### IN THE SUPREME COURT OF TENNESSEE AT JACKSON
STATE OF TENNESSEE v. KENN ATH ARTEZ HENDERSON
Appeal from the Circuit Court for Fayette County No. 4465 Hon. Jon Kerry Blackwood, Judge

No. W1998-00342-SC-DDT-DD — Decided July 10, 2000

FOR PUBLICATION

The sole issue in this automatic review of the appellant’s death sentence is whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the appellant and the nature of his crime. The C ourt of Criminal App

eals held that the sentence

of death
was a proportionate p

enalty given th

e nat ure of the defendant’s crime and the individual circumstances surrounding the defendant. A fter an extensiv

e review of the r

ecord and the ap

plicable
case authorities, we also hold that the sentence of de ath in this case is not ex cessive and is a proportional penalty. The judgment of the Court of Criminal Appeals is affirmed.

Tenn. Code Ann. § 39-13-206(a)(1) Automatic Appeal; Judgme nt o f the Court of Criminal Appeals is Affirmed

B ARKER , J., delivered the opinion of the court, in which A NDERSON , C.J., and H OLDER , J., joined. B IRCH , J., filed a dissenting opinion. D ROWOTA , J., not participating.

C. Michael Robbins, Mem phis, Tennessee; Mike Mosier, Jackson,

Tennessee, for

the appellant, Kennath Artez Henderson.

Paul G. Summers, Attorne y General & Repor

ter; Michael E. Mo

ore, Solicit

or General; Tony a Miner, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee.

OPINION

At the time of the events giving rise to this case, the app ellant, Kennath Henderson, was incarcerated

at the Fayette County J a il serving consecutive sentences for felony escape and aggravated

burglary. On April 26, 1997, as the appellant was planning an escape from jail, he had a .380 semi-automatic pistol smuggled into the jail through his girlfriend. A couple of days later, the appellant requested dent al work on a tooth that needed to be pulled, and an appointment was made for May 2 with Dr. John Cima, a dentist practicing in Somerville. Dr. Cima had practiced1 The second inmate, Deloice Guy, apparently knew nothing of the appellant’ s plans to

escape, and she hid in her treatment room during the episode.
-2- dentistry in Somerville for more than thirty years, and he had often seen in

mate patients. In f

act, this was not the appellant’s first visit to see Dr. Cima.

On May 2 , 1997, Deputy Tommy Bishop, who was ser

ving in his official

capacity as a transport officer for the

Fayette County

Sheriff’s office, took the appellant and another inmate, Ms. Deloice Guy, to Dr. Cima’s Office in a marked police car. Upon their arrival at the dentist’s office, Dr. Cima placed the appellant and Ms. Guy in separate treatment rooms, and each patien t was numbed for tooth extraction. Deputy Bishop re mained in the reception area and talked with the receptionist during this time.

When Dr. Cima and his

assistantreturned to the a ppellant’s treat

ing room to begin the

tooth extraction, the appellant pulled out his .380 pistol. Dr. Cima immediately reached for the pistol, and he and the appellant struggled over the weapon. During this brief struggle, Dr. Cima called out for Deputy Bishop, and the dep

uty hurried back

to the treatment room. Just as the deputy arrived at the d oor, the appellant regained control of the pistol and fired a shot at Deputy Bishop, which graze d him on the neck. Althou

gh not fatal, this shot caused the deputy to fall backwards, hit his head against the doorframe or the wall, and then fall to the floor face down, presumably unconscious.

The appellant then left the treating room and came back with the receptionist in his

custody. The appellant reac

hed down and took D

eputy Bishop’s pistol

, and he took money, c

redit cards,

and truck keys from Dr. Cima. The appellant then ordered Dr. Cima and the receptionist to accompany him out of the building, but just before he turned to leave the building, the appellant went back to the treatment room, leaned over Deputy Bishop, and shot him through the back of the he

ad at pointblank range. The deputy had not moved since first being shot in the neck moments earlier and was still lying face-down on the floor by the door to the treatment room when the appellant fatally shot him.

Once outside of the office, the appe llant was startled

by another patien

t, and Dr. Cima

and his receptionist were able to escape back into the office. 1 Once inside, Dr. Cima locked the door and calledthe police. The appellant, in the meantime, stole Dr. Cima’s truck and drove away at a slow speedso as not to attract any attention to himself. When police of ficers began to follow him, the appellant sped away, and eventually drove off the road and into a ditch. The officer s took the appellant into custody, and up

on searching the

truck, they found

the murder weap

on, Deputy Bishop’s gun, and personal items taken from Dr. Cima’s office.

