1

Tenn. Co de Ann. § 39-13-204(I(5 ) (Supp. 199 6).

FILED

April 28, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE SUPREME COURT OF TENN ESSEE

AT NASHVILLE

STATE OF TENNESSEE, (

(

Appellee, (

( David son C ounty

(

( Hon. Walter C. Kurtz, Judge

v . (

( S. Ct. No. 01S01-9505-CR-00080

(

HENRY EUGEN E HODG ES, (

(

Appe llant. (

DISSENTING OPINION

 The d efendan t’s uncon tested ple a of guilty

foreclos es, of cours e, consider ation on appeal of any issue

except those relating to the punishme nt phase of the case.

In my view, the record shows three errors that

affirmatively appear t o have affected the judgment imposing a

sentenc e of deat h. Tenn. R. App. P. 36; Tenn. R. Cri m. P.

52. These are: the evidence does not support t he finding

that the mu rder involved “torture or seriou s physical abu s e

beyo nd tha t nece ssary to prod uce d eath;” 1

 “the nature and
2

Tenn. Co de Ann. § 39-13-204(c ) .

3

See State v. N ichols , 877 S.W.2d 722, 744 (Tenn. 1994) (Reid,

C.J., dissenting ) .

4

Tenn. Co de Ann. § 39-13-206(c )(1)(D) (Sup p. 1996).

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circum stances o f the crim e [and] th e defend ant’s cha racter,

background hist ory, and physic al conditi on” 2

 do not show that

of all f irst degr ee murderers the defendant is “among the

wors t of the bad;” 3 and the proportionality review required

by statute does not support the majorit y’s conclusion that

the sentence is not excessive or disproportionate. 4 Since

the se i ssu es a re d ete rmi ned b y th e fa cts of t he c ase , s ome

furthe r refere nce to the rec ord se ems a pprop riate. 

The State’s pr oof regardi ng the commission of t h e

offense was base d primarily upon t he testi mony of Trina

Brown, a minor, with whom the defenda nt was cohabiti ng at the

time the defendant killed the vi ctim. Brown was abandoned by

her father on a street i n Nashville when she was about 14

years old. After li ving a “homeless” exi stence for four or

five months, she began living with the defe ndant, who was 23

years of age at the time. They lived t ogether for more than

a year before the crime in t his case was committe d .

The d efend ant ha d bee n esse ntially witho ut adu l t

supervisi on since the t ime he was 12 years old. Prior to t h e

commission of the cr ime in this c ase, he had been convi cted,
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as noted in the majority opi nion, of major c rimes involvi n g

violence against other pers ons. He seriously abused drugs

and o ther su bstan ces. A signific ant fac tor affe cting h i s

life, and a facto r whic h obv iously had s ome bearin g on h i s

commission of the cr ime in this c ase, was his abduc tion and

rape by a male str anger when he was 12 years ol d .

During the ti me Brown and the defendant were li ving

together, he w orked as a “ stripper” in a gay bar. He also

was a p rostitute w ith, accord ing to B rown, m any m ale clients

who paid him well. Brown str ongly object ed to the

defendant’s being engaged in t his acti vity, and her objection

precipit ated the ser ies of event s which culminated i n the

murder. The defendant and Brown had been living wit h the

defen dant’s broth er unt il a sho rt time before the m urder . 

The brother’s wife learned fr om Brown that the defendant was

a prostit ute. The defendant was greatly agi tated by the

revelati on to his famil y of his homosexual ac tivit ies. The

result was that the defendant and B rown had to find an other

place to liv e. Brow n and th e defend ant plan ned to m ove to

Florid a. Ac cordin g to B rown ’s testim ony, th e defe ndan t said

he would get the money with which t o make the move by robbing

a “customer.” She further testi fied that she suggested t hat

he kill t he customer also. Brown testif ied she made the

suggestion “b ecause [she] was jealous [of ] . . . a nybody who
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was gay and tried to pick him up,” and she “wanted any man

who had ever touched him dead.” 

The a ccou nt of th e mu rder sta ted in t he m ajority ’ s

opinio n om its, and perha ps ov erstate s, som e of the proo f. 

