# FILED
December 8, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk 

### IN THE SUPREME COURT OF T ENNESSEE

AT JA CKSON

FOR PUBLICATION STATE OF TENNESSEE, ) Filed: December 8, 1997 ) Appellee, ) DYER CRIMINAL ) v. ) Hon. Joe G . Riley, ) Judge GLENN BERNARD MANN, ) ) Appellant, ) Supreme Court ) No. 02-S01-9609-CC-00077

FOR APPELLANT : FOR APPELLEE: William P. Redick, Jr. John Knox Walkup Whites Creek, Tennessee Attorney General & Repor ter Peter D. Heil Michael E. Moore Nashville, Tennessee Solicitor General Charles S. Kelly Amy L. Tarkington Dyersburg, Tennessee Assistant Attorney Gener al (Trial On ly) Nashville, Tennessee Lyman Ingram C. Phillip Bivens Assistant District P ublic Defender District Attorney General Dyersburg, Tennessee (Trial On ly)



## O P I N I O N

TRIAL COURT AND COURT OF CRIMINAL APPEALS AFFIRMED. DROWOTA, J.1 Although not raised as an i ssue in thi s appeal, t he trial judge imposed a twent y-fi ve year sentence on the conv icti on for aggravat ed rape and a six y

ear sentence on t he convicti on for agg rava ted b urgla ry.

2 "Whenever the death penal ty i s imposed for fi rst degree murder and when the judgment has become final i n the tri al court,the defendant shall hav

e the rig ht of dir

ect appeal f rom the trial court to the Court of Crim inal Appe als. The affirma nce of th e convic tion and the senten ce of de ath shall be aut

omaticall y revi ewed by the Tennessee Supr eme Court. Upon the affi rmance by the Cou rt of C rim inal A ppe als, th e cler k sh all doc ket th e cas e in the Sup rem e Co urt an d the cas e sha ll procee d in acco rdance with the T ennes see R ules of A ppellate P rocedu re.” -2- In this capital cas e, the def endant, Glenn Bernard Mann, w as convicted of premeditated first degree murder, aggravated rape and aggravated burglary. 1 In the sentencing hearing, the jury fo und two aggravating ci rcumstances: (1) “[t]he murder
was especially heinous, atr ocious or cruel in that it inv olved torture or

serious physical abuse beyond that necessary t o produce death;” and (2)“[t]he murder was committed while the defendant was engaged in committing burglary.” Tenn. Code Ann. § 39-13- 204(i)(5) and (7) (1991). Finding that the two aggrav

ating circumstances outw eighed mitigatingcircumstances beyond a r easonabl e d oubt, the jury sentenced the defendant to death by electrocuti on.

On direct appeal to the Court of Criminal Appeals, the defendant c hallenged both his conviction and sentence, r aising nine claims of err or, some with numerous
su bparts. After fully considering the defendant’s claims, the Court of Cri mina l Appeals affirmed the trial court’s j udgment. Thereafter, pursuant to Tenn. Code Ann. § 39-13-206(a)(1) (1996 Supp.), 2 the case was docketed in this Court.

T he defendant raised numerous issues in this Court, but af ter carefully examining the entire record and the law, including the thorough opinion of the Court of Criminal Appeals and the br iefs of the defendant and the State, this Court, on April 25, 1997, entered an Order setting the cause for oral argument at the June term of3 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 argum ent.” -3- Court in Nashville and stating that “[i]n addi tion to the statutorily mandated issues .

. . the Court will cons ider . . . [w]hether the District Attorney’s offer of a life sentence in exchange for a plea of guil ty to capital murder and s ubsequent seeking of the death penalty upon the defendant’s rej ection of the offer violates the constitu tional rights of the defendant.” See Tenn. S. Ct. R. 12. 3

F or the reasons explained belo w, we have determi ned that the de fendant’ s co nstitutional rights were not v iolated by the State’s deci sion to seek the d eat h penalty after the defendant rejected the plea offer. M oreover, the evidence supports the jury’s findings as

to aggravating and mitigating circumstances, and the sentence of death is not dispr oportion ate or arb itrary. Acc ordingly, the defendant’s conviction for first degree murder and sent ence of death by electrocution are affirmed.

FACTUAL BA

CKGROUND Th e defendant, Glenn Bernard Mann, was convicted by a ju ry of th e p remeditate d murder of Annie Lou Wilson, a sixty- two-year-old w

idow who lived alone in her home in Dyer County, Tennessee. The evidence presented at the guilt phase of the trial established that Wilson was last seen alive on Friday night, July 2,1993, bytwo friends who gave her a ride home from theWest Tennessee Opry or “Boogie Barn.” According to the proof at trial, Wilson, along with her two friends, regularly attended the Boogie Barn on Friday and Saturday nights. Wilson could not drive and-4-

would get a rid e to t he Boogie Barn with her daughter or her friends and would usually r ide home with her friend s when the e stablishment closed at 1 1:00 p.m.

After dinner on July 2, Wilson’s daughter dropped her off at the Boogie Barn. Wilson rode home with her friends,arriving at approx imately 11:30 p.m. After making arrangementsto pick her up the next evening and w

aiting until she was safely inside her home, they left. The next day when her friends stopped by at the designated time, Wilson was not waiting for them on the porch, as was her hab it, and they were unable to get aresponse at the front door. Believing that Wilson had decided to ride with her daughter, they conti nued to theirdestination, but Wilson never arri ved at the Boogie Barn tha t evening.

Wilson’s daug hter, Lottie McPherson, al so testified that she was unab le to contact her mother

by telephone on Saturday, July 3, but assumed her mother was out visiting friends. The next da y, after attempting seve ral times more to reach her mother by phone, McPherson became co ncerned and drove to Wilson’s home to checkon her. When she arriv ed, Mc Pherson noticed that the mail had not been removed from the mailbox on Saturday . Fearing that her mother was physically ill, McPherson proceed ed to the front do or with a key r eady, but found that the door was not locked. Upon entering the house, McPherson saw her mother’s body ly

ing in the floor of the bedroom, on the left side of the bed. McPherson said her mother’s skin
was cold and there was blood a ll around her body. After s ee ing her mo

ther, McPherson went outside an d called 911.-5- Upon arriving at the scene, police found Wilson’s partially nude body on the floor to the left of the bed. Wilson was lyi ng on her back, with he r left arm over her head. She had been stabbed numerous times and severely beaten. The front ofher nightgown and panties had been torn. A large amount of blood was on her head and chest. Blo od also was on her legs and arms and at various p laces in the room , including on the carpet and bed. Investigating officers found several items near the body, including a broken ceramic cat, a brassiere, pieces of white underwear, and a box containing Wilson’s hearing aid. From the kitchen floor, officers removed a piece of linoleum which contained a bloody shoe print.

