State v. Blanton

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

FOR PUBLICATION

Filed: June 15, 1998

STATE OF TENNESSEE, )

)

APPELLEE, ) CHEATHAM CIRCUIT

)

v. ) Hon. Allen W. Wallace, Judge

)

JAMES BLANTON, ) No. 01S01-9605-CC-00093

)

APPELLANT. )

FOR APPELLANT:

FILED FOR APPELLEE:

Michael E. Terry June 15, 1998 John Knox Walkup

Nashville Attorney General and Reporter

Cecil W. Crowson

Mark Ivandick Appellate Court Clerk Michael E. Moore

Clarksville Solicitor General

Kathy Morante

Deputy Attorney General

Darian B. Taylor

Assistant Attorney General

Nashville

Dan M. Alsobrooks

District Attorney General

J. Kenneth Atkins

Assistant District Attorney General

Pro Tem

James W. Kirby

Assistant District Attorney General

Charlotte

OPINION

COURT OF CRIMINAL APPEALS AFFIRMED HOLDER, J.

OPINION

In this capital case, the defendant, James Blanton, was convicted by a

jury of two counts of first degree premeditated murder, four counts of grand

larceny, and three counts of first degree burglary. A jury sentenced him to death

on both counts of first degree murder based on three aggravating circumstances:

(1) the defendant was convicted of one or more previous violent felonies; (2)

the murder was committed for the purpose of avoiding, interfering with, or

preventing a lawful arrest or prosecution of the defendant or another; (3) the

murder was committed while the defendant was engaged in committing, or was

an accomplice in the commission of, or was attempting to commit, or was fleeing

after committing or attempting to commit, any first degree murder, arson, rape,

robbery, burglary, larceny, kidnapping, aircraft piracy, or unlawful throwing,

placing or discharging of a destructive device or bomb. Tenn. Code Ann.

§ 39-2-203(i)(2), (6) & (7) (1982). In addition to the above aggravating

circumstances, the jury found that Mrs. Vester's murder was especially heinous,

atrocious and cruel in that it involved torture or depravity of mind. Tenn. Code

Ann. § 39-2-203(i)(5). The jury found that no mitigating circumstances

sufficiently outweighed the aggravating circumstances.

On direct appeal to the Tennessee Court of Criminal Appeals, the

defendant challenged both his convictions and his sentences. The appellate

court found that two of the grand larceny convictions should have been merged.

The appellate court, however, affirmed both the defendant's remaining

convictions and his sentences.

The defendant has appealed to this Court raising numerous issues. We

have thoroughly reviewed those issues addressed by the parties' briefs. We

have carefully examined the law, the record and the thorough opinion of the

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Court of Criminal Appeals. We have found that all of the defendant's issues are

devoid of merit and that the evidence amply supports the jury's findings as to

aggravating and mitigating circumstances. The sentence of death was neither

imposed arbitrarily nor was the sentence disproportionate to sentences imposed

in similar cases. Accordingly, the judgment of the Court of Criminal Appeals

upholding the defendant's convictions and sentencing him to death by

electrocution is affirmed.

FACTUAL BACKGROUND

In the early morning hours of June 16, 1988, eight men successfully

escaped from the Kentucky State Penitentiary at Eddyville, Kentucky. The eight

escaped convicts were identified as the defendant, Derrick Quintero, William

Hall, Joseph Montgomery, Ronnie Hudson, Bobby Sherman, Leo Sperling and

Floyd Cook. Sherman was apprehended on June 17, 1988. Sperling and Cook

were apprehended on June 18, 1988. Montgomery and Hudson were seen in

Lebanon, Kentucky, on June 19, 1988, and captured in Kentucky on June 22,

1988. Hall was captured in July of 1988. The defendant and Quintero were

captured shortly after Hall's apprehension.

A 1966 Chevrolet truck owned by Curtis Rogers was stolen in Eddyville,

Kentucky, on the day of the convicts' escape. A number of the escapees

apparently stole the truck to facilitate their escape. The truck was later located in

a wooded area of Stewart County, Tennessee. Two paperweights with

Cumberland Electric logos and several knives were found in or around the truck.

The owner of the truck testified that he had never seen the paperweights before.

The paperweights were later identified as items taken from the Cherry residence,

located near the murder scene.

3

Stewart County, Tennessee, is located in close proximity to the

Tennessee-Kentucky border. A rash of burglaries in the Leatherwood Resort

area of Stewart County began to occur following the convicts' escape from the

penitentiary in Eddyville, Kentucky. The burglarized residences were owned by

Jim McMinn, Essie Settles, Alfred Cherry, Thomas Harris, Neal Foster, and John

and Virginia Crawford. These homes were either summer cabins or permanent

residences.

On Saturday, June 18, 1988, Jim McMinn of Clarksville, Tennessee,

visited his cabin in the Leatherwood area. He arrived at his cabin at

approximately noon. He went fishing in his boat at approximately 1:00 p.m. and

returned around 3:00 p.m. Upon returning, he noticed that two boxes of 20

gauge shotgun shells were lying on the floor of his cabin. He went to the

bedroom where he discovered that his loaded .22 revolver was missing. The

telephone in his cabin had been removed from the wall, and the outside portion

of the phone line had been severed. Mr. McMinn attempted to start his truck but

discovered that the ignition had been destroyed. Both his telephone and an axe

were lying in the bed of his disabled truck. Mr. McMinn walked to a neighbor's

house and called the sheriff's department.

The Stewart County Sheriff's Department had received several reports of

suspicious individuals in the Leatherwood area. The department became

concerned that the escaped convicts were in the area. The department,

therefore, conducted a search of the Leatherwood community. The search

lasted from approximately 11:00 p.m. on Saturday, June 18, until 3:00 p.m. on

June 19. The department was unsuccessful in locating any of the escaped

inmates.

4

On Sunday, June 19, at approximately 1:30 p.m., Essie Settles

discovered that her 1982 Ford Fairmont and some tools were missing from her

garage in Dover, Tennessee. The car was located approximately one week later

in Kentucky. Authorities found a hammer, two crowbars, steel cutters, a

hacksaw, a punch, two screwdrivers, and a chisel inside Ms. Settles' stolen

automobile. A chain saw that was missing from Ms. Settles' garage, however,

was not recovered.

On Wednesday, June 22, Kentucky authorities apprehended both Hudson

and Montgomery near the location where the authorities found Ms. Settles' car .

The convicts exchanged fire with the authorities prior to the convicts'

apprehension. Hudson and Montgomery had in their possession Mr. McMinn's

.22 caliber pistol and Neal Foster's .22 caliber pistol.

Hudson's brother testified that Hudson and Montgomery were waiting for

him at his apartment in Lebanon, Kentucky, on Sunday, June 19, 1988. He

stated that the two men were in a white car with Tennessee plates. He stated

that he and Robert Payne accompanied Hudson and Montgomery to a riverbank

where the convicts hid the car. Judy Hudson also visited with Hudson and

Montgomery at the riverbank. The following morning, the two escaped convicts

followed Ms. Hudson to her home in Campbellsville, Kentucky. They stayed with

Ms. Hudson until the evening when she escorted the convicts to Martha Grover's

apartment. The convicts stayed with Ms. Grover until early Tuesday morning.

