finding that “violent acts indicating the relationship -8- between the victim of a violent crime and the defendant prior to the commission of the offense are relevant to show [the] defendant’s hostility toward the victim, malice, intent, and a settled purpose to harm the victim”
How later courts described this case
- finding that “violent acts indicating the relationship -8- between the victim of a violent crime and the defendant prior to the commission of the offense are relevant to show [the] defendant’s hostility toward the victim, malice, intent, and a settled purpose to harm the victim”
- holding that “[v]iolent acts indicating the relationship between the - 17 - victim of a violent crime and the defendant prior to the commission of the offense are relevant to show defendant’s hostility toward the victim, malice, intent, and a settled purpose to harm the victim”
- ruling that the victim’s hearsay statements expressing fear of the defendant were admissible under the state of mind exception and relevant “to reveal the falsehood” of the defendant’s statement to the police indicating that he and his wife, the victim, were reconciling
- finding that the affidavit established probable cause to search the defendant’s residence where the objects sought were of a type kept at one’s residence and the defendant admitted to returning directly home after being with the victims on the night of the murder
Written by the judges who cited it.
The opinion
REID, Chief Justice,
concurring.
I concur in affirming the defendant’s conviction of the premeditated first degree murder of Jason Burnett, and the sentence of death upon that conviction. I agree with Justice Daughtrey’s observation that discussion of the sentences of death imposed for the murders of Judy Smith and Chad Burnett would serve no useful purpose, whether in concurrence or dissent.
Except as noted below, this case presents the same issues regarding the imposition of the sentence of death as were present in State v. Howell, 868 S.W.2d 238 (Tenn.1993), and my concurrence with the decision affirming the sentence in this case is based on the reasons set forth in my concurring opinion in Howell . There is no basis in this record on which this Court can make the determinations necessary to hold that the statute authorizing the imposition of the sentence of death does not reflect contemporary standards of decency in Tennessee. Id. at 265-66 . Furthermore, the trial of this case was essentially free of error, according to procedures permitted by prior decisions of this Court. The record could well serve as a text for the trial of a capital case. Any deficiencies, none of which require reversal of the conviction or sentence, have been invited by this Court’s failure to adopt procedures that would compel compliance with constitutional standards in every case in which the sentence of death is affirmed.
In this case, the defendant asserts that the evidence does not support aggravating circumstance T.C.A. § 39-2-203(i)(5), “The murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind,” and that the facts necessary to support aggravating circumstance (i)(5) are inconsistent with a finding of premeditated murder or a finding that the murder was committed to avoid arrest.
In State v. Black, 815 S.W.2d 166 (Tenn.1991), in dissent, I agreed with the defendant’s contention that the instruction with regard to depravity of mind was unconstitutionally vague and inconsistent with a finding that the killing was committed to prevent lawful arrest. In that case, there was no evidence of torture. Each of the victims had been shot in the head and obviously had died immediately. The prosecution contended that the facts showed depravity of mind. Id. at 181 . In the case before the Court, the wounds inflicted upon Jason Burnett support the finding of torture, about which there is no uncertainty. Also, torture, as distinguished from depravity of mind, is not inconsistent with the deliberation present in premeditated murder or the decision to kill for the purpose of avoiding arrest, the aggrava-' ting circumstance set forth in T.C.A. § 39-2-203(i)(6).
In State v. Black, in dissent, I further stated that, in my view, the killing of three members of a family at the same time and place is not “mass murder” within the meaning of the statute, T.C.A § 39-2-203(i)(12). 815 S.W.2d at 197 . As pointed out by Justice *584 Fones, dissenting in State v. Bobo, 727 S.W.2d 945, 957 (Tenn.1987):
[A]s rewritten by this Court, the mass murder aggravating circumstance is completely redundant because every murder conviction that could be proven would fully support aggravating circumstance number two and in some instances would fully support the death penalty under aggravating circumstance number seven. The result is that the Court strains legislative intent to the breaking point, rewrites a statute to conform to its view of legislative intent, but nothing of substance that was not already included in the aggravating circumstances theretofore enacted, has been added. I would declare the mass murder aggravating circumstance unconstitutional, period.
However, any evidence admitted in support of “mass murder” was otherwise admissible. Consequently, there was no inadmissible evidence that could have affected the jury's decision. For the reasons more fully discussed in State v. Howell, 868 S.W.2d at 267 , charging mass murder as an aggravating circumstance was harmless error beyond a reasonable doubt.
In Black , it was my view that the Court could not reasonably conclude that the valid aggravating circumstances outweighed the mitigating circumstances, but I have reached the opposite conclusion in this case. The reasoning in Black was as follows:
Once the remaining aggravating circumstances are distilled to their factual essence, it is evident that the defendant was found eligible for the death penalty because the victim was a child, T.C.A. § 39-2-203(i)(l); because the defendant had been involved in an earlier altercation with Angela Clay’s husband, T.C.A. § 39-2-203(i)(2); and because he killed Lakeisha Clay in connection with the murder of her mother, T.C.A. § 39-2-203(0(6) and (7). Qualitatively, except for the age of the victim, every aggravating circumstance properly found in this ease arose from the defendant’s emotional involvement with Angela Clay. On the other hand, in mitigation, the defendant presented testimony that before his involvement with Angela Clay, he had been a responsible and nonviolent person, that he was a model prisoner, that he suffered from psychological problems, and that his violent behavior was focused on the Clay family.
As this Court stated in Delk v. State, 590 S.W.2d 435, 442 (Tenn.1979), “the line between harmless and prejudicial error is in direct proportion to the degree of the margin by which the proof exceeds the standard required” to support the results reached by the jury. In this case the margin is slim. I would not find as a matter of law that the jury’s consideration of these invalid aggravating circumstances was harmless error.
815 S.W.2d at 198 . In Black , the defendant killed his “girlfriend” and her two small children because she was becoming reconciled with her estranged husband. The record in Black showed the murder to have been the result of a sudden outburst of deadly violence caused by irrational and uncontrolled jealousy.
The circumstances of the present case are substantially different, even though the victims in both cases were a mother and her two children. The acts of the defendant in the case before the Court, were, in contrast, cold and deliberate. The defendant had planned over a long period of time to kill his ex-wife and her two children. He had purchased insurance on the lives of the victims on three occasions shortly before he killed them. He made three separate solicitations to have his wife or his wife and the stepsons killed, including an offer of $20,000, and an offer whereby he would kill the other person’s wife. The defendant made many threats to kill his wife and her children, some to the wife directly and some to other persons. He planned his work schedule so that he could claim that he was out of the state on the night the murders were committed.
Based on these significantly different factual situations, it is my view that a court could not find that beyond a reasonable doubt the aggravating circumstances in Black outweighed the mitigating circumstances, but could find that beyond a reasonable doubt the aggravating circumstances outweigh the mitigating circumstances in the case before the Court.
*585 The deficiencies of the Court’s comparative proportionality review were noted again in State v. Howell, 868 S.W.2d at 271-72 . Nevertheless, as in Howell , the record shows that the defendant in this case is among those most deserving of the ultimate sanction. The Court’s failure in this case to perform any meaningful comparative review does not require that the sentence be reversed.