# FILED
November 9, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE SUPREME COURT OF TENNESSEE AT JACKSON

FOR PUBLICA TION STATE OF TENNESSEE, ) ) Filed: November 9, 1 998 Appellee, ) ) ) SHELBY CRIMINAL Vs. ) ) HON. JOSEPH B. BROWN, JR., ) JUDGE KEVIN BURNS, ) ) Appellant. ) No. 02-S-01-9708-CR-00073

For Appellant: For Appellee: Glenn I. Wright John Knox Walkup WILSON & W RIGHT Attorney General & Repor ter Memphis, Tennessee Michael E. Moore Solicitor General Kenneth W. Rucker Assistant Attorney Gener al Nashville, Tennessee
At Trial: John W. Pierotti District Attorney General Thomas D. Henderson John Wheeler Campbe ll Assistant District Attorney Generals Memphis, Tennessee



## O P I N I O N

AFFIRMED ANDERSON, C.J1 “Prior t o the sett ing of oral

argument, the Court shall r eview the r

ecord and briefs and consider all er rors assigned. The Court may enter an or der designat ing those i ssues it wi shes addressed at or al argum ent.” Ten n. Sup. C t. R. 12. -2- The defendant, Kevin Burns, was convicted of two counts of felony murder and two counts of attempted felony mur der. The jury imposed the death penalty for one of the felony murder convic tions after finding that evi dence of an aggravating factor -- that the defendant knowingly created a great risk of death to two or more persons other than the vic tim murdered -- outweig hed the evidence of mitigatin g factors beyond a reasonable doubt.The jury imposed a life sente nce for the other felony murder convicti on.
On direct appeal, the Court of Criminal Appeals affirmed the conv ictions and the sentences for the felony murder convictions, but rev

ersed the attempted felony murder convictions. After the case was docketed as a death penalty appea l in this Court pursuant to Tenn. Code Ann. § 39-13-206(a)(1) (1997 ), we reviewed the Court of Criminal Appeals’ decisi on, the record, and the applicab le law, and we entere d an order specifying three issues for oral argument. 1
We have determined that none of the alleged error s claimed by the defendant affected the convictions for felony murder or the sentences imposed by the jury. We have further con cluded that th e evidence suppo rts the jury’s find ings as to the aggravating

and mitigating circumstances, and the sentence of death is n ot arbitrary or dispr

oportionate to the sentence imposed in similar cases, consi dering the nature of the crime and this defend ant. Accordingly, the judgment of the Court of Criminal Appeals is affirmed.-3- BACKGROUND Guilt Phase On April 20, 1992, four young men, Damond Dawson, Tracey Johnson, Eric Thomas, and Tommie Blackman, were sitting in a car in Dawson’s driveway in Memphis. Dawson was in the driver’s sea

t, Johnson was in the front pas senger seat, Thomas was in the back seat behind Dawson, and Blackman was in the back seat behind Johnson.

The defendant, Kevin Burns, and Car lito Adams, who knew B lackman, walked up to the passenger side of the car. Adams pulled out a hand gun and told Blackman to get out of the car. When Blackman refused, Burns pulled out a handgun and went around to the dr iver’s side of the car.Blackman got out of the car and fled. Adams said “get him,” and three or four more men appear ed from behind hedges and fired at Black man.
Eric Jones, age fourteen, w as playing basketball

at Dawson’s house w

ith three friends. Jones saw the men in the car removing jewelry and pull ing money from their pockets. Seconds lat er, Jones saw Blackman r unning toward him. Amidst gunshots, Jones and Blackman escaped to the back of the house; Jones’ three friends ran to an adjacent yard. Once inside the hous e, Jones heard seven or eight more gunshots.
Mary Jones, Eric J ones’ mother, lived acr oss the street from the Daws ons. She saw Adams shoot Johnson once in the chest. She saw Kev in Burns shoot Dawson several ti mes, walk to the front of the car, and then shoot Dawson agai n. Ms. Jones unequivocally identified Burns and stated that she got “a real good look in his face” as he ran towar d her after the shootings.-4- Tracey Jo hnson di ed at the scene. Da mond Daws on, who su ffered five gunshots to his arm, buttock s, chest, and hip was al ive when police arr ived but died after being transported to the hospital. Eric Thomas, who sustaine d gunshots to his chest an d stomac h, survived and made a photo id entific ation of Kevin Burn s two days after the incident. Thomas t estified that Burns and the others had “opened fire” after robbing him and hi s friends of their jewelr y and money. Thomas said that he initially told pol ice he had been shot by Adams, but explained that he believ ed he was going to die and gave police the only name he knew, which was Adams.

