# FILED
June 3, 1996 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE SUPREME COURT OF TENNESSEE AT JACKSON

STATE OF TENNESSEE, ) ) Appellee, ) Shelby Criminal ) ) Vs. ) ) ) RICHARD ODOM, ) No. 02-S-01-9502-CR-00014 a/k/a OTIS SM ITH ) ) Appellant. )

CONCURRING/DISSENTING OPINION I fully concur in the major ity’s decision affirming

the conviction in this

case. I also agree with the majority that the trial court’s refusal to admit into evidence as mitigation the testimony of Dr. John Hutson was error which requires a reversal and a remand for re-sentencing. However, I dissent from the majority’s analysis of the constituti onality and sufficiency of the evidence to support the aggravating circumstance, Tenn. Code Ann. § 39-13-204(i)(5), as amended in 1989.

AGGRA VATING CIRC UMSTANCE (I)(5) As the majority acknowledges, in this case we are presented with our first opportunity to address the constitutionality of Tenn. C ode Ann. § 39-13- 204(i)(5), which, as amended in 1989, provides that the murder was “especially1 Prior to the am end me nt in 19 89, th e sta tute p rovid ed “th at the mu rder was espe cially heinous , atrocious , or cruel in tha t it involved torture or depra vity of mind .”

2 State v. Tu ttle , 780 P.2d 1203,12 17 (Uta h 1989 ). -2- heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death.” 1
The defendant argues that the statuto ry language is unconstitutionally vague on its face. Rely ing on a decision of the Utah S upreme Court, 2 he urges this Court to construe “serious physical abuse” as physical abuse which is qualitatively an d quantitatively d ifferent and more culpable than that neces sary to accomplish the murder. Regardless of the construction of this language, he also claims that the evidence i n this record does not suppor t the aggravating circumstance.
The State responds that the statute is not vague on its fa ce because it limits heinous, atrocious and cruel, to murders inv olving torture or serious physical abuse beyond that necessary to produce death. As the statute is constitutional on its face, the State contends th at no further construction is required.

Resolution of this issue is guided by well-

settled constitutional pri nciples. The United States Supreme Court hel d in Furman v. Georgia , 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), that the death penalty may not be imposed under sentencing procedures that create a substantial r isk that the punishment will be inflicted in an arbitrary and capri cious manner. Therefore, if a State wishes to authorize

capital punishment, it is required by the federal c onstitution to tailor and apply its

law in a manner that av oids the arbitrary and capricious-3- infliction of the death penalty. Godfrey v. Georgia , 446 U.S. 420, 428, 100 S.Ct. 1759, 1764, 64 L.Ed.2d 398 (1980).
This constitutional responsi bility requires states, as a first step, to adopt procedures to narrow the class of persons eligi ble for the death penalty. Zant v. Stephens , 462 U.S. 862, 877 (1983). Nar rowing may be accompl ished either by providing restri ctive definitions of first- degree or capital murder or by utilizing aggravating ci rcumstances at the sentencing hearing. Lowenfield v. Phelps , 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988 ). In Tennessee, narrowing is accomplished by use of agg ravating circumstan ces. State v. Middlebrooks , 840 S.W.2d 317 (Tenn. 1992).
Once a method of narrowing is chosen, the standards employ ed must be “clear and objective”

and provide “specific and detailed” guidance w

hich both channels the sentencer’s discretion and makes rationally reviewable the process for imposing a sentence of death. Godfrey v. Georgia , 100 S.Ct. at 1765, 446 U.S. at 428. Indeed, the United S tates Supreme Court has recog nized that a death penalty “system could have standards so vague that they would fail adequately to channel the sentencing decision patterns of juries with the result that a pattern of arbitrary and capricious sentencing like that found unconstitutional in Furman could occur.” Gregg v. Georgia , 428 U.S. 153, 195, n. 46, 96 S.Ct. 2909, 2935, 49 L.Ed.2d 859 (1976). Therefore, in Tennessee, aggravating ci rcumstances, which ser ve as standards to guid e the sentencing jury’s discretio n, must be sufficiently clear, objective, specific, and detailed to prevent the arbitrary and capricious imposition of the death penalty. In this case, the defendant argues that the s tatutory aggrav

ating circumstance, that the murder was especially

heinous, atrocious, or cr uel in that it involv

ed torture or serious physical abus

e beyond that necessary t o produce death, without further-4- judicial construction, is unconstitutionally vague because it fails to inform the jury of what finding is necessary for imposition of the death pen alty, and therefore leaves juries, and appellate courts with the type of open-ended discretion held invalid in Furman v. Georgia , supra . I disagree. Two cas es decided by the United States Supreme Court pr ovide guidance on this issue.

In Godfrey v. Georgia , supra , a Georgia jury w as instructed in the language of the statutory aggravating ci rcumstance -- "the offense was outrageously or w

antonly vile, horr

ible or inhuman in that it i nvolved torture, depravity of mind, or an aggravated battery to the victim,"-- but its verdict only recited that the murder w as "outrageously or w

antonly vile, horr

ible or inhuman." Id ., at 422, 100 S.Ct. at 1762. The Georgia Supreme Court af firmed the jury's verdict, finding only

