# FILED
December 1, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE SUPREME COUR T OF TENNESSEE AT JA CKSON

FOR PUBLICATION STATE OF TENNESSEE, ) Filed: December 1, 1997 ) Appellee, ) SHELBY COUNTY ) v. ) Hon. Arthur T. Bennett ) Judge ANDRE S. BLAND, ) ) Appellant, ) Supreme Court ) No. 02-S01-9603-CR-00032

FOR APPELLANT : FOR APPELLEE: William L. Johnson John Knox Walkup Patricia A. Odell Attorney General & Repor ter 50 North Front St., Suite 1150 Memphis, Tennessee Michael E. Moore Solicitor General Darian B. Taylor William David Bridgers Assistant Attorneys Gener al Criminal Justice Div

ision Nashville, Tennessee John W. Pierotti District Attorney General Thomas D. Henderson David C. Henry Assistant District Att orneys Ge nera l Memphis, Tennessee



## O P I N I O N

TRIAL COURT AND COURT OF CRIMINAL APPEALS AFFIRMED. DROWOTA, J.1 The trialjudge imposed an effective fi fty y ear sentence for

the convictions of at tempted agg rava ted ro bbe ry, esp ecia lly aggr avate d rob bery, a nd at tem pted first d egre e m urde r. In this appeal, t he defendant does not challenge those convicti ons or sentences.
2 "Whenever the death penal ty i s imposed for fi rst degree murder and when the judgment has become final i n the tri al court,the defendant shall hav

e the rig ht of dir

ect appeal f rom the trial court to the Court of Crim inal Appe als. The affirma nce of th e convic tion and the senten ce of de ath shall be aut

omaticall y revi ewed by the Tennessee Supr eme Court. Upon the affi rmance by the Cou rt of C rim inal A ppe als, th e cler k sh all doc ket th e cas e in the Sup rem e Co urt an d the cas e sha ll procee d in acco rdance with the T ennes see R ules of A ppellate P rocedu re.” -2- In this c ap ital case, the defendant, Andre S. Bl and, was convicted of premeditated first degree murder, attempted aggravated robbery, espec ia lly aggravatedrobbery, and attempted first degree murder. 1 In the sentenci ng hearing, the jury found one aggrav ating circumstance: “[t]he murder was especially heinous, atrociou s or cruel in that it inv olved torture or seri ous physical abuse bey ond tha t necessaryto produce death.” Tenn. Code Ann. § 39-13-204( I)(5) (1991 Repl. & 1996 Supp.). Finding that the agg ravating circumstan ce outweighed mitigating circumstances

beyond a reason able doub t, the jury sentenced the defendant to death by electrocution.

On direct appeal to the Court of Criminal Appeals, the defendant c hallenged both his conviction and sentence. After fully considering th e defendant’s claims, the Court of Criminal Appeals affirmed the tr ial court’s judgment. Thereafter,pursuant to Tenn. Code Ann. § 39-13-206(a)(1) (1996 Supp.), 2 the case was docketed in this Court.

The defendant raised several issues in this Court,but after carefully examin ing the entire record and the law, includingthe thorough opinion of the Court o f Criminal Appeals and the bri efs of the defendant and the State, this Court,on December 9,3 Tennessee Supreme Court Rule 12 provi des in pert inent part as foll ows: “Prio r to the setting of oral argument, the Court shall review the record and briefs and c onsider all errors assigned. The Court may enter an order

designati ng those issues i t wishes addre ssed at oral argum ent.” -3- 1996, entered an Order limiting review

to four issues and setting the cause for oral argument at the April 1997 ter m of Court in Jackson. See Tenn. S. Ct. R. 12. 3

For the reaso ns explain ed below, we have determined that none of the alleged
errors have merit. Moreov er, the evidence supports the jury’s findings a s to the aggravating

and mitigating circumsta nces, and the sentence of death is not disproportionate

or arbitrary. Acc

ordingly, the

defendant’s conviction for firs t degree murder and sentence of death by elec trocution are affirmed.

FACTUAL BA

CKGROUND The evidence presentedat the guilt phase of the trial established that on the evening of October 9, 1992, the defendant, then nineteen years old, along with D arryl Bailey, Martell Pollard, Carlos Sanders, and two men known only as Steve and Yogi, attended a crap game at the apartment of Charles Sanders i n the Southbrook ApartmentCo mp lex i n M em ph is . Wh en the cra p game ended ar ound 10:00 p.m, these young men wandered outsi de and , a t some point between 10:30 and 11:30 p.m., decided to rob two strangers, Earnest Norman and Marcel Nugent, whom they had seen arriving at the c omplex earlier. Nug ent had come along to the complex with Norman to visit a friend.Norman and Nugent both testified that when they arri ved, fourto six men were standing around i n the parking lot, and as they were nearing Norman’s car to leave about thir ty minuteslater, the g roup of men appr oached them, asked who the y we re, where t hey were fr om, and wh ether th ey had any m oney.4 Sanders was not rel ated to either Charle s or Carlos Sanders,the hosts of the crap game; and there i s no indication that he knew any of t he men involved i n the attack on Norman and Nuge nt. -4- When Norman and Nugent ignored the gr oup of men, one of the defendant’s party struckNorman in the back of the head as he was about to get into his car. N orman fled. As he ran, Norman realiz ed he wasbeing pursued by one of the men, and he heard someone urging another per son to shoot, and then heard a gun fire. Norman escaped unhurt to a nearby ser vice station and called 911.

In the meantime, Nugent, who had locked himself inside Norman’s car, found hims elf trapped and surrounded by the group of men as they tried to force him ou t of the car. About

this time, the victim o

f the murd er, twenty- year-old O ntrain (T erry) Sanders, 4 drove into the parking lot, got out of his car, and approach ed the men surrounding Nugent. According to Nugent, the men said something to Sanders, who turned and headed back to his car w ithoutreplying. The

defendant then fired a gun, hitting Sanders in his right le g. Bleeding profusely, Sander s fled some 273 feet, almost 100 yards, through the ap artmentcomplex. The defendant and Darryl Bailey jogged after Sanders who was l imping from the leg injury. When, during the chase, the defendant shot Sanders in the leg a gain, Sanders attempted to hide under a pickup truck. However, Sanders was discov ered and the defendant shot him at least two or three more times whi le he lay underneaththe truck. The def endant a nd Darryl Bailey then left Sanders, under the truck, pleading for help, and ran back around the apartment complex to the car w here Nugent was trapped.
Upon hearing gunfire, Henry Adams, who lived in a n upstairs apartment, looked out his back door and saw a man with a large shiny gun kneeling down as if-5-

shooting under the truck. Adams heard three shots fired, then saw the man with the gun turn and run. Hearing a man sc reaming, “Oh God, please h elp me,” Adams called 911 just after

midnight. When Adams returned to his back doo r to look out into the parking lot, he

saw someone trying

to crawl out from underneath the pickup truck, and heard the person yelling and pleading for help for a short while longer.
Floyd P. John son owned the green pick up truck under which Sand ers had taken refuge, and Johnson’s upstair s apartmen t also ove rlooked the area in which the shooting occurred. Johnson testified that after hearing three gunshots,he looked out his window and saw a man lying partially under his truck with his upper

body exposed and covered in blood. Johns on testified that the man was calling out, “Oh G od, help me !” Because he feared for his own safety, Johnson stayed on his balcony, but atte mpted to calm San ders down by talking to him and encouraging him to remain sti ll. Joh nson said he talked with Sanders for ten or fifteen min utes until the ambulance arrived.

While Sanders fought for his life u nderthe truck , the def endant a nd Darryl Bailey returned to Norman’s car. Bailey helpedthe group of men break through the passenger

window and pull Nugent from the automobile.Nugent scuffled with the
men before breaking free. As Nugent fled, his jacket was pulled off his back. According to Martell Pollard w hen someone shouted, “he has a gun,” the defendant shot Nuge nt in the leg. The men then took hi s watch and his money, k icked him , beat him, and finally, the defendant again shotNugent in the leg. The g roup of men then disbanded, leaving Nugent ly ing in the parking lot. N ugent made it upstairs to the apartment of Norman’s friend, w here he waited until an ambul ance arrived.-6- The first ambulance on the scene transported Sanders to the hosp ital. One of the paramedics testified that the unit arrivednine minutes after receivi ng the call, but Sanders’ conditio n was very grave at the time of their arrival.Sanders died in the ambulance on the way to the h ospital.

Two days later, at the urg ing of his mother and grandmother and after learning that the police were looki ng for him, the defendant turned himse lf into the Memphis Police D e partmen t on the a fternoo n of Octo ber 12, 19 92, appro ximately two days afterthe killing. At that time, the defendant gave a statement in w hich he confessed to shooting Nugent and Sanders with a chrome 9-milli meter pisto l . The following is the defendant’s account of the crime:

Me, Little Darryl, Carlos’ daddy, Carl os, an d a guy named Pat were shooting dice. We were inside Carlos Sanders’ house inside the Southbrook

Apart ments. L ittle Steve knocked on the door and he came out and g ot the 9-millimeter pistol that I had. By that time I got up and came outdoors and got the gun from Little Steve. AndYog i approached me saying he was fix ing to rob dud e that wa s up in the house. Carlos, Martell, Yogi, Darryl, Steve and me w ere standing out there, and Yogi was telling us he was going to rob the dude. I gave him t he gun, the 9-millimeter. By that time the dudes had come out th e apartment. Yogi approached h im saying somethin g t o him, a nd then theygot into physical c ontact. Then he hit the dude and the d ud e broke loose and ran. The other dude got in the car and locked himself in. Steve and Darryl grabbed obj ects from the ground and started hitting the car window. Dar ryl pulled the dude up out of the car. Steve, Yogi, Darryl, Carlos, Martell, the y was hitting

the dude with objects they picked up. I got thegun back from Yogi, and th e dude in the Cadillac [the victim] drove up and jumped out and startedtowards us. And then I shot him in his leg. Then he went around the building and I went around the building and shot hi m in his l eg again. And then he had tried crawl up under a truck and I shot him again . Then he continued up under the truck. I went back around the cor ner, and they was continuing to beat the dude that got out of the car. Then I walked up and shot in both his legs. I wasn’t sh ooting to ki ll, that’s why I shot-7- them in their leg. I turn ed around, threw the gun and ran to the Ki ngs Gate Apartments over to my g irlfriend house, Teres a Wiggs. . . . and then we went to sleep.
When asked by the police why he shot Sanders the first time, thedefendant replied, “Because w hen theywas beating on the dude, he jumped out and approached us and said, ‘What’s up?’ And I turned around and I shot him in his leg.” The defendant said that he shot Nugent “so he c ouldn’t get away.”