On June 23, 1992, Burns was found in Chicago and arrested.After being advised of his rights and signing a waiver, the defendant gave a statement in which he admitted his role in the killings. He said that he had received a telephone call from Kevin Shaw, who told him that four men had “jumped” Shaw’s cousin. Burns, Shaw, and four others intended to fight the four men, and Shaw gav e Burns a .32 caliber handgun. As the other s approached a car with four men sitting in it, Bur ns stayed behind. He heard a s hot, saw a man running acr oss the yard, and fired thr ee shots. He then left the scene w ith the other men.
After the guilt phase of the tri al, the jury deliberat ed and returned verdicts of guilty for two counts of felony murder and two c ounts of attempted felony murder. The trial moved into the penalt y phase of the proceedings for the jury to determine the punishment for each of the f elony murder convictions.
Penalty Phase Jonnie Dawson, mother of Damond Dawson, testified that Damond w as the youngest of her three chil dren and seventeen years of age when he was kil led. She said he was a good son w ho was very g ood at athletics. The neighbor hood had changed after the killings; people locked their doors and were afraid. Ms. Dawson testifi ed that s he no lon ger knew what it was like to be happy.-5- Brenda Hudson, mother of Tracey J ohnson, testified that Tracey w as the oldest of her three children an d twenty years of ag e when he was kill ed. He had been working at Wal-Mart and sav ing money for his four-month- old daughter. Tracey’s death had greatly affected Ms. Hudson’ other two children, Tracey’s grandfather, and Tracey’s young daughter: When you go over to her house to see her, she has a picture in a frame and she w

ill show you. She’l l say, ‘th is is my father -- this is my daddy, Tracey. He lives in God’s house up in heaven.’ And it’s hard for me to go see her a lot becaus e it breaks my heart to hea r her say that.
In mitigation, Leslie Burns, the defendant’s mother, testified that the defendant was twenty-s ix years of age and had t welve brothers and s isters. He had graduated from high school and had presented no disciplina ry problems while in school. The defendant’s father, Rev erend Obra Carter, testified that his son had always been obedient and well-mannered. Phillip Carter, the defendant’s brot her, testified that the defendant had been activ e in the church and had alw ays tried to avoid trouble.

Norman McDonald, the defendant’s S unday School teacher, testi fied that he had known Kevin Burns for several years. According to McDonald, Burns was a “faithful” young man who ha d always attended churc h regularly. Mar

y Wilson, a Captain with the Shelby County Sheriff’s Department, and Bennet Dean, a volunteer chaplain, both testified that Burns had actively participated in religious services while in custody for these offenses.
The prosecution relied on tw o aggravating ci rcumstances to seek the death penalty for the felony murder convictions -- that the defendant knowingly created a great risk of death to tw o or more persons, other than the victim murdered, duri ng the act of murder, and that the murder had been committed for the purpose of avoiding, interfering

with, or preventi ng a lawful arrest or prosecution of the2 The Court of Criminal Appeals remanded the cases t o the tri al court f

or possibl e retri al for attempted prem editated murder. -6- defendant or another. Tenn. Code Ann. § 39- 13-204(i)(3) and (6) ( 1997 & Supp. 1998).
With regard to the felony murder of Damond Daw son, the jury imposed the death penalty after finding that the evidence supported the “ great risk of death” aggravating ci rcumstance and that this factor out weighed the evidence of mitigating factors beyond a reasonable doubt.With regard to the felony murder of Tracey Johnson, the jury imposed a sentence of life imprisonment.
The trial court entered judg ment in accordance with th e jury’s verdic t. The Court of Criminal Appeals affirmed the convictions and sentenc es for the offenses of felony murder, but rever sed the convictions for att empted felony murder based on our opinion in State v. Kimbrou gh , 924 S.W.2d 888 (Te nn. 1996). 2 After our review of the record and applicable authority, we affirm the Court of Criminal Appeals.

