1 “Prio r to the se tting of or al argu men t, the Co urt shall review the records and briefs and consider all

errors assigne d. The Court may enter an order designating t hose issues i t wishes addressed at oral argument.” Tenn. Sup. Ct . R. 12.2. 

### IN THE SUPREME COURT OF TENNESS EE AT JACKSON April 4, 2001 Session
STATE OF TENNESSEE v. JOHN MICHAEL BANE

Automa tic Appea

l from th e Court o

f Crimina

l Appeals Criminal Court for Shelby County No. 89-01502 John P. Colton, Jr., Judge

No. W1997-02158-SC-DDT-DD - Filed July 3, 2001

The defendant, John Michael Bane, was convicted of f elony murder in the pe

rpetration of a robbery for an offense committed in November of 1988. The jury originally imposed a

sentence of death after it found that evidence of two aggr avating circumst ances – ( 1) the mur

der was especia

lly heinous, atrocious, or cruel in that it involved torture or depravity of mind and (2) the murder

was committed during the perpetration of a felony – outweighed evidence of any mitigating factors. See Tenn. Code Ann. § 39- 2-203(i) (5), (7) (1982). O n appea l, this Court affirmed the conviction, but remanded for a new sentencing he aring b ecause the jury ’s app lication of the felony murde r aggravating

circumstance duplicated the of fense of felony murder

in violation of article I, section 16 of the Tennessee Constitution. S ee State v. Bane , 853 S.W.2d 483 (Tenn. 1993). After a new sentencing hearing, the jury ag ain imposed a sentence of death after it found that e vidence of two aggravating

circumst ances – ( 1) the mur

der was “espec ially

atrocious or cru el in that itinvolve d torture and depr

avity of mind” a

nd (2) the

murder w as comm

itted for the pu rpose of avo idin g, inte rfering with, or preventing a lawful arrest or pr osecution of the defendant or a nother

– outweighed

evidence of any

mitigating factors. See Tenn. Code Ann. § 39-2-203(i)(5), (6) (1982).
After the Court of Criminal Appeals affirme d the dea th sentence, the c ase was dockete d in this Court. See Tenn. Code Ann. § 39-13-206(a) (1997) (“The affirmance of the conviction and the sente nce of death shall be automatically reviewed by

the Tennessee supreme court.”). Afte r reviewing the record, the briefs, and applicable a uthority, we designated s even issues for oral argume nt. 1 We now hold

as follow s: (1) the

trial cou rt did not err in refusing to instruct the jury that
a wit ne ss fo r t he pr os ec ut io n, Br ia n Lo ve tt , w as an ac co mp li ce wh os e t es ti mo ny h ad to b e corroborated

in order to find an aggra

vating circumstance; (2) the trial court did not err in ref using to admit Br

ya n Love tt’s medic al and psy

cholog ical rec ords; (3) the trial court did not err in refusing to allow the defendant’s expert witness to

remain in

the cour troom; (4) the trial

court did not err in allowing the prosecution to argue a “non-statutory ” aggravating

circumstance; (5) the evidence was-2-

sufficient to supportthe jury’s applica tion of the aggravating

circumstance set forth in Tenn. Code Ann. § 39-2-203(i)(5) (1982); (6) the evidence was sufficient to support the jury’s a pplication of the aggravating

circumstance set

forth in Tenn. Code Ann. § 39-2-203(i)(6) (1982); and (7) the se ntence of death wa s not arbitrary

or dispro portiona te as app lied in this case to the defendant. We also agree withthe Court

of Criminal Appeals’ conclusions with respect to the remaining issues, the relevant portions of which

are inc luded in the appen dix to this op in io n. Ac co rd in gl y, we affirm the judgment of the Cou

rt of Criminal Appe als.

Tenn. Code Ann. § 39-13-206(a)(1); Judgment of the Court of Criminal Appeals Affirmed

E. R IL EY A NDERSO N , C.J ., delivered the opinion of the court, in which F RANK F. D ROWOT A , III, J ANICE M. H OLDER , and W ILLI AM M. B ARKER , JJ., joined. A DOLPHO A. B IRCH , J R ., di ssent ing. Joseph S. Ozment, Me mphis, Tennessee, and Charles S. Kelly , Dyersburg , Tennessee, for the appellant, John Michael Bane.
Michael E. M oor e, S ol ici to r Ge ner al; Amy L. Tar ki ngt on, Dep ut y Att orn ey Gen era l; Wi ll iam L. Gibbo ns, District A

ttorney Genera l; and Thomas D. Henderson a nd Kevin R. Rardin, A ssista n t District Attorneys Gene

ral, for the appellee, State of Tennessee

.

OPINION
BACKGROUND

On November 19, 1988, police found the body of the victim, Royce D. F razier, age 60, ly

ing in a bathtub full of

water in his home near Memphis, Tennessee. Fra zier had been gagg ed; a plastic bag had been placed over his head; and an e lectrical cord was tied around his neck. A plunger had been placed o ver his f

ace app arently

to keep his head submerged. Frazier’s house ha d been ransacked: several lamps and ashtray s ha d b een ove rturned and numer

ous items w ere sca

ttered in disarray.
BrianLovett, who was 16at the time of the offense, testified that his mother, Donna L ovett, and the defe

ndant, John Mi chael Bane, had discussed a plan to rob the victim several da ys before he was kille d. The pla

n was f or Donna Love tt t o visit Fr

azier, whom she knew, and re nder him
uncon scious by p

utting Vi sine ey

e drops in his beer . Bane w ould then e nter Fr azier’s home an d carry out the robbery with Donna Lovett. According to Brian Lovett, Ba

ne said that F

razier w ould have to be killed because he “knew [Love tt] and would tell on her.” Brian Lovett said that he and Bane discussed choking or stabbing the victim.

On the day af

ter the robbery

plan discussion, Donna Lovet t an d the defendant Bane experimented by g iv in g B ri an Lov et t a be er co nt ai ni ng eye drops tosee whe ther it would rende

r him2 The evide nce ind icated that D onna Lov ett repo rted the events to authori ties after she l earned that the

defendant

was at a motel wi th anot

her woman on t he day af ter t he off ense. -3- unconsc ious. Brian Lovett testified that it cause d him to fall asleep within five minutes of drinking the beer. Thomas Lovett, Brian’s younger bro ther, also t estif ied th at he re calle d Brian drink ing a beer containing ey

e drops.
Sometime

in the late afternoon of November 17, 1988, Bane, accompanied by Donna L ovett and her two so ns, Brian and Thomas Love tt, drove his car past Frazier’s home severa l times, but no one appeared to be home. Bane explained that he was going to borrow money from the o ccupan

t. When they

saw Frazier’s car at the home, Donna Lovett got out

of the ca r and we nt into the house alone. Bane then left and drove Brian a nd Thomas to Brian’s girlfriend’s home. A short time later , Bane picked up the boys and took them to the L ovetts’ trailer in Ripley, Tenne ssee. Thereafter, Bane , along with Brian L

ovett, returned

to Frazier’s home. When Donna Love tt signaled by

“flic kerin g” the porch light on two occasions, Bane ente red Frazier’s home, leaving B rian Lovett in the car. According to Brian Lovett’s testimony , approximately thirty minutes later Bane and Donna Love tt ran to the car carry

ing several items of Frazier’s proper ty. Bane had blood on his gloves and Donna Lovet

t was cry ing and upset. While

driving from the s cene, B ane told B rian tha t h e ha d beaten the victim

severa l times bec ause

he kept getting up and that he had “cut [the v

ictim’s] nut s off.” Bane a

lso said tha

t he had ta

ke n $726 and that he “had done such a good job he de served a beer.” Bane was ar

rested two day s later when Donna Love tt reported the events of November 17, 1988 to the police. 2

