1 See Tenn. Code Ann. § 39 -13-206(a) (1 997) (Up on the Cou rt of Criminal Ap peals’ affirmance of a

death sentence, the appeal shall automatically be docketed in the Supreme Co urt).

2 “Prior

to the setting of oral argument, the Court shall review the record and briefs and consider all errors assig ned. Th e Court m ay enter a n order d esignating those issues it wishes addressed at or al argument.” Tenn. Sup. Ct. R . 12.2. 

### IN THE SUPREME COURT OF TENNESSEE AT JACKSON November 15, 2000 S ession
STATE OF TENNESSEE v. JAMES P. STOUT
Appeal from the Co

urt of Criminal Appe

als Criminal Court for Shelby County Nos. 96-08227, 96-08228, 96-08229 Joseph B. Dailey, Judge

No. W1998-00079-SC-DDT-DD - Filed May 24, 2001

The defen dant, James P. Stout, was convicted of felony murder, especially aggravated kidnappi ng, and especially aggravated robbery. Following the sentencing phase of the trial fo r felony murder, the jury found that the evidence supported three aggravating circumstances: (1) that the defendant was previously convicted of a fe lony whose s tatutory elements involved the use of violence to the person; (2) that the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant

or another; and (3) that the murder
was knowingly committed, solicited, directed, or aided by the defendant, while the defendant had a substantial role in committing or attempting to commit, orwas fleeing after having a substantial rolein committing or attempting to commit, any robbery or kidnapping. See Tenn. Code Ann. § 39- 13-204 (i)( 2), (6), (7) (Supp. 1995). Upon finding that the evidence of these three aggravating circumstances outweighed evidence of mitigating circumstances beyond a reasonable doubt, the jury imposed a sentence of death.

The Court of Criminal Ap peals a ffirm ed the convictions and sentences, and the case was docketed in this Court. 1 After reviewing the decision of the Court of Criminal Appeals, the record, and the applicable authority, we designated seven issues for oral argument 2 and conclude as f

ollows: (1) the evidence wa

s sufficient to supp

ort the jury’s ver

dict; (2) the tria

l court did no t commit reversible error in allowing

Tonya Woodall to

testify as to statements made by Quentin Jordan; (3) the adm ission of facts underlying the defendant’s prior conviction for a violent felony during sentencing did not affect the jury’s determina

tion to the prejudic

e of the defenda

nt; ( 4) the prosecutor’s use of the defendant ’s prior convictions to cross- examine a defense witness during sentencing did not affect the jury’s determination to the prejudice of the defendant; (5) the exclusion-2-

of mitigating evidence offered by the defendant during sentencing did not affect the jury’s determination to the prejudice of the defendant; (6) the felony murder aggravating circumstance was properly applied; and (7) the sentence of death was not arbitrary or disproportionate. We also agree withthe Court of Criminal Appeals’ conclusions with respect to the remaining issues, the relevant portions of which ar e included in t he appendix to this opinion. Accordingly, the judgment of the Court of Criminal Appeals is affirmed. Tenn. Code Ann. § 39-13-206(a)(1); Judgment of the Court of Criminal Appeals Affirmed

E. R ILEY A NDERSON , C.J., delivered the opinion of the court, in wh ich F RANK F. D ROWOTA , III, J ANICE M. H OLDER , and W ILLIAM M. B ARKER , JJ., joined. A DOLPHO A. B IRCH , J R ., filed a concurring and dissenting opinion.

Robert C. Brooks and William D. Massey, Memphis, Tennessee, for the appellant, JamesP. Stout.

Paul G. Summers, Attorne y General and Re

porter; Michael E

. Moore, Solicitor G

eneral; Joseph F. Whalen, Assistant Attorney General; John W. Pierotti, District Attorney General; and Je rry Harris and Lee Coffee, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

Guilt Phase

The defendant, Jame

s P. Stout, was convicted of the felony murder, especially aggravated kidnapping, and especially aggravated robbery of the victim, Amber Hunter, age 26. The evidence is summarized as f

ollows.

On November 8, 1995, the defendant and three co-defendants, Derrick Carmichael, Robert Terrell, and Quentin Jordan, were at the apartment of Tonya Woodall in Memphis, Tennes see
. Jordan testified that the four men left Woodall’s apartment in a blu e Corsica driven

by Terrell. The defendant,

who was in the front passe nger seat, saw th

e victim driving her car and said that he “was going to get this whore.” The four men followed the victim for five or tenminutes and then pulled behind her car as she parked in front of her house. According to Jordan, the defendant got out of the car, grabbed the victim

by her hair, put a gun to her stomach, and forced her into the backseat of her ca r. T he defendant got in the driver’s seat of the victim’s car while

Jordan got in the backseat with the victim. The defendant handed the gun to Jordan. Jordan testified that the defendant asked the victim if she believed in God. When

the victim said th at she did, the defendant said, “Well, you’re with the devil now.” When Jordan addressed the defendant by name at one point, the defend

ant replied that th

e victim would have to be killed because she knew his name and had seen his face. The defendant

stopped the victim’s car near some railroad tracks, took the gun back from Jordan, got out of the car, and pulled the victim-3-

from the rear seat. A

ccording to Jorda

n, the defendant

asked the victim if

she “wanted to hug a real
man before she died.” The defendant embraced the victim; then he stepped back and shot her onc e in the head. After taking a suitcase from the victim’s car and trying to wipe off any fingerprints, the defendant and Jordan left the scene with Terrell and Carmichael.

Like Jordan, Derric

k Carmichael test

ified that he, the

defendant, Jord

an, and Terrell lef

t Tonya Wooda ll’s apar tment in a blue Corsica. The defendant spotted the victim driving her car, instructed Terrell to follow the car, and said

he was going to “ro

b” the victim. Whe

n th e vict im parked in front of her

house, the defendant

and Jordan got out of the car and approached her. The defendant,

who was armed with a gun, grab bed the vic tim before she made it to her house. The defendant gave the gun to Jor

dan, who got in

the backseat of the victim’s car with the victim. The defendant drove the victim’s

car and Terre

ll and Carmichael

followed them. Ac

cording to Carmichael , the defendant pa rked near some r

ailroad tracks a

nd got out of the ca

r with the victim and Jordan. The defendant hugged the victim and then shot her. The defendant and Jordan got back in the Corsica and the four men left the scene. Robert Terrell’s testimony was similar to that of Jordan and Carmic

hael. He testified that as they left Tonya

Woodall’s apart

ment, the defenda

nt was checking a

small pistol for bullets and said they “were going

to make a sting.” The defendant tried to get Terrell to follow several cars, but Terrell refused. Terr

ell testified that t

he defendant told

him to park the car wh ile he went to his aunt’s house; when Terrell stopped the car, the defendant and Jordan got out. Terrell testified that he then saw the defendant and Jordan driving toward him in a red car, and he followed. When the defendant stopped the car, Terrell saw Jordan and the victim get out of

