# FILED
April 12, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk 

### IN THE SUPREME COURT OF T ENNESSEE

AT JA CKSON

FOR PUBLICATION STATE OF TENNESSEE, ) Filed: April 12, 1999 ) Appellee, ) Hon. Julian P. Guinn ) Judge Vs. ) ) HENRY COU NTY TERESA DEION SMITH HARRI S, ) ) Supreme Court Appellant. ) No. 02-S01-9806-CC-00053 )

APPELLANT FOR APPELLEE: Shipp Weems John Knox Walkup District Public Defender Attorney General & Repor ter Charlotte, Tennessee Michael E. Moore Steve West Solicitor General West & W est McKenzie, Tennessee Peter M. Coughlan (TRIAL ONLY) Assistant Attorney Gener al Nashville, Tennessee G. Robert Radford District Attorney General



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AFFIRMED. DROWOTA, J.1 Tenn. R. Crim . P. 52(a).
2 Tenn. R. App. P. 36(b).
3 Tenn. Code Ann. § 39-13-2 07(g) (1997 Supp. ) provides in perti nent part that “[a] sentence of imp risonm ent for life witho ut the pos sibility of parole sh all be cons idered ap propriate if the state prov ed be yond a rea son able d oub t at lea st on e (1) s tatuto ry agg rava ting c ircum stan ce c onta ined in § 39-13-204(i ), and the se ntence was not ot herwise i mposed arbitrari ly, so as to constitute a gross abuse of the jury’s discretion.” -2- We granted this appeal to dete rmine whether the constitutional harmless error analysis deli neated in State v. Howell , 868 S.W.2d 238 (Tenn. 1993), applies when a jury renders

an incomplete verdict as to one of the two aggrav ating circumstances upon whic h a sentence of life imprisonment w ithout the possibility of parole is based.
Although we agree that the incomplete finding is er roneous because the jury did not apply the aggravating ci rcumstance prescribed by the General Assembly, the error does not implicate constitutional Eighth Amendment concerns because no death sentence is inv olved. Therefore, in the contex t of this appeal from a sentence of life imprisonmen t without the possibility of parole, the error is statutory, and the constitutional harmless error an alysis delineated in Howell does not appl y.
A statutory error i s not reversible unles s it either affirmatively

appears to have affected the result of the trial on the me rits, 1 or the error involv ed a substantial right which more probably than not affected the judgme nt or would result in prejudice to the judicial process. 2 To establish that the jury’s reliance upon the invalid aggr

avating circumstance satisfies either of these standar ds, the defendant must show that the jury grossly abused its discretion by arbitrarily sentencing her to life impr isonment without the possib ility of parole. 3 The-3-

defendant has failed to make this show ing. Accordingly, the judgment of the Court of Criminal Appeals w hich upheld her convicti on and sentence is affirmed.

BACKGROUND The defendant, Teresa Deion Smith Harri s, was convicted of fir st degree felony murder. The evidence i ntroduced at the guilt phase of the trial established that on July 30, 1993, the defendant, he r live-in boyfri end, Walter Smothers, and a neighbor, Stacy Ramsey, spent the day at the defendant’s hou se drinking tequila , whiskey , and beer, an d smoking ma rijuana. Sm others was also taking

Valium.
The defendant’s ex-boyfriend, David Hampton called her home several times throughout the day. Smothers answered the telephon e on one occasion and argued with Hampton. The conversation ended when Smothers and Hampton agreed to meet and fight. Later that evening, the de fendant, Smothers, and Ramsey left to go to Hampton ’s house. Smothers asked Ramsey to bring along his .20 gauge shot gun.
The trio departed in Ramsey’ s pickup truck, and after leav ing the defendant’s two young chi ldren at their grandmother ’s home, they drove aro und Carroll County for so metime, drinking alcohol and searching for Hampton’s hou se. The defendant testified that she knew the location of Hampton’s house but w as afraid to direct Smothers to it. At some point, they tri ed to buy motor oil for Ramsey’s truck but coul d find no store open, so they continued the search for Hampton’s house.4 The truck broke down less than one mile from Hampton’s home. -4- Eventually, at around 12 :00 a.m., the truck broke dow n on Highway 114 near Hollow Rock. 4 To obtain transportation, the defendant , Smothers, and Ramsey decided to stop the nex t vehicle that approached and take it from the driver. They discu ssed that they might be r equired to kill the dr