On May 13, 1997, the appellant was indicted by a Fayette County G

rand Jury in

a ten-count indictment, which alleged one count of premeditated mur der, th ree counts of felony murder, two counts of especially ag

gravated kidnap

ing, and one count o

f attempted esp

ecially ag gravated kidnaping, aggravated robbery, aggravated assault, and felonious escape. After three continuances,2 At one point during his attempted escape, theappellant also sho t himself in the leg w

ith his own gun resulting in a superficial fl

esh wound. In suppo

rt of his assertio

n that he “wasn’t thinking clearly,” the appellant stated that he did not even re

alize that he shot

himself in

the thigh until the next day.
-3- the appellant pledguilty on the day of trial to all of the charges except for the three counts of felony murder.

On July 13, 1998, the circuit court held the sentencing hearing, and the appellant waived

his rightto have a jury empaneled for purposes of determining his sentence. Several witnesses testified for the State at the sentencing hearing, including Deloice Guy, the inmate taken with the appellant to the dentist by Deputy Bishop; Dr. John Cima; Donna Feathers, Dr. Cima’s dental assistant; and Peggy Riles, Dr. Cima’s re ceptionist. In addition, Dr. O.C. Smith, a forensic pathologist, testified
as to his investigation of the crime scene and of his autopsy

of Deputy Bishop. Dr. Smith stated that basedon his examination o f Deputy Bishop’s w

ounds, along with wi

tness testimony, it

was likely that the first shot fired by the appellant hit the d eputy in the neck,

and caused the de

puty to hit his headagainst the doorframe of the examination room. Dr. Smith opined that this blow to

the deputy’s headcould have rende

red him unconscious. Moreover, Dr. Smith testified that the second shot fired by the appellant entered at the back of the deputy’s head and exited near the left eye. This second shotcaused

“significant and severe brain damage,” and the blood from this wound seeped from the skull fractures into th

e deputy’s sinuses , and ult imate ly, was breathed into his windpipe. Finally, Dr. Smith testified that the bullets used by the appellant could ha ve “easily” pen

etrated the thin

walls of the dentist’s office.

In mitigation, the appellant testified on his own behalf. According to his testimony, he was 24 years old at the time of the offense. He wa s a high-school graduate and has four younger brothers. While in elementary school, the appellant received numerous academic awards and certificates,

and he was heavily involved in extracurric

ular activities a

nd sports while in hig

h school. Although the appel

lant expressed so

rrow and remors

e over his actions, he admittedthat “[t]here’s
no reason” for the

murder of Tommy

Bishop. While he acknowledged that he extensively planned his escape from prison, including procuring the .380 pistol, his only excuse for the shooting was that he “wasn’t thinking clearly that day.” 2

The appellant also te

stified that he had

some “problems” i

n high school,and although he was never cited to the juvenile court, he stated that he felt like his problems were never addressed. He also testified that whil

e in jail in 1996, he requeste

d counseling beca

use he “felt like [he

] needed help psychologically.” His mother testified, however, that she

didnot believe that the appellant needed any help or intervention of any kind during his high school years. In addition, the appellant’s mother testified that though she re membered that the appellant requested help while in jail in 1996, she never pursued the matter because he “seemed to be doing fine when [she] talked to him.” Finally, Dr. Lynne Zager, a forensic psychologist, testified as to her findings and conclusions basedon two interviews w ith the appellant,

a personality test administered to the appellant, and other3 The circuit court did not make any finding of mitigating circumstance on the record or lis

t any such circumstanc

es in the capital c

ase report as requir

ed by Tennessee

Supreme Court Rule 12.