The witnesses testified that they never saw the defendant with Hudson or

Montgomery.

On June 19, 1988, the Stewart County Sheriff's Department received two

additional reports of burglaries in the Leatherwood community. Mr. Alfred

Cherry's trailer had been burglarized. Mr. Cherry testified that his trailer was

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approximately three-tenths of a mile from the murder victims' residence. On

Sunday, June 19, Mr. Cherry and several family members visited the trailer and

discovered that the back door had been removed. The inside of the trailer was

in disarray. The bed was unmade, and wet towels were in the shower. The

refrigerator light switch had been taped down to prohibit the light from operating

when the refrigerator door was opened. Mr. Cherry also discovered that the

trailer next door had been burglarized.

Mr. Cherry testified that two bedspreads, a green blanket, a sleeping bag,

a portable radio/tape player, fifteen cassette tapes, a rechargeable flashlight, a

small handsaw, five or six knives, coffee mugs, various canned goods, alcohol, a

toothbrush, underwear and paperweights with the Cumberland Electric logo were

missing. Mr. Cherry positively identified the paperweights found in the 1966

Chevrolet truck owned by Mr. Rogers. Mr. Cherry also positively identified two

knives found at the Foster residence and stated that a third knife found outside

of the Foster's residence was identical to a knife taken from his trailer. The value

of the property taken from the Cherry's trailer was estimated at $ 600.00 to

$ 700.00.

Thomas Harris owned the trailer located next to Mr. Cherry's trailer. He

stated that the back door of his trailer had been pried off and that his trailer was

ransacked. The refrigerator light had been removed, and the sink was full of

dirty dishes. There was food still in a skillet on the stove. He testified that wet

towels and sheets were strewn about, and cigarette burns were all over the

floors. All of his canned food items, quilts, blankets, silverware, butcher knives,

and a fishing tackle box had been taken. The value of the property taken from

Mr. Thomas' trailer was estimated at $ 400.00 to $ 500.00.

6

Mr. Harris also testified that several unauthorized long distance telephone

calls were placed from his trailer. Three of the unauthorized calls had been

placed to a number in Springtown, Texas. These calls occurred on Sunday,

June 19, at 3:51 a.m., 8:55 a.m. and 9:19 a.m. Two additional unauthorized

calls were placed to a telephone number in Hopewell, Pennsylvania, at 4:00 a.m.

and 9:19 a.m. The telephone number called in Springtown, Texas, was listed to

a Bryan Quintero. The telephone number called in Hopewell, Pennsylvania, was

listed to a Barbara Vasser. Ms. Vasser was William Hall's girlfriend at the time

the calls were placed.

On Monday evening, June 20, John Corlew and Arthur Jenkins arrived at

the Leatherwood boat dock. They launched their boat and night-fished in the

Leatherwood Bay. They testified that between 11:30 p.m. and 1:00 a.m. they

heard shots that appeared to emanate from the direction of the murder victims'

residence. Mr. Corlew testified that he first heard two shots that were fairly clear.

Then a pause ensued before he heard two additional shots followed by another

pause and one last shot. Mr. Corlew testified that the first two shots sounded

like repercussions from a pistol or a high-powered rifle. Mr. Jenkins remembered

hearing only four shots.

Corlew and Jenkins returned to the boat dock around midnight to rest. At

approximately 12:00 or 12:15 a.m., Mr. Jenkins saw a red GMC or Chevrolet

pick-up truck drive to the boat dock. A man exited the truck and reached for the

gas pump which appeared to be locked. The man then walked across the front

of the restaurant and went around the corner for approximately five or six

seconds. The man returned to his truck and left. Mr. Jenkins testified that later

a 1977 or 1978 Pontiac pulled into the dock area, circled around and drove

away. Mr. Corlew contacted the Stewart County Sheriff's Department when he

learned of the murders.

7

On Tuesday, June 21, Neal Foster discovered that his house had been

burglarized. Mr. Foster left his home on June 16 and did not return until around

8:30 a.m. on Tuesday, June 21. When Mr. Foster opened his garage door, he

could see that the door into the house was open. He immediately left and went

to a neighbor's house to call the sheriff's department.

Mr. Foster testified that the inside of his house had been ransacked. He

stated that food was on a kitchen counter, two deer steaks were in the

microwave, and his binoculars were sitting on a kitchen counter. He stated that

a green ammunition box, a plastic bag full of old coins, a flashlight, and the

holster for his .22 caliber RG pistol were on the floor of the living room. He

further stated that the hallway floor was littered with a Diet Pepsi can inside two

other tin cans, a tin can of old coins, a notebook that once had old coins in it,

some socks, a shoe box, and a pair of white tennis shoes that did not belong to

him. Towels were strewn around the house. He testified that the shower curtain

in his bathroom was torn and that a pocket knife, towels, socks, a .22 caliber

cartridge box, and a 20 gauge shotgun shell were all on the bathroom counter.

The beds were unmade and had items spread on top of them. The dresser

drawers were open, and items were scattered all around the bedroom, including

two walkie-talkies, a belt buckle, a hacksaw, a 12 gauge shotgun barrel and a

pad that Mr. Foster once had on his 20 gauge shotgun.

Mr. Foster testified that he kept several guns in a walk-in closet. He

stated that he had a .22 caliber pistol, a Glenfield Model 60 .22 caliber rifle, a

Marlin .30-30 caliber lever action rifle, a 20 gauge shotgun, a single shot

shotgun, and a Remington 100 12 gauge shotgun. The 12 gauge shotgun was

rendered inoperable by being sawed off too closely and was lying on his bed. A

portion of both the stock and the barrel of the 12 gauge shotgun had been sawed

off and the spring from the stock was lying near the gun. The 20 gauge shotgun

8

was missing from his house. He, however, identified the 20 gauge shotgun

found in the murder victims' car as his own. He was able to identify the 20 gauge

shotgun by its serial number. Foster's full name carved into the gun.

A portion of the 20 gauge's barrel had also been sawed off and left in

Foster's bedroom. Mr. Foster stated that his .30-30 lever action rifle and some

.30-30 accelerator rifle bullets were also missing from his house. The rifle was

never recovered. Mr. Foster further testified that .30-30 caliber rifle shells, 20

gauge shotgun shells and 12 gauge shotgun shells were missing after the

burglary. The missing 20 gauge shotgun shells ranged from 4 through 7 ½ shot

and were of Sears, Winchester, Federal and Montgomery brands. Coins were

also missing from Mr. Foster's house.

The authorities were able to lift several latent prints at the Foster

residence. A latent left thumb print matching that of Quintero was found on a full

box of Federal 12 gauge shotgun shells. A latent right ring fingerprint matching

Quintero was found on another Federal 12 gauge shotgun shell box. A right

middle finger and a right index fingerprint matching the defendant's were found

on a Federal field load 12 gauge shotgun shell box. A right palm print matching

that of Quintero was lifted from one of the gun stocks. A latent right ring

fingerprint matching that of Hall was lifted from a Diet Pepsi can.

Wayne Vester, the murder victims' son, attempted to reach his parents by

telephone once on Monday, June 20, and twice on Tuesday, June 21. Wayne

became concerned by his failed attempts to reach his parents. He then called

Howard Allor who lived approximately a quarter mile from his parents. Mr. Allor

stated that he had last seen Mr. and Mrs. Vester on the morning of June 17,

when he ate breakfast with them. Mr. Allor informed Wayne that his parents' car

was gone and that he believed they were in Nashville.