iver of the vehicle. Smothers believed that an approaching vehicle would be more likely to stop for a young woman, so he urged the defendant to flag down the v ehicle. She agreed, and when the headlights bec ame visible, Harris

stood on the side of the road and flagged down the approachi ng vehicle whil e Smothers and Ramsey hid behi nd the truck.
The truck, a Ford Ranger, was driven by the victim, nineteen-year-old Dennis Brooks, Jr. He had just finished his shift at Subw ay and was travel ing home at approximately 12:30 a.m. W hen Brooks stopped, Ramsey and Smothers emerged from their hiding place. Smothers held the .20 gauge shotgun o n Brooks and ordered him to get out of his truck. Ramsey forced Bro oks to lie on the ground, and the defendant ran up to Brooks, pu nched him two or three times in the back, cursed him, and told h im to lie down on the gr ound. At trial, the defendant claimed that her actions were intended to force Brooks to be quiet so that Smothers would not harm hi m. However, accord ing to nearby resident s who were awakened by th e commotion and heard the defendant shouting , the defendant’s voice sounded “mean” and “very hateful.”
Smothers demanded money from Brooks, to ok his wallet and forced hi m to get onto the back of the victim’s pickup truck. The defendant and Ramsey got into-5-

the cab of the truck. Ramsey drove and, as the truck began to move, Smothe rs decided to climb into the cab of the truck through the rear s liding glass w indow. Smothers asked Ramsey to slow down and gave the gun to the defendant to hold on Brooks while he cli mbed through the window . Testimony diverged as to what happened next. Smothers said tha t while the defendant was s till holding the gun, Ramsey accelerated, causi ng the truck to jerk and the gun to discharge and s hoot the victim in the hip. I n contrast, the defendant testified that she had given the gun back to Smothers, turned bac k around in the seat, and then hear d the gun discharge and shoot the victim in the hip. According to the defendant, Smothers told her he had accidentally shot the victim. Ball istics testimony at tr ial indicated that to fire the gun whic h was used to shoot the v ictim, a person would hav e to both pull back the hammer and press the trigger.
In any event, after being shot, the victim began to scream and cry out in pain. Ramsey, Smothers, and H arris yelled at him t o shut up. According to the defendant, Smothers initially agreed to take Brooks to a hospital but did not follow through on his promise, and i nstead the group continued to dr ive around in the country for another 20 or 30 mi nutes searching for Hampton’s house. As lights from a town became visible, the victim again began to scream for help. Afraid someone would hear the screaming, Smothers put the gun unde r the victim’s chin and fired. Smothers testified that Ramsey, the de fendant, or a voice inside his head told him to shoot the v ictim.
After the fatal shooting, the tri o continued to drive around in the area. While speeding through the town of Hollow Rock, they were pursued by a police-6-

officer, but were able to ev ade apprehension and eventually traveled back to the defendant’s home. They discussed how to dispose of the victim’s body and decided to bury his body and truck with a backhoe to which Ramsey had ac cess. However, this plan had to be abandoned because the backhoe had a flat tire, so they decided to bury the victim’s body and bur n the vehicle.

Smothers obtained an ax and a shov el from Ramsey’s home, and the defendant retrieved a butcher knife from her kitchen. Ramsey and Smothers drove the victim’s

truck to a deserted area kno wn as Haunted Bridge. The defendant followed in her car. Once there, the group decided to dismember the victim’s body to make burial easier and to gi ve the impression that “n obody around here did it.”

The medical examiner testified a t trial that the victim had died from the gunshot wound to his head, but also stated that the gunshot wound to th e victim’s hip would have resulted in excruciating pain and alone would have been sufficient to result in death due to the tr emendous amount of blood loss. The medical examiner also recounted the post-mortem mutilation of the vi ctim’s body, testifyi ng that the victim had been stabbed numerous times and that his legs, right arm, and penis had been severed from his body. The victim’s ch est cavity had been cut open and his heart had been removed and placed back inside his abdominal cavity. The medical ex aminer testified that the vi ctim’s heart had discolor ed areas on it which were c

onsistent with a person sucking blood from it.
According to Smothers, he and Ramsey each had severed one of the5 These items were recovered from the defendant’ s house after she co nsented to a sear ch. -7- victim’s legs and R

amsey had severed the v ictim’s right arm. Smothers admitted that he had removed the vic tim’s heart, but said he had done so because the defendant had told him that she “wanted his heart.” Smothers sai d that he, Ramsey, and the defendant had each held the victim’s heart and pr essed it to their lips. The defendant admitted st abbing the victim’s b

