holding the trial court did not abuse its discretion when denying a capital defendant a trial continuance where prior counsel - 42 - worked on the case for thirteen months before withdrawing, current counsel had been appointed to the matter two and one-half months prior to the trial setting, and many continuances had already been granted at the defendant’s request
How later courts described this case
- holding the trial court did not abuse its discretion when denying a capital defendant a trial continuance where prior counsel - 42 - worked on the case for thirteen months before withdrawing, current counsel had been appointed to the matter two and one-half months prior to the trial setting, and many continuances had already been granted at the defendant’s request
- holding that the victim’s skull was -19- relevant in illustrating the forensic pathologist’s testimony that he found a “signature” for the murder weapon
- admitting a skull on the basis that a forensic anthropologist found a “signature” for the murder weapon and thus the “cleaned, reconstructed skull was highly relevant in establishing identity”
- holding that the victim's cleaned and reconstructed skull 19 was admissible pursuant to Rule 403
Written by the judges who cited it.
The opinion
REID, Judge,
concurring and dissenting.
I concur in affirming the conviction of first degree minder. However, I would hold aggravating circumstance (i)(5) (T.C.A. § 39-2-203(i)(5) (1982)) invalid and find the sentence of death disproportionate.
*272 For the reasons discussed in State v. Black, 815 S.W.2d 166, 195-97 (Tenn.1991) (Reid, C.J., dissenting), aggravating circumstance (i)(5), “The murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind,” is not a valid aggravating circumstance in this case. This aggravating circumstance can be established only by proof that the victim was tortured in the course of the murder or the murder demonstrated “depravity of mind.” The evidence shows the various physical injuries imposed upon the victim, including the cause of death, but there is no evidence of torture. The majority opinion, which dismisses the issue summarily, does not indicate whether the proof showed that the victim was tortured or the defendant depraved. See supra at 267-268. However, even the majority’s description of the evidence relied upon in its comparative proportionality review shows clearly that the evidence proves neither torture nor depravity. That the “[ejvidence indicated that the assault may have continued for some time, and that the victim would not necessarily have lost consciousness immediately” 1 does not obviate the equally likely conclusion that death resulted from the first blows struck. This evidence is not sufficient to support a finding of torture or depravity.
Also, for the reasons discussed in State v. Black, aggravating circumstance (i)(5), prior to the 1989 amendment, is unconstitutionally vague, and, therefore, is invalid. Use of “depravity” in a jury instruction defining what can be used as an aggravator, without more than the State v. Williams 2 definition of that term, constitutes a violation of the state and federal constitutions and requires that the sentence be vacated. See State v. Black, 815 S.W.2d at 195-97 , (Reid, C.J., dissenting); State v. Van Tran, 864 S.W.2d 465, 485-90 (Tenn.1993) (Daughtrey, J., dissenting); Shell v. Mississippi 498 U.S. 1 , 111 S.Ct. 313 , 112 L.Ed.2d 1 (1990) (per curiam, Marshall, J., concurring).
I also would hold that under the comparative proportionality review mandated by statute, the sentence of death is disproportionate to the sentences in similar cases. See T.C.A. § 39-13-206(c)(l)(D) (Supp.1993). Pursuant to the statute, the defendant and his criminal acts must be compared with other similar offenders and acts committed in order to determine if the defendant is one of those persons most deserving of the sentence of death. See State v. Harris, 839 S.W.2d 54, 84 (Tenn.1992) (Reid, C.J., dissenting); State v. Howell, 868 S.W.2d 238, 265 (Tenn.1993) (Reid, C.J., concurring).
Even though the majority defends the failure of the Court “to formulate a rigid objective test” and insists that the Court does not “take lightly [its] duty to conduct a comparative review in each case ...” and does “regularly and routinely review Rule 12 reports submitted by trial judges,” the opinion does not reflect the basis on which it concludes that the sentence is not disproportionate, except to repeat the physical evidence. See supra at 270-271. The majority is not able to insist that the Rule 12 report was utilized in this case because contrary to the requirements of the Rules of the Supreme Court, it does not appear in the record nor was it transmitted to the Clerk of the Supreme Court. See Tenn.Sup.Ct.R. 12. To satisfy the statutory requirement of a comparative proportionality review, this Court must do more than restate the facts of the case. See State v. Middlebrooks, 840 S.W.2d 317, 354-55 (Tenn.1992) (Reid, C.J., concurring and dissenting); State v. Harris, 839 S.W.2d at 84-85 .
The victim was 68 years old, the defendant was 27. There is no evidence as to the relationship between the defendant and the victim except that the defendant worked for the victim’s step-grandchild, the defendant had repaired the victim’s automobile at her residence several times, and on the night of the murder, the defendant had attended a party at the step-grandchild’s house, which was located a few blocks from the victim’s residence. The evidence of the murder is entirely circumstantial. It proves the defendant committed the murder; it shows how the murder was committed; but it does not show why. In my view, the record does not *273 contain sufficient proof to support the finding that the death sentence is warranted. I would reverse the sentence of death and impose a sentence of life imprisonment.
. Supra at 270-271 (emphasis added).
. 690 S.W.2d 517, 529-30 (Tenn.1985).