The defendan t denied getting anymoneyor valuables from either Sanders or Nugent or being involved in the robbery. He knew the other men “w ent in the dudepockets” but did not know if they gotanything. Nugent, ho wever, testified that

he was robbed. In addition, police found an unemployment check, a bloody dollar bill and assorted change, keys, and
a black cap near the p ickup tru ck where Sa nders wa s kil led. Sanders’ wallet was also missing and never found.
Dr. Sandra Elkins, a forensic pathologist who had performed the autopsy on Sanders, testified that the cause of his death was multiple g unshot wounds, one of which l acerated his femoral artery and caused him to bleed to death. D r. Elkins f ound nine separate gunshot wounds to the victim’s right leg, extendin g from th e groin area of the upper thigh to just above the knee, which i nclud ed both entrance and exit wounds. From th e combination of entrance and exit wounds , Dr. El kins deduced that the victim had actual ly been shot four or five times. A person with the victim’s injuries, Dr. El kins testified, could liv e from two to fifteen minutes and be conscious four to five minutes after suffering such a wound.-8- Based upon the proof summarized above, the jury found the defendant guilty of first degree premeditated murder, especially aggravated robbery, attempte d first degree mu rder, and attempt ed aggravat ed robbe ry.

The trial proceeded to the sentenc ing phase on the conviction for first degree murder. The State presented two witnesses. Dr. Elkins again testified that someone with the victim ’s injury co uld live fr om two to fifteen minutes and be conscious up t o fourto five minutes. Since the victim’s femoral nerv e had only been bruised and not severed, and because the muscles and nerv es of his right

thigh had been completely destroyed, Dr. Elkins testified that the victim would have experienced pain from the wounds in his leg during the time he remained conscious.

The second Statewitness was the victim’s mother, Vivian Lewis , a deaf mute who testified th rough an interpreter. She testified that her son was sweet and good and had never been in any tr ouble. She said that the victim’s two small daughters, two-years-old and four-years-old at the time of trial, were “v ery, very w

orried” and wanted to see their father . Lewis also testified that her son’s murder had left his family “very, v

ery hurt.”

The defense present ed three witnesses : the def endant’ s mother , Marilyn Boyd; his matern al grandmother, Virgi nia Bland; and the defendant himself. The defendant had n ever k nown his father and was r aised by his mother and grandmother, who both testified that he had turned himself into the police at their urging. The defendant had dropped out of high school in the elev enth grade, when he was suspended for bei ng “d isrespectful to a teacher.” He had a juvenile record5 In its o pinion on th e pet ition to rehe ar filed by the State , the C ourt o f Crim inal A ppe als expressed doubt about its j urisdiction over t he case, observi ng that one possi ble int erpretat ion of Tenn. Code Ann. § 39-13-2 06(a)(1) ( 1996 Supp.) woul d divest the intermediat e court of j urisdiction of a capital case immediatel y upon the fili ng of an op inion affirm ing the se ntence of death

. However, the bet

ter int erpretat ion of th e statute,which we adopt, is that the Court of Criminal App eals retain s juris dictio n to d ispo se of a tim ely filed petitio n for rehe aring of a c apita l case in which the death se ntence has be en affirm ed. See Tenn. R. App. P. 3 9. -9- beginning at the age of eleven, consisting of multiple assa ults an d batteries, car thefts, and at least o ne drug conviction. The defendant testified that he shot the victim because the victim ran back to his c ar as if he was “fixing to get his gun or something;”that he did not know why he and Darryl had follow ed the victim; that he had been drinking and the crime was a spur of t he moment decision; and that the victim was shotseveral times because the automatic gun “kept on repeati ng shots.” He expressed remorse and repeated that he was not trying to kill the victim: “[t]hat’s why I shot him in the leg.” The defendant also admitted that he ca rried a gun because he sold drugs and that he had been selling dr ugs on the night

of the killing. During closing argument, counsel for the defendant stress e d his youth, lack of education, an d single parent up bringing.

Based on the p roof, the jury determined that the State had proven the existence of one aggravat i ng circumstance beyond a reasonable doubt: “[t]he murder was especially

heinous, atrocious or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death.” Tenn. Code Ann. § 39-13- 204(I)(5) (1991 Repl. & 1996 Supp.). In addition, the jury found that the aggravating circumstance outweighedthe mitigating circumstances beyond a reasonable doubt, and as a result, sentenced th e defendant to death by electrocution. The trial cou rt
e nt ered a judgment in accordance w ith the jury’s ve rdict and the Court of Crimi nal Appeals affirmed. 5 After reviewing the record and considering the er rors assigned-10-

bythe defendant, w e affirm the judgment of the trial cour t and Court of Criminal Appeals.

SUFFICIENCY OF THE EVIDENCE Relyingupon State v. Brow n , 836 S.W.2d 530 (Tenn. 1992), the defendant contends t hat the trial cou rt and Court of Cr iminal Appeals erred in findin g th e evidence sufficient to establish premeditation and deliberation

. He argues that the only proof of these elements is r epeated gunshots.

A guilty verdict by the

jury, approved by

the trial court, accre

dits the testimony of the witnesses for the State and resolves all conflicts in favor of the prosecution’s theory. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). A verdict o f guilt
removesthe presumption o f innocence and replaces it w ith a presumption of guilt, and the defendant has the burden of illustrating why the evidence is insufficient to support the jury’s verdict

. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). Questionsconcerning the credibility of wi

tnesses, the weight and value to be given the evidence, as

well as all factual i ssues raised by the evidenc e are resolved by the trier of fact. This Court does not r ew eigh or reevaluate the evidence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 197 8). Nor may this Court substitute its inferences for thos e drawn by the trier of fact from circumstantial evi dence. Liakas
v. Stat e , 19 9 Tenn. 298, 305, 286 S.W .2d 856, 859 (1956). Therefore, on app eal, the State is entitled to the str ongest legitimate vi ew ofthe trial evidence and all reasonable and legitimate i nfe rences which may be dr awn from the evidence. Conseque ntly, in considering the defendant’s claim that the evidence is not sufficient,
we must determi ne, a fter reviewing the evidence in the light

most favorable to the-11-

State, whether any rational trier of fact could have found the defe ndant guilty of premeditated first degree murder beyond a re aso nable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L. Ed.2d 560 (1979); State v. Cazes , 875 S.W.2d 253 (Te nn. 1994).
At the time of the killing,first-degree murder was defined as an “intentional, premeditated and deliberate killing of another.” Tenn. Code Ann. § 39-13-202(a)(1 ) (1991). “Intentional” is defined as the “conscious objectiv e or desire to engage i n the conduct or cause the result.” Tenn. Code Ann. § 39-11-106(18) (1991 Repl.). Premeditation, on the other hand, requires “the exercise of reflection and judgment.” Tenn. Code Ann. § 39-13-201(b)(2) (1991 R epl.). Finally, del iberation requires pr oof of a “cool purpose” that includes some pe riod of reflection during w hich the mind is free from passion and excitement. Tenn. Code Ann. § 39-13-201(b)(1) (1991 Repl.); Brown , 836 S.W.2d at 539.

The elements of premeditation and deli berat ion are questions for the jury which may be established by pro of of the circumstances s urrounding the k illing. Brown , 836 S.W.2d at 539. There are several factors w hich tend to support the existence of these elementswhi ch include: the use of a deadly weapon upon an unarmed victim; the particul ar cruelty of the kill ing; declarations by the defendant of
an intent to kill; evi dence ofprocurement of a weapon; prepara tions before the killing forconcealment of the crime, and calmness imm ediatelyafter the killing. Brown , 836 S.W.2d at 541-42; State v. West , 844 S.W.2d 144, 14 8 (Tenn. 1992).-12- Consideringthe proof in this record in the lig ht most favorable to the State, as
we are require d to do, we agree withthe Court of Criminal Appeals that the evidence is sufficient to establish premedita tion and deliberation. Contrary to the defendant’s assertion, the existenc

e of repeated gunshots to the victim is not the only evidence of premeditation and deliberation. Here, the defendant shot an una rmed victim after the victim had turned around and headed back towards his car. W hen the victim attempted to get away, the defendant foll owed him, at a rather slo wpace, some 273 feet. During the chase, the defendant again shot the victim, consciousl y choosing to engage in the conduct. After being shot a sec ond time, the victim sought refu ge under a pickup truck. At that poi nt, t he victim was trapped and helpless. If, as the defendant claimed, he intended only to disable the victim, he w ould have ended the assault at that point. Instead, the defendant cons ciously chose to kneel down and shoot the unarmed victim at least two or three more times while he was underne

ath the pickup truck. Even as suming, as the defenda nt claimed, that the automatic weapon cont inued to fire after he had released the trigger, the proof in this cas e shows that, at a minimum, the defen dant pulled the trigger on three separate occasions- once when the victim began to return to his car, once during the chase, and once while the vic

tim tried to hide underneath the pickup truck. The jurylogically could have concluded that t he def endant had time to reflect upon and choose a course of action when he first fired his gun at the retre ating victim, agai n during the casual chase which ensued, and again upon discovery of the victim under the pickup truck. These circumstances support a finding of premeditation an d delibe ration. After leaving the vic

tim begging for help under neath the pickup truck, the defendant returned toNorman’s car where he stood and obse rved the beating and robber y of Nugent. This fact illustrates cal mness and dispassion . Whe n Nugent broke away-13-

and began to run, someone yelled that he had a g un, and the defendant shot Nugent twice. Once again, the defendant coolly responded to thesituation by shooting another unarmed person. Thereafter, the defendant “dumped” the gun in an effort to conceal the crime

and went to his girlfriend’s house and fell asleep. Calmness im mediately following a killi ng is evidence of a cool, dispassionate, premedi tate d murder. West , 844 S.W.2d at 148.
Clearly, the evidence in this record is sufficient to support the conc lusion that the defendant, without passion or provocation and with

a cool purpose, consciously engaged in the con duct wh ich caus ed the victim’s death after ex ercising judgment and reflection. Therefore, we conclude that the evidence in this recor d is sufficient to establish premeditation and d eliberation.

SUFFICIENCY OF EVIDENCE - AGGRAVA TING CIRCUMSTANCE Pursuantto Tenn. Code Ann. § 39-13-206(c)(1)(B)- ( C) (1991 Repl. & 1996 Supp.), we have examined the ev idence to dete rmine whe ther it is sufficient to support the aggravating circumstance found by the jur y and whether it is

sufficient to support the jury’s finding that the aggravating circ umstan ce outweighed any mitigatingcir cumstances beyond a reasonable doubt. We conclude that the evidence is clearly sufficient to support these findings.