that the language was unobjectionable, and thus failed to rule whether the offense inv olved torture or an aggravated battery to the victim. Id. , at 426-27, 100 S.Ct. at 1763-64. The U.S. Supreme Court rev ersed the death senten ce stating: In the case before us, the Georgi a Supreme Court has affirmed a sentence of death based upon no more than a findi ng that the offense was 'outrageously or wantonly vile, horrible and inhuman.' There is nothing in these few words, standing alone , that implies any inherent restraint on the arbitrary and capr icious infliction of the death sentence. A person of ordinary sensibility could fairly characterize almost ev ery murder as 'outrageously or wantonly vile, horrible and inhuman.'
Id. , 446 U.S. at 428-29, 100 S.Ct. at 1764 (footno te omitted) (emphasis added).
More recently, in Maynard v. Cartw right , 108 S.Ct. 1853 (1988), the United States Supreme Court c onsidered a vagueness challenge to an Oklahoma statutory agg ravating circumstan ce. There, the jury imposed the death penalty upon a finding of two aggravating circumstances, one of which was the murder was “especially heinous, atrocious, or cruel.” Initially, the Court3 State v. Williams , 690 S.W .2d 517 (Tenn. 1985). -5- considered whether or not the statutory language, on its face, provided suffici ent guidance to the jury. The Court concluded that, as in Godfrey v. Georgia , the bare language of the Oklahoma st atute provided no guidance to the sentencing jury, because “an ordi nary person could honestl y believe that ever

y unjustified, intentional taking of human life is “especially heinous.” Maynard v. Cartw right , 108 S.Ct. at 1859. Moreover, the conclusion of the Oklahoma cour t that the evidence “adequately

supported the jury’s find ing”, did nothing acc ording to the United States Supreme Court, “ to cure the unfettered discreti on of the jury and to satisfy the commands of the Eighth Amendm ent.” Id . Although declining t o delineate an exclusive limiting constructi on of the heinous, atrocious, or cruel aggravating circumstance, the Court implicitly approved as constitutionally acceptable a limiting con struction which req uires “some kind of torture o r serious physical abuse.” Id

.
Accordingly, under Maynard v. Cartw right , Tenn. Code Ann. § 39-13- 204(I)(5), which, as amended in 1989, provides that the murder was “especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death” is constitutionally acceptable. To ba se imposition of the death penalty upon this aggravating circumstance, the jury must find either torture, which has been defined in this State “as the infliction of severe physical or mental pain upon the victim whil e he or she remains aliv e and conscious,” 3 or “serious physical abuse beyond that necessary to produce death.” The findings required by this statutory aggravating circumstance are both clear and specific. The aggravating circumstance channels and limits the jury’s discretio n and sufficiently eliminates the risk of arbitrary and capricious imposition of the death penalty. Therefore, in my opinion, no further judicial4 Because a new sentencing hearing i s required i n this case, the questi on of the suff iciency of the evid ence to suppo rt the aggr avating c ircum stance is moo t. See State v. Harris & Thompson , __ S.W .2d __ (T enn. 199 5)(Disc ussing r esente ncing he arings). S ince the m ajority addressed the i ssue, however, I must express my disagr eement with the majori ty’ s conclusion that the evid ence is n ot sufficien t. -6- construction is needed, and the definitions suggested by the ma jority are superfluous.
Moreover, I disagree with the majority’s conclusion that the evidence in this record is insufficient to support the aggrav

ating circumstance. 4 In this case, the evidence, including the defendant’s own statement, estab lished that the 78 year-old victim w

as accosted and pushed into her c ar during a robbery attempt. Once inside the car, the defendant pul led out a knife and “cut” the v ictim. In pleading with him to s

top, the victim addressed the defendant as “son.” The defendant became very angry, replied “I’ll gi ve you a son,” and then, i n apparent retaliation for the victim’s use of the term “son,” r aped her. When asked if the victim was aliv

e when he raped her, the defendant sai d he was “quite sure she was alive because sh e told me she had never had sex before.” Although the defendant denied any recollecti on of stabbing the victim, the medical examiner testified that the victim had suffered multiple stab wounds to her body, including penetrating wounds to the heart, lungs and live r. These wounds caused inter nal bleeding, and ultimately death, but according to the medi cal examiner, would not have resulted in instantaneous death. The medical examiner also noted defensive wounds on the v ictim’s hands, and a tear in the victim’s vag inal wall.
As previously stat

ed, “torture” was defined in State v. Willi ams , supra , as “the infliction of severe ph ysical or mental pain up on the victim while

he or she remains alive and conscious.” In this case, the defendant inf licted severe physical and mental pain upon the victim while s he remained alive and conscious. The victim w as alive when vi olently accosted, she pl eaded with the-7- defendant for mercy, but instead she no doubt experienced terror, when the defendant raped her as punishment for her u se of the term “son.” Accordi ng to the defendant’s own statement, she r emained alive and conscious throughout the rape. Defensive stab w ounds to her hands indicate that she struggled for survival as the defendant inflicted multiple penetrating stab wounds, which caused internal bleeding, and pain, but which did not cause immediate death. Though always utterl

y reprehensible, rape is not always tortur e. However, the facts and circumstances of this c ase, includingthe rape of the victim, i n my opinion, establish torture as that term was defined in State v. Willi ams , supra
. Compare State v. Cazes , 875 S.W.2d 253, 271 (Tenn. 1994); State v. Porterfield , 746 S.W.2d 441, 449-50 (Tenn. 1988). Therefore, I diss ent from the majority’s analys is of the constitutionality and sufficiency of the evidence to support the aggravati ng circumstance. In the r esult reached, and in all oth er aspects of the majority decision, I concur. I am authorized to state that Justice Drowota concu rs in this Concurri ng and Dissenting Opinion.

________________________________ E. RILEY ANDERSON, Chief Justice

CONCUR: Drowota, J.