# FILED
May 17, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk 

### IN THE SUPREME COURT OF T ENNESSEE

AT KNOXVILLE (HEARD AT NASHVILLE)

FOR PUBLICATION STATE OF TENNESSEE, ) Filed: May 17, 1999 ) Appellee, ) Hamblen County ) v. ) Hon. Lynn W. Brown, ) Judge LEONARD EDWARD SMITH, ) ) Appellant, ) Supreme Court ) No. 03S01-9710-CC-00129

FOR APPELLANT : FOR APPELLEE: J. Robert Boatright John Knox Walkup Kingsport, Tennessee Attorney General & Repor ter Larry S. Weddington Michael E. Moore Bristol, Tennessee Solicitor General Amy L. Tarkington Senior Assistant Attorney General Nashville, Tennessee H. Greely Wells, Jr. District Attorney General Second Judicial District Blountville, Tennessee



## O P I N I O N

TRIAL COURT AND COURT OF CRIMINAL APPEALS AFFIRMED. DROWOTA, J.1 Tenn. Code Ann. § 39-13-2 06(a)(1) ( 1997 Repl.) pr ovides as fol lows: “[

w]henever th e death penalt

y is i mposed for first

degree murder and when the j udgment has become final i n the trial court, t he defendant shal l have the right of direct ap peal from the t rial co urt to t he Court of Criminal Appeal s. The affir mance of the convict ion and the sen tence of death shall be automaticall

y revi ewed by the Tennessee Supr eme Court. Upon the affi rmance by the Court o f Criminal Appeal s, the cl erk shall do cket the case i n the Supreme Court and th e case shall proceed in accor dance with the T ennes see R ules of A ppellate P rocedu re.”

2 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 argumen t.” -2- In this automatic appeal, 1 the defendant, Leo nar d Edward Smith, raises
numerous challenges to the decisi on of the Court of Criminal Appeals whi ch affirmed his sentence of death for the 1984 murde r of Novella Webb. After carefu lly examining the entire record and the law, includ ing the thorough opinion of the Court of Criminal Appeals and the briefs of the defendant and the State, this Court entered an Order limiting review at oral argument to the following three issues: 2 (1) Whether the trial court was corr ect in allowing the defenda nt t o co nt rol the presentation of mitigating evidence and to waiv e closing argument against counsel’ s advice; (2) Whether the admitta nce of victi m impa ct testimony and argument at the sentencing hearing constituted reversible error; (3) Whether the sentence of death is arbitrary or dispropor tionate in violation of Tenn. Code Ann. § 39-13-206(c)(1)(A)-(D) (1997 Repl.).
After fully considering th e record and thedefend ant’s cla ims, we conclude that
none of the alleged errors have merit. Contraryto Smith’s assertions, the trial court had no authority to overr ide the will of a competent and informed defe ndant and force Smith to present mitigation evidence and closing argument in his capital sentencing hear ing. Moreover, the trial court did not err in allowing the State to present victim imp act evidence and argument during the capital sentencing hearing. Finall y, th e evidence support s the jur y’s findings as to the a ggravating and mitigating3 Smith had left Angela O’Quinn al ongside the r oad a short di stance from Webb’s store. -3- circumstances, and the sentence of death is not arbitrary or disproportionate to the sentence im posed in similar cases, consider ing the nature of the crime and the defendant. Accordingly, the judgment of the Court of Criminal Appeals upholding the defendant’s sentence of death is affirmed.

BACKGROUND In 1984 the defendant, Leonard Edward Smith , his friend, David Hartsock, and his girlfriend, Angela O’ Quinn, robbed two small g rocery stores in r ur al S ullivan County. Armed with a .32 caliber pistol, Har tsock entered Malone’s Gr ocery alone, while Smith and O’Quinn waited for him outside the store in Smith’s car. During the
course of the robbe r y, Hartsock shot and killed John Pierce. The trio left Malone’s Groceryand proceeded to Webb’s store near the Carter-Sulliv an County

line. Both Smith and Hartsock entered Webb’s store. 3 Smith was carrying the gun,and during the robbery, he shot and kil led Novella Webb. The victim and her husband ow ned and operated the store.

The def end ant was charged wi th two counts of first degr ee murder for the killings of Pierce an d Webb. The offenses were joined for trial, and, at Smith’s request, ve n ue for the trial was changed from Sullivan to Hamblen C ounty. Smith
was convicted on both counts of first degree felony murder. At theconclusion of the proof, the State withdrew i ts notice of intent to s eek the deat h penalty with respect to the Pierce murder, and the tr ial court imposed a

life sentence. However, the jury4 Prior to the thi rd resentenci ng hearing, the tri al judge deni ed a motion for r ecusal and sua sponte chan ged the ve nue from Ham blen t o Joh nso n Co unty. T he C ourt o f Crim inal A ppe als granted an ext raordinar y appeal, found that the trial court had err

ed by changin g venue withou t the defendant’s consent, but concluded that

the refusal

of the trial j udge to recuse hi mself was not error. State v. Sm ith , 906 S.W .2d 6 (Tenn. Crim. Ap p. 1995). -4- imposed a senten ce of death for the Webb murder . On his fi rst direct appeal, this Court affirmed Smith’s conviction and life sentenc e fo r the killing of Pierc e, but reversed Smith’ s con viction of first degree murder and sentence of death for the Webb murder. Concluding that the offenses should not have been joined for trial and also finding prosecutorial mi sconduct during finalargument, this Court re versed and remanded the case f or a new t rial. State v . Smith , 755 S.W.2d 757 (Tenn. 1988) (“Smith I”).

Smith was re-tried and again convicted of first degree felony murder and sentenced to death for the Web b killing. On the se cond dir ect appeal, this Court affirmed the conviction, but aga in vacate d the death sentence, finding that the jury had b een improperly allowed to consider the life sentence imposed for the Pierce murder in considering whe

ther or not Smith should be sent en ce d to death for the Webb murder, and that the felony suppor ting the conviction of fir st degree murde r had been improperly used to establish the felony murder aggravating circumstance in violation of State v. Middlebrooks , 840 S.W.2d 317 (Tenn. 1992). The case was remanded to the trial court for a thi rd sentencing hearing. See State v. S mith , 857 S.W.2d 1 (Tenn. 19 93) (“Smith II”).