The trial court correctly instructed the jur y as to the definitions of the te rm s “heinous,”“atrocious,” and “cru el” in accordance with thi s Court’s decision in State
v. Williams , 690 S.W.2d 517, 529 (Tenn. 1985); see also State v. Odom , 928 S.W.2d 18, 26 (Tenn. 1996). Also in accordance with Williams , the trial court instruct ed the6 The specific finding of the jury in this case was that the murder was “1. crue l 2. torture.” Indeed, t he State di d not rel y upon the “ serious phy

sical abuse”

prong of the st

atute. The failur

e of the verdi ct to repeat

the language of the stat ute defini ng the aggravat ing cir cumstance does not invalidate the jury’s findings

. See State v. Henley , 774 S.W.2d 908, 917 (Tenn. 1 989)(upholdi ng verdict of “a trocious , cruel, torture ”); see also State v. Teel , 793 S.W .2d 236, 250 (Tenn. 1990 ). -14- jurytha t “torture” means “the infli ction of severe physic al or mental pain upon the victim while he or she remains alive and conscious.” Id . The proofintroduced by the State during the trial cl early established torture. 6 The defendant shot the victim once in the leg. The victim began bleeding profusely. Proof introduced at the sentencing hearing established that the bruising of the victim’s femora l nerve woul d have caused great pain. Despite the bleeding from the wound and the resulting pain, the victim fled as fast as he could from his attack ers. They pursued him for some 27 3 feet, almost 100 yards, shooting him again during the chase . No doubt terrified, the victim crawled under a truck seeking refuge, but the defendant was rele ntless. He knelt down and shot the victim sever al other times in the leg while the victim w as underneath the truck, and then left the dy ing victim under the

truck pleading for help. Sanders repeatedly called out, “Oh God, please help me,” as the defe ndant and his friend ran away from the scene of the shooting. According to the me dical tes timony, the victim could have remained alive, consciou s and in pain for four to five minutes after he was shot . Accordin g to the te stimony o f two eyewit nesses, the victim wa s alive, conscious, pleading for help, and attempting to craw l outfrom underneath the pickup truck for ten to fifteen minutes after they first hear d gunshots. The facts and circumstances

surrounding this murder are clearly sufficie nt to establish torture as that term has b een defin ed in State v. Williams , supra , and to support the jury’s finding that this murder was especially heinous, atr ocious, or

cruel, in that it inv

olved torture or serious physical abuse beyond that necessary to produce death. T enn. Code Ann. § 39-13-204(I)(5) ( 1991 Repl.). See also State v. Jones , 789 S.W.2d 545-15-

(Tenn. 1990); State v. Henley , 774 S.W.2d 908 (Tenn. 1989); State v. Taylor , 771 S.W.2d 387 (Tenn. 1989); State v. Sutton , 761 S.W.2d 763 (Tenn. 1988); State v. Porterfield , 746 S.W.2d 441 (Tenn. 1988); State v. Cooper , 718 S.W.2d 256 (Tenn. 1986); State v. McNish , 727 S.W.2d 490 (Tenn. 1987); State v. Campbell , 664 S.W.2d 281 (Tenn. 1984).

Moreover, the evidence is sufficient to support the jury’s f inding th at the statutory aggravating ci rcumstance so found outweighed mitigating circums

tances beyond a reasonable doubt. Inmitigation of the offense, the defendant relied upon his cooperation with police, his youth, lac k of a prior adult record, l ack of education, and absence of his father from the home. Althou gh the proof shows that Blan d eventuallyturned himself into the Memphis police, he did so only at the urging of his grandmother

and mother

and only after the police had instituted an intensive search forhim. Moreover, w

hile the defendant was young at the time of the murder, onl y nineteen, and had no adult criminal rec ord, Bland admitted that he had an extensive juvenile record which began a t age eleven and included multipl e assaults and batteries. Though the defendant had not completed high school, he attended school through the eleventh grade and w as suspended for being disrespectful to ateacher. There is no evidence that he suffered from a mental disease or defect. The weight given aggravating and mi tigating circumstanc

es is entirely within the province of the jury. The jury determines w hether or not mitigation ex ists and whether th e aggravating

circumstances outweig h mitigation beyond a reas onable doubt. S ta te
v. Barber , 753 S.W.2d 659, 669 (Tenn. 1988) . We are of the opinion that the evidence is sufficient to support the jury’s finding that the aggravating circumstance outweighed mitigati ng circumstances beyond a reasonable doubt.-16- PROPORTIONALITY REVIEW The defendant next claims that his sentence is disproportionate to the penalty imposed in similar cases, cons idering both the nature of the crime and the defendant. The de fendan t is there fore ass erting tha t his sent ence is co mparati ve l y disproportionate. Initially, we emphasize that statutory comparative proportional ity
r eview must be distinguished from tr aditional Eighth Amendment propor tionality analysis, which is the “abstr act evaluation of

the appropriateness of a sentence for
a particular crime.” Pulley v. Harris , 465 U.S. 37, 42-43, 104 S.Ct. 871, 875, 79 L.Ed.2d 29 (1984). By contrast, comparativ e proportionality rev

iew “presumes that the death penalty is not dispr oportionate to the crime in the t raditio nal sense. It purportsto inquire i n stead whether the penalty is nonetheless unacceptable i n a particular

case because dis proport ionate to the punishment imposed on oth ers convicted of the same crime.” Id ., 465 U.S. at 42-43, 104 S.Ct. at 875-76.

As a general principle, compara tive proportionality review can be properly understood only if considered in light of its jurisprudential ori gins. We begin our review with a 1972 decision of the U nited St ates Supreme Court which,in effect, invalidated all ofthe death penalty statutes of the states and the federal government. Furman v. Georgia , 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). In Furman , the Court held t ha t the Georgia statute was violative of the Eighth Amendment’s prohibition against cruel a nd unusu al punis hment bec ause the Georgi a syste m left the decision of whether a defendant l ived or died to the unfettered discretion of the jury. According to Furman , under the Georgia sy stem, which was

representative of the other statutes in effect throughout the coun try , a sentenc e of death was
unc onstitut ional because “wantonly and . . . freakishly imposed” and cruel and7 On the sam e day that Gregg was decided, t he United Stat es Supreme Court also approv ed the sta tutory capital s entenc ing sche mes of Florida a nd Te xas. See Proffit t v. Fl orida , 428 U .S. 242, 96 S.Ct. 296 0, 49 L.Ed .2d 913 ( 1976); Jurek v. Texas , 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). -17- unu sua l “in the same way that being struck by lightning is cruel and unusual.” Id ., 408 U.S. at 309-10, 92 S.Ct. at 2762-63 (Stewart, J., c oncurring).

Four years later, in Gregg v. Georgia , 428 U.S. 153, 96 S.Ct. 2909, 49 L. Ed.2d 859 (1976), 7 the Court again revi ewed the Georgia capitalsentencing statutes which had been amended in response to Furman to limit jury discretion and avoid arbitrary and inconsi stent impos ition of the death penalty. Among the features of the amended statutory schem e was a requirement that the Georgia Supreme Court “review every death sentence to determine whether i t was i mposed under the influence of passion, prejudice, or any other arbitrary factor, whether the evidence supports the find ings of a s tatutor y a gg ravating circumstan ce, and ‘[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.’” Id ., 428 U.S. at 204, 96 S.Ct. at 2939-40. After rejecting the argument that the death penalty is prohibited by the Eighth Amendment regardless of the circumstances of the offense, thecharacter of the offender, or the procedure followed, the Court upheld the amended Georgia statutory scheme, concluding th at “t he concerns expressed in Furman that the penalty of death not be i mpos ed in an arbitrary and c apricious manner can be met bya carefully dr

afted statute that ensures that the sent encing authority is

given adequate information and guidance.” Id ., 428 U.S. at 195, 96 S.Ct. at 2935- 36. One aspect of the Georgi a statute cited with ap proval by the United S

tates Supreme

Court in Gregg was the appellate review feature which was described as “a check against8 In response to Furman , Ten nes see enac ted a capit al sen tenc ing sc hem e in 19 73, P ublic Acts 1973, Ch. 192,§ 2, which was held unconstit utionalunder Art. II, § 1 7 of the Tennessee Constitut ion because i ts provi sions embraced more than one subject and not all

of the subject matte r was se t forth in the c aption. State v. Hailey , 505 S.W.2d 712 (Tenn. 1974). As a result , the General Assembly t hat same year amended the defi niti on of fir st degree murder and provided a mandatory death pena lty for all persons convict

ed of that of

fense or as an accessory before the f

act of that crime. Publi c Acts 1974, Ch. 462.In Collins v. Sta te , 550 S.W .2d 643 (Tenn. 1977), however, the 1974 statute was he ld unconstitutional under three United States Suprem e Court decisions i nvalidating, as vi olative of the Ei ghth and Fourteen th Amendments, statutes prescribi ng a man datory sen tence o f death u pon co nviction of firs t degree murd er. See W oodso n v. North Carolina , 428 U.S . 280, 96 S .Ct. 2978 , 49 L.Ed.2 d 944 (1 976); Roberts v. Louisiana , 428 U.S. 325, 96 S.C t. 3001, 49 L.Ed.2d 974 (19 76); W illiam s v. O klah om a , 428 U.S. 907, 96 S.Ct. 3218, 49 L.Ed .2d 1 215 (197 6). T here after , on F ebru ary 8, 1 977 , the G over nor c om mu ted th e sen tenc e of a ll death row pri soners to l ife impri sonment, and on April 11, 1977, t he death penalt y statu te became effective w hen pa ssed o ver the G overno r’s veto. See Miller v. State , 584 S.W.2d 758, 762-63 (1979). Although the capital sentencing scheme has been modified somewhat ove r the int ervening twenty years , the 1977 enactm ent is the ba sis of the c urrent ca pital senten cing statu te. See e.g. Public Ac ts 1981 , Ch. 33; P ublic Acts 1989, C h. 591, an d Public A cts 199 0, Ch. 10 38.