BrianLovett testified that his sister committed suicide several months before the killing of the victim and

that he hi mself

had attempted suicide on two occasions before November 17, 1988. He admitted that he had been treated at Charter L akeside and Memphis Mental Health I nstitute and that he had a history of

using cocaine, speed, marijuana, and alcohol. Lovett also admitted that he had made conflicting statements about the murder. I n one statement, he had told authorities that he had loo ked in Frazier’s window and saw Bane holding a knife to the victim’s groin while Donn a Love tt placed a bag ove r the vic tim’s hea

d. He did not recall why he

had made the statement and conceded that he had never left Bane’s c ar. Lovett testified that he had been a rrested for theft after Bane was convicted and t hat h e had been placed in the same prison cell as the de fendant. He conced ed that he signed a statemen t that he h ad lied a

t trial be cause he

feare d the def

endant.

Dr. Jerry Francis co, Shelby Counter Medica l Examiner, testified that the cause of the vi ctim’ s death was ligature strangulation with asphy xia. The combination of the cloth ga g, plast ic bag, and electrical cord had cut off the supply of blood to the victim’s brain and the supply of oxy gen to h

is lungs. T he v ictim’s tongue had been pushed into the back of his mouth from the cloth g ag. Dr. Francisco stated tha

t the victim

c ould have

been re ndered u nconscio us in seco nds or minu

tes, depending on the severity a nd force of the ligature strangulation, but that the victim’s death required several minutes. Dr. Francisco testified that the victim had extensive bruising around his eyes, head, neck, arms, and hip; a tear and scrape below his left ey

e; and abrasions around his neck. There wa s-4-

no evidence of

injury to the vic tim’s gr

oin area or scrot um. Dr. Francisco testified that fluid found in the victim’s lungs was consistent with a finding that the victim had been alive when placed in the water.
The defendant Bane called seve ral witnesses to testify on his behalf. Br ian Lovett identified the handwriting of Donna Love tt in two let

ters that she had w

ritten to Bane after the murder. One of the letters indicated that

Brian Lovett had lied at tria l and was coerced by

the prosecution. Donna Lovett also wrote that only she and Bane knew what happened in Frazier’s home.
Wilma McNeill, the defe

ndant’s aun t, testified that Bane had been “very close” to his mother, who died of canc er in

April of 1 988. McNe

ill testifi ed that B ane had

grown u p working

on a far m. She stated that she loved Bane and asked the jury to spare his life. Ma ybelle Cunningha

m, also an aunt of the defendant, testified that both of Bane’s parents were

deceased. Cunningham testified that Bane had two sons, ages 14 and 10.
Marvin Ramey testifie d that Ba

ne had wo

rked on h is farm when he wa s young and was a go od worker. Ramey

testified that his wife looked after Bane and that he had ne ver caused an y trouble.

Teresa

Goforth, a co-wo

rker of Bane a nd Donna L

ovett at J.P. W. Enterpr

ises, testified that Bane was a good, hard worker. She testifie d that Ba

ne and Do nna Lovett wer

e dating and that L

ovett was extremely

jealous. About one

week before the

murder, Donna L

ovett told Goforth that “if she couldn’t have [the defendant], no one would and that she w ould see h

im locked away so far he would never get out.”
Alicia Shadell Gray, B ane’s cousin, likewise testified that Donna L ovett was very

possessive and jealous. Three weeks before the murde r, Gray he ard Lovett say , “If I

can’t have Michael, no
woman would have Michael, and I ’ll see us both behind bars.” Donna Lovett attempted suicide later that day at Gray ’s home by

overdosing on pill s, and Ba ne took he

r to the e merge ncy room. Gray testified th at after Ba ne was convicted, Brian L ovett told her that his mother had agreed to plead guilty in exchange for a sentence of 35 y ears and that hedid not want to see “an in nocen t man” go to prison. He said he planned to write an affidavit stating that B ane had no part in the offense.
Diane Bane testified that shemet Bane while he was in prison and fell in love with him after talking regula

rly to him on the telephone. She married Bane in March of 1995 and travels 200 miles round tri p every Satur

day to visit him. Her former husba nd died in August of 1994, and she had three sons from that marriage.
After deliberating on all of the abo ve evidence, the jury found that there was evidence supporting two aggravating circumstances: (1) that the murder was “es pecially

atrocious or cru el in3 As will be discus sed herei n, t he jury ’s ve rdict did not t rack the specifi c language of Tenn. Code A nn. § 39-2-203(i)(5) (1982 ).

4 Although all of the capital sentencing pro visions w ere am end ed an d rec odified in 198 9, the ju ry in this
case was properl y ins truct ed with the law as it existed at the time of the o ffense. See State v. Brimmer , 876 S. W.2d 75, 82 (Tenn. 1994). The aggr avat ing cir cumst ances at i ssu e in thi s cas e are now codi fi ed in Tenn. Code Ann. § 3 9-13

- 204(i)(5), (6) (1997 & Supp. 2000 ).
-5- that it involved torture and depravity of mind” 3 and (2) that the murder was commi tt ed for the purpose of avoiding, interfering with or preve nting a lawful arrest or prosecution of the defendant
or another.” Tenn. Code Ann. § 39-2-203(i)(5), (6) (1982)