This case is Smith’s appealfrom the third sentencing hearing which was held in Hamblen County. 4 The State again sought and obtai ned the death penalty for the murder of Novella Webb. The S tate introduced very little proof regarding the5 While trial strategy

is a matter within t he discretion of the di strict attorney , we note t hat the State shoul d offer some proof regar ding the ci rcumstances of the off ense in it

s case-in-chi ef when seeking the deat h penalty at a resente ncing heari ng. The proof need not be as detail ed as that offered at the guilt-inno cence phase of the trial; how ever, some proof is es sential to en sure bo th indivi dualized sentencing by the jury and effective comparative pr oportional ity

review by

the appellate c ourts. See State v. Nic hols , 877 S.W .2d 7 22, 7 31 (T enn . 199 4)(re jectin g a de fend ant’s claim that p roof regardi ng the cir cumstances of the offense is not admissibl e at resentenci ng hea rings and h olding that s uch proo f is ne ces sary to prov ide ind ividua lized s ente ncin g). In th is case, the defen dant offered his statement which incl uded a descript ion of th e circumstances of t he offens e.

6 The aggravatingcircumstance now provi des:”[t ]he defendant was previously convict ed of one (1) or more fel onies, ot her than the present charge, whose statutory el ements involve the use of violence to the pers on.” -5- circumstances

of the offense at this third sent encing hearing. 5 After waiving openi ng statement, the State introduce d p roof to establish the singl e aggravating circumstance upon which it relied to support impositi on of the death penalty -- “[t] he def e ndant was previously convicted of one (1) or mor e felonies, other than the presentcharge, which inv olve the use or threat of v iolence to the person.” Tenn. Code Ann. § 39-2-203(i)(2) (1982 R epl.) [currently Tenn.Code Ann. § 39-13-204(i)( 2) (Supp. 1998)] 6

The State’s proof consisted of copies of indictments and judgments re flecting that the defendant had be en co nvicted of robbery in C arter County on October 13, 1980, and on February 21, 1985, and that the defendant had been convicted of f irst degree murder for the killing of John Pierce on March 20, 1985. The reference to the lifesentence imposed forthe Pierce murder convi ction had been redacted from the copy of the judgment passed to the jury. The State also introduc ed the judgm ent which established that the defendant had been con victed of the first degree murder of the victim in this c

ase on August 23, 1989 . With respect to each of the se convictions, the State offered identifica t ion testimony to establish that Leonard-6-

Edward Smith is the same person who was previo usly convicted of the r obbery and murder offenses.

As its final witness, the State called Katy Maho ney, the daughter of the victim in this case. Mahoney testified that her father and mother had operated the country store Smith robbed for

many years and that her mother had been fifty-nine-years-old when she wasmurdered. Mahoney testifiedthat her father was seventy-eight-yearsold at the time of the robbery and mur der and that his ribs hadbeen broken during t he episode when he was pus hed into a trash can. Accord ing to Mahoney , he r father’s health had declined “drasti cally” after the robbery and murder. He was never able to work again and eventually sold the store. He died the nex t year from a brain tumor. Wh en asked how the family had been affected by her mothe r’s murder, Mahoney

testified that the murder “w on’t go away,” that “w

e live with it al l the time” and that “it’s caused problems now for elev en years.” The State

rested its case-inchief at the concl usion of Mahoney’s testimo ny.

In mitigation the defense called Su llivan C ounty Sheriff Keith Carr, who in 1984 had been the detecti ve in charge of investigating the Webb murder. Shortly afterhis arrest, Smithhad given Sheriff Carr a statement recountinghis involvement in the murders of both John Pierce and Novella Webb. The entire statement, which the detective read to the res entencing jury at the r

equest of defense counsel, is set forth be low.

I, Leonard Edward Smith, am giv ing this statement of my ow n free will and without any threats or promises being made to me. On Mon day, May 21, 1984, I was with my girlfriend Angi e O’Quinn and Da vid-7- Hartsock, and, we went and got some liquor and w ent to a road near the Sullivan-Carter C

ounty line. We parked and were just drinking and talking and smoked some j oints. Whi le we wer e on that road

in my blackFord Pinto which I had painted black because it used t o be orange, David said “Get out, I want to talk to you .” He and I got out and walked a ways from the car w here Angie couldn’t hear us talking and David said, “I can get us a l ittl e bit of money here at this store.” He said, “It’s the store down at the county li ne.” I asked him if it wa s Shorty M alone’s a nd he said , “Yes.” Ang ie and I dr ove David do wn there, and let him off a little way s from the store. I parked o n a lit tle paved road beside the store. Dav id had a .32 caliber

c hrome-plated pistol with him. The pistol w as his pistol. I hea rd seve ral shots fired and j ust a fewseconds later David c ame running around the store. David jumped into the car and said, “Get the hell out of here, I had to shoot him.” I figured it was Shorty because he ran the store. We dr ove out the road that goes b e side of Malone’s Grocery and it dead ends and you ca n turn left to the Wautauga area, or right back to Sullivan County. We turned onto the Wautauga Highway and drove to what is known as Mountain Road. I asked David if he sh ot the man, and he said, he shot him one time and the man pulled a gun and starte d shooting a t him. I don’t remember if he said what money he got. I drunk some more liquor, and made Angie get out of the car. I started drinking and was just going to drive us o ut of the mountai n. We came out at some store, and I turned left and,drove un til I realized I was going to [sic] wrong way, and I pulled it in at Webb’s Store to turn. I stopped the car at Webb’s and David jumped out, and Iran in the store behind him. David ran and jumped o n the counter, and k n ocked the old man over and yel led to me to, “get that bitch” referring to an old woman at the end of the counter. I start ed towardsher, and she started throwing things at me and started spraying paint on me. I fired one shot just to scare people, b ut, the old woman jus t k ept spraying orange paint and came towards me. I couldn’ t see because of the paint and I held thegun up and apparently the old la dy was trying

to get the gun away

from me and it we nt off. We ran from the store when I fired the second shot. I didn’t r eally know

that I had shot her until we heard it later on the news. When we were in Webb ’s Store the old man was hollering, “help m e, help me,” an d hollering f or his wife. The old woman never did say anything that I remember. I know that bef ore we left the store, some

man came up to the door, and I told hi m to get out of there. I didn’t get any money from either