Brown testif ied that on t he night of t he murder, Brown and

the defendant went to Centennial Par k in Nashvill e where the

def enda nt s at o n th e hoo d of his car whil e Br own s at s ome

distance away i n a swing. The vict im, a 39-year- old man,

appro ached the de fenda nt, the y talke d, and then d rove o ff in

the victi m’s car. Ten to f ifteen minut es later , the

defend ant wa lked bac k to the p ark, and he and Brow n drove to

the vic tim’s h ouse. Brow n lay h idden on th e back seat w hile

they were en route to the vict im’s house. Even t hough the

distance f rom Centennial Park t o the victi m’s house does not

appear in the r ecord, it seems highly unli kely that t h e

defendant could drive w ith the victim to his house, then

handcuff the vi ctim’s hands and bi nd his legs wit h tape and

walk back to the p ark in 1 5 min utes. In additio n, Bro wn’s

testimony as well as the other evidence pre sented, shows that

the victi m was at no time secured t o the bed, nor was he

gagged . The rec ord do es not sh ow w hy he d id not un dertake t o

escape or at l east call for help, even if his feet were bound

together, while the defe ndant was returni ng to the park f o r

Brown. The reasonable conclusion is that he was not bound at
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this time, b ut was merely waiting for the de fendan t to return

with his car.

When the defendant and Brown arri ved at the

victim’s house, the def endant told Brown he would be r ight

back, and th at she mus t contin ue lyin g dow n in th e back seat. 

In fact, Brown went to sleep on the back seat of the car

while the defe ndant was in the vi ctim’s house. There is no

evidence of what occ urred during t he time the defe ndant and

the victim were alone in the victim’s ho use. The record does

not reveal when or f or what purpose the vi ctim was bound and

handcuffed. Ther e was no evidence int roduced concerni n g

whether the defendant and the victim engaged in sexual

activity durin g the fir st or sec ond ti me th e defe ndan t was i n

the house. It is, of course, possible t hat the victim was

actually bound as a part of the proposit ioned homosexual

activity rather than under coercion. In any even t, after

some undete rmined lapse of tim e, the defe ndant re turned to

the c ar and got Br own. When they went i nto t he hous e, Br own

saw that the victim’s hands were handcuffed behind his back,

his legs were taped togethe r, he was lyi ng face down on the

bed and there was a pil low over his head.

Brown testif ied that af ter they had f inished ta king

from the house items which could be sold, the defendant was
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ready to leave with the victi m lying on the bed, and it was

she w ho w anted the vic tim to be kille d. 

The vic tim suffe red no p ain beyo nd that in cident to

death by stran gulation. Dr. H arlan, the forensic p athologist

who examined the victim, testified t hat in death by

strang ulation , victim s “wo uld fee l pressu re on t he ne ck,”

“they would probably feel a shortage of oxygen or a shortage

of breath, ” and “they would lapse into unconsci ousness or

sleep, a nd the n die.” He te stified th at the v ictim “ wou l d

have [become] u nconscious and then have died within a m atter

of three to five minutes. ” 

The facts of t he case do not support the findi n g

that the killing “invo lved torture or serio us physical ab use

beyond that neces sary to produce death,” one of t h e

aggravating circumstances found by the jur y. Tenn. Code Ann.

§ 39-1 3-204 (I)(5). T orture involv es the i nflictio n of pa i n

by a perpetrat or upon a victi m. It necessar ily invol ves the

intent by the perpe trator to cause the vic tim to suffer. 

Suffering alone, regar dless of i ts severi ty, does not

constitut e torture . There is no evi dence that the defendant

had any purpose other than to kil l the vict im. There is no

evidence that the victi m suffered any “physi cal abuse beyond

that necessary to produce death.” The words of the medical
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examiner belie any claim of torture - the victim would feel

pressure on t he neck, experi ence a shortage of oxygen or

breath, and lapse into unconsciou sness or sleep, and then

die. The majority finds men tal suffering. The only evidence

of mental suffering was the vict im’s plea that he not be

killed. If these facts support a finding of torture, then

torture i s present i n every case of intenti onal kill ing

excep t whe re, as th e pros ecuto r argu ed to th e trial co urt in

this case , the vict im without warning i s kille d by a gunshot

to the b ack o f the he ad. U nfortu nately , the m ajority ’ s

decisio n will c reate th at prec eden t. 

The facts showing t he nature of t he crime and the

chara cter an d histo ry of th e defe ndan t do no t estab lish this

first degree murder as bei ng among the worst of the b ad, or

this defe ndant as being one of those for whom the sent ence of

death is mo st app ropria te. Greg g v. G eorgia , 428 U.S. 153,

187-95 , 96 S. C t. 2909, 29 32-35 (1 976).