. 4 Aft er further finding that the aggravating

circumstances outweighed the evidenc e of mitigating circumstances, the jury imposed a sentence of death.
ANALYSIS
Corrobor

ation of Acc

omplice Testim ony
The defendant argues that the trial court er red in fa iling to instruct t he jury that Bri an Lo vett was an accomplice

to the off ense and that an aggrava

ting circumstance cannot be predica ted upon the uncorroborated testimony of an accomplice. The State maintains that corrobora tion of an accomplice’s testimony is not required for sentencing; that the trial court did not err in refus ing to instruct the jury that

corrobo ration wa s requir

ed as a non-stat utory mitigati ng circ

umstance ; and that , in any eve

nt, Brian Lovett’s testimony was corroborated by

the testimony of his y

ounger brother , Thomas Lovett.
This Court has r

epeatedly hel d that a conviction may not be ba sed solely upon the
un corroborated testimony of an acc omplice to the offense. See State v. Stout , ___ S.W.3d ___ (Tenn. 2001); 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 de scribed

the natur e of this r equirem ent as fo llows: [T]here must be some fact testified to, entirely indepe n dent of the accomplice’s te st im on y, which, taken by itself, leads to the inference, notonly that a crime ha s been committed, but also that the defendant is implicate d in it; and this independent corroborative testimony must also include s ome fac t establis hing the defenda nt’s iden tity . This corrobo rative e vidence may be direct or entir

ely circumst antial, and it need not be adequate, in and of itself, to support a convic tion; it is sufficient to meet the

require ments of th

e rule if it fair lyand legitima te ly tends to connect the defendant with the commission of the crime ch arged

. It is not necessary that the corroboration extend to every pa

rt of the accomplice’s evidence.5 For exampl e, al thou gh t he pr esent c ase in volved only re-sent encing, it appears that the t

rial court instructe d the ju ry that B rian Lo vett was a n acc omp lice du ring the g uilt phas e of the tria l.
-6- Statev. Bigbee , 885 S .W.2 d at 80 3 (quo ting Hawkins v . State , 469 S.W.2d 515, 520 (Tenn. Crim. App. 1971) (citations omitted)) (emphas is added) . As the Sta te corr ectly argue s, this Court has never extended t he corrob oration requirement to an accomplice testify ing in the sentencing phase of a capital trial. See State v. Henley , 774 S.W. 908, 913 (Tenn. 1989) (conviction may not be based on accomplice’s testimony unle ss there is some corroboration).

T here is likewise no statutory provision that require s corroboration of an accomplice’s testimony for the finding

of an aggravating c ircumstance in the sentenc ing pha se of a c apital tr ial. Instead, at the time

of this o ffense, the statute governing the admissibility of evidence in the sentenc ing pha se of a c apital tr ial provid ed as follows:

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 defe

ndant’s c haract er, bac kgroun d his t ory, and phy sical condition; any

evidenc e tending

to establi sh or rebut the aggrava ting circumstances enumerated in subsection (i) below; and any evidenc e t ending to establish or rebut any mitig ating factors. An y suc h evidence which the court

deems to have probative value on the issue of punishm

ent may be rece ived reg ardless of its admissibility under the rules of evidence, provided that the defe ndant is accord

ed a fai r opportuni ty to r e but any hear say statements so admitted. Howe ver, this subsection shall not be construed to authorize the introduction of any evidenc e secur

ed in viola

tion of the

Constitutio n of the United States or the state of Tennessee.

Tenn. Code Ann. § 39-2-203(c) (1982). The statu te obviously contains no express provision regarding the corroboration of accomplice testimony and instead affords the trial court wide discretion in ruling upon the admissibility of evidence. See State v. Sim s , ___ S.W.3d ___ (Tenn. 2001) (discussing trial court’s broad discretion under the ide ntical provisions of

Tenn. Code Ann. § 39-13-204(c) (1997)).

In addition to the absence of case law or statutory authority, we likewise f

ind no other ba sis
or r ational e for apply

ing the corroboration requirement in a ca pital sentencing proceeding. The purpose of the corroboration requirement is to assure that a convictionis not predicated solely upon the testimony of a witness who wasalso involved in the commission of the offense. See Bigbee , 885 S.W.2d at 803. In a capital sentencing proceeding, the defendant has already

been convicted of the offense and the testimony of any accomplice has been subject to the corrobora tion requirement during the guil

tphase of the trial

. 5 See People v. Hamilton , 259 Cal. Rptr. 701, 774 P.2d 730, 752 (1989).6 The present versi on of th is s tatu te requi res that t he jury conclude t

ha t the evidence of aggravat ing circums tances outweighs evidence of mit igating f actors beyond a reasonable doubt. Tenn. Cod e Ann. § 39-13-204 (g) (1997 & Supp. 2000 ).

7 Presently codifi ed at Tenn. Cod e Ann. § 39-13-206 (c) (1997).
-7- Moreover, the capital sentencing scheme as a whole contains numerous specific provisions to ensure a high degree of reliability in deciding w

hether a death sentence is appropriate . The jury is required to find, for example, that any ag gravating circumstance has been proven by

the prosecution beyond a re asonable doubt and that the evidence of the ag gravating circumstan ces outweighed

evidence of mitigating factors. Te nn. Code Ann. § 39-2-203(g) (1982). 6 T he jury’s consideration of mitigating factors may include “any a spect of

a defendant’s character

or record or any of the circumstances of

the offense that the defendant proffer s as a basis for a sentence less than dea th.” State v. Stout , ___ S .W.3 d at __ _ (quo ting Lock ett v. Ohio , 438 U.S. 586, 604, 98 S. Ct

. 2954, 2964, 57 L . Ed. 2d 973 (1978)) . Finally , every sentenc e of dea

th must also be car efully scrutinized on appeal to determine whether the jury ’s findings are supported by the evidence and whether the sentence of death is arbitra ry , excessiv e, or disp

roportio nate to se

ntencesimposed in other cases. See Tenn. Code Ann. § 39-2-205(c) (1982)

. 7 In light o f these specific statutory provisions gover

ning ca pital sent encing , we conc lude that

there is no basis or

rationale for apply

ing the corr oboratio n requir

ement to th

e sentencing ph ase of a

capital t rial.

In a related issue, we agree with the Court of Criminal Appeals’ conclusion that the trial court didnot err in failing to charge a ccomplice co rrobo ration as part of any “non-statutory mitiga

ting factor s” requested by

the defendant. The defendant had re quested two specia

l instructions that stated, in part, that BrianLovett was an acc omplice; that he lacked credibility due to his inconsistent statements and testimony; and that he wa s not charged or convicted for his role in the of fense.
Under statutory law at the

time of thi s o ffense, however , a trial c ourt was n ot requir ed to instruct t he jury on

non-statutory mitigating

factors. See State v. Hartman , 703 S.W.2d 106, 118 (Te nn. 1985). Although a 1989 statutory amendment requires instructions on non-statutory mitigating factors that are supported by the evidenc e, it is not applicable to offenses committed before the effective date of the amendment. See State v. Smith , 99 3 S .W .2d 6, 3 2 (T enn . 19 99) . In any event, the evidence of Brian L ovett’s involvement

in the offe

nse and h is inconsis tent state

ments was he ar d b y th e j ur y. The def ense vig orously

argued that the evidence impeac hed the witness and cast doubt on Bane’s involvement in the murder. Therefore, even if a specific instruction had been appropr iate, its a bsence d id not aff ect the outcome to

the prej udice of

the defe ndant. Psychol ogical and M edical Records
The def endant a rgues t hat the tr ial cour t erred in refusin g to admitrecords regarding Brian Lovett’s medical and

psy cholog ical tre atment fo r the pur poseof impeaching the witness and raising “residu al doubt” as to the defendant’s role in the offense. The State c ounters that the defense was allowedto inquire extensively into Brian L ovett’s medical and psyc

hological background

and that the trial court did not abuse

its discre tion in ref using to a dmit the und

erly ing medi cal rec ords.8 Although Sims discus sed the prese nt statute gove rning ad missibility o f evide nce, see Tenn Code A nn.