After securing the scene, officers began int erviewi ng neighbor s. Tammy Palmer, who lived four houses do wn from the victim, gave a statement and thereafter testified at trial that, as she w as leaving for wor

k on Saturday, July 3,1993, at approximately 5:00 a .m., she not iced a man walking dow n the street. He was wearing orange shor

ts and no shirt and appeared to we igh 180 to 200 pounds and be between 5'10" and 6'0" in heig ht. P almer said that when she c ame out of her house, the man stopped for a few seconds and looked up th e driveway toward her. Shortlyafter the murder, police asked Palmer if she could identify the man she had
seen from a group of photographs. Pal mer selected a person other than the defendant, but told officers she was not sure thatthe perso n in the chosen photograph was actually the man she had seen. Palmer informed the of ficers tha t she would need to see the man in person to positively identify him. At trial,Palmer identified the defendant as the man she had seen that morning. Palmer had never
seen Mann prior to the morning of the murder, and had not seen him since that time until the day of her testimony

.4 The “pause” butto n on the tape r ecorder was engaged. -6- Officers also spoke with the defendant, who lived about six houses down from the victim and was sitting on his porch the morn ing of the murder . M ann acknowledgedthat he knew the victim and said that he andhis wife were friends of Wilson and previously had eat en dinner at her

home. Mann consented to a search of his house and allowed the o fficer s to t ake a pair of tennis shoes, some s hoe strings, red shorts, and a shi rt for further testing. A few days later, the officers obtained a search warrant to collect blood and saliv a samples from the defendant.
On July 7, 1993, police investigators asked the defendant and several members of his family to accompany them to t he police station for questi oning. Although no chargeshad been brought, the defendan t was advi sed of his constitutional rights. During the initial interview, Mann denied any involvement in Wilson’s murder. Mann said that Wilson had been generous to him and his family by providing them meals and allowing themto use her phone. He claimed that he had not eve n been in the neighborhood at the time of her murder. When confronted with inconsis tencies in his alibi, however, Mann admitted that he had broken into Wilson’s home and killed her. However, this interview was not tape-recorded due to an o versight 4 by the investigating

officers. Though he initially refused, after being allowed to speak with his wife, Mann gave another statement which w as recorded.
During th is interview, M ann said that he awoke on Satur day, July 3, an d decided t o walk a round his neighborhood. He was wearing red shorts, white “KSwiss” shoes, and no shirt. He r emembered s eeing a woman standing i n her-7-

driveway as he walked through the neighborhoo d. He st opped for a moment, but continued walking and at some point, decided to go to Wilson’s home, intending to steal her televisionand pawn it to get money to pay his rent. He arrived at Wilson’s home at approximately 6:00 a. m. After knockingon the front door several ti mes and receivingno answer, Mann shoved the door open wit h his shoul der and walked toward the television. Whe n Ma nn saw Wilson coming out of the bedroom, he grabbed a sheet off the couch, threw it over her head so that

she could not

see him, and ran tow

ards the front door. When Wilson pulled the shee

t off her head and called out his name, Mann ran back and pu shed Wilson into the bedroom and onto the bed.

The precise order in which events occurred thereafter is not exactly cl ear, but the evidence established that Wilson, who was hearing impai red, reached for the box containing her hearing aid. Mann knocked it out of her hand. As Wilson continued to call Mann’s name, he gr abbed a sheet from the bed, covered her face, and held her down by placing hi s hand around her neck. At some point while she was on the bed, and before she was struck in the he ad, Mann tore off W ilson’s underwear, digitally penetrated her vag i na while ma sturbati ng, and ej aculate d onto he r body. Mann grabbed a ce ramic c at statue and struck the vi ctim twice in the head w ith it, knocking her to the floor on the left side of the bed. While the victim lay on the floor, M ann ran to the kitchen and obtained a knife. According to Mann, the victim wa s consciousand calling out his name during

this time. Upon return ing to the be droom, Mann stabbed Wilson in the chest several times, because, at first, the knife “wouldn’t go in.” Finally, he “

pulled the knife out, got up and went

home.” When Mann arrived home, his wife was

asleep. He washed his hands with a blue wash cloth and w ent-8-

to bed, but was

unable to sleep because he was “hurting.” Mann said that he later burned the shortshe was wearing and discarded the knife he had used ne ar a levee.

Mann specifically denied tel ling anyone, other than the police, about

the facts of the murder. Denying that he had intended to kill Wilson, Mann said that he only had intended to steal her telev ision and pawn it for rent money, and that he had specifically chosen her house becau se he kne w she was hearing impaired and thoughthe could get

in and out without being detected. Mann attempted to descr ibe the strange feeling that had come over him before he committ ed the murder. He denied being under the influence of drugs at the time of the killing and repeatedly told the interrogating officer th at he had a problem and neede d help. M ann did n ot testify at trial, but the re corded co nfessio n was played for the ju ry.
Dr. O’Bryan Clay Smith, the Deputy Chief Medical Examiner for West Tennessee, performed the autopsy on Wilson’s body. Dr. Smith opinedthat Wilson had sustained at least fifteen b lows to the head by blunt force, resulting in lacerations, bruises and abrasions. Some of the injuries were consistent in pattern with the broken portion of the ceramic cat. Dr. Smith testified that such head injur ies can be fatal, but did not cause inst antaneous death in this case.

Dr. Smith testified that W ilson also had suffered fourt e en superficial stab wounds to the abdomen, and eleven separate stab wounds tothe chest area, ranging in d epth from just under one inch to ov er four inches. One of the stab wound s penetrated Wilson’s lung and had a portion of her night g own embedded in it. Another wound penetrated the left ventricle of her heart. Dr. Smith determined that-9-

either wound would have been fatal, and could have resulted in death in as little as several minutes or as long as an hour following infli ction of the wound. The wounds did not, however, result in i nstantaneous death. Dr. Smith al so found injuries to Wilson’s neck consistent with manual strangulation, but concluded that these injur ies did not result in instantaneous death. The autopsy revealed that Wilson had sustained two fractured ribs as a result of thestab wounds. She suffered a laceration of the vaginal tissue, which, Dr. Smithopined, w as caused by an object being forcefully placed in her vagina. The autopsy revealed extensiv e swelling around Wilson’s left wrist and thumb area as we ll as deep bruising i n the left wrist regi on, which extended into the tendon sheath of the wrist itsel f. This bruising was caused byconsiderable blun t force and was consistent with defensive wounds . Dr. Smith concluded th at Wilson died from multiple injuries: bl unt force to the head, compres sive forces applied to the neck, and multiple stab wounds to th e chest and abdomen, but he was unable to determine in which order the woun ds were inflicted. Based on the pattern of dried blood on W ilson’s left arm and right leg, however, Dr. Smith concluded that Wilson was in an uprig ht position for some period of

time after the blows to her head w ere inflicted.