9

Wayne Vester unsuccessfully attempted to locate his parents in Nashville.

On June 22, he again called Mr. Allor and asked him to check on his parents.

Mr. Allor drove to Wayne's parents' residence where he discovered their dead

bodies. He attempted to telephone the sheriff from the victims' residence, but

the phone was dead. He then returned to his home and contacted the sheriff's

department.

Wayne Vester and his 12-year-old son had visited his parents the

weekend prior to the murders. Wayne Vester stated that they arrived at his

parents' house on the evening of Friday, June 17, and left Sunday, June 19, at

approximately 5:00 or 6:00 p.m. He had taken groceries to his parents including

Pepsi Colas, lunch meat, bread, and milk.

David Hicks, the Sheriff of Stewart County, was notified of the Vester

murders at approximately 1:00 or 1:30 p.m. on Wednesday, June 22. The

Tennessee Bureau of Investigation ("T.B.I.") conducted the primary investigation

of the crime scene.

The victims' residence had one entryway which was through a screen

door located at the side of the house opposite to the victims' bedrooms. The

screen door, however, did not appear to be damaged. An unopened Pepsi Cola

can lay beside the walkway to the house's door. The packages of Pepsi Cola

that Wayne Vester brought to his parents were no longer on the porch. The

screen in the front bedroom window was missing, and the window was open. A

concrete block had been placed underneath the front bedroom window. The

concrete block appeared to have been taken from in front of a shed located at

the back of the house. A cloth glove which matched a glove found at the

Crawford residence was on the ground by the concrete block. The victims'

maroon 1985 Pontiac Bonneville was missing.

10

There were three windows along the back of the victims' house. The

missing front window screen was lying on the ground near Mrs. Vester's

bedroom window which was one of the back windows. The wires to the

telephone connection box outside the victims' residence had been damaged, and

the line was dead. A live 20 gauge Federal shotgun shell with #6 bird shot was

found lying near the electrical box. A spent 20 gauge #4 shot Federal shotgun

shell casing was found near the shed approximately 18 feet from Mr. Vester's

back bedroom window. The evidence later showed that the spent shell was

likely discharged from the sawed-off 20 gauge shotgun taken from the Foster

residence.

Mr. Vester's window frame was visibly bent, and a few of the glass louvers

were broken. Shards of glass were found lying on Mr. Vester's bed. Both the

screen and curtain covering his window had holes in them which indicated that

Mr. Vester was shot at least once from outside the house. Mr. Vester's body was

found on the floor next to his bed. The covers were drawn back, and there was

blood on both the pillow and the bed. Number 4 and #5 bird shot pellets were

retrieved from Mr. Vester's room. Two shot shell filler wads were found beside

Mr. Vester's body, and a 20 gauge plastic shot wad was recovered from beside

his head. A plastic shot sleeve, one shot shell, a plastic shot wad, and several

shot pellets, all either #4 or #5 bird shot, were recovered from Mr. Vester's body.

Mrs. Vester's body was found lying on the floor of her bedroom next to the

bathroom in a pool of dried blood. Mrs. Vester was shot twice with a 20 gauge

shotgun, once with a high-powered rifle, and stabbed thirteen times. A copper

jacketed bullet was recovered from her body. The screen covering Mrs. Vester's

bedroom window had a hole in it. The condition of the glass louvers, which were

open and not broken, indicated that the high-powered rifle or shotgun was held

close to the window when fired. At least one shot entered Mrs. Vester's window.

11

Evidence indicated that one shot entered Mrs. Vester's window, hit her arm,

ricocheted off the heating unit cover and went out the living room window where

the shot wad created a star-shaped hole. Both blood and tissue were found on

the heating unit cover and on the ceiling. Shot was sprayed all over the house,

especially the kitchen. All of the shot pellets found in the house were either #4

or #5 shot.

Blood was found on Mrs. Vester's bed, and there was a considerable

amount of blood on the bathroom floor. Blood was splattered on both the

bathtub and the commode. The bottoms of Mrs. Vester's feet were also covered

in blood.

The authorities found a pocketbook and a portion of The Tennessean,

dated Monday, June 20, 1988, on the victims' sofa. The local mail carrier

testified that the victims did not receive The Tennessean via mail. A live 20

gauge shotgun shell with #7 ½ shot was found lying on the floor in the front

bedroom next to a ransacked jewelry box.

The medical examiner, Dr. Charles Harlan, testified that the victims died

approximately one and one-half to two hours after they consumed dinner. He

stated that a minimum of three different weapons were used in murdering the

victims. Mrs. Vester's body sustained three gunshot wounds. Gunshot wound A

was located at the right portion of her chest just below the collarbone. A copper

jacket entered the body at wound A and lodged in Mrs. Vester's left arm. The

wound measured approximately a quarter of an inch in diameter and was

basically round in shape. Shotgun wound B was located in the upper arm. The

defect from this gunshot measured 3.4 inches by 1.8 inches and was jagged with

an irregular edge. There were also multiple tangential abrasions associated with

wound B. Shotgun wound C was to the right forearm. Mrs. Vester's two forearm

12

bones were severed leaving the hand and wrist attached to the body only by a

peninsula of soft tissue. Dr. Harlan testified that the gunshot wound to the right

arm could have been from either a high-velocity rifle or a shotgun. He could not

determine the order in which the wounds were inflicted.

Dr. Harlan further testified that Mrs. Vester's body had sustained 13 stab

wounds. She was stabbed once in the middle of the back and 12 times in the

head, neck and shoulder region. A majority of the stab wounds were inflicted to

the left side of her head and neck. Dr. Harlan surmised that the puncture

wounds were made by a squared object with a sharp edge, such as a kitchen or

hunting knife. Two stab wounds severed the right and left common carotid

arteries. The right carotid artery was 90 percent severed, and the left was 10

percent severed. Dr. Harlan testified that the injuries to the carotid arteries

would have been fatal. He further stated that the gunshot wound severing the

right forearm would have been fatal without hospital treatment. Based on his

autopsy, Dr. Harlan determined that Mrs. Vester could have survived the brutal

attack for up to 15 minutes.

Mr. Vester's body had sustained two gunshot wounds. The central defect

from shotgun wound A was located at the head and neck juncture. The total

dispersal pattern of shotgun pellets was 13 inches. Wound A caused significant

injury to the left lung, aorta, and pulmonary artery. Shotgun wound B was to Mr.

Vester's right breast. The total dispersal pattern of shot-gun pellets was

approximately six to eight inches. Shotgun wound B caused trauma to Mr.

Vester's right lung and to the liver. Dr. Harlan recovered shotgun pellets and a

shot column from Mr. Vester's chest and abdomen.

Dr. Harlan determined that Mr. Vester's chest defect indicated a wound

consistent with being shot from a shotgun at a range of approximately six to ten

13

feet. The neck wound was sustained by a shotgun discharge from approximately

10 to 12 feet away. Dr. Harlan testified that Mr. Vester could have survived five

minutes or a little longer.