4 The circuit court also sentenced the appellant to 20 years for e speciall y aggravated kidnaping, 20 years for a second count of especially aggravated kidnaping, 8 years for aggravated
-4- information supplied by the defense. From this pool of information, Dr. Zager concluded that the appellant was suffering from dissociative disorder at the tim

e of the murder, and that the appellant possessed an unspecified pers onality disorder which exhibited some narcissistic and ant i-social traits

. She also testified that based upon her testing , she believed that the appellant’s d

issociative state began after the first shot wa s fired and lasted at least 24 hours following. While in this state, Dr. Zager stated that it was n

ot uncommon for indi

viduals to feel as though th ey are in a dream-like sta

te and are not

“an integral part of what the person is [really] doing.” Although she refused to give an opinion as to whether the appellant was aware of his actions at the ti

me of the murder,

the appellant, in her opinion, “was

[acting] under d

uress, and that his

judgment was not a

d equate.” In addition, while Dr. Zager considered him to be “impaired at the time,” she tes tified that the appellant’s condition at the time of the murder would not support a legal finding of insanity.

The State ar gued that four ag gravating facto

rs applied to warr

ant imposing the dea

th sentence: (1) th

at the defendan

t created a gre

at risk of death to two or more persons during the act of murder, Tenn. Code Ann. § 39-13-204(i)(3); (2) that the murder was c

ommitted for the pur

pose of avoiding an arrest, Tenn. Code Ann. § 39-13-204(i)(6); (3) that the murder was committed during the defendant’s escape from lawf ul custody, Tenn. Code Ann. § 39-13-204(i)(7); and (4) that the murder was committed against a law enforcement officer, who was engaged in the performance of official duties, Tenn. Code Ann. § 39-13-204(i)(9).

The appellant argued that four statutorymitigating factor s should be considered by

the court: (1) the lack

of significant criminal history by the defendant; Tenn. Code Ann. § 39-13-204(j)(1); that the murder was committed while the defenda nt w as under the influence of extreme mental or emotional disturbance, Tenn. C ode Ann. § 39-13-204(j)(2); (3) that the defendant acted under extreme duress; Tenn. Code Ann. § 39-13-204(j)(6); and (4) that the murder wa s committed while the defendant’s mental capacity, w hile not d eficient to the point of raising a defense, was substantially

impaired, Tenn. Code Ann. § 39-13-204(j)(8). In addition, the defense argued for application of an additional non-statutory mitigating circumstance, i.e. , that the failure to recognize and treat the mental health d

isorders of the de

fendant allowed

such to remain untreated by any form of intervention.

At the conclusion of the hearing, the circuit court found that all four of t he aggravating circumstances were proven beyond a reasonable doubt by the State. Although the circuit court did notmake a specific finding as to which mitigating circumstances were supported by the evidence, 3 the court found that the aggravating circumstances had been proven beyond a reasona

ble doubt to “outweigh the mitigating circumstances.” The circuit court then imposed the sentence of death for the premeditated murder of Deputy Tommy Bishop. 4robbery, 8 years for attempted especially aggravated kidnaping, 6 years for aggravated assault, and 3 years for felony escape. All of the prison terms, except the term imposed for felonious escape, were ordered to run concurrently

with each other, but

to run consecutively with the sentences then being currently served by the appellant. The prisonterm for felonious escape was ordered to run consecutively to all of the non-capital offenses. Accordingly, the effective sent

ence ordered b

y the court in this c

ase is death and a prison term totaling 23 years, which is to run consecutively to the current prison sentence.
-5- On ap peal to th e Court of Criminal Appeals, the sole issue raised by the appellant was wh et her the sentence of death was excessive and disproportionate to the offense committed. In affirming the sentence imposed by the circuit court, the Court of Criminal Appeals stated that “[o]ur review of this case in

conjunction with oth

er similar cases

convinces us that t

he death penalty in this
case is not disproportion

ate to the penalty imposed in other similar cases.” Pursuant to our statutory obligation under Tennessee Code Annotated section 39-13-206(c)(1) (1997), we conduct our own comparative proporti onality review, to review whether the sentence of death was arbitrarily impos ed , and to determine whether the evidence supports the trial court’s findings with respect to the statutory aggravating circumstances. We also undertake to review whether the evidence sup

ports a finding that the aggravating c ircumstances outweigh the mitigating circumstance beyond a reasonable do ubt

. Although no other issues in th is case have been presented by the appellant, either in his brief
or in argument befor

e this court, we have carefully examined the record and have determined that
no other reversible error exists. Further, after reviewing the testimony and evidence presented at the sentencing hearing along wit h the applicable l

egal authorities,

we agree with the Court

of Criminal Appeals that the sentence of death in this case has not been arbitrarily imposed and that i t is not disproportionate

to the sentence im

posed in similar ca

ses. We also hold th

at the evidence s

upports the trial court’s findings co ncernin g the applicable a ggravating circ

umstances and tha

t these aggravating circumstances outweigh any mitigating circumstances beyond a r easonable doubt. Accordingly, we affirm the judgment of the Court of Criminal Appeals and the sentence imposed by the trial court.
REVIEW OF AGGRAVATIN G AND MITIGATING CIR CUMSTANCES

