State of Tennessee v. Kevin Burns

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

FILED

November 9, 1998

FOR PUBLICATION

Cecil W. Crowson

STATE OF TENNESSEE, ) Appellate Court Clerk

) Filed: November 9, 1998

Appellee, )

)

) SHELBY CRIMINAL

Vs. )

) HON. JOSEPH B. BROWN, JR.,

) JUDGE

KEVIN BURNS, )

)

Appellant. ) No. 02-S-01-9708-CR-00073

For Appellant: For Appellee:

Glenn I. Wright John Knox Walkup

WILSON & WRIGHT Attorney General & Reporter

Memphis, Tennessee

Michael E. Moore

Solicitor General

Kenneth W. Rucker

Assistant Attorney General

Nashville, Tennessee

At Trial:

John W. Pierotti

District Attorney General

Thomas D. Henderson

John Wheeler Campbell

Assistant District Attorney Generals

Memphis, Tennessee

OPINION

AFFIRMED ANDERSON, C.J

The defendant, Kevin Burns, was convicted of two counts of felony murder

and two counts of attempted felony murder. The jury imposed the death penalty for

one of the felony murder convictions after finding that evidence of an aggravating

factor -- that the defendant knowingly created a great risk of death to two or more

persons other than the victim murdered -- outweighed the evidence of mitigating

factors beyond a reasonable doubt. The jury imposed a life sentence for the other

felony murder conviction.

On direct appeal, the Court of Criminal Appeals affirmed the convictions and

the sentences for the felony murder convictions, but reversed the attempted felony

murder convictions. After the case was docketed as a death penalty appeal in this

Court pursuant to Tenn. Code Ann. § 39-13-206(a)(1) (1997), we reviewed the Court

of Criminal Appeals’ decision, the record, and the applicable law, and we entered an

order specifying three issues for oral argument.1

We have determined that none of the alleged errors claimed by the

defendant affected the convictions for felony murder or the sentences imposed by

the jury. We have further concluded that the evidence supports the jury’s findings

as to the aggravating and mitigating circumstances, and the sentence of death is not

arbitrary or disproportionate to the sentence imposed in similar cases, considering

the nature of the crime and this defendant. Accordingly, the judgment of the Court

of Criminal Appeals is affirmed.

1

“Prior to the setting of oral argument, the Court shall review the record and briefs and consider

all errors assigned. The Court may enter an order designating those issues it wishes addressed at oral

argum ent.” Ten n. Sup. C t. R. 12.

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BACKGROUND

Guilt Phase

On April 20, 1992, four young men, Damond Dawson, Tracey Johnson, Eric

Thomas, and Tommie Blackman, were sitting in a car in Dawson’s driveway in

Memphis. Dawson was in the driver’s seat, Johnson was in the front passenger

seat, Thomas was in the back seat behind Dawson, and Blackman was in the back

seat behind Johnson.

The defendant, Kevin Burns, and Carlito Adams, who knew Blackman,

walked up to the passenger side of the car. Adams pulled out a handgun and told

Blackman to get out of the car. When Blackman refused, Burns pulled out a

handgun and went around to the driver’s side of the car. Blackman got out of the

car and fled. Adams said “get him,” and three or four more men appeared from

behind hedges and fired at Blackman.

Eric Jones, age fourteen, was playing basketball at Dawson’s house with

three friends. Jones saw the men in the car removing jewelry and pulling money

from their pockets. Seconds later, Jones saw Blackman running toward him.

Amidst gunshots, Jones and Blackman escaped to the back of the house; Jones’

three friends ran to an adjacent yard. Once inside the house, Jones heard seven or

eight more gunshots.

Mary Jones, Eric Jones’ mother, lived across the street from the Dawsons.

She saw Adams shoot Johnson once in the chest. She saw Kevin Burns shoot

Dawson several times, walk to the front of the car, and then shoot Dawson again.

Ms. Jones unequivocally identified Burns and stated that she got “a real good look in

his face” as he ran toward her after the shootings.