9 This view was commonly hel d by other state l egislat ures as well . Those states ado pting statutory pro visions req uiring com parative p roportion ality review includ e: Al aba ma , Ala. Code § 13A-5 -53(b)(3 ); Connecti cut , Conn. G en. Stat. § 5 3a-46b (3); Delaw are , Del. Cod e Ann. tit. II, § 4209(g ); Geo rgia , Ga. Co de Ann . § 17-10 -35(c)(3 ); Idaho , Idaho C ode § 19 -2827(c ); Kentucky , Ky. Rev. S tat. Ann. § 5 32.075 (3); Louisi ana , La. Cod e Crim . Pro. Ann . art. 905.9 a nd La. S up. Ct. -18- the random or arbitrary imposit ion of the death penalty.” Id ., 428 U.S. at 206, 96 S.Ct. at 2940-41.
Responding to the Uni te d States Supreme Court decisi on in Gregg , supra , the Ten ne ssee General Assembly,in 1977, enac ted a capital

sentencing

scheme which contained a comparative pr oportionality revi ewprovision that was based upon the Georgia statute. 8 See David Raybin , “Ne w Death Penalty Statute Enacted,” Judicial Newsletter, Universit y of Tennesse e College of Law pp. 11-12 (May 1977). Because of the approval given such provisions in Gregg , at the time of its enactment, the c omparative proportionality provision incl uded in the Tennessee capital sentencing scheme was considered to be constitutionally r equired. See Ju dici al Newsletter

at p. 11 (“These appellate review procedures appear to be constitutionally required to insure, at least on a statewide l evel, that the death penalty is not imposed in an arbitrary fashion.”). 9 That view was c ommonly held until the Unit ed State sR. 28, Se ction 1; Maryland , Md. Co de Ann . [Crim. L aw] § 41 4(e); Mississ ippi , Miss. C ode An n. § 99-19-1 05(3); Misso uri , Mo. Re v. Stat. § 565 .035(3); Montana , Mont. Code Ann. § 46-18 -310(3); Nebraska , Neb. R ev. Stat. § 29 -2521.0 3; Nevada . Nev. Re v. Stat. § 177 .055(2)( d); New Ham pshire , N.H. Re v. Sat. Ann . § 630.5(X I); New Jersey , N.J. Re v. Stat. § 2C :11-3(e) ; New Mexico , N.M. Sta t. Ann. § 31 -20A-4 (c); New York , N.Y. Crim . Proc. § 4 70.30(3 ); North Car olina , N.C. G en. Stat. § 1 5A-20 00(d); Ohio , Ohio R ev. Cod e Ann. 2 929.05 (A); Okl ahoma , Okla. S tat. tit. 21, § 701 .13(c)(3 ); Penn sylvan ia , 42 Pa. C ons. Sta t. 9711(H ); South Carol ina , S.C. Co de Ann

. § 16-3-2 5(c); South Da kota , S.D. Co dified Law s Ann. § 23A-27 A-12; Virginia , Va. Code Ann. § 17- 110.1; Washington , W ash. Re v. Code § 10-95 -130(2) ; Wyoming , Wyo. Stat. § 6-4-103(d). Three other sta tes, by judicial d ecision, re quired co mpa rative prop ortionality review including: Arkansas , Sherida n v. State , 855 S.W .2d 772, 7 80 (Ark . 1993); Ari zona , State v. Richmond , 560 P.2d 41 (Ariz. 1976 ); Flori da , Brown v. Wainwright , 392 So.2d 1327, 1331 (Fla. 1981).

10 The Tennessee statutory capital sentencing scheme has been repea tedly upheld agai nst constitu tionalattack, and,from the raw numbers, appears t o be performing i ts intended purpose of reserving the death sentence for the “worst of the bad .” In 1996, approximately 492 persons w ere named in first

degree murder indi ctments in this State. 102 persons were convi cted of fi rst degree murder in that

year. Fi ve death sentence s were returned , with 33 indiv iduals r eceiving a sentence of life imprisonment without the possibility of parole, while 64 i ndividuals received a sentence of life imprisonment wit h the possibi lit y of parol e.
11 Indeed, in the wake of Pulley , supra , nine of the twen ty-nine othe r state s wh ich init ially conducted comparativ e proporti onalit

y revi ew have either

repealed t he statuto ry provisions or overruled court de cisions m andating it. See , Arkansas W illett v. State , 911 S.W.2d 937, 945-46 (Ark. 1995) (stating that Arkansas Su preme C ourt will no longer conduct proportionality r eviews); Ari zona , State v. Salazar , 844 P.2d 566, 583-84 (Az. 1992) (stating that the Arizona Suprem e Court -19- SupremeCourt explicitly rejected the ideathat comparative proportionality review is constitutionally req uired. Pulley , 465 U.S. at 50-51, 104 S.Ct. at 879-80 (“There is

. . . no b asis in our cases for holding that comparative proportional ity review by an appellate court is required in every case in which the death penalty is imposed and the defendant requests it.”); see also Walton v. Arizona , 497 U.S. 639, 655-56, 110 S.Ct. 3047, 3058, 111 L.Ed.2d 511 (1990); McCleskey v. Kemp , 481 U.S. 279, 306- 308, 107 S.Ct. 1756, 1774-75, 95 L.Ed.2d 262 (1987) (pr esumption that sentence not disproportionate

where it is imposed under a system which furnish es su fficient guidance to the sentencer through constitutio nally va lid aggravating and mitigating circumstances, and a fed eral cour t does no t review the conclusions of the state’s highest court so long as the prop ortionalit y review was undertaken in good faith). 10 While important as an additional safeguard against arbitrary or capri cious senten cing, compara tive pro p ortionality revi ew is not constitutional ly required. 11 Therefore, inwill discontinu e propo rtionality reviews ); Connecti cut , 1995 Conn. Acts 16, §3(b) (R eg. Sess.); Idaho , 1994 Ida ho Ses s. Laws 127 (S.B . 1302); Maryland , 1992 Md. Laws 33 1 (H.B. 590); Nevada , 1985 N ev. Stat. 52 7; Okl ahoma , 1985 O kla. Ses s. Laws , Ch. 265 , § 1; Penn sylvan ia , 1997 P a.Legis.S erv. Act 19 97-28, § 1 (S.B. 42 3); Wyoming , W yo. Stat. § 6-4 -103(d)

.

12 No state has applied a “pure” frequenc y method approac h when conduc ting comparative proporti onalit

y revi ew. Althou gh it appear ed New Jersey would do so in Mar sha ll , supra , that Court opted ins tead to utilize bo th the freq uency m ethod an d the pre ceden t-seek ing me thod. State v. DiFrisco , 662 A.2d 442 ( N.J. 1995 ). Th e Ne w Je rsey S upre me Cou rt has ack now ledge d tha t it relies “mo re he avily” o n pre ced ent-s eek ing re view th an on freq uen cy ana lysis, a nd it ha s ex plicitly refuse d to set an arbitrary num erical stan dard at w hich def endan ts “gene rally” receive the death penalty. Id . at 460. Although t he Washington Supreme Court appears to ut ili ze the fr equency approach to some degree, by quantify

ing for compari son the number of aggravating cir cumstances, victi ms, and prior convi ctions, that Court recently stated: We have quantified t hose factors t hat are easi ly quant ifiabl e in order t o be as objecti ve as possibl e. By t his we do not sugg est proport ionality i s a stati stical task or can be reduced t o numbers, but only

that numbers can poi nt to areas o f concern. At i

ts heart, proporti onalit y revi ew willalways be a su bjectiv e judgment as to wh ethe r a pa rticula r dea th se nten ce fa irly repr ese nts th e valu es inh eren t in W ashington’s sentencing schem e for aggravated m urder. State v. Pirtle , 904 P.2d 245, 276 (W ash. 1995). -20- adopting an approach to comparative pr oportionality

review, a state appellate court must evaluate the statu tory langu age at issu e and the legislative intent in light of the jurisprudentialbackgr

ound of Furman and Gregg

. See State v. Webb , 680 A.2d 147, 200 (Conn. 1996).
Despite t he lac k of any federal constitutional standard, there are two basic approaches to statutory comparat ive propor tionality review:(1) the freq uency method ; and (2) the precedent-seeking method. Webb , 680 A.2d at209; State v. Marshall , 613 A.2d 1059 (N.J. 1992). Both appr oaches share a common goal w hich is t o determine whether

a particular sentence is di sproportionate to the sentences imposed for similar crimes and similar defendants. Id . While the goal is the same, the approaches are fundamentally differe nt in principle and application. In general, the frequency method 12 employs a complicated statistical analysis that attempts and purportsto quantify, with near mathematical precision, the v arious factors leading to-21-

the imposition or

nonimposition of the death penalty and the f requencywith which the death penalty is imposed in certain circumstances. See e.g. , Marshall , supra ; State
v. Pirt le , 904 P.2d 245 (Wash. 1995). This approach has been criticized as an unworkable attempt “to qua ntify the unquantifiable.” See Webb , 680 A.2d at209; see also State v. Ramsey , 864 S.W.2d 320, 327-28 (Mo. 1993) (en banc). By contrast,
a reviewi ng c ourt employing the precedent-seeking approach compares the case before it to other cases in w hich the defendants were conv icted ofthe same or similar crimes by examining the facts of the crimes, the characteristics of the def endants, and the aggravating and mitigating factors i nvolved. See e.g . Webb , supra ; Tichnell v. State , 468 A.2d 1, 13-23 (Md. 1983).

Without explicitly adopti ng the nomenclature, this Co urt has applied the precedent-seekingapproach for thepast eighteen years. See e.g. , State v. Barber , 753 S.W.2d 659, 6 65-66 (Te nn. 1988); State v. Cazes , 875 S.W.2d 253 (Tenn. 1994). The Tennessee statute was modeled after the Georgia scheme approved in Gregg

. The frequency approach had not even surfaced withi n published death penalty jurisprudence in 1977 when our st atute wa s enacted and it is inconsi stent with the type of fact specif ic analysis employed by Georgia and described and approved by the United States Supre me Court in Gregg . There is noindication that
o urLegi slature contemplated a complica ted statistical inqui ry when it enacted the sta tutory pr oportionality revi ew provision in 197 7. See Webb , 680 A.2d at 209. Moreover, the General Assembly has never a mended the statute to eliminate or modify the precedent-seeking approach which has been utilized by this Court since the comparative revie

w provision w

as enacted.13 Gregg , 428 U.S . at 206; 96 S.Ct. at 29 40; State v. Welcome , 485 So.2d 1235, 1258 (La. 1983); Tich nell , 468 A.2d at 15; State v. Mc Neill , 485 S.E .2d 284, 2 89 (N.C . 1997); State v. Rhines , 548 N .W .2d 415, 4 57 (S.D . 1996); Pirtle , 904 P.2d at 276.
14 Justice Reidsingles out in his dissent the above quote from State v. Ramsey , and concl udes t hat “appl yi ng th at st andar d, t he sen tenc e of d eath in t his c ase i s dis propo rti onat e.”He fails t o cite t he remainder of t his paragraph.The full pa ragraph speaks for i tself and does not support Justi ce Reid’s concl usion. -22- We are mindful that the purposes of comparative proportional ity review ar e to eliminate the possibility that a person will be sentenced to death by the action of an aberrantjury and to guard against the capricious or random imposition of the death penalty. 13 As we have previous ly stated, comparativ e review of capital c

