appeals. The affirmance of t he convicti on and the sentence of death shall

be automatical ly reviewed by t he Tennessee Supreme Court. Upon the af firmance by the Court of Cr iminal Appeal s, the cl erk shall do cket the case i n the Supreme Court and th e case shall proc eed in ac cordan ce with the Tenn essee Rules o f Appellate Proced ure.” -3- On direct appeal to the Tennessee C ourt of Criminal Appeals, the defendants challenged both their c onvictions and their se ntences. The appellate court found that the evidence did not support dual larceny convictions and ordered that the petit larcen y convictions be mer

ged with the grand l arceny. convictions. The intermediate appellate court aff irmed the defendants’ convictions of first degr ee murder and sentences of life impri sonment and death by electrocution, finding the jury’s erroneous reliance upon two inapplicable aggravating circumstances, (i)(6) and (i)(7), harmless beyond a reasonable doubt.
Pursuant to Tenn. Code Ann. § 39-13-206(a)(1) (1997 Repl.), 2 the case was docketed in this Court. The defendants have raised nume rous issues in this Court. After carefully ex amining the law, the r

ecord, and the thorough opinio n of the Court of Criminal Appeals , we have determined that none of the assignments of error require rev

ersal. We have also concluded that the C ourt of Criminal Appeals erred in finding the evidence insufficient to suppor t the (i)(6) aggr

avating circumstance, and according ly reinstate the jury ’s finding of that circumstanc e. The evidence is sufficient to sup port the jury’s findings as to the remaining aggravating circumstances and the mitigating circumstances. Finally we hold that the sentences of death are not arbi trary or disproportionate to the sentences imposed in similar cases,considering the nature of the crime and the defendant. Accordingly, the j udgment of the Court of Criminal A ppeals upholding the defendants' convictions and sentences of death by electrocuti on is affirmed as modified.3 Bobby S herm an, Leo S perling, and Floyd Co ok. 4 The truck was located seventeen m onths after the escape in a woode d area of Stewart County, Tennessee. It had been complet ely cover

ed with bran ches. -4- BACKGROUND The proof introduced by the State dur ing the guilt phase of the tr ial demonstrated that Myrtle and Buford Vester were murder ed in their home in the Leatherwood community of Stewart County, which is situated on Kentucky Lake and in close proximity to the Tennessee-Kentucky border. The Vesters were murdered sometime after their son l eft their home at 6:00 p.m. on Sunday, J une 19, 1988 and sometime before their bodies were discovered by

their neighbor around 10:00 a.m. on Wednesday, June 22, 1988.
Along with six other men, the defendants in this appeal, Derrick Quintero and William Hall, escaped from the Kentucky State Penitentiary at Eddyville during the early morni ng hours of June 16, 1988. Three of the es capees 3 were apprehended in the vicinity of the prison on or before June 18, 1988. However, the other five escapees, incl uding Quintero, Hall, J ames Blanton, Joseph Montgomery, and Ronnie Hudson left the area in a 1966 Chevrolet pick-up truck 4 which they stole from C urtis Rogers who lived about one-half of a mile from th e prison f acility.
The Stewart County Sheri ff’s department was notified at 2:30 a. m. on June 16 t hat inma tes had e scaped f rom the p enitent iary at Edd yville. Aft er news of the escape had been broadcast to the publ ic, the Sheriff’s department received a telephone call from Zachery Pallay, a resident of the Leatherwood community, warning that Quintero was familiar with the area and would probably seek refuge there. The Sheriff’s depar tment’s also received s everal reports of suspicious individual s in the Leatherwood area i ncluding a report of three men attempting to flag down a car. However, when a rash of burglaries broke out in-5- the Leatherwood community, the Sheriff’s department became convi nced that the escapees were in the ar ea. The burglarized r

esidences in Stewart C ounty were owned by Ji m McMinn, Neal Foster, Essie Settles, Alfred Cher ry, Thomas Harris, and John and Virg inia Crawford.
Though it is not possible to determine from the record the precise order in which the burglaries occurred, the proof demonstrates that five of the six burglaries occurred before 1:00 p.m. on Sunday, June 19, 1988.

The firs t burglary wa s reporte d and occ urred on J une 18, 1 988. Tha t day, Jim McMinn of Clarksv ille, Tennessee, arriv

ed at his cabin in the Leatherw ood area at approximately n oon. He left the cabin to go fish ing in his boat at around 1:00 p.m. Upon returning to the cabin at 2:30 or 3:00 p.m., McMinn noticed a box of shotgun shells ly ing on the floor and discov ered that his loaded .22 cali ber pistol was missing

from the bedroom. The telephone in his c abin had been removed from the wall, and the outside portion of the phone line also had been severed. McMinn w

ent to his truck and discov ered that the windows had been rolled up and the ignition destroyed with his ax. The telephone from McMinn’s cabin was in the bed of the truck.
Following the report of the McMinn burglary on June 18, the Sheriff’s Department initiated an intensive search of the area, utilizing helicopters, fo urwheel drive vehicles, and tracking dogs. At one point law enforcement officers chased some individuals on foot through the woods, but they were not able to overtake the persons suspected to be the escapees.
At some point, perhaps during that chase, Hudson and Mont gomery became separated from the def endants and Blanton. Hudson and Montgomery left the Leatherwood community and drove to Lebanon, Kentucky in a 1982-6- White Ford Fairmont they stole from Essi e Settles, a resident of the Standi ng Rock Community, whic h is approximately s ix highway mi les from the Leatherwood community. Montgomery’s fingerprint was found on Settles’ garage door. Hudson’s fingerprint was found ins ide the car when it w as later recovered. Settles had s een the car in her garag e around 10:00 a.m. on Saturday mo rning and discovered that it was missing at

approximat

ely 1:30 p. m. on Sunday afte rnoon. The pr oof demonstrat

ed that the ca r was stol en sometime Saturday night or before daylight on Sunday morning. Burned matches were found inside the garage indi cating that it had been dark when the theft occurred. In addition, whe n she watered her f lowers around 8:0 0 a.m. on Sund ay morning, Settles noticed that someone had re moved the hose from the outside faucet during the night. Settl es stated that the hose had been connect ed when she had used it on Saturday eve ning around 6:00 p.m.
Hudson and Montgomery arrived at Hudson’s brother’s apartment in Lebanon, Kentucky on Sunday, June 19, at approximately 1:00 p.m . They were driving a whit

e car with Tennessee lic ense plates, which w

itnesses identified at trial as the vehicle which had been stolen from Settl es. Hudson’s brother and a friend accompanied the two escapees to a secluded a rea on the river where Hudson and Montgomery hid the stolen car among the w eeds. Around 6:00 or 6:30 p.m., Hudson’s brother left the two escapees in the com pany of Hudson’s mother and sister. The next d ay, Hudson’s sister,her two children, and M artha Grover picked up the tw o escapees and transported them to G rover’s apartment where the y stayed un til early eve ning on Tu esday, Ju ne 21. Th e followin g day, Wednesday, June 22, Kentucky authorities apprehended both Hudson and Montgomery near the location where Settles' car had been hidden. Shots were exchanged prior to the convicts' apprehension. Hudson and Montgomery had in their possession McMi nn's .22 caliber pistol and a .22 caliber pistol w hich had been stolen from another resident of the Leatherwood community, Neal Foster.5 These paperweights wer e found seventeen months l ater in the bed of the 1966 Chevr olet truck w hich the e scape es had stolen ne ar Eddyville an d driven to th e Leathe rwood c omm unity. -7- Two live rounds were recovered from Foster's pistol, and four spent shells were recovered in the area. While this pr oof demonstrated that Hudson and Montgomery were s