A Tennessee Bureau of Investigati on (T.B.I.), forensic specialist in s hoe and tire track comparisons and fiber and physical comparisons testified at trial. She had performed a shoe track comparison on the white tennis shoes recovered from Mann’s home and the partial foot print on the piece of linoleum recovered from the victim’s home and determined that the shoes w ere con sistentin size, shape, and tread design with the pri nt on t he linoleum. No definitive match was possible, however, since no individual characteristics, such as cuts, tears, or w ear patterns were pres

ent-10-

on the shoe s. In addi tion, she had comp ared thre e knives re cove red from Man n’s home with t he cuts in th e victim’s nightgown and had concluded that any of the knives could have made the cuts. Finall y, she found no evidence of fiber transfers from anothe r source onto the victim’s clothing or b edding.

Also testifying for th e State was a T.B. I. serology specialist who said she found human blood on one of the white tennis shoes, bu t the quantity was insufficient to conduct further testing. No blood was found on the orange shorts recov ered from Mann’s home. Although human blood was found on the blue wash cloth recov ered from Mann’s house, the blood was preserved for DNA analy sis, so no further testing
was performed. On the ceramic cat remove d fr om the scene of the crime blood consistent

with that of the victim was found. Finally, semen and spermatozoa were found in combed pubic hair obtained from the victim’s body.

Due to problems with the manner in which evidence was collected and stor ed, the foren sic DNA analyst with the T.B.I. testified that she was only able to perform adequate DNA testing on a pair of Mann’s socks and a pair of red shorts. Blood was found on these items, but it matched that

of Patrick Sweatt, an indi vidual with wh om Mann had fought on July 1, 1993, two days before Wilson’s murder.

The defendant offered no proof during the guil t phase ofthe trial. Based upon the proof presented by the State, the jury found Ma nn guilty of premeditated first degree murder.-11- At the sentencing phase of the trial, Dr. Smith again testified for the State. He stated that the fifteen blows to W ilson’s head would have been severely painful and caused profuse bleeding, but wer e probably “insufficient to cause unconsciousness.” Because the blows were infli cted with moder at e to severe force whic h would ha ve produced a large amount of medium velocity blood spatter, and because the crime
scene did not reflect the expected blood spatter, Dr. Smith concluded that the victim’s head was probably wrapped in a blanket. Dr. Smith also observed that the manual strangulation, evidenced by the bruise s on t he victim’s neck, w ould have been painful, causing “extreme dis tress as [the victim became] hungry for air.” Though the stab wounds which penetrated the victim’s heart and lung would have caused pain and bleeding, and interfered with Wilson’s ability to breath, Dr. Smith determi ned that none of the wounds caused instantaneous death. Likewise, although not fatal, the abdominal punctu re wounds would hav e caused moderate pain and minimal bleeding. Dr. Smith opin ed that all of the wounds were inflicted prior to the victim’s death. He said that she could have survived as lit tle as several minutes o r as long
as an hour after the stab wounds w ere inflicted. Based on the blood spatters in the bedroom, and the pattern of blood flow on the v ictim’s clothing and body, Dr. Smith opined that some of the wounds were inflicted while Wilson was conscious and in an upright position.
Testifying on behalf of the defendant was Dr. Chris Sperry, the Deputy Chief Medical Examiner for Ful ton Count y, Georgia. Dr. Sperry reviewed the autopsy report and opined, contrary to Dr. Smith, that the initial blow to her head rendered Wilson unconscious. Dr. Sperry based thi s conclusion on the nature and severity of the head injuries

and the lack of defensive wounds to Wilson’s hands and arms. If-12-

the vi ctim had been unconscious during the a ttack, Dr. Sperry s

aid, she would not have felt the pain caused by the various wounds. When questioned on crossexamination, however, Dr. Sperry opined that Wilson had suffered “serious physical abuse beyond that necessary to produce death.”
Through t he testimony of his mother, the j ury learned that Mann is the ninth child in a family of ten living children. Mann was p laced in special education c lasses until he dropped out of schoo l in ninth grade. Mann l ived with his par ents until he married, and according to his mother, Mann was helpful athome. The defendant’s mother asked the jury to forgi

ve her son and grant

him a second chance. She said that she has given up three children in death and does not want to lose anothe r.

The defendant’s father testifiedthat he has served as the pastor of the O riginal Church of Jesus Christ in Dyersburg for nineteen years. He sai d that Mann had been broughtup in church. He apologized to the victim’s family and ask e d the jury to spare Mann’s life, saying that executing the defendant will not correct the wrong that has been done.
Finally, the defendant’s wife of just over one year testified that Mann had been
a kind and considerate husband. She made an emotional plea to the jury to spare her husband’s life.

Based upon the proof, t he jury d etermined that the State had prov en the existence of two aggravating circumstances beyo nd a reasonable doubt: (1) “[t ]he murder was especially heinous, atr ocious or cruel in that i

t involvedtorture or serious-13-

physical abuse beyond that necessary to

produce death;” and (2) “[t ]he murder was committed w h ile the defendant was engage d in committing burglar y.” Tenn. Code Ann. § 39-13-204(i)(5) and (7 ) (1991). In addition, the jury found th at the aggravating circu mstances outweighed mi tigating circumstanc es beyond a reasonable doubt and,
as a result, sentenced the defendant to dea th by electrocution. The trial cour t entered a judgment in accordance w ith the jury’s ve rdict and th e Court of Criminal Appeals affirmed. After reviewing the r

ecord and considering the error s assigned by the defendant, we affirm the judgment of the tr ial court and Cour

t of Crimina l Appeals.

PLEA NEGOTIATIONS Prior to and during the trial of this case, the District Att orney General offered Mann a plea bargain agreement, life imprisonment in exchange for a guilty plea. Mann rejected t he offer. The case went to trial with the State seeking the death penalty, and the jur

y imposed the death penalty. Realizing, through the benefit of hindsight, that the plea offer would have afforded him a more desirable outcome, Mann now urges that

his constitutionalrights were v iolated because the State‘s action in seeking the death penalty after he rejected the plea offer burdened the exercise of his constitutional rig ht to a jury trial. We disagree.