the backseat. Te

rrell testified that the defendant hugged the victim and then shot her once in the head. The defendant and Jordan returned to the car Terrell wa s d riving with some of the victim’s property. Terrell drove the defendant and Jordan back to Woodall’s apartment and a lso saw them at the apartment the next night. According to Ter

rell, Jordan was upset, crying, and cursing the defendant. The defendant said, “Well, she heard my name, so I had to kill her.” Tonya Woodall testified that the defendant, Jordan, Carmichael, and Terrell were together at her apartment on November 8, 1995. On the following day, she saw Jordan, who looked “depressed” and “upset.” Jordan initially would not tell Woodall what was wrong, but finally told her that the defendant had killed a woman. Woodall later heard Jordan confronting the de fendant, butshe did not hear the defendant make a response. Woodall testified that the police threa

tened to charge her as an acc essory tothe offense unless she made a statement. She also testified that the defendant had threatened her and her family if she testified.

The defendant

gave a statement to police that varied markedly from the above testimony of Jordan, Carmichael, and Terrell. The defendant said that he, Jordan, and two others – Vassy Gandy3 Woo dall testifi ed that Gandy and Bowers had not been at her apartment on the day of t he offense

. Likewise, Jordan and

Terrell testified that they d id not see G andy o r Bowe rs on the n ight of the o ffense. Ca rmicha el, on the other hand, test

ified that he saw both Gandy and Bowers at Woodall’s apartment on the night of t he offense.

4 In his statement, the defendant said that he, Jordan, Bowers and Gandy w ere members of a gang called the “gangster discipl

es.” Duri

ng the tri

al, however,

the defendant at

tempted to s

how through cross-examination t hat the others

falsel y accused him of t

he crime becaus e he was a former member of the gang.
-4- and Rico Bowers – were at Tonya Woodall’s apartment on the night in question. 3 When they left, they rode around in a white Mustang with Gandy driving and the defendant

in the backseat. B owers, who was armed with a

pistol, told Gandy to follow the victim’s car. Whenthe victim’s car stopped, Bowers got out and grabbe d the victim by her h

air and forced her

into the backseat

of her car with Jordan. According to the d efendant’s stat

ement, Bowers drove t he victim’s car to some railroad tracks and got out of the car with Jordan and the victim. Bowers hugged the victim, backed away about five feet, and fired one shot. Bowers and Jordan searched the victim’s car and wiped it down. According to the defendant’s statement, the four menreturned to Woodall’s apartment where Jordan and Bowers “bragged” about what had happened. The defendant denied knowing that a robbery, car jacking or killing was going to occur. 4

The victim, Amber

Hunter, a total stranger to the defendant, was 26 years old at the time she
was killed. She was a college graduate and was employed at a bank. She was returning home from
a church service on the night she was killed. The victim sustained a gunshot wound to her head and remained unconscious until her death two days later on November 10, 1995.

After hearing the evidence and deliberating, the jury fo un d the defendant guilty of felony murder for the killing of t he victim in the perpetration of a robbery, especially aggravated kidnapping, and especially aggravated robbery. The trial then moved into

the sentencing phase for the offense of felony murder. Sentencing Phase

In s eeking the dea

th penalty for the defendant’s conviction for felony murder, the prosecution introduced evidence that

the defendant wa

s convicted of esp

ecially aggravated robbery in January of 1997. The victim of that

offense, Walter Bush, testified during the sentencing phase that he was car-jacked

and shot in the head by the defen dant on November 11, 1995. Bush testified that the defendant had first asked if

he knew the defendant

or would recogniz

e him and that when

Bush said no, the defendant

told him to walk

away. When Bush had walked three or four feet, the defendant shothim. Bush admitted that two other men had been with thedefendant and that two of the men had guns. Bush nonetheless testified that the defendant was the person who shot him.

The defendant presented several witnesses in mitigation. The defendant’ s mother, Annette Bailey, testified that she was anexotic dancer a nd prostitute at the

time she became

pregnant with the defendant and

that she used cocaineduring the pregnancy. When the defendant was three weeks-5-

old, Bailey gave him

to her mother, Francis Beasley, who later obtained custody. Bailey testified that she rarely saw th

e defendant and

felt that his proble

ms were her fau

lt. Sh e said that the defendant’s fa

ther knew about th

e trial, but would no

t appear on beha

lf of the defenda

nt.
Francis Beasley testified that she had six children, including the defendant’s mother, and that she raised the defendant

as “ one of her own.” All of her children, except the defendant’s mother, helped to raise the defendant and engaged in family activities. Beasley took the defendant to church every Sunday, and the defendant continued to be an active member of the church up until the time of his arrest. The defendant had treated her with love and respect and had been ve r y cl ose to Beasley’s husband before his death in 1991. Beasley testified that when the defendant was 16 or 17, he was “devastate

d” when his

mother told him she wished he had never been born. Beasley asked the jury to spare the defendant’s life.

Sheronda Bond testified that she was the defendant’s fiancée and that she and the defendant had a child together. Their child, as well as the defendant’s older child through another relationship, visited the defendant in prison. According to Bond, the defendant shows love and concern for the children. She asked the jury to spare the defendant’s life.

Other family m ember s testified on the defendant’s behalf. Thomas Stout, the defendant’s grand-uncle, testified that he was the Pastor in the church attended by the defendant. He visited the defendant in prison, where they discussed scripture and read the Bible. Teresa Stout, the defendant’s aunt, testified that she had been close to the defendant his entire life and that the defendant was “devastated” when his grandfa ther passed awa

y in 1991. She asked the jury to spare the defendant’s life.

Randall

Stout, the defendant’s uncle, testified that he went to church with the defendant and taught him how to play

musical instrument

s with the church choir. He testified that the defendant
was not a “villain” and had been a nice child. He testified tha t the defendant ha

d continued his involvement

in the church and was a “changed person.” On cross-examination, Stout acknowledged that the defendant was involved with a gang called the “gangster disciples.” Stout was also aware of the defendant’s prior convictions for aggravated burglary, theft, reckless endangerment, and the especially aggravated robbery of Walter Bush. Stout nonetheless said thatthe charges against the defendant had been “trumped up.”