AGGRAVA

TING CIRCUMSTANCE The defendant argues that the Court of Cr iminal Appeals’ rever

sal of the attempted felony murder convi ctions requires a findin g that the evidence failed t o support the single agg ravating circumstan ce found by the jury -- that the defendant knowingly created a great risk of death to two or more persons, other than the victim murdered. Tenn. Code Ann. § 39-13-204( i)(3). The State maintains that the evidence overwhel mingly supported the jur y’s finding, notwithstanding the reversa l of the attempted felony murders.
We begin by observing that the C ourt of Criminal Appeals properly reversed the attempted felony convicti ons. In Kimbrough , supra , we noted that the statutes governing attempted cr imes require a defendant to intend the commi ssion of a-7-

specific crime or result , while the offense of felony murder requires “a reckless killing of another” in the course of certai n enumerated felonies. Tenn. Code Ann. §§ 39- 12-101 (1997) & 39-13-202(a)(2) (1997 & Supp. 1998). Like nea rly every jurisdiction that has addr essed the issue, we concl uded that the offense of attempted felony murder does not ex ist: [I]t is illogical that someone could intend to cause someone else ’s death through negligenc e or even recklessness . While one may reasonably conclude that a defendant intentionally behave d in a reckless manner and may hav e intended to kill the vi ctim, it does not make sense to say that a defendant intended to kill the victim by being reckless. We conclude that one cannot intend to accomplish the unintended. Consequently,the offense of attempted felony-murder does not exist in Tennessee. Kimbrough , 924 S.W.2d at 892.
Aggravating ci rcumstance (i)(3) “c ontemplates either multiple mur ders or threats to several pers

ons at or shortly pri or to or shortly after a n act of murder upon which the prosecution is based.” State v. Cone , 665 S.W.2d 87, 95 (Tenn.), cert

. denied , 467 U.S. 1210, 104 S. Ct. 2400, 81 L. Ed. 2d 357 (1984). It most often has been applied where a defendant fires multiple gunshots in the c ourse of a robbery or other incident at which

persons other than the vi ctim are present. State v. McKay , 680 S.W.2d 447 (Tenn. 1984), cert

. denied , 470 U.S. 1034, 105 S. Ct. 1412, 84 L. Ed. 2d 795 (1985) (defendants kill ed two victims duri ng robbery and shot at and threatened two other persons inside store); State v. Workman , 667 S.W.2d 44 (Tenn.), cert

. denied , 469 U.S. 873, 105 S. Ct. 226, 83 L . Ed. 2d 155 (1984) (during a shoot out with police, the defendant killed one officer, wou nded a second, and narrowly missed a third); State v. Johnson , 632 S.W.2d 542 (Tenn.), cert

. denied , 459 U.S. 882, 103 S. Ct. 183, 74 L. Ed. 2d 148 (1982) (three shot and injured inside store; two shot and killed in the parking lot as defendant fled).-8- The defendant’s argument is that the pr osecution relied upon the attempted felony murder convicti ons to establish this agg ravating circumstan ce, and that the reversal of the convic

tions renders the aggr

avating circumstance inapplicable. The defendant cites the following excerpts from the prosecutor ’s closing argument: We haven’t proven a risk of death to tw o or more people? My God, you’ve returned a v

erdict that he attempted to murder two other people. It is established, beyond a reasonable doubt, and al ready been found as a verdict that there was a risk of death to two or more people.

. . . . So, how anybody can s ay those [the aggrav

ators] weren’t prov

en when the verdict proves one of them and going back and shooting him again proves the other.

. . . . If you look at the evidence,you know the aggr avating circumstances are there, and one of them has already been found.
The transcript reveals , however, that the abov e statements were made in the context of the prosecution’s detailed argument as to the ev idence which supported this aggravating

circumstance. In its i nitial argument, for exampl e, the prosecutor said: Now, what we’r

e talking about is w

hen Mr. Blackman was r unning from the car, Eric Jones w

as in the way of the shooti ng. Eric Jones confronted Tommie Blackman as he ran from the c ar and was caught in this gunfire. . . . But also there were three other young men playing basketball on the side of the yard. All three of those young men were also caught in the gunfire of the individual shooting at Tommie Blackman. That is risk of death o r great bodily inj ury to persons other than the intended victims in this case. . . . In addition to Tommie Blackman, there were four persons that were in the line of fire. Tha t is one of the aggravating factors. . . . These points were reiterated in the prosecutor’s rebuttal argument as well:
There wasn’t a risk of death to two or more people. How about . . . Eric Thomas who caught thr ee rounds in his body fired not by one of [the] codefendants but by that man [defendant] right there. He shot him and shot him and shot him. That’s a pretty good risk of death. How about Tommie Blackman who’s running? There’s a r isk of death-9- to two people right the re, not even counting the children playing basketball.