ases insures
ra tionality

and consistency in the i mposition of the death penalty. Barber , 75 3 S.W.2d at 665-66; see also State v. Kandies , 467 S.E.2d 67, 86 (N.C. 1996). I n light of the jurisprudential background against which our statutory prov ision was adopted, combined with the General Assembl y’s use of the word “d isproportionate,” it is clear that our function in performing compar ative review is not to search for proof that a defendant’s death sentence is perfect ly symmetric al, but t o identify and invalidate the aberrantdeath sentence. Id .; State v. Groseclose , 6 15 S.W.2d 142, 150 (Tenn. 1981) (trial court reports are desig ned to prevent the arbitrar y or capricious

imposition of the death penalty); see also Webb , 680 A.2d at 211; State v. Bey , 645 A.2d 685 (N.J. 1994). If the c ase, taken as a who le, is plainly lacking i n circumstances consistent

with those in simila r cases in which the death penalty has been imposed, the sentence of death in the case bein g reviewedis disproportionate. State v. Ramsey , 864 S.W.2d 320, 328 ( Mo. banc 199 3). 14 Even if a defendant receives a death sentence when the circumstances of the offense are similar to thos e of an offense for which a defendant has received a life sentence, the de ath sentence is not dispr oport ionate where the Court can dis cern some basis for the lesser sentence. See State v. Carter , 714 S.W.2d 241, 25 1 (Tenn. 1986). Moreover, where there is-23-

no discernible basis for the differ enc e in sentencing, the death sent ence is not necessarilydisproportionate. This Court is not required to determine that a sentence less than death was never i mposed in a case with simi lar characteristics . On the contrary, our

duty under

the similarity standa rd is to assure that no abber ant death sentence is affirmed. Webb , 680 A.2d at 203. “Since the proportionality requirement
on review is int ended to prevent ca price in th e decisio n to infl ict the [d eath] pe nalty, the isolat ed decis ion of a

jury to afford mercy does not render unconstitutional death sentences imposed on defendants who wer e sentenced under a system t hat does not create a substantialrisk of arbitrariness or caprice.” Cf

. Gregg , 428 U.S. at 203, 96 S.Ct. at 2939.

In our view, the precedent-seeking method effectiv ely enables this Court

to achieve the goal of comparative pr oportionality rev

iew -- i dentifying aberrant sentences. If a reviewing court allowed its c

omparative proportionali ty analysis to

be governed by statist ical and qu antitat ive analysi s, the con cept of “ indivi dualiz ed consideration” expounded i n Lockettv. Ohio , 438 U.S. 586, 604-05, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978)(Burger, C.J., plurality opinion), would be frustrated. State v. Williams , 301 S.E.2d 355, 356 (N.C. 1983) ; State v. Copeland , 300 S.E.2d 63, 72 (S.C. 1982).
In performing our comparative proporti onality function, we are guided by the language of the statute which prov ides that appellate courts reviewing capi

tal cases should determine whether “[t]he sentence of death is excessi ve or disproportionate to the penalty imposed in simi lar cases, considering both the nature of the crime and15 Previous ly codified at T enn. Co de Ann . § 39-2-2 05(c)(4 ) (1982) and T enn. Co de Ann . § 39-240 6(c)(4) (S upp. 197 7).

16 Som e sta tes, e ither b y statu te or ju dicial d ecis ion lim it the p ool fo r com paris on to only cases in which a s entenc e of dea th has be en imp osed. See Al aba ma , Beck v. State , 396 So.2d 645, 664 (Ala. 1980 ); Arkansas , Sande rs v. State , 878 S.W .2d 391, 4 00 (Ark . 1994); Ari zona , State v. W hite , 815 P.2d . 869, 884 (Ariz. 1991 ); Flori da , W illiams v. Sta te , 437 So.2d 133, 137 (Fla. 1983); Kentucky , Gall v. Co mm onwea lth , 607 S.W .2d 97 (K y. 1980); Mississ ippi , King v. Sta te , 421 So .2d 1009 (Miss. 19 82); Nebraska , State v. Palmer , 399 N.W .2d 706, 7 33 (Ne b. 1986) ; New Jersey , N.J. Stat. A nn. § 2C :11-3; Ohio , State v. Steffen , 509 N.E .2d 383, 3 95 (Oh io 1987); South Caroli na , State v. Copeland , 300 S.E.2 d 63 ( S.C . 198 2). O ther s tates includ e in the pool c ase s in which the State sought t he death penalt y and a sentenci ng hearing was hel d, regardl ess of the senten ce imp osed. See Connecti cut , Practice Book § 4066A (b); Delaw are , Flam er v. State , 490 A.2d 10 4, 139 (D el. 1983); Maryland , Tich nell , 468 A.2d at 13-23 ; Misso uri , State v. W hitfield , 837 S.W .2d 503, 5 15 (Mo . 1992) (e n banc ); Montana , State v. Sm ith , 931 P.2d 1272, 12 85 (Mo nt. 1996); Nevada , Biondi v. Sta te , 699 P.2d 1062 (N ev. 1985 ); New Mexico , State v. Ga rcia , 664 P.2d 96 9 (N.M . 1983); North Car olina , Williams , 301 S.E .2d at 355 ; Okl ahoma , Liles v. State , 702 P.2d. 10 25, 1036 (Okla. C rim. Ap p. 1985) ; South Da kota , Rhines , 548 N.W .2d at 455 ; Virginia , Jenk ins v. Com mon wealth , 423 S.E .2d 360, 3 71 (Va. 1 992); Washington , Wash. Rev. Code Ann. § 10.95.130(2) (b). Fi nally , some states incl ude in the poo l all death-eligible homici de convicti ons or indictm ents. Geo rgia , Ga. Co de Ann . § 17-10 -37(a); Idaho , State v. Creech , 670 P.2d 463, 476 (Idaho 1 983); Louisi ana , State v. Ma rtin , 376 So .2d 300, 3 12-13 (L a. 1979) ; New York , N.Y. Jud. Law § 2 11-a (de ath-eligible ind ictmen ts); Penn sylvan ia , Comm onwealth v. Frey , 475 A.2d 700, 707 (Pa . 1984); Wyoming , Engbe rg v. State , 686 P.2d 541, 555 (Wyo. 1984). Of th e twenty states which s till require com parative re view, eight lim it the pool for c omp arison to c ases in w hich a de ath sen tenc e wa s im pos ed; e ight c ons ider c ase s in wh ich a c apita l sent enc ing he aring was held regardless of

the sentence i mposed; and three i nclude in the pool all death-eligible homici des. One other sta te, New H amp shire has not define d the poo l for com parison becau se it has n o death penalty cases, though it has a capit al sentenci ng scheme. The United States Supreme Court has approv ed m ore limited “universe s” than tha t provided by our Ru le 12. See Gregg 428 U.S. at 205, n. 56, 96 S .Ct. at 294 0, n. 56; Proffitt , 428 U.S. at 259, 96 S.Ct. at 2969-70. -24- the defendant.” Tenn. Code Ann. § 39-13-206(c)(1)(D) (1991 Repl. & Supp. 1996). 15 Though the statute itself is silent on the issue, 16 the universe from which we choose the pool of “similar cases” for comparison includes “all cases in whi ch the defendant is convicted of first deg ree murder.” Tenn. Sup. Ct. R ule 12.

For purposes of comparative propor tionality review, we eliminate from the “universe”

and include in the

more narrow “pool” for comparison only those cases in which a capital sentencing hearing was

actually conducted to deter mine whether the sentence shou ld be l ife imprisonment, life imprisonment without the possibility of17 W e do n ot inc lude in the p ool fo r com paris on firs t deg ree m urde r cas es in w hich the S tate did not seek t he death penalt y or a sentence other tha n death was agreed upon as part of a pl ea bargain ing agree men t. See Webb , 680 A.2d at 211, W hitfield , 837 S.W.2d at 515 (i ncluding i n the pool for compari son first degree murder cases in whi ch the State did not seek t he death penalt y or agree upon a sentence l ess than death without a heari ng amounts to impli citl y revi ewing prosecutorial

discretion w hich i s general ly no t subje ct to j udici al rev iew). Under curr ent la w a sentencing hearing m ay be conducted to determ ine whether the sentence shou ld be life imprisonment or l ife impri sonment without the possibil ity of parole,even if t he State does not seek the death penalty. Te nn. Cod e Ann. § 39-13-2 04(a) (1 996 Su pp.) Und er prior law, a penalty hearing was hel d only i f the Stat

e sought the death penalty . We include in t he pool for co mparison only t hose first

degree murder cases in whi ch the State seeks the death penalty and a sent encing hearing i s held. Of cour se, the deci sion to pr osecute or seek the death penalt y may not be deliberately based upon an imperm issible consideration “such as race, religion or other arbitrary classification.” Oyler v. Boles , 368 U.S. 448, 456, 82 S .Ct. 5 01, 5 06, 7 L.Ed .2d 4 46 (1 962 ). By this decision, defendants are i n no way precl uded from relyi ng upon and uti lizi ng the enti re “univer se” of first degree murder cases when attempting to estab lish a cl aim for select ive prosecut ion under t he Equal P rotection C lause, see Wayte v. United St ates , 470 U.S. 598, 608, 105 S.Ct. 1524, 1531, 84 L.Ed.2d 547 (1985). -25- parole, or death by electrocution, regardless of the sentence act ually imposed

. 17 See Footnote 14, supra (listing other stat es with the same limitation). “[B ]ecause the aim of proportionality rev iew is to ascertain what other capital sentencing authorities have done with similar capital murder offenses, theonly cases that could be deemed similar . . . are those in which imposition of the death penalty was properly before the sentencing authority for determination.” Tichnell , 468 A.2d at 15-16; Whitfield , 837 S.W.2d at 515; Smith , 931 P.2d at 1285; Rhi nes , 548 N.W.2d at 455-56. Accord , Flamer v. State , 490 A.2d at 139.
Selecting similar

cases from thepool for comparison is not an ex act science. No two cases or defendants are p recisely identical . Though consideration of the aggravati n g and mitigating circumstances as revealed by the Rule 12 reports is a crucial element of the process, we are not limited to only those cases in which exactly the same aggravating circumstances have been found. Barber , 753 S.W.2d at 667; State v. Brimmer , 876 S.W.2d 75 , 84 (Ten n. 1994). In choosing and compar ing similar c ases, this Court consider s many variables w

hich are not readily s ubject t o-26-

complete enumeration and definition. Barber , 753 S.W.2d at 665 ; Williams , 301 S.E.2d at 355. This Court has not pr eviously attempted t

o explicitl y enumerate factors, other than aggrav ating and mitigating

circumstances, which are relevant to identifyingsimilar cases and conducti ng proportionality r eview. However, clearly discernible from a review of the comparative proportionality discussions contained in
our prior decisions are s

everal other factors rel evant to the process of identification and comparison of similar cases which include: (1) the means of death ; (2) th e manner of death (e.g., violent, torturous, et c.); (3) the motivati on for the killing; (4) the place of death; (5) the similarit y of the victims’ circumst ances includingage, physical and mental conditions, and the v ictims’ treatment during the killing; (6) the absence
or presence of premeditation; (7) the abs ence or presence of provocati on; (8) the absence or

presence of justification; and ( 9) the injury to and

effects on nondecedent victims. See Barber , supra ; see a lso State v. Hodges , 944 S.W.2d 346 (Tenn. 1997); State v. Bush , 942 S.W.2d 489 (Tenn. 1997); State v. Smith , 893 S.W.2d 908 (Tenn. 1994); State v. Nichols , 877 S.W.2d 722 (Tenn. 1994); Brimmer , supra ; Cazes , supra ; State v. Smith , 8 68 S. W. 2d 5 61 (Tenn. 1993); State v. Howell , 868 S.W.2d 238 (Tenn. 1993); Stat e v. Tran , 864 S.W.2d 465 (Tenn. 1993); State v. Caughron , 855 S.W.2d 526 (Tenn. 1 993 ); State v. Harris , 839 S.W.2d 54 (Tenn. 1992); State v. Black , 815 S.W.2d 166 (Tenn. 1991). Compare Marshall , 613 A.2d at 1083.