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Tracey Johnson died at the scene. Damond Dawson, who suffered five

gunshots to his arm, buttocks, chest, and hip was alive when police arrived but died

after being transported to the hospital. Eric Thomas, who sustained gunshots to his

chest and stomach, survived and made a photo identification of Kevin Burns two

days after the incident. Thomas testified that Burns and the others had “opened

fire” after robbing him and his friends of their jewelry and money. Thomas said that

he initially told police he had been shot by Adams, but explained that he believed he

was going to die and gave police the only name he knew, which was Adams.

On June 23, 1992, Burns was found in Chicago and arrested. After being

advised of his rights and signing a waiver, the defendant gave a statement in which

he admitted his role in the killings. He said that he had received a telephone call

from Kevin Shaw, who told him that four men had “jumped” Shaw’s cousin. Burns,

Shaw, and four others intended to fight the four men, and Shaw gave Burns a .32

caliber handgun. As the others approached a car with four men sitting in it, Burns

stayed behind. He heard a shot, saw a man running across the yard, and fired three

shots. He then left the scene with the other men.

After the guilt phase of the trial, the jury deliberated and returned verdicts of

guilty for two counts of felony murder and two counts of attempted felony murder.

The trial moved into the penalty phase of the proceedings for the jury to determine

the punishment for each of the felony murder convictions.

Penalty Phase

Jonnie Dawson, mother of Damond Dawson, testified that Damond was the

youngest of her three children and seventeen years of age when he was killed. She

said he was a good son who was very good at athletics. The neighborhood had

changed after the killings; people locked their doors and were afraid. Ms. Dawson

testified that she no longer knew what it was like to be happy.

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Brenda Hudson, mother of Tracey Johnson, testified that Tracey was the

oldest of her three children and twenty years of age when he was killed. He had

been working at Wal-Mart and saving money for his four-month-old daughter.

Tracey’s death had greatly affected Ms. Hudson’ other two children, Tracey’s

grandfather, and Tracey’s young daughter:

When you go over to her house to see her, she has a picture in a

frame and she will show you. She’ll say, ‘this is my father -- this is my

daddy, Tracey. He lives in God’s house up in heaven.’ And it’s hard

for me to go see her a lot because it breaks my heart to hear her say

that.

In mitigation, Leslie Burns, the defendant’s mother, testified that the

defendant was twenty-six years of age and had twelve brothers and sisters. He had

graduated from high school and had presented no disciplinary problems while in

school. The defendant’s father, Reverend Obra Carter, testified that his son had

always been obedient and well-mannered. Phillip Carter, the defendant’s brother,

testified that the defendant had been active in the church and had always tried to

avoid trouble.

Norman McDonald, the defendant’s Sunday School teacher, testified that he

had known Kevin Burns for several years. According to McDonald, Burns was a

“faithful” young man who had always attended church regularly. Mary Wilson, a

Captain with the Shelby County Sheriff’s Department, and Bennet Dean, a volunteer

chaplain, both testified that Burns had actively participated in religious services while

in custody for these offenses.

The prosecution relied on two aggravating circumstances to seek the death

penalty for the felony murder convictions -- 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 had been committed for the purpose of

avoiding, interfering with, or preventing a lawful arrest or prosecution of the

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defendant or another. Tenn. Code Ann. § 39-13-204(i)(3) and (6) (1997 & Supp.

1998).

With regard to the felony murder of Damond Dawson, the jury imposed the

death penalty after finding that the evidence supported the “great risk of death”

aggravating circumstance and that this factor outweighed the evidence of mitigating

factors beyond a reasonable doubt. With regard to the felony murder of Tracey

Johnson, the jury imposed a sentence of life imprisonment.

The trial court entered judgment in accordance with the jury’s verdict. The

Court of Criminal Appeals affirmed the convictions and sentences for the offenses of

felony murder, but reversed the convictions for attempted felony murder based on

our opinion in State v. Kimbrough, 924 S.W.2d 888 (Tenn. 1996).2 After our review

of the record and applicable authority, we affirm the Court of Criminal Appeals.