The statute r equires t hat the sent ence be based on

the nature of the crime as well as the charact er and

background of the de fendant. The re cord establ ishes that the

defendant is capable of deadly viol ence. However, so far as

the record discloses, only those persons wh o were engaged

with the defenda nt in ill egal acti vity were in dang er of
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being harm ed by him. This fo cused violen ce, wh ich ap paren tly

had its genes is in act s committed agains t the defendant

during his childhood, does no t constitute the public danger

again st wh ich law abidin g citize ns ha ve no realistic

protec tion. T his m urder , thou gh ba d, as a ll mur ders a re, is

not among the worst of t he bad.

There was no meaningful proportionality review by

the C ourt o f Crim inal A ppea ls or thi s Cou rt in this case. 

The ca se dram atically de mon strates tha t in the ab sence o f a

structur ed review proces s there can be no meani ngful

determinati on whether “the sent ence of death i s excessi ve or

disproportion ate to the pen alty impose d in similar case s ,

considering both the nature of the cr ime and the defendant.” 

Tenn. Code Ann. § 39-13-206( c)(1)(D). This essenti al and

signific ant pa rt of ca pital ju risprud ence w as acc omp lished in

this case with conclusory statements an d citations to seven

cases i n wh ich the Cou rt has a ffirme d the d eath se ntenc e. 

This does not accom plish the plain mandate of the statute,

which contemplates a comparison with a universe of similar

cases “consi dering both t he nature of t he crime and the

defendant.” 

Other state s with stat utes simil ar to Tenn. Code

Ann. § 39-13-206, notably Pennsylvania and North Carolina,
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The Washington, Pennsylvania, and North Carolina statutes, like

the Ten nessee s tatute, req uire a rev iew of w hether th e senten ce is

“excessive” or “disproportionate” consider ing both the circumstances of

“the crim e” and the cha racter of “ the defe ndant.”

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have developed a re asoned process f or determining

proportiona lity, including the ide ntification of a un iverse

or pool of cases for the purpose of com parison. The statutes

and decisions of the Supreme Courts of North Carolina and

Pennsylvania were r eviewed in State v. B rett , 892 P.2d 29

(Was h. 1995 ) : 5

 Pennsylv ania, for exam ple, has a

proportionality statute which resembles

our o wn. 4 2 Pa. C ons. S tat. An n. §

9711(h)(3) (iii ) (Supp. 1994) . The

Pennsylvania Supre me Court examines the

relative freque ncy o f death senten ces in

the pool of sim ilar cases it develops ,

finding deat h sentences not

disprop ortionate where the vast m ajority

of defendants in similar cases received

the de ath pe nalty. See , e.g. ,

Com mon wealth v. Smith , 511 Pa. 343, 513

A.2d 1 371 (19 86) (findin g the de ath

penalty not disproportionate where it was

impos ed in eigh t of nine sim ilar cases),

cert. denied , 480 U .S. 951, 1 07 S. C t .

1617, 9 4 L. Ed . 2d 801 (1987);

Comm onwealth v. W hitney , 511 Pa. 232,

249-50, 512 A.2d 1152 ( 1986) (fi nding the

death p enalty n ot dispro portiona te whe r e

it was imposed in t he “overwhelming

majo rity” o f simila r cases ); Com mon wealth

v. Pire l a , 510 Pa. 43, 507 A.2d 23 (1986)

(finding the death penal ty not

dispro portio nate w here it w as im posed in

six of e ight sim ilar cas es); Com mon wealth

v. Morales , 508 Pa. 51, 494 A.2d 367

(1985) (f inding the deat h penalty not

disproportionate where imp osed in seven

of seven similar ca ses).
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 North Carolin a too ha s a statute

requiring propor tionality re view. Its

statute co ntains lan guage id entical to

our own, insofar as it asks whether “the

sentence of de ath is exces sive or

disproportionate to the penalty imposed

im similar cas es, conside ring both the

crime and the defe ndant.” N.C. Gen.

Stat. § 15A-2000(d)(2) (1994) . In that

jurisdic tion, th e pen alty of d eath is

considered disproportionate i f it has

been imposed in les s than half t h e

simila r cases . See , e.g. , State v.

Cumm ings , 323 N.C. 181, 198, 372 S.E.2d

541 (1988) (f inding the deat h penalty not

dispro portio nate w here it w as im posed in

four of fi ve other cases in which a

defendant was convi cted of a pri o r

violen t felony resultin g in the victim ’ s

death ), cert. gr anted and judgment

vacated on other grounds , 494 U.S. 1021,

110 S. Ct. 1464, 108 L. Ed. 2d 602

(1990 ); State v. Benson , 323 N.C. 318,

328-29, 372 S. E.2d 517 (1988) ( finding

the dea th pena lty dispro portiona te whe r e

it was imposed in only 4 of 51 robberymur der ca ses); State v. Stokes , 319 N.C.