As part of ou r statutory duty pursuant to Tennessee Code Annotated section 39-13-206(c)(1),
we review all capital cases to determine whether the evidence su pports the trial court’s finding of aggravating circumstances a nd whether these

aggravating circumstances outweigh any mitigating circumstances beyond a reasonable doubt. In d etermining whether the evidence supports the application of

an aggrav ating circumstance, the proper standard to consider is whether, after
r eviewing the evidence in the light most favorable to the State, a rational trier of fac t could hav e found the existence of theaggravating circumstance beyond a reasonable doubt. State v. Carter , 988 S.W.2d 145, 150 (Tenn. 1999). After a careful review of the testimony and evidence presented at the sentencing hearing, we conclude that the evidence fully supports the findings of the trial court and that the aggravating circumstances outweigh any mitigating circumstances beyond a reasona ble doubt.-6- Tennessee Code Annotated section 39-13-204(i)(3)

The record shows that the appellant’s actions in firing the weapon caused a

great risk of dea

th to two or more persons during the act of murder. This factor “‘contemplates either multiple murders
or threats to several persons at or shortly prior to or shortly after an act of murder upon which the prosecution is based.’” State v. Burns , 979 S.W.2d 276, 280 (Tenn. 1998) (quoting State v. Cone , 665 S.W.2d 87, 95 (Tenn. 1984)). This factor “most often has been applied where a defendant fires multiple gunshots in

the course of a

robbery or other

incident at which p

ersons other than

the victim are present.” Id.

The record

in this case reve

als that the appellant threatened the dentist and dental assistant by pointing a loaded w

eapon at them, tha

t the dentist and th

e appella nt struggled over the loaded weapon, and that when the appellant fired the first shot at the victim, the receptionist was very close nearby. The State also intr oduced expert te

stimony that the bulle

ts fired by the app

ellant could easily have penetrate

d the thin walls

of the office and continued into adjoining rooms. We conclude that a rat ion al trier of fact could have concluded that this aggravated circumstance was proven beyond a reasona

ble doubt. Tennessee Code Annotated section 39-13-204(i)(6)

The record also demonstrates that the murder was committed to avoid arrest or prosecution. As our cases make clear, the desire to avoid arrest or p rosecution need

not be the sole motiv

e, so long as it is one of the motives in the killing. State v. Carter , 714 S.W.2d 241, 250 (Tenn. 1986);
see also State v. Smith , 868 S.W.2d 561, 581 (Tenn . 1993) (sta ting that prevention of arrest and prosecution neednot be the “dominant” motive for the killing). The evidence in this case is that the appellant returned to the treatment roomafter looking for money throughout the office only to put
a bullet into the head of an unconscious, non-resisting law-enforcement officer lying face-down on the floor. Viewed in a light most favorable to the State, we conclude that a rational trier

of fact could have found the ex

istence of this ag

gravating circu

mstance beyond a

reasonable doub

t. Tennessee Code Annotated sections 39-13-204(i)(7), (9)
Last, the record also shows that the appellant committed the murder while in lawfulcustody and that the victim was a

law-enforceme

nt officer enga

ged in performing

his official dutie

s. In fact, the proof is uncontrov

erted that the ap

pellant was then c

urrently serving a prison term, and that he
was transported to the dentist’s office in a mark ed patrol car by a uniformed police officer in the
course of his offic

ial duties. The proof is also u ncontroverted th

at the appellant w

as personally acquainted

with Tommy Bishop in Bishop’s capacity as a law-enforcement of ficer and t hat the appellant knew that Tommy Bisho p was acting in his o

fficial capac

ity on the morning of May 2, 1997. Viewed in a l

ight most favorable to the State, we conclude that a rational trier

of fact could have found the ex

istence of these

two aggravating c

ircumstances be

yond a reasonabl

e doubt.