ody once and touching the victim’s heart to her lips, but she claimed that she had acted at Smo thers direction and said that she had been afraid to disobey him after h e had shot and killed the victim. The defendant otherwise denied all participation in the mutil ation.
After mutilating the vic

tim’s body, the trio r

eturned to the defendant’s home, obtained gasoline and lantern fuel, and drove the truck i nto an empty field. After removing a radio, speaker and several personal items, 5 they set the truck afire with the victim’s

mutilated body inside the c ab. Ramsey and Smothers drov e the victim’s truck to the burn site with the defendant fol lowing in her ow n car. After the fire was ignited, they

all returned to the defendant’s home.They all showered and the defendant laundered their blood-sta ined clothes.
The day after the night of the murder, the def endant and Smothers returned to the victim’s truck and, discovering it had not completely burned, again set the truck afire. They c oncocted an alibi to conceal their actions and the events of the previous night. Later that evening the three “partied” at Ramsey’s house until around 8:00 p.m. and then w ent to an establishment called C asey’s Bar and continued to consume alcohol. Ac cording to the owner o

f the Bar, the defendant was “more active”

than usual. She played pool and sang with the jukebox. She-8-

was wearing a hat

and sunglasses whic

h were later identified as belonging to the victim.
The victim’s parents had r eported him missing on the after noon of July 31, 1993, the day following the murder. While searching for the vi ctim with a helicopter, law enforcement officials spotted the smoke from his bur ning truck. An investigation follow

ed, and rather quickly, law enforcement officials arr ested Ramsey, S mothers , and the defend ant. All t hree were i ndicted and charg ed by a Carroll County g rand jury in a two count indictment with pr emeditated first degree murder and first degree felony murder. The State filed a notice of i ntent to seek the death penalty as to each defendant.
Upon request, the trial court severed the action and ordered three separate trials. The defendant was tr ied first. The venue was changed due to the magnitude of pretrial publicity. The defendant’s trial w as held in Henry County. At the end of the proof, the State elected to pr oceed on the charge of first deg ree felony murder charge. Upon hearing the proof as summarized above, the jury found the defendant guilty of first deg ree felony murder.
At the sentencing hearing , the State sought the death penalt y upon the basis of two aggravating circumstances: “[t]he murder was especially heinous, atrocious, or cruel in that it involved tor ture or serious physi cal abuse beyond that necessary to produce death;” and “[t]he murder was committed for the purpose of avoiding, interfering

with, or preventi ng a lawful arrest or prosecution of the defendant or another.” Tenn. Code Ann. § 3 9-13-204(i)(5) and (6)

(1997 Repl.).6 Taylor al so testi fied that the defendant

had been sexually abused since the age of twel ve, but because Tayl or did not wish to di sclose the i dentit y of the abuser, defense counse l did not pursue this line of

questioni ng. -9- The State relied upon the evidenc e presented at the guilt phas e of the trial. The State also called as a witness the victim’s father, who asked the jury not to impose the death penalty, but to impose instead a sentence of life imprisonment without the possibility of parol e.

The defendant testified in her own behal f and also offered the testimony of Cynthia Taylor, her sister, Dr. Phillip Carl Morson, a staff physician from We stern Mental Health Institute, and Dr. Gillian Blair,a clinical psychol ogist. The defendant expressed sorrow to the victim’s family

for the murder and said that she would not have stopped his truck if she had known it would eventually result in his death.
From the testimony of the defendant’s sister, the jury l earned that the defendant, twenty-three at the time of trial, is the middle child in a family of three, with an older sister, Taylor, twenty-eight at the time of trial, and a younger brother, eighteen at the time of trial. The defendant’s father was employed as a school bus driver in Carr

oll County and also ow ned a small engine shop. Her mother had suffered from severe rheumatoid arthr itis since shortly

after the defendant’s birth, and at the time of trial was unable to walk witho ut crutches. Because of her mother’s illness, the defendant’s grandmother ha d cared for her a great deal until the grandmother was kil led in an automobile accident w hen the defendant was twelve-years-

old. 6 The defendant had begun drinking al cohol shortly after her grandmother’s death and had become an alcoholic.-10- Though the defendant has repeatedly s ought treatment, she has been unable to successfully control the addiction. The def endant also abuses drugs, including morphine and cocai ne. At the age of fourteen, the defendant attempted to commit suicide by taki ng an overdose of Tylenol and, as a result, was hospitalized for treatment. The defend ant became pregnant and bore her first child while she w