Also evident from a reading of our prior cases are sever al criteria relev

ant to
a comparison of the characteristics of defendants which include: (1) the def endant’s p rior criminal record or pr

ior criminal activ

ity; (2) the defendant’s age, race, and gender; (3) the defendant’s mental, emotional o r physica l condition; (4) the18 Presently we locate si milar cases for comparative propor tional ity review by

using traditio nal re sea rch m etho ds an d by re viewin g the mo re tha n five hund red R ule 12 repo rts on file in the C lerk’s offic e in N ash ville. W e are in the p roce ss o f sele cting the s pec ific cr iteria to be us ed in the preparation of a Tenness ee CD-Ro m death pen alty database which will be used by this Court and accessible to the l iti gants.

19 Cf. Webb , 680 A.2d 207, n. 75; Sect ion 4, La. Sup. Ct. R. 905. 9.1 (requi ring the prosecution and defense to fi le a “sentence review memoranda” addressi ng the propri ety of the sentence and discussi ng each first degree murder case in the distri ct in whi ch the sentence was imposed, along with a synopsi s of the fact s about the cr ime and the defendant in the case on appea l). -27- defendant’s involvement or rol e in the murder; (5) the defendant’ s cooperation with
a uthorities; (6) the defendant’s remorse; ( 7) the defendant’s knowled ge o f helplessness of victim(s); (8) the defendant’s capacity for rehabilitation. Id .; see also Tenn. Sup. Ct. Rule 12, Report of Trial Judge in Capital Cases. While by no means an exhaustive list, examination and considerati on of these and other salient factors allows this Court to i denti fy similar cases and deter mine whether the sentence of death in the case under revi ew should be invalidated as disproportionate.

To assist this Court in fulfilling our statutory duty, the State and the defendant in each case must fully brief the issueby specifically i dentifying those similar cases relevant to the com parative p roportio nality inquiry. 18 Wh en addressing proportional ity review, the briefs of the parties shall contain a section setting forth th e nature and circumstances

of the crimes that are claimed to be similar to that of which the defendant has been convicted, incl uding the statutor y agg ravating circumstan ces found by the jury and the ev idence of mitigating cir cumstances. In addition, the partiess hall in clude in the section a discussion of the character and rec ord of the defendants involved in the crim es, to t he extent ascertainable from th e Rule 12 reports, appellate court decisions, or records of the trials and sentencing hearings in those cases. 19-28- Compara tive pro portional ity review i s not a rigid, objecti ve test. Cazes , 875 S. W.2d at 270. In conducting propor tionality review, we do not attempt to emplo y mathematical or

scientific techniques. Williams , 301 S.E.2d at 355. In evaluating th e compara tive proportionality of the sent ence in light of

the factors delineated above,
a reviewing cour

t must also rely upon the ex perienced judgment and intuiti on of its
own members. Ramsey , 864 S.W.2d at 327-28; State v. East , 481 S.E.2d 652, 668 (N.C. 1997); Williams , 301 S.E.2d at 356; see also Marshall , 613 A.2d at 1075. As previouslyexplained, the sentence of death is not disproportionate, unless, the case taken as a whole is plainly lacking in circumstance s consistent with those i n cases where the death penalty has been imposed.

In this case, Justice Reid agrees that the proof shows premeditatio n an d torture and that the evidence supports the jury’s f inding that the aggravating circumstance outweig hs mitigating cir cumstances beyonda reasonable doubt, but he concludes that the sentence of dea th is dis proportionate, stating that “the proof does not show this defendant to poss es s the characteristics mostrepulsive to society’s sense of decency, and most destructive to the very fabric of society.” Since Justice Reid does not enumerate the ch aracteristics whi ch are most repulsive and destruct ive to societ y, we can only as sume tha t he has ut ilized his o wn subject ive judgmentto make th e determination. In our vi ew, jurors are better equipped to decide, in the first instance, whether a particular defendant should rec eive the death penalty. The appellate task under § 206(c)(1)(D) is to compare similar cases,not to gauge, in isol ation, the culpability of a specific defe ndant or the hein ousness

of a particular

crime. See Webb , 680 A.2 d at 204. Our role in conduct ing compa rative20 See Stat e v. Mi ddleb rooks , 840 S.W.2d 317, 354-55 ( Tenn. 1992)(Reid, C.J., concur ring and diss enting); State v. Van Tran , 864 S.W.2d 465, 485 (Tenn. 1 993) (Reid, C.J., concur ring and dissentin g); State v. Ho well , 868 S.W .2d 238, 2 71 (Te nn. 1993 )(Reid, C .J., concu rring); State v. Sm ith , 868 S.W .2d 561, 5 85 (Te nn. 1993 ) (Reid, C .J., concu rring); State v. Hurley , 876 S.W.2d 57, 71 (Te nn. 1993 ) (Reid, C .J., dissen ting); State v. C azes, 87 5 S.W .2d 253, 2 72 (Re id, C.J., dissentin g); State v. Nic hols , 877 S.W .2d 722, 7 44 (Te nn. 1994 ) (Reid, C .J., dissen ting); State v. Sm ith , 893 S.W .2d 908, 9 32 (Te nn. 1994 ) (Reid, J., c oncurr ing and d issenting ); State v. Bush , 942 S.W .2d 489, 5 27 (Te nn. 1997 ) (Reid, J., c oncurr ing); State v. Hodges , 944 S.W.2d 346, 362 (Tenn. 1997) (R eid, J., disse nting). Th e basis fo r Justice R eid’s prior as sertion tha t it is not poss ible to articulate an alternative a pproac h for com parative re view in a diss enting op inion is not cle ar. How ell , 868 S.W .2d at 272 (Reid, C.J., concurring) (“An adequate structure for co mparative proporti onalit

y revi ew cannot be set f orth in a dissent. ”) Juri sts in ot her states hav e taken on the task. See e.g. State v. Rhines , 548 N.W .2d 415, 4 61 (S.D . 1996) (A mun dson, J ., dissenting ); State v. Brett , 892 P.2d 29, 71 (W ash. 19 95) (Utte r, J., dissen ting); State v. Lord , 822 P.2d 177, 228 (W ash. 19 91) (Utte r and Sm ith, JJ., disse nting); State v. Jeffries 717 P.2d 722, 731 ( Wash. 1986 ) (Utter, J., dis senting). In deed, m any ma jority decisions actually beg in as diss enting op inions. -29- proportionality

review is notto second-guess the jury ’s decision, but to identify and invalidate aberrant death sentences.

As a result of this fundamental disagreement about the rol e of this Court, Justice Reid, beginning in State v. Harris , 839 S.W.2d 54, 84-85 (Tenn. 1992) (C.J. Reid, dissenting), has repeatedly charged the majority with failing “to articulat e and applya standard for

comparative review

. . .” However, as in the present dissent, in Harris , Justice Reid did not articulate a proposed standard nor offer any construc tive advice to the majority on a methodolo gy to correct the alleged error. This trend of criti cizing the majority’s comparative proportionality review analysis , while at the sam e time offering no specific su ggestions for improve ment has continued over the intervening five years. 20

Even in the three prior

direct appeal decisions of this Court where Justice Reid has agreed that the sentence of death is not disproportionate, see Bush , 942 S.W.2d at 527; Smith , 868 S.W.2d at 585; Howell , 868 S. W.2d at 271, Justice Reid has provided no express guidance as to the objective criteria and structured analysis he21 As is state d in foot note 1 of Justice Reid’s di ssenting opi nion, t he discussion o f proporti onalit

y revi ew in thi s opinion was r evised and expanded af ter the i niti al draft

s of the diss entin g opin ions were rece ived. T he ex pan sion prim arily wa s a re spo nse to Ju stice Reid ’s dissenti ng opinion.We note that, as a resul t of our re sponse, Justi ce Reid’s di ssenting opi nion was revised and expand ed. -30- employed to concludethat the sentence of death was not disproportionat e. In fact, the explanations for the conclus ion in Howell , Smith , and Bush that the sentence is not dispropo rtionate appear to be well -written explanati ons of how the facts
surro un ding the commission of the offense demonstrate the r ationality of the sentence imposed, similar to the analysis which consistently has been employed by
a majority of this Court and often criticized by Justice Reid. One distinction from a majority discussion of comparative proportionality review is apparent, however. The prio r concurring opinions do not discuss or even cite a single similar first degre e murder case, considered in compari son, which supports the finding ofproporti onality. See Bush , 942 S.W.2d at 527; Smith , 868 S.W.2d at 585; Howell , 868 S.W.2d at 272-73. Likewise, in those prior cases in which Justice Reid has found the sentence of death to be disproportionate, he has articulated no objectiv e criteria or

framework forana l ysis, nor has he cited or discussed similar fir st degree murder cases to support the finding. See e.g. , Hodges , 944 S.W.2d at 346; Nichols , 877 S.W.2d at 744; Cazes , 875 S.W.2d at 272.