The trial court did not make any specific findings as to wh ich, if any , mitigating circumstances argued by the appellant were proven to exist. For sake of

this appeal, and in

fairness-7-

to the appellant, we will assume that all five of the mitigating circumstances argued by the appellant
were raised by the evidence and are entitled

to some consideration. Nevertheless, we agree that the aggravating circumstances far o utweigh all of the m itigating circumsta

nces beyond a re

asonable doubt.

COMPARATIVE PROPO RTIONALITY REVIEW

Pursuant to Tennessee Code Annotated section 39-13-206(c)( 1), this Court conducts a comparative proportionality review of every death sentence for the purpose of “determining whether the death penalty is unacceptable in a particular case because it is disproportionate to the punishment imposed on others c onvicted of t he same crime.” State v. Hall , 8 S.W.3d 593, 604 (Tenn. 1999). This Court applies the precedent-seeking approach, in which we compare a particular case with other
cases in which the defendants were convicted of the same or similar cri mes. We conduct this compari son by examining the facts of the crimes, the characteristics of the de fendants, and th e aggravating

and mitigating factors involved. See State v. Bland , 958 S.W.2d 651, 664 (Tenn. 1997). Comparative review of capital cases “insures rationality and consisten c y in the imposition of the death penalty.” See id. at 665 (cit ing State v. Barber , 753 S.W.2d 659, 665-66 (T enn. 1988); State v. Kandies , 342 N.C. 419, 467 S.E.2d 67, 86 (1996)). Comparative proportion ality review is not required by either the state or federal constitution s , and the review must be distinguished from “traditional Eighth Amendment

proportionality

analysis, which is the ‘abstract e

valuation of the a

ppropriateness

of a sentence for a particular crime.’” Bland , 958 S.W.2d at 662 (quoti ng Pulley v. H arris , 465 U .S. 37, 42 -43 (1984)) . In conductin g a comparative proportionality review, w e begin with the p resumption that the

sentence of dea

th is proportionate

to the crime of first degree murder. State v. Hall , 958 S.W.2d 679, 699 (Tenn. 1997). This purpose of the analysis is to identify arbitrary , or capricious sentences by determining whether the death p enalty

in a given case is “‘disproportionate to the punishment imposed on others convictedof the same crime.’” Bland , 958 S.W. 2d at 662 (q uoting Pulley v. Ha rris , 465 U.S. 37, 42-43 (1984)).

A death sentence will be considered disproportionate if the case, taken as a whole, is “plainly lacking in circumstances consistent with those in similar cases in which the death p enalty has previously

been imposed.” B land , 958 S.W.2d at 665. However, a sentence of death is not disproportionat e merely be cause the circumstances of the offense are similar to those of another offens e for which the defendant has received a life sentence. State v. Smith , 993 S.W.2d 6, 1 7 (Tenn. 1999); State v. Blanton , 975 S.W.2d 269, 281 (Te nn. 1998); Bland , 958 S.W.2d at 665 (citing Statev. Carter , 714 S.W.2d 241, 251 (Tenn. 19 86)) . Our inquiry, therefore, does not require a finding that a sentence “less than death was never imposed in a case with similar characteristics.” Blanton , 975 S.W.2d at 281; see also Bland , 958 S.W.2d at 665. Instead, our duty “is to assure that
no aberrant death sentence is affirmed.” Bland , 958 S.W.2d at 665. B ecause “‘the p roportionality requirement

on review is

intended to prevent caprice in the decision to inflict the [death] penalty, the isolated decision of a jury

to afford mercy does not

render unconstitutional death sentences imposed
on defendants who were sentenced under a system that does not create a substantial risk of-8-

arbitrariness

or caprice.’” Hall , 958 S.W.2d at 699 (quoting Gregg v. Georgia , 428 U.S. 153, 203 (1976)) (alteration in original).

As we have previously explained in Bland , comparative pr oportionality rev

iew is not a rigid, objective test. See 958 S.W.2d at 668; State v. Cazes , 875 S.W.2d 253, 270 (Tenn. 1994). We do notemploy a mathemati

cal formula or sc

ientific grid, “nor are we

bound to consider only those cases in which exactly the

sameaggravating circumstances have been found by the jury.” State v. Cribbs , 967 S.W.2d 773, 790 (Tenn. 1998) (citing State v. Brimmer , 876 S.W.2d 75, 84 (Tenn. 1994)).