as enrolled in high sch ool. She was able to util ize a homebound teacher to stay current

on her studies. Eventual ly the defendant returned to classes and graduated even though she continued to use drugs and alcoho l.
Following gradua

tion, the defendant again became preg nant and married Jim Harris. The defendant and Harris abused drugs regularly during their marriage which ev

entually ended in a div

orce. Thereafter, the defendant met and dated David Hampton for approx imately one year. Hampt on abused drugs and also physically abused the defendant. On one occasion, the defendant was hospitalized as a resul

t of the abuse. When her relationship with Hampton ended, the defendant began dating Smothers. Th ey had lived together for approximately two to three weeks befor e this killing occur

red.
On cross-examination Tay lor admitted that the defendant had been rebellious since the ag e of twelve, that she w ould not listen to the instr uction of her parents, and that she has made v ery poor choices w

ith regard to relations hips with men. Taylor sai d that both she and her mother had tr ied to help the defendant “in every w

ay” by seeking pr

ofessional help but that none of their efforts had been successful.-11- Dr. Morson, a staff physic ian at Western Mental Health Institute, te stified that he had treated the defendant beginni ng on January 15, 1994, after s he had attempted to commit suicide w hile incarcerated for the v ictim’s murder. At that time, the defendant was diagnosed as suffering from major depressi on with psychotic features and post-traumatic stress disorder, with post-traumatic stress disorder being the primary diagnosis. According to Dr. Morson, the traumatic event which precipitated the onset of the defenda nt’s post-traumatic stress disorder was her w

itnessing and participa

tion in the victim’s murder. In her admission statement, the defenda nt had said “I’m going to kill myself. I don’t deserve to live after what I did.”

Dr. Morson described the defendant as “a very anx ious person, a very guiltridden person, a very

distraught person, a per son who was . . . r

e-experiencing the events of last summer, was actually at times feeling like the deceased was i n the room with h er, was hea ring his v oice beggi ng; and was

driven to just extr

eme anxiety ab out this, driven to s uicidal a ttempts by this, dri ven to not want to be a live by this, over and over again, driven to the point where at times she was so distracted that she was almost not there.” Dr. Morson said the defendan t would cry and twist her hair each time the subject was brought up and felt extremely guilty “because she c

ould not stop the events that happened; that she could not stop Wa lter [Smothers ] from doing what he did; that she didn’t have the co urage to do anything about this.. . .” The defendant expressed r emorse and regret for her actions, according to Dr. Morson, and repeatedl y stated that “she didn’t know how she could go on li

ving with this .” She also attempted to commit su icide on one occasion while hospitalized at Western State.-12- Based upon an interview and evaluation of the defendant on Februa ry 18, 1994, Dr. Blair, a cli nical psychologist , diagnosed the defendant as suffering from severe depression and post -traumatic stress disor

der. Dr. Blair also testified that the defendant has substance dependence and some el ements of a personality disorder. Dr. Blair

opined that the defendant is passiv e and dependent and makes poor decisions.

Dr. Blair stated that the defendant had reported to her that she had been raped and had been sexually abused by the rapist sin ce the age of twelve. The defendant reported the abuse to her pare nts but was not believ ed. According to the defendant’s statement, the allege d perpetrator later admitted the abuse but was never prosecuted.Following the rape, Dr. Blair said the de fendant began using various drugs and attempted suicide multiple times. Dr. Blair opi ned that the defendant participated in the murder of the victim because she is dependent upon men and, as a result, followed the directions of W alter Smothers.

On cross-examination, D r. Blair admitted that any post-traumatic stress that the defendant now suffers would not h ave impacted her actions on the night of the murder, July 30, 1993. Also, Dr. Blair conceded that the defend ant’s noncompliance with her par ents’ instructions coul d be considered inconsistent with her assessment of the defendant a s a dependent personality.
Based upon this proof, the jury rejected the death penalty and imposed a sentence of life imprisonm ent without the p ossibility of paro le. The trial jud ge instructed the jury i n accordance with the lan guage of the statute with respect to-13-

the two aggravating circumstances upon which the State had relied. The verdict form reflected that the jury had found “[t]he murder was committed for the purpose of avoiding, interfering

with, or preventi ng a lawful arrest or prosecution of the defendant or another.” Tenn. Code Ann. § 3 9-13-204(i)(6) (1997 R

epl.). With respect to the second aggr avating circumstance,the verdict form indicated that the jury had found only that “[t]he murder was especi ally heinous and atroci ous.”
When the trial judge noticed the vari ation between the jury’s finding and the actual statutory lang uage of the aggravating circumstance, the followi ng colloquy occurred.