Makimba Fowler testified th

at he was in jail

with the defenda

nt in June of 1993. Both men
were members of a gang called the gangster disciples, which had a large number of members in the jail. Fowler testified that the defendant was expelled from the gang when he w as beaten by other gang members and

stabbed with an ink pen. Donald Justus, a prison jailor, testified that he saw the defendant in June of 1993 with a “bruised eye and stuff.” Justus testified that prisoners who were not gang members w

ere often in dang

er from gang memb

ers.
The jury determined th

at three aggrav

ating circums

tances h ad been proven beyond a reasonable

doubt: (1) the defendant was previously convicted of a felony whose sta

tutory elements-6-

involve the use of violence to the person; (2) the murder was committed for the purpose of avoiding, interfering with, or

preventing a lawful arrest or prosecution of the defendant; and (3) the murder
was knowingly committed, solicited, directed, or aided by the defendant while the defendant had a substantial role in committing or attempting to commit, or was fleeing after having a substantia

l role in committing or attempting to commit, any robbery or kidnapping. See Tenn. Code Ann. § 39-13- 2 04(i)(2), (6), & (7) (Supp. 1995). The jury found that the evidence of these aggrava tin g circ umsta nces outweighed mitigating circumstances beyond a reasonable doubt and, therefore, i mposed a death sentence. See id. § 39-13-206 (1991 & Supp. 1995). In a separa te sentencin

g pr oceeding, the trial court imposed two forty-year sentences for the offenses of especially aggrava ted robbery a nd especially aggravated kidnapping, to be served consecutively to one another and consecutively to the death sentence.

Sufficiency of the Evidence

The defendant a

rgu es that there was no evidence to corroborate the testimony of the accomplices to the offense an d that, therefor

e, the evidence

was insufficient to sup port his convictions. The State maintains that the evidence was legally sufficient to support the convictions in this case and to corroborate the testimony of the three accomplices.

When evaluating the sufficiency of theevidence, we must determine whether “any rational trier of fact could hav

e found the essen

tial e lemen ts of the crime beyond a reasonable doubt.” Jackson v. Virginia

, 443 U.S. 3 07, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979) (citation omitted); State v. Keough , 18 S.W.3d 175, 180-8 1 (Tenn. 2000). We are required to afford the prosecution the strongest legitimate view of the evidence in the record as well as all reasonable and legitimate inferences which may be drawn from the evidence. State v. Keough , 18 S.W.3d at 181 (citation omitted). Question s regarding the c

redibility of the witnesses, the weight to be given the evidence, and any factual issues raised by the evidence are resolved by the trier of fact. See State v. Bland , 958 S.W.2d 651, 659 (Tenn. 1997).

In Tennessee, a co nviction may not be based solely upon the uncorroborated testimony of
an accomplice. See State v. Bigbee , 885 S.W.2d 797, 803 (Tenn. 199 4); Monts v. State , 379 S.W.2d 34, 43 (Tenn. 1964) . We have descr ibed the nature of

this requirement a

s follows:
[T]heremust be some fact testified to, entirely independent of the accomplice’s testimony, which, taken by itself, leads to the inference, notonly thata crime has been committed, but also

that the defendant is implicated in it; and this independent corroborativetestimony must also include s ome f

act establishing th

e defendant’s id

entity. This corroborative evidence may be direct or entirely circumstantial, and it need not be adequate, in and of itself, to support a convic tion; it is sufficient to meet the requireme nts of the rule if it fairly and legi timately

tends to connect th

e defendant with

the commissio

n o f5 The State does not co ntest t he Court of Cri

minal Appeals’ ruling t hat the statements

were not admissib le as the statem ents of a co -conspira tor or as statem ents again st Jordan’s penal inter est. See Tenn. R. Evi d

. 803(1 .2)(E), 80 4(b)(3).
-7-

the crime charged.

It i s not necessary that the corroboration extend to every part of the accomplice’s evidence.

State v. Bi gbee , 885 S.W.2d at 803 (quoting State v. Gaylor , 862 S.W.2d 546, 552 (Tenn. Crim

. App. 1992)). Whether sufficient corroboration exists is a determination for the jury. See State v. Bigbee , 885 S.W.2d at 803.

In our view, there w

as sufficient ev

id ence to su stain the jury’s verdicts that the defendant committed the offenses of felony murder, especially agg ravated kidnapp ing, and especia

lly aggravated

robbery, and there was sufficient evidence to corroborate the testimony of t he accomplices to these crimes. As the Court of Criminal Appeals noted, the defendant initially denied knowledge of the offenses w hen questioned by p

olice, but then lat

e r admit ted that he was at the
scene. Moreover, the def endant a dmitted that he knew one of the participants was armed and intended to steal a car. Finally, Tonya Woodall testified that the defendant threatened her and her family if Woodall testified against him. When viewed under the standards discussed above, we conclude that there was sufficient evidence to corroborate t

he testimony of the

accomplices and

to support the jury’s verdicts.

Admissibility of Hearsay Statements

The defendant asse

rts that the trial c

ourt erred by all

o wing Tonya Woodall to testify that Quentin Jordan told her that the defendant had killed the victim and other details about the offenses because the statements we

re inadmissible he

arsay. The State

maintains that the Court of Criminal Appeals properly determined that Jordan’s sta

tements were adm

issible as a

prior identification and as an excited utterance. See Tenn. R. Evid. 803(1.1), 803(2). 5

A hearsay statement

is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid. 801(c). A hearsay statement is not adm issible unless it is shown to be admissible via an exception containedin the rules of

evidence or otherwise by law. See Tenn. R. Evid. 802. The determination of whether a statement is hearsay and whether it is admissible through an exception to the hearsay ruleis left to the sound d iscretion of the tr

ial court. See State v. Stinnett , 958 S.W.2d 329, 331 (Tenn. 1997). We will not reverse the ruling of the trial court absent a showing that this discretion has been abused. See id.

Prior Identification-8-

The defendant argues that the trial court erred in a

llowing Woodall to

testify as to Jordan’s statement as a prior identification pursuant to Tenn. R. Evid. 803(1.1). The State maintains that the trial court did not abuse its discretion in admitting the testimony.

The hearsay rule do

es not exclude a “ statement of identification of a person made after perceiving the person if the d eclarant test

ifies at the trial or hearing a nd is subject to crossexa mination concerning the s tatement.” Tenn.

R. Evid. 803(1.1). T

hus, a party seek

in g to admi t evidence under this exception must establish four elemen ts: ( 1) that the declarant made an identification of a

person; (2) that the identification was made after perceiving the person; (3) that the declarant testified at the hearingor trial in which the prior identification was introduced; and (4) that the declarant was subject to cross-examination about the statement. See Neil P. Cohen et al., Tennessee Law of Evidence , § 803(1.1).2, at 507-08 (3d ed. 1995).

The prior identification exception is most often used in a criminal c asewhere the victim or witness has identified the defen dant from a sketch, lineup, or photographic display and then later testifies at a hearing or trial regarding the earlier identification. The fact that the prior identification
was made is admissible u nder Rule 803(1.1 ) as substantive e vidence regar

dless of wh ether the witness has identified the defendant in court. See id. § 803(1.1).1, at 507. As this treatise ex plains:

The trustworthiness of

such hearsay de

clarations is

established by the opportunity

to cross-examine the declarant, who by definition mus t testify at trial

. The evidence ma y also be more acc

urate than in-court testimony because the earlier identification was made while the appearance

of the person i dentifi ed was fresher in the declarant’s memory and the in-court identification may be more suggestive than the out-of-cour

t.
Id. § 803(1.1).1, at 506 (emphasis added).