ome two hundred miles awa y in Lebanon, Kentucky w hen the Vesters were murdere d in Stewart County,Tennessee, it also showed th at the McMinn and Foster bur glaries occurred before 1:00 p.m. on June 19.
The Cherry and Harris

burglaries were discovered around 3:00 or 4:00 p.m. on June 19, 1988 by Alfred Cher ry. Cherry’s

trailer was locat

ed approximately one-half of a mi le from the murder victims' residence. The inside of the trailer was in di sarray. A bed was unmade and wet towels w ere in the bathroom. The refrigerator l ight switch had been taped down to prohibit the li ght from operating when the refri gerator door was opened.The hot water tank had been set on high.
Missing from the trail er were two bedspre ads, a green thermal blanket,a sleeping bag, a portable radio, approximately fifteen cassette tapes, a rechargeable flashlight , a small handsaw, six knives, coffee mugs, var ious canned goods, a gallon of homemade w ine, two bottles of bourbon, a six-pack of beer, a toothbrush, underwear, and two paperweig hts bearing the Cumberland Electric logo. 5
Cherry did not have a telephone in his trailer. Upon discovering the burglary, he went

next door to call the pol ice on the telephone in the trai ler owned by his brother-in-law, Thomas Harris. Cherry discovered that Harris’ trailer had also been burg larized. The trailer had been ransacked. The refrigerator light had been removed. The sink w as full of dirty dishes, and food was in a skillet on the stove. Wet towels and sheets w ere strewn about and-8- cigarette burns wer

e all over the floors. S

tolen from the trailer wer e all the canned food items, two quilts, silverware, butcher knives, towels, toilet articles, and a fishing tackle.

When Harris later received his telephone bill, he realiz ed that several unauthorized long distance telephone calls had been plac ed from his trailer. Three of the unauthorized calls had been placed to a number in Spri ngtown, Texas. These calls occurr ed on Sunday, June 19, at 3:51 a.m., 8 :55 a.m. and 9:19 a.m. Two additional unauthor ized calls were placed to a telephone number in Hopewell, Pennsy

lvania, at 4:00 a.m. and 9:19 a.m. The telephone number called in Springtow

n, Texas, was listed to Bryan Quintero, w ho is a brother of Derrick Quintero. The tel ephone number called in Hopew ell, Pennsylvania, was listed to a Barbara Vasser, William Hall's girlfriend.

At trial, Vasser testified that Hall told her duri ng their first telephone conversation after the escape that his parole had been denied. H all would not reveal to Vasser his and Quintero’s location, but told Vasser that there were helicopters in the area sear ching for the escapees and that he and Quintero had been sep arated f rom Hudso n and Mon tgomery.
Two knives taken from the Cherry trailer were found at Neal Foster’s residence indicating that it was burglarized sometime after the Cherry and Harris trailers. Again, how

ever, the burglary

occurred sometime before 1:00 p.m on June 19, because Montgomery and Hudson had in their possession a gun which had been stolen from the Foster res idence when they wer e apprehended.

However, Foster d id not discover the burg lary until Tuesday, J une 21. The residence had been ransacked. Food was on a kitchen count er, deer steaks were in the micr owave, and his binocul ars were sitting on a kitchen-9- counter. A green ammunition box, a plastic bag full of old co ins, a flashlight, and the holster for his .22 cali ber RG pistol were o n the floor of the living r oom. The hallway floor was

littered with a Di et Pepsi can, a tin can of old coi ns, a notebook that once had old coins in it, some socks, a laundry basket with clothes that did not belong to him, and a pair of w hite tennis shoes that did not belong to him. Towels were strew

n around the house. He found in his bathroom a pocket knife, towels, a pair of socks,a .22 caliber shell box, and a 20 gauge shotgun shel l. The beds were unmade and had items spr ead on top of them. The master bedroom dresser drawers were open, and items we re scattered all around the bedroom, including two walkie-talkies, a hacksaw, and a 12 gauge shotgun barrel. In the front bedroom, he found s everal hats, matchbooks, a j ar of marshmallow cream, a box of graham crackers, and a small drinking glass.

In a walk-in closet in the residence Foster had kept a .22 caliber pistol,a Glenfield .22 caliber rifle, a Ma rlin .30-30 calib er lever action rif le, a 20 gauge shotgun, a single shot shotgun, a nd a Remington Mo del 1100, 12 gau ge shotgun. Following the burglary, he found the 12 gauge shotgun lying on his bed. Someone had attempted to saw off the barr el and had rendered the gun inoperable. The 20 gauge shotg un was missing from his house, but a portion of the gun’s barrel had been sa wed off and left in Foster's bedr oom. Also missing after the burglary w

ere his .30-30 lever ac

tion rifle and ammunition for var ious weapons, including .30- 30 accelerator rifle bull ets, .30-30 caliber rifle shells, 20 gauge shotgun shells, and 12 gauge shotgun shell s. In addition to the ammunition, several coins which Foster had collected, including silver dollars, were taken in the bur glary.

The authorities found several l atent prints at the Foster r esidence, and identified some of them as belonging to the escapees. A latent left thumb print matching that of Quintero wa s found on a full box of Federal 12 gauge shotgun-10- shells. A latent rig ht ring fingerprint matc hing that of Quintero was found on another Federal 12 gauge s hotgun shell box. A r ight middle finger and a r ight index fingerprint matchi ng Blanton's print w as found on a Federal field load 12 gauge shotgun shell box. A right palm print matc hing that of Quintero was lifted from one of the gun barrels. A latent right ring fingerprint matching that of Hall was lifted from a Diet Pepsi can.
Though the Crawford burglary was not discovered until after the Vesters’ bodies had been discovered, a glove taken from the Craw ford residence was found at the home of the murde r victims, indicating that the burglary actually occurred before the murder. The Cr awford residence was l ess than a quarter of a mile from the Vesters’ home. John and Virginia Craw

ford had left their trailer, clean and orderly, around 2:00 p.m. on Sunday, June, 19. Fo llowing the burglary, they found their kitchen ransacked. C anned foods, crackers, and candy bars from the cabinet and r efrigerator had been eaten. Pr ints were lifted from several items in the trailer. A latent left thumb print matchin g that of Hall was found on the bottom of a can of ham. A latent right index finger print left by Blanton was lifted from a Butter finger candy wrapper

found inside the refrigerator. The Craw fords identified two glov es found at the trailer, one w hite jersey and one brown j ersey, as belonging to Mrs. Crawford. A

patch on one of the gloves had been sew n on by Mrs. Craw

ford. Mr. Crawford testified that a flashlight had also been taken fr om the trailer. One of the gl oves found at the Crawfords' trailer

