### IN THE SUPREME COURT OF TENNESSEE AT JACKSON STATE OF TENNESSEE v. FARRIS GENNER MORRIS, JR. An Appeal from the Criminal C ourt for Madison County No. 94-1481 Franklin Murchison, Judge

No. W1998-00679-SC-DDT-DD - Decided July 10, 2000

FOR PUBLICATION

A jury convictedthe defen dant of two counts of premeditated first degree murder and one count of aggravated rape. The jury imposed the death penalty for one of the first degre e murders after finding that evide

nce of two aggra

vating circumst

ances – tha t the murder was e specially heinous, atrocious or cru

el inthat it involved torture or serious physical abuse beyond that necessary to produce death and that the murder was committed in the course of a first degree murder, rape , burglary or kidnapping – outweighed mitigating evidence beyond a reasonable d oubt. The jury imposed life without p arole for the other first degree murder after finding that evidence of two aggravating circumstances – that the defendant knowingly created a risk of death to two or m ore persons other the victim murdered during the act of murder and that the murde

r was committed in the course of a first degree murder, rape, burglary or kidnapping – did not outweigh mitigating evidence beyond a reasonable doubt. The trial court imposed a 25-year sentence for aggravated

rape to run consecutively to the sentence of life without parole. The Court of Crimina l Appealsaffirmed the convictions and the

sente nces. We hold that the evidence was sufficient to support the convictions,

that the defenda

nt is not entitled to r

elief based on th

e constitutionality of death by electrocution, and that the evidence was sufficient to support the jury’s determination that evidence of two aggravating circumstances outweighed mitigating evidence beyond a reasonable doubt. We also hold that the death sentence is not arbitrary, excessive or disproportionate as applied in this case. Direct Appeal; Judgment of the Court of Criminal Appeals Affirmed

A NDERSON , C. J., deliv ered the o pinion of the court, in which B IRCH , HOLDER AND BARKER , J

. J ., joined. DROWOTA , J., not participating. George Morton Googe, District Public Defender, Jackson, Tennessee, (On Appeal and At Trial), and Daniel J. Taylor, Assistant Public Defender, and Jesse H. Ford, III, Jackson, Tennessee, (At Trial), for the appellant, Farris Genner Morris, Jr.1 Tenn. Code Ann. § 39-13-204(i)(5) and (7)(1991 and Supp. 1994).

2 Tenn. Code Ann. § 39-13-204(i)(3) and (7)(1991 and Supp. 1994).

3 Tenn. C od e Ann. § 39-13-206(a)(1)(1997)(“The affirmance of the conviction and the sentence of death shall be automatically reviewed by the Tennessee supreme court.”).
-2- Paul G. Summers, Attorney General & Reporter and Michael E. Moo re, S olicitor General and Elizabeth T. Ryan , Assi stant Attorney General, Nashville, Tennessee (On Appeal), and James G. (Jerry) Woodall, District Attor ney General, an

d Al Earls, Assista

nt District Attorne

y General, Jackson, Tennessee (At Trial), for the appellee, State of Tennessee.

OPINION

The defendant, Farr

is Genner Morris, Jr., was convicted of two counts of prem

editated first degree m urde r and one count of aggravated rape. The jury imposed the death penalty for the premeditated

first degree murder of Erica Hurd after finding that evide nce of two aggravating circumstances,

i.e., the murder was especially heinous, atrocious or cruel in that it involved torture
or serious physical abuse beyond that necessary to produce death and the murder was committed in the course of any first degree murder, rape, burglary or kidnapping, 1 outweighed evidenc e of mitigating circumstances beyond a reasonable doubt. The jury imposed life without parol

e for the premeditated

first degree murder

of Charles Ragland after finding that evidence of two aggravating circumstances,

i.e., the defendant knowingly created a risk of death to two or more persons other than the victim during the act of murder and the m urder was committ ed in the course o

f any first degree murder, rape, burglary or kidnapping, 2 did not outweigh evidence of miti gating circumstances beyond a reasonable

doubt. The trial court imposed a 25-year sentence for the aggravated rape of Angela Ragland, to be served consecutively to the sentence of life without parole.

After the Court of

Criminal Appeals affirmed the convictions and the sentences imposed, the
case was docketed in th

is Court for automati

c review. 3 We reviewed the Court of Criminal Ap

peals’ decision, the record, and the applicab le law, and entered an order specifying the following issues for argument: whether the evidence was sufficient to support the c onvictions for premeditate d first degree murder; whether

electrocution c

onstit utes cr uel and unusual punishment; whether the evidence was sufficient to support the aggra

vating circumst

an ces and the jury’s finding that the evidence of the aggravati

ng circumstance

s outweighed the mit

igating evidence

beyond a reasona

ble doubtwith regar d to the first degre e murder of Eric

a Hurd; and wheth

er the sentence

of death is excessive or disp

roportionate to th

e penalty imposed i

n similar cases.