store, and David didn’t say if he did or not. Dav id and I left Webb’s and went back up towar ds Mountain Road, and picked Angie up. I told her we had to get o ut of there, and we drove down towards Underwood Park, and setthe car on fir e. David cut a hose next to the carburetor and set the car on fire. David, Angie and me took off on the trails, and really didn’t know which way to go. We cam e out at a h ouse on Indian Creek. It w as the Johnson residen ce bec au se my da d h ad so ldth em th e h ou se . We didn’t go to the house until late l ast night, and Angie got Gladys Sh eets to take us to the home where we were arrested this mornin g. I had-8- never been to the house before but had been in the area. Whe n Gladys drove us to Dennis Co ve, she sai d she tho ught we did it. I had taken my shi rt and wrapped my feet so I could walk and I think I left it in Gladys’ car or at the house. Gladys had told us that M rs. Webb, and the man at Malone’s were both d ead. We told Gladys that we didn’t do it and she said, “If you didn’t , y ou be tter keep the gun because the news said it was a .38,” and she knew we had a .32 caliber. I told David to throw th e gun out a nyway becau se I knew we had done it. He threw it out as we went over abridge, and we drov e on up to the house. We stopped at a grocery s tore, and Angie and Gladys went in and got some fo od fo r u s to tak e to t he ho us e. We fixed somethingto eat, and went to s leep, but, I felt like they knew where we w ere at. I had cut mine and David’s hair w ith a pair of scissors Ang ie had in her pocketbook

because I knew they would be looking for somebody w ith longer hair. This morning I hear d a loud no is e, and I knew we were caughtthen. I told Angie, “I’ m going out, and you come o ut too, so we won’t get hurt.”Somebody had yelled for us to come out, and David wentout first. All I know is that ev erything didn’t tur

n out the way it w

as supposed to, and it shouldn’t have h appened. I am sorry for what happened, because I know I am a thief, but, I don ’t think of myself as a murderer. This is all I know to tell you abo ut what happened.
On cross-examination, Sher iff Carr said that Webb has been killed approximately forty-five minutes after Jo hn Pierce, and he estimated that the drivi ng time from Malone’s Store to Webb’s Store is about thirty minutes. Sheriff Carr had examined the murder scene at Webb ’s store and had searched for a bull et in apool of blood aboutan inch deep by using a vegetable strainer. In his search, Sheriff Carr discovered a markon the wall behind the counter at Webb’s store which had been caused by a bullet striking the wall. He also had observed the victim’s body and said that the bullet which caused death entered at the victim’s rig ht nasal passage. The .32 calibe r gun us

ed in the Webb murder

was fo und undernea th a railroad bridge. Orange paint spots were vi sible on the gun when it was recovered, and it had

six live rounds in the chamber. Accor ding to Sheriff Carr, the r oute Smi th claime d to have driv en after le aving W ebb’s sto re was alon g a curvy, mou ntainou s, dirt roa d wh ic h
was very treacherous. A day or so after the murder, Sheriff Carr found the-9-

defendant’s badly burned car n e ar an area where Smith had been camping with Harts ockand O’Guinn prior to the mur der. Also found at that site w ere pa rtiall y burned articles of Smith’s clothi ng and strands of Smith’s and Hartsock’s hair which had been c ut to disguise their appear ance. Sheriff Carr testified that Smith, Hartsock, and O’Guinn were arres ted on May 23, 1984, while hiding in a home in an isolated area of Dennis Cove. Glad ys Sheets, oneof Hartsock’s relativ es, had driven the trio to this location and had stopped along the way to allow O’Quinn to purchase food and camping supplies. A l ive .32 calibe r r ound was found in Smith’s pocket when he was arrested. Smith’s and Hartsock’s hair had been cut very short. At the time of the Webb murd er, Smith was twenty-three-years old. Hartsock and O’Quinn
were eighteen or nineteen year s of age. Though S mith sai d he felt remorse , Sheriff Carr testified there was nothing indi cative of remorse in Smith’s demeanor when he gave the statement.
During the cross-examinatio n of Sheri ff Carr, a jury-out heari ng was held to determine the permissibility of certain questions. During this hearing Smith ordered his attorne

ys to pr esent no further proof in mitiga tion and to waive fi na l argument. After a lengthy discussion with counsel, the tri al court determined that the defendant
was competent to make the de cision as to whether to offer additional proof and argument. After f urther consultation with Smith, defense counsel hono red his request and presented no further mitigating evidence.

In rebuttal, the State recall ed Mahoney who testified that during the ele ven years since the murder, she had never s een evidence to

indicate the defendant felt
remorse. Following t hi s testimony, the State made a closing argument, but in7 Though Sm ith was not entitled to the “beyond a reasonable doubt” weighing standard since this offense was com mitted before the statute was am ended in 1989, any error in this regard inured to th e defen dant’s be nefit. State v. Bush , 942 S.W .2d 489, 506 n.10 (Tenn. 199 7). -10- a ccordance with the defendant’s instructions, defense counse l waived closin g argument.

Based on the proofsubmitted at the sentencing hear ing, the jury found that

the State had proven theaggravating circumstance beyond a reasonable doubt, and in addition, the jury found that the State had pr oven that the aggrav

ating circumstance outweighed any mitigating ci rcumstances beyonda reasonable doubt. 7 As a result, t he jury imposed a sentence of death by electrocution. The tr ial court enter

ed a judgmentin accordance with the jury’s verdict , and the Court of Cr iminal Appeals
a ffirmed. The case was then docketed in this Court. For the rea sons explained below, we affirm the judgment of the Court of Criminal Appe als.



### I. WAIVER OF MITI GATION In this Court, Smith argue s that once a defenda nt has chosen to be represented by counsel, th e decision to present mitigating proof and argument is a strategic and tactical decision for c ounsel, and not

a personal right of the defendant. Smith also argues that allo wing a defendant to waive his or her right to present mitigating proof conflict s with the heightened reliability required in death penalty
cases and impedes meaningful appellat e review. Fin ally, Smith argues that even if
a defendant represented by counsel retains the authority to waive his or her right to presentmitigating proof and closing argument, such a waiv er is vali d only if the-11-

defendant is co mpet ent to understand the rights being waived and the potential
cons equences of the waiver. Smith argues that the waiver in this case is invali d because the recor d does no t establi sh compe tency.

The State respond s that the righ t t o present a defense belongs to the defendant, and a trial court may not force a competent defendant to fo llow the advice of counsel and present a defense. The State argues that the trial court did not err because the record in this case e stablishes both that

Smith was competent and that he voluntarily and kn owingly chose t o w ai ve mi ti ga ti on an d c lo si ngar

gu me nt . We agree.