In this case, the defendant contends that Jordan’s statement to Wood al l was not a prior identification for purposes of Rule 803(1.1), but rather was a mere allegation that the defendant

had committed the offense. The defendant correctly observes that the vast major

ity of cases apply thi

s hearsay exc eption where an identification has been made from a photograph display, lineup, or similar procedure. See 30B Michael H. Graham, Federal Practice and Procedure , § 7014 (Interim ed. 2000); see also Tennessee Law of Evidence , § 803(1.1).1, at 506. As one court has stated, for example, the history of the federal version of the prior identification rule reveals that Congre s s envisioned “lineups, show-ups, photo arr ays, chance encounters, or other circumstances under which
a positive identification may become uncertain by the time of trial.” State v. Lopez , 943 P.2d 1052, 1055 (N.M. Ct. App. 1997) (citations omitted).

Caselaw andcustom notwithstand ing, the rule itself

does not expressly

limit its application to prior identifications from photographs,

lineups, or other similar procedures. It simply states that there must be an identification of a person “made after perceiving the person.” See Tennessee Law6 We do stress, ho wever, th at no othe r details of an offe nse shou ld be adm itted unde r this excep tion to

the hearsay r ule inasm uch as the rule allow s only the prior id entification

. See State v. Lopez , 943 P.2d at 10 56. Thus, to the extent that Jordan’s statements to Woodall contained other details of the offenses, those statements were inadmissi

ble unless , as here,

another hear

say excepti

on was establ

ished.
-9- of Evidence , § 803(1.1).2, at 507-08. We interpret this language to mean what it says: that the person who made the identificationmust have personally perceived the person identified. See e.g. , id. § 803(1.1).2, at 50

7 (“The declar

ant ‘perceives ’ by the use of the f ive senses.”). A

lthough this may, in a majority of cases, involve an identification by viewing a defendant in a photograph, lineup,
or like procedure, we do not believe it must be limited to such cases in the a bsence of expre

ss limiting language in the ru le. As discusse

d above , the rule safeguards the trustworthiness of an identification by requirin g that t he declarant testify at trial and be subject to cross-examination regarding the statement of identification. The se safe guards in the rule are in place regardless of whether the identification is based on a photo display, lineup, or simply a statement made to another person, as in this case. Accordingly, in applying Rule 803(1.1), it is apparent that Jordan testified he was at the scene and personally perceived the defendant shoot the victim. Moreover, Jordan testified at the trial and
was subject to cross-examination regarding his statement to Woodall. Although we recognize that Jordan’s participation in the crimes gave rise to the possibility that his

identification of the defendant
was a self-serving e

ffort to poi nt the finger of blame at someone other than himself, such circumstances were open

to cross-examination of Jordan by the defendant. Accordingly, given that the safeguards and remaining elements of Rule 803(1.1) were satisfied, we agree with the Courtof Criminal Appeals that the tr ial court did not ab

use its discretion u

nder the circums

tances of this
case. 6

Excited Utterance

The defendant also contends that the trial court erred in allowing Woodall to testify about Jordan’s statements under the excited utterance exception in Tenn. R. Evid. 803(2). The defendant argues that Jordan’s statements were made several hours after the offense and

were not made wh

ile Jordan was stressed or

excited. The Stat

e maintains that the

trial court did not a

buseits discretion in finding that the proper foundationwas shown for adm itting the statemen

ts pursuant to the excited utterance exception.

The hearsay rule does not

exclude a stateme

nt “relating to

a startling event or condition made while the decl aran t is und er t he s tre ss o f ex cit eme nt c aus ed b y t he event or condition.” Te nn. R. Evid. 803(2). The rationale for the admissibility of such a statement , known as an “excited utterance,” is twofold:

First, since thisexception applies t o statements

where it is likely there
was a lack of reflection – and potential fabrication – by a d ec larant who spontaneous ly exclaims a statement in response to an exciting-10- event, the re i s li ttl e li kel iho od, in t heo ry a t least, of insincerity. . . . Second, ordinarily

the state men t is made while the memory of the event is still fresh in the declarant’s mind. This means thatthe outof-court statement about an event

may be more

accurate than a much later in-court description of it.

Tennessee Law of Evidence , § 803(2).1, at 532 ; see State v. Gordan , 952 S.W.2d 817, 819 (Tenn. 1997). The first requirement is that there be a startling event or condition. As noted in Tennessee Lawof Evidence , the “possibilities are endless” because “[a]ny event deemed startling is sufficient.” § 803(2) .2, at 533. The “event must be sufficiently startling to suspend the normal, reflective thought processes of the declarant.” State v. Gordan , 952 S.W.2d at 819 (quo ting McCormick on Evidence , § 297, at

854 (3d ed. 1984)). The second requirement, that the statement “relate to” the startling event or condition, is likewise broad. As stated in Tennes see Law of Evidence , the statement “may describe

all or part of the event or condition, or deal with the effect or impact of that event or condition.” § 803(2).2 at 534.

The third requirement, that the statement be made while the declarant is under the stress or excitementfrom the event or condition, rela

tes most directly to the underlying ra tionale for the except ion. In Sta te v. Smith , 857 S.W.2d 1, 9 (Tenn.1993), we said tha t “[t]he ultimate test i

s spontaneity

and logical relation to the main event and where an act or declaration springs out of the transaction while the parties are still laboring under the excitement and strain of the circumstances and at a time so near it as to preclude the idea of deliberation and fabrication.” Th e time interval between the startling ev

ent and the decla

r ant’s statement, h

owever, is but one

consideration in determining whe

ther a statement w

as made under str

ess or excitement:

Other relevant circumstances include the nature and seriousness of the event or condition; the appearance, behavior, ou tlook, and circumstances of the declarant, including such characteristics as age and phy sical ormental condition; and the contents of the statement itself, which may

indicate the pre

sence or absenc

e of stress.

State v. Gordan , 952 S.W. 2d at 820 (q uoting Tennessee Law of Evidence , § 803(2).2, at 534).

When considering these factors in combination with the purpose of the ru le, the admissibility of Jordan’s statement to Woodall presents a very close question. On one hand, there is little doubt that the killing of the victim was a startling event of a serious nature and degree and that Jordan was
a witness to the event. On the other hand, over twelve hours elapsed from the time of the event to the time of Jordan’s statements. Moreover, the time interval is significant inasmuch as Jordan was a participant in the

events and arg

uably had tim

e to reflect a

nd delibe rate before ma king his statements

to Woodall. Despite t

hese factors, however, the trial court specifically found that Jordan
was under the “stress of thetraumatic events of the night before” when the statements were made.7 Bush was also p ermitted to testify at the gu ilt phase of th e trial. We agree w ith the Court of Crim inals’

conclusion

that t he testi mony was properly admit ted at t he guilt phase of the

trial , and we did not order oral argument on that issue.