Because our comparative

proportionality re

view is based on the precedent-seeking method,
our first task is to identify th

e pool of similar ca

ses, which includes all cases in which the defendant is convicted of fir

st-degree murde

r and in which a ca

pital sen tencing hearing was actually conducted. See Bland , 958 S.W.2d at 666. After identifying a pool of similar cases, “we consider a multitude of variables, some of

which were listed in Bland , in light of the experienced judgment and intuition of the members of this Court.” See Cribbs , 967 S.W.2d at 790. Selection of similar cases from the general pool is, of course, not an exact science, because no two cases are identical with respect to either circumstances or defendants.

With respect to the circumstances of the offense, the relevant factors considered by this Court include, butare not limited to: (1) the means of death; (2) the manner of death, such as whether the death was violent or torturous; (3) the motivation for the killing; (4) the pl ace o f death; (5) the similarity of the victims’ circumstances including age, physical and mental conditions, and the victims’ treatment

during the killing; (6) the absence or presence of premeditation; (7) the absence
or presence of provocation; (8) t h e absence or presence of justification; and (9) the injury to and effects on non-decedent victims.

With respect to comparing thecharacteristics of the defendants, the following factors were listed in Bland

as relevant: (1) the defendant’s prior criminal record or prior criminal activity; (2) the defendant’s age, race, and gender; (3) the defendant’s mental, emotional or physical condition; (4) the defendant’s involvement or role in the murder; (5) t he defendant’s cooperation with authorities; (6) the defendant’s remorse; (7) the defendant’s knowledge of helplessness of victim(s); (8) the defendant’s capacity for rehabilitation. O

f course, these

factors are not

exhaustive, and t

his Courtmay consider other factors in comparing the characteristics of the defendant with other defendants in the

pool of cases. Applying these factors, we no te th at the proof in this case reflects that the victim was senselessly

executed by a gunshot

wound to the back of his head. It is clear that one motivation for th e killing was the facilitation of escape from lawful custody and the avoidance of a rrest an d prosecution. The victim was a uniformed pol ice officer a cting in his officia l capacity as a transportation officer. The record indicates the presence of premeditation as the appellant returned to the treatment room, a

fter searching

the dentist’s offi

ce for money, to e

xecute the police officer, and because the officer was unarmed and lying face-down on the floor while unconscious, there can be no doubt that the appellant acted totally without provocation or any conceivable justification. In addition, after the deputy was rendered unconscious, he could offer no impedi m ent or further-9-

obstacle of any kind to the appellant’s escape plan. During the course of the shooting, the appellant placed in danger the lives of at least four other people.

The appellant, a then

24-year-old Af

rican-America

n male, does hav e a history of criminal activity, includi ng con victions for aggr avated burglary

, robbery, forge

ry, and was then c

urrently
ser ving a sentence for felony escape, assault, and contributing to the delinquency of a minor. Although the defense pr ese nted expert proof to establish that the appellant may have been in a dissociative state during the killing, the proof also shows that the appellant does not suffer from any major psychological or psychiatric illness. The appellant did display signs of remorse, but although the appellant’s for

ensic psychologist

found his remorse

“genuinely sincere,” the trial judge made a specific finding that he found the appellant’s remorse to be insincere. The appellant, to the extent that it can be cons

idered “cooper

ation,” did plead g

uilty on the day of trial

and waived his

right to
a sentencing jury. Moreover, n otwithstanding any other mitigating evidence presented by the defense at thesentencing hear ing, the record d

oes not demonstrat

e a strong likelihood or potential for rehabilitation.

In Statev. Wor kman , 667 S.W.2d 44 (Tenn. 1984), a jury imposed, and we upheld, a sentence of death for a defendant who shot and killed a police officer followi ng his robbery of a

fastfood restaurant. The defendant, who had been apprehended by police officer

s almost immediately after the robbery, broke free from their lawful custody and fired his pistol at the officers in an attempt to escape. The de

fendant hit two of t

h e officers and k

illed one. An examination of Workman reveals that all four of the ag gravating circu

mstances presen

t in that case

are also present in this case, includi

ng the kil li ng of a police officer, a killing made during his escape from lawful custody, and a killing made “for the purpose of avoiding, interfer ing with, or preventing a lawful
a rrest or prosecution of

the defendant or

another.” Furthe

r, the jury found th

at th e defendant’ s actions in Workman presented a substantial risk of death to two or more persons othe r tha n the victim.