matched a glove found outside th e Vesters' front bedroom window. A fiber analysis of the two gloves indicated that they were likely originally sold together as a pair.
With respect to the timing of the murder, the pr oof showed that late on Monday evening, June 20, John Corlew and Arthu r Jenkins arrived a t the Leatherwood boat dock, launched their boat, and night fished i n the-11- Leatherwood Bay. Betw een 11:00 p.m. and 12:00 a.m. they heard five gunshots emanating from the direction of the Ves ters’ residence. Corl ew testified that he first he ard two gun shots tha t were fair ly clear, an d after a pause, h e heard two additional shots, another pause, and one f inal shot. Corlew testified that the first two shots and the second tw o shots sounded as if they w ere from different weapons. Mr. Jenkins testified that the two initial shots sounded like repercus sions fro m a pistol . Both Jen kins and C orlew hear d a total o f five gunshots.
The victims, Buford and Myrtle Vester, were l ast seen alive around 6:00 p.m. on Sunday June 19 by their son Wa yne. He, along with his twelve-year-old son, had arrived at his parents' home for a weekend v isit on the evening of Friday, June 17. He had picked up groceries for his parents including Pepsi colas, lunch meat, bread, and mil k. Wayne Vester left his parents home on Sunday, J une 19, a t approxim ately 6:0 0 p.m. At that time , the Vest ers were ali ve and well. Wayne attempted, unsuccessfully, to reach his parents by telephone once on Monday, June 20, and tw ice on Tuesday, June 21. Conc erned, Wayne called their n eighbor, Howar d Allor , who l ived ap proxim ately o ne quar ter of a mile from the Vesters, but Allor had not seen them since the precedi ng Friday morning. When Wayne was still unable to reach hi s parents on June 22, he again called Allor and asked him to check on them. Allor drove to the Vesters’ residence and discovered their dead bodies. He attempted to telephone the Sheriff from their residence, but the telephone was not functioning , so he returned home and reported the murders to the au thorities.

David Hicks, 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 only entr ance to the Vester residence w as a screen-12- door located at the side of the house opposite to the victims' bedrooms. The screen door had not been damaged. H owever, the front wi ndow was open, and the screen from the front window was lying on the ground near Myrtle Vester's bedroom window whi ch was located at the back of the house. Underneath the front window was a concrete block which apparently had been taken from the front of a shed located at the back of the hous e. A cloth glove w

hich matched a glove found at the Craw fords’ residence was found on the ground beside the concrete block. An unopened Pepsi cola can lay next to the walkway to the screen door of the house. The packag es of Pepsi cola that Wayne Vester had brought his parents w

ere missing from the porch. The Vesters' maroon 1985 Pontiac Bonneville also was missing. The w ires to the telephone connectio n box outside the Veste rs’ reside nce had b een dam aged and the line wa s dead. A l ive 20 gauge Federal shotgun shell with number 6 bir d shot was found lying

near the electrical box. A s pent 20 gauge number 4 shot Feder al shotgun shell casing was found near the shed approx imately 18 feet from Mr. Vester 's back bedroom window.

The windows to the vi ctims’ bedrooms were l ocated along the back of the house. Buford Vester’s bedroom w indow frame was vis ibly bent. The screen covering the wi ndow had a hole in it w hich indicated that Mr. Ves ter was shot at least once from outside the house. Some the glass louvers were broken, and shards of glass were found l ying on the bed. Mr. Vester's body was found on the floor next to his bed. The cov ers were drawn bac

k, and blood was on both the pillow and the bed. Number 4 and 5 bird shot pellets were retrieved from Mr. Vester's room. Two shot shel l filler wad s were fou nd besid e Mr. Veste r's body, and a 20 gauge plastic shot wad was recovered from beside his head. A plastic shot sleeve, one shot shell , a plastic shot wad, and several shot pellets, all either number 4 or 5 bird sh ot, were re covered f rom Mr. Ve ster's bo dy.-13- The victims were in separate bedrooms joined by a bathroom. Myrtle Vester’s body was found l ying in a pool of dried b lood on the floor of her bedroom next to the bathroom. Mr s. Vester had been shot three ti mes, once with a 20 gauge shotg un, once with a high-po wered rifle, and once agai n with either a shotgun or a hig h-powered rifle. She als o had been stabbed thirteen times. A copper-jacketed b ullet was recover ed from her body. Blood wa s found on Mrs. Vester's bed, and a considerable amount of blood was found on the bathroom floor. Blood was splattered on both the bathtub and the commode, and the bottoms of Mrs. Vester's feet also were covered in blood. The screen covering Mrs. Ves

ter's bedroom window

also had a hole in it, indi cating that at least one shot had been fired from outsi de. The open and unbroken condition of the glass louvers i ndicated that the high-pow ered rifle or shotgun had been near the window when it was fired. Shot was sprayed all over the house, especially the kitchen. All of the shot pel lets found in the house were ei ther number 4 or 5.

On the v

ictims ’ sofa authoriti es found a portio n of The Tennessean , dated Monday, June 20, 1988. The local mail carrier testified that the victims did not receive The Tennessean by mail. A live 20 gauge shotgun shell w ith number 7.5 shot was found lying o n the floor in the front bedroom nex t to a ransacked jewelry box.
Dr. Charles Harlan, the medical examiner, performed an autopsy on each victim and testified that the Vesters had died withi n two hours of consuming dinner. He stated that the v ictims had been shot a total of fiv e times, and a minimum of three different w eapons had been

used to murde r them.

Mrs. Vester had sustained three gunshot wounds. Guns hot wound A, located at the right porti on of Mrs. Vester’s chest j ust below her collar bone, measured approximately a quarter of an inch and was basically round in s hape.-14- This wound resulted wh en a copper jacketed bullet ent ered Mrs. Vester’s body and lodged in her left arm. Wound B resulted fro m a shotgun blast and was located in the upper arm. This wound measured 3.4 inches by 1.8 inches, was jagged, with an ir

regular edge, and had multi ple associated tangential abrasions. Wound C resulted from either a high-velocity rifle or shotgun. This gunshot blast had severed the two bones in Mrs. Vester's ri ght forearm, leaving her hand and wrist attached to her bo dy by a piece of tissue, consisting of only ski n, muscle, and fat. Dr. Harlan could not determine the order in w hich these three gunshot wounds were inflicted

.

Mrs. Vester also had sus tained thirteen stab wounds , one to the middle of her back and twelve t

o her head, neck, and shoulder r egion. A majority of the stab wounds were infli cted to the left side of her head and neck. Dr. Harlan surmised that the puncture wounds were made by a squared object with a sharp edge, such as a kitchen or hunting knife. Two of the stab w ounds severed her right and left common carotid ar teries. The right carotid artery was 90 per cent severed, and the left was 10 percent severed. Dr. Harlan testified that either the injuries to her carotid arteries or the gunshot injury to her right forearm would have been fatal. Dr. Harl an determined that Mrs. Vester could have surviv

ed the brutal attack for up to 15 minutes.