1, 22 n. 14, 352 S.E.2d 653 (1987)

(finding th e death penalty

disproport ionate becaus e the codefendant

received a life senten ce and bec ause

North Carolina juries have reco mmen ded

life i mprisonment in especi ally heinous

cases in 20 cases involving 24

defend ants, wh ile recom mend ing the d eath

penalty in 16 cases involving 17

defen dants ); State v. R ogers , 316 N.C.

203, 235, 341 S. E.2d 713 (1986) ( finding

death p enalty d ispropo rtionate fo r a

defendant found gui lty of shoot ing one

person and atte mpting to shoo t anothe r ,

where in the pool of similar ca ses, the

death p enalty w as imp osed in 2 3, and life

senten ces in 7 6), overruled on other

grounds by State v. Van diver , 321 N.C.

570, 3 64 S.E .2d 37 3 (198 8); State v.

Young , 312 N.C. 669, 325 S.E.2d 181

(1985) (fin ding the death p enalty

dispro portio nate w here it w as im posed in

5 of 28 robbery- murder cases in t he pool
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of sim ilar cas es); State v. Bondurant ,

309 N.C. 674, 693, 309 S.E.2d 170 (1983)

(finding th e death penalty

disproport ionate where appl ied in 13 of

78 sim ilar cases).

Id. at 78-79 (Utter, J., d issenting).

A pluralit y in Brett , over a strenu ous a nd w ellreasoned dissent, reaf firmed a process which, though

obvio usly su perior to the p roced ure fo llowe d in T enne ssee, a

federal cour t found, “did not fulfil l the esse ntial f unction

of ensuring t he ‘even’ handed, rational , and consist ent

imposition of death sentences under Washington law.” 

Harris v . Blodge t t , 853 F. Supp. 1239, 1291 (W.D. Wash.

1994 ), aff’d , 64 F. 3d 14 32 (9th Cir. 19 95). T he co urt he l d

that that failure was a violati on of the defendant ’s due

process ri ghts under the f ederal const itution.

The o nly ackn owled gmen t by this C ourt that a

proportiona lity review is a part o f the law in cap ital cases,

other than the conclusory re citati ons at the end of the

opinions, i s the adopti on of Rule 12 of the Rul es of the

Tennessee Supreme Court, which requires that the trial judge

in all first deg ree mu rder case s in wh ich a sen tence of life

impriso nmen t or death is impo sed com plete and file a repo r t

setting forth extensiv e inform ation reg arding th e defend ant,
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Tenn. Co de Ann. § 39-13-206(a )(1).

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the offens e, the vic tim, the def endant’s re presentat ion, and

the case. However, none of the inf ormation contai ned in the

report is used in m aking the pro portionality review . In

fact, cont rary to the s tatement in t he majority opi nion, the

Rule 12 report i s never even fi led in many cases i n which the

death penalty was im posed. That rule obviously con templates

that the universe of cases to be used for com parison purposes

includes al l cases i n which the defendant was convicted of

first degree mu rder. Neverth eless, the “unive rse” of cases,

under the majori ty decisi on, are those cases in which t h e

death pena lty has been impo sed. 

Now that capital c ases are re viewed firs t by the

Court of C riminal Ap peals, 6 the absence of a structured

review proce ss dev elope d and articul ated b y this C ourt w ill

allow pane ls of thr ee jud ges, as semb led on a rotat ing ba sis

from a court of 12 j udges, to per form the requir ed review on

whatever basis each of the variou s panels may deem

approp riate. Pred ictably, the results w ill not reflect a

State s enten cing sc hem e wh ich pro vides a “me aning ful bas i s

for distinguis hing the few cases in which [the death penalty]

is imposed from the many cases in which it is not.” Furman

v. Ge orgia , 408 U.S. 238, 313, 92 S. C t. 2726, 2764 (White,

J., concurr ing). In t his regard, the admonition of the
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distri ct court i n Harris v . Blodge t t is note worth y: “It is

necessary t o due process tha t all par ticipant s in the

sentence rev iew operate under the same rules s o that the

noble purpose of a sentence re view will be r eliably a n d

const itution ally ca rried o ut.” 85 3 F. S upp. a t 1291 . 

For these reasons, I would reve rse the sentence.

_______________________________

Reid, J.