concluding that "premeditation and deliberation are not synonymous terms," and "[w]hile the existence of both elements may be established by circumstantial evidence alone, premeditation requires proof of a previous intent to kill, while deliberation requires proof of a `cool purpose' that includes some period of reflection during which the mind is free from passion and excitement"
How later courts described this case
- concluding that "premeditation and deliberation are not synonymous terms," and "[w]hile the existence of both elements may be established by circumstantial evidence alone, premeditation requires proof of a previous intent to kill, while deliberation requires proof of a `cool purpose' that includes some period of reflection during which the mind is free from passion and excitement"
- reiterating that “premeditation and deliberation are not synonymous terms,” and “premeditation requires proof of a previous intent to kill, while deliberation- requires proof of a ‘cool purpose’ that includes some period of reflection during which the mind is free from passion and excitement”
- holding that photographs were relevant to supplement the testimony of the medical examiner and investigative officers in showing the cause of death and the violence of the attack
- holding that use of murder to prevent arrest aggravating circumstance was appropriate because it did not duplicate the statutory elements of the underlying offense
Written by the judges who cited it.
The opinion
*528 BIRCH, Chief Justice,
dissenting.
The majority concludes that aggravating factor (i)(6) 1 has been sufficiently demonstrated in the instant case. In my view, the evidence is not sufficient to warrant its application. Because I find that this error more probably than not affected the jury’s decision to impose the death sentence, I would vacate the sentence of death and remand this cause for a new sentencing hearing.
Although this is a close ease, I do not find that the State presented sufficient evidence for the jury to conclude that Bush killed the victim in order to avoid arrest or prosecution for the robbery. When the evidence is entirely circumstantial, as in this case, then that evidence must preclude every other reasonable theory or hypothesis except that which it tends to support, i.e., that the killing was, in fact, motivated by a desire to eradicate a witness. State v. Zirkle, 910 S.W.2d 874, 882 (Tenn.Crim.App.1995)(citing Marable v. State, 203 Tenn. 440 , 313 S.W.2d 451, 456 (1958)). 2
The majority relies in part on the fact that the defendant and the victim knew one another. Such is not sufficient, without more, to establish the (i)(6) aggravating factor. In many cases, the victim either knows the defendant or has observed the defendant sufficiently to be able to later identify that person. This circumstance is so prevalent that to allow it to establish the (i)(6) aggravating factor would unduly and unconstitutionally enlarge the class of defendants subject to the death penalty.
Moreover, our prior application of the (i)(6) aggravator in similar cases has not been consistent. See State v. Evans, 838 S.W.2d 185 (Tenn.1992)(aggravating factor (i)(6) applied where defendant, a former employee, returned, robbed market, and killed a clerk whom he knew). But see State v. Van Tran, 864 S.W.2d 465 (Tenn.1993)(aggravating factor (i)(6) not applied where defendant, former employee, returned, robbed restaurant, and killed owner whom he knew). State v. West, 767 S.W.2d 387 (Tenn.1989)(aggravating factor (i)(6) applied where defendant and co-defendant were convicted of the murder of a girl who knew co-defendant and could identify defendant). But see State v. Branam, 855 S.W.2d 563 (Tenn.1993)(aggravating factor (i)(6) not applied where defendant and co-defendant were convicted for the murder of a woman who knew defendant and could identify co-defendant).
Because of the inconsistent application of the (i)(6) aggravating factor and the danger of unconstitutionally enlarging the class of defendants subject to the death penalty, I would hold that the fact that the victim knew the assailant, without more, is not sufficient to prove that the killing was in fact motivated by a desire to evade arrest or avoid prosecution. By requiring additional evidence, we would screen out those cases in which a defendant initially intended to commit a non-capital offense but for a reason other than witness elimination, escalated the conduct to include an unlawful killing.
In this ease, the State’s theory was that Bush killed Lefever so that she could not identify him as the individual who broke into her house and robbed her. From my review, however, there is substantial evidence that Bush did not kill Lefever in order to eliminate her as a witness to the burglary/robbery. First, Bush made no attempt to conceal the intended crime from his wife; rather, he told her that he was going to hit the old woman over the head and take her money. The majority finds it significant that the defendant withheld from his wife the name or address of the intended victim concluding that Bush wished to prevent her from “witnessing the burglary.” However, there is no dispute that Bush told his wife of his intent to commit the burglary and asked *529 her to drive him to the scene. In my view, this evidence indicates that Bush was not concerned about concealing the burglary. I find that this testimony indicates that Bush simply did not want to implicate his wife in the crime. Hence, I find this evidence insufficient to support the majority’s conclusion that the defendant killed the victim to eliminate her as a witness.
More to the point, Bush related versions of what happened to two fellow inmates who testified as witnesses for the State. The first testified that Bush told him that he had killed the victim when he could not find any money. The second testified that Bush told him that he killed the victim when he lost his temper after an argument erupted. In these two versions, Bush clearly identifies himself as the killer. Given this disclosure, there was no reason for him to lie about his motivation for the killing. In both versions, Bush killed Lefever because he was angry and frustrated. In my view, this evidence clearly indicates that Bush was not concerned about Lefever’s ability to identify him as the burglar/robber when he killed her. This evidence raises, in the very least, a reasonable doubt as to whether the defendant was motivated by a desire to avoid arrest or prosecution.
We have previously held that the State does not have to prove that avoidance of arrest or prosecution was the defendant’s sole or predominant motivation to establish the applicability of the (i)(6) aggravating factor. State v. Carter, 714 S.W.2d 241, 250 (Tenn.1986). However, we should require that the State prove that a desire to avoid arrest or prosecution was at least a motivation for the crime. In my view, the State failed to carry that burden in this case.
To reiterate, I would restrict the application of the (i)(6) aggravating circumstance to cases where the evidence clearly establishes that the defendant was motivated by a desire to avoid arrest or prosecution by eliminating the witness. To illustrate, the (i)(6) aggravator was appropriately applied in State v. Smith, 868 S.W.2d 561 (Tenn.1993)(victim killed while dialing 911); State v. McCormick, 778 S.W.2d 48 (Tenn.1989)(undereover agent testified that defendant confessed that he killed victim to prevent her from ‘ spilling her guts” about property defendant had stolen); State v. Adkins, 725 S.W.2d 660 (Tenn.1987)(evidence that defendant eliminated the victim who was to testify against defendant for the shooting of defendant’s girlfriend); and State v. Johnson, 632 S.W.2d 542 (Tenn.1982)(defendant told friend that he was going to rob a market and that he intended to leave no witnesses).
In conclusion, I find that under the facts of this case, the evidence is not sufficient to establish the (i)(6) aggravating factor. I find also that the erroneous use of this aggravating factor more probably than not affected the jury’s decision to impose the death sentence. Accordingly, I would vacate the sentence of death and remand the cause for a new sentencing hearing.
. (i) No death penally shall be imposed but upon a unanimous finding that the state has proven beyond a reasonable doubt the existence of one (1) or more of the statutory aggravating circumstances, which are limited to the following:
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(6) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another.
Tenn.Code Ann. § 39-13-204(i)(6)(1991).
. Although Zirkle refers to the standard of proof required to establish guilt when the evidence against the defendant is entirely circumstantial, I think it is equally applicable here.