Mr. Vester had sustained tw o gunshot wounds. Shotgu n wound A was located at the head and neck junctur e. The total dispersal patter n of shotgun pellets was 13 inches. Wound A caused significant injury to his left lung, aorta, and pulmonary artery. Shotgun wound B was t o Mr. Vester's rig ht breast and caused trauma to his right lung and to his liv

er. Dr. Harlan recov

ered shotgun pellets and a shot column from Mr. Vester's chest and abdomen. D r. Harlan opined that Mr. Vester coul d have survived from four to twelve minutes after sustaining the gunshot injuries.-15- On June 21, 1988, around 8 a.m., employ ees of the Memphis Funeral Home observed three men, in a maroon Pontiac which w as later identified as the victims' car, enter the funeral home parking lot and park the car approximately 250 feet from the building. Two empl oyees of the funeral home testified that one man got out of the front seat, took his tank top off, and put on three additional shirts. The two other men also exited the car. None of the witnesses could make a positive identification of the three men. The witnesses testified that all three men were white and about the same height, but two of the men were approximately 180 pounds and had darker hair. They st ated that all three men had facial hair. One funeral home emplo yee described the three men as having beards and stated that one had long hair.
The three men remained in the parkin g lot for approximately five to eight minutes. Then, after one of them took something out of the trunk, the three men walked towards a hos pital across the street fro m the funeral home. One of the men turned, walked back to the car, and appeared to have placed a n item back into the car. He then joined the two other men, and then all three walked away

. The funeral home employees assumed that the three men were work

ing on a construction project at th e hospital. However, when the car had not been removed by Thursday, the funeral home employees contacte d the Memphis Police Department.
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 off icers fou nd a sawed -off 20 gauge shot gun conta ining one live round under the floor mat behind the dr iver's seat whic

h was later identified as the weapon stolen from the Foster residence, and as the weapon from which a-16- spent shell found outside the Vesters’ residence had been fired. Foster was able to identify the weapon by its serial number; however, the gun also had Foster’s full name carved into it. The police also discover ed under a floor mat a .30-30 caliber cartridge w

hich matched ammunition that had been tak en from the Foster residence. From a crumpled Budweiser beer can w hich also was found under the back seat police were able to lift three latent prints belonging to Blanton. No other prints were found in the car. The officer noted that the ex tremely hot temperatures in

Memphis

at the ti me the ca r was fo und made i t difficu lt to lift intact prints. Other it

ems retrieved from the vehi cle included a Ray-O- Vac flashlight, similar to one taken from the Crawford res idence, electrical tape, thirteen 20 gauge shotgun shells, three 12-ounce Pepsi colas, one 12-pack of Pepsi colas , a portable electric a ir compress or, a Black

& Decker ca r 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, located i n downtown Memphis w as approximately one mile from the Memphis Funeral Home. H is job was to prev ent loitering at the bus station. Mr. Jones sat in a b ooth and observed people wh o came inside to determine whether they purchased tickets. Periodically, he would walk around and ask people whether they had tick ets or if they were w

aiting 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 tick

ets. A man, whom he identified as Blanton, told him that-17- they would leave as

soon as their friend finished us ing 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. Jones res ponded that Blanton and Hall had pr eviously been at the station. Later in the w eek, Jones spoke with T.B.I.Agent Stout. Jones identified Blanton and Hall from a photograph ic line-up and made an in-court identification of Hall as one of the men at the bus station.

The Blue Movies West adult bookstore and enter tainment center was located across the street fro m the bus station. Shirley Denise Morrow testified that she worked as a cashier in the book store in Ju ne of 19 88. On Tu esday, June 21, the day before her bir thday, three men entered the books tore around 9:00 or 10:00 a.m. Two of the men w ere white, and one appeared M exican. The men traded a few silver dollars and half dollars for tokens. Morrow also purchas ed some o

f the sil ver dol lars an d half dol lars for herself.

The men went to the back of the establi shment to watch movies. Darlene Christof, a dancer at the establ ishment, testified that three “s cruffy” men entered her booth on June 21. Two of the men w ere white, and the other appea red either Hispanic or Mex

ican. Ms. Christof informed the men that only one was allowed to remain in the b ooth. Two of the men left. From a photog raphic lineup, she identified the man who remained in her booth as Quintero. Quintero later gave her several silver dollars and tried to sell her a class ring and a man's wedding band.

The men then returned to the front of the establishment approximately fifteen to twenty minutes later. They attempted to sell Mor row what appeared to be a class ring and a we dding ban d. Morrow de clined an d suggeste d they try a pawn shop. One of the men indicated that they did not have any identification-18- and offered Morrow fifty dollars if she would allow them to stay in the movie house until their transpor tation arrived. Mor

row declined their offer. Christof then came out from the back of the establis hment and pretended to use the telephone. When Christof commented that the three men res embled the escapees from the Kentucky pri son, they left. Morrow then contacted the police.
When shown a pre-trial photographic array of the eight escapees, Morrow identified Blanton, Quintero, and Hall as the three men who had visited the bookstore. Morrow turned over to the authoriti es the six silver dollars she had purchased from the men, and later, Fos ter identified the coins as tho se stolen from his residence. Morrow also made an in-court identification of b oth Quintero and Hall.
Lt. Thomas Pryor, an employee at the Eddyville peni tentiary, testified that Quintero had long hair, a moustache, long side burns and a goatee prior to the escape. Lt. Pryor stated that he had never seen Hall with a beard.

Hall was eventuall

y captured in El Paso, Tex as. Both Blanton and Quintero were captured i n Mexico near El Paso. Barbara Vasser, Hall's girlfriend at the time, testified that her mother called the Pennsylvania State Police after Hall calle d her for a third tim e followin g the esca pe. Afra id for Hal l’s safet y, Vasser notified the authorities that she had agreed to wi re money to him at the Western Union on North Stanton Street in El Paso, Texas. Hall w

as apprehended by agents of the Feder al Bureau of Investigation ("F.B.I.") when he entered the Western Union in El Paso at approx imately 2:20 p.m. on July 6, 1988.
On July 10, 1988, Quintero and Blanton were apprehended by Mexican officials at the Santa Fe Hotel i n Juarez, located just across the border from El6 Blanton w as sep arately tried an d convic ted of first de gree m urder an d sente nced to death. -19- Paso, Texas, and transported across the international br idge. F.B.I. agents took custody of both Quintero and Blanton from Mexican officials at a border checkpoint. Found in Quinter o’s possession when he w as taken into custody was an old wallet be

aring an imprint of Neal F oster's driver's license.
Based upon the proof summarized abov e, the jury convict

ed both Hall and Quintero of two cou nts of mu rder durin g the perp etration of first degree bu rglary, three counts of grand larceny, one count of petit larceny and three cou nts of first degree bu rglary. 6
During the sentencing phase, the State introduced proof that both Quintero and Hall had prev ious convictions for cr

imes involving the use or threat of violence. The State showed that Quintero had been previ ously convicted of two charges of escape in the first degree and one charge of first degree robbery. The Stat e also pre sented p roof tha t Hall had previous c onviction s for two separate assaults, wanton endangerment in the first degr ee, and aiding and abetting in threatening the life of the President and Vice Pr esident of the United States of America.
Finally, the State intr

oduced additional photographs and 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 introduced a pho tograph of the front of Mrs. Vester's body to demonstrat e to the jury the sever

ity of her injuries and the brutality of the attack.-20- In mitigation, Quintero pr esented the testimony of his uncl e and aunt, Paul and Josey Quintero, w