. . . . He went with other armed men. He robbed. He shot and wounded an unarmed teenager. He helped other s shoot at and kill other una rmed teenagers. With others, he shot in the di rection of children play ing basketb all; and h e person ally shot t wo people repeate dly.
Of even greater significance, however, is that the evidence in this record overwhelmingly

supports the prosecutor’s argument and the jury’s finding that the defendant knowingly cr eated a great risk of death to t wo or more persons other than the victims murdered. The defendant,while armed and acting in concert with others, approached a car containing four unarmed m en. The defendant fired his weapon inside the car w here Dawson, Johnson, and Thomas were seated, killing Dawson and wounding Thomas. He admitted firing shots at the fleeing Blackman, which, according to testimony, directly imperiled Eric Jones and the three individuals who were playin g basketball in the Daw son’s driveway

.
Accordingly, the evidence overwhelmingly supports the prosecutor’s argument and the jury’s finding that the defendant knowin gly created a grea t risk of death to two or more persons other than the victim dur ing the act or murder. The reversal of the attempted felony murder convictions, which under Kimbrough was predicated upon a matter of statutory law, does not affect the jury ’s finding regarding the aggravating c

ircumstance.

VICTIM IMPACT EVIDENCE The defendant argues that the trial court erred in admitting testimony of the victims’ mothers duri ng the penalty phase of the tri al and by allowing the prosecutor to emphasize this evide nce during its closi ng argument. The defendant contends that so-called “vic

tim impact” evidence and ar gument is inflammatory, ir relevant to-10-

the sentencing determination i n a capital proceeding, i nadmissible under our death penalty statutes, and vi olative of Article I, §§ 8 and 16 of the Tennessee Constitution and the Eighth and Fourteenth Amendments to the United States Constitution. The State maintains that the evide nce is relevant and admiss ible in the penalty phase of a capital trial.

In State v. Nesbit , ___ S.W.2d ___ (Te nn. 1998), we recently held that victim impact evidence and argument is not per se improper under either statut ory or constitutional law. O ur analysis of the sentenci ng statutes began with Tenn. Code Ann. § 39-13-204(c), which states: In the sentencing proceeding , evidence may be presente d as to any matter that the court deems relev ant to the punishment and may include, but not be limited to, the nature and circumstances of the crime ; the defendant’s character, backg round history, and phy sical condition; any evidenc

e tending to establish or rebut the aggravatin g circumstances enumerated in su bsection (i); and any ev idence tending to establish or rebut any mitigating factors. Any such evidence which the court deems to have probati ve value on the issue of puni shment may be received reg ardless of its admissibil ity under the rules of evidence ; provided, that the defendant is accorded a fair opportunity to rebut any hearsay stat

ements so admitted. Howev er, this subsection shall not be construed to authorize the introduction of any evidence secured in violation of the constitution of the United States or the constitution of Tennessee. (emphasis added).
This statute delineates a proced ure which enables the sent encing jury to be informed about the presence of stat utory aggravating circumstances, the presence of mitiga ting circu mstance s, and th e nature and circu mstance s of the c rime. As we said in Nesbit , “the impact of the crime on the v ictim’s immediate family i s one of those myriad factors encompass ed within the statutory

language ‘nature and circumstances of the crime.’” ___ S.W.2d at ___. The statute, therefore, allows the sentencing jury to be reminded that “just as the murd erer should be considered as an individual, so too the victim is an individual whose death represents a unique loss3 In Nes bit , we also o bserve d that State v. Cozzoli no , 584 S.W .2d 7 65 (T enn . 197 9), in w hich this Court had said that evidence must be relevant to an aggravat ing cir cumstance or mitigat ing cir cumstance, had not been appl ied so as to pr eclude evi dence that i s relevant to the “nature and circumstances of the offense.” __