The argumentsadvanced by Smithin this appeal were r ecently considered by this Court in a post convic tion capital case, Zagorski v. State , 983 S.W.2d 654 (Tenn. 1998). There, Zagorski, the peti tioner, had al leged that defense counsel were ineffe ctive at the sentencing phase of his capital trial because they had followed his explicit instructions

and had not investigated or presented mitigating

evidence. The proof introduced at the evidentiary heari ng on the petition establis hed that prior to trial Zagorski had asked his attorneys no t to investigate or p resent mitigating pro of in the eventof a conv ict ion beca use he pr eferred a death sentence to a sent ence of l ife imprisonment. Though Zagorski’s attorneys advised him of the importance and need to investigate and introduce proof in mitigation rega rding his family background at the sentencing phase of his capital trial, he pro hibited his lawyers from contacting his family or investigating his past.-12- When the juryfound Zagorski guilty of first degree murder, he adhered to his decision and refused to allow his l awyers to present mitigating evidence at the sentencing phase of his trial. Though counsel repeatedly advised Zagorski of his right to present mitigation

proof and of the potential consequences of his decision to fo rego investigation and pr oof, Zagorski remained steadfastl y committed to hi s chosen course of act ion w ith full awareness that it very well mi ght result in a death penalty. Id. at 658-59.

In rejecting Zagorski’s claim of ineffective assistance of co unsel, this Court recognizedthat “[c]ounsel’s role in a criminal case is to assist the defendant in making a defense and to represent the defendant before the court.” Zagorski , 983 S.W.2d at 6 58 (citing State v. Franklin , 714 S.W.2d 252, 26 2 (Tenn. 1986)). However, we emphasized that “[u ]ltimately . . . the ri ght to a defense bel ong s to a defendant.” Id

. We caution ed that decisions such as “whether to forego a legally available objective because of non-legal factors are for the client and not the lawyer.” Id. “[A]lthough [a defendant] may c onduct his own defense ultim ately to hi s own detriment, his choice must be honored out of ‘that respect fo r the individual which is the lifeblood of the law.’” Id. at 658 (quoting Illinois v Allen , 397 U.S. 337, 350-51, 90 S.Ct. 1057, 1064, 25 L.Ed.2d 353 (197 0) (Brenn an, J. con curring)). Accordin gly, we concluded that counsel wi ll not be adjudged ineffective for following the decisi on of
a competent and fully informed defendant w ho chooses to forego investigation and presentation of mitigating evidence at the sentencing phase of a capital t rial. Id. at 958. In so holding, we acknowledged the importance and constitutional significance of mitigating proof in a cap ital sentencing proceedi ng. We distinguished Zagorski’s situ ation from cases in which attor neys simply fail to i nvestigate and presen t-13-

mitigating proof. Id. We emphasized that a defense attorney’s failur e to investigate and present mitigation proof g enerally is consider ed below therange of competence, but an attorney is not incompet ent if the failure to investi gate is “solely and alone” the result of the defendant’s instructions. Id.

Accordin gly, in Zagorski , we rejectedthe arguments advanced here by Smith

-- that a defendant who is represented by counsel may not waiv

e the right to present mitigating proof and thatsuch awaiver violates the heightened reliability required in death penalty

cases. Instead we held that a defendant may waive the right

to present
m itiga tion proof so long as the defendant is competen t. To aid trial courts in determining whether defendants are compete nt and fully informed at the time a waiver is given, we set forth the following procedure for use in prospective cases:
[C]ounsel must inform the trial court of the se circumstances on the record, outside the presence of the jury. The trial court must then take the following steps to pr otect the defendant’s interest s and to pr eserve a complete record: 1. Inform the defendant of his right to present mitigating evidence an d make a determination on the record whether the defendant understands this rig ht and the importance of presenting mitigating evidence in both the guilt phase and sentencing phase of trial; 2. Inquire of both the defendant and counse l whether they have discussed the impor ta nce of mitigating evidence, the risks of foregoing the use of such evidence, and the possibility that such evidence could be used to offset aggravating circumstances; and 3. After being assured the defendant u ndersta nds the importance of m iti gation, inquire of the defendant whether he or she desires to forego the prese n tation of mitigating evidence

.-14-

Zagorski , 983 S.W.2d at 660-61.
Consideringthe record in this case in light of the procedure adopted in Zagorski , Smith’s contention that he wasnot competent to waive hi s right to present mitigating proof and closing argument i s clearly witho ut merit. Although the trialcourt in this case did not ha ve the benefit of our decisionin Zagorski , the procedure utiliz ed in this case to determ ine Smith’s competence and to advis e him of the potential consequencesof his decision were substantially similar to those adopted in Zagorski

. After Smith s ta ted, “I’m ready to rest,” during a jury-out hearing, one of Smith’s attorne ys advised the trial cour t thatSmith had instructed him earlier that morning to waive mitigatio n. D efense counsel advised Smith against waiving mi tigation, but Smith continued to insist upon that course of action. When th e trial court asked if any expert psychological pr oof rai sed question about Smith’s competency, defense counsel responde d, “not anything that would justify any claim that he was incompetent I don’t feel like. If I’d felt like that before today obviously I would have made it known to the court.” At that point the trial court acc urately stated the law

as follows: Well, this is a bit of a difficult situation. In general, an attorney must represent

a client, and the rule is that the client determin es what is in his interest and what h e wants do ne, and t hen the l awy er has an obligation to, first of all, advise th e client regarding a lternatives; but, aftergiving proper and thorough advice, to foll ow the wishes of the client. Is that not corr

ect, Gentlemen?
To the trial court’s inq uiry, Smith’s attorne ys responded, “Yes, sir” and “Yes, Your Honor.” Before making a final decisio n on this issue, the trial court allowed defense counsel a twenty minute recess to confer privat

ely with Smith regarding his desire to waive mitigation. When the hearing reconv ened, defense counsel reported that they-15-

had informed Smith that they were prepared

to present mitigation pr oof, had advised him of the benefits ofpresenting the proof, and had warned him of the harm which could result if the proofwas not presented. Despi te this advice, Smith had r emained insistent that they “rest the case and waive argument.”

At this p oint, the trial court attempted to q uestion Smith to ensure that he understood his rights andthe potential consequences of his decisio n. Because the trial court had admon ished Smith earlier in the trial to speak only through his attorne ys and to refrain from speaking aloud during the testimony of other witnesses, Smith refused to be sworn and would not respond to the trialcourt’s inquiries except through his attorn eys. Smith advised his attorney to inform the tria l court that he
wan ted to rest his case and waive argument. At that point, the trial c ourt advise d Smith as follows: if you cease pu tt ing on mitigating ev idence and you instruct y our counsel to not arg ue and they do both, they don’t put on any other proof, and they do not argue in your benefit, in the court’s opinionthis jurywill almost certainly return with a

verdict of death by elec trocution. And, I guess I’ve only

seen perhaps twelve or thirtee n deat h penalty cases tried and most of them did not result in a death penalty verdict. But, from those that I h ave seen in five or six death penalty verdicts, actuallyabout half; but if your attorneys follow your instructions that will be the very likely result. Do you understand that, sir? Smith, through his attorney, answered “Yes” t o the trial court’s q uestion.