A defendant who pleads guilty extends a substantial benefit to the criminal justice system, and in exchange, the State i s entitled toextend a less harsh sentence than might otherwise be g iven. Brady v. United State s , 397 U .S. 742, 752 -53, 90 S.Ct. 1463, 1471-72, 25 L.Ed.2d 747 (1970); see also Corbitt v. New Jersey , 439 U.S. 212, 219, 99 S.Ct. 492, 497, 58 L.Ed.2d 466 (1978). Likewise, if a plea offer is-14-

rejected, the State may prosecute the defendant to th e full e st extent possible and seek whatever punishment is appropriate under the law

. B orden kircher v. Hayes , 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978); see also United St ates v. Goodwin , 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982); State v. McMurtrey III , 726 P.2d 202, 207 (Ariz. 1986) (citingcases); State v. Smith , 931 P.2d 1272, 1275 (Mont. 1996); United States v. Jones , 973 F.2d 928 (D.C. Cir. 1992).

An examination of

the relevant authority

reveals that the defendant’s as sertion that the State should be limited in its prosecution to the the terms of an offer made during plea negotiations i s without m erit. In Hayes , the defendant was tried on an indictment

charging him as an habitual criminal, for w hich the mandatory punishment
was lifeimprisonment. The prosecutor, during pre-trial negotiations, had been will ing to accept a plea of guilty t o a l esser charge which carried only a tw

o to ten year sentence range. The prosecutor explicitly advised Hay es that he would return to the grand jury, obtain a new i ndictment, and p roceed on the more serious charge if Hayesdid notplead guilty and “sa ve the court the

inconv enience and nece

ssity of a trial.” Id . at 359, 98 S.Ct. at 665. The defendant rejected the offer, chose to go to trial, was convi cted, and was sentenced to l ife imprisonment.
Hayeschallenged the convic tion and the sentence, contending that his constitutional rights

had been violated. The United States Supreme Court r ejected the challenge, concluding that the State, through the pr osecutor, had not violated the Constitution since it “no more than openly presented the defendan t with the unpleasantalternatives of forgoing trial or facing charges on which he was plainly-15-

subject to prosecution.” Id . at 365, 98 S.Ct. at 669. The HayesCourt explained its decision as follows:

In our system, so long as the prosecutor has

probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury generally rests entirely in his discretion. Within the limits set by the legislature’s constit utional ly valid definition of chargeable offenses, the conscious exercise of some selectiv ityin enforcementis not in itself a federal cons titutional violation s

o long as the selection was not deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification. To hold that the prosecutor’s desire to induce a guilty pl ea is an unjustifiable standard , which like r ace or religion, may play no part in his ch arging decision, would contradict the very pr emises t hat underlie the concept of plea bargai ning it

self.
Id

. at 364-65, 98 S.Ct. at 668-69 (internal citations, quotations and footnot es omitted). Even though recognizing that “confrontinga defendant with the risk of more severe punishmentclearly ma y have a discouraging effect upon the d efendant’s assertion of his trial rights,” the Hayes Court, nevertheless, concluded that “the impositi on of these difficult choices [is] an i nevitable - - - and per missible -- - at tribute of any legitimatesystem which toler ates and encourag es the ne gotiation of pleas.” Id . at 364, 98 S.Ct. at 668 (internal quotationsand citations omitted). The C ourt accepted
as “constitutionally l egitimate the simple reali ty that the prosecutor’s inter es t at the bargaining table is to persuade the defendant to forgo his r ight to plead not guilty.” Id

.

The principles announced in Hayeswere reaffirmed by the Court in Goodwin

. Concluding that “the initial charges filed by a prosecutor may not reflec t the extent to which an individual is leg itimately subject to prosecution,” the Court r efused to accept the defendant ’s argument that his righ t to a jury trial had been impermissibly-16-

burden ed by the State’s decision to charge him with a felon y offense when h e refused to p lead guilty

to a misdemeanor. Id ., 457 U.S. at 382, 102 S.Ct. at 2 493. Conseque ntly, the Court held that an initi al charging decision is not binding upon the State with respect to the future course of the prosecution. Id

.

These cases recognize the State’s legitimate interest in encouraging the entry of guilty pleas and in facilitating plea bargaining, a process mutually beneficial to both the defendant and the State. Corbitt , 439 U.S. at 222, 99 S.Ct. at 499. Since, under this authority, the State is not constitutionally l imited o r bound by its initial formal charge, the State certainly is not limited or bound, as the defendant argues, by a plea offer which was reject

ed by the defendant. When a plea is rejected, the State may prosecute a defendant to the fullest extent of the l aw and seek th e most sev ere punishmentavailable under the law

. Cf. State v. Hines , 9 19 S.W.2d 573 (Tenn. 1995)(u pholding a trial judge’s refusal to approve a plea bargain agreement whic h resulted in th e ca se going to trial in which the defendant was sentenced to death); Parham v. State , 885 S.W.2d 375, 381 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1994)(guilty

plea is not involuntary by the fact that the accused is faced w ith
an election between possi ble death sen tence on a plea of not guilty and a lesser sentence upon a g uilty plea ). To hold, as the defendant urges,that the State can pursue no gre ater charge or seek no g reater punishment than that offered duri ng plea negotiations could effectiv ely abolish the practi ce of plea ba r gaining in first degree murder cases. Prosecutors would r arely, if ever, be w

illing to make an offer of leniency in exchange for a guilty plea. We decline to adopt such a radical and far reaching principle. We agree with the United States Supreme C ourt that-17- [w]hatever

might be the situation in an ideal w orld, the fact is that the guilty plea and the con comitant plea b ar gain are important components of this country’s criminal justice syst em. Properly administered, they can benefit all concer ned. The d efenda nt avoids extended pretrial incarcerati on and t he anxieties and uncertainties of a trial; he gains a speedy disposition of his case, the chance to acknowledge his guilt, and a promptstart in realizin g whatever potential there may be for

rehabilitation. Judges

and prosecutors conserv e vital and scarce resources. The publ ic is protected from the ris ks posed by those charged with criminal offenses who are at large on bail while awaiting completion of cr iminal proceedings. Blackledge v. Allison , 431 U.S. 63, 71, 97 S.Ct. 1621, 1627, 52 L.Ed.2d 136 (1977). Plea negotiations often give rise to difficult choices for a defendant. Indee d, “[t ]he criminal process . . . is reple te with situations requiring the making of difficult judgmentsas to which course to follow. Although a defendant may have a right, even of constitutional dimensions, to follow w hichever course he choos es, the Constitution does not by that token always forbid requiri ng him to choose.” Corbitt , 439 U.S. at 220, n. 8, 99 S .Ct. at 498, n. 8 (internal citations and quotations omitted). In this case, the defenda nt was faced with th e choice of ple ading g ui lty and being sentenced to life imprisonment or exe rcising his constitutional rig ht to a jury trial, and facing the broad spectrum of possibilities, including, on the one ex treme, an acquittal of all charges, and on the othe r extreme, convicti on for first degree murder an d imposition of the death penalty. Manndecided to exercise his constitutional right to a jury trial, and he mus t now accept the consequenc es of that choice.