8 The offe nse and trial oc curred p rior to a 19 98 statutor y amen dmen t which n ow allow s either party to introduce evidenceregarding the facts and circumstances of the pri or violent fel

ony relied upon by the prosec ution to establish th e aggrav ating circu mstanc e. See Tenn. Code An n. § 39-13-204(c) (Supp . 1998).
-11- Indeed, Woodall testified that Jordan was upset and depressed on the morning of November 9, 1995, and that Jordan was later crying and upset when he made the statements to her. Similarly, Jordan testified that he had tears in his eyes after the defendant shot the victim and that he wa s “depressed.” Jordan testified that when he spoke to Woodall, he pictured “his life gone” and everyone “dead.” Jordan said that he was still in shock, upset, cryi ng, and depres sed when he told Wood all about the offense.

As noted above, our role as a rev iewing court is n

ot to substitute

our view of the ad

missibility of evid ence for that of the trial court, but rather to determine whether the trial court’s ruling constitutes an abuse of discr etion. The recor

d indicate s that the tri al court considered all of the relevant factors, including the passage of time, in making its ruling on what amounts to a n extremely close issue. See Gross v. Greer , 773 F.2d 116 (7th Ci r. 1985). Under these circumstances, we concl ude that th

e trial court d id not a buse it s discr etion i n allow ing Woo dall to relate Jo rdan’ s statements. Admissibility of Facts Underlying Aggravating Circumstance

One of the aggravating circumstances relied upon by the State to seek the death penalty was that the defendant ha

d a prior convicti

on for a felony

whose statutory elements included the use of violence to the perso

n. See Tenn. Code Ann. § 39-13-204(i)(2) (Supp. 1995). In the sentencing phase of the trial, the prosecution presented the testimony of Walter Bush, who was the victim of the defendant’s prior violent

fel ony o f es peci all y aggr avat ed ro bbe ry. 7 Bush testified that on November 11, 1995, he was car-jacked by the defendant and se veral other men. The defendant asked if Bush would recognize him; although Bush said “no,” the defendant shot him in the neck. The defendant objectedat trial, and he maintains on appeal that the trial court erred

in admitting the facts underlying the prior felony and then

allowing the prosecutor

to refer to the fa

cts during its closing argument

. 8

In State v. Bigbee , 885 S.W. 2d 797 (Ten n. 1994), we held that it is improper for the prosecutor

to introdu ce evidence o r make an argu ment reg arding the facts and circumstances underlying

a prior violent felony conviction being used to s eek the death penalty where the prior conviction on its face involved violence to the person. In Bigbee , the prosecutor i ntroduced the fa

cts of a prior murder committed by the defendant, emphasized the character of the victim of the prior murder in its closing argument, and strongly implied that the death penalty

was appropriate

because the defendant had already received a life sentence for the prior murder. Id. at 811-12. We concluded that the admission of the evidence and the prosecutorial argument improperly enhanced theimpact9 In a relat ed issue, the Court of Criminal Appeals observed t hat the argument was improp er in that it used the Bush offense to contend t hat the defendant lacked remorse for killi

ng the victim in thi s case. We agree with the intermediate court

that “lack of re

morse” is not a stat

utory aggravating circumsta nce; moreover, it was not proper rebuttal because the

defendant di

d not argue h is remors e as a mitiga ting factor. In any eve nt, the defe nse failed to object to the argument, which itself consisted of a brief and non-inflammatory reference. W e therefore conclude that the argum ent did no t affect the jury ’s deliberatio n to the pre judice of th e defend ant.
-12- o f the aggrava

ting circumstan

ce and affecte

d the jury’s

determination to th

e prejudic e of th e defendant. Id. at 812. We therefore remanded the case for a new sentencing hea ring. Id.

Not every violation of the rule in Bigbee requires a re-sentencing. In State v. Chalmers , 28 S.W.3d 913 (Ten n. 2000), for example, the prosecutor relied upon evidence underlying the defendant’s prior convictions for especially agg ravated robbery and attempted first degree murder to establish the prior violent felony aggravating c ircumstance. During the sentencing p roceeding, the prosecutor showed that the prior offenses involved a shoot ing that occurred shortly before the first degree murder for which the defendant was on trial. Id. at 916. We concluded that the evidence
was introduced to establish the defendant’s identification in response to the defendant’s contention that he was not involved in the prior offenses and that the prosecutor’s argument was not nearly as egregious or extensive as t hat in Bigbee

. Id. at 917. We therefore held that the evidence and argument did not affect the jury’s determination to the prejudice of the defendant. Id. at 918-19.

In the present case, as in Chalmers , the prosecutor relied upon a prior viole

nt felony, i.e. , especially aggravated robbery, that was c ommitted close in time to the first degree murd er being tried. The prosecution maint ained that the unde

rlying fa cts were introduced not to bolster the prior violentfelony aggravating circ umstance, but to establish another aggravating circumstance, i.e. , that the killing was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest
or prosecution of the defendant or another. See Tenn. Code Ann. § 39-13-204(i)(6) (Supp. 1995). In sum, the State theorized that because the defendant attempted to kill Bush in an effort to avo id arrest or prosecution, the evidence was probative as to the defendant’ s motive for killing the victim in the present case.

As the Court of Criminal Appeals observed in this case, it is apparent that the prosecutor’s intentwas not

to unfairly increase the weight of the prior violent felony aggravating c ircumstance, but rat her t o es tab lis h an ent ire ly se para te a ggra vat ing c irc ums tan ce t hat it w as r elyi ng upon
. Moreover, the prosecutor did not elaborate on or emphasize the underlying

facts of the Bus

h offense during closing argum

ent. 9 For these reas ons, this case is remarkably similar to Chalmers and substantially

different from Bigbee . Accordingly, we conclude that the evidence and argument

did not affect the jury’s determination to the prejudice of the defenda nt.

Admissibility of Conv

ictions During Sente

ncing Phase

The defendant presented

numerous family members in the sentencing phase of the trial who testified about his upbringing, background, and church involvement as mitigating evidence for the-13-

jury’s consideration. D

uring its cross-

examin ation of

the defendant’s uncle, Randall Stout, the prosecutor

asked about the de

fendant’s prior

convictio ns for a ggravated bu rglary, t heft, reckless endangerment

, and the robbery of

Walter Bush. The prosecution asserted that the evidence rebutted the defense’s depiction of the defendant asa “fine, active Christian” and impeached th e credibility of the mitigating witnesses. The defendant argues that the trial court erred in allowing the prosecutor to use this evidence and in failing to instruct the jury that the evidence was limited to impeachment of the witness.