§ 39-1 3-20 4(c) (19 97) , our co mm ents are equa lly applicable to the st atute in ef fect at t he time of

the def endant’ s off

ense, i.e. , Tenn. Code A nn. § 39-2-203(c) (1982 ).
-8- The defenda

nt reliesin part up on Tenn. R . Evid. 617 , which pr ovides tha

t a “par ty may offe r evidence that a

witness suffered from impaired capacity at the time of an occurrence or testimony.” As we disc

ussed abo ve, howe

ver, the admissibility o f evidence in a capital sentencing procee ding is large ly governed by

a statute that “should be interpreted to allow trial judges wider disc retion than would normally be allowed under the Tennessee Rules of Evidenc e . . . .” State v. Sim s , ___S.W.3d at ___. 8 We also observed in Sims :

The Rules of Evidence should not be applied to preclude introduction of other wise reliable evidence that is relevant to the issue of punishmen

t, as it rela

tes to mitigati ng or a

ggra vating c ircumsta

nces, the nature and

circumstances of

the particular crime, or the character and backg

round of t

he individ

ual defe ndant. As our case

histor y reveal s, however, the discretion allowed judges and attorneys during sentencing in first degree mur der cases is not unfettered. Our constitutional standards require inquiry into the reliability, releva

nce, value, and prejudicial effect of sentencing evidence to preserve fundamental fairne ss and protect the rights of both the defendant and the victim’s family. The rules of evidence can in some instances be hel pful guides in reach

ing thes e deter

minations o f admissi

bi li ty. Tria

l judges are not, however, required to adher e strictly to the rule s of evidence

. These rules are too restrictive and unwieldy in the ar ena of capit al sen tenci ng.
Id. at ___ (emphasis added).
The defendant also correctly asserts that a defendant is perm itted to present evidence of “residual doubt” as a non-statutory mitigating factor in a re-sentencing proceeding. State v. Teague , 897 S.W.2d 248, 256 (Tenn. 1995). We recently ha ve explained: By definition, residual doubt is established by

proof that casts doubt
on the defendant’s guilt. I t is not limited to proof

that mitigates the defendant’s culpability

for the crimes.
While we agree . . . that not all impeachment proof will be relevant to show residual doubt, it does not logically follow that impeachment proof will never b e rele vant to establish residual doubt about the defendant’s guilt. Whe re . . . the

proffe red res idual doub t is impeachment

of the testimony of the only

witness who offered direct rather than circumstantial proof of the defendant’s involvement in the-9- crime, su ch pro of clea

rly is releva nt and adm

issible to e stablish residual doubt as a mitigating circumstance.

State v. Hartman , ___ S.W.3d ___, ___ (Tenn. 2001).
With these principles in mind, the defendant argued that he wanted to use the records to show that Br ian Lovett had a history of mental health problems; that he had been discharg ed from treatment agains tmedical advice shortly before the offe

nse; and t hat his ca pacity to reca ll and relate facts was impaired. Moreover, the defendant argue d that bec ause Br

ian L ovett was

the main w itness agains thim, the impeachment evidence necessarily ra ised dou bt as to the defendant’s role in the offense.
The record reveal s that the tr ial co urt ga ve care ful c onsideration to this issue. The court conducted se veral jury- out hearings on the issue and did not foreclose any efforts made by

the d efe ndant to questio n the witne ss with re gard to his history

of suicid e attempt s, mental h

ealth treatme nt, and drug abuse. The tria l court even sign

ed an ord er allow ing the d

efense to obtain c ertain medical and psychological records. During the sentenc in g, Brian L ovett testified about his two suicide attempts, one of whichoccurred one month before the offe nse, and he testified that he had been treated in two mental health facilities. He testified that his sister had committed suicide several months before the murder. Finally , Lovett admitted his history

of using marijuan a, coca

ine, alc ohol, and speed. When denying the motion for a new trial on this issue, the trial court made the following finding s:
Defens e c ounsel asked Bry an [sic] Lovett about the information in the

records and the w itness ad mitted eve

rything. T

hus, the jury hear

d the evidence from the witness himself, there was nothing to impeach, and the de fe ns e w as fr ee to ar gu e B rya n [ si c] Lov et t’ s c re di bi li ty t o the jury in closing

argume nt.

Moreover, as the Court of Criminal Appeals observed, the evidence failed to show that the witness’s alleged impaired capaci ty existed at the ti me of

th e o ff en se or at th e t im e o f t he wi tn es s’ s t es ti mo ny. See Tenn. R. Evid. 617.

Ac co rd in gl y, we conclude that the defendant was not denied an opportunity to use evidenc e of Brian Love tt ’s medical and psyc hological history f

or the purpose of impeaching the witness’s testimonyor raising any

doubts ab ou t the defendant’s role in the offense. I n short, the trial court did not abu se its disc

retion in ruling t hat the me

ntal and p syc

hologic al reco

rds were cumulativ e to the testimony and theref

ore inadmissible.-10- Sequestr ation of Defe

nse Expert

Witness
The defenda

nt conten ds that the

trial cou rt committe d rever sibleerror and viola ted his rig hts to due process and confrontation by refusing to exempt

the defendant’s expert wit ness, a pa thologis t, from the rule of witness sequestration. The defendant spec ifically arg ues that the pres ence of

his expertwitness in the courtroom was essential for the purpos e of responding to and rebutting the testimony of the

Shelby County

Medical Examiner. The State responds that the trial court did not abuse its discre

tion and th at, in any event, the defendant has failed to demonstrate how he wa s preju diced by the tri al cou rt’s r ulin g.
The defenda

nt reliesin part up on Tenn. R . Evid. 615 , which pr ovides tha

t “[a]t the r

equest of a party the c ourt shall order witnesses, including rebuttal witnesses, excluded at trial or other adjudicatory

hearing .” The r

ule also provides, however, that it does not authorize the exclusion of “a person w hosepresenc e is shown

by a party to be essential to the presentation of the party ’s cause.” Tenn. R. Evid. 615. The comments to the rule suggest that an essential witness may be “a n expert witness a lawye

r needs to help the lawyer understand opposing testimony.” See Tenn. R. Evid. 615 (advisory commission comments). The purpose of the rule , simply

put, is to pr

event a witness from changing o r altering his or her testimony based on testimony hear d or facts learned from other testifying witnesse s. See State v. H arris , 839 S.W.2d 54, 68 (Tenn. 1992).