Following the discovery of the victim's bodies, the Stewart County Sheriff's

Department began checking cabins in the surrounding area. On Thursday, the

officers discovered that the Crawford residence, less than a quarter of a mile

from the Vesters' residence, had been burglarized. John and Virginia Crawford,

from Davidson County, had been at their trailer from the evening of Friday, June

17, until Sunday, June 19, around 2:00 or 2:30 p.m. W hen they left on Sunday,

everything had been clean and orderly at the trailer. When the Crawfords were

notified that their trailer had been burglarized, they drove to the trailer and found

that the back door had been pried open with a pick. The kitchen was a mess.

Canned foods, crackers, and candy bars from the cabinet and refrigerator had

been eaten. Prints were lifted from several items in the trailer. A latent left

thumb print matching that of Hall was lifted from the bottom of a can of ham. A

latent right index fingerprint left by the defendant was lifted from a Butterfinger

candy wrapper found inside the refrigerator. The Crawfords identified two gloves

found at the trailer, one white jersey and one brown jersey, as belonging to Mrs.

Crawford. A patch on one of the gloves had been sewn on by Mrs. Crawford.

Mr. Crawford testified that a flashlight had also been taken from the trailer. One

of the gloves found at the Crawfords' trailer matched a glove found outside the

Vesters' front bedroom window. A fiber analysis of the two gloves indicated that

it was likely that they were originally sold together as a pair.

On June 21, 1988, around 8 a.m., employees of the Memphis Funeral

Home observed three men in a maroon Pontiac, later identified as the victims'

car. The three men in the Pontiac entered the funeral home parking lot and

parked approximately 250 feet from the building. Two employees of the funeral

14

home testified that one man got out of the front seat, took off his tank top and

put on three additional shirts. The two other men also exited the car. Neither

witness could make a positive identification of the three men. They, however,

testified that all three men were white and about the same height, but two of the

men were probably 180 pounds and had darker hair.

The three men remained in the parking lot for approximately five to seven

minutes. Then, after one of them took a satchel out of the trunk, the three men

proceeded to walk towards a hospital across the street from the funeral home.

One of the men turned, walked back to the car, and appeared to have placed an

item back into the car. He then joined the two other men, and they all three

walked off. The funeral home workers assumed that the three men were

construction workers working at the hospital. When, however, the car was not

picked up by Thursday, the funeral employees noticed that the car and its

license plate number matched the description of a missing car reported in the

newspaper. They then contacted the Memphis Police Department.

On the morning of Thursday, June 23, the Memphis Police Crime Scene

Squad responded to the call from the Memphis Funeral Home. The police found

a 1985 maroon Pontiac Bonneville in the funeral home's parking lot. The vehicle

matched the description of the victims' vehicle. The keys were in the car's

ignition. The officers found the sawed-off 20 gauge shotgun taken from the

Foster residence under the floor mat behind the driver's seat. The gun was later

identified as being the gun that likely discharged the spent shell outside of the

victims' residence. The police also discovered a .30-30 caliber cartridge under

the floor mat which matched ammunition taken from Mr. Foster's residence. A

crumpled Budweiser beer can was found under a seat. Three latent prints

identified as belonging to the defendant were lifted from the Budweiser can. No

other prints were found in the car. The officer noted that the extremely hot

15

temperatures in Memphis at the time the car was found made it difficult to lift

prints. Other items retrieved from the vehicle included a Ray-O-Vac flashlight,

electrical tape, thirteen 20 gauge shotgun shells, three 12-ounce Pepsi Colas,

one 12-pack of Pepsi Colas, a portable electric air compressor, a Black & Decker

car vacuum, and a brown umbrella.

Curtis Jones, who was a security guard at the Memphis Greyhound bus

station, testified that he worked Tuesdays and W ednesdays at the bus station in

June of 1988. The bus station was located in downtown Memphis approximately

one mile from the Memphis Funeral Home. His job at the bus station was to

keep individuals out who did not have business at the station. Mr. Jones sat in a

booth at the station and watched the doors to observe who came in and to

determine whether they later purchased tickets. Periodically, he would walk

around and ask people whether they had tickets or if they were waiting for

someone to arrive.

Mr. Jones recalled three men entering the bus station either Tuesday,

June 21, or Wednesday, June 22, between 11 a.m. and 1 p.m. Two of the men

sat down and watched television. One of the two seated men spoke to a man

seated nearby. The third man, who had darker skin and appeared Hispanic,

used a telephone. Mr. Jones approached the two seated men and asked them

whether they had tickets. A man, whom he identified as the defendant, told him

that they would leave as soon as their friend finished using the telephone. The

three men remained in the station five to ten minutes. Later that same day, the

Memphis police stopped by the bus station with a photographic line-up of the

eight escapees. Mr. Jones responded that the defendant, Quintero, and Hall

had previously been at the station. Later in the week, Mr. Jones spoke with

Agent Stout of the T.B.I. Mr. Jones again identified the defendant, Quintero, and

16

Hall from a line-up. Mr. Jones made an in-court identification of the defendant as

the person with whom he had spoken at the bus station.

Agent Stout also interviewed two employees at the Blue Movies West

adult bookstore and entertainment center located across the street from the bus

station. Shirley Denise Morrow testified that she worked as a cashier in the

bookstore in June of 1988. On Tuesday, June 21, the day before her birthday,

three men entered the bookstore around 9:00 or 10:00 a.m. Two of the men

were white and one appeared Mexican. The men traded a few silver dollars and

half dollars for tokens. Ms. Morrow also purchased a few silver dollars and half

dollars for herself.

The men went to the back of the establishment to watch movies.

Approximately ten minutes later, the men then returned to the front of the

establishment. They attempted to sell Ms. Morrow what appeared to be a class

ring and a wedding band. Ms. Morrow declined and suggested they try a pawn

shop. One of the men then indicated that they did not have any identification

and offered Ms. Morrow $ 50.00 to let them stay in the movie house until their

transportation arrived. Ms. Morrow declined their offer. A dancer then came out

from the back of the establishment and said something to the men. The men

left, and Ms. Morrow contacted the police.

Agent Stout showed Ms. Morrow a photographic array of the eight

escapees. Ms. Morrow identified the defendant, Quintero, and Hall as the three

men who visited the bookstore. Agent Stout took six silver dollars that the men

had sold to Ms. Morrow. The silver dollars were later identified by Mr. Foster as

identical to coins stolen from his residence. Ms. Morrow also made an in-court

identification of the defendant.

17

Hall was eventually captured in El Paso, Texas. Both the defendant and

Quintero were captured in Mexico near El Paso. Barbara Vasser, Hall's girlfriend

at the time, testified that after Hall called her for a third time following the escape,

her mother called the Pennsylvania State Police. Ms. Vasser testified that she

was afraid for Hall's safety so she agreed that if Hall called again, she would set

up a time and place where she could wire Hall money. Hall called Ms. Vasser on

July 6, 1988. Vasser agreed to wire him money to the Western Union on North

Stanton Street in El Paso, Texas. The Federal Bureau of Investigation ("F.B.I.")

was notified, and surveillance was established at the Western Union. Hall

entered the Western Union in El Paso at approximately 2:20 p.m. and was

apprehended.