We conclude that the evide nce was suf ficient to support t

he verdicts of pr

emeditated first degree murder

and that the defe

ndant is not entitled

to relief on the issue of whether electrocution is cruel and unusual punishment. We further conclude that the evidence was sufficient to support4 Angela Ragland te stified that her hu

sband did not sell or

use drugs.
-3- the two aggravating circumstances with regard t o the mu rder of Erica Hurd, as well as the jury’s finding that the evidence of these aggra vating circumstances outweighed m itigating evidence beyond
a reasona ble doub t. Finally, we hold that the sentence of death is not arbitrary, excessive or disproportionate

to the se ntence imposed in cases in volving similar cri

mes and defenda

nts. Therefore, we

affirm the Court o

f Criminal Appeals ’ judgment.
BACKGROUND Guilt Phase

Charles and Angela Ragland lived in a duplex residen ce in Jackso n, Tennessee. The defendant, Farris Genner Morris, lived with his wife in the adjoining residence.

In the early

morning hours of Se

ptember 17, 1994, A

ngela Ragland ar

rived at her home

along withher 15-year-o

ld cousin, Erica Hurd. Charles Ragland was awake in the bedroom with the light
on. Shortly after arriving, Erica went outside to retrieve something from the c

ar. When Erica

came back into the house, Angela heard a scream and saw that Morris was holding a shotgun to Erica’s head.

Morris pushed Erica onto the bed in the Ragland s’ bed room and asked Charles “where the dope was.” Charles Ragland replied that he “didn’t have any ” and asked Morris if he wanted money. 4 After Morris responded that he would “find it himself,” Morris fired a shot into the floor and ordered Charles Ragland to get on the floor. He placed a pillow on Ragland’s head a

nd shot him one time in the head.

Morris o rd ered Erica to get into a closet by threatening to “blow her head off.” He forced Angela into another bedroom, tied her wrists and ankles, and

covered the wind

ow with a mattress
so that “nobody could

see if they walked by.” Morris then retrieved Erica from the closet. Angela Ragland testified that she heard Erica pleading for Morris not to kill her and that she heard Mor

ris say “shut up.” She testified that she heard Erica screaming and gasping for breath, and then silence.

Morris returned to the bedroom and, still holding the shotgun, forced Angela Ragland to bathe him. Afterward he ordered Angela to put on a negligee and ma

ke him something to

eat, which she did. Morris then forc

ed Angela to have

sexual intercourse with him “three or four times” and to perform oral sex upon him. Morris told her that he had once been “accused of raping someone and

. . . if he was going to jail, he was going to go to jail for doing something.” He told Angela that “society made him the way he was” and “was the reason that he was doing what he did.”

Around 6:30 a.m., Morris heard his wife in the adjoining residence and told Angela that he would let her go. He instructed her to tell police that she found the bodies of her husband and cousin when she arrived home that morning. Morris used a cloth to wipe off objects he had touched and5 The statemen t i n its entirety is contained in the opinion of the Court of Criminal

Appeals, which is attached to this opinion as an appendix.
-4- he warned Angela not to go to the police. Angela fled to the house of a nearby friend, who drove her to the police station. The police found Morris at his

home shortly there

after and arre

sted him.

The bodies of Charles Ragland and Erica Hurd were later discovered in the Ragland resi dence. Charles Ragland had been shot in the head. Erica Hurd had been beaten and stabbed repeatedly. A blood-stained steak knife was found behind a couch and a large butcher knife with traces of blood
was found in

a chair in the livin

g room. Angela Rag

land testified tha

t neither knife be

longed to her
or her husband. A 12-gauge pistol grip, pump ac

tion shotgun was late

r found undernea

th Morris’s dresser drawer.

A fterbeing advised of a nd waiving his const

itutional rights, Mor

ris gave a stateme

nt to Officers Patric

k Willis and James Golden o f the Jackson Polic

e Department. 5 Morris said that on the day of the offense he had purchased and smoked $250 worth of cocaine. He admitted that he had an exchange with Charles Ragland at 1:00 a.m., just a few hours prior to the murders, in which he asked Ragland

to sell him

drugs and, when Ragland declined, told Ragland that “he was going to regret disrespecting me.” Morris admitted that he went to his house, got his shotgun, loaded two shells into the shotgun, and waited for Ragland’s wife, Angela, to get home. Morris admitted that he entered the Ragland’s residence with the shotgun and demanded that Cha

rles Ragland sell h

im drugs. He admitted that after Ragland said he didn’t have any drugs, he fired a shot into the floor, puta pillow over the b

arrel of the gun a

nd shot him

in the head. Morris admitted that he put Erica Hurd in acloset and tied up Angela Ragland. Morris told officers that he intended only to tie up Erica Hurd but that he sta

bbed her becaus

e she acted crazy a

nd they struggled o

ver a knife. Morr

is admitted he had sexual intercourse and oral sex with Angela Ragland.

Dr. O.C. Smith, the Deputy Chief Medical Examiner for West Tennessee, testified that Charles Ragland died from a shotgun wound to the head. Dr. Smith testified that he found evidence of an “intermediate target” between the weapon and Ragland’s head, but that Ragland’s death was “instantaneous because the brain [was] destroyed.”