As the defe

ndant poin

ts out, we r

ecently said that Rule 615 is not applicable in a proceeding to determine whether a defendant is compete nt to be executed. Coe v . State , 17 S.W.3d 193, 222 (Tenn. 2000). In ruling that mental hea lth experts were permitted to remain in the courtroom despite the general rule o f w itness sequestration, we focused on the unique nature of such a competency procee ding: Allowing the mental health e xperts to re

main in the courtroom during the present

ation of th e proof i s entirel

y consistent with the purpose of competency

proceedings which is to accurate ly ascer tain the prisoner’s mental state. . . . Also, the dangers Rule 615 is intended to prevent do not arise in a proceeding to de termine competency

to be executed

. In light

of the fa ct that bo th the State and the prisoner have
accessto the reports of the expe rts prior to th

e hearing, the

re is little
or no risk that one of the expert witnesses wi ll change his or her testimony or adopt f

acts test ified to by

other wit nesses.
Id. at 222-23 (emphasis added).
Alth ough Coe involved a

mental co mpetenc y pr

oceedin g, we be

lieve tha t the dang ers Rule 615 is intende d to preve

nt gene rally do not ari se withregard t o exp ert wi tness es in a ny proceed ing. In fact, the rules o f evidence provi de that a n expert wi

tness ma y te st if y and base an opinion on evidence or facts made known to thee xpert at or beforea hearing and the facts need not be admissible

at trial. See Tenn. R. Evid. 703. Moreover, an expert witness often may need to hear

the-11-

substance of the te stimony of other witnesse s in order

to formulate an opinion or respond to the opinions of

other expe

rt witnes ses. In short, allowing an expert witness to rema in in the courtroom
as an “esse

ntial per son” ge

nerally does not c

reate th e risk that the expert will alter or change factua l testimo ny based on what is heard in the courtroom. According ly, we conc lude that the trial cour t erred by refusi ng to allow the defendant’s expert witness to remain in the courtroom without considering the purpose and application of Rule 615.

We must therefore determine whether the err or affected the

outcome o f the pro ceeding s to the defendant’s prejudice. We observe first that the defendant and his expert patho l ogist had the benefit of the medical examiner’s testimony f romthe initia

l trial. Th e defendant and h

is expert a lso had the benefit of the autopsy report and the findings with respect to the victim’s injury

and death. Moreover, there is no indication that the medical examiner’s testimony was so detailed or c omplex
as to be bey on d t he ab il it y of de fe ns e c ou ns el to co mp re he nd an d p re pa re a d ef en se . F in al ly, th e defendant did not call the expert to testify at the motion for new trial hearing or otherwise attempt to make an offer of proof as to how the evide nce or cross-examina

tion o f the medical examiner would have differed had his expert witness be en al lo we d t o r em ai n i n t he co ur tr oo m. Ac co rd in gl y, for all of these reasons, we conclude that the trial cour t’s refusal to allow the de fendant’s expe rt witness to remain in the courtroom did not affect the outcome to the prejudice of the defendant.

Non-Statutory Aggravating Circumstances

The defendant argues that the prosec ution was permitted to introduc e a nd argue a nonstatutory aggravating circumstance by r eferr ing to the defenda nt’s rela tionships w ith women a

nd his “promiscuity.” The defendant’s argument is based largely u pon the pr osecutio n’s quest

ioning of his aunt, Wilma McNeill, with regard to how many times the defendan t had b een married and the number of women with whom he had been involved in a relationship. McNeill replied that the defendant had bee n married

twice, bu

t that she d

id not know

about his p ersonal

life. The

State maintains that the evidence was proper t o rebu t evidence of mitigating factors pre sented by the defenda nt.
The defenda

nt asser ts th at the prosecu

tion may not arg ue that the jury

impose a d

eath sentence based on any f

actor that is not a statutory a ggravating cir

cumstance. See C ozzolino v. State , 584 S.W.2d 76 5, 768 (Tenn . 1979). A s the State points out, however , the pros ecution i s permitted to rebut a

ny m itig at ing factors relied on by a defendant. See Tenn. Code Ann. § 39-2- 203(c) ( 1982); Terry

v. State , 46 S.W.3d 147 (Tenn. 2001). In this case, the defe ndant introduced mitigating evidence of

his family backg

round, marriage, and two sons. The prosecution responded by detailing the defe ndant’s r elationsh ips with several women. We agree with the Court of Criminal Appeals that the trial court did not abuse its discretion in allowing the prosecution to rebut the9 We do observe, however, th at th e Co urt of Criminal Appeals incorrectly st ated that t he defendant “himse lf test ifi ed that he had been marri ed twic e and was dat ing t wo women at t he same t ime.” The re cord reveal s that the defendant did not test ify at the re-sentencing.
-12- mitigating evidenc e inthis manner. 9 Moreover, there is no indication that the prosecution used the evidence as a non-stat

utory ag gravating circumstance or otherwise argued that the jury was permitted to consider any non- statutory ag gravating circumstance

. In a related argument, the defe ndant con tends tha t the pros ecution e

ngag ed in misconduct by calling him

“sweetheart” several times during closing argument and by arguing that the

defendant
was seeing

another woman de spitehaving “moved in” with Donna Lovett. The State contends that the prosecutor’s closing argume nt was properly ba sed on the evidence.
This Court has often observed that closing argument is a valuable privilege tha t should not be unduly restricted. See State v. Bigbee , 885 S.W.2d at 809. We have likewise recognized that the prosecutor

may not en gage in derogatory remarks or name calling. State v. Bates , 804 S.W.2d 868, 881 (Tenn. 1991) (referring to defendant as a “rabid dog”)

. The trial court has widediscreti on in controlling the course of arguments and will not be reve rsed absent an abuse of that discretion. Moreover, prosecu

torial misc onduct do es not amount to reversible error absent a showing that it has affected the outcome to the prejudice of the defendant. See Terry

v. State , 46 S.W.3d at 156.

In reviewing the record, we agree with the Court of Criminal Appeals’ conclusion that the prosecutor’ s closing arguments in this case were based on the evidence and were not de signed t o assert a n on -s ta tu to ry a ggr av at in g c ir cu ms ta nc e. To th e c on tr ar y, it appears that the arguments were in response to the defendant’s frequent attac ks on the credibility of B rian Lovett. The prosecutor argue d, in part :
BrianLove tt, whose s ister com

mitted suic id e, who was n ot even in school, could not e

ven live with his father, ended up living with his mother, Donna Lovett, and her ‘sw e etheart,’ the defendant. . . . Brian Lovett, beca

use of the problems in his life, like a lot of young kids got involved with

drugs. After his sister’s suicide, [he] checked himself into a hospital for help. He . . . attempted to commit suicide by taking T yle nol, whic h m ay be a

suicide attempt, it may just be a cry for help. But he did it twice. And he endedup try

ing to g et help
or may be gett ing help because he did g o to two men

tal inst it utions.