AGGRAVATING CIRCUMSTANCE

The defendant argues that the Court of Criminal Appeals’ reversal of the

attempted felony murder convictions requires a finding that the evidence failed to

support the single aggravating circumstance found by the jury -- that the defendant

knowingly created a great risk of death to two or more persons, other than the victim

murdered. Tenn. Code Ann. § 39-13-204(i)(3). The State maintains that the

evidence overwhelmingly supported the jury’s finding, notwithstanding the reversal

of the attempted felony murders.

We begin by observing that the Court of Criminal Appeals properly reversed

the attempted felony convictions. In Kimbrough, supra, we noted that the statutes

governing attempted crimes require a defendant to intend the commission of a

2

The Court of Criminal Appeals remanded the cases to the trial court for possible retrial for

attempted prem editated murder.

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specific crime or result, while the offense of felony murder requires “a reckless killing

of another” in the course of certain enumerated felonies. Tenn. Code Ann. §§ 39-

12-101 (1997) & 39-13-202(a)(2) (1997 & Supp. 1998). Like nearly every

jurisdiction that has addressed the issue, we concluded that the offense of

attempted felony murder does not exist:

[I]t is illogical that someone could intend to cause someone else’s

death through negligence or even recklessness. While one may

reasonably conclude that a defendant intentionally behaved in a

reckless manner and may have intended to kill the victim, it does not

make sense to say that a defendant intended to kill the victim by being

reckless.

We conclude that one cannot intend to accomplish the

unintended. Consequently, the offense of attempted felony-murder

does not exist in Tennessee.

Kimbrough, 924 S.W.2d at 892.

Aggravating circumstance (i)(3) “contemplates either multiple murders or

threats to several persons at or shortly prior to or shortly after an act of murder upon

which the prosecution is based.” State v. Cone, 665 S.W.2d 87, 95 (Tenn.), cert.

denied, 467 U.S. 1210, 104 S. Ct. 2400, 81 L. Ed. 2d 357 (1984). It most often has

been applied where a defendant fires multiple gunshots in the course of a robbery or

other incident at which persons other than the victim are present. State v. McKay,

680 S.W.2d 447 (Tenn. 1984), cert. denied, 470 U.S. 1034, 105 S. Ct. 1412, 84 L.

Ed. 2d 795 (1985) (defendants killed two victims during robbery and shot at and

threatened two other persons inside store); State v. Workman, 667 S.W.2d 44

(Tenn.), cert. denied, 469 U.S. 873, 105 S. Ct. 226, 83 L. Ed. 2d 155 (1984) (during

a shoot out with police, the defendant killed one officer, wounded a second, and

narrowly missed a third); State v. Johnson, 632 S.W.2d 542 (Tenn.), cert. denied,

459 U.S. 882, 103 S. Ct. 183, 74 L. Ed. 2d 148 (1982) (three shot and injured inside

store; two shot and killed in the parking lot as defendant fled).

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The defendant’s argument is that the prosecution relied upon the attempted

felony murder convictions to establish this aggravating circumstance, and that the

reversal of the convictions renders the aggravating circumstance inapplicable. The

defendant cites the following excerpts from the prosecutor’s closing argument:

We haven’t proven a risk of death to two or more people? My God,

you’ve returned a verdict that he attempted to murder two other

people. It is established, beyond a reasonable doubt, and already

been found as a verdict that there was a risk of death to two or more

people.

....

So, how anybody can say those [the aggravators] weren’t proven when

the verdict proves one of them and going back and shooting him again

proves the other.

....

If you look at the evidence, you know the aggravating circumstances

are there, and one of them has already been found.

The transcript reveals, however, that the above statements were made in the

context of the prosecution’s detailed argument as to the evidence which supported

this aggravating circumstance. In its initial argument, for example, the prosecutor

said:

Now, what we’re talking about is when Mr. Blackman was running from

the car, Eric Jones was in the way of the shooting. Eric Jones

confronted Tommie Blackman as he ran from the car and was caught

in this gunfire. . . . But also there were three other young men playing

basketball on the side of the yard. All three of those young men were

also caught in the gunfire of the individual shooting at Tommie

Blackman. That is risk of death or great bodily injury to persons other

than the intended victims in this case. . . . In addition to Tommie

Blackman, there were four persons that were in the line of fire. That is

one of the aggravating factors. . . .