THE COURT: I notice that w here you set out the agg ravating circumstance number one that you do not have the entire aggravating ci rcumstance written out. Is there some reason? JURY FOREMAN: Well, we j ust THE COURT: Was it intended to be that you found the entire circumstance there? JURY FOREMAN: Well, just w hat I’ve got wri

tten out. THE COURT: You’ve written here that you found that the murder was especially heinous and atrocious. JURY FOREMAN: Yes, sir. THE COURT: You have omit ted that it was cruel, involved torture or serious physical abus

e beyond that necessary t o produce death. Is that what you intended for i t to be? JURY FOREMAN: Yes, sir. THE COURT: All right , but then you have found that the s econd aggravating ci rcumstance there in its enti rety is correct. JURY FOREMAN: Yes, sir. THE COU RT: Base

d upon th at you fi

xed a se ntence o

f life-14- imprisonment without the possibility of parole. Have I read it correctly? JURY FOREMAN: That’ s correct. Following this exchange, the trial judge entered a judgment in accordance with the jury’s verdict which found the defendant guilty of first degr ee felony murder and imposed a sentence of life impr isonment without the possib ility of parole.
On appeal, the defendant challenged the validity of her sentenc e and argued that she should be given a new sentencing hearing because the jury rendered an incomplete verdi ct with respect to one of the two aggravati ng circumstances upon which the sentence had been based . A majority of the Court of Criminal Appeals rejected her claim and affirme d the conviction and sentence imposed. One judge dissented from the majority decision, conclu ding that the jury had erron eously ret urned an incomple te verdict with respe ct to one of the two aggravating ci rcumstances. Applying the analysis delineated i n State v. Howell , 868 S.W.2d 238 (Tenn. 1993), the dissenting judg e concluded that the error w as not harmless beyond a reasonabl e doubt.
Thereafter we granted the defendant’s app lication for permission to appeal and now affirm the decision of the Cou rt of Criminal Appeals w hich upheld the defendant

’s conv iction of first degree felony murder a nd the se ntence o f life imprisonment without the pos sibility of parole.7 In so statin g, we note our a gree me nt with both the d efen dan t and the S tate th at the jury’s inco mp lete fin ding w ith res pec t to the (i)(5) aggr avatin g circ um stan ce w as er ror. W e also again reiter ate that “[w]here the jury r eports an i ncorrect or i mperfect verdict , the tr ial cour t has both t he power a nd duty to re direct the ju ry’s attention to th e law and return the m to the jury room with directions to reconsider their verdict.” State v. Nic hols , 877 S.W.2d 722, 730 (Tenn. 1 994). The trial court in this case fa iled t o foll ow that procedur e despite its realization that the jury’ s verdict was incomplete wi th respect t o the (i) (5) aggravat ing cir cumstance. -15- HARMLESS ERROR ANALYSIS In this Court, the defendant arg ues that she should be giv en a new sentencing hearing because the jury rendered an incomplete verdict with respect to one of the aggravating circumstances upon whic h her sentence was based. Relying upon the analy sis delineated in Howell , supra , the defendant argues that the error is not harmless.
The State concedes that the jury ’s incomplete finding with respect to the (i)(5) aggrav

ating circumstance constitutes error. Howe ver, the State asserts that the Howell analysis does not apply because the error is statutory rather than constitutional. Accordi ng to the State, the error i s harmless because it does not affirmatively appear to have affected the sent encing verdict to the defendant’s prejudice. Tenn. R. Crim. P. 52(a); Tenn. R. App. P. 36(b).