Dr. Smith testified that Erica Hurd had died as a result of multiple injuries including, stab wounds, blunt trauma to the head, skull fractures, a nd d amage to the brain. Dr. Smith found that there were 37 stab wounds, 23 of which were sustained prior to

death and 14 of wh

ich were postmortem. Dr. Smith testified that 25 of the stab wounds were to the victim’s neck and face and that the force of the stabbings was great enough to cause the knife blades to bend upon striking bone.

The defense theory focused on Morris’s use of crack cocaine. In addition to Morris’s own statement to police, Russell Morris, the defendant’s brother, testified that he saw the defendant smoking crack ar

ound 5:15 p.m. on the e

vening before th

e murders.-5-

Dr. Robert Parker, a doctor of pharmacology at the University of Tennessee, testified about the effects of cra

ck cocaine use.

Parker testified

that smoking crac

k cocaine produc

es an intense euphoria and symptoms such as excitability, paranoia, mania, and impaired judgment. Parker testified that most users of cr ack cocain e go on a “cocain

e run” or “binge .” When users be come unable to d uplicate the feeling of euphoria from the initial uses of the drug, judgment is furthe r impaired and there is

“an increased

risk of violent or homicidal behavior.” Parker explained that an acute withdrawal or “crash phase” occurs when the drug is not used. It can be marked by depression, exhaustion, paranoia, anxiety, and suicidal thoughts. Parker testified that the evidence of

Morris’s behavior was “consistent with the ingestion of cocaine.”

Dr. William Bernet, me

dical directo

r of the P sychiatric Hospital at Vanderbilt University, testif ied that he evaluated Morris based on an interview and a review of various records and documents. Dr. Bernet concluded that due to false accusations of rape prior to these offense

, Morris became suicidal and a crack cocaine user. Dr. Bernet stated that the mental stress and use of crack cocaine “affected [Morris’s] judgment” and “may have prevented

him from forming the in

tent” to commit the murders of Charles Ragland and Erica Hurd.

The jury convicted Morris of two counts of premeditated first degree murder and one count of aggravated rape. Penalty Phase

Dr. O.C. Smith again test ified regarding

his find ings from the autopsy of Erica Hurd, including the blunt trauma, skull fractures, and 3 7 sta b wounds. Dr. Smith said that the wounds would have been painful and

that the stab wounds that struck bone would have caused severe pain. Dr. Smith exp lained that the wounds were “in areas that may be targeted, the face, the head, th e chest, the back,” and that they showed “sites of selection, as oppo sed to a random pattern of distribution.” Dr. Smith, noting that some of the wounds wer e severe and oth

ers were super

ficial, testified that it “may imply an element of contr

ol . . . or it may imply an element of torment by being very superficial in nature.”

Severa l witnesses testified on behalf of the defendant. Mickey Granger, the defen dant’ s employer, testified that Mor ris was a good, dep

endable employee who suffered a “downhill slide” in performance when accused of rape shortly before these offe nses. Granger became aware of Morris’s drug problem when he found a crude crack pipe fashioned from a soft drink can.

Jack Thomas, a fr i end of the defendant’s, testified that when he visited Morris in prison, Morris admitted his responsibility for the killings but denied that he raped Angela Ragland. According to Thomas, Morris said that he h ad used a large amount of cocaine on the night of the offenses in an effort to overdose. Several other witnesses, includi

ng teachers and

prison employees, testified that Morris is a good student, participates in class, and is punctual. Several of the witnesses testified that Morris helps others inmates, studies frequently, and uses reference material from the library. The defendant did not testify.6 Effective July 1, 1995, the statute was amend ed to delete the element of deliberation from this definition of first degree murder. Tenn. Code Ann. § 39-13-202(a)(1)(Supp. 1996).
-6- The jury imposed a death sentence for the first degree murder of Erica Hurd after findingthat the evidence of two aggravating circumstances – that the murder was “especially heinous, atrocious
or cruel in that it

involved torture or serious physical abuse beyond that necessary to produce death,” and that the murde

r was “committed w

hile the defenda

nt was engaged in c

ommitting . . . any fir

st degree murder, rape, bu rgl ary or kidnapping” – outweighed mitigating evidence beyond a reasonable doubt. See Tenn. Code Ann. § 39-13-204(i)(5) and (7).

The jury imposed a sent

ence of life with

out parole

for the murder of Charles Ragland after finding that the evidence

of two aggravati

ng circumstance

s – that the defendant “knowingly created
a great risk of death to two or more persons other than the victim murdered during the act of murder” and that the murder was committed while the defendant was engaged in committing any “first degree murder, rape, burglary or kidnapping” – did not outweigh mitig ating evidence b

eyond a reasona

ble doubt. Tenn. Code Ann. § 39-13-204(i)(3) and (7). In a separate sentencing hearing, the trial court im posed a 25-year sentence for the aggravated rape conviction and ordere d that it be s erve d consecutively to the sentence of life without parole.

The Court of

Criminal Appeals affirmed the convictions and the sentences. The case was then docketed in this Court for automatic review.
ANALYSIS Sufficiency of the Evidence

The defendant argues that there was insufficient evidence of premeditation and deliberation to support the first degree murder convictions. The defense theory at

trial was that Morris’s use of crack cocaine rendered him inc apable of formin

g the culpable

mental states to co

mmit the offenses. The State maintain

s that the evidenc

e was sufficient

to support the conv

ictions.