. . . He returned safe

to the bosom of his mother and her ‘sweetheart’ over here. A nd th ey s it around and talk a

bout robbing someb ody . His mother is talking with her ‘swee theart’ who has moved in with her about robbing some old man. So he joins in on the c onvers ation. They practice their knockout drops on him. His mother a nd his-13- mother’s ‘sweeth eart’ practice knockout drops on him? Yeah, he’s got a real good start, hasn’t he?

Ac co rd in gl y, when viewed in co ntext, ther e is no indica

tion that th

e argu ments were inflammatory
or intended for the jury to impose the death penalty ba sed on a non-statutory a ggra vatin g circumstance. Moreover, although the prosecution should ref

rain from engaging

in any sort of personal name-c alling, the arg uments in no way affec ted the ve

rdict to th e prejud ice of the defendant.

Heinous, Atrocious, or Cruel Aggravating Circumstance
The defendant contends that the evidence was insuff icient to support the jury’s application of the “heinous, atrocious, or cruel” ag gravating circumstance set forth in Tenn. Code Ann. § 39-2- 203(i)(5) (1982). Specifically , the defendant argues that the prosecution failed to prove “torture and depravi ty of mind” because there

was no eviden

ce that th e victim w as alive

when he w as place d in the bathtub full of

water. The State maintains that the evidence was suffic ient to support the jury’s application of this aggravating circumstance.

At the time of t his offe nse , this aggravating circ umstance provided that the “murder was especia lly heinous, atrocious, or

cruel in that

it involved torture or depravity of mind.” Tenn. Code Ann. § 39-2- 203(i)(5) (1982 ). In State v. Will iams , we explained that the terms of the (i)(5) aggravating

circumstance must be given their plain and natural meaning as follows: “torture” means the inflictio n of seve

re phy sical or m

ental pa in while the

victim is a

live and c onscious; “heinous ”
means grossly

wicked o r repre hensible , abomina

ble, odiou s, vile; “a

trocious ” means e

xtremely evil
or cruel, m onstrous, exception ally

bad, abo minable; “ cruel” means d isposed to inflict pain or suffer ing, causing suffering, painful; and “depra vit y of mind” means mora l corruption, wicked or perver se act. 690 S.W.2d 517, 527-30 (Tenn. 1985) . Moreover, we have repeatedly rejected the argument that this aggravating circ

umstance is vague, overly broad, or otherwise invalid. See Terry
v. State , 46 S.W.3d a

t 160; State v. Str

outh , 999 S. W.2d 759, 7 64 (Tenn . 1999); State v. Middlebrooks , 995 S.W.2d 550, 555-56 (Tenn. 1999).

We now addr

ess wheth

er the evidence

in this cas e was su ffici ent to support the jury’s application of

the aggravating

circumstance. Our analysis requires that we determine whether, after viewing the evidence in a light most favorable to the State, a ra tional trier of

fact couldhave found the existence of the aggravating circumstance bey ond a rea sonable d oubt. Terry

v. State , 46 S.W.3d at 160-61.

In this case, the evidence revealed that the defe ndant Bane planned the robbery of the victim along with Donna

Love tt. The defendant

repeat edly beat the 60-year-ol d victim, causing bruises and injuries to the victim’s f

ace, ey es, head , arms an d hip, while the victim

strugg led for h

is life. The victim was forcibly

gagged, displacing

his tongue to the back of his mouth; a plastic bag was placed
over his head and then tied around his nec k with an e

lectric al cord. The victim was then strangled,10 Although the jury’ s finding that the murder was “especially atrocious or cruel i n that i t involved tort ure and deprav it y of

mind” did not track the language of the st atute, t he defendant has not assert ed the discrepancy as error. We conclude, however, that by fi nding “ tort ure and deprav it y of mind” the jury’ s finding was even more comp rehensive than re quire d by sta tute and , therefo re, did not pr ejud ice the d efend ant.
-14- cutting off the blood supply and air supply to his body. Although the medica l examiner could not testify withcomplete

certainty how long

the victim may have re

mained conscious, it can be inferred from the proof of numerous blows, the victim’s struggle, the gagg ing, the placing of a plastic bag
over the victim’s head, and the strangulation with the electrica l cord that the ordeal lasted minutes and that unco nsciousne ss was not instantaneous. Moreover, the medical e

xaminer te stified w ithin
a r e asonable degree of ce

rtainty that the victim was still alive when placed in the bathtub full of water. This is likewise

supporte d by

the fac t that a plu

nger h ad to be us ed to hold the victim’s face and head underwater and by Lovett’s testimony that the defenda nt stated he hadbeaten t

he victim several times because the victim kept getting up.
Ac co rd in gl y, in reviewing the record in a light most favor able to the State, we conclude that the evidence supported the jury ’s finding that the mu rder wa s especi ally

atrocious or cru el in that it involved torture and depravity of mind. 10

Avoiding, Int

erfering With, or P

reventi ng a Lawful Arr

est or P rosecut ion

The defenda

nt asser ts th at the aggravating

circumstance in Tenn. Code Ann. § 39-2-203(i)(6) (1982) was improperly a

pplied for several reasons. He contends that the a ggravating

circumstance applies in every

case in w hich the victim know s the def endant a nd therefore fa

ils to narr ow the cla ss of death-eligible offenders; that the prosec ution should not have been allowed to use this aggrava ting circumstance since it was not relied upon in the original sentencing proceeding; and that the evidence
was insufficient to support the jury’s a pplication of this aggravating c ircumstance. The Stat e maintains that the aggravating circumstance was properly applied and tha t the ju ry’s finding was supported by the evide

nce. Constitutionality

At the time of

this offense, this aggravating circumstance was applicable where “the murder
was committed for the purpose of avoiding, interfering with, or pr eventing a lawful arrest or prosecution of the defendant or another.” Tenn. C ode Ann. § 39-2-203(i)(6) (1982). We have upheld the application of this factor in a number of circumstances. See Terry v. State , 46 S.W.3d at 161. Moreover, we have previously rejected the defendant’s arg ument that the aggravating circumstance is unconst

itutional f or failin g to nar

row the c lass of death-eligible offenders. Statev. Bush , 942 S.W.2d 489, 504-05 (Tenn. 1997).

In this case, the defendant Bane w as charged with the felony murder of the victim in th e perpetration of a robbery

. See Tenn. Code Ann. § 39-2-202(a) (1982). The offe nse required the-15--16-

Stateto establish that the victim was killed in the per petratio n or atte

mpt to perp etrate

the robbery of the victim. Obtaining a conviction for felony mur der did notrequire evidence that the killing was for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution . Instead, that additional evidence was necessary to establish the aggravating circumstance for sentencing. See Tenn. Code Ann. § 39-2-203(i)(6) (1982). Thus, the aggravating circumstance did not duplicate the elementsof the underl ying off ense and sufficiently na

rrowed the class of persons eligible for the penalty of death. See State v. B ush , 942 S.W.2d at 505 (upholding (i)(6) aggra vating circumstance as applied to premeditated murder).