Mann’s reliance upon United States v. Jackso n , 390 U.S. 570, 88S.Ct. 1209, 20 L.Ed.2d 138 (1968), is mispla ced. Under the federal kidnapping statute at issue in that case, a

convicted defendant could be sent enced to death if hehad requested
a jury trial, but cou ld b e sentence d to no more than a life sentence if he had either-18-

pleaded guilty or pleaded not guilty and wai

ved the right to a jury

trial. Only those w

ho insisted upon a jury trial faced the possibility of a death penalty. The Court declared the statute unconstitutional bec ause it “impose[d] an impermis sible burden upon the exercise of aconstitutional right.” Id ., at 572, 88 S.Ct. at 1211. Unl ike the statuteat issue in Jackson , Tennessee law does not reser ve t he ma ximum punishment for murder for those who insist on a jury trial. Indeed, under Tennessee law, the State is free to s eek the death penalty follow ing entry of a guilty

plea. See Tenn. Code Ann. § 39-13-205(a) (1991 Repl.). Accordingly, we conclude that the defendant’s assertion that the State violated his constitutional rights by seeking the death penalty afterhe rejected the plea offer and exercised his ri ghtto a jury trial i s without merit.

SUFFICIENCY OF EVI DENCE - AGGR AVATI NG CIRCUMSTA NCES Pursuantto Tenn. C ode Ann. § 39-13-2 06(c)(1)( B) (1991 R epl.), we h ave examined the evidence to determine whether it is sufficient to support the aggravating circu mstanc es found by the jury and whether it is sufficient to support the jury’s finding that the aggravating circumstances outweig hed any mitigating ci rcumstances beyond a reasonable doubt. We conclude that the evid ence clearly is suffici ent to support these findings.

In accordance with this Court’s decisionin State v. Willia ms , 690 S.W.2d 517, 529 (Tenn . 1985 ), the trial court cor rectly instructed th e jury as to the definition s of the terms, “heinous,”

“atrocious,” and“cruel.” See also State v. Odom , 928 S.W.2d 18, 26 (Tenn. 1996). Also in accordance with Williams , the trial court instr ucted the juryth at “t orture” means “the inflicti on of severe physical or mental pain upon the victim wh ile he or she remains alive and conscious.” Id . The evidence is clearly-19-

sufficientto establish both torture and serious physical abuse beyond that necessary to produce death. This sixty-t wo year old victim was digitally raped and as a result suffered a one i nch laceration of the vagi nal tissue. She sustained at least fifteen blows to the head whic h were, according to the expert testimony, severely painful. She suffered eleven stab wounds to her chest, ranging

in depth from under one inch to over four inches, one penetr ating her heart and another her lung. According to the und isputed proof, these wounds would have been painful and interfered w ith he r ability to breath. The victim sus tained fourteen additional puncture wounds to her abdomen which would hav e resulted in pain. She w as also manually strang le d which, according to the medical testimony, would have caused severe distress as her airsupply was t erminat ed. Ther e is no disp ute in the proof th at the vict im was alive when these injuries wer e inflicted. Although the pr oof was disputed, th e ev idence is sufficient to support the conclusion that the victim was also conscious dur ing the time many of these wounds wer e inflicted. In his statement, the defendant said that Wilson called his name over andover, even after he had digitally raped her, struck her in the head with the statue, and w as on his way

to the kitchen to obtain a knife. Dr. Smith testified that the pattern of bl ood on the victim’s body and the blood spatters in the bedroom indicated t ha t Wilson was in an upright positi on and consciousfor a time during the atta ck. Finally, Dr. Smith stated that the bruising around Wilson’s left wrist was cons iste nt with a defensive wound. Though the defendant offered expert testimony to counter the State’s proof relating to consciousness, Dr. Sperry admitted on cross -e xamination that Wilson had been
s ubjected to serious physical abuse beyond that necessary to produc e death

. Accordin gly, we conclude that the evidence is sufficient to support the jury ’s finding that this murder was especi ally heinous, atrocious , or cruel in that it involv ed torture-20-

or serious physical abus e beyond that necessary t o produce death. See State v. Bush , 942 S.W.2d 489 (Te nn. 1997).

The evidence is also sufficient to sustain the jury‘s fin ding that the murder was committed while the defendant was engaged in committing burglar y. The trial judge correctlyinstructed the jury that “burglary is defined as th e unlawful entry into a building or habitation of anoth er without theeffective consent of the owner w ith the intentto commit a felony or theft and the person must have acted i ntentionally or knowingly.”

The defendant admitted in his statement that he for ced open the door to the victim’s home wi th the inte ntion of stealing her telev ision to pawn for rent money. The proof in this recor d, therefore, is sufficient to support the jury ’s finding of this aggravating

circumstance.

With respect to the jury’s findi n g that the aggravating circumstances outweighed any mitigating circu mstan ces, we have prev iously held that whether mitigation exists and the weig ht given aggravating and mitigating circumstances are issues within the province of the jury. State v. Barber , 753 S.W.2d 659, 669 (Tenn. 1988). In this case, the trial judge specifically instructed the jury to consider

the following mitigating circumstances: (1) the murder was co m mitted while the defendant was under the influence of extreme mental or emotional di sturbance; (2) the youth of the defendant at the time of the crime; (3) the capacity of the defendant to apprec iate the wro ngfulness of his conduct or to c onform his conduct to the requirements

of the law

was substantiallyimpaired as the result of mental disease or defect which was insufficient to establish a defense to the cr ime but whic h substantially affected his judgment; and (4) any other mitigating factor which is raised-21-

bythe evidence, produced by either the prosecuti on or defense at either the guilt or sentencing hearing; that is, any aspect of the defendant’s character or record, or any aspect of the circumstances of the offe nse favorable to the defendant which is supported by the evidence