In addition, the defendant in Workman , like the appellant in this case, claimed to remember only “‘bits andpieces’” of the episode, although the Workman defendant rela ted his memory loss to dr u g use rather than to a dissociative state. Also like the appellant in this case, the Workman defendant had prior convic

tions for assault a

nd burglary, altho

ugh Phil ip Workman

had an additional conviction for selling drugs.

The appellant claims t

hat State v. Workman should not be consid ered in the propo

rtionality review because there was no significant discussion in t hat case of the proportionality issue. We disagree. In conducting proportionality review, we have an obligation and a duty to examine all of the cases in the applicable pool irrespective of whether the issue of proportionality was thoroughly discussed in the reported opinion. In fact, when reviewi ng the case s in which a life sentence was imposed after a hearing, one will not find a written opini on discuss ing proportionality , and yet, it
w ould be absurd to argue that these cases should not be considered in weighing propor tionality

. Moreover, “[ b]ecause

we do not find it necessary in every case to compare in writing, detail by detail, all the specific cases or circumstances which are considered

in our proportiona

lity review, it-10-

does not follow . . . that we h

ave failed to per

form an effect

ive comparative

proportionality

review as outlined.” State v. Cazes , 875 S.W.2d 253, 270 (Tenn. 1994) (emphasis in original).

Our review also rev

eals several oth

er cases, though

certainly not identical,

that contain many circumstances that are similar to the appellant’s crime and circumstances. In State v. Taylor , 771 S.W.2d 387 (T enn. 1989), a 21-year-old defendant was sentenced to death after killing a prison guardwhile attempting to escape from prison

. The record in the Taylor case reveals that the defendant suffered from a history of mental illness, had been incarc erated in a state facility for prisoners with psychiatric prob lems, an d was taking several anti-psychotic drugs, although there was
no evidence that the defendant took these dr ugs on th e day of the murder. There was also expert testimony that

the defendant committed the murder while in a psychotic episode, although many of the symptoms were also

consistent with ant

i-social persona

li ty di sorder, a disorder shared by the appellant in this ca

se. A sentence of

death was imposed

by a jury and uphel

d by this Court.

In State v. Van Tran , 864 S.W.2d 465 (Tenn. 1993), the 19-year -old d efendant killed two victims after previously shooting each and disabling them. In one case, the defendant sh

ot the victim once, thereby disabling her, and then late r returned afte

r searching for

valuables in the r

estaurant to shoot her again in the back of the head while she lay on the floor. Furthermore, the victim in Van Tran didnothing to provoke t he attack, and e

ven though she was

still conscious, she

didnot provide any impediment to

the defendant’s course of action. The Van Tran defendant, unlike the appellant in this case, had no significant history of criminal activity. Nevertheless, a jur y imp osed the sentence of death, and this Court found the penalty not to be disproportionate.

In State v. Harris , 839 S.W.2d 54 (Tenn. 1992), the defendant received the death penalty

for two murders, one of which involved a night security guard for a Gatlinbur g hotel. The defendant cl ubbed the security guard unconscious, dragged him into a motel suite, and later fired a bu lle t betweenthe guard’s eyes while the guard was lying on the floor unconscious. The guard offered no provocation or obstacle

to completion of the criminal transaction. This Court affirmed the sentence of death.

In State v. King , 694 S.W.2d 941 (Tenn. 1985), a 32-year-old defendant robb ed a tavern while on probation for o

ther offenses. I

n the course

of the robbery, the defendant ordered the tavern
owne r and three ot her persons to lie face-down on the floor, and after robbing the victims, the defendant put a bullet through the back of the head of the tavern owner. Again, the tavern owner offered no resistence or obstacle to the completion of the robbery. A jury sentenced the defendant to death, and that sentence was sustained on appeal by this Court. Like the appellant’s case, the jury in King found the (i)(3) aggravator of great risk of death to two or more persons other than the victim.