_ S.W.2d at ___. We also note that the legi slature has since enacted 1998 Pub. Acts, ch. 916, which expr

essly al lows the Sta

te to i ntroduce vi ctim impact evi dence and argument. This pr ovision became effective Jul y 1, 1998. -11- to society and in particular to his family.” Payne v. Tennessee , 501 U.S. 808, 825, 111 S. Ct. 2597, 2608, 115 L. Ed. 2d 720 (1991 ). 3

We also, in Nesbit , recognized that the U nited States Supreme Court has held that Eighth Amendment to the Un ited States Constitution does not constitute a per se bar to the admission of vic tim impact evidence and arg ument: We are now of the view that a State may properly conclude that for the jury to assess meaning fully the defendant’s moral culp ability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm ca used by the defendant.

Nesbit, ___ S.W .2d at ____ (quo ting Payne , 501 U.S. at 825, 111 S. Ct. at 2608). Our recent decisions hav e followed Payne and have held that victim impact evidence and argument is l ikewise not precluded b y the Tennessee Constitution. E.g. , Nesbit , ___ S.W.2d at ___.
Not all victim impact

evidence and argument, how ever, is appropriate. It should be limited to “information designed to show those unique cha racteristics which provide a br

ief glimpse into the life of the in dividual who has been k illed, the contemporaneous and prospective circumstances surround ing the individual’s death, and how those circums tances financially, emotional ly, psychologic ally or physically impacted upon members of the victim’s family.” Id . at ___ (citing, Payne , 501 U.S. at 822, 111 S. Ct. at 2607) (footnote omitted).
Moreover, any evidence that threatens to render the trial fundamenta lly unfair or poses a risk of unfair prej udice may violate the due process provisions of the United States and Tennessee Constitutions and must be excluded. Id . The trial-12-

court should also exclude any evidence where its probative value is substantially outweighed by its unfair prejudice. Tenn. R. Ev id. 403. Finally, the prosecutor and the trial court should ens ure that the prosecution’s ar gument is restrained and reasoned, fairly based on the evidence, and not merely an appeal to the bias or emotional responses of the jury

. Nesbit , ___ S.W.2d at ___.

Here, the victims’ moth ers testified during the pen alty phase. Each related a few details about their decea sed sons. Ms. Dawson testified that the shootings had a negative effect on her own life: she had divorced, mov ed to another house, and no longer knew what it was like to feel happy . Johnson’s mother, Ms. Hu dson, testified that “it had been hard to let go” of the killings, and she cried every day. She also testified that the killing affected her other two children, her f ather, and the victim’s young daughter.
Although evidence reg arding the emotional impact of the murder “should be most closely scrutinized,” Nesbit , ___ S.W.2d at ___, nearly all of this ev idence was limited in scope to a gli mpse into the lives of Daw son and Johnson and the effects of the killings on their immediate families. This testimon y was reserved in nature and not inflammatory, and its admi ssion was not barred by the capital sentencing statutes or the Constitutio ns of the United States and Tennessee. M oreover, the prosecutor did not extensi vely discuss or emphasize this evidence in summation. Accordingly, neither

the admission of this evidenc e nor the prosecution’s arg ument was improper.

Ms. Dawson also testi

fied, however, that the ki llings had adversel y affected the entire community -- for instance, people were afrai d and kept their doors locke d. The prosecut or emphasized th is testimony durin g closing: Do you remember the testimony of Miss Dawson? Stay home. Get back over here on David Street. Stay in your own driveway. Stay in your own yard. You’ll be safe there. I never thought anybody would-13- come up in the yard. It re minds me of the old anonymous African proverb: It takes a whole village to raise a child. And that’s what this village was. That’s what David str eet was. This wasn’t

a street. You’ve heard it described here. This is the neighborhood we all wish America really had. And that was part of the impact evidence in this case. They didn’t just kill a couple of more Memphis teenagers and try to kill a couple more. They killed an entire vi llage. They killed a n entire neighborhood. They destroyed the very backbone of this community when they do things like that. . . .