The trial court further que stioned defense counse l about the defendant’s competence. On the first occasion, counsel st ated, “Of course, I’ve known Leonard now for ten or eleven years. He’s always been competent, at least, in my opinion.” After commenting that the

defendant’s attorneys had each pr acticed law for twent

y years, the trial court inqui red once again, “And, y ou have no personal do ubts as to-16-

his competency and legal ability to make such a decision I take it?” Neither attorney expressed any doubt about Smith’s competenc e to waive mitigati on. Before recalling the jury, the trial c

ourt commented that hehad observed Smith confer with counsel and actively participate in the case and once ag ain advised Smith of his right to pres ent mitigation and of the likely consequences of the waiv er. Smith adhered t o his decision to waive mitigat ion and argument. When the jury was recalled, the defense rested.
Clearly, the record in this case i ndi ca tes that the trial court fulfil led its obligation to ensure that Smith was compete nt and fully advised of his rightsand of the likely detrimental c onsequences of waiving those rig hts before he accepted Smith’s decision. The trial court repeatedly inquired about Smith’s competence and actively invited counsel to pres ent evidence that

Smith was not competent. No such evidence was presentedby defense counsel, because, according to thei r responses to the trial court, no such evidence existed. Had such ev idence existed, we hav

e no doubt that these experienced at torneys would hav

e presented it to the trial court at the jury-out

hearing, particularl

y in light of the tri al court’s specific que stions regarding its existence. As we s

tated in Zagorski , supra , a competent defendant who knowingly and voluntarily choos

es a defen se strategy wil l not later be able to complai n about the detrimental consequences which result from the decision. The record in th is case reflects that Smith was competent and full y informed when he decided to waive his rights. Smith may not now complai n abou t the cons equences of his decision. Accordin gly, we conclude that Smith’s claim that the trial court erred by allowing him to waive mitigati on and argument is without merit.-17- 

### II. VICTIM IMPACT EVIDENCE The defendant next argues that the trial court erred by allowing the victim’s daughter to testify about the effect of her mothe r’s death on her family and by allowingthe prosecutor to mention this testimony in closing

argument. Smith asserts that victim impact testimony is barred by the federal and s tat e constitutions and by the language of the capital se ntencing statute. We disagree.
Recently, in State v. Nesbit , 978 S.W.2d 872 (Te nn. 1998), this Court held that victim impact evidence is permi ssible under both the United States and Tennessee Consti t utions. Id. at 889. In addition, we held that such evidence is permissible und er the Tennessee capital sentencing statute because it is “r elevant to punishmen t.” Id. However, we stated that “[g]enerally, victim impact evi de nc e should be limited to informationdesigned to show those unique characteristics which providea brief glimpse into the li fe of the individual who has been killed,” such as “the contemporaneousand prospective circ umstances surroundi ng the individual’ s death, and how th ose circu mstance s financ ially, emo tionally, psychologically or physically impacted upon members of the victim’s immediate fam ily.” Id. at 891. We explained that trial courts may ex

clude victim impact ev

idence which threatens to render the trial fundamentally unfair or which poses a danger of unfair prejudice, and we opined that evidence of the emotional impact of a murder on the victim’s familyshould be most closelyscrutinized. Id. As a result, we he ld th at the State should provide pretrial notice of its int ent to offe r victim impact evidence to enable trial courts to carefully supervise admissi on of such proof. Upon receiving notification, trial courts must hold8 In thi s case, the di ssent advocates the adoption of procedures uti lize d in New Jersey a nd opines that

our decisi on in Nes bit permits victim impact evidence whi ch is “whol ly undef ined, amorphous, and unduly prejudici al, a resu lt prohi bited by Articl e I, section 8 of the Tennessee Constitut ion.” The di ssent’s concl usion is puz zlin g in li ght of the f

act that the procedures adopted by thi s Court in Nes bit closely mirror those utili zed in New Jersey , with the only apparent di fference being the New J ersey req uirem ent of a w ritten victim im pact sta teme nt. -18- a hearing

outside the pres

ence of t h e jury to determine the admi ssibility of the evidence. We cautioned that victim impact evid ence should not be admitted until the trial court has determined that evidence of one or more ag gravatingcircumstances is present in the record. Id. We als o suggeste d a jury instruction for use in all subsequent cases invol ving victim impac

t proof. Id. at 892. In Nesbit , we a ls o upheld the constitutional permissibility of victim impact argument by prosec utors, but
we cautioned prosecuto rs to e xercise restraint and admonished that reversal may result if prosecutors engage in victim impact argument which is little m ore than an appeal to emotions and vengeanc e. 8 Id.

In this case, Mahoney’s testimony w as brief and is contained in approximately five pages of transcript. In sum, Mahoney told the jury that her parents were Worley and Novella Webb; that she had been their only child; that her son, the victim’s only grandchild, had been eleven years old at the time of the murder; that her pa rents had owned and operated the small grocery store in Sullivan County for a number of years; that her parents had lived in a house near to

and visible from the store at the time of the murder; that her mother had been fifty-nine at th e time she was kil led; that her father had been seventy-eig ht at the time of the murder; that her

father had sustained broken ribs when he w as p ushed during the murder; that her father’s health had st eadily d eclined after the murder; that her father had become unable to work and had sold the store after the murder;and thather father had died the next year from9 Sinc e the victim imp act e viden ce an d arg um ent in this c ase was so m inim al, the disse nt’s findin g of p rejud icial er ror is equiv alent to a ho lding t hat vic tim im pac t evide nce and a rgum ent is inadm issible in all cas es. -19- a brain tumor. When asked if she remembered the day her mother was murdered, Mahoney

said, “I’m afraid I’ll go to my grave with it.” When asked about the effect of the murder

on her family, herself, and her son, Mahoney replied, “W ell, it just won’t go away. We live withit all the time, and it’s affected us in every way. It affected my dad. It’s affected me. I mean, it’s caused prob lems now for eleven years.”
Though the trial court did not have the benefit of our decision in Nesbit in this case, it is clear that neither the victim impact evi dence nor argument viol ates the const raints outlined in Nesbit . Mahoney b riefly an d concise ly related the phys ical , financial, psychological, and emotional impact of this murder upon her family. The evidence appropriately was not admitted until the State had first introduced proof of the aggravating ci rcumstance. Clearly,this testimony did not r en der the t rial fundament al ly

unfair nor pose a danger of unfair pr ejudice. Likewise, the prosecutor’s argument in this case w as restrained and appropriat e . In fact , the prosecutor

referred to the testimony onl y once, stating, “You’ve heard how it affected the family of the only child o f Mr. and Mrs. Webb. Eleven year s later it’s still here. It won’t go away .” Accordingly, we conclude that Smith’ s complaints regarding the admission of victim impact ev idence and argument are completel y without merit. 9-20- 