To resolve the issue in this appeal we must first det ermine whether the
error com plained of is cons titution al or stat utory. 7 The answer to this question is important because the test for harml essness of constitutional err ors differs from that for nonconstitutional err ors. First, once a cons titutional error is found, the burden shifts to the State to prov e harmlessness; the burden does n ot shift to the state for nonconstitutional err ors. James C. Scovil le, Deadly Mistakes: Harmless Error in Capital Sentencing , 54 U.Chi. L. Rev. 740,741-42 (1987). Second, the8 Chapman , 386 U.S. at 23, 87 S.Ct. at 827, (ci ting e.g. Gideon v. Wainwright , 372 U.S. 335, 83 S.C t. 792, 9 L.E d.2d 799 (1963)( right to cou nsel); Tum ey v. St ate o f Oh io , 273 U.S. 510, 47 S.Ct. 437 , 71 L.Ed. 7 49 (192 7) (right to im partial judge )); see also Arizona v. F ulmina nte , 499 U.S. 279, 111 S.Ct. 124 6, 113 L.E d.2d 302 (1991); State v. Bobo , 814 S.W .2d 353, 358 (Tenn. 1991 ). -16- standard which applies to assess the harm or prejudi ce resulting from constitutional errors is more exacting than the s tandard which applies to nonconstitutional errors. Id .; see also 3A Wright & Miller, Federal Criminal Practice and Procedure § 855 (2d ed. 1982).
For example, in Tennessee, nonconstitutional errors will not result in reversal unless the er

ror affirmatively appear s to have affected the result of the trial on the merits, or c

onsidering the whole record, the error inv olves a substantial right which more probably than not affected the judgment or would result in prejudice to the judicial process. Tenn. R. Crim. P. 52(a); Tenn. R. App. P. 36 (b); State v. Cook , 816 S.W.2d 322, 326 (Tenn. 1991); State v. Williams , 977 S.W.2d 101, 105 (Tenn. 1998). In contrast, a constitution al error will result in reversal unless the reviewi ng court is convinc ed “beyond a reasonable doubt” that the error did not affect the trial outcome. Chapman v. California , 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Howell , 868 S.W.2d at 260; Cook , 816 S.W.2d at 326; Tenn. R. Crim. P 52(a). Fi nally, and perhaps most si gnificantly, though any nonconstitutional error may be considered harmless in a particular case, there are
some con stitutio nal errors which def y harmless error ana lysis and wil l always require reversal. 8

The defendant reasons that the error i n this case is constituti onally based because, like Howell , the jury’s sentenci ng determination was bas ed in part upon an invalid aggrav

ating circumstance. There is an important and vital distinction,-17-

however, which the defendant has overlooked. Unl ike Howell , this appeal does not involve a sentence o f death.

In Furman v. Georgia , 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (19 72), the United States Supreme Court held that the death penalty may not be imposed under sentencing procedures that create a substantial risk that the pu nishment will be inflicted in an arbitrar y and capricious manner. Therefore, if a State decides to authorize capital punis hment, the federal constitution req uires that it tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty. Godfrey v. Georgia , 446 U.S. 420, 100 S.Ct. 1759, 1764, 64 L.Ed.2d 398 (1980). This constitutional responsibility requires states, as a first step, to adopt procedures to nar row the class of persons eligible for the death penalty. Zant v. Stephens , 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (198 3). Narrowin g may be acc omplish ed eithe r by providin g restricti ve definitions of first degree or capital murder or by uti lizing aggrav ating circumstances at the sentenci ng 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 aggravati ng circumstances at the se ntencing hearing. State v. Middlebrooks , 840 S.W.2d 317 (Tenn. 1992).
Once a method of narrowing i s 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 , 446 U.S. at 428, 100 S.Ct. at 1765 . A State’s death penalty scheme may not employ aggravating circumstances which-18-

are so vague that they fail to channel the sentencing decision of jurors and result in arbitrary and capr

icious sentencing. Gregg v. Georgia , 428 U.S. 153, 195 n. 46, 96 S.Ct. 2909, 2935 n. 46, 49 L.Ed.2d 859 (1976). Significantly, in the death penalty context, jury

findings of statutory ag gravating circumstances similar to the jury’s finding in this case have been held to be unconstitutionally v ague. Maynard v. Cartwright , 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 37 2 (1988) (jury imposed the death penalty upon findin g aggravating circumstance that the murder was “especially heino us, atrocious, o r cruel” and court h eld the statut ory language unconstitutionally v

ague because it did nothing “to cure the unfettered discr etion of the jury and to satisfy the commands of the Eighth Amendment”); Godfrey , 446 U.S. at 428-29, 100 S.Ct. at 1764 ( jury found the murder w as “outrageously or wantonly vile, horrible or inhuman” and the finding was held unconstitutionally vague “because there is nothing in these few w ords, standing alone, that i mplies any inherent restraint on the arbitrary and capr icious infliction of the death sentence”).
However, these Eig hth Amendment constitutional narr owing requirements and vague ness proh ibitions have not b een exten ded to ca ses which d o not invo lve the death penalty. See Harmelin v. Michigan , 501 U.S. 957, 995, 111 S.Ct. 2680, 2701, 2702, 115 L.Ed.2d 836 (1991). In Harmelin , a case involving a sentence of imprisonment for life without the possibility of parol e, Justice Scalia expl ained the Court’s reluctance to ex tend these constitutional req uirements beyond the capital sentence context as follows: The penalty of death differs from all other forms of criminal punishment, not in degree but i n kind. It is unique in its total irrevocability . It is unique in its rejection of rehabilitati on of the convict as a basic pur