ho said that Quintero’s pare nts drank constantly. Quintero’s father would stay away from home for long periods of time, and his mother had extramarital affairs . Quintero was hungr y for love and affection when he visited his uncle and aunt’s home. Paul Quintero tes tified that Quintero was always eager to seek his approval and never gave him any trouble. Quintero’s parents did not discipline their children unless they were angry or drunk, at which time they would beat the c hildren. Testimony also i ndicated that Quintero never had clothes which proper ly fit him, and as a result, he was ridiculed by the other children at school.
Paul and Josey Quintero testified that they had attempte d to remain in contact with Quintero s ince learning of the crimi nal charges. They rel ated that Quintero had obtained his GED in prison and was also enrolled in refrigerati on and air conditioning classes. They believed that Quintero had improved himself and would make something pr oductive of his life.
Quintero’s cousin, Angel a Alva, testified that she and Quintero were at one time very close. She also related how Qui ntero’s parents had abused alcohol, and testified that Quintero had kept com pany with his older brother, Roderick, who was

a bad influence and not a good rol e model. According to Alva, Quintero was a follower, and Roderick was aggressiv

e.
A video deposition was shown of Helen Mimms Johnson, Quintero’s first grade teacher. Johnson testified that Quintero was mis chievous but never mean. He was held back a y ear and had trouble being attentive in class. Quintero was never v

ery clean and alway

s seemed exhausted when he came to school. Johnson never met Q uintero’s parents because they never attended any parent-teacher meetings.-21- Angela Holland and her 15-y ear-old son, Roderick Ke nt Quintero II, testified. Holland had been marr ied to Quintero’s brother for approximately three years. Holland and her son had maintained contact with Quintero and said that he had been influential in helping his nephew stay out of tr ouble.
In mitigation, William Hall present ed the testimony of his older brother, Robert Hall, a prison minister. Robert said that defendant Hall was born in Paducah, Kentucky. Their parents divorced when defendant Hall was two years old. Their father worked on a barge and was gone for e xtended periods of time. Their mother died of throat cancer when defendant Hall was four,and at that point, Hall went to li

ve with his father and s tepmother. Hall’s stepmother was at one time addicted to codeine.
According to Robert, the Hall children wer e not disciplined nor taug ht right from wrong but were s

ometimes beaten. Defendant Hall beg an getting into trouble in grade school. He began drinking alcohol in his pre-teens, and by his early twenties, he had begun abusing drugs. Robert testified that W illiam Hall was a follower, not a leader.
For a time following hi s parole in 1982, defendant Hall ha d lived with Robert and his wife Ester in Pennsylvania. H e worked with Rober t at a tire shop and attended church with Ro bert and Ester. Robert testified that Hall had turned to God and changed his life. H all lived with R obert and Ester for eight months

. Hall, however, l ater moved into a trailer near his place of employment and began drinking. Eventuall

y, he returned to Kentucky. The last time Robert and Ester had seen Hall was at his stepmother’s funeral in 1987. They speak with him weekly by telephone, however.-22- Barbara Vasser also testified. She had met Hall when he ha d lived with his brother in Pennsyl

vania. Vasser said that Hall's life had changed after he accepted Christ. She and Hall were engaged but never set a date because Vasser was only se

venteen years old at the time. Vasser testified that sh e and Hall were friends off and on betw een 1982 and 1988. Vasser said she had assisted the authorities bec ause she had been afraid for Hall’s safety. Vasser had not remained in contact with Hall after his apprehens ion.
Dr. Kenneth Anchor, an associate professor of psychology at Vande rbilt and a clinical psychol ogist, testified that he prep ared a psychological

evaluation of Hall in 1991. He testified as to the background inform ation conveyed by Hall during the interview. Hall grew up i n Paducah, and his formal education ended after the ninth grade. He lat er earned his GED whi le incarcerated. Hall began using drugs and alc ohol at age eleven and was addicted to Valium by age fourteen. He was placed in juvenile detention sev eral times and was sent t o a youth development center. Hall worked at different j obs while a young ad ult, but he had mostly been in and out of prison since age seventeen. Hall info rmed Dr. Anchor that he had experience d two head injuries. H e fell off a porch as a baby and was struck in the hea d with a baseball bat w hen he was fourteen.

Dr. Anchor testified that H all was cooperativ e and responsive during the interview. Hal l did not offer any excuses or attempt to blame others. There w as no indication of malingering . Moreover, Hall w as enthusiastic about his pl ans to pursue college courses in computers and data processi ng while incarcer ated.

Hall scored a 99 on his I. Q. test which placed hi m in the 48th percentile. Dr. Anchor testified that although Hall has a reasonabl e amount of intelligence, he has some difficulty utilizing it. Hall experiences cognitive interference which is frequently seen in people who have habitually abused drugs and alcohol. Dr.-23- Anchor found Hall’s judgment,reasoning, and problem-sol ving skills to be "unstable." According to Dr. Anchor, that finding is consistent with a history composed of head injuries and substanc e or polysubstance abuse.

Dr. Anchor concluded that H all is seriously maladjusted and suffers from organic personality

syndrome. Dr. Anchor stated that persons with test profiles similar to Hall's us ually have a strong sense of worthlessness and inferiority. Hall feels a deep sense of shame, embarr assment, and humiliation for many of his past actions. Dr. A nchor opined that Hall’s ps ychological maladjus

tment can be treated effectively with counseling or psychotherapy. At the time of trial, Dr. Anchor stated that Hall did not present a danger either to himself or to others in a prison setting. Dr.Anchor opined that Hall's prognosis was good assuming he abstained from future substance abuse. D r. Anchor concluded that the prospect s for soci al, educa tional, a nd vocatio nal func tioning wer e satisf actory.
In rebuttal, the State presented the testimony of Dr. Samuel Cr addock, a clinical psychologist at Middle Tennessee Mental Heath Institute. Dr. Craddock interviewed Hall and disagreed with Dr. Anchor as to the degree of danger Hall poses. Dr. Craddock further testified that he had not seen any data to support a finding that Hall suffered from an organic personality sy ndrome.
Based upon this proof, the jury found five aggravating circumstances which were not outw

eighed by the mitigati ng circumstances and, ther efore, sentenc ed the de

fendants to death for the m urder of

Myrtl e Vester

and to li fe imprisonment for the murder of Buf ord Vester.7 In State v. Bush , 942 S.W.2d 489 (Tenn. 1997), this Court again refused to narrow app licatio n of (i) (6) "to only tho se k illings w hich are s olely m otivat ed or pred om inate ly mo tived b y a desire to a void arres t or prose cution." Id . at 504 (ci ting State v. Carter , 714 S.W.2d 241, 250 (Tenn . 1986)). Ins tead we reaffirm ed our p rior holdings that applica tion of (i)(6) is a ppropria te when proof shows that avoidance of pr

osecution or

arrest was one of

the purposes motiv

ating t he killing. Id . (cit ing State v. Sm ith , 868 S.W .2d 561, 581 (Tenn. 1993 )).