When evaluating the sufficiency of the evidence, we must determine whether “any rational trier of fact could hav

e found the essen

tial elements of th

e cri me beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 , 99 S. Ct. 2781, 2789, 61 L. Ed.2d 560 (1979). We are required to afford the prosecution the strongest legitimate view of the evidence in the record as w

ell
as all reasonable and legitimate inferences which may be drawn therefrom. E.g. , State v. Bland , 958 S.W.2d 651, 659 (Tenn. 1997), cert. denied , 523 U.S. 1083, 118 S. Ct. 1 536, 140 L. Ed.2d 686 (1998). Questions concerning the credibility of the witnesses, the weight to be given the evidence, and any factual issues raised by the evidence are resolved by the trier of fact. Id. ; State v. Cazes , 875 S.W.2d 253, 259 (Tenn . 1994), c ert. denied , 513 U.S. 1086, 115 S. Ct. 743, 130 L. Ed.2d 644 (1995).

At the time these off

enses were committed, first de gree murder inc

luded an “intentio

nal, premeditated

and deliberate killing of another.” Tenn. Code An n. § 39-13 -202(a)(1)(1991). 6 By-7-

statute, “intentionally” is defined as the “conscious objective or desire to engage in the conduct or
cause the result.” Tenn. Code Ann. § 39-11-106 (a)(18 )(1991). A “deliberate” act meant one performed

with a cool purpose, and a “premeditated” act was one done “aft erthe exercise of reflection and judgment.” Tenn. Code Ann. § 39-13-201(b)(1) and (2)(1991).

In Bland , we identified and discussed circumstances that, if established by the proof, m ay warrant the trier of fac

t to find or infer pr

emeditation. The c

ircumstances inc

lude the use of a d

eadly weapon upon an unarmed victim, the particular cruelty of a killi ng, any threats or declarations of intentto kill made by the defendant, proof that the defendant procured a weapon, any preparations to conceal the crime undertaken before the crime is committed, andthe defendant’s calm demeanor immediately

aft e r a killing. Bland , 958 S.W.2d at 660. The element of deliberation, on the other hand, “requires that the killing be done with a cool purpose – in other words, that the killer be free from the passions of the moment.” State v. West , 844 S.W.2d 144, 147 (Tenn. 1992).

We agree with the Cou

rt of Criminal Appe

als’ conclusion that the evidence was sufficient to support both first degree murder convictions. The evidence, indeed the defe ndant’s own state

ment, indicated that Morris confr onted Charles Ragl

and just hours before the offense and warned Ragland that he would “regre

t disrespecting me .” Mo rris th en went to his home, which adjoined the Raglan d’s, procured a shotgun, loaded it with two shells, and waited for Ragland’s wife to arrive home so as to effect his entry into the Ragland’s home. Morris abducted Erica Hurd and forced his way into the Raglan

d’s residence a

t gunpoint.

Once in the hom e, Morris demanded that Charles Ragland give him “dope” and refused Ragland’s offer of money. H e fired one shot,

forcing Ragland

to the floor, and after placing a pillow
over Ragland’s head, f

ired one shot into

his head from close range. Morris proceeded to put Erica Hurd into a closet and tie

Angela Ragland in

another room. He covered a window with a mattress. He retrieved Erica from the closet, beat her, and stabbed her 37 times in the face, head, and chest. The medical examiner testified that the wounds were inflicted in a “targeted” fashion that

showed “sites of selection.” H

aving killed both

Ragland and Hurd, Morris calmly ordered Angela Ragland to bathe him and then f

ix him something to

eat prior to forc

ing her to engage in sexual intercourse. Befor e lea ving the scene some three hours afte

r the offenses be

gan, Morris tried

to wipe off his fingerprints and then hid the shotgun. Accordingly, the evidence revealed numerous circumstances from which the jury could infer bothpremeditation and deliberation: the threats against Charles Ragland just prior to offenses; the procurement

of a shotgun and ammunition; Morris’s lying in wait for an opportunity to enter the victims’ home; the use of a d eadly weapon on t

h e unarmed Ch arles Ragland af ter deliberatel

y covering the victim’s head with a pillow; the savage stabbings of Erica Hurd in a severe yet targeted fashion; Morris’s calm demeanor in bathing and eating after committing two murde

rs; and Morris’s effortsto conceal his fingerprints and hide the murder weapon. Moreover, despite Morris’s use of cocaine prior to the offense, his detailed recounting of the offenses in his statement to officers was nearly identical to that of eyewitness Angela Ragland

. Whe n viewed under the appropriate standards of appellate review, we conclude t hat the evidence was legally sufficient to support the jury’s verdicts as to both counts of first degree murder.7 E.g. , State v. Nichols , 877 S.W.2d 722, 737 (Tenn. 1994), cert. denied , 513 U.S.