These points were reiterated in the prosecutor’s rebuttal argument as well:

There wasn’t a risk of death to two or more people. How about . . .

Eric Thomas who caught three rounds in his body fired not by one of

[the] codefendants but by that man [defendant] right there. He shot

him and shot him and shot him. That’s a pretty good risk of death.

How about Tommie Blackman who’s running? There’s a risk of death

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to two people right there, not even counting the children playing

basketball.

....

He went with other armed men. He robbed. He shot and wounded an

unarmed teenager. He helped others shoot at and kill other unarmed

teenagers. With others, he shot in the direction of children playing

basketball; and he personally shot two people repeatedly.

Of even greater significance, however, is that the evidence in this record

overwhelmingly supports the prosecutor’s argument and the jury’s finding that the

defendant knowingly created a great risk of death to two or more persons other than

the victims murdered. The defendant, while armed and acting in concert with

others, approached a car containing four unarmed men. The defendant fired his

weapon inside the car where Dawson, Johnson, and Thomas were seated, killing

Dawson and wounding Thomas. He admitted firing shots at the fleeing Blackman,

which, according to testimony, directly imperiled Eric Jones and the three individuals

who were playing basketball in the Dawson’s driveway.

Accordingly, the evidence overwhelmingly supports the prosecutor’s

argument and the jury’s finding that the defendant knowingly created a great risk of

death to two or more persons other than the victim during the act or murder. The

reversal of the attempted felony murder convictions, which under Kimbrough was

predicated upon a matter of statutory law, does not affect the jury’s finding regarding

the aggravating circumstance.

VICTIM IMPACT EVIDENCE

The defendant argues that the trial court erred in admitting testimony of the

victims’ mothers during the penalty phase of the trial and by allowing the prosecutor

to emphasize this evidence during its closing argument. The defendant contends

that so-called “victim impact” evidence and argument is inflammatory, irrelevant to

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the sentencing determination in a capital proceeding, inadmissible under our death

penalty statutes, and violative of Article I, §§ 8 and 16 of the Tennessee Constitution

and the Eighth and Fourteenth Amendments to the United States Constitution. The

State maintains that the evidence is relevant and admissible in the penalty phase of

a capital trial.

In State v. Nesbit, ___ S.W.2d ___ (Tenn. 1998), we recently held that victim

impact evidence and argument is not per se improper under either statutory or

constitutional law. Our analysis of the sentencing statutes began with Tenn. Code

Ann. § 39-13-204(c), which states:

In the sentencing proceeding, evidence may be presented as to any

matter that the court deems relevant to the punishment and may

include, but not be limited to, the nature and circumstances of the

crime; the defendant’s character, background history, and physical

condition; any evidence tending to establish or rebut the aggravating

circumstances enumerated in subsection (i); and any evidence tending

to establish or rebut any mitigating factors. Any such evidence which

the court deems to have probative value on the issue of punishment

may be received regardless of its admissibility under the rules of

evidence; provided, that the defendant is accorded a fair opportunity to

rebut any hearsay statements so admitted. However, this subsection

shall not be construed to authorize the introduction of any evidence

secured in violation of the constitution of the United States or the

constitution of Tennessee.

(emphasis added).

This statute delineates a procedure which enables the sentencing jury to be

informed about the presence of statutory aggravating circumstances, the presence

of mitigating circumstances, and the nature and circumstances of the crime. As we

said in Nesbit, “the impact of the crime on the victim’s immediate family is one of

those myriad factors encompassed within the statutory language ‘nature and

circumstances of the crime.’” ___ S.W.2d at ___. The statute, therefore, allows the

sentencing jury to be reminded that “just as the murderer should be considered as

an individual, so too the victim is an individual whose death represents a unique loss

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to society and in particular to his family.” Payne v. Tennessee, 501 U.S. 808, 825,

111 S. Ct. 2597, 2608, 115 L. Ed. 2d 720 (1991).3

We also, in Nesbit, recognized that the United States Supreme Court has

held that Eighth Amendment to the United States Constitution does not constitute a

per se bar to the admission of victim impact evidence and argument:

We are now of the view that a State may properly conclude that for the

jury to assess meaningfully the defendant’s moral culpability and

blameworthiness, it should have before it at the sentencing phase

evidence of the specific harm caused by the defendant.