.
The proof demonstrates that Mann was twenty-two y ears old at thetime this offense was committed. He claimed that he had no intention of killi ng the victim when he broke into her

home, and did so only when she unexpectedly emerged from the bedroom, and surprised him by cal ling his name. Based on this portion of the defendant’s statement, counsel for the defense arg ued to the jury that the murder
was committed while the defendant w as under extreme mental or emoti onal disturbance. Also in his statement the defenda nt mentio ned that a strange feeling
came over him before he committed this crime and Mann told the interrogating officer that he had a problem and needed help for it.Defense counsel, base d upon this proof, argued th at Mann co mmitted the crime because he has a de fective mind and is suffering from a mental disease or defect. Finally, defense counsel asked the jury to consider the testimony of M ann’s family -- his mother, father, and wife -- all o f whom asked the jury to spare Mann’s life. Thetrial judge offered to charge the jury
on any non-st atutory mit igating circumstance s submitted by the defense, but no specific instructions

were requested. In

addition, the trial judge allowed the defense broad leeway to advance mi tigating circumstanc

es to the jury du ring closing argument. Based upon the proof in this rec ord, we conclude that the evidenc e is sufficientto support the jury’s finding that the aggravating

circumstances outweig hed any mitigating circumstances.-22- COMPARA

TIVE PROPORTIONALITY REVIEW The defendant next claims that his sentence is disproportionate to the penalty imposed in similar cases, cons idering both the nature of the crime and the defendant. The defendant is therefore, asserting that his claim is comparati vely disproporti onate. I n the rec ent case

of State v. Bland , ___ S.W.2d ___ (Tenn. 1997), we discussed i n detail t he precedent-seeking analysis this Court has employed over the past eighteen years in determining whether the death sentence i mpo sed in a particular
ca se is disp roportionate to the sentence imposed in simi lar cases. In conducting compara tive proportionality review, we begin with the presumption that the sentence of death is pr oportion al to the c rime of f irst degre e murder . Theref ore, as we emphasized in Bland t he purpose of comparative propor tionality review

is to “eliminatethe possibility that a person will be sente nced to death by the action of an aberrantjury

and to guard against the c apriciousor random imposition of the death penalty.” Id. , __ S.W.2d at ___.

As we had previously explained, a nd reaf firmed in Bland , compar ative proportionality

review is not

a rigid, objectiv

e test. Id ., __ S.W.2d at __, Slip Op. at 23; Cazes , 875 S.W.2d 253, 270 ( Tenn. 1994). We do not employ a mathema tic al formula or scientific gri d, nor are we bound to consider only those cases in which exactly the same agg ravating circumstan ces have been found by the jur y. State v. Brimmer , 876 S.W.2d 75, 84 (Tenn. 1994). After identifying a pool of similar cases,
we consider a multitude of variables, some of which were listed in Bland , in light of the exper ienced judgment and intuition of the members of this Court. Bland , __ S.W.2d at ___.5 At least 44 of the persons sentenced to deat h in Tennessee since 19 77 were between th e ages of 19 and 25 when th ey committed the murder and a t least ten were 18 or 19

when the offens e was c omm itted. -23- Applying that ana lysis , we con clude th at impos ition of the deat h penalt

y fo r th e senseless, brutal, premeditated killing of this in nocent elderly woman is no t disproportionate

to the penalty imposed in si milar cases, considerin g the na ture of the crimeand the defendant. Mann’s actions showed a total disregard for human life. The victim, a

sixty-two y

ear old widow, li

ved near the defendant and hadbefriended Mann and his family. As a resu lt of her kindness toward him, the d efendant knew that the victim lived alone and was hearing impaired. In fact, he chose to burglar ize her home because he had specific knowledge about her v ulnerability and about her property. When the victim walked out of her bedroom and surprised Mann in the act of burglarizing her home, he did not hesitate to brutally assault and murder her. He had no provocati on, except her recognition of him. The defendant inflicted at least forty wounds upon the victi m, including fifteen blows to the head, elev en stab wounds to the chest, and fourteen puncture wo unds to her abdomen, all of which resulted in pain for the victim. In addition, the defendant digital ly raped and manually strangled the victim. Throughout the entire ordeal, according to the defendant’s own statement the victim was aliv

e and conscious and calling out her attacker’s name. Other proof indicatesthat the victim was ali ve and conscious

for at least

some part of the attack. Followingthe murder, Mann was cal m. He wen t hom e, washed himself, changed clothes, and went tobed. He calmly spoke to the pol ice the next day. Though the defendant was young at the time of the killing, only twenty-two years old, many others have arrived on death row at an earlier age. 5 Considering the nature of this crime and the chara c ter of this defendant, this murder pl aces Mann into the class of defendants for whom the death penalty i s an appropriate punishment. Bas ed upon6 Altho ugh the tria l judg e erro neo usly ch arge d the jury in th e lang uag e of th e 198 9 sta tute, in Bush we held that

the error was harmless beyond a reasonable doubt, concluding that the proof establi shed that t he murder was heinous, at rocious, or cruel i n that i t invol

ved tortur

e or depravi ty of mind. Tenn. Co de Ann. § 39-13-203(i)(5) (1977 & 1 982) (Repealed). -24- our review, we c

onclude that the following cases in w hich the death penalty has been imposed have many similar ities with this cas

e.

In State v. Bush , 942 S.W.2d 489 (Tenn. 1997), the ei ghteen-year-ol d defendant was sentenced to death for the murder of a helpless sev enty-nine year

old widow. There, the def e ndant used the victim’s fri endship with his gr andmother to gain access to her hom e. Th erefore, Bush, like the defendant in this case, was
aware that the victim liv ed alone and was vulner able. Once inside, Bush, li ke the defendant in this case, brutallymurdered the helpless vi ctim without any provocation bysavagely beating

her with a stick and by stabbing her forty-three times. He l ater boasted to acquaintances about practicing karate on the victim. As in this case, the juryfound two aggravatin g c ircumstances including that the murder was especially heinous, atrociousor cruel in that it involved torture or serious physical abus

e beyond that necessary to

produce death; and that the murder w as committed for the purpose of avoiding, interfering with, or preventi ng a lawful arrest or prosecution of th e defendant or another. Tenn. Code Ann. 39-13- 204(i)(5) & (I)(6) (1991 Repl). 6 The juryimposed the death penalty ev en though Bush, unlike the defendant i n this case, presented substantial proof in mitigation relatin g to his youth, troubled chi ldhood, mental disease or defect, and lack of a prior criminal reco rd.

In State v. Sylvester

Smith , 893 S.W.2d 908 (Tenn. 1994), the forty-one-yearold defendant was sentencedto death for the murder of an elderly widow who lived7 The jury al so found two oth er aggravati ng circumstances: t hat the defen dant had been previously convict

ed of viol ent felony

offenses and that

the murder was committed whil e the defend ant was engag ed in com mitting a f elony. Ten n. Code Ann. § 39 -2-203 ( i)(2) & (7) (1 982). Even though it was error under Stat e v. Mi ddleb rooks , 840 S.W .2d 317 ( Tenn . 1992) (D rowota, J . & O’Brien, J. , Dissenti ng) for the jury t o consider t he felony murder aggravati ng circumstance since Smith was convicted of fir st degree fel ony murder, th is Court det ermined that t he error was harm less beyo nd a rea sonab le doubt. -25- alone in her home in Shelby County. During the course of robbin g her home, the defendant beat the victim over her entire body. Her throat had been cut twice.She had been raped, and her body placed in a tub ofwater one to two inc hes deep, with
a blanket wrappedaround her head. Theproof showed that Smith carr ied a weapon with him to commit the crime, a knife he had tak en from his sister’s home. I n mitigation, the def end ant introduced proof of his low IQ and attempted to establish that he was mentally retar ded. As in this case, Smith sexually assaulted and brutally murdered the el derly female victim in her ow n home, without any prov ocation or justification

. The jury found three aggr avating circumstances , including that the murder was especially he i nous , atrocious or cruel i n that it involved tor ture or depravity of mind, 7 Tenn. Code Ann. § 39-2-203(i)(5) (1982).