The F.B.I. subsequently received leads that both the defendant and

Quintero were staying at the Santa Fe Hotel in Juarez, Mexico. Juarez is located

just across the border from El Paso, Texas. On July 10, 1988, Quintero and the

defendant were apprehended at the hotel by Mexican officials and transported

across the international bridge. F.B.I. agents met with Mexican officials at a

border check point and took custody of both the defendant and Quintero. An old

wallet with an imprint of Mr. Foster's driver's license was found on Quintero.

The defense attempted to present the testimony of both Quintero and

Hall. Both convicts, however, invoked their privilege against self-incrimination

and refused to testify. The trial court informed the jury that both Quintero and

Hall had invoked their right not to testify and instructed both men to hold up their

hands for the jury to observe. The defendant was not allowed to introduce into

evidence the affidavits prepared by either Quintero or Hall.

The jury convicted the defendant of two counts of first degree

premeditated murder, four counts of grand larceny, and three counts of first

18

degree burglary. During the sentencing phase, the State introduced proof that in

1981 the defendant had been convicted of murder. The State also showed that

the defendant pled guilty to first degree wanton endangerment in 1985. An

officer at the Kentucky State Penitentiary at Eddyville, Kentucky, identified the

defendant as one of the eight inmates who had escaped from the facility on June

16, 1988.

Finally, the State introduced additional photographs and testimony

concerning Mrs. Vester's body. Mrs. Vester was found lying in her bedroom just

outside the bathroom. The State introduced photographs depicting the amount

of blood on the bathroom floor and depicting the blood on the bottoms of Mrs.

Vester's feet. The State also introduced a photograph of Mrs. Vester's body

rolled over so that the jury could see the severity of her injuries and the brutality

of the attack.

In mitigation, the defendant presented testimony that he was born on

November 8, 1958, in Perry County, Kentucky. He spent a portion of his early

childhood in Hazard County, Kentucky. Julie Maddox, a psychological examiner

and an expert in the field of psychological testing, testified as to the results of

various tests that she administered to the defendant. The first test was the

Bender Gestalt Test, which is designed to determine whether a person has any

severe brain damage. Ms. Maddox found no signs of traumatic brain damage in

the defendant. The defendant, however, appeared to be intellectually impaired.

The second test administered was the Wide Range Achievement Test,

revised ("WRAT"). The defendant achieved a score of 20 out of 66 in arithmetic

placing him in the .1 percentile and at a fourth grade level. The defendant

achieved a score of 8 out of 51 in spelling which placed him in the .2 percentile

19

and at a fourth grade level. The defendant scored 29 out of 89 in reading which

placed him in the .2 percentile and at a level lower than the third grade.

Ms. Maddox also administered the Wexler Adult Intelligence Scale

Revised Test ("Wexler") which measures I.Q. The defendant received a verbal

I.Q. level of 74, a performance I.Q. level of 77, and a full-scale I.Q. level of 74.

This score placed the defendant in the lower three percentile range indicating

that ninety-seven percent of the population scored higher. The error range on

this test is plus or minus five points. Ms. Maddox testified that a score of 90 to

109 is considered average and a score of 70 or below indicates mild mental

retardation.

Ms. Maddox further administered a Minnesota Multi-Phase Personality

Inventory ("MMPI”) but stated that she had not brought that test with her. She

testified that there were no indications from the test that the defendant was

malingering.

Next, the defense presented the testimony of Susan Cannon, executive

director of PEACE, Inc. (Project to End Abuse Through Counseling and

Education) located in Nashville, Tennessee. She introduced into evidence the

defendant's school records from first through eighth grade. She also testified

that male children typically learn violent behavior at home and repeat it in their

own home as an adult.

The defendant's maternal aunt, Lucy Coots, testified that she has lived

her entire life in Perry County, Kentucky. She testified that the defendant's

father, George Blanton, was a violent man who would come home drunk and

beat his wife and children. She further testified that the defendant grew up under

difficult family and economic conditions. The defense presented two CBS

20

documentaries on living conditions in Perry and Knott Counties, Kentucky, during

the time the defendant was growing up. Ms. Coots testified that the

documentaries accurately depicted the living conditions of the defendant's family.

After the defendant's father went to prison, the defendant's mother married

another man who was a good father to the children. He died of cancer about two

years after the marriage. The defendant's mother died about three years after

the death of the defendant's stepfather. Ms. Coots testified that the defendant

often called her on the telephone and wrote her letters.

The defendant's brother and sister testified. They confirmed Ms. Coots'

testimony concerning the Blanton family's living conditions. The defendant had

six siblings, one of whom died from muscular dystrophy. Neither witness had

seen or heard from the defendant in ten or eleven years. One of the defendant's

brothers is incarcerated in the Kentucky State Penitentiary at Eddyville,

Kentucky.

In rebuttal, the State presented Dr. Samuel Craddock, who testified that

he was part of an investigation team that interviewed the defendant on April 17,

1991. From his examination, Dr. Craddock determined that the defendant was

functioning in the low/average or dull/normal range of intelligence depending on

which edition of the Wexler Intelligence Scale was used.

Finally, the State presented testimony that the defendant had sent several

coded letters to Joseph Montgomery in the Kentucky State Penitentiary while the

defendant was in the Tennessee Department of Correction. Although the letters

contained numerous capitalization and spelling errors, they were introduced to

rebut testimony that the defendant was of low intelligence.

21

Based on this proof, the jury sentenced the defendant to death for the

murders of Buford and Myrtle Vester.

HEINOUS, ATROCIOUS, AND CRUEL

The defendant argues that Tenn. Code Ann. § 39-13-204(i)(5) was not an

appropriate basis for sentencing him to death. His argument is premised on the

following contentions: (1) that the evidence is insufficient to support application

of (i)(5); (2) that there is no evidence indicating that the defendant stabbed or

shot the victims; (3) that the trial court erred in instructing the jury on the pre-

1989 version of (i)(5) in 1991; and (4) that (i)(5) as instructed was

unconstitutionally vague prior to the 1989 amendment. We disagree.

Upon review, we find that the evidence is clearly sufficient to support a

jury finding that Mrs. Vester's murder was heinous, atrocious and cruel. The

evidence indicates that Mr. and Mrs. Vester were in their beds prior to being

murdered. Mrs. Vester's room was separated from Mr. Vester's room by a small

bathroom. The perpetrators positioned themselves by both Mr. and Mrs.

Vesters' bedroom windows. The perpetrators then shot the Vesters from outside

the house while the Vesters lay in their beds.

Mrs. Vester was initially shot at least once while she lay in bed. At least

one shot originated from outside her bedroom window. She apparently

attempted to save her life by fleeing into an adjacent bathroom. The bathroom

was in a direction away from her window and toward Mr. Vester's room which

also received gunfire. The perpetrators then entered the Vester residence.

Mrs. Vester sustained a shotgun blast to her right forearm which severed

both bones in her forearm. Her wrist, hand and lower arm were left attached to

22

her upper forearm only by a small peninsula of skin and flesh. She sustained

one shotgun blast to her right shoulder which left a wound nearly three-and-one-

half inches by two inches. She was also shot with a high-powered rifle. The

high-powered rifle shot entered her upper chest just below her right collar bone.