Nesbit, ___ S.W .2d at ____ (quoting Payne, 501 U.S. at 825, 111 S. Ct. at 2608).

Our recent decisions have followed Payne and have held that victim impact

evidence and argument is likewise not precluded by the Tennessee Constitution.

E.g., Nesbit, ___ S.W.2d at ___.

Not all victim impact evidence and argument, however, is appropriate. It

should be limited to “information designed to show those unique characteristics

which provide a brief glimpse into the life of the individual who has been killed, the

contemporaneous and prospective circumstances surrounding the individual’s

death, and how those circumstances financially, emotionally, psychologically or

physically impacted upon members of the victim’s family.” Id. at ___ (citing, Payne,

501 U.S. at 822, 111 S. Ct. at 2607) (footnote omitted).

Moreover, any evidence that threatens to render the trial fundamentally unfair

or poses a risk of unfair prejudice may violate the due process provisions of the

United States and Tennessee Constitutions and must be excluded. Id. The trial

3

In Nes bit, we also o bserve d that State v. Cozzolino, 584 S.W .2d 7 65 (T enn . 197 9), in w hich this

Court had said that evidence must be relevant to an aggravating circumstance or mitigating circumstance,

had not been applied so as to preclude evidence that is relevant to the “nature and circumstances of the

offense.” ___ S.W.2d at ___. We also note that the legislature has since enacted 1998 Pub. Acts, ch.

916, which expressly allows the State to introduce victim impact evidence and argument. This provision

became effective July 1, 1998.

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court should also exclude any evidence where its probative value is substantially

outweighed by its unfair prejudice. Tenn. R. Evid. 403. Finally, the prosecutor and

the trial court should ensure that the prosecution’s argument is restrained and

reasoned, fairly based on the evidence, and not merely an appeal to the bias or

emotional responses of the jury. Nesbit, ___ S.W.2d at ___.

Here, the victims’ mothers testified during the penalty phase. Each related a

few details about their deceased sons. Ms. Dawson testified that the shootings had

a negative effect on her own life: she had divorced, moved to another house, and no

longer knew what it was like to feel happy. Johnson’s mother, Ms. Hudson, testified

that “it had been hard to let go” of the killings, and she cried every day. She also

testified that the killing affected her other two children, her father, and the victim’s

young daughter.

Although evidence regarding the emotional impact of the murder “should be

most closely scrutinized,” Nesbit, ___ S.W.2d at ___, nearly all of this evidence was

limited in scope to a glimpse into the lives of Dawson and Johnson and the effects

of the killings on their immediate families. This testimony was reserved in nature

and not inflammatory, and its admission was not barred by the capital sentencing

statutes or the Constitutions of the United States and Tennessee. Moreover, the

prosecutor did not extensively discuss or emphasize this evidence in summation.

Accordingly, neither the admission of this evidence nor the prosecution’s argument

was improper.

Ms. Dawson also testified, however, that the killings had adversely affected

the entire community -- for instance, people were afraid and kept their doors locked.

The prosecutor emphasized this testimony during closing:

Do you remember the testimony of Miss Dawson? Stay home. Get

back over here on David Street. Stay in your own driveway. Stay in

your own yard. You’ll be safe there. I never thought anybody would

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come up in the yard. It reminds me of the old anonymous African

proverb: It takes a whole village to raise a child. And that’s what this

village was. That’s what David street was. This wasn’t a street.

You’ve heard it described here. This is the neighborhood we all wish

America really had. And that was part of the impact evidence in this

case. They didn’t just kill a couple of more Memphis teenagers and try

to kill a couple more. They killed an entire village. They killed an

entire neighborhood. They destroyed the very backbone of this

community when they do things like that. . . .

....

You’ve heard what it did to this part of Orange Mound -- not just to

families and not just to individuals, but what it did to Orange Mound.