### III. PROPORTIONALITY REVIEW We must nex

t consi der whe

ther the defendant

’s sent ence of d eath is disproportionate

to the penalty imposed in si milar cases , co nsidering the nature of the crime and the defen dant. Tenn. Code Ann. § 39-13-206(c) (1)(A)-(D) (1997 Repl.). In this case, the defendant argues that his sentence of death should be s et aside as disproportionate because h e did not unduly torture the victim but instead accidenta lly

shot her during the course of the robbery. A death sentence will b e considered disproportionate if, taken as a whole, the case is “p l ainl y lacking in circumstances

consistent withthose in similar cases in which the death penalty has previouslybeen imposed.” S tate v. Bland , 958 S.W.2d 651, 66 5 (Tenn. 1997). Howe ver, a sentence of death is not dispropor tionate merely because th e circumstances

of the offense ar e similar t o those of another offense for which the defendant has received a life senten ce. Id . at 665. Our role in conduc ting proportionality

review is not to assure that a sentence “less than death was never imposed in a case with similar characteristics.” Id . Ins tead, our duty “is to assure that no aberrant death sentence is aff irmed.” Id

.

In choosing and comparing similar cas es, we consider

many vari ables, some of which include: (1) the means of death; (2) the manner of death; (3) the motivation for the killing; (4) the place of death; (5) the similarity of the victim’s circumstances, including age, physical and mental conditions, and the victims’ treatment dur ing the killing; (6) the absence or presence of premeditation; (7) the absence or presence of provocatio n; (8) the absence or presence of justification; and (9) the i njury to an d-21-

effects on nondecedent victims. Id . at 667. When reviewing the char acteristics of the defend ant, we con sider: (1) the def endant’ s prior rec ord or prio r criminal activity; (2) the defendant’s age, race, and gender; (3) the defendant’s mental, emotional or physical co nd ition; (4) the defendant’s inv olvement or role in the mur der; (5) the defendant’s cooperation with authori ties; (6) the defendant’s remor se; (7) th e defendant’s knowledge of the helplessness of the victim; and (8) t he defendant’s
ca pacity for rehabilitation. Id . Comparative proporti onality review is not a r igid , objective test. Id

. at 668. We do not emplo y mathematical or scientific techniques. In evaluating the comparative proportionality of the sentence in light of the f actors delineated above, we rely a lso upon the experienced j udgment and intuition of the members of this Court. Id

.
Applying these factors, we note t hat the proof in this case reflects that the victim died from a gunshot wound to her head. She was killed while trying to protect her husband and her propert y, th e family store which s he and her husband had owned and oper

ated tog ether fo r many y ears. The defendant’s claim that the shooting was accidental obviouslywas not believed by the jury. The jury’s rejection of that claim is understandable i n light of the fact that Smith shot and killed Novella Webb within for

ty-five minu tes of the Pierce robbery an d murder for which he had driven the get-away car

. There was certainly no proof of provocation or justi fication forthis killing. While the vi ctim wastryin g to defe nd herse lf, her only weapon was a
can of orange spray

paint. The defendant

obviously realiz

ed that the victim and her elderlyhusband were helpless. According to the defendant’s ow n sta tement, Mr. Webb had been pushed into a trash can and had called out to his wife for

help during the course of the crime. Though the de fendant stated that he had been drinking-22-

alcohol and smoking marijuana pri or to the crime, there is no evidence to show that his judgment or abilities w ere impaired. To the contrary, after the murde r Smit h returned to his campsite by w ay of a treacherous mountain roa d. Once there, he and Harts oc k burned Smith’s car, cut thei r hair, and attempted to evade detection by travelingthrough the woods to Har tsock’s relative’ s home. These attempts to conceal the crime and destroy the evidence indicate that Smith was in command of his senses and not impairedby drugs or alcohol. The defendant was twenty-threeyears-old at the time of the murder, four or

five years older than both Hartsock and O’Quinn. Smith had a history of criminal activity

including robbery convicti ons in 1980 and 1985 as well as a conviction for the first degree murder of John Pierce. After he
was apprehended, Smith cooperated wit h police by givi ng a statement about the murders. Although Smith express ed remorse in his statement, the victim’s daughter testified that she had not received any statement of remors e from the defendant since the killing. There is no evidence in the record regarding the defendant’s capacity for rehabilitation. In fact, other than the defendant’s statement descr ibing the killing as accidental, there is no mitigating proof in the record since the defendant waived his right to present that proof. Considering the na ture of the crime and t he defendant, we conclude that imposition of the death penalty for the sensel ess murder of this fifty-nine-year-old woman is not disproportionate to the penalty imposed in si milar cases , and that this murder places Smith into the class of defendants for whom the death penalty is anappropriate punishment. Based u pon our review, we conclude that the following cases i n which the death penalty has been imposed have many similarities w

ith this case.10 The jury al so found a second aggravating cir cumstance in Harries , that the murder was comm itted during the course of a felony, robbery. However, under Stat e v. Mi ddleb rooks , 840 S.W.2d 317 (Tenn. 1992), t he jury shou ld not have been permitted t

o rely upon that aggr

avating circumstance to suppor t impositi on of the deat h penalty . However, t he Middl ebrooks error in Harries previously has been held to be harmless beyond a reasonable doub t under State v. Ho well , 868 S.W .2d 238 (Tenn. 1993). -23- In State v. Harries , 657 S.W.2d 414 (Tenn. 1983), the defendant, a thirty-oneyear-old man, sho

t the eig hteen-y

ear-ol d fe male stor e clerk in the head during the
course of robbing a convenience s tore. The defendant argued that the g un had gone off accidentally and claimed t hat he had intended only to rob the store. As in this case, Harries asserted that he had been under the influence of drugs and alcohol at the time of the shooting. The jury rejected the defendant’ s argument, and, as here, found him guilty of first deg ree felony murder. The jury imposed the death penalty upon finding that the defendant was previousl y convic ted of one or more felonies which involve viole nce to the person including armed robberyand kidnapping. Tenn. Code Ann. § 39-2-203(i)(2) (1982 Repl.) [currentl

y Tenn. Code Ann. § 39-13-204(i)(2) (1998 Supp.)]. 10 As in this case, Harries’ claim that the shooting w as accidental was not believed by the jury. Also, like this case , Harries’ claim of alc ohol or drug impairmentwas undermined by his calc ulated actions after the kill ing when he divided the proce eds of th e robbery wi th his fri ends and family a nd absconded to Florida.