The evidence indicates that Mrs. Vester struggled to save her life while

her arm was practically severed from her body. The bottoms of her feet were

covered in blood indicating that she had walked through her own pool of blood in

an attempt to flee the attack. She, however, was stabbed once in the left cheek,

seven times in the left side of her neck, twice in the front of her neck (once on

the left side and once on the right side), once just below the right collar bone

(next to the defect caused by the high-powered rifle), once to the left shoulder,

and once in the middle of her back. The medical evidence presented indicates

that Mrs. Vester could have remained alive for as long as fifteen minutes during

the brutal attack or after receiving her wounds. She then apparently died face

down in a pool of her own blood. The evidence amply supports a finding of

torture under Tenn. Code Ann. § 39-13-204(i)(5).

"In proving that torture occurred, the State, necessarily, also proves that

the murder involved depravity of mind." State v. Williams, 690 S.W.2d 517, 529

(Tenn. 1985). The defendant's actions were reprehensible. He shot the victims

initially from outside their home. He then entered the victims' residence

whereupon he inflicted numerous wounds upon Mrs. Vester. The multiplicity of

the wounds, the infliction of gratuitous violence and the evidence of torture amply

supports a finding of depravity of mind under Tenn. Code Ann. § 39-13-204(i)(5).

The defendant's next contention is that "there is no evidence that James

Blanton shot or stabbed [Mrs.] Vester." This contention, however, is best

addressed by a sufficiency of the evidence review. The jury found the defendant

23

guilty of murdering Mrs. Vester. The Court of Criminal Appeals found that the

evidence was sufficient to support the conviction. Upon review of the record, we

hold that the evidence was clearly sufficient to support the convictions.

The defendant's next assignment of error is that the trial court erred in

instructing the jury with the pre-1989 version of Tenn. Code Ann.

§ 39-13-204(i)(5). The defendant murdered the victims in 1988 prior to the

effective date of the 1989 revisions. Accordingly, the jury was properly charged

as to the aggravating circumstance as defined by the pre-1989 statute. State v.

Brimmer, 876 S.W.2d 75 (Tenn. 1994).

The defendant argues that the pre-1989 version of (i)(5), as charged, was

unconstitutionally vague. He specifically argues that the phrase "depravity of

mind" rendered the pre-1989 statute unconstitutional. This Court, however, has

previously held that the pre-1989 (i)(5) aggravating circumstance was neither

unconstitutionally vague nor over broad. See State v. Williams, 690 S.W.2d 517,

526-30, 533 (Tenn. 1985); State v. Barber, 753 S.W.2d 659, 670 (Tenn. 1988),

cert. denied, 488 U.S. 900, 109 S.Ct. 248, 102 L.Ed.2d 236 (1988); State v.

Black, 815 S.W.2d 166, 181 (Tenn. 1991) (Reid, C.J., Daughtrey, J. concurring

and dissenting). This issue is without merit.

INSTRUCTING ON ALL AGGRAVATING CIRCUMSTANCES

The defendant makes basically three assignments of error concerning the

trial judge's instructions to the jury on the aggravating circumstances. First, he

argues that the trial court erred in instructing the jury on every felony under Tenn.

Code Ann. § 39-13-204(i)(7). He further argues that the trial court erred in

instructing the jury on all twelve aggravating circumstances. Finally, he argues

24

that the trial court erred by failing to require the jury to find, pursuant to (i)(5), that

the defendant had the specific intent to torture the victim.

The jury found aggravating circumstance (i)(7) applicable. Specifically,

the jury found that the victims' murders were "committed while the defendant was

engaged in committing or was an accomplice in the commission of, or was

attempting to commit, any first degree murder, arson, rape, robbery, burglary,

larceny, kidnaping, aircraft piracy, or unlawful throwing, placing, or discharging of

a destructive device or bomb." The defendant argues that because the trial

judge charged every felony listed under (i)(7), "one may conclude that the jury

found murder in the commission of murder, or murder in the commission of air

piracy."

The better practice certainly is to charge those felonies that may be

supported by the facts. State v. Buck, 670 S.W.2d 600, 608 (Tenn. 1984).

Moreover, charging all felonies under (i)(7) without regard to whether the felonies

are supported by the evidence is error. We, however, find the error harmless as

application of the (i)(7) aggravating circumstance is amply supported by the

evidence.

The defendant assigns error in the trial judge's decision to instruct the jury

on all twelve aggravating circumstances. The Court of Criminal Appeals held

that, while error, the error was harmless, because the evidence supported the

jury's application of (i)(2), (i)(6), and (i)(7) for both murders. In addition, the jury

found (i)(5) applicable only to the murder of Mrs. Vester. This finding indicates

that the jury thoroughly reviewed the evidence and applied the aggravating

circumstances in a non-arbitrary manner. Upon review, we agree with the

appellate court's holding and find no reversible error as to instructing the jury on

all twelve aggravating circumstances.

25

The defendant contends that (i)(5) required the jury to find that the

defendant had the specific intent to torture the victim.1 Circumstance (i)(5),

however, does not require a mens rea. We find that (i)(5) focuses on the

circumstances of the killing. We, therefore, hold that the torture prong of (i)(5)

merely requires a jury finding that the victim remained conscious and sustained

severe physical or mental pain and suffering between the infliction of the wounds

and the time of death. Whether the defendant intended the victim's suffering is

irrelevant under (i)(5). This issue is without merit.

COMPARATIVE PROPORTIONALITY REVIEW

In conducting a comparative proportionality review, we begin with the

presumption that the sentence of death is proportional with the crime of first

degree murder. State v. Hall, 958 S.W.2d 679 (Tenn. 1997). A sentence of

death may be found disproportionate if the case being reviewed is "plainly

lacking in circumstances consistent with those in similar cases in which the death

penalty has previously been imposed." Id. (citing State v. Ramsey, 864 S.W.2d

320, 328 (Mo. 1993)). A sentence of death is not disproportionate merely

because the circumstances of the offense are similar to those of another offense

for which a defendant has received a life sentence. State v. Bland, 958 S.W.2d

651 (Tenn. 1997) (citing State v. Carter, 714 S.W.2d 241, 251 (Tenn. 1986)).

Our inquiry, therefore, does not require a finding that a sentence "less than death

was never imposed in a case with similar characteristics." Bland, 958 S.W.2d at

665. Our duty "is to assure that no aberrant death sentence is affirmed." Id.

(citing State v. Webb, 680 A.2d 147, 203 (Conn. 1996)).

1

We note that the jury was instructed pursuant to State v. Williams, 690

S.W.2d 517 (Tenn. 1985), on circumstance (i)(5).

26

Our proportionality review is neither a rigid nor an objective test. Hall, 958

S.W.2d at 699. There is no "mathematical formula or scientific grid," and we are

not bound to consider only cases in which the same aggravating circumstances

were found applicable by a jury. Id.; State v. Brimmer, 876 S.W.2d 75, 84 (Tenn.