pose of criminal justice. A nd it is unique,9 For p urpo ses of cla rity, we em pha size th at it is o nly the jury’s in com plete findin g in this case, “the murder was espe cially heinous andatrocious, ” which woul d raise const itutional vagueness concerns inthe death penal ty context. In contrast, the stat utory aggr avating circu ms tanc e in its e ntirety, “the m urde r was espe cially he inous , atroc ious , or cr uel in th at it involv ed tortur

e or serious p hysical abuse beyond th at necessary to produce deat h,” previ ously has been u pheld ag ainst con stitutional vag uenes s attack s in the de ath pena lty context. E.g. State v. Odom , 928 S.W .2d 1 8, 25 -27 (T enn . 199 6). W e reite rate th at un like th e jury f inding whic h wa s held constitu tional ly i nvalid i n Godfrey , supra , and the a ggra vating circu ms tanc e held cons titution ally invali d in Maynard , supra , the l anguage of our sta tutory aggravati ng circumstance is constitu tional on its face because it requires a finding of torture or serious physical abuse beyond that necess ary to produ ce dea th. See State v. Thompson , 768 S.W .2d 239, 252 (Tenn. 1989 ). -19- finally, in its absolut

e renunciation of all that is embodied in our concept of huma nity.
Harmelin , 501 U.S. at 995 -96, 111 S.Ct. a t 2702 (quoting Furman , 408 U.S. at 306, 92 S.Ct. at 2760 (Stewart, J., concurring)).
Recently in State v. Butler , 980 S.W.2d 359 (Te nn. 1998), this Court adopted Justice Scalia’s r ationale that the death penalty is unique to all other forms of punishment. As a result, w e refused to apply the narrow ing requirement adopted in Middlebrooks , supra , to proceedings in which the State is seeking a sentence of life imprisonment without the possibility of pa role. Instead we held that the constitution does not bar the State from relying upon the felony murder aggravating ci rcumstance to support impositi on of a sentence of life imprisonment without the possibility of parole even though the defendant has been convicted of first degree felony murder.
Therefore, while the jury ’s finding in this case would have implicated constitutional vaguenes s concerns had the jury imposed a sentence of death, 9 those sa me const itutiona l concern s do not ap ply outsid e the dea th penal ty context and are n ot impli cated in this ap peal fro m the defe ndant’s sentenc e of life imprisonment without the pos sibility of parole.-20- Accordingly, the j ury’s incomplete finding with respect to the ag gravating circumstance is not consti tutional error, but is i nstead an erroneous deviati on from the statutory scheme adopted by the General Assembly to govern imposition of sentences of life imprisonment without the possibility of parole. Cf

. State v. Hodges , 944 S.W.2d 346, 35 2 (Tenn. 1997) (right to instruction on nonstatutory mitigating circumst

ances derives from statute not constitution; therefore refusal to instruct on nonstatutory mitigating circums

tances is statutory r

ather than constitutional error).
Having concluded that the error is statutory rather than constitutional in nature, we must next ex plain the showing neces sary to establish that the error has affirmatively or more probably than not affected th e judgment to the defendant’s prejudice. See Tenn. R. Crim. P. 52(a); Tenn. R. App. P. 36(b). To resolve this question, we focus upon the s entencing scheme for first deg ree murder.
When a defendant is convicted of first degree murder in a case in which the State is seeking the death penalt

y, three senten cing op

tions ex ist, life imprisonment, life imprisonment w ithout the possibility

of parole, or death. Tenn. Code Ann. § 39-13-204 (1997 Repl .). A life sentence is mandator y if the jury finds that the State has not proven any statutory aggrav

ating circumstances bey ond a reasonable doubt. Tenn. Code Ann. § 39- 13-204(f)(1) (1997 Repl.) . A death sentence is appropriate if the j ury unanimously finds both that the State has proven at least one or more statutory aggrav ating circumstances bey ond a reasonable do ubt and that th e aggravating circums tances proven ou tweigh mitigating circumst