. . . . You’ve heard what i

t did to this part of Orange Mound -- not just to families and not just to indiv iduals, but what it did to Orange Mound.
This evidence and argument w ent beyond “information desig ned to show those unique characteris tics which provi de a glimpse into the life of the i ndividual who has been killed, the c ontemporaneous and prospective circumstances surround ing the ind ividual’s death, a nd how tho se circum stances financi ally, emotionally, psycholo

gically or phy

sically impacted upon member’s of the victim’s family .” Nesbit , ___ S.W.2d at ___ (footnote omitted)(emphasis added). The testimony was not objected to by the defendant, however, and the prosecut or’s argument was ba

sed on th is evi dence. Althoug h beyond the scope of Nesbit , neither the evidence nor the argument was inflammatory , and it did not render the proceedings fundamentally unfair or unduly prejudicial

to the defendant. See Darden v. Wainwright , 477 U.S. 168, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986). Thus, we conclude the defendant is not entitled to relief on this issue.

PROPORTIONALITY A comparative proportional ity review mus t be undertaken in capital cas es pursuant to Tenn. Code Ann. § 39-13-206(c)(4) (1997). The analy sis is designed to identify aberrant, arbitr ary or capricious s

entences by determining w hether the death penalty in a given case is “disproportionate to the punishment imposed on oth ers convicted of the same crime.” State v. Bland , 958 S.W.2d 651, 662 (Tenn. 1997) (quoting, Pulley v. Harris , 465 U.S. 37, 42, 104 S. Ct. 871, 875, 79 L. Ed. 2d 29 (1984)). If a case is “pl ainly lacking in circumstances consistent w ith those in cases-14-

where the death penalty has been imposed,” then the sentence is disproportionate. Bland , 958 S.W.2d at 668.

As we discussed in Bland , we have consistentl y employed the precedent seeking method of comparative p roportionality rev iew, which compares

the case at issue with other cases

in which defendants wer e convicted of the same or simi lar crimes. Since no crimes ar e precisely alike, the precedent seeking method of rev iew is not a rigid, mechanic al formula. Instead we consi der numerous factors regardi ng the offense itself: (1) the means of death; (2) the manner of death; (3) the motiv ation for the killing; (4) the place of death; (5) the vi ctims’ age, physical and psychological condition; (6) the absence or presence of premeditation; (7) the absence or presence of provocation; (8) the absence or presence of justi fication; and (9) the injury to and effects on nondecedent victims. Id . at 667. We also consider numerous factors about the defendant: (1) age, race and gender; (2) prior criminal record; (3) mental, emotional , or physical conditi on; (4) role in the murder; (5) remorse; (6) cooperation with authorities; (7) the defendant’s knowledge of a victim’s helplessness; and (8) the defendant’ s potential for rehabilitati on. Id

.
Here, the defendant shot the vic tim Dawson, walked around the side of the car, and then returned to shoot D awson again. Acting

in concert with other

s, the defendant shot and killed Daws on, shot and wounded Thomas, and shot at the fleeing Blackman. One apparent motivation for the killing was robbery; another, offered in the defendant’s own statement, w as to assist in a rev

enge scheme. There was no evidence to suggest the defendant was provoked or justified in his actions. The defendant’s main argument with regard to the nature of the offense is that he did not know that the v ictims were unarmed.
The defendant was twenty-three years of age when the offense was committed. He had prior cr iminal convictions for b urglary and theft. There i s no-15-

evidence that he suffered from any emotio nal, mental, or physical conditions. There is no evidence that the defendant s howed remorse for these cri mes or that he assisted the au thorities; inde ed, the proof shows that the de fendant fl ed to Chicago after committing these crimes . The defendant played a major role in the commission of the crimes, kil ling Dawson, w ounding Thomas, and firing at Blackman. There is extensi ve evidence of the defendant’s r eligious faith and activities both before and after the off enses, but no other evidence as to his rehabilitative potentia l.

Our review rev

eals numerous cases similar to this one in which th e death penalty was upheld. In Bland , supra , the defendant was convicte d of premeditated murder for shooting an unresi sting victim. As in this case, Bland and several codefendants had planned to rob the vic tims. When one of the victims tried to flee, Bland shot him in the leg, pursued him a considerable distance, an d then shot him several more times as the victim tried to hide und er a truck. In addition to the similarities in how

the killi ngs occurr

ed, Bland, ag e nineteen, w as the same approximate age as Burns,and he had no prior adult cri minal record. Also lik e the present case, only a si ngle aggravating circumstance found by the jur y -- that the “murder was especiall

y heinous, atrocious, or cruel in that it inv

olved torture or serious physical abus

e beyond that necessary t o produce death.” Tenn. Code Ann. § 39-13-204(i)(5).