1994). This Court considers many variables when choosing and comparing

cases. Bland, 958 S.W.2d at 667. Among these variables are: (1) the means

of death; (2) the manner of death (e.g., violent, torturous, etc.); (3) the motivation

for the killing; (4) the place of death; (5) the similarity of the victims’

circumstances including age, physical and mental conditions, and the victims’

treatment during the killing; (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 non-decedent victims. Id.; Hall, 958 S.W.2d

at 699. Factors considered when comparing characteristics of defendants

include: (1) the defendant’s prior criminal record or prior criminal activity; (2) the

defendant’s age, race, and gender; (3) the defendant’s mental, emotional or

physical condition; (4) the defendant’s involvement or role in the murder; (5) the

defendant’s cooperation with authorities; (6) the defendant’s remorse; (7) the

defendant’s knowledge of helplessness of victim(s); and (8) the defendant’s

capacity for rehabilitation. Id.; Bland, 958 S.W.2d at 667.

Justice Reid opines in his dissenting opinion that a sentence of death in

this case is disproportionate to sentences in similar capital cases because the

evidence here does not show that the defendant himself killed or was an active

participant in the killing. By its verdict, however, the jury in this case found

beyond a reasonable doubt that the defendant committed premeditated first

degree murder. An appellate court is no longer concerned with the sufficiency of

the evidence when performing a comparative proportionality review. A reviewing

court shall construe the circumstances of the case in a manner in full accord with

the jury's verdict and compare those facts with the circumstances of similar

27

cases. The reviewing court, therefore, must consider proven the fact that the

defendant was involved in the crime to the degree that he is criminally

responsible for the murder.

We have reviewed Rule 12 reports from trial judges submitted over the

past eighteen years in all criminal trials for first degree murder in which life

imprisonment or a sentence of death has been imposed. We have made an

independent, conscientious and thorough review of this case, as we have in

every other capital case that has been before this Court. Considering the

brutality of the defendant's crime and his characteristics, we find that imposition

of the death penalty in this case is not disproportionate to the penalty imposed in

similar cases. Mrs. Vester was sixty-nine years old at the time the defendant

murdered her. She was shot at least once from outside her house while she lay

in bed. Her husband was shot and murdered in an adjacent room. He died of

multiple shotgun wounds to the head, neck and chest.

The evidence indicates that Mrs. Vester struggled to evade the brutal

attack that severed her forearm and left her wrist and hand attached only by a

small peninsula of soft tissue. The record indicates that she was shot twice with

a shotgun and shot once with a high-powered rifle. She was then stabbed

thirteen times. The stab wounds were to her face, head, neck, shoulder, back

and upper chest. The bottoms of her feet were covered in blood indicating that

she attempted to flee the attack by walking through her own pool of blood.

Medical testimony indicates that she survived for as long as fifteen minutes

following the infliction of her wounds.

The defendant had escaped from prison and was fleeing authorities when

he murdered the victims. The defendant had a criminal record of violent crimes

which included a prior murder conviction and first degree wanton endangerment.

28

The defendant has neither shown remorse nor appears to be a candidate for

rehabilitation. The defendant committed these brutal crimes only three days

after escaping from the confines of a penitentiary and entering society. The

nature of Blanton's crime, his criminal background, his infliction of unnecessary

and gratuitous violence and his complete disregard for human life places him

into that class of criminals for whom a sentence of death is appropriate.

Cases that are comparable concerning multiplicity of wounds, infliction of

gratuitous violence, and the defendant's IQ range are as follows: State v. Payne,

791 S.W.2d 10 (Tenn. 1990); State v. Jones, 789 S.W.2d 545 (Tenn. 1990);

State v. Thompson; 768 S.W.2d 239 (Tenn. 1989); State v. McNish, 727 S.W.2d

490 (Tenn. 1987); State v. Barber, 753 S.W.2d 659 (Tenn. 1988); State v.

Melson, 638 S.W.2d 342 (Tenn. 1982).

In State v. Payne, 791 S.W.2d 10 (Tenn. 1990), a twenty-year-old

defendant was convicted on two counts of premeditated murder and sentenced

to death on both counts. In Payne, the defendant stabbed one victim

approximately forty-two times and the other victim approximately nine times.

The defendant's IQ was in the range of 70 to 100. This Court affirmed both

sentences of death based on Tenn. Code Ann. § 39-2-203(i)(3) & (5).

In State v. Jones, 789 S.W.2d 545 (1990), a thirty-eight year-old

defendant was convicted of both premeditated and felony murder and sentenced

to death. In Jones, the defendant bound, gagged and blindfolded the victim who

was then stabbed six times. The defendant's IQ was in the range of 70 to 100.

This Court affirmed his death sentence based on Tenn. Code Ann.

§ 39-2-203(i)(2), (5) & (7).

29

In State v. Thompson, 768 S.W.2d 239 (Tenn. 1989), a twenty-two-year-

old defendant was convicted of felony murder and sentenced to death. In

Thompson, the defendant abducted his female victim at gunpoint and took her to

a remote location. He then repeatedly stabbed the victim inflicting two fatal

wounds to the right lung. Testimony indicated that the victim could have

remained conscious for five to ten minutes. The defendant's IQ was in the range

of 70 to 100. This Court affirmed the death sentence based on Tenn. Code Ann.

§ 39-2-203(i)(5), (6) & (7).

In State v. Barber, 753 S.W.2d 659 (Tenn. 1988), a twenty-nine-year-old

defendant was convicted of felony murder and sentenced to death. In Barber,

the defendant repeatedly struck his seventy-year-old female victim in the head

with a crescent wrench. Evidence indicated that the victim remained alive while

the blows were inflicted. The trial judge described the defendant's IQ as

average. In mitigation, the trial judge listed that the defendant was capable of

rehabilitation. This Court affirmed the death sentence based on Tenn. Code

Ann. § 39-2-203(i)(5) & (7).

In State v. McNish, 727 S.W.2d 490 (Tenn. 1987), a twenty-nine-year-old

defendant was convicted of first degree murder and sentenced by the jury to

death. In McNish, the defendant murdered a seventy-year-old female victim by

striking her in the head repeatedly with a glass vase. The victim survived the

attack for a short time but later died from hemorrhaging of the brain. The

defendant's estimated IQ was in the range of 70 to 100. This Court affirmed his

sentence of death based on Tenn. Code Ann. § 39-2-203(i)(5).

In State v. Melson, 638 S.W.2d 342 (Tenn. 1982), a forty-eight-year-old

defendant was convicted of premeditated murder and sentenced to death by a

jury. In Melson, the victim died from multiple blunt traumas to the head and neck

30

after the defendant struck the victim approximately 15 to 30 times with a

hammer. The defendant's IQ was in the range of 70 to 100. This Court affirmed

the death sentence based on Tenn. Code Ann. § 39-2-203(i)(5) & (i)(6).

Cases in which this Court has affirmed a sentence of death with

comparable or less gratuitous violence and multiplicity of wounds and with a

defendant having a lower IQ are as follows: State v. Smith, 893 S.W.2d 908

(Tenn. 1994); State v. Smith, 695 S.W.2d 954 (Tenn. 1985); State v. Coleman,

619 S.W.2d 112 (Tenn. 1981).

In State v. Smith, 893 S.W.2d 908 (Tenn. 1994), a forty-one-year-old

defendant was convicted of felony murder and sentenced to death. In Smith, the

defendant broke into an eighty-eight-year-old woman's home. He robbed her,

raped her, cut her throat and placed her into a bathtub full of water. The victim

was alive when water entered her lungs. The defendant suffered from

diminished intellectual capacity and was classified as "mentally retarded." This

Court affirmed the death sentence based on Tenn. Code Ann. § 39-13-203(i)(2)

& (5).