-24- MURDER TO PREVENT ARREST AGGRA VATING CIRC UMSTANCE (i)(6) The defendants argue that Tenn. Code Ann. § 39-2-203(i)(6) "is unconstitutionally v

ague as applied to the facts in this case." The defendants contend and the appellate court found that there was no proof that the defendants killed the victi ms to prevent arrest or prosecution. The intermediate appellate court determined that ( i)(6) was inappli cable because "there was no proof tha t Mrs. V ester k new the appellants or w

ould hav e been abl e to identify them to law enforcement officers."
We reject the narrow construction ar gued for by the defendants and adopted by the appellate court -- that (i)(6) appli es only when a vi ctim knows or can identify a defendant. 7 Aggravating circumstance (i)(6) pr ovides for imposition of the death penalty w hen: [t]he murder was committed for the purpose of avoiding, interfering with, or preventin g a lawful arrest or prosecution of the defendant or another; Tenn. Code Ann. § 39-2-203(i)(6) (1982). By its terms, the statute does no t limit the aggravating circumstance only to those instances in which a defendant kills a victim because the vi ctim knows or can identi fy the defendant. For example, a witness to a robbery

may be killed whil e attempting to restrain a masked perpetrator. The mask may effectiv ely prevent the witness from ever identify ing the perpetrator; but if the ev idence established that the per petrator killed the witness to flee the crime scene and avoid arrest, ap plication of (i)(6) w ould be appropriate. While the victim's ability to identify the mu rderer may be evidence supporting a finding of (i) (6), a victim’s i nability to identify the murderer does not-25- preclude its application if the evidence introduced es tablishes that one of the purposes motivating the murder was a desire to a void, interfere with , or prevent a lawful arrest or pro

secution of him or herself or anothe r. See, e.g. , State v. Smith , 868 S.W.2d 561, 580 (Tenn. 1993) (emphasizing that it is the motive of the killing that is the critical factor).
The proof in this case amply su pports this aggrav ating circumstance. The State theorized that the defendants murdered the victims to pr event the thefts from being reported. The proof suppor ts this theory. The ev

idence showed that the defendants burglarized several residences in the area where the murders were committed. At the Cher ry and Harris res idences, the defendants tampered with the refrigerator

lights, thereby pr

eventing the lights

from illuminating and alerting others to the defendants' presence. At the McMinn residence , as well as at the Vester home, the defendants sev ered the telephone lines, thereb y preventing help from being summoned. The def endants stole the Vesters' automobile and used it to travel to Memphis. Taken together, this proo f strongly indicates that the defendants wer e attempting to avoid being discovered and arrested for the numerous thefts they had committed in the Leatherwood area.
The jury's application of the (i)(6) aggravator is strengthened in this case by the fact that the defendants had esca ped from prison. The evidence recounted above also establi shes that the defendants were conc erned with avoiding apprehension and arrest for escape at the time of the mur ders. The jury could have found bey ond a reasonable doubt that the defendants mur dered the victims so that they could steal their car t

o leave the area and avoi d being captured. We find that the evidence is sufficient to support the jury’s finding of the (i)(6) aggrav

ating circumstance. Acc ordingly, we r

everse the judgment of the Court of Criminal Appeals as to this issue. Because the Court of Criminal8 We affirm the finding of the Court o f Criminal Appeals that th e jury’ s erroneous rel iance upo n the invalid felon y mu rder aggr avatin g circ um stan ce w as ha rm less beyon d a re aso nab le doubt. 9 This aggravati ng circumstance appl ies if “the murder was committed by the defendant while t he defendant was i n lawful custody or i n a place of l awful confi nement or during t he defend ant’s esc ape from lawful cus tody or from a place o f lawful con finem ent.” -26- Appeals had found the error harmles s our holding in this r

espect does not change the result. 8

MURDER COMMITTE D DURING ESCAPE

AGGRA VATING CIRC UMSTANCE (i)(8) The defendants next argue that Tenn. Co de Ann. § 39-2-203(i)(8) 9 "is unconstitutionally v

ague as applied to the facts of this case." The defendants further maintain that aggrav ating circumstance (i )(8) "was intended to pr otect law enforcement officers." The State counters that the circumstance was properly applied as the victims w ere killed while th e defendants were in the proces s of escaping to Mexico. While all members of the Court agree that the evidence in this case is sufficient to suppo rt the jury’s finding of this aggravating circumstance, Justice Ho lder dissents from the rationa le of the majority and would hold that the (i) (8) aggravating circumstance may be appli ed any time the proof establishes that a murder was committed by a person on escap e status.
This broad interpretation of the s tatutory aggrav

ating circumstance w

as recently rejected by

this Court in State v. Odom , 928 S.W.2d 18, 27 (Tenn. 1996) (Anderson, C.J. and Drow ota, J., dissenting). In Odom the murder occurred almost six weeks after the defendant had escaped f rom a Mississippi jail where he was serving a life sentence for another murder. The mur der for which Odom was sentenced to death in Tenness ee was unconnected with and did not, in any way, further his esc

ape. Concluding that the ag gravating circumstance did not apply based upon the facts in Odom’ s case, this Court stated: Our rationale is simple--”during” as used in the statute means “throughout the continuance of.” The end of the escape marks the beginning of one’s-27- status as an “escapee.” Although Odom was, assuredl y, an “escapee,” by no stretch can we say that the murder occurred during the defendant’s escape from lawful confinement or dur ing the defendant’s escape from lawful custody or from a pl ace of lawful confinement. When he committed the murder, Odom’s escape was an accomplished fact-- a fait accompli

. Id . at 27. Unlike the murder in Odom , the murders in this case were committed by the defendants “during [their] escape from lawful custody or from a place of lawful confinement.” Indeed, these murders were committed onl y four days after the defendants fled confine ment in Kentucky and while the defendants were in the process of obtaining the Ves ters’ automobile -- a means o f transportation to further their escape. Indeed, the proof sho ws that the escapees had remained in an area approximately t wo miles in diameter unti l they were able to s teal automobiles to further their escape. Moreover, law enforcement officers were actively canvas

sing this small area for the defendants, searching wi th helicopters, tracking

dogs, and four-wheel dri ve vehicles in an at

tempt to locate the escapees in the Leatherwo od community. The plain lang uage of the statute does not support the dissent’s position that evidence of a defendant’s escapee status, without more, is sufficient to support this agg ravating circumstan ce. Had the General Assembly intend ed for the aggravating circumstance to apply und er those circumstances, clear language dictating s uch a result could have bee n employed. It was not. Instead, the statute permits the aggravating circumstance to be app lied if th e proof d emonstr ates tha t a murde r was commi tted by a defendant “during [the defendant ’s] escape from lawful custody or from a place of lawful confinement.” Clearl y, the defendants were sti ll in the process of escaping from Kentucky to Mexico. These murders were simply a step toward accomplishing this end. Accordingly, we conclude that the evidence in this case is sufficient to support the jur y’s finding of this agg ravating factor. Contr ary to the10 Apparently the dissent

fails to recogniz

e that our h olding i n Odom was based upon our determinati on that t he evidence i n the record on a ppeal was legally insufficient to support application of the aggravating circumstance. W e did not weigh the evidence; therefore, contrary to the dissent’s assertion, this Court did not supplant the jury’s fi nding on this issue. Moreover, the disse nt’s asse rtion that the S tate had n o oppo rtunity to deve lop or argu e the fac ts relevan t to applicat ion of th e aggravati ng circumstance agai n fail s to recogni ze that i n reviewi ng the legal suffici ency of the

evidence i n Odom , this C ourt c ons idere d the evide nce in the r eco rd on appe al in the li ght most favorabl e to the State. Fin ally , our hol ding in Odom did not pr event the St

ate from further dev

eloping the facts at the resentenci ng hearing t o establi sh that Odom committed the murder to furth er his escape fr om custody and to suppor t appli cation of the (i) (8) aggravat ing circum stance

