State v. Bigbee

REID, Justice,

concurring.

The procedure in Tennessee whereby the sentence of death is executed consists of three steps. See State v. Howell, 868 S.W.2d 238, 265 (Tenn.1993) (Reid, C.J., concurring). This case involves only the first two steps, which are not clearly delineated in the concurring and dissenting opinions.

The first step is the determination that the person to be executed is a member of the class of death-eligible murderers. Under the federal constitution a sentence of death may be imposed only,

where a defendant kills, attempts to kill, or intends that a killing take place, or that lethal force will be imposed, or where a defendant’s personal involvement in the underlying felony is substantial and who exhibits a reckless disregard or indifference to the value of human life. Tison v. Arizona, 481 U.S. 137, 157-158 , 107 S.Ct. 1676, 1688 , 95 L.Ed.2d 127 (1987); Enmund v. Florida, 458 U.S. 782, 797 , 102 S.Ct. 3368, 3377 , 73 L.Ed.2d 1140 (1982); State v. Branam, 855 S.W.2d 563, 570-71 (Tenn.1993); State v. Middlebrooks, 840 S.W.2d 317, 338 (Tenn.1992).

State v. Howell, 868 S.W.2d 238, 265 (Tenn.1993) (Reid, C.J., concurring). Prior to the 1989 amendment to T.C.A. § 39-13-202, that statute, which defines first degree murder, did not include the ‘Teckless disregard” provision of the definition found to be essential in Tison v. Arizona. See T.C.A. § 39-2-202 (1982). The 1989 amendment only conformed the statute to the minimum standard of death-eligible defendants required by the United States Constitution. Tennessee’s first degree murder statute, as amended in 1989, remains the most unrestricted definition of a class of death-eligible defendants permitted under the federal constitution. 1 State v. Middlebrooks, 840 S.W.2d 317, 337-38 , c ert. dismissed, — U.S.—, 114 S.Ct. 651 , 126 L.Ed.2d 555 (1993).

The federal constitution does not permit all death-eligible defendants to be executed. It requires that states adopt procedures for *818 selecting from among the death-eligible class, those for whom the sentence of death is most appropriate. Gregg v. Georgia, 428 U.S. 153, 187-95 , 96 S.Ct. 2909, 2932-35 , 49 L.Ed.2d 859 (1976). Therefore, in Tennessee a second step is necessary. Tennessee accomplishes this second step by the application of enhancing and mitigating factors at the sentencing phase of the trial. See T.C.A. § 39-13-204G), (j) (Supp.1994).

However, some states, unlike Tennessee, combine the first and second steps in a restrictive statutory definition of capital murder. The decision in Lowenfield v. Phelps, 484 U.S. 231 , 108 S.Ct. 546 , 98 L.Ed.2d 568 (1987), was based upon a restrictive statutory definition of capital murder. In Lowenfield , the United States Supreme Court, after stating the result mandated by the constitution, described two methods which could be used to accomplish that result:

To pass constitutional muster, a capital sentencing scheme must “genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Zant v. Stephens, 462 U.S. 862, 877 , 103 S.Ct. 2733, 2742 , 77 L.Ed.2d 235 (1983). Under the capital sentencing laws of most States, the jury is required during the sentencing phase to find at least one aggravating circumstance before it may impose death. By doing so, the jury narrows the class of persons eligible for the death penalty according to an objective legislative definition.

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It seems clear to us from this discussion that the narrowing function required for a regime of capital punishment may be provided in either of these two ways: The legislature may itself narrow the definition of capital offenses, as Texas and Louisiana have done; so that the jury finding of guilt responds to this concern, or the legislature may more broadly define capital offenses and provide for narrowing by jury findings of aggravating circumstances at the penalty phase.

Here, the “narrowing function” was performed by the jury at the guilt phase when it found defendant guilty of three counts of murder under the provision that “the offender has a specific intent to kill or to inflict great bodily harm upon more than one person.”

Id. 484 U.S. at 246 , 108 S.Ct. at 554-55 (citations omitted). First degree murder in Louisiana, when Lowenfield was decided, required the finding of specific intent. Id. 484 U.S. at 241-43 , 108 S.Ct. at 553 . The culpability of the defendant in Lowenfield is similar to that of a defendant in Tennessee who is convicted of premeditated murder (T.C.A. § 39-13-202(a)(l)) and found at sentencing to have knowingly created a great risk of death to two or more persons other than the victim (T.C.A. § 39 — 13—204(i)(3)). .

There is no “interaction of the principles” found in Lowenfield and Enmund and Ti- son 2 . The class of death-eligible defendants defined in Enmund and Tison is not restricted or narrowed by the 1989 amendment to T.C.A. § 39-13-202(a). Further narrowing, by statute as in Lowenfield , or by the use of aggravating circumstances as in Tennessee, is constitutionally required before the sentence of death can be executed. The 1989 amendment to the Tennessee statute did not alter the constitutional principles on which Middlebrooks was based and provides no support for the proposition that this Court should retreat from the carefully crafted decision in Middlebrooks .

. Tennessee has imposed by statute and court decisions, other limitations on the imposition of the sentence of death which exceed the minimum standard required under the United States Constitution. See State v. Howell, 868 S.W.2d 238, 267-68 (Tenn.1993) (Reid, C.J., concurring).

. Justice Drowota concurring and dissenting at p. 825.