In State v. Cazes , 875 S.W.2d 253 (Te nn. 1994), the twenty-seven-year-old defendant was sentenced to death for the murder of a helpless, elderly woman who lived alone. Cazes worked sporadically as a welder for the victim’s step-g randson, and like the defendant in this case,Cazes had been to the home of his victim on prior occasions. Like the defendant in t his case, Cazes struck hi s victim in the head
numerous times with a

blunt object, most likely a welder’s chipping hammer which he had taken with him to the scene of the crime. Her skull w as virtually cr

ushed, but the proof showed, as it does in this ca se, that she was ali ve and conscious during a portion of the attack. As did the defendant in this case, Cazes sexuall y assaulted the8 As in Sm ith , supra , the jur y also f ound that t he defendant had been p reviousl y convict ed of violen t felon y offe nse s and that th e m urde r was com mitte d wh ile the defe nda nt wa s eng age d in committing a fel ony. Tenn. Code Ann. § 39-2-203 (i )(2) & (7) (1982). As i n Sm ith , thi s Court found that the jury’ s consideration of the fel ony murder aggravat ing cir cumstance was harmless error beyond a reason able dou bt. -26- victim , rap ing her both anally and vaginally at or near the time of death. Cazes presented a gre at deal of proof about his troubled chi ldhood, and he presented expert testimony about his impair ed mental abilities. The jur y found three aggra vatin g circumstances, including that the murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind. 8 Tenn. Code Ann. § 39-2-203(i)(5) (1982).

In State v. Barber , 753 S.W .2d 659 (Tenn. 1988), the twenty-nine-year-old defendant was sentenced to death for the mur der of ahelpless seventy-five year old
woman who lived alone. Barber and his brother decided to rob the victim. Barber’s brother knew

the victim because he had worked for her on several prior occasions. To gain en tryinto her home, the defendant broke out the back window wi

th a crescent wrench. When the victim recogni zed Barber’s brother and started toward the phone to call the police, Barber repeatedly hit h er on the head with the crescent wrench. She was alive an d co nscious during the attack as evidenced by the defens ive wounds on her arms and hands. As in this case, the defendant w as aware, because of the relationship between the victim and his brother, thatthe victim was in bad health and used a walker. As did Mann in this case, Barber had no hesitation about brutally murderi ng the victim upon no more provocation than her reco gnition of one of her assailants. As mitigation, Barber, like Mann, relied upon his youth, and also his capacity for rehabilitation. As in this case, the jury found that the murder was9 The jury al so reli ed upon the fel ony-murder aggravating cir cumstance as a basis for impositio n of the deat h penalty . In Barbe r v. State , 889 S.W .2d 1 85, 1 89-9 0 (T enn . 199 4), this Court held t he jury’ s consideration of that ag gravati ng circumstance harmless err or beyond a reason able dou bt. -27- especiallyheinous, atrocious, or cruel in that it involv ed torture or depravity

of mind. Tenn. Code Ann. § 39-2-203(i)(5) (1982). 9

In State v. McNish , 727 S.W.2d 490 (Tenn. 1987), the t wenty-nine-year-old defendant was sentenced to death for the mur der of a seven ty-year-old widow, who
was frail, weighing less than one hundred pounds, but still c apable of living alone. McNish, on the other hand, weighed one hundred and si xty-five pounds

and held a blackbelt in karate. Like the defendant in this case, McNish was acquainted with his victim and was aware of her phy sical limitations. Al so like the defendant in this cas e, McNish struck the victim i n the head many times with an object he found in her home,
a glass vase. Her skull w as fractured in several places, but she was par tiall y consciouswhen she wa s found b y a neighbor. Therefore, as in this case, she
reco gnized her attacker and suffered pain from the i njuries he inflicted. McNish, a heavy user of prescriptiondrugs, apparently w as attempting to borrow money from the victim when the attack began. The jury found one aggravating

circumstance, that the murder was especiallyheinous , atrocious, or cruel i n that it involved tor ture or depravity of mind. Tenn. Code Ann. § 39-2-203 (i) (5) (1982).

In State v. Harbison , 704 S.W.2d 314 (Tenn. 1986), the twenty-seven-year-old defendant was sen tenced to death for the murder of a sixty -two year old w

oman. Harbison, like the defe ndant in this case, was

a casual acq uaintance of the victim. As in this case, Harbison was surpr ised by the victim w

hile he was burglar

izing her-28-

home. When the victim reached for her purse, H arbison said that he thought she
was reaching for a gun and after they began “tussli n,” he grabbed a marble v ase and hit her in the head with it. The medical tes timony showed that the v ictim was

struck at least three times, causing massive skul l fractures. The blows w ere inflicted with such force that the victim’s face was lit erallycrushed and disfigured bey ond recognition and brain tissue was pr otruding through the lac er ati ons. As mitigation, the defendant asked the jury to cons ider that he had no significant prior cr iminal record, as in this case, and also t hat death was instantaneous and that he did not bring a weapon tothe crime scene. The jury found one aggravating c ircumstance, that th e murder was committed w hile the defendant was engag ed in committing burglary. Tenn. Code Ann.§ 39-2-203(i) (7) (1 982).

In Stat e v. Cone , 665 S.W.2d 87 (Ten n. 1984), the thirty-three-year-old defendant was sentenced to death for the murder of an elderly couple.Hiding and attempting to escape the police after he had b urglarized a jew elry store, Cone entered the home of Mr. Todd, ninety-three years of age, and his wife, sev enty-nine years of age, by breaking a l at ch on the rear door. The elderly couple were repeatedly beaten about t h e head with a blunt instr ument, with multiple crus hing blows to the head. B a sed on the defen sive wou nds which appeared on th eir arms and hands, the vi ctims, as in this case, w ere conscious during s ome part of the attack. Also like this case,the defenda nt admitted th e killing, but asserted that his mental capacity was impai red by drug use and ser vice in Vietnam. The jury found fouraggravating circumstances, including that the murder was especially heinous,10 The three addit ional aggr avating ci rcumstances found by t he jury i nclude: (1) the defendant had previously been convicted of one or more fel onies inv olving the use or threat of violence to the person; (3) the defendant know ingly created a great risk of death to two (2) or more persons, other

than the vi ctim murdered, duri ng his act of murder; (2) t he murders were committed for the purpose of preventing a lawful arrest or prosecution. Tenn. C ode Ann. § 39-2-203(i)(2) & (3) & (6) (1977).