. State v. Ha rris , 919 S.W .2d 3 23, 3 31 (T enn . 199 6) (A t rese nten cing the S tate is not lim ited to proo f pre sen ted in the init ial sen tenc ing he aring , “but is free to stre ngth en its cas e in any way it can by the introduction of new evidence.”) -28- position of the dissent, this C ourt’s decision in Odom does not preclude application of this factor. 10

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 circumstances consistent with those in similar cases i n which the death penalty has previousl

y been imposed." Id

. citing State v. Ramsey , 684 S.W.2d 320, 328 (Mo. 1993). A sentence of death is not disprop ortionate 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)).
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.-29- 1994). This Court consider s many variables w

hen choosing and comparing
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 motivation 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 killing; (6) the absence or presence of premeditat ion; (7) the absence or presence of prov ocation; (8) the absence or presence of justification; and (9) the injury to and effects on non-deced ent victims. Id .; Hall , 958 S.W.2d at 699. Factors considered when comparing characteristics of defendants include: (1) the defendants' prior criminal recor

d or prior criminal activity; (2) the defendants' age, race, and gender; (3) the defendants' m ental, emotional or physical c ondition; (4) the defendants' in volvement or role i n the murder; (5) the defendants' cooperation with authorities; (6) the def endants' remorse; (7) the defendants' know ledge of helplessness of vic tim(s); and (8) the defendants' capacity for rehabil itation. Id

.
Considering the nature of the crime and the defendants, we find that imposition of the death penalty upo n these defendants is not dispropor tionate to the penalty imposed in simi lar cases. Mrs. Veste r was sixty- nine-years old at the time the defendants murdered her. She w as shot at least once from outside her house while she lay in bed. Her husband was s hot and murdered in an adjacent room. He died of multiple shotg un wounds to the head, neck and c hest. The evidence indicates that M rs. Vester struggl ed to evade the brutal attack that severed her forearm and left her wrist and hand attached only by a small piece of soft tissue, consisting of sk in, muscle, and fat. The record i ndicates that she was shot once with a shotgun, once with a high-powered rifle, and once more with either a shotgun or a high-powered r ifle. She was then stabbed thi rteen times. The stab wounds we re to her face, head, neck, shoulder, back and upper chest. The bottoms of her feet were c overed in blood indicati ng that she-30- attempted to flee the attack by w alking through a pool of her own blood. Medical testimony indicates that s he survived for as lon g as fifteen minutes following the infliction of her wounds.
The defendants had escaped from prison and w ere fleeing authorities when they murdered the v ictims. They had committed sev eral burglaries in the area, obtaining food and supplies. Law enforceme nt officials had focused their search to the two mile ar ea encompassing the burglar ies, and the defendants were desperate for a mode of transp ortation out of the area. They obtai ned the vehicle they needed by murdering the Vesters i n their own home, traditi onally the place of greatest safety and security. They committed the crime around midnight when the Vesters were asleep and most vulnerable to attack.

Both defendants had extensive criminal records. Quint ero had been previously convicted of two charges of escape in the f irst degree and on e charge of first degree robbery. Hall had previous convictions for two separate assaults, wanton endangerment in the fir st degree, and aiding and abetting in threatening the life of the President and Vice Pr esident of the United States of Americ a. Neither defendant has shown re morse nor does either appear to be a candidate for reha bilitati on. The d efenda nts comm itted the se brutal crimes on ly three da ys after escaping from lawful confin ement which had been imposed as a result of other criminal activity. There is no evidence that the defendants were intellectually impair

ed, and the psychological testimony did not indicat e that the defendants we re insane at the time of the

killings . Although there was s ome testimony regarding

past drug and alcohol abuse,there was no proof offered to establish that the defendants wer e under the influence of drugs or alcohol when these murders were committ ed. The jury found five statutor y aggravating circumstances, four of which were supported by the proof and othe rwise appropriately applied. The mitigation proof related primarily to the def endants’-31- childhoods. Finally, by two separate juries, all three participants in these murders, Hall, Quintero,and Blanton, have been convi cted of first degree murder and sentenced to death. According ly, we conclude that the nature of the defendants' crimes, their criminal backgrounds, their infliction of unnecessary and gratuitous violenc

e, and their complete disregard for human life places them into that class of criminal defendants fo r whom a sentence of death is appropriate.
Hall argues that his s

entence of death is disproportiona te because the evidence placing him at the murder scene was circumstantial in nature. This argument, however, i s better addressed by a sufficiency of the evidence rev iew. The jury found Hall guilty beyond a reasonable doubt of two counts of mu rder in the perpetration of a felony. The appel late court found that the evidenc e was sufficient to support the convi ctions. The medical proof establi shed that a minimum of three weapons were used to murder Myrtle Vester. Moreover, pr ints from the defendants and Blanton were found at the various burglar ies in the Leatherwood community. Ite ms from these burglaries w ere found either near the victims’ residence o r in their car, whi ch was abandoned in Memphis by three individuals matching the general description of these two defendants and Blanton. In addition, these two defendants an d Blanton were seen together in Memphis the day af ter the m urder by se veral indi viduals. Up on exhaus tive review of both the recor d and the arguments advanced by counsel, we find that the evidence supports the jury's verdict finding the defendants guilty of first degree murder during the perpetration of felony. Jackson v. Virginia , 443 U.S. 307 (1979); State v. Williams , 657 S.W.2d 405, 410 (Tenn. 1983), cert. denied , 465 U.S. 1073 (1984); State v. Cabbage , 571 S.W.2d 832 (Tenn. 1978); Tenn. R. App. P., Rule 13(e). The ev idence also establishes that both Hall and Quintero actively participated in the kill ing of the Vesters. Accordi ngly, our review will now focus on the circumstances of the defendants' killings in-32- comparison to other killi ngs for which murderer s have received a sent ence of death. This review i ncludes a thorough examination of Rule 12 reports from tri al judges submitted over th e past twenty year s in all criminal tr

ials for first degree murder in which either

life imprisonment or a sentence of death has been imposed. Based upon our review, we conclude that the following cases in which the death penalty has been imposed have many similariti es with this case.

In State v. Henley , 774 S.W.2d 908 (Tenn. 1989), the jury imposed th e death penalty upon finding a single aggravating circumstance, which was also found in this case, the murder w as especially heinous, atrocious, or cruel in that it involved tortur

e or depravity of mind. Tenn. Code Ann. § 39-2-203(i)( 5). Unlike the defendants in this c ase, Henley had no prior criminal record, and he had been drinking the day that he forced the victims, a married couple with whom he was acquainted,from the road to their house demanding money at gunpoint. As in this case, Henley shot the husband and then the wife in their own home. When the wife began moaning, Henl ey shot her two times more, poured gasoline on her body , and set the house on fire. She suffered befor e she eventually died from burns and smoke inhalation.