Prose cution’s R

eliance i n Re-sent

encing

We also conc lude that

the prosecution wa s not barr ed from r ely ing on thi s a ggra

vatin g circumstance for the re-sentencing. I n State v. H arris , we held that where a defendant is sentenced to death and

then rec eives re

lief on a ppeal, th e prosec ution is not p

rohibited from ag ain seeking the death penalty at re -sentencing. 919 S.W.2d 323, 330 (Tenn. 1996). Moreover, we concluded tha t under the so-called

“cleanslate” rule, the prosecution is free “to introduce pr oof of any a

ggravating ci rc umstance which is otherwise legally valid.” Id. We explaine d that a de ath sente nce is not a series of “mini-trials” on each ag gravating circ umstance and that there is no such thing as an “acquit tal” of an individual aggravating circumstance. Id. (citing Poland v. Arizona , 476 U.S. 147, 106 S. Ct. 1749, 90 L. Ed. 2d 123 (1986)). Finall y, we obser ved that there was no other legal impedimentprecluding the prosecution from rely ing on any

aggravating c irc umstan ce and strengthening its case in any way it can “

by the introduction of new e vidence.” Id. at 331.
The defendant’s reliance on State v. Phipps , 9 59 S.W.2d 538 (Tenn. 1997), is misplaced. In Phipps , the defendant was convicted of first-de gree m

urder a nd sentenced to life imprisonment following a trial at which the State did not seek the de at h p en al ty. After the defendant succ essfully appealed his conviction and ob tained a new tria l, the prosecution filed notice of its intent to seek the death penalty . We held th at since the prosec ution had not sought the death penalty at the original trial, its decision to do so after the defendant’s successful appe al creat ed a presumption of vindictive ness. 959 S.W.2d at 546. Moreover, we held that the prosecution would have to rebut the presumption of vindictiveness with clear and convincing evidenc e that its decision was motivated by a legitimate purpose. Id. at 547.

In co ntrast, t he prose cution in th e prese nt case f iled notic e of its int

ent to see k the dea th penalty at the defe ndant’s i nitial tria

l, and the jury didin fact im

pose a de ath sente

nce. Af ter the c ase was remande d for re -se nte ncing, the prosecution again soug ht the death penalty, w

hich it was entitled to do. Although the prosecution did not rely on the (i)(6) aggravating circumstance at the initial sentencing proceeding, our decision in Harris

makes it c lear tha

t the “cle an slate ” rule

applied to re-sentencing. Thu s, the pros ecution was not barred from rely ing upon the aggrava

ting circum stanc e in Te nn. C ode An n. § 39 -2-20 3(i)( 6) (19 82) in re-sen tenci ng.-17- Sufficiency of Evidence

As di sc us se d a bo ve , w he n c on si de ri ng th e s uf fi ci en cy o f t he evidence supporting an aggravating

circ umstance, we must review the evidence in a light most favorable to the State a nd determine whether a ratio nal trier of fact could have found the existence of the a ggravating circumstance bey ond a reasonable doubt.

In this case, the defendant planned the robbery

of the victim with Donna Lovett, who was an acquaintanceof the victim. The defendant said that the victim would have to be killed because he knew Donna L

ovett and could re port that s he was in

volved in t

he offe nse. I n comm itting th e murder, the defendant and Donna L ovett robbe d the vi ctim of over $700 and various personal pr op er ty. In short, a rational trier of f act could conclude that the defendant killed the victim to avoid, interfere with, or pr

event a l awful ar

rest or p rosecut ion of himse

lf and Donna

Love tt. Ac co rd in gl y, we conclude

that the e

vidence was suff icient to s upport the

jury ’s applic ation of th

is a ggravating circumstance. Proportionality
Where a defendant has been sentenced to de ath, we must undertake a comparat ive proporti onality

review p ursuant t o Tenn. Co de Ann. § 3 9-13-206 (c)(1) (1997). T he analy sis is designed to identify aberr

ant, arbitrary , or capricious sentencing by d etermining whet

her the d eath penalty in a givencase is “ dispropor tionate to the punishment imposed on others convicted of the
samecrime.” State v. Bland , 958 S .W.2 d 651, 662 (T enn. 1 997) ( quot ing Pulley v. Harris , 465 U.S. 37, 42-43, 104 S. Ct. 871, 875, 79 L. Ed. 2d 29 (1984)). If a c ase is “p lainly lacking in circumstances consiste

nt with thos e in case s where the deat h 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 employ ed the precedent-seeking me thod of comparative proporti onality

review, which

compares a case with cases involving similar defendants and similar crimes. State v. Bland , 958 S.W.2d at 667. We consider 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 victim’s a

ge, phy sical co ndition, a

nd psycho logical condition; (6) the absence or presenceof premeditation; (7) the absence or presence of provocation; (8) the absence or presenc e of justification; and (9) the injury to and e ffect on non-decedent victims. Id. We also consider multiple factors about

the defendant: (1) prior criminal record; (2) ag e, race , and ge nder; (3 ) mental, emotiona l, and physical condition; (4) role in the murder; (5) cooperation with authorities; (6) level of remorse; (7) knowledge of the victim’s helplessness; and (8) potential for rehabilitation. Id. Since
no two defendants and no two crimes are prec isely alike, our review is not mechanical or based on a rigid formula. See id. at 668.

In reviewing the facts and circ umstances of the of

fense, t h e evidence shows that the defendant actively planne d the robbery of the victim, who was an acquaintance of the def endant’s girlfriend , Donna Lovett. The defe ndant said that the victim would have to be killed because he-18-

would recognize Love

tt and report the offense. The defenda nt discus sed stabbing or choking the victim. On the d ay of the murder, Bane, L

ovett, and Lovett’s two teenag e sons drove past the victim’s home several times, waiting for the victim to arrive home. When the victim arrived home, Donna Love tt approa ched his housewhile Bane left the scene with L ovett’s sons. When Bane later returned, he waited

for a pr earra nged sig nal from D onna L

ovett before entering the victim’s home.

Bane repeatedly

beat the 60-ye ar-old victim as the victim tried to resist. The victim suffered bruises and injuries to his head, eye s, hip, and arm. Bane and Love tt eventu ally

gagg ed the victim witha cloth, placed a plastic bag over his hea d, tied the bag around his neck with an electrical cord, and strangled

him. The victim was placed in a bathtub of water and a plung er was used to hol d his headunder the water. There was evide nce of fluid in the victim’s lungs consistent with a finding that the victim had been alive when placed in the water. The cause of the vict im’s death was ligature strangulation with asphy

xia.