In State v . Dicks , 61 5 S.W.2d 126 (Tenn. 1981), a second-hand clothing store owner was knocked unconscious with a severe blow to the head and robbed by the defendant. At some point while the victim lay unconscious on the floor, the de fendant sli t his throat. The jury imposed the death penalty, which was affirmed by this Court.-11-

The appellant relies

heavily on the fac

t that he expresse

d remo rse and “cooperate d” with authorities. Ignoring the s pecific finding of the trial court that the expressions of remorse were insincere, we note that his remorse, even if true, does not render the sentence of d

eath in this

case disproportionate. For example, the d efendant in Bland also expressed significant remorse. The Bland defendant, moreover, turned himself over to the Memphis Police Department and gave a detailedconfessio

n. Even despite the greater cooperative efforts by the defendant in Bland , this Courtheld that the imposition of the death penalty in that case was not disproportionate

or arbitrarily applied. One may likewise look to Van Tran , wherein the def endant expressed re morse for his crime and gave greater cooperative efforts than are present in this case

. The appellant further

ar gues that the deat

h penalty is disprop

ortionate in this ca

se, in part, because he is a youthful offender. Although we are not willing to hold that a 24-year-old defendant is a “youthful” offender f or mitig ation purposes, ou r cases reveal

that the punishment

in this case is certainly not arbitrary or disproportionate because of the appellant’s age. See State v. Cauthern , 967 S.W.2d 726 (Tenn. 1998) (upholding a death sentence for a 19-year-old defendant who murdered two victimswhile burglarizi ng their home); State v. Bland , 958 S.W.2d 651 (Tenn. 1997) (upholding a death sentence for a 19-year-old defendant who cha sed, shot, and killed the victim); Statev. Van Tran , 864 S.W.2d 465 (Tenn. 1993) (upholding a deat h s entence for a 1 9-year-old defendant shot and killed a 74 year-old victim during a robbery); State v. Taylor , 771 S.W.2d 387 (Tenn. 1989) (upholding a death sentence for a 21-year-old defendant assaulted the victim with a knife and the victim died from internal bleeding). While many of these cases also applied the “heinous, atrocious or cruel” aggravator—an aggravator not found in this case—we held tha t the death sentence in each of these cases was neither arbitrary nor disproportionate, notwithstanding the age of the offen

ders. Although the cases in the comparative pool are similar in many aspects to the present case,
no case in the pool is exactly the same as the appellant’s case. The appellant cites the application of the “heinous, atrocious or cruel” aggravator in many of these

other cases as on

e major example of dissimilarity. While we acknowledge that proportionality review is not an exact science, our function in this regard is not to overturn a death sentence unless we can locate a case that stands on all fours with the case at the bar. Such a task, of c ourse, is both impra

cticable and impossible because no two such cases exist. As wehave stated on multiple occasions, “No two cases are alike, and no two defendants are alike.” Harris , 839 S.W.2d at 77.
Instead, our task is to review the circumstances of the present crime and defendant and, when comparing these

circumstances with those present in prior cases, we seek to determine whether the present case, taken as a whole, plainly lacks circumstances found in similar cases in

which the death penalty has been impos ed. S ee Bland , 958 S.W.2d at 665. In so doing, our role in comparative proportionality

review is to identify aberrant death sentences and to prevent the arbitrary application of the death penalty.

In this case, we have tried to identify cases from the comparative pool in which the defendant committed a murder while attempting to escape from lawful custody or in which a law-enforcement officer was murdered

while performing

his or her officia

l duties. We have also tried to identify cases-12-

in which the murder

ed victim was totall

y helpless, uncons

cious, or otherwi

se presented

absolutely
no impediment to the defendant’s desired course of action. Based on our re view of these several
cases in which the death penalty was upheld, we are unable to say that the appellant’s case, taken
as a whole, is

plainl y lacking in circumstances that have previously justified death sentences. Accordingly, we hold that the de ath sentence imposed in this case was neithe r disproportionat

e nor arbitrarily applied.
CONCLUSION

In conclusion, we have carefully reviewed the record of the sentencing hearing in this case, the briefs and

arguments of the parties, and the applicable legal authority. Based on this extensive review, we hold that the se ntence of death

in this case is not dis

proportionate or

arbitrarily

applied given the nature of the crime and the ci rcumstances of the appellant. We further hold that the evidence presented establishes, in a light most favorable to the State, the presence of each aggravated circumstance beyond a reasonable doubt, and that the a ggrav ated circumstances outweigh any mitigating circumstances beyond a reasonable doubt. The judgment of the Court of Crimin al Appeals, which sustained the death sentence imposed by the Fayette County Circuit C ourt, is affirmed. It appearing fr

om the record tha

t the appellant is in

digent, costs of this appeal are assessed to the State of Tennessee.