This evidence and argument went beyond “information designed to show

those unique characteristics which provide a glimpse into the life of the individual

who has been killed, the contemporaneous and prospective circumstances

surrounding the individual’s death, and how those circumstances financially,

emotionally, psychologically or physically impacted upon member’s of the victim’s

family.” Nesbit, ___ S.W.2d at ___ (footnote omitted)(emphasis added). The

testimony was not objected to by the defendant, however, and the prosecutor’s

argument was based on this evidence. Although beyond the scope of Nesbit,

neither the evidence nor the argument was inflammatory, and it did not render the

proceedings fundamentally unfair or unduly prejudicial to the defendant. See

Darden v. Wainwright, 477 U.S. 168, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986).

Thus, we conclude the defendant is not entitled to relief on this issue.

PROPORTIONALITY

A comparative proportionality review must be undertaken in capital cases

pursuant to Tenn. Code Ann. § 39-13-206(c)(4) (1997). The analysis is designed to

identify aberrant, arbitrary or capricious sentences by determining whether the death

penalty in a given case is “disproportionate to the punishment imposed on others

convicted of the same crime.” State v. Bland, 958 S.W.2d 651, 662 (Tenn. 1997)

(quoting, Pulley v. Harris, 465 U.S. 37, 42, 104 S. Ct. 871, 875, 79 L. Ed. 2d 29

(1984)). If a case is “plainly lacking in circumstances consistent with those in cases

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where the death penalty has been imposed,” then the sentence is disproportionate.

Bland, 958 S.W.2d at 668.

As we discussed in Bland, we have consistently employed the precedent

seeking method of comparative proportionality review, which compares the case at

issue with other cases in which defendants were convicted of the same or similar

crimes. Since no crimes are precisely alike, the precedent seeking method of review

is not a rigid, mechanical formula. Instead we consider numerous factors regarding

the offense itself: (1) the means of death; (2) the manner of death; (3) the motivation

for the killing; (4) the place of death; (5) the victims’ 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 effects on nondecedent victims. Id. at 667. We also consider

numerous factors about the defendant: (1) age, race and gender; (2) prior criminal

record; (3) mental, emotional, or physical condition; (4) role in the murder; (5)

remorse; (6) cooperation with authorities; (7) the defendant’s knowledge of a victim’s

helplessness; and (8) the defendant’s potential for rehabilitation. Id.

Here, the defendant shot the victim Dawson, walked around the side of the

car, and then returned to shoot Dawson again. Acting in concert with others, the

defendant shot and killed Dawson, shot and wounded Thomas, and shot at the

fleeing Blackman. One apparent motivation for the killing was robbery; another,

offered in the defendant’s own statement, was to assist in a revenge scheme.

There was no evidence to suggest the defendant was provoked or justified in his

actions. The defendant’s main argument with regard to the nature of the offense is

that he did not know that the victims were unarmed.

The defendant was twenty-three years of age when the offense was

committed. He had prior criminal convictions for burglary and theft. There is no

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evidence that he suffered from any emotional, mental, or physical conditions. There

is no evidence that the defendant showed remorse for these crimes or that he

assisted the authorities; indeed, the proof shows that the defendant fled to Chicago

after committing these crimes. The defendant played a major role in the

commission of the crimes, killing Dawson, wounding Thomas, and firing at

Blackman. There is extensive evidence of the defendant’s religious faith and

activities both before and after the offenses, but no other evidence as to his

rehabilitative potential.

Our review reveals numerous cases similar to this one in which the death

penalty was upheld. In Bland, supra, the defendant was convicted of premeditated

murder for shooting an unresisting victim. As in this case, Bland and several co-

defendants had planned to rob the victims. When one of the victims tried to flee,

Bland shot him in the leg, pursued him a considerable distance, and then shot him

several more times as the victim tried to hide under a truck. In addition to the

similarities in how the killings occurred, Bland, age nineteen, was the same

approximate age as Burns, and he had no prior adult criminal record. Also like the

present case, only a single aggravating circumstance found by the jury -- that the

“murder was especially heinous, atrocious, or cruel in that it involved torture or

serious physical abuse beyond that necessary to produce death.” Tenn. Code Ann.