In State v. Cribbs , 967 S.W.2d 773 (Tenn. 1998), the twenty-three-year-old defendant murdered the victim during the course of a burglary of the victim’s home. Cribbs also shot and sev erely injured the v

ictim’s husband during the course of the crime. As in this case, the defendant strugg led with one of the victims for the gun. The defendant prevailed in the str uggle and murderedthe victim. The jury i mposed11 Though the jury in Cribbs should not hav e been allo

wed to rely

upon the fel ony murder aggravati ng circumstance to supp ort imposit ion of th e death penalt y, this Court held the error to be harm less beyo nd a rea sonab le doubt. Id. at 789.

12 The jury i n How ell also found a second aggravati ng circumstance -- the murder was com mitted d uring the c ourse o f a felony, rob bery. Ten n. Code Ann. §3 9-2-203 (i)(7)(198 2 Rep l.) [currently Tenn. Code Ann. § 39-13-20 4(i)(7) (Supp. 1998)]. Under Middl ebrooks , supra , the jury should not have been perm itted to rely upon the felony murder agg ravating circumstance to sup port imp ositio n of th e dea th pe nalty, b ut this Cou rt held the e rror to be ha rm less beyon d a re aso nab le doubt. Id. at 270. -24- the death penalty upon finding two aggravating circumstances: (1) the defendant was previouslyconvicted of one or more felonies, other than the present charge, whose statutory elements involve the us e or threa t of violence to the person; and (2) the murder was committed while the defendant was engaged in c ommitting or was attempting to commit a burglary.T enn. Cod e Ann. § 39-13-204(i)(2) & (7) 11 (1991 Repl.). As in this case, Cribbs had been previous ly convicted of three serious felony offenses inc l uding two convictions of attempted second degree murder, one convictio n for aggra vated rob bery, and one convic tion for second d egree bur glary.

In State v. Howell , 868 S.W.2d 238 (Tenn. 1993), the twenty-seven-year-old defendant murdered a convenience stor e clerk by shooting him in the head du ring the course of

a rob bery. As in this case, the jury found the defendant guilty of first degree felony murder and imposed the death penalty upon findi ng that the defendant
was previousl y convicte d of one or more felonies involv ing violence to the per

son, including murder

and aggravated burg lary. Tenn. Code Ann. § 39-2-203(i)(2) (1982 Repl.) [currently Tenn. Code Ann. § 39-13-204 (i)( 2) (1998 Supp.)]. 12 Howell had been previously conv

icted of first degree murder, armed robbery, and attempted first degree murder.13 The jury i n Boyd also found a second aggravati ng circumstance, t he murder was com mitted d uring the c ourse o f a felony, rob bery. Ten n. Code Ann. §3 9-2-203 (i)(7)(198 2 Rep l.) [currently Tenn. Code Ann. § 39-13-20 4(i)(7) (1998 Supp.)]. Again, under Middl ebrooks , supra , the jury should not have been pe rmitted to rely upon the felony m urder ag gravating circum stance to support imposit ion of th e death penalt y; however , thi s Court recentl y held t he error to

be harmless beyond a reason able dou bt. State v. Boyd , 959 S.W .2d 557 (Tenn. 1998).

14 The jury i n Coleman also found a second aggravati ng circumstance, t he murder was com mitted d uring the c ourse o f a felony, rob bery. Ten n. Code Ann. §3 9-2-203 (i)(7)(197 9 Rep l.) [curr ently T enn . Cod e An n. § 3 9-13 -204 (i)(7) (Sup p. 19 98)]. [Cite t o CC A op inion b efor e this decision released depen ding upo n Cou rt’s ruling on th is application at the Ma rch con ferenc e). -25- In State v. B oyd , 797 S.W.2d 589 (Tenn. 1990) , the twenty-six-year-old defendant robbed two men at gunpoint in the parking lot of a motel where the men had gone with the defendant’s g irlfriend and another woman. As in th is case, the victim struggled with the defendant for the gun. Losing the struggle for the gun, the victim attempted to drive away from the scene and was then shot several tim es b y the defendant. The jury found the defendant guilty of felony murder and imposed a death sentence upon finding that the defendant was previ ously convicted of a felony involving violence to the person, including second degree murder. Tenn. C ode Ann. § 39-2-203(i)(2) (1982 R epl.) [currently Tenn. C ode Ann. § 39-13 -2 04(i)(2) (Supp. 1998)]. 13

In State v. Coleman , 619 S.W.2d 112 (Tenn. 1981), the twenty-two-year-old defendant shot and killed the six ty-nine-year-ol d victim du ring the cour se of a robbery. As in this case, Coleman c onfes se d to the crime. The jury found the defendant guilty of first degr ee felony

murder and imposed a death sentence upon finding that the defendant was previ ously convicted of one or more felonies which involved the use or threat of violence to the person. Tenn. Code Ann. § 39-2
- 203(i)(2) (1982 Repl.) [currently Tenn. Code Ann. § 39-13-204(i)(2) ( 1998 Supp.)]. 14 Coleman had one convictionfor assault with intent to commit robbery with a deadly-26-

weapon, three convictions for assault with intent to commit murder in the first degree, kidnapping, and robbery with a deadly weap on.

In State v. Van Tran , 864 S.W.2 d 465 (Tenn. 1993), the nineteen-year-old defendant killed the victim, a se ve nt y-four -year- old wom an durin g the co urse of a robberyof a Chinese restaurant. The defendant sh ot the victim once in the lower jaw
orneck region and once in the back of the head. As in this case, the victim was a member of the family which ow

ned the Chinese restaurant that the defendant robbed. The jury found th e defendant guilty of first deg ree felony murder and imposed a sentence of death upon finding two agg ravating circumstan ces. Tenn. Code Ann. § 39-13-204(i)(5) & (12)

(1989 Repl.) [currentl

y Tenn. Code Ann. § 39-13-204(i )(5) & (12) (Supp. 1998)].