Bane present

ed witnes ses in

mitigation who testified that he formerly worked on a farm and was a good worker. The defendant has two sons by a former marriage. He

also has a wife who he married while incarcerated for

the convi ction in thi s case. Although Bane’s precise age is not in the record, one witness said that the defendant was “in his twenties” or much y ounger than the 60-y

earoldvictim. There was no evidence that the defenda nt had an y medical, emotional, or menta l problems

. Bane play ed a major role in the offense and did not coopera te with authorities or

express remorse for the victim. The maintheory of the de fense in mitigation was impeaching the testimony of Brian Lovett and a

ttempting to raise doubts about the defendant’s involvement in the offense.

As the State asserts on appeal, this Court has upheld the death penalty in many cases be aring similarities to this one. In the following cases, for example, the victims were killed in the course of
a robbery. Statev. Chalmers , 28 S.W.3d 91 3, 919 (Te nn. 2000) ; State v. Smith , 993 S.W.2d 6, 18 (Tenn. 1999); State v. Burns , 979 S.W.2d 276, 283 (Tenn. 1998); State v. Howell , 868 S.W.2d 238, 262 (Tenn. 1993) ; State v . Bates , 804 S.W.2d 8 68, 883 (T enn. 1991 ); St at e v . B oyd , 797 S.W.2d 5 89, 595 (Ten

n. 1990); State v. King , 718 S.W.2d 241, 245 (Tenn. 1986). In several ca ses, th e victim was known to the defendant or an accomplice. See , e.g. , State v. B ush , 942 S.W.2d 489, 507 (Tenn. 1 997); State v. McNish , 727 S.W.2d 490, 491 (Tenn. 1987).
Several cases involve facts and circumstances of a killing similar

to the present case. In the following cases, t he victim was beaten by

the defendant. State v. H all , 8 S.W.3d 593, 606 (Tenn. 1999); State v. Mann , 959 S.W.2d 5 03, 516 (T enn. 1997 ); Statev. Bush , 942 S.W.2d a t 507; State v. Barber , 753 S.W.2d 65 9, 668 (Te nn. 1988) ; State v. McNish , 727 S.W.2d at 491. In numerous cases, the victim has been beaten and strangled. State v. Carruthers , 35 S.W.3d 516 , 527 (Tenn. 2000); State v. Keen , 31 S.W.3d 19 6, 208 (Te nn. 2000) ; State v. Vann , 976 S.W.2d 93, 99 (Tenn. 1999); Statev. Cau thern , 967 S.W.2d 7 26, 732 (T enn. 1998 ); State v. Mann , 959 S.W.2d at 507; State v. Hodges , 944 S.W.2d 346, 350 (Tenn. 1997).
The Court has upheld similar death sentences in which one of the aggravating c ircumstances
was that the killing was heinous, atrocious, or cruel in that it involved torture or depravity of mind,-19-

see Tenn. Code Ann. § 39-2-203(i)(5) (1982), or the killing was heinous, atrocious, or cruel in that it involved torture or serious physical a buse beyond that nec essary to produc e death, see Tenn. Code Ann. § 39-13-204(i)(5) (2000). See State v. Carruthers , 35 S.W.3d a t 531; State v. Keen , 31 S.W.3d at 211; State v. Hall , 8 S.W.3 d at 606; State v. Vann , 976 S.W.2d a t 98; State v. Cauthern , 967 S.W.2d at 729; State v. Mann , 959 S.W.2d a t 507; State v. B ush , 942 S.W.2d a t 507; State v. Barber , 753 S.W.2d at 66 8; Statev. McNish , 727 S.W.2d at 491. The Court has likewise upheld similar death sentences where

the killing was committed to avoid arrest or prosecution. See State v. B ush , 942 S.W.2d at 50

4; State v. Smith , 857 S.W.2d 1, 14 (Tenn. 1993); State v. Thompson , 768 S.W.2d 239, 252 ( Tenn. 198 9); State v. Carter , 714 S.W.2d 241, 250 (Tenn. 1986).

Fi na ll y, inconsidering characteristics re garding this defendant, it appea rs that we have uphel d the death sentence in several caseswhere the defendant has presented similar mitigating evidence, such as an employment record, a marriage, or c hildren. See State v. Burns , 979 S.W.2d a t 283; State
v. Cauthern , 967 S.W.2d a t 740-41; Sta te v. Hal l , 958 S.W.2d 6 79, 700 (T enn. 1997 ); State v. Bland , 958 S.W.2d a

t 670; State v. Van Tran , 864 S.W.2d 465, 482 (Tenn. 1993).

In sum, our r

eview re quires a determin ation of w

hether a case pla in l y lacks circ

umstances found in similar

cases where the death penalty has been imposed. See State v. Burns , 979 S.W.2d at 285. The d

efenda nt has cited no spec ific case as authority for his argument that the

death pe nalty is arbitrary

or disproportionate as applied in this case. Likewise, although the dissent asserts that the comparative proporti onality analysis is flawed, it fa

ils to assert or

establish that the se

ntence o f death is either a rbitrar y or dispropor

tionate a s applied

in this cas e to this de

fendant

. Moreover, a majorit y of the Court has already

addressed and rejected the views of the dissent and has consistently adher ed to the propo

rtionalit y a naly sis carefully

detailed in Bland

. See State v. Keen , 31 S.W.3d at 223-24. Fi na ll y, as we have discussed, the similarity of the facts and

circumst ances of this case to numerous cases in which th

e death penalty has bee

n upheld reveals that the death sentence is not arbitrary or disproportionate as applied in this case.

CONCLUSION

In accordance with Tenn. Code Ann. § 39-2-205(c) (1982) and the principles adopted in prior decisions, we have considered the entire record and conclude that the evide nce supports the jury’s finding of the statutory ag gravating circumst ances; that the evidence supports the jury’s finding that the agg ravatin g circumstance s outweig h the mitig ating c ircumsta nces; and that t

he sente nce is not arbitrary , excessive, or disproportionate.

We have re

viewed a ll of the is su es raise d by

th e defendant and conclude that they do not warrant relief. With respe ct to issue s not addr essed in t his opinion , we aff

irm t he decision of the Courtof Criminal Appeals authored by Judge David H. Welles and joined by Judge Jerr

y L . Smith and Judg e Ja

mes Cur wood Witt, Jr. The relevant portions of that opinion are attached as an appendix to this opinion. The defendant’s sentence of death is affirmed a nd shall be carried out

on-20-

the 6th day

of Novem

ber, 200 1, unless o therwis e order ed by t hi s C ou rt or ot he r p ro pe r a ut ho ri ty. It appearing

that the defendant is indigent, costs of the appeal ar e taxed to the State.

___________________________________ RILE Y ANDERSON, CHIEF JUSTICE