§ 39-13-204(i)(5).

In State v. Van Tran, 864 S.W.2d 465 (Tenn. 1993), the defendant killed a

seventy-four-year-old victim in the course of a robbery. The victim had been shot

once and was lying on the floor when the defendant shot her in the head. The

defendant was age nineteen and had no prior record. Mitigating evidence included

the defendant’s good work record, cooperation with law enforcement, remorse, and

educational problems. The jury imposed the death sentence after finding only one

aggravating circumstance -- that the “murder was especially heinous, atrocious, or

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cruel in that it involved torture or serious physical abuse beyond that necessary to

produce death.” Tenn. Code Ann. § 39-13-204(i)(5).

In State v. McKay, 680 S.W.2d 447 (Tenn. 1984), co-defendants McKay and

Sample were convicted of two counts of felony murder for shooting to death two

store clerks in the course of a robbery. The defendants and victims were the same

race, gender and approximate age. For Sample, the jury found three aggravating

circumstances: great risk of death to two or more persons, murder was committed to

prevent prosecution, and the killing occurred in the perpetration of a felony. Tenn.

Code Ann. § 39-2-203(i)(3), (6), and (7) (1982) [now Tenn. Code Ann. § 39-13-204

(i)(3), (6), and (7)]. McKay had these same aggravators in addition to a prior

conviction for a violent felony. Tenn. Code Ann. § 39-2-203(i)(2) (1982) [now Tenn.

Code Ann. § 39-13-204(i)(2)]. See also State v. Johnson, 632 S.W.2d 542 (Tenn.

1982) (defendant and co-defendant shot three people during a robbery and shot

and killed two people in the parking lot).

In State v. King, 694 S.W.2d 941 (Tenn.1985), the defendant and a co-

defendant entered a tavern, fired a shot into the ceiling and ordered everyone to lie

on the floor. After robbing each individual and taking money from the cash register,

the defendant shot and killed the owner of the tavern. The defendant was convicted

of felony murder and was sentenced to death based upon three aggravating

circumstances: previous convictions for violent felonies; risk of death to two or more

persons; and felony murder. Tenn. Code Ann. § 39-2-203(i)(2), (3), and

(7) (1982) [now Tenn. Code Ann. § 39-13-204(i)(2), (3), and (7)].

In State v. Hurley, 876 S.W.2d 57 (Tenn. 1993), cert. denied, 513 U.S. 933,

115 S. Ct. 328, 130 L. Ed. 2d 287 (1994), the defendant killed the victim by shooting

him once in the head. The jury found the defendant guilty of premeditated murder

and imposed the sentence of death upon finding that the murder was committed

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while the defendant was engaged in committing a felony -- robbery. Tenn. Code

Ann. § 39-2-203(i)(7) (1982) [now Tenn. Code Ann. § 39-13-204(i)(7)].

In State v. Cooper, 718 S.W.2d 256 (Tenn. 1986), cert. denied 479 U.S.

1101, 107 S. Ct. 1332, 94 L. Ed. 2d 183 (1987), the thirty-three-year-old defendant

shot his estranged wife four time while she was trapped inside a cashier's booth.

After shooting the victim once, he walked away, then turned back and resumed firing

at her. The jury imposed the death penalty, as in this case, upon finding that the

murder was especially heinous, atrocious, or cruel in that it involved torture or

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

§ 39-13-204(i)(5)] .

These cases, although not identical, contain numerous similarities to both the

offense and the defendant before us. In each case, the defendant shot and killed

unarmed victims, with robbery being the apparent motive. In four of the cases,

Bland, Van Tran, Hurley, and Cooper, the death penalty was imposed based upon a

single aggravating circumstance found by the jury. In two of the cases, King and

McKay, one of the aggravating circumstances was, as in this case, that the

defendant knowingly created a great risk of death to two or more persons other than

the victim murdered. In two of the cases, Bland and Van Tran, mitigating

circumstances included the youth of the offender and their minimal criminal records

as adults. In all of these cases, this Court upheld the death penalty after finding that

it was neither arbitrary nor disproportionate.