1114, 115 S. Ct. 909, 130 L. Ed.2d 791 (1995); State v. Black , 815 S.W.2d 166, 179 (Tenn. 1991).
-8- The defense theory was that Morris was unable to form the culpable mental states of intent and premeditation due

to his excessive use of

crack cocaine

prior to committing the offenses. The trial cou rt allowe d evidence of Mor ris’s use of coca

ine and properly

instructed the jur

y that a defendant’s “voluntary intoxication” could “negate a culpable mental state.” See Tenn. Code Ann. § 39-11-503(a)(1991).

The weight to be given the evidence and the determination of whether the voluntary intoxication negated the c ulpable mental elements were matters for the jury. Given the overwhelming evidence of Morris’s intentional, deliberate and premeditated acts, the jury obviously elected to reject the defense theory. Moreo ver, the defense theory that Morris’s use of cocaine
r ende red him incapable of forming the culpable mental states was refuted by Morris’s own confession in whi ch he recoun ted the offenses in full detail. Acc

ordingly, we find n

o merit to Morris’s contention that his cocaine use rendered the evidence insufficient to s up port the jury’s verdict as a matter of law.
Electrocution Throughout

these proceedings, the defendant has maintained that electrocution is cruel and unusual punishment in violati on of the Eighth Ame

ndme nt to t he United States Constitution and article I, section 16 of the Tennessee Constitution. Conceding that this issue has been rejected by this Court on numerous oc casions, 7 the defendant relies on authority from other states and argues that an evidentiary hearing should be held on such issues as the construction of the electric chair, the
manner of its use and mainte

nance, the possib

ility of ma

lfu nction, and the potential harm and suffering inflicted on tho se executed through electrocution. The State argues that the issue is no longer ripe for review.

Morris was sentenced to

the death penalty

in January of 1997 . As the State notes, in May of 1998, the Tennessee legislature amended statutory law and allowed a defendant who was sentenced to death before January 1, 1999, to sign a written waiver and elect to be executed by lethal injection. Tenn. Code Ann. 40-23-1 14(c) (Supp. 1999 ). The State argu

es that the issue is

notripe for review because the defendant has not

chosen electrocution as the means of death and that, if he does so, any objection to electrocution is waived.

Since the filing of briefs, t he legislature ha

s again amended Tenn. Code Ann. 40-23-114(c), lending further support to the Stat e’ s argument. As amended, the statute now provides for lethal injection as the default manner of execution in all cases in which a defendant has been sentenced to death. 2000 Tenn. Pub. Acts, ch. 614 (enacted March 30, 2000). A defendant may now waive lethal injection and elect electrocution.8 We express no opinion on the constitutionality of lethal injection as the defendan t did not have the opportunity to raise or litigate that issue in the courts below.
-9- The result of the legislation is this – the defendant is no longer under a penalt y of death by electrocution, but rather, death by lethal injection. The issue of whether electrocution is cruel and unusual punishment is no longer properly before the Court. Moreover, the United States Supreme Courthas said that a def

endant who elect

s a certain mean

s of death such as electrocution wa

ives his constitutional challenges to the ma n ner of executing the sentence. Steward v. LaGrand , 526 U.S. 115, 119 S. Ct. 1018, 1020, 143 L. Ed.2d 665 (1999). Accordingly, the defendant is not entitled to relief on this issue. 8

Sufficiency of Aggravating Circumstances

In reviewing a sentence of death, we are to determine whether the evidence supports the jury’s findings with respect to aggravating ci rcu mstances and whether the evidence supports the jury’s conclusion that the aggravating circumstances outweighed mitigatingfactors beyond a reasonable doubt. Tenn. Code Ann. § 39-13-206(c)(1)(1997). We will review each issue in turn. Heinous, Atrocious or Cruel The jury found tha

t the murder of Er

ica Hurd was “e

specially heinous , atrocious or cru el in that it involved torture or serious physical injury b eyond that necessary to produce death.” Tenn. Code Ann. § 39-13-204(i)(5). Morris argues that the evidence w as insuffi cient to support this aggravating circumstance be cause the State did not est

ablish with

certainty whether the victim was alive and conscious when she was stabbed to death.

We have defined “torture” as “the infliction of severe mental or physical pain upon

the victim while he or she remains alive and conscious.” State v. Williams , 690 S.W.2d 517, 529 (Tenn. 1985); Statev. Mann , 959 S.W.2d 503, 511 (Tenn. 1997), cert. denied , 524 U.S. 956, 118 S. Ct. 2376, 141 L. Ed.2d 743 (1998). We have define d “se rious physical abuse beyond that necessary to produce death” as follows:
Because the legislature added

the words ‘serious physical abuse,’ it must be assumed that the legislature intended the words . . . to mean something distinct from ‘torture.’ The word ‘serious’ a

lludes to a matt

er of degre e. The abuse must be physical, as oppose d to mental, a nd it must be ‘beyond that’ or more than

what is ‘necessa

ry to produce death.’ ‘Abus e’ is defined as an act that is ‘excessive’ or which makes ‘improper use of a thing,’ or which uses a thing ‘in a manner contrary to the natural or legal rules for its use.’

Statev. Odom , 928 S.W.2d 18, 26 (Tenn. 1996)(quoting Black’s Law Dictionary 11 (6 th ed. 1990)).9 Although this aggravating circumstance lists other felonies as well, the trial co ur t

properly charged the jury only on those that were raised by the evidence. See Tenn. Code Ann. 