In State v. Dicks , 6 15 S.W.2d 126 (Tenn . 1981), the twenty-one-year-old defendant was convicted of felony mur de r. Dicks and his nineteen-year-old codefendant, Strouth, robbed a store and dur ing the cour

se o f the robbery, slit the throatof the seventy-year -old male store clerk w

ho bled to death. The jury impos ed
a death sentence upon finding tw o aggravating ci rcumstances. Tenn. Code Ann. § 39-2-203(i)(5) & (7)

(1979 Repl.) [currently Tenn. Code Ann. § 39-13-204(i)(5) & (7) (Supp. 1998)]. See also State v. Strouth , 620 S.W.2d 467 (Tenn. 1981) (A separate juryalso fou nd Strouth guilty of fel ony mur der and i mposed a sentenc e of d eath , finding the same two agg ravating circumstan ces.)

In State v. Sample & McKay , 680 S.W.2d 447 (Te nn. 1985), the twenty-fiveyear-old defendants, in separate trials,were convicted of felony murder for

shooting-27-

two store clerks to death during the course of arobbery. As in this case, there was
a struggle for the gun du ring thecrime. The jury imposed the death sentence in each case, f in ding three aggrav ating circumstances w ith respect to Sample, and four aggravating

cir cumstances with respect to McKay. Tenn. Code Ann. § 39-2- 203(i)(3), (6) & (7) (1982 Repl.) (Sample); Tenn. Code Ann. § 39-2-203((i)(2), (3), (6) & (7) (1982) (McKay

) [currently Tenn. Code Ann. § 39-13-204(i)(2), (3) , (6) & (7)(1998 Supp.)(both)]. See also State v. Johnson , 762 S.W.2d 1 10 (Tenn. 1988); State v. Goad , 707 S.W.2d 846 (Tenn. 1986); State v. King , 694 S.W.2d 941 (Tenn. 1985); State v. Johnson , 632 S.W.2d 542 (Tenn. 1982).

As we have emph asized ma ny times, no two case s are iden tical, bu t the abo ve cases have many similarities with this a ppeal. In all nine of the cases, the victims
were murdered by the defendant during the course of a robbery or a burglary. Most of the victims were convenience store cler ks or were work

ing at aplace of business at the time

the killing occurred. In three cases, as in this case, there was a struggle forthe gun between the defendant and a v ictim. In at least one

case, the defendant claimed that the shooting was accidental. Like the present case, the shootings were completely unprovoked except for the victims’ efforts to gain control of the weapons. Also similar to this case, i n six of the nine c ases, the jury found that the defendant
was previo u sly convicted of one or more felonies involvi ng the use or threat of violence to the person. While it is true, as Smith ar gues, that this murder w as notas torturousas other cases in which we hav

e affirmed the death penalty, this fact does not invalidate as dispropo rtionate the penalty imposed in this c ase. Bland , 958 S.W.2d at 670 (citing cases). Moreover, we acknowledge that there are cases in which a life sentence has been imposed for similar murders or for murders that were15 For example, in examini ng the Rule 12 r eports, we di scovered a simil ar case from Jeffers on Co unty, State v. Gene Lynch , in whi ch the jury imposed a lif

e sentence and the t rial j udge com me nted on th e Ru le 12 r epo rt that the s ente nce shou ld hav e bee n dea th. Lyn ch w aived his right to app eal. The jury’s decisio n to afford merc y to Lynch do es not inva lidate Sm ith’s death sentence.

16 We have reviewed several other cases in whi ch the defendant s received a sent

ence of life imprisonment. The sim ilar cases in which the State sought the death penalty are disti nguishable f rom this case. For example, in some of these cases, the defen dant was a participan t in the robb ery and no t the perso n who a ctually shot the victim. See e.g. State v. Mona Lisa Watson , C.C.A. N o. 24 (T enn. Cr im. Ap p., at Jack son, Au gust 14 , 1991); State v. Kev in Watley , C.C.A. No. 37 (Tenn. Crim. App.,at Nashvil le, Jul y 3, 1985) . In anot her case, the defend ant was only seven teen-year s-old at the time the murd er was c omm itted. State v. Lemuel Emerson Holmes , C.C.A. No. 50 (Tenn. Crim. App.,at Jackson, March 12, 1981). Accordi ng to the Rule 12 report, the defendant in still another case chose to present sub stantial mitigating proof, unlike the defend ant in this ca se. State v. Lyons , 596 S.W .2d 104 ( Tenn . Crim. A pp. 1979 ). -28- perhaps more atrocious than the murder in this case. Id. Again, however, this does not invalidate as dispropo rtionate the penalty in thi s case. Our role in compa rative proportionality

review is to i dentify aberrant deathsentences. As we have repeatedly emphasized, the isolated decision of a jury to afford mercy does not render a death sent ence disproportionate. 15 Id. After reviewing the cases discussed abov e an d many other cases not herein detail ed, 16 we are of the opinion that the pe nalt y impo sed by the jury in thi s case is not disproporti onate to the penalty imposed for similar crimes.



### IV. CONCLUSION In accordance with the

mandate of Tenn. Code Ann. § 39-13-206(c)(1)(A)-(D), and the principles adopted in pr iordecisions of this Court, w e have considered the entire record in this cause and find that the sentence of death was not imposed in an arbitraryfashion , that th e evidenc e suppor ts the jur y’ s finding of the statutory aggravating

circumstance, and the jury’s fin ding tha t the aggravating circumstance-29-

outweighed m itiga ting circu mstance s beyond a reasona ble doub t. We have considered the defendant’s assignments of error and d etermin ed that n one have merit. With respect to issues not specificall y ad dressed her ein, we affirm the decision of the Court of Criminal Appeals , authored by Judge Joe G. Riley,and joined in by Judge Jerry L. Smith and Special Judge Chris Craft. R elevant portions of that opinion are published hereafter as an appendix. The defendant’s sentence of death byelectrocution is affirmed. The sentence shall be carried out as provided by law on the 11th day of

October, 1999, unless otherwise ordered by this Court or other pro per authorities.

_____________________________________ FRANK F. DROWOTA, III, JUSTICE
Concur: Anderson, C.J., Holder and Barker, JJ. Birch, J. - See Separate D issenting Opinion.