The defendant argues that unlike the defendants in these prior cases, he did

not know that the victims were unarmed. He argues that the case is similar to State

v. Jack Jay North, No. 02C01-9512-CC-00369 (Tenn. Crim. App., Jackson, Dec. 12,

1996), and State v. Horace Jones, No. 117 (Tenn. Crim. App., Jackson, Dec. 4,

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1980) -- first-degree murder cases in which the defendants received sentences of

life imprisonment.

In North, the defendant and a co-defendant entered the victim’s home and

shot the victim several times with a shotgun. The evidence showed that the killing

was committed for the defendants to prove their worthiness to other members of a

gang. In mitigation, North was only twenty years of age, had received a G.E.D, did

not have a lengthy prior criminal record, and testified in a “tearful, emotional

manner.” The jury found three aggravating circumstances were proven but returned

a verdict of life imprisonment.

In Jones, the defendant shot the victim several times in a pool hall. After the

gun misfired and the defendant stopped to reload, the victim attempted to flee and

was shot and killed. The defendant, who was twenty-four, was apprehended and

arrested one month later. There was extensive mitigating evidence including the

defendant’s rehabilitative potential, extreme emotional disturbance, and threatening

actions by the victim. The jury returned a life sentence for the offense.

Although not cited by the defendant or the State, we observe that the present

case bears obvious similarities to Burns’ co-defendants, Carlito Adams and Derrick

Garrin, who were tried separately and received life sentences. Garrin had given a

statement admitting he was present at the scene and fired shots at Blackman; but,

he denied firing shots inside the car. State v. Derrick K. Garrin, No. 02C01-9501-

CR-00028 (Tenn. Crim. App., Jackson, May 24, 1996). Adams testified that he and

Blackman had a prior altercation in which Blackman pulled a gun. He admitted

being at the scene but denied shooting anyone. In the sentencing phase, his family

members and other witnesses testified about his employment history, character, and

rehabilitative potential. His family members asked the jury to spare his life. State v.

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Carlito Adams, No. 02C01-9608-CR-00267 (Tenn. Crim. App., Jackson, Dec. 11,

1997).

Despite these similarities to the present case, our function is not to invalidate

a death sentence merely because the circumstances of the offense are similar to

those in which another defendant or even a co-defendant received a life sentence.

See State v. Cauthern, 967 S.W.2d 726 (Tenn. 1998) (defendant’s death sentence

not disproportionate merely because co-defendant received life sentence). Instead,

we must review factors about the crimes and the defendant and, in comparing these

factors with prior cases, determine whether the case plainly lacks circumstances

found in similar cases in which the defendant received the death penalty. Bland,

957 S.W.2d at 687. Our review in this case reveals numerous comparable cases in

which the death penalty was upheld. Thus, we conclude that the death sentence

was not disproportionate or arbitrary as applied in this case.

CONCLUSION

In accordance with Tenn. Code Ann. § 39-13-206(c) and the principles

adopted in prior decisions, we have considered the entire record and conclude that

the sentence of death was not imposed arbitrarily or capriciously, that the evidence

supports the jury’s finding of the statutory aggravating circumstance, and that the

evidence supports the jury’s finding that the aggravating circumstance outweighed

evidence of mitigating circumstances beyond a reasonable doubt.

We have reviewed all of the issues raised by the defendant and conclude that

they are without merit. With respect to issues not specifically addressed in this

opinion, we affirm the decision of the Court of Criminal Appeals authored by Judge

John Peay and joined in by Judges Joe B. Jones and Joe Riley. Relevant portions

of that opinion are attached as an appendix. The defendant’s sentence of death by

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electrocution is affirmed and shall be carried out on the 9th day of February, 1999,

unless otherwise ordered by this Court or proper authority.

Costs of the appeal are taxed to the defendant, for which execution shall

issue if necessary.

_________________________________

RILEY ANDERSON, CHIEF JUSTICE

CONCUR:

Drowota, Birch, and Holder, JJ.

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