### § 39- 13-303 (1991)(rape); Tenn. Code Ann. 

### § 39-14-402 (1991)(burglary); Tenn. Code Ann. 

### § 39-13- 303 (1991)(kidnapping). In State v. Blanton , 975 S.W.2d 269, 281 (Tenn. 1998), cert. denied , 525 U.S. 1 180, 119 S. Ct. 1118, 14 3 L. Ed.2d 113 (1999

), we held that the

trial court erroneousl

y charged the jury on every felony con tai ned in the aggravating circumstance but that the error was harmless.
-10- The evidence revealed that Erica Hurd was present when Morris shot

Charles Ragland in the he ad at close range. She was then forced

into a closet while

Morris tied up Ange

la Ragland in another room. When Hurd was re trieved from the c

loset, Angela Ragland testified that she heard the victim pleading for

her life, screa

ming, and gasping f

or air for fifteen or tw

enty minutes. The medical examiner testified that the victim suffered blunt trauma to her head that resulted in fract u ring of her skull and 37 stab wounds in the face, head, back and chest. The medical examiner testified that 23 of the stab wound

s were inflicted

while the victim was still alive and that the stab wounds that struck bone would h

ave caused seve

re pain. Accord

ing to the medical examiner, the wounds were inflicted in a targeted, selective manner.

The evidence overwhelmingly supports both torture and serious physical injury beyond that necessary to produce death. E.g. , State v. Mann , 959 S.W.2d at 511 (victim beaten, strangled and stabbed 11 times); Stat e v. Bush , 942 S.W.2d 489 (Tenn.), cert. denied , 522 U.S. 953, 118 S. Ct

. 376, 139 L. Ed.2d 293 (19 97)(victim beate

n and stabbed 43 time

s); State v. Smith , 868 S.W.2d 561 (Tenn. 1993), cert. denied , 513 U.S. 960, 115 S. Ct

. 417, 130 L. Ed.2d 333

(1994)(victim

shot, throat slashed, and stabbed). We therefore conc

lude that the evide

nce in this case was sufficient to support the jury’s finding that the murder was “especially heinous, atrocious or cruel in it that involved torture or serious physical injury beyond that necessary to produce death.”
Murder Committ

ed During Felony

The jury also

found that the murder of Erica Hurd was committed while the defendant “was engaged in committing, or was an accomplice in the commission of, or was attempt ing to commit,
or was fleeing after having committed or attempted to commit any first degree murder, rape, burglary
or kidnapping.” Tenn. Code Ann. § 39-13-207(i)(7)(Supp. 1994). 9 Morris argues that the evidence was insufficient to support this aggravating circumstance because the evidence did not reveal that
a felony was committed d uring the murder o f Erica Hurd and

the jury made no fi

ndings in this regard.

In State v. Terry , 813 S.W.2d 420 (Tenn. 1991), we discussed the app lica tion of this aggravating circum stance and the issue of whether the evidence supports a finding that another felony has been committed during a murder:

Whether the evidence supports a finding that the murder was committed in the

course of, during, or while e

ngaged in the commission of another felony . . . generally depends-11-

o n an analysis of the

temporal, spatial

and motivational re

lationships betwee

n th e capital homicide and the collateral felony, as well as on the nature of the felony and the identity of its victim

. Terry , 813 S.W.2d at 423.

In Terry , the defendant

had been stealing

money from his

church congregation over a period of months and then subsequently killed a church employee. We found that the ev idence did not support a finding of a “nexus” between the murder and the perpetration of a larceny. In contrast, we observed that the aggravating circumstance had been properly applied in numerous cases where the murder involved the victim o

f the felony, a wi

tness to the felony, or a

police officer

attempting to apprehend

the defendant after the commission of the felony, an d was committed “w

ithin close temporal proximity to the commission of the aggravating felony.” Id. at 424; see also State v. Hall , 958 S.W.2d 679, 693 (Tenn. 1997), cert. denied , 524 U.S. 941, 118 S. Ct. 2348, 141 L. Ed.2d 718 (1998)(applying Terry and concluding that the aggravating circumstance was applicable because the felony of arson was committed when the defendant murdered the victim by s etti ng fire to the car she occupied).
Moreover, although the analy sis must focus upon th

e relationship

between the the felony and the murder, it is not required that the felony be committed eithe r before or con

temporaneously

with the murder. See State v. Wright , 756 S.W.2d 669, 673 (Tenn. 1988), cert. denied , 488 U.S. 1034, 109 S. Ct. 848, 102 L. Ed.2d 979 (1989)(where evidence showed two killings occurred within short perio d of ti me, precise sequence was not dispositive of whether aggravating circumstance was applicabl e); State v. Jones , 340 S.E.2d 782, 784 (S.C. 1985)(rape of second victim occurred after murder but aggravating circumstance applied because the offenses were a continuous series of acts with no significant lapse of time).
Here, Erica

Hurd was a witnes s to Morris’s burgla ry of the residen

ce as he force

d his way in at gunpoint; she was a witness to Morris’s murder of Charles Ragland; and she was the victim of a kidn apping when Morris forced her into the closet. Hurd was murdered just moments after th e commission of these offenses and just before Morris’s aggravated rape of Angela Ragland. All of these offenses were

committed at t

he same place, close in time, and a s part of Morris’s

single criminal spree against

these three vict

ims. There was no d

istinction or separ

ation of these

offenses withregard to time, loc

ation, motivation or

any other factor

that w ould rende r this aggravating circumstance inapplicable. We ther efore co nclude that the evidence was sufficient to support the jury’s finding. Mitigating Factors

We now turn to the question of whether the evidence supported the jury’s determination that the two aggravating circumstances outweighed the evidence of mitigating circumstances.