We begin our review of this

issue with Tenn. Cod

e Ann. § 39-13-204

(c) (1991 & Su

pp
. 1995), which governs the

admissibility

of evidence during a first degree murder sentencing pha se:
In the sentencing proceeding, evidence may be presented a s t o any matter that the court de em s relevant to the punishment and may include, bu t not b e limited to, the nature and circumstances of the crime; the defendant’s

character, ba

ckground his

t ory, and physical condition; any

evidence tendin

g to establish

or rebut the aggravating circumstances enumerated in sub section (i) ; and any evi dence tending to establish or rebut any mitigating factors. Any such evidence which the court deems to have probative value on the issue of pu n ishment may be received re

gardless of its a

dmissibil ity unde r the rules of evidence ; provided, that the defendant is accorded a fair opportunit

y to reb ut an y hearsay

statements so admit

ted. However, th

is subsection shall not b

e constru ed to auth orize the introduction of any evidence secured in violation of the constitution of the United States or the constitution of Tennessee. (Emphasis added).

We have recognized that the language of the statute reflects that

the rules of evidence do not limit the ad mis sib ili ty of evidence in a capital sentencing proceeding. See Van Tran v. State , 6 S.W.3d 257, 271 (Tenn. 19 99). We have also indicated, however, that the statute does not require
a court to dispense w

ith the evidentiar

y principle

s that are d erived from and contained within the rules of evidence. See State v. Nesbit , 978 S.W. 2d 872, 891 (Tenn. 1998 ) (evaluati ng th e admissibility of victim impact evidence under Tenn. R. Evid. 403).

In reconciling the

appli cation of the statute with the ru les of evidence,

we have recen

tly clarified “that, in general, § 39-13-204(c) should be interpreted to allow trial judges wider discretion than would normally be allowed under the Tennessee Rules of Ev idence in ruling on the admissibility

of evidence at

a capital sentencing hearing.” State v. Sims , ___ S.W.3d ___, ___ (Tenn. 2001). We further

adopted the follow

ing principles:

The Rules of Evidence should not be applied to preclude introduction of otherwise reliable evidence that is relevan t to the issue of-14- punishment, as it

relates to mitigating or

aggravating

circumstances, the nature and

circumstances of the particular crime, or the character and background of the ind ividual defendant. As our case history reveals, however, the discretion allowed judges and attorneys during sentencing in first degree murder c ases is not unfettered. Our constitutional standards require inquiry int o th e rel iab ili ty, relevance, value, and prejudicial effect of sentencing evidence to preserve fundamental fairness and protect the rights of both the defendant and the victim’s family. The rules of evidence can in some instances be help ful guides in rea ching these determinations of admissibility. Trial judges are not , howeve r, required to adhere strictly to the rules of evidence. These rules are too restrictive and unwieldy in the arena of capital sen tencing.

Id. at ___.
In Sims , as in the present case, the prosecution cross-examined the defendant’s mitigation witnesses with the defendant’s prior convictions for theft and aggravated burglary. Id. at ___. In view of our analysis of § 39-13-204(c), we concluded that the

trial court was no

t required to

strictly follow t h e rules governing character evidence under the Rules of Evidence. Id. at ___; see , e.g. , Tenn. R. Evid. 4 04, 405. We o bserved that the prior convictions were relevant to rebut the mitigation evidence offered by the defendant and that their probative valuewas not outweighed by unfair prejudice to the defendant. State v. Sims , ___S.W.3d at ___. Although the trial court did not instruct the jury that the evidence was limited to rebut tal of the m itigating evidence and impeachment

of the defense witness, we con cluded that any error did not affect the jury’s deliberation to the prejudice of the defendant and did not amount to reversible error. Id. at ___.
Likewise, in the present case, the trial court was not required to strictly adhere to the rules of evidence in rulin

g upon the prosecu

tion’s use of the de

fendant’s prior

convictions for th

eft, aggravated

burglary, and reckles s endange rment. The trial court conducted a hearing outside the presenceof the jury and found that there was a factual basis for the qu estions ask

ed by the prosecutor. Although it did not mak e specific findings, it is

implicit that the trial court found that the evidence was probative in terms of rebutti

ng the mitigation evi

dence offere

d by the defendan

t. As we have said, this is entirely proper under Tenn. Code Ann. § 39-13-204(c). The evidence was also probative for the

purpose of impeac

hing the testimony of

Randall St

out with regar d to his opinion of the defendant’s character. Although the trial court did not give a limiting instruction on the jury’s considera tion of this evidence, it is clear

from the record that the prosecution used the evidence to rebut the mitigating evidence and to impeach the defense witness and n ot to introduce evidence of a non-statutory aggravating circumstance. A ccordingly, we c

onclude that the e

vidence was prop

erly admissible under the circumstanc

es of this case

and that the failure to give a limiting instruction did not affect the jury’s decision to the prejudice of the defendant.10 The defen dant also sought to admit testi mony from Randall Stout regarding why t

he defendant

had tattoos, but the trial

court sust

aine d the pros ecut

ion’ s obj ect

ion t hat t he evi dence was he ars ay. As

we have indica

ted, the Rules of Evide nce do no t govern the ad missi b ility of evidence under Tenn. Code A nn. § 39-13-204(c). W e are unable to review t

he effect of any potentia

l error, however, inas

much as the defendant did not make an offer of proof.

-15- Exclusion of Mitigating Evidence During the sentencing phase of the trial, the defendant sought to introduce testimony from Rico Bowers and Vassy Gand y in an effort to show that his own involvement in the offenses was minor. The defendant also sought to call Chaplain Carl Nelson to testifyabout gang culture and a gang’s practice of bla

ming criminal offenses on former members. 10 The trial court excluded the evidence after finding that the defendant was attempting to re-litigate the issue of guilt. The Court of Criminal Appeals he

ld that the evidenc

e was admissible, b

ut that its exclusion

was harmless beyond a reasona

ble doubt.

The United States Supre

me Court has held tha

t the 8th and 14th amendments to the United States Constitution require that the jury in a death penalty case be permitted to consider

mitigating evidence, which includes “a ny aspect of a de

fendant’s char

acter or re cord and any of the circumstances of the offense that the defendant proffers as a basis for a sentence les s th an death.” Lockett v. Ohio

, 438 U.S. 586, 604, 98 S. Ct. 2954, 2965, 57 L. Ed. 2d 973 (1978). Likewise, we have held that article

I, §§ 8 and 16 of the

Tennessee Constit

ution require that the jury not be prevented from hearing evidence about the defendant’s background, record, and character , and any circumstances about the offense that may mitigate against the death penalty. See Statev. Cauthern , 967 S.W.2d 726, 738 (Tenn. 1998).