In this case, a majority of this Court has care fully artic ulated many factors relevant to comparative proporti onality review, andengaged in a lengthy discussion of its history and purpos e. Justice Reid con tinu es to characterize our prior discussions

of comp arative proportionality rev iew as “conclusory

” and “perfunctory.” Without the benefit of specific suggestions or guidance, 21 however, the analysis22 Justice Reid s tates: "T he pro portio nality pro cedu re outlin ed by th e majo rity in this case answers many of the problems raised in t hose prior decisi ons. The majority sets a course whi ch could de velop i nto a pro cedure whi ch compli es with t he stat ute and t he cons titution s.” -31- employed by the majority in this case has unaccountably gained Justice Reid’s guarded approval. 22

In fact, Justice Reid applies the factors enumerated by the maj ori ty in determining that the sentence is dispropor tionate. However, in applying the analysis, Justice Reid considers specific facts in isolation and fails to recogni ze that the factors
are to be a pplied in the context of the ci rcumstances of the offense. For exampl e, Justice Reid states that the “means of death was a handgun, undo ubtedly the most commonly used instrument of homicide. Us e of this weapon does not wei gh for or against culpability.” Jus tice Reid fails to mention any where in his analys is that the gunshotwoundscausing death were i nflicted during the course of a chase in which the unarmed, injured victim fled for his life. The other factors relied upon by Justice Reid in support of his conclusion are also suspec t. Particu larly bothersomeis Justice Reid’s statement that

“the victim could re

asonably expect the poss ibility of violence” because the “place of death was the par king lot of an a partment complex in South Me mphis, a location at which unl awful activity, including drug deali ng, dice g ames , robbery, assault and public drunkenness, was not unexpected.” A law abidingcitizen is free to travel anyw

here he or shechooses. Where, as here, a citizen is randomly murdered in a high crime area and a perpetrator is convi cted and sentenced todeath, the citizen’s decisio n to travel into the neighborhood has nobearing on whether the deat h penalty is disproportionate. Also troublesome is Justice Reid’s observ ation tha t the defendant had no adult criminal r ecord. Considering

the defend ant’s exte nsive-32-

juvenile record and that he was nineteen-years -old at thetime of this offense, his lack of a criminal adult record has li ttle relevan ce. Finally, Justi ce Reid’s assertion that the defendant has a capacity for rehabi lita tion i s completely without support in the record.

For the first time in a dis senting or concurring

opinion Justice Reid cites and discussesthree other cases to support his finding. Howev

er, the Statedid not seek t he death penalty in two of the cases. Therefore, they are not similar cases fo r compara tive proportionality rev iew. With respect tothe third case, the State sought the death pe nalty,but the d efendant was sentenced t o life imprisonment without

the possibility

of parole. Though the details of the case are not clear from Justice Reid’s opinion, we emphasize tha t the iso lated decision of the sentencer to aff ord mercy does not render the death sente n ce in this case disproportionate. In sum, Justice Reid’s analysis does not demonstr ate that this case, taken as a whole , is plainl y lacking in circumstances consistent with those cases in which the death penalty has been imposed.
Application of

the principles of comparativ e proportionality

review convi nces us that the sentence of death in this case is neither excessiv e nor disproportionate to the penalty imposed in si milar cases considering the

nature of the crime and the defendant. Tenn. Code Ann. § 39-13-206(c)(1)(D) (1991 Repl. & 1996 Supp.). We have stud ied , compared, and analyzed c ases and conducted a meaningful proportionality

review as outlin ed herein and in Barber , 7 53 S. W.2 d a

t 6 63 -6 8. We have made an independent, conscientious, an d thorough review of th is case, a s we have in every other capital case which has come before this Court over the past-33-

eighteen years. As a result o f t hat review, we are of the opinion that the premedi tated kil ling of th is victim war rants imp osition o f the de ath pena lty.

Without provocation or expl anation, the defendant shot an unresist ing, retreating victim and then chased the injured man some 91 yards, shooting him once more during the

course of the

chase. Th e defend ant was not deterred w hen the severely injured vic tim sough t refuge under a pi ckup truc k; instea d, he kne lt down and shot the helpless man sever al more times. Thedefendant ignored the victim’s pleas for help

and left him dying under the pickup truck. The victim remained aliv e, conscious, and in pain for at least three to four minutes, and perhaps for as long as ten or fifteen minutes according to the testimony of eyewitnesses. Unaffected by the exceptional cruelty

of his actions toward Terr y Sanders, the defendant returned to the
scene of the ongoing robbery, watched the groupof men drag Nugent from the car, and did not hesitate to s hoot Nuge nt twice when he tri ed to escape. When the robberywas completed the defendant dispos ed of the gun he had used and went to his girlfriend’s apartment an d slept. The defendant described the shooting as a spur of the moment decision. He said that he had been drin king and selling dr ugs prior to the shooting. Though young when the murder was

committed, only nineteenyears old, and lacking a prior adult cri mi nal record, the defendant had a criminal history which dated back eight years and included numerous assaults and batteries.

The defendant argues that the death penalt y is disproportionate

in this case because this Court hasgenerally affirmed only those death sentences imposed for
more “atrocious” murders. While it is true that this Court has reviewed and affirmed the death penalty in cases involving more atrocious killings than the present crime,23 As we stated i n Barber , a co mp arativ e pro portio nality re view is cond ucte d by th is Co urt in all death pe nalty case s. Id ., 753 S.W .2d at 668 , n. 5. Tho ugh we do not alw ays include citations to or discussi ons of other f irst degr ee murder cases in which the State sou ght the deat h penalty and the defendant received a l ife sentence , thi s Court alway s considers t hose cases when conducti ng comparativ

e proportional ity

review. -34- this fact does not invalidate a s disprop ortionate the penalty imposed in this case. Barber , 753 S.W.2d at 664-65 . Moreover, as we have previously recognized, the fact that there are cases in whi c h a life sentence has been given for murders that were also perhaps “more atrocious” than the murder in this case does not mean the death penalty is disproportionate in this ca se. B arber , 753 S.W.2d at 664-65 (citing and discussingcases). In conduct ing our revi ew in this ca se, we have cert ainly found examplesof more atrocious killings in which t he jury declined to impos e the death penalty. 23

For instance in State v

. Jack Jay North , No. 02C01-9512-CC-00369 ( Tenn. Crim. App., at Jackson, Dec. 12, 1996), app. denied (Tenn. 1997), the defendant and a co-defendant entered the home of the fort y-five year o ld victim in the early morning hours and shot the victi m multiple ti mes using a singl e shot sa wed-off shotgun. The first shot was to the victim’s arm and occur red in the living r

oom. The victim then fled into the bathroom andwas shot two times mor e as he lay on the

floor begging the defendants to spare his life. The cause of death was a gunshot w ound to the victim’s head. Both North and his co-defendant admitted to being at the scene. However, both denied being the trigger man and each blamed the other person for planning and in stigat ing the killing. The proof showed that the defendants were engaged in gang activity and committed the murder to prove their worthiness to other gang members. Neither North nor his co-defendant

were acq uainted with the victim, but there was some proof that North’s mother had so cializ ed with the victim du ring24 The jury al so found that “[t] he murder was committed for the pu rpose of avoi ding, interf ering wi th, or pr

eventing a lawful arrest or prose cution of the defendant or another; ” and that “[t] he murder was committed while the defendant was engaged i n committing, or was an accomplice in t he commission of, or was at tempting to commit, o r was fleei ng after committi ng or attempting t

o commit, any fi rst degree murder, arson, rape, robbery, burglary , larceny, kidnappi ng, aircraft piracy , or unla

wful thr owing, pl acing or di scharging of a destructive device or bomb.” Tenn. Code Ann. § 39 -13-204 (i)(6) & (7) (1 991 & S upp. 199 6). -35- a time period when North was living with his father. North was twenty years old at the time of the killing. Though he di d not graduate from high school , North had received
a GED. North had a prior conviction for burglar y. In the course of theinvestigation, North gave conflicting st atements to the police, initi ally denying any invol vement in the killi ng. According to the tr ial judge, North testi

fied both at the trial and a t sentencing in a “tearful, emotional manner.” The jury found North guilty of first degree premeditated murder and also found that the State had proven the existence o f three aggravating

circumstances24 beyond a reasonable doubt, including the circumstance returned by the jury in thi s case, that “[t]he murder was especially heinous, atrocious,
or cruel in that it involv

ed torture or serious phy sical abuse beyond that neces sary to produce death.” Tenn. Code Ann. § 39-13-204(i)(5) (1991 Repl.). However, the jury d e clined to impos

e the dea

th penalty, returning

instead a senten ce of life impri sonment without th e possibili ty of parole . The jury’s decision to imp ose a sentence less than death on Nort h, even th ough the cir cumstances o

f the crime reveal, in the words of the trial judge, that he was “a cold, callo us person with abs olutelyno regard for human life,” does not render Bland’s sen tenc e disproportionate. Cf

. Gregg , supra , 428 U.S. at 203, 96 S.Ct. at 2939.

In con ducting our review, we also have rev iewed other cases bea rin g similarities

to the circumstances of this crime and the character of this defendant, in which the def enda nts received a life sentenc e. For example, in State v. James-36-

Morning Craft, Jr., and Lewis Moorlet , C.C.A. No. 31, (Tenn. Crim. App., at Jackso n, Mar. 8, 1989), app. denied (Tenn. 1989), the seventy year old victim, owner and operator of a liquor store in Memphis, closed his business at 11 p.m. and went to his
car. Finding a tire flat, he drove the car from the parking lot to the front of the store to change the tire. Craft, along with several other persons, helped the victim change the tire, and w

hen the task w

as nearly completed, th e victim wa s shot three times. Craft was observed runnin g from the scene with the w ounded victim firing a g un at him. The victim died from the gunshot wounds a short time later, one of which severed his aorta. The proof showed tha t Craft and Moorlet had discussed robbing the victim shortly before the crime was committed. Craft had named Moorlet as the triggerman to several witnesse s that testified for the

State. The jury

found both Craft and Moorlet guilty of fir st degree murder committed i n the perpetration of arobbery. The State relied upon o nly the f elony murder aggrav ating circumstance at the sentencing hearing. Craft, twent y at the time the offense was committed, had a low IQ and only a seventh grade education. The trial judge characterized Craft as “easily led.” Three years earlier, Cr aft had been convicted of burglar y. Moorlet had a tw

elfth grade education and no prior cri minal record. Though his IQ was listed a s not known bythe trial judge, his conduct during the trial was describ ed a s “excellent.” There
was no evidence of drug or alcohol influence in the killing. Co nsidering the proof, the jurydeclined toimpose the death penalty and instead impos ed a life sentence upon each defendant. Unlike this case, ther e was noevidence that the murder committed byCraft and Moorlet invol ved torture. Unlike the unexplained, s ense less murder committed by Bland, the murder committe d by Craft and Moorlet occ urred duringthe perpetration of a spur of the moment robbery. Though the kil ling wa s certainly reprehensible, it was not an act of complete random violence as was the killing in this-37-

case. Despite Bland’s assertions that he decided to shoot Sander s on the spur of

the moment, the assault upon the helpless v ictim continued for sometime and cov ered
some distance. The assault by Craft and Moor letended quickly and the v ictim was not defenseless. One of the persons who had been helping the victi m change the flat tire testified for the State against Craft and Moorlet. He said when the tas k w as nearlyco mpleted, he began to walk away, leaving Craft and the v ictim behind tightening the lug bolts. After taki ng only 15 or 20 steps, the witness heard three shots and turned to see the wounded v ictim firinga gun at a fleeingCraft. Cle arly, the manner of the k

illing an d the motive

for the murder

commi tted by Cra ft and Moorlet are distingui shable and support the lesser sentence given.