The Eighth and Fourtee

nth Amendments to the United States Constitution and article I, § 16 of the Tennessee Constitution require that a sentencer in a death penalty case consider mitigating-12-

evidence. McKoy v. North Carolina , 494 U.S. 433, 442, 11 0 S. Ct. 1227, 1233, 108 L. Ed.2d 369 (1990); Statev. Cauthern , 967 S.W.2d 726, 738 (Tenn.), cert. denied , 525 U.S. 967, 119 S. Ct. 414, 142 L. Ed.2d 336 (1998). The sentencer is permitted to hear evidence abo ut the de fendant’s background, record and cha racter, as well

as any circumstances about the offense that may mitigate against the death penalty and serve as a basis for imposing a lesser sentence. Cauthern , 967 S.W.2d at 738; see also Tenn. Code Ann. § 39-13-204(j) (1997).

Morris argues tha t the evidence sup ported numerous mi

tigating circumsta

nces, including: th

at his judgment was impaired due to his use of crack cocaine; that he was under extreme mental and emotional disturbance at the time of the crime; that he released Angela Ragland; that he had been
a good, dependable

employee; that he

is a good prisoner a

nd st udent; and that he accepted responsibility for the crimes. We observe that there was evidence in the record to support several of these mitigating circumstances – indeed, in imposing a sentence of life witho ut parole fo r the murder of Charles Ragland, it is obvious that the jury gave careful consideration to the mitigating evidence.

Whether mitigating evidence exists andthe weight to be given to aggravating and mitigating circumstances are issues for the jury. Bland , 958 S.W.2d at 661. Given the overwhelming strength of the two aggravating circumstance s, and the jury’s carefu l consideration of the mitigating evidence,
we conclude that the evidence is suffici e nt to support the jury’s finding that the aggravating circumstances outweighed mitigating evidence beyond a reasonable doubt.

Proportionality

Where a defendant has received a death sentence, we must apply a comparative proportionality

analysis. Tenn. Cod e A nn. § 39-13-206(c )(1)(1997). The

review is designe

d to identify aberrant, arbitrary or capricious sentencing by determining whether the death penalty in a given case is “disproportionate to the punishment imposed on others convicted of the same crime.” Bland , 958 S.W.2d at 662 (quoting Pulley v. Harris , 465 U.S . 37, 42-43, 104 S. Ct. 871, 875, 79 L.Ed.2d 29 (1984)). I f a ca se is “plainly lacking in circumstances consistent with those in cases where the death p enalty h as been imposed,” then the sentence is disproportionate. Bland , 958 S.W.2d at 668

. We employ the precedent-seeking method of comparative propor ti onality, by which we compare a

case with cases involving similar crimes and similar defendants. Bland , 958 S.W.2d at 667. We consider numerous factors regarding the offense: (1) the means of death; (2) the manner of death; (3) the motivation for the killing; (4) the place of death; (5) the victim’s age, physical and psychological condition; (6) the absence or presence of premeditation; (7) the absence or presence of provocation; (8) the absence or presence of justification; and (9) the injury to and effect on other victims.-13-

We also consider numerous factors about the defendant: (1) p rior crim inal record; (2) age, race and gender; (3) ment

al, emotional and p

hysical conditi

on; (4) r ole in the murder; (5) cooperation withauthorities; (6) level of remorse; (7) knowledge of the victim’s helplessness; and (8) potential for rehabilitation. Id. at 667. Since no two defen dants and no two crimes are precisely alike, our review is not mechanical or based on a rigid formula. Id. at 6 68. Similarly , that a defendant in a similarcase or

even the same case has received a sentence less t

han death does not

render a death sentence arbitrary, excessive or disproportionate. State v. Cauthern , 967 S.W.2d at 741.

In this case, the evidence show ed th at the defendant had a confrontation with one of the victims, Charles Ragland, a short time before

the offenses. He

procured his

shotgun, loaded it

with two shells, and waited for an opportunity to gain entry to the Raglands’ home. When that opportunity

came, Morris forced his way into the home by holding a seco nd victim, 15-year-old Erica Hurd, at gunpoint. He demanded drugs, refused Charles Ragland’s offer of money, and shot Ragland in the head at close range. He forc ed Erica H urd into a closet a nd tied up a third vic

tim, Angela Ragland. Wh en he re trieved Hurd fro m the closet, he be

at her and stabbe

d her 37 times. After kill ing two unarmed victims in brutal fashion, Morris took a bath, ate a meal, and forced Angela Ragland to engage in sexu al intercour se. There was no provocation or justification for Morris’s actions, which were at all times intentional, deliberate, and premeditated.