In State v. Van Tran , 864 S.W.2d 465 (Tenn. 1993), the defendant killed a seventy-four-year

-old victim in the cou rse of a robbery. The vi ctim had been shot once and was lying

on the floor when the defendant shot her in the head. The defendant was age nineteen and had no prior record. Miti gating evidence included the defendant’s good work r ecord, cooperation with law enforcement, remorse, and educational problems. The jury imposed the death sentence after finding only one aggravating ci rcumstance -- that the “mur der was especially

heinous, atrocious, or-16-

cruel in that it invo lved torture or seri ous physical abuse bey ond that necessary to produce death.” Tenn. Code Ann. § 39-13-204 (i)(5).

In State v. McKay , 680 S.W.2d 447 (Tenn. 1984), co-defendants McKay and Sample we re convict ed of two c ounts of felony mu rder for s hooting t o death t wo store cler

ks in the cou rse of a robbe ry. The defen dants and vi ctims wer e the same race, gender and approxi mate age. For Sample, the jur y found three aggravating circumstances: great r

isk of death to two or more per sons, murder was committed to prevent prosecution, and the killing occurred in the perpetration of a felony. Tenn. Code Ann. § 39-2-203(i)(3) , (6), and (7) (1982) [now Tenn. Code Ann. § 39-13-204 (i)(3), (6), and (7

)]. McKay had these same aggravators in addi tion to a prior conviction for a viol ent felony. Tenn. Code Ann. § 39-2- 203(i)(2) (1982) [now

Tenn. Code Ann. § 39-13-204(i)(2) ]. See also State v. Johnson , 632 S.W.2d 542 (Tenn. 1982) (defendant and co-defendant shot three people during a robbery and shot and killed two people in the parking lot).

In State v. King , 694 S.W.2d 941 (Tenn.1985), the defendant and a codefendant entered a tavern, fired a shot into the ceiling and ordered everyone to lie on the floor. After robbing each individual and taking money from th e cash register, the defendant shot and killed the ow ner of the tavern. The defendant was convicted of felony murder and was sentenc ed to death based upon three aggr avating circumstances: previous convictions for violent felonies; risk of death to two or more persons; and felony murder. Tenn. Code Ann. § 39-2-203(i)(2) , (3), and (7) (1982) [now Tenn. Code Ann. § 39-13-204(i)(2), ( 3), and (7)].

In State v. Hurley , 876 S.W.2d 57 (Tenn. 1993), cert

. denied , 513 U.S. 933, 115 S. Ct. 328, 130 L. Ed. 2d 287 (1994 ), the defendant killed the vi ctim by shooting him once in the head. The jury found the defendant guilty of premeditat ed murder and imposed the sentence of death upon finding that the murder was committe d-17-

while the defendant was engaged in committing a felony -- robbery. Tenn. Code Ann. § 39-2-203(i)(7) ( 1982) [now Tenn. Code Ann. § 39-13 -204(i)(7)].

In State v. Cooper , 718 S.W.2d 256 (Tenn. 1986), cert

. denied 479 U.S. 1101, 107 S. Ct. 1332, 94 L. Ed. 2d 183 ( 1987), the thirty-three-year-old defendant shot his estranged wi

fe four time while she was trapped inside a cashier' s booth. After shooting the victi m once, he walked away , then turned back and resumed firi ng at her. The jury imposed the death penalty, as in this case, upon finding that the murder was especially

heinous, atrocious, or cr uel in that it involv

ed torture or depravity of mind. Tenn. Code Ann. § 39-2-203(i)(5) ( 1982) [now Tenn. Code Ann. § 39-13-204(i)(5)] .
These cases, although not identi cal, contain numerous simil arities to both the offense and the defendant before us. In each case, the defendant shot and killed unarmed victims, with robbery being the apparent motive. In four of the cases, Bland , Van Tran , Hurley , and Cooper , the death penalty was i mposed based upon a single aggravating circumstance found by the jury. In two of the cases, King and McKay , one of the aggravating circumstances was, as in this case, that the defendant knowingly cr eated a great risk of death to t wo or more persons other than the victim murdered. In t wo of the cases, Bland and Van Tran , mitigating circumstances included the y outh of the offender and their minimal cri minal records as adults. In all of these case s, this Court upheld the death penalty after finding that it was neither arbit rary nor disproportionate.
The defendant argues that unlike the def endants in these prior cases, he did not know that the victims were unarmed. He arg ues that the case is simila r to State v. Jack Jay North , No. 02C01-9512-CC-00369 ( Tenn. Crim. App., Jackson, Dec . 12, 1996), and State v. Horace Jones , No. 117 (Tenn. Crim. App., Ja ckson, Dec. 4,-18-

1980) -- first-degree murder cases in which the defendants received sentences of life imprisonment.