In addition to the constitutional provisions, the statutory scheme in effect at the time of the defendant’s offense provided:

In the sentencing pr

oceeding, evide

nce may be prese

nted as to an y matter that the court deems relevant to the pu nishment and may include, but not be limited to, t h e natur e and circumstances of the crime; the defendant’s character , background history, and physical condition; any evidencetending to establish or rebut the aggravating circumstances

. . .; and any evidence tending to establish or rebut any mitigating factor

s.

Tenn. Code Ann. § 39

-13-204(c) (Sup

p. 1995). In additi

on, the statutes spe

cifically include

d as a mitigating factor that a defendant “was an accomplice in the murder committed by another person and the defendant’s participation was relatively minor.” Id. § 39-13-204(j)(5) (Supp. 1995).11 Prior to July 1, 1995, fel

ony murder was “[a] reckless kil ling of another committed in the per

petrati on of, or attempt to perpetr ate[,] an y first degree murder, arson, rape, robbery, burglary, theft, kidnapping or aircraft piracy.” See Tenn. Code Ann. § 39-13-202(a)(2) (1991). At that ti me, the felony murder aggravating cir cumstance was applicab le when “[t]he murder was committed whil

e the defendant

was engaged in committ ing, or was an accomplice

(continu ed...)
-16- Given these controlling

principles, we c

onclude that the tr

ial court erred

in simply determining that the proposed mitigating evidence was inadmissible. In short, the defendant’s theory
was that the evidence may have demonstrated that he played a minor role in the offenses, which may have not only established a mitigating factor, but also rebutted the felon y m urder aggravating circumstance, which requir es a defendant to have played a “substantial role.” Thus, evidence supporting this theory was admissible.

The problem with the defendant’s theory, however, is that Bowe rs and Gandy, like the accomplices who testified during the g uilt pha se, inculpated the defendant as the one who led the offenses and shot the victim. Moreover, the defense made no proffer indicating that the testimony of Bowers or

Gandy would diffe

r from these state

ments. Bowers in pa

rticular was unli

kely to have testified that he shot the victim as alleged by the defendant. Indeed, in the absence of a proffer, the defendant simply contends that Bowers and Gandy would have had to be impeached with their prior statements, further rendering the proposed mitigating evidence of dubious value.
Likewise, the testimony of an expert ongang culture, who did not know the defendant or any of the gang members, would have conflicted with the defendant’s sta

tement to police in which he admitted being a

member of the gangster disciples. Moreover, there was other evidence regarding the defendant’s theory that he was falsely accused by ga ng members bec ause he was a former member, and it was obviously rejected by the jury. Accordingly, we agree with the Court of Criminal Appeals’ conclusion that the exclusion of the mitigating evidence did not affect the jury’s decision to the prejudice of the defendant and was shown to be harmless beyond a reasonable doubt. See State v. Cauthern , 967 S.W.2d at 738-39.

Application of Felony Murder Aggravating Circumstance Although not challenged by the defendant, the Court of Criminal Appeals he ld that the felony murder aggravating cir

cumstance set fo

rth in Tenn. Code Ann. § 39-13-204(i)(7) (Supp. 1995) was properly applied by the jury even though the defendant was convicted of felony murder. We have elected to addre

ss this issue as well,

and we agree wi

th the Court of Crimin

al Appeals.

In State v. Middlebrooks , 840 S.W.2d 317 (Tenn. 1992), this Court addressed the application of the felony murder aggravating circumstance to seek the death penalty for the offense of felony murder. 11 We said that

an aggravating circumstance mu st provide “a prin

cipled way to distin

guish11 (...continued)

in the commission

of, or was attempting t o commit, or was fleeing after com mitting or attemp ting to comm it, any first degree murd er, arson, ra pe, robb ery, burg lary, theft, kid nappi ng, aircr aft pir acy, or unla

wful throwing,

placing or discharging of a destr

uctive device or bomb.” Id. § 39-13-204(i)(7) (1991).

-17- the case in which

the death penalty was imposed from the many cases in which it was not . . . and must differentiate a

death penalty case in an objective, even-handed, and substantially rational way from the many murder cases in which the death penalty may not be imposed.” Id. at 343 (citations omitted). We reasoned tha t because the ele

ments of th e felony murder aggravating circumstance
m irrored the elements of the offense of felony murder, its application failed to achieve thi s narrowing of death-eligibl e offend ers and therefore violated article I, § 16 of the Tennessee Constitution. Id. at 346.

Under present law, however, which became effective July 1, 1995, felony murder occurs when one is killed in the perpetration of any first degree murder, arson, rape, robbery, burglary, theft, kidnapping, aggravated child abuse, or aircraft piracy. Tenn. Code Ann. § 39-13-202(a)(2) (Supp. 1995). In co ntrast, t he present felony murder aggravating circumstance, which became effe ctive on May 30, 1995, provides that it applies where the murder:

was knowingly

committed, solicited, di r ected, or aided by the defendant,

while the defendant had a substantial role in committing
or attempting to commit,

or was fleeing a

fter having a subs

tantial role in committing or att

emptin g to commit, any first degree murder, arson, rape, robbery, burglary, theft, kidnapping, aircr aft pi racy, or unlawful throwing, placing or discharging of a destructive device or bomb.

Id. § 39-13-204(i)(7) (Supp. 1995) (emphasis added).

Unlike the statutes analyzed in Middlebrooks , the present versions of felony murder and the felony murder

aggravating circumstance do not duplicate the elements of one another. The aggravating circumstance applies only where the jury finds that

a defendant acted knowingly and had
a substantial role

in the offense. The additional elements were not in the prior version of the felony murder aggravating circumstance. In short, the present statutory scheme eliminates the duplication that was at issue in Middlebrooks and thus achieves the constitutionally required narrowing ofdeatheligible offenders convicted of

felony murder. We therefore hold that the jury’s application of Tenn. Code Ann. § 39-13-204(

i)(7) (Supp. 1995)

was const

itutionall y proper and appropriate under the facts of this case. Proportionality-18-

Where a defendant has been sentenced to death, we must undertake a comparative propo rtionality

review pursuant

to Tenn. Code Ann. §

39-13-206(c)( 1) (1997). The an alysi s i s designed to identify aberrant, arbitrary, or c

apricious senten

cing by determinin

g whether the dea

th penalty in a given case is “disproportionate to the punishment imposed onothers convicted of the
samecrime.” State v. Bland , 958 S.W.2d at 662 (quoting Pulley v. Harris , 465 U.S. 37, 42-43, 104 S. Ct. 871, 875, 79 L. Ed. 2d 29 (1984)). If a case is “plainly lacking in circumstan ce s consistent withthose

in cases where the death penalty has been imposed,” then the sentence is disproportionate. Id. at 668; see also State v. Burns , 979 S.W.2d 276, 283 (Tenn. 1998).