We have found the de

athpenalty neither excessive nor disproportionate in many similar cases involving brutal and gruesome facts that supported the “heinous, atrocious or cruel ” aggr avating circumstance. E.g. , State v. Carter , 988 S.W.2 d 14 5 (Tenn. 1999)(d efendant broke

into victims’ home, shot husband in head, raped wife and shot her in the head); State v. Mann , 959 S.W.2d at 511 (defendant

broke into victim’s home, bea t and raped the vic

tim, and stabbed he

r 11 times); State v. Bush , 942 S.W.2d at 507 ( defendant broke

into victim’s home, beat the victim and stabbed her 43 times); State v. Cazes , 875 S.W.2d at 259 (defendant broke into victim’s home, beat and raped the victim); Statev. Jones , 789 S.W.2d 545 (Tenn. 1990)(defendant broke into victim’s home, bound, g aggedand stabbed victim ); State v. West, 767 S.W.2d 387 (Tenn. 1989), cert. denie d , 497 U.S

. 1010, 110 S. Ct. 3254, 111 L. Ed.2d 764 (1990)(defendant broke into victims ’ home, raped and stabbed mother and daught er); State v. Cone , 665 S.W.2d 87 (Tenn.), cert. denied , 467 U.S. 1210, 104 S. Ct. 2400, 81 L. Ed.2d 357 (1984)( defendant broke

into victims’ home a

nd beat victims to death). Moreover, as can be seen, in each of these cases the defendant broke into t he victim’s residence before committing the murders. Similarly, the deat

h penalty has been upheld where the jury, as it did in this case, found the felony murder aggravating circumstance based on a kidnapping, rape, murder or burglary. Statev. Mann , 959 S.W.2d at 512; State v. Smith , 868 S.W.2d at 583; State v. West , 767 S.W.2d at 397

. Finally, like the present case, numerous cases have invo lved multi ple victims in addition to the murder of the victim for whom the death penalty was imposed. State v. Smith , 868 S.W.2d at 583; Statev. Payne , 791 S.W.2d 10, 12 (Tenn. 1990); State v. Jones , 789 S.W.2d at 550; State v. Henley , 774 S.W.2d 908, 917 (Tenn. 1989), cert. denied , 497 U.S. 1031, 110 S. Ct. 3291, 111 L. Ed.2d 800 (1990); State v. West, 767 S.W.2d at 397; State v. Cone , 665 S.W.2d at 90.-14-

With regard to the characteristics of the defendan t, the record indicated that Morris, age 37,
was a good employee, student and prisoner. He contends that he has the potential for rehabilitation, adapting to incarceration, and that he accepted responsibility for his conduct. We observe, however, that Morris did not testify in mitigation an d di d not express any remorse whatsoever when confessing the offenses to police officers.

The defendant offe

rs two primary re

asons in support of h

is contention that the

death sentence is disproportionate : that the evidenc e did not support t

he aggravating circumstances; and that the defendant committed the offenses while sufferi ng t he effects of crack cocaine. We have already addressed the first arg ument by h aving found that the evidence was suf

ficient to support b

oth aggravating circumstances. With regard to the second argument, we observe that the death penalty has been upheld in numerous cases where the defendan t argued that the offense was mitigated by intoxication due to drugs or alcohol. E.g. , State v. Payne , 791 S.W.2d at 16; State v. Henley , 774 S.W.2d at 912; State v. O’Guinn , 709 S.W.2d 561 (Tenn.), cert. denied , 479 U.S. 871, 107 S. Ct. 44, 93 L. Ed.2d 169 (1986 ); State v. Cone , 665 S.W.2d at 90. Moreover, although drug usage or intoxication has been evident in some cases in which the defendant receive d a s entence less than death, e.g. , State v. Gregory , 862 S.W.2d 574 (Tenn. Crim. App. 1993), it does not alone render a death sentence arbitrary, excessive or disproportionate. Accordingly, having reviewed the nature an d circumstance of the offense and the characteristics of this d efend ant pursuant to the analysis in Bland , we conclude tha t the death sentence imposed in this case was not arbitrary, excessive, or disproportionate.
CONCLUSION

We have reviewed t

he entire recor

d and the argumen

ts raised in this case

and we conclude that the evidence was sufficient to support the convictionand that the issues raised by the defendant do notwarrant relief

. We have also

determined that the evidence supported the jury’s findings of two aggravating circumstances, that the evidence supported the jury’s f inding that these aggravating circumst anc es outweighed mitigat ing evidence bey

ond a reasonable

doubt, and that the

death sentence in this case was not arbitrary, excessive, or disproportionate. Accordingly, we affirm the decision of the Court of Criminal Appeals and attach hereto as an appendix the relevant portions of that opinion. The sentence of death is affirmed and shall be carried outon the 10th day of October, 200 0, unless othe rwise ordered by this Court or proper authority. It appearing that the defendant, Ferris Genner Morris, is indigent, the costs of appeal are taxed to the State.