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

# FILED April 28, 1997 Cecil W. Crowson Appellate Cou rt 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 punishment 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 murder involved “torture or seriou s physical abu s e beyo nd tha t nece ssary to prod uce d eath;” 1 “the nature and2 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).

-2- circum stances o f the crime [and] the 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 defendant ha

d bee n esse ntially without 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,-3-

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 which 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 worked 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’sbroth 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 Brown had to find another place to live. Brow n and the defend

ant plan

ned to m

ove to Florida. Ac cordin g to B rown ’s testimony, 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-4-

was gay and tried to pick him up,” and she “wanted any man who had ever touched him dead.”

The a ccou

nt of the murder sta ted in t he majority ’ s opinion om its, and perha ps ov erstate s, some 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, they talke d, and then drove o ff in the victi m’s car. Ten to f ifteen minut es later , the defendant wa lked bac k to the p ark, and he and

Brow n drove

to the vic tim’s house. 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 park in 1 5 min utes. In

addition, Brown’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 show 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-5-

this time, b

ut was merely

waiting

for the de fendan t to return with hiscar.

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

during the fir st or sec ond time the 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 defendant 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-6-

ready to leave with the victi m lying on the bed, and it was she w ho wanted

the vic tim to

be kille d.

The vic tim suffe red no pain beyond that in cident to death by stran

gulation. Dr. Harlan, the forensic pathologist who examined the victim, testified t hat in death by strang ulation , victim s “would fee l pressure 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 then 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-7-

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 the pros ecuto r argu ed to the trial court 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 decision 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 the 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. Gregg 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-8-

being harmed 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 , though bad, 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 Court in thiscase. 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 disproportionate to the penalty 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 risprudence w as acc omp lished

in this case with conclusory statements an d citations to seven cases i n wh ich the Court has a ffirme d the death sentenc 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,5 The Washington, Pennsylvania, and North Carolina statutes, like the Ten nessee s tatute, req uire a rev iew of whether th e senten ce is “excessive” or “disproportionate” consider ing both the circumstances of “the crim e” andthe cha racter of “ the defe ndant.”

-9- have developed a re asoned process f or determining proportiona lity, including the identification 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 own. 4 2 Pa. C ons. S tat. An n. § 9711(h)(3) (iii ) (Supp. 1994) . The Pennsylvania Supre me Court examines the relative

frequency o f death sentences 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 penalty. 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 similar 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).-10- North

Carolina too ha s a statute requiring

propor tionality review. Its statute co ntains lan guage identical 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, the penalty of death 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 disproportiona te whe r eit was imposed in only 4 of 51 robberymurder ca ses); State v. Stokes , 319 N.C. 1, 22 n. 14, 352 S.E.2d 653 (1987) (finding the death penalty disproport ionate becaus e the codefendant received a life sentence and bec ause North Carolina juries have reco mmen ded life i mprisonment in especi ally heinous cases in 20 cases involving 24 defendants, 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-11- of sim ilar cas es); State v. Bondurant , 309 N.C. 674, 693, 309 S.E.2d 170 (1983) (finding the 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 and 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). The 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 acknowled 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 degree murder 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

extensive inform ation regarding the defend ant,6 Tenn. Co de Ann. § 39-13-206(a )(1).

-12- 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 murder. Nevertheless, the “unive rse” of cases, under the majori ty decisi on, are those cases in which t h e death pena lty hasbeen 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 develope d and articul ated b

y this C ourt w ill allow pane ls of thr ee judges, 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 schem 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-13-

distri ct court i n Harris v . Blodge t t is noteworth 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 itutionally ca rried o ut.” 85 3 F. S upp. a t 1291 .

For these reasons, I would reve rse the sentence.

_______________________________ Reid, J.