In North , the defendant and a co-defendant entered the v ictim’s home and shot the victim sever

al times with a shotg un. The evidence showed that the killing
was com mitted fo r the def endants to prov

e their worthi ness to o

ther members of a gang. In mitigation, North was only twenty years of age, had received a G.E.D, did not have a lengthy pr

ior criminal record, and testified in a “tearful, emotio nal manner.” The jury found three ag gravating circumstances were proven b ut returned a verdict of life imprisonment

.

In Jones , the defendant shot the victim s everal times in a pool hal l. After the gun misfired and the defendant stopped to r eload, the victim attempted to flee and was shot and killed. The d efendant, who was twenty -four, was apprehended and arrested one month later. There w as extensive mitig ating evidence includi ng the defendant’s rehabilitative potential, extreme emotional disturbance, and threatening actions by the victi m. The jury returned a li fe sentence for the offense.
Although not cited by the defendant or the State, we observ e that the present case bears obvious similarities to Burns’ co-defendants, Carlito Adams and Derrick Garrin, who were tried separately and received life sentences. Gar rin had given a statement admitting he was present at the scene and fired shots at Blackman; but, he denied firing shots insi de the car. State v. Derrick K. Garrin , No. 02C01-9501- CR-00028 (Tenn. Crim. App., J ackson, May 24, 1996). Ada ms testified that he and Blackman had a prior alterc ation in which Blackman pulled a gun. He admitted being at the scene but denied shooting anyone. In the sentencin g phase, his family members and other witnesses testified about his employment hi story, character, and rehabilitative potentia l. His family members ask ed the jury to spare his life. State v.-19-

Carlito Ad ams , No. 02C01-9608-CR-00267 ( Tenn. Crim. App., Jackson, Dec . 11, 1997).
Despite these similarities to the present case, our function is not to invalid ate a death sentence merely because the circumstances of the offense are si milar to those in which another defendant or even a co-defendant receiv ed a life sentence. See State v. Cauthern , 967 S.W.2d 726 (Te nn. 1998) (defendant’s death senten ce not disproportionate merely because co-defendant received l ife sentence). Instead, we must review factors about the crimes and the defendant and , in comparing these factors with prior ca

ses, determine whether the case plainly lacks c ircumstances found in similar cases in w hich the defendant received the dea th penalty. Bland , 957 S.W.2d at 687. Our review in this case reveals numerous comparable cases in which the death penalty was upheld. Thus, we conclude that the death sente nce was not disproportionate or arbitrary as appl ied in this case.

CONCLUSION In accordance with Tenn. Cod e Ann. § 39-13-206(c) and the pr inciples adopted in prior decisions , we have considered the entire record and conclude that the sentence of death was not imposed arbitrarily or capriciously, that the evidence supports the jury’s find ing of the statutory agg ravating circumstan ce, and that the evidence supports the jur y’s finding that the ag gravating circumstance outweighed evidence of mitigating circumstances beyond a re asonable doubt.

We have reviewed all of the issues raised by the defendant and concl ude that they are without merit. With respect to issues not specif ically addressed in this opinion, we aff irm the decision of the Court of Criminal Appeal s authored by Jud ge John Peay and joined in by Judges Joe B. Jones and Joe R iley. Relevant por tions of that opinion are attached as an appendi x. The defendant’s sentence of death by-20-

electrocution is affirmed and shal l be carried out on the 9th day of February, 1999, unless ot herwise ord ered by thi s Court or p roper aut hority.
Costs of the appeal are taxed to the defenda nt, for which execution shall issue if n ecessary.

_________________________________ RILEY ANDERSON, CHIEF JUSTICE

CONCUR: Drowota, Birch, and Holder, JJ.