In State v. McNish , 727 S.W.2d 490 (Te nn. 1987), the twenty-nine-yearold defendant murdered the seventy -year-old widow

in her own home by str iking her in the head and face repeatedly with a glass v

ase. The victim was c

onscious during the attack for a shor t time, and was alive

when she was found, but lat er died from hemorrhaging of the brain. Unlike the defe ndants in this case, McNish had no prior criminal r

ecord, and he had been using dru gs when the murder w as committed. Ne vertheless, the ju ry imposed the de ath sentence upon finding a single aggravating circumstance, one w hich was also found in this case, that the murder was especially

heinous, atrocious, or cr uel in that it involv

ed torture or depravity of mind. Tenn. Code Ann. § 39-2-203(i)(5).-33- In State v. Barber , 753 S.W.2d 659 (Te nn. 1988), the twenty-nine-year-old defendant killed the helpless and un resisting seventy -five-year-old v

ictim in her own home by striking her in the head five times with a crescent wrench. As in this case, the victim in Barber remained alive during

at least a portion of the assault, and attempted to avoid the assault and protect herself, whi ch was evidenced by defensive wounds on her hands . Though Barber offered mitigati on proof that he was capable of rehabilitati on, the jury neverthel ess imposed the death penalty upon finding two aggr

avating circumstances , both of which were al so found by the jury in this case . Tenn. Code Ann. § 39-2-203(i) (5) & (7). See Barber v. State , 889 S.W.2d 185, 189-90 (Tenn. 1994) (concluding , as in this case, that the jury’s considera

tion of the felony murder agg ravating circumstan ce was harmless error).

In State v. Thompson , 768 S.W.2d 239 (Tenn. 1989), the twenty-twoyear-old defendant abducted his female victim at gunpoint and took her to a remote lo cation. As in this c ase, the victim was re peatedl y stabbed , with two fatal wounds inflicted upon her right lung. Also like this case, the victim remained alive and consci ous for perhaps five to ten minutes . The jury imposed the death sentence upon finding three aggravating ci rcumstances. Tenn. Code Ann. § 39-2-203(i)(5), (6) & (7).

In State v. Payne , 791 S.W.2d 10 (Ten n. 1990), the twenty-year-old defendant entered the home of the victims and stabbed one victim approximately forty-two times and the o ther victim approxi mately nine times. The jury imposed the death penalty upon finding two aggravating circumstances, including, as in this case, that the murder was especially heinous, atrocious or cruel in that it involved torture or depravity of mind. Tenn. Code Ann. § 39-2-203(i)(3) & (5).-34- In State v. Smith , 893 S.W.2d 908 (Te nn. 1994), a forty-one-year-old defendant broke into the home of the eighty-eight-year-old female victim. He robbed her, raped her, cut her throat and placed her into a bathtub full of water. The victim was aliv

e when water entered her lungs. Though the defendant suffered from diminished intellectua l capacity and was classified as "mentally retarded," the jury impos ed the death penalty upon finding two aggravating circumstances, both of whic h were also found in this c ase, that the defendant had been previously con victed of a felony offense invol ving violence to the person and that the murder was especially heinous, atrocious or cruel in that it involved torture or

depravity of mind. Tenn. Co de Ann. § 39-13-203(i)(2) & (5).

In State v. Van Tran , 864 S.W.2d 465 (Tenn. 1993), the nineteen defendant

killed the vic tim, a se venty -four y ear old woman du ring th e course of a robbery by shooting

her once in the lower j aw or neck region and once in the back of the head. The victim w as lying on the floor hel pless when she was k illed, much like the Vesters w ho were assaulted whi le they lay in their beds. The victim was a member of the famil y which owned the Chinese restaurant that the defendants were robbing. The family lived in the area behind the restau rant, so as in this case, the vi ctim was murdered in her own home. The jury imposed the death sentence upon finding two aggravating ci rcumstances, Tenn. Code Ann. § 39-2-203(i)(5) & (12).

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 co-defenda nt, Strouth, robbed a store and during the course of the robbery, slit the thr oat of the seventy-year -old male store clerk w ho bled to death. As in this case, the pr oof did not absolutely establi sh which individua l inflicted the fatal throat woun d, although it was appar ently inflicted by Str

outh. The jury imposed the death penalty upon finding two aggravating circumstances,-35- including, as in this case, that the murder was e specially heinous, atr

ocious or cruel in that it invo lved torture or deprav ity of mind. Tenn. Code Ann. § 39-2
- 203(i)(5) & (7). The j ury also imposed a sentence of death upon the codefendant Strouth, finding the same tw o aggravating ci rcumstances. State v. Strouth , 620 S.W.2d 467 (Te nn. 1981).

Two other co-defendants also r eceived the death penalty though the proof did not absolutely identify which individ ual was the shooter. In State v. Sample , 680 S.W.2d 447 (Tenn. 1985) and State v. McKay , 680 S.W.2d 447 (Tenn. 1985), the twenty-fiv

e-year-old defendants, in s eparate trials, were convicted of felony murder and sentenced to death for shooting two store c lerks to death during the course of a robber y. Though Sample appeared to be the leader in the commission of the crime, the ev idence did not absolutely establish the identity o f the shooter. The jury impos ed the death sentence in each case findi ng three aggravating ci rcumstances with respec t to Sample, Tenn. Code Ann. § 39-2- 203(i)(3),(6) & (7) , and four aggravating circumstances, Tenn. Code Ann. § 39-2- 203(i)(2 ), (3), (6) & (7), with re spect to M cKay.

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-CC-00369 (Tenn. Cr im. App., at Jackson, Dec. 12,1996), app. denied (Tenn. 1997) (sentencing to life where victi m 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 Ja ckson, Mar. 8, 1989), app. deni ed (Tenn. 1989) (sentencing to life whe re victim shot three ti mes). In both North and Craft , the defendant s either admitt ed to being at the scene or showed rem orse. Although these cases are similar t o some extent, the similari ties do not render these death sentences disproportionate. As we have previously stated, our role in-36- conducting comparative p roportionality rev iew is to assure that no aberrant death sentence is affirmed.
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, a great majority of the cases cite d involved, as does thi s appeal, murders of unresisti ng, defenseless, and elderly victims who were beaten, tortured, and assaulted in their own homes or businesses. In most of the cases cited, the killings were committed to accomplish a robbery or burglary. Unlike the defendants in this case, in several of the cas es discussed, the defendants offered mitigation proof to show that they had no pr ior criminal record and were under the influence of drugs or alcohol when the crimes were committed. Unlike these defendants, in at least one case, the defendant had a potential for rehabilitation. After reviewing the cases discussed above, and many other cases not herein described, we are of the opinion that the penalty imposed by the jury in this case is 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 four aggravating circumstances and that no mitigating circumstances were sufficiently substantial to outweigh the aggr avating circumstances . Tenn. Code Ann. § 39-13-206(c)(1)(A) - (C). We have carefully reviewed the defendan ts' 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 William M. Barker, joined in by

Judge Paul G. Summers and Judg e David H. Welles.-37- The defendants’ sentences of death by elec trocution are affirmed and wil l be carried out as provided by law on the 29th day of Janauary, 1999, unless otherwise ordered by this Court or other proper authorities.

FRANK F. DROWOTA, III, JUSTICE

Concur: Anderson, C.J. Holder, J. - Separate Conc urring/Dissenting

Opinion. Birch, J. - Separate Concurring/Dissenting Opinion. Reid, Sp.J. - Not P articipating.