In State v. Smith, 695 S.W.2d 954 (Tenn. 1985), a twenty-three-year-old

defendant was convicted of felony murder and sentenced to death. In Smith, the

defendant robbed and killed a seventy-one-year-old male. The victim was shot

twice. The defendant's IQ was in a range lower than Blanton's IQ range. The

defendant, unlike Blanton, confessed and cooperated with the police. This Court

affirmed the death sentence based on Tenn. Code Ann. § 39-2-203(i)(7).

In State v. Coleman, 819 S.W.2d 112 (Tenn. 1981), a twenty-two-year-old

defendant was convicted of felony murder and sentenced to death. In Coleman,

the defendant shot and robbed a sixty-nine-year-old victim. The defendant's IQ

31

was in a range lower than Blanton's IQ range. This Court affirmed the death

sentence based on Tenn. Code Ann. § 39-2-203(i)(2) & (7).

Cases in which this Court has affirmed a sentence of death with less

gratuitous violence and where the evidence did not positively identify the shooter

include: State v. Sample, 680 S.W.2d 447 (Tenn. 1984); State v. McKay, 680

S.W.2d 447 (Tenn. 1984); State v. Dicks, 615 S.W.2d 126 (Tenn. 1981); State v.

Strouth, 620 S.W.2d 467 (Tenn. 1981).

In State v. Sample, 680 S.W.2d 447 (Tenn. 1984), a twenty-five-year-old

defendant was convicted of felony murder and sentenced to death. In Sample,

two clerks were shot to death during a robbery. Sample appeared to be the

leader in the commission of the crime with his partner McKay who also received

a sentence of death. The evidence, however, did not establish the identity of the

shooter. This Court affirmed the death sentence based on Tenn. Code Ann.

§ 39-2-203(i)(3),(6) & (7).

In State v. McKay, 680 S.W.2d 447 (Tenn. 1984), a twenty-five-year-old

defendant was convicted of felony murder and sentenced to death. In McKay,

two clerks were shot during the course of a robbery. Evidence did not indicate

that McKay was the leader in commission of the crime. Evidence also did not

establish the shooter's identity. McKay was a codefendant with Sample who also

received a sentence of death. This Court affirmed the death sentence based on

Tenn. Code Ann. § 39-2-203(i)(2), (3), (6) & (7).

In State v. Dicks, 615 S.W.2d 126 (Tenn. 1981), a twenty-one-year-old

defendant was convicted of felony murder and sentenced to death. In Dicks, the

defendant and his codefendant Strouth robbed a store. During the course of the

robbery, Strouth apparently slit the throat of a seventy-year-old male who bled to

32

death. This Court affirmed the death sentence based on Tenn. Code Ann

§ 39-2-203(i)(5) & (7).

In State v. Strouth, 620 S.W.2d 467 (Tenn. 1981), a nineteen-year-old

defendant was convicted of felony murder and sentenced to death. In Strouth, a

store clerk was killed during the course of a robbery committed by Strouth and

his codefendant Dicks. Strouth apparently inflicted the fatal throat laceration

from which the victim bled to death. This Court affirmed the sentence of death

based on Tenn. Code Ann. § 39-2-203(i)(5) & (7).

We also note that there are several cases with comparable violence in

which defendants have received life sentences. See State v. Jack Jay North,

No. 02C01-9512-CC-00369 (Tenn. Crim. App., at Jackson, Dec. 12, 1996),

appeal denied, (Tenn. 1997) (sentencing to life where victim shot multiple times

with sawed-off shotgun); State v. James Morning Craft, Jr. and Lewis Moorlet,

C.C.A. No. 31 (Tenn. Crim. App., at Jackson, Mar. 8, 1989), appeal denied,

(Tenn. 1989) (sentencing to life where victim shot three times). In both North

and Craft, the defendants either admitted to being at the scene or showed

remorse. Although these cases are similar to some extent, the similarities do not

make Blanton's death sentence disproportionate. In fact, the circumstances and

violence of Mrs. Vester's killing were far worse than a great majority of the

previously cited cases in which the death sentence has been affirmed by this

Court. Furthermore, this Court has previously affirmed a number of additional

cases in which both the gratuitous violence and the multiplicity of wounds were

far less than those present in this case. See State v. Houston, 593 S.W.2d 267

(Tenn. 1980) (affirming death sentence based on (i)(5), (6) & (7) where victim

shot three times); State v. Zagorski, 701 S.W.2d 808 (Tenn. 1985) (affirming

sentence of death based on (i)(5) & (7) where defendant robbed victims then

shot them and slit their throats); State v. King, 718 S.W.2d 241 (Tenn. 1986)

33

(affirming death sentence based on aggravating circumstances (i)(2), (5), (6) &

(7) where victim placed in trunk of car then shot once in head with high-powered

rifle); State v. Bates, 804 S.W.2d 868 (Tenn. 1991) (affirming sentence based on

(i)(2), (6) & (7) where defendant tied victim to tree and shot victim in head with

shotgun); State v. Brimmer, 876 S.W.2d 75 (Tenn. 1994) (affirming death

sentence based on (i)(7) where victim tied to a tree and choked to death); State

v. Hodges, 944 S.W.2d 346 (Tenn. 1997) (affirming death sentence based on

(i)(2) & (5) where victim bound and later strangled).

We have reviewed numerous cases in which either the death penalty or a

lesser sentence has been imposed. While no two cases are identical, many

cases share similarities with the case now before us. In a great majority of the

cases cited, defendants of comparable intellect beat, tortured and assaulted

unresisting and defenseless victims without provocation. Upon reviewing the

facts of the case now before us, we find that the multiplicity of wounds and the

manner of their infliction upon Mrs. Vester were particularly heinous, atrocious

and cruel. Moreover, the infliction of gratuitous violence in this case appears to

be worse than that inflicted in a substantial number of cases in which this Court

has previously affirmed a sentence of death. The penalty imposed by a jury in

this case is clearly not disproportionate to the penalty imposed for similar crimes.

CONCLUSION

In accordance with the mandate of Tenn. Code Ann. § 39-13-206(c)(1)

and the principles adopted in prior decisions of this Court, we have considered

the entire record in this case and find that the sentence of death was not

imposed in an arbitrary fashion. The evidence clearly supports the jury's finding

of the aggravating circumstances and that no mitigating circumstances

sufficiently outweighed the aggravating circumstances. Tenn. Code Ann.

34

§ 39-13-206(1)(A) - (C). We have carefully reviewed the defendant's

assignments of error and have found that they are either devoid of merit or do

not require reversal. With respect to issues not specifically addressed herein, we

affirm the decision of the Court of Criminal Appeals, authored by Judge Paul G.

Summers, joined in by Gary R. Wade and concurred in by Judge Joseph M.

Tipton. The defendant's sentence of death by electrocution is affirmed. The

sentence will be carried out as provided by law on the 15th day of October, 1998,

unless otherwise ordered by this Court or other proper authorities.

JANICE M. HOLDER, JUSTICE

CONCURRING:

Anderson, C.J.

Drowota, J.

SEPARATE CONCURRING AND DISSENTING OPINIONS:

Birch, J.

Reid, J.

35