ances beyond a reasonable doubt. Tenn. Code Ann. § 39-13-10 We observe, however, that the stat utory scheme wit h regard to the manner of sentencing and appel late r

eview i n li fe wit hout par ole cases needs further cla rifi catio n by t he Legisl ature. As we have discussed, Tenn. Code Ann. § 39-13- 204(f)(2) allows a j ury to i mpose a sentence of eit her life o r lif e without

parole upon a f inding of at least one aggravati ng circumstance. There a re no required f indings or

standards for

choosing one sentence or the ot her. Thus, i n any case where at least one va lid aggr

avating ci rcumstance has been found, there are few practical means by whi ch an appellat

e court can determine whether a sent ence of li fe without

parole was a ‘ gross abuse’ of the jury’s disc retion und er § 207 (g). -21- 204(g)(1) (1997 Repl. ). However, if, as in this case, the jury

determines that the State has proven one or more s tatutory aggrav

ating circumstances, but concludes that the circumstance or ci rcumstances so proven do not outweigh mitigati ng circumstances beyond a re asonable doubt, the jury may impose a sentence of either life imprisonment or l ife imprisonment without the po ssibility of parole. Tenn. Code Ann. § 39-13-204(f)(2) (1997 Repl.). In dete rmining which sentence to impose, the statute provi des only that the jury must “weigh and consi der the aggravating and mitigating circumstances.” Id . The statute does not requir e the jury to determine that the aggravating ci rcumstances proven outw eigh the mitiga ting ci rcumsta nces by

any specific l evel of proof to impose a sentenc e of life imprisonment without the pos sibility of parole. Id

.
In recognition of the substanti al discretion afforded jurors in determining which sentence to impose, the statute governing appellate review declares that “[a] sentence of imprisonment for li fe without the possibilit y of parole shall be considered appropriate if the State proved beyond a reasona ble doubt at least one (1) statutory agg ravating circumstan ce contained in § 39-13-204(i ), and the sentence was not otherwise imposed arbitrarily, so as to constitute a gross abuse of the jury’s discretion.” Tenn. Code Ann. § 39-13-207(g) (1997 Repl.). 10
Under this statutory s

cheme, when a sentence is based in part upon one or-22-

more invalid aggr

avating circumstances , but at least one valid aggravating circumstance remains, the j ury’s reliance upon th e invalid aggrav ating circumstance is not rev ersible error under either Tenn. R. Crim. P. 52(a) or Tenn. R. App. P. 36(b) unless the defendant demonstrates that the jury grossly abused its discretion by ar

bitrarily imposing

the sentence.
Applying that standard to the facts in this case, it is clear that the jury’s reliance upon the incomple te aggravat ing circum stance is harmless error. Clea rly, one valid aggrav

ating circumstance remai ns to support the defendant’s sentence. The jury found proof beyond a reas onable doubt that “[t]he murder w as committed for the purpose of avoiding, i nterfering with, or p reventing a lawful arrest or prosecution of the defendant or another.” Tenn. Code Ann. § 39-13-204(i) (6) (1997 Repl.). The testimony of both the defendant and Smothers, who sai d that the victim was shot the second time because he began to scream for help as they drove into a populated area, support the jury’s findi ng of this aggravati ng circumstance. The defendant offers no specific argument which demonstr ates that the jury g rossly

abused its disc retion by impo sing a s entence of life imprisonment without the pos sibility of parole bey

ond her assertion that a new sentencing hearing is

necessary because the jur y relied upon the incomplet e aggravating ci rcumstance. Furthermore, nothing in the record sug gests that the sentence was imposed arbitrarily so as to constitute a gross abuse of the jury’s discretion. In sum, the defendant has fa iled to establish that the jury grossly abused its discretion by imposing a sentence of life impr isonment without the possibility of parole. Accordingly, the j ury’s reliance upon th e incomplete and invalid aggrav

ating circumstance w

as harmless error in thi s case.-23- CONCLUSION For the reasons previo usly explained, w e conclude that the incomplete finding as to the aggravating circumstance constitutes statutory error which, in this case, is harmless because the defendant f ailed to establish that the jury grossly abused its discretion by arbitrarily impos ing a sentence of life imprisonment without the possibility of parole. According ly, the judgment of the Cour t of Criminal Appeals which upheld the defendant’s conviction and sent ence is affirmed.

_____________________________________ FRANK F. DROWOTA, III JUSTICE

Concur: Anderson, C.J. Birch and Holder, JJ. Hayes, Sp. J. - Separate Concurring Opinion