Likewise, in State v. Horace Jones , C.C.A. No. 117, (Tenn. Cr im. App., at Jackson, Dec. 4, 1980), app. denied (Tenn. 1981), the jury imposed a life sentence in a case with facts somew hat similar to the instant ca se. There, theforty-one year old victim was in a pool hall in Memphis when the defendant came in and shot him three times. The victim fell to the floor, and as he lay there face down, the defendant again pulled the trigger, but the gun misfired. The defendant f ired the gun two more times and then reloaded it. The victim got up from the floor and ran to a room in the backof the establishment where he br oke a window

with a cue stick in

an attemptto escape the defendant’s assaults. When the victim ran towa rds the back of the pool hall, the witnesses present ran outside, but then heard three more shots. When they returned inside, the victim w as de ceased. Over a month later, the police apprehended the defendant in an apartment where he was hiding in a closet. At trial, the defense offered proofto show that the victim had been looking for the defendant during the months before the murder and intended to harm him because of a dispute-38-

over a “cr ap game.” The case proceeded to a s entencing hearing at w hich th e defense offered expert testimony that the defendant could be rehabilitated and would profit from participation in a long term psychothe rapy coun seling group. Other mitigatingcircumstances relied upon by the defendant includedvictim participati on, moral justification, and extreme emotional distur bance. The defendant wastwentyfourat the time the offense was committed. Based upon the proof, the jury decli ned to impose the death penalty and returned a sentence of life imprisonment. Jones, unlike the defendant in this case, offered proof of his capacit y for rehabilitation. Pr

oof
was also offered to show that the victi m and Jones were acquainte d and that the victim had been threatening Jones. W hile certainly no justification for the murder, it is a circumstance which reflects upon the character of the defendant. In contrast, the vi ctim in this case was a st ranger to the defendant and posed no threat when h e asked simply “what’s up ?” Al though the circumstances of the two murders are somewhat

similar, the mitigati on proof offered, and the relations hip between the defendant and the victim explain the lesser sentence given Jones.

Based upon our review, w e conclude that the following cases in which the death penalty has been impos ed ha ve many similariti es with this case. In State v. Van Tran , 864 S.W.2d 465 (Te nn. 1993), this Court affirmed the death sentence of
a nine teen year old defe ndant who , after s hooting a nother vic tim, kille d a sevent yfouryear old woman during the cours e of a robbery. As in this case, the victim had already been shot andwas lying on the floor. Without provocation or expl anation, Van Tran, like the defendant in this c ase, put a gun to the back of the unr esisting and helpless victim’s head and pulled the trigger. Van Tran was born in Viet Nam, the son of an American soldier who was kill ed in the war. As in this cas e, Van Tran had-39-

grown up without his father, and had little education. Along with his mother, Van Tran
was resettled in Memphis by a Catholic relief agency andattende d school f or only a short t ime before dropping out. Van Tran had a good employment record, and he had no prio r criminal record. In addi tion, he cooperated with th e authorities and
e xpressed remorse for the killings. As in this case, the j ury returned a s ingl e aggravating

circumstance--the murder was especially

heinous, atrocious, or cruel in that it involved

depravity of

mind. Tenn. Code Ann. § 39-2-203(i) (1982) (repealed). Finding that the evidenc e supported th is aggr ava ting circumstance and that there
were no mitigating circumstances sufficiently substantial to outweigh the statutory aggravating ci rcumstance, the jury sent enced Van Tran to death.

In State v. McNish , 727 S.W.2d 490 (Te nn. 1987), the victi m, a seventy year old widow, was beat

en about the f ace and head with a glass flo wer vase by the defendant. The victim was ali ve when she was found, but died a short time later. A s in this case, McNish w

as young, twenty

-nine, when he committed the offense. He had no prior criminalrecord. Previously, McNish had sustained head injuries in an automobile accident and was using prescription drugs heavily to combat headaches. Similar to Bland, who said h e ha d been drinking when he killed Terry Sanders, McNish had been using drugs w hen he committed the murder. As in thi s case, the jury imposed the death sentence upon finding a single aggravating circumstance -- that the murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind. Tenn. Code Ann. § 39-2-203(i)(5) (1982) (repealed).

In State v. Cooper , 718 S.W.2d 256 (Tenn. 1986), the defend ant, age t hirtythr e e, shot his estranged wife four times while she w as trapped inside a glass and-40-

brick cashier’s booth. As did Bland, Cooper shot an unarmed, helpless v ictim without provocation. Also like B land, Cooper did not shoot his wife four times in rapid succession. The victim in Cooper, as in this case, had time to contemplate her fate. Cooper shot once, walked awa y, then turned back and resumed firing at her. The juryimposed the death penalty, finding , as in t his case, that the murder w as especiallyheinous, atrocious, or cr uel in that it involv

ed torture or

depravity of mind. Tenn. Code Ann. § 39-2-203(i)(5) (1982) (repealed).

In State v. Henley , 774 S.W.2d 908 (Tenn. 1989), the jury imposed the death p enalty af ter finding, as in this case, that the murder was especially heinous, atrocious, orcruel in that it inv olved torture or deprav ity of mind. Tenn. Code Ann. § 39-2-203(i)(5)(1982) (repealed). Like Bland, Henley had been dri nking and taking drugs on the day of the murder. Henley forced the victims, a married couple wi th whom he was acquainted, from the road to their house at g unpoint, demanding money. When the victims attempted to comply, H enley refused to take the mone y, and without provocation,shot the husband and then the wife. When the helpless, unresisting wife b egan moaning, Henley, like Bland in this case, shot her two more times. Later, Henley poured gasoli ne on her body and set the house o n fire. Though the husband died from the gunshot w ound, the wif e died from burns and smoke inhalation.

In Barber , supra , the defendant without provocation, struck the helpless and unresistingseventy-f ive year old victim fiv e times in the head with a crescent wrench. The victim in Barber

tried to protect herself by fe nding o ff the blows with her hands. TerrySanders, the victim in this case, tried to protect himself, fleeing from the assault25 The jury foundthat th e defendant had committed prior vi olent felonies, t hat the defen dant was in lawfu l confi nement when he committed the murder, and that the vi ctim was a corrections emp loyee. Ten n. Code Ann. § 39 -2-23(i)(2 ),(8) & (9) (1 982) (re pealed)

. -41- and seeking refuge underneath the truck. Barber was t wenty-nine

y ears old when he committed the murder. As mitigation, he relied uponhis capacity for rehabi litation and, like Bland , his you th. As in this case, the j ury found that the murder wa s especiallyheinous, atrocious, or cruel in that it involved tor ture or depravity o

f mind. Tenn. Code Ann. § 39-2-203(i)(5 ) (1982) (Repealed)

. In addition, the jury determined that the murder was committed during the course of a felony

. See Barber
v. State , 88 9 S.W .2d 185, 189-90 (Tenn. 1994) (concluding that the jury’s consideration of felony-murder aggravating ci rcumstance was harmless error).
Finally, though the jury in State v. Taylor , 771 S.W.2d 387 (Tenn. 1989) found three aggravating ci rcumstances 25 in addition to finding that the murder was especiallyheinous, atrocious, or cr uel in that it involv

ed torture or

depravity of

mind, the circumstances of the offense andthe character of the defendant in that case bear similarities to the cir cumstances of this killing and the character of this defendant. While incarcerated, Taylor attacked a guard with a hand-made k nife. As in this case, the attack was without pr ovocatio n. The vict im fled d own the hall, but was pursued bythe defendant. Though the victim p led for mercy, the defendant continue d with the assault. Eventually, the defendant ende d the assault, leaving the victim alive and conscious, but severely w ounded. Blinded by the assault, but conscious, the victim calle d out in p ain to other prison inmates until he was removed to the hospital. As
was Bland, Taylor was calm after the killing, r eturning to his cel l , concealing the weapon, and changing clothes. The v ictim died forty minutes l ate rfrom internal bleeding. Like Bland, Taylor relied upon his youth as mitigation of the offense: he26 This Court has rev iewed 116 capit al cases since 1977 invol ving 110 defenda nts. Of the 110, at leas t 46 were betwee n the age s of 19 a nd 25 w hen the o ffense was co mm itted. At least 9 were 19 years old when the offense was co mmitted. -42- was twenty-one when he committ ed the murder. Also like Bl and, Taylor had a juvenile record.

As stated e arlier, th ough no two cases are identica l, the abo ve six cases have manysimilarities with Bland. In each case, the defendant assaulted anunresisting and defenseless victim without provocation or explanation. In each case multiple woundswere inflicted upon the v ictim, causing pain and s uffering. L i ke Terry Sanders, the victims in at le ast two of the cases, Cooper and Taylor , were trapped and unable to get away from the defen da nt’s assault. Like Bland,two of the defendan ts were very y oung 26 when the offense was committed -- nineteen and twenty-one. Also like Bland, two of the defendant s had been drink ing or using drugs
on the day of the murder. After reviewing the ca ses d iscussed above, and many other cases not herein described,we are of the opinion that the penalty imposed by the jury in this case is not disproportionate to the penalty imposedfor similar crimes.

CONCLUSION In accordance with themandate of Tenn. Code Ann. § 39-13 -206(c)(1)(A) & (D) (1991 Repl. & 1996 Supp.), an d the prin ciples pre viously disc ussed, we h ave considered the entire record in this cause and find that the sentence of death was not imposed in an arbitrary fashion;that the evidence supports,as previously di scussed, the jury’s findings of the statutory aggravating circ ums tance and that the evidence supports the jury’s finding that the aggravating

circumstance outweig hed mitigating-43-

circumstances

beyond a reasonable doubt. Tenn. Code Ann. § 39-13-206(c)(1)(A)- (C) (1991 Repl. & 1996 Supp.). We have considered the defendant’s assignments of error and have determined that none have merit. With respect to is sues not specifically addressed herein, we affirm the decision of the Court of Criminal Appeals, authore d by Jud ge Paul G. Summers and joined i n by Judge David H . Welles and Judge William M. Barker. Thedefenda nt’s sentence of death by electrocution is affirmed. The sentence of death will be c arried out as provided bylaw on the 6th day of April 1998, unless otherwise ordered by this Court or other proper authorities.

_____________________________________ Frank F. Drowota, II I, Justice

Concur: Anderson, C. J. and Holder, J. Reid, J. - separate concur ring and dissenting opi nion. Birch, J. - separate conc urring and dissenting

opinion.