11 The jury al so found that the murder was committed for t he purpose of prev enting a l awful arrest or prosecution. Tenn. Code Ann. § 39-2-203(i)(6) (1977). -29- atrocious, or cruel in that it in vo lved torture or deprav ity of mind. Tenn. Code Ann. § 39-2-203 (i) (5) (1982). 10

In State v. Melson , 638 S.W.2d 342 (Te nn. 1982), the defendant, a fa rm foreman, was sentenced to death for murde ring t he farm owner’s wife. A b lunt instrument, probablya hammer or crescent wr ench, was used to repeatedly beat the victim about the head with such force that pieces of her craniumwere embedded into her brain. Trau ma to her arms and hands demo nstra ted that, as in this case, s he
was consciousand attempting to defend herself duri ng some portion of the ordeal. The only motivation the defendant had for committing the murder was that his victim had discovered him stealing gasoline from the farm supply . Melson had no prio r record of significant criminal ac tivity. The jury

found two aggravati ng circumstances including that the murder was especially heinous, atrocious, or cruel i n that it involved torture or depravity of mind. Tenn. Code Ann. § 39-2-203 (i) (5) (1977). 11

As we have emphasized again and again, no two cases are identical, but the above cases have many similarities with Mann . In all eig ht of the cases , the vict ims
w ere r epeatedly beaten about the head w ith a blunt instrument causi ng or contributing to t heir de ath. Without any provocation, all ei ght defendants gained entryinto the home of the helpless victims and vici ously attacked them. In sev en of12 W e also have reviewed other cases in which the defendants received a senten ce of life imprisonment. However, there are f ew life sentence cases which be ar similariti es to the circum stance s of this crim e and this defend ant. The two m ost sim ilar are eas ily distinguishab le. In State v. Sepulveda , No. 03C01-9402-CR-00069, (Tenn. Crim. App., at Knoxvil e, June 26, 1997) (app licatio n filed Aug ust 2 5, 19 97), th e nine teen -year -old d efen dan t burg larized the h om e of h is ninety -five- year-ol d neighbor l ooking for money, or for proper ty to sell t

o buy drugs. During the course of the burglary, he beat the victim with his hands and kicke d her in the head. She was alive when fou nd by f rien ds and t aken to a hospital and l ater to a nu rsin g home. She died some weeks later from her injuries. The defendant had a longstanding drug problem , evidenced by an extensive juvenil e record for drug offenses. He had onl y an eighth grade educati on; his fa ther had di ed when he was four months old, and his sist er had committed suici de at an early age. The ju ry sentenced the defendant to li fe imprisonment. Though the kill ing in t hat case was reprehensi ble, t he defendant di d not uti lize a weapon, such as a kni fe, as didthe defendant in thi s case, and he had a long hist

ory of dr ug problems. Li kewise, in State v. Whitm ore , No. 03C01-9404-CR-00141 ( Tenn. Crim . App ., at Kn oxville , Jun e 19, 1997 )(ap plicat ion file d Au gus t 18, 1 997 ), the e ighty-ye ar-o ld neigh bor o f the d efen dan t’s gra ndp aren ts wa s fou nd de ad in h is hom e, sta bbe d thirte en tim es in the nec k and c hest. Th e defen dant, and a co-de fendan t robbed the m an to obta in mon ey for drug s. W hen the vic tim r eco gnize d the m, W hitm ore’s co-d efen dan t killed him with W hitm ore’s knife . The co-def endan t was fou nd to be m entally retarde d and no t subjec t to the dea th penalty. T he State sought the death penalty with respect to W hitmore, but the jury returned a sentence of life imprisonment. Unli ke the defendant i n this case, Whitmore did not actual ly i nflict the fatal

wounds. -30- the eightcases, asin this case, the victims were conscious and experienced the pain and terror of the atta cks. In six of the eight ca ses the defendant, as in this case, knew his victim and was aware of the victim’s specific frailties and vulnerabilities. Like this case, there was g reat disparity of str e ngth between the victims and the defendants. The victims were sex ually assaultedin two of the eight cases , as wasthe victim in this case. In seven of the eight cases , the jury found that the murder was especiall yheinous, atrociou s, or cruel in that it involved to rture or de pravity. Similarly, in t his ca se, the jury found that the murder was especially heinous, atrocious, or cruel in that it involv ed torture or serious phy sical abuse beyond that necessary to produce deat h. In man y of the cases, the murder occurr ed while the defendant was engaged in a robbe ry or burglar y. Like Mann, many of the defendants relied upon their youth and mental di sabilities as mitigation of the punishment. After reviewing

the cases discussedabove and many other cases not herein detailed, 12 we are of the opinion t hat the penalty imposed by the j ury in this case is not disproportionate to the penalty imposed for similar crimes.-31- CONCLUSION In accordance with the mandate o f Tenn. Code Ann. § 39-13-206(c)(1) (1991 Repl.), and the principles adopted in prior decisions of this Court, we have consi dered the entire record in this cause and find that the sentence of death was not imposed i n an y arbitrary fashion,that the evidence supports,as previously di scussed, the jury’s finding of the statutory aggravating circumstances, and the jury ’s finding that the aggravating ci rcumstances outweighed mi tigating circumstanc

es beyond a reasonable doubt. Tenn. CodeAnn. § 39-13-206(c)(1)(A) - (C) (1991 Repl. & 1996 Su pp .) . We

have consideredthe defendant’s assignments of err or and determined that none have merit. With respect to issues not specifically addressed herein, we affirm the decision of the Co urt of Criminal Appeals, author ed by Judge David G. Hayes, and joined in by Judge Jerry L. Smith and Specia l Jud ge Lynn W. Brown. Relevant portions of that opinion are publ ished her eafter as an appendix. The defendant’s sentence of deat h by electrocution is affirmed. The sentence shall be carried out as pr

ovided by law on the 15

th day o f A pril , 1998, unless otherwise ordered by this Court or other proper authorities.

_____________________________________ Frank F. Drowota, II I, Justice
CONCUR: Anderson, C. J., Birch, Holder, JJ. Reid, J., -Concurri ng in the Re sults Onl y.