This Court has consistently employed the prece dent-se eking method of comparative proportionality

review, which

compares a case with cases involving similar defendants and similar crimes. See Bland , 958 S.W.2d at 667. W e cons ider numerous factors regarding the offense: (1) the means of death; (2) the manner of death; (3) the motivation for the killing; (4) the place of death; (5) the vict im’s age, physical condition, and psychological condition; (6) the absence or presence of premeditation; (7) the abs ence or presence of provocation; (8) the absence or presence of justification; and (9) the injury to and effect on non-decedent vi

ctims. Id. at 667. We also consider multiple factors about the defendant: (1) prior criminal record; (2) age, race, and gender; (3)

mental, emotional, and physical condition ; (4) role in the mur der; (5) cooper

ation with authorities; (6) level of remorse; (7) knowl edge of the victim’s helplessness; and (8) potential for rehabilitation. Id. Since no two defendants and no two crimes are precisely alike, our review is not mechanical or based on a rigid formula. See id. at 668.

In reviewing the facts and circumstances of the offense, the e videnc e shows that the defendant and three accomplices were driving around when the defendant saw the victim in her car and said, “I’m going to get that whore.” The four men followed the victim for five or ten minutes and then pulled behind her when she stopped her car. The defendant accosted the

victim, grabbed her by her hair, held a gun to her stomach, and forced her into the backseat of her car with Quentin Jordan. The defe

ndant told

the victim that she w

as “with the devil”

and that he would

have to kill her because shecould recognize him. When they got out of the car, the defendant hu gged the victim and then fired a singl

e shot into her hea

d. The defendan

t and Jordan remo

ved items from the victim’s car, wiped off their fingerprints, and fled from the scene, leaving the victim for dead. The victim never regained consciousness and died approximately two days later. The defendant in itially denied any knowledge of the events before giving a statement that implicated another as the shooter.

In reviewing the re

cord with regard to the defendant, the e vidence showed th

at the defendan

t,
an African-Amer

ican male, was 20

years of age at t

he time of these offenses. The defendant had a prior conviction for the violent felon y of especially aggravated robbery during which he shot an unarmedvictim; the offense occurred just days after the

defendant killed

the victim in this

case. The defendant presented nu me rous witnesses in mitigation who testified about his upbringing and background. Although abandoned by his mother as an infant, the defendant wa s raised by his grandmother

in a s upportive and lovin g family environme

nt that encourage

d his involvement in churchactivities. The defense witnesses indicated that the defenda nt had again turned to religion and could be rehabilitated if spared from the death penalty.-19-

As the State asserts o

n appeal, this

Court has upheld the

death penalty in

many cases bearing similarities to this

one. In the follow

ing cases, for ex

ample, the victims w

ere shot in the cou

rse of
a robbery or kidnapping. State v. Chalmers , 28 S.W.3d at 919; State v. Smith , 993 S.W.2d 6 (Tenn. 1999); State v. Burns , 979 S.W.2d 276 (Te nn. 1998); State v. Howell , 868 S.W.2d 238 (Tenn. 1993); Statev. Evans , 838 S.W.2d 185 (Tenn. 1992); State v. Bates , 804 S.W.2d 868 (Te nn. 1991); State v. Boyd , 797 S.W.2d 589 (Te nn. 1990); State v. King , 718 S.W.2d 241 (Tenn. 1986). In many of these cases, like

the present case

, the victim was sel

ected at random. Similarly, the Court has repeatedly upheld death sentencesin which the prior violent felony aggravating circumstance was applied by the jury. See State v. Chalmers , 28 S.W.2d at 919; State
v. Smith , 993 S.W.2d at 18; State v. Cribbs , 967 S.W.2d at 776; State v. Howell , 868 S.W.2d at 262; Statev. King , 718 S.W.2d at 248, among others. The Court has likew ise upheld

death sentence

s in which one of the aggra

vating circumsta

nces was that the killing was committed to avoid arrest or prosecution. See Statev. Bush , 942 S.W.2d 489, 504 (Tenn. 199 7); State v. Smith , 857 S.W.2d 1, 14 (Tenn. 1993); State v. Evans , 838 S.W.2d at 188; State v. Thompson , 768 S.W.2d 239, 252 (Tenn

. 1989), among others. Finally, as we have said, the application of the felon y murde r aggravating circumstance wa s appropria

te u nder present law even though the defendant was convicted of felony murder.

In considering ch arac teristics regarding this defendant, it appears that we have upheld the death sentence in several cases where the defendant

was roughly the same age as the defendant or had presented similar mitigating evidence. See State v. Burns , 979 S.W.2d at 283; State v. Pike , 978 S.W.2d 904, 919 (Tenn. 199 8); State v. Cauthern , 967 S.W.2d at 740- 41; Statev. Hall , 958 S.W.2d 679, 700 (Tenn. 1997); State v. Bland , 958 S.W.2d at 670; State v. Van Tran , 864 S.W.2d 465, 482 (Tenn. 1993). In sum, our re view requires a determination of whether a case plainly lacks circumstances found in similar cases where the death penalty has been imposed. See Statev. Burns , 979 S.W.2d at 285. The similarity of the facts and cir

cumstances of thi

s case to numerous cases

in which the death penalty has been upheld reveals that the death sent ence is not arbitrary or disproportionate as applied in this case.

The dissent asserts

that the majority’s comparative proportionality analysis is flawed in that it fails to assure that a disproportionate sentence of death will be set aside. A majority of the Court h as already addre

ssed and rejecte

d the views of the d

issent and has con

sistently adhere

d to th e proportionality

analy sis ca refully detailed in Bland

. See State v. Keen , 31 S.W.3d 196, 223-24 (Tenn. 2000). Moreo ver, the dis sent in no way asse rts or establishes

that the sentence

of death is either arbitrar

y or disproportiona

te as applied in this

case to this defe

ndant.

Conclusion

In accordance with Tenn. Code Ann. § 39-13-206(c) a n d the principles adopted in prior decisions, we have considered the entire record and conclude that the evidence supports the jury’s finding of the statutory aggravating circumstances; that the evidence supports the jury’s finding that-20-

the aggravating circumstances outweigh mitigating circumstances beyond a reasonable doubt; and that the sentence is not arbitrary, excessive, or disproportionate.

We have reviewed all of the issues raised by the defendant and conclude that they do not warrant relief. With res

pect to issues not a

ddressed in this opi

n ion , we affirm the decision of the Courtof Criminal Appea

ls authored by Judg

e John Peay and join

ed in by Judge Norma

McGee Ogle and Judge Alan E. Glenn. The relevant portions of that opinion are attac

hed as an append

ix to this opinion. The defendant’s sentence of death is affirmed and shall be carried out on the 25th day of September, 2001, unless otherwise ordered by this Court or other proper authority. It appearing that the defendant is indigent, costs of appeal are taxed to the State.

____________________________________ RILEY ANDERSON, CHIEF JUSTICE