State v. Black

REID, Chief Justice,

concurring in part and dissenting in part.

I concur in the holding of the majority that the verdict of guilty be affirmed, but I would reverse the sentence and remand for a resentencing hearing on the grounds that the evidence is insufficient to support two of the aggravating circumstances found by the jury, T.C.A. § 39-2-203(i)(5) and (12), and that the aggravating circumstance in subsection (5) is unconstitutionally vague as applied to the facts of this case. Furthermore, I would remand the case to the trial court to afford the defendant the opportunity to present evidence on the allegation that electrocution as a means of imposing the death penalty is cruel and unusual punishment in violation of Article I, § 16 of the Tennessee Constitution.

Because, in my view, these errors require a remand for resentencing, it is unnecessary to determine if the death penalty per se violates the Tennessee Constitution. That issue should be reserved until the Court is presented a case in which there are no other issues requiring reversal of the sentence. Considerations of judicial economy and restraint command this approach, see Beck v. Puckett, 2 Tenn. Cases 490, 494-95 (1877), and it is a settled rule that this Court will not pass on the constitutionality of a statute unless absolutely necessary for the determination of the case. State v. Murray, 480 S.W.2d 355, 357 (Tenn.1972); State ex rel. West v. Kivett, 203 Tenn. 49 , 308 S.W.2d 833, 835-37 (1957).

Any discussion of the death penalty must begin with the recognition that the defendant’s wanton and brutal acts have caused the untimely and unnecessary death of a human being and have caused inestimable damage to the fragile fabric of society. Because the defendant’s acts have extinguished the victim’s life, the law is helpless to aid the victim directly. In recognition of the wrong to the victim, the law does provide its best, though obviously inadequate, means of redress and restitution to the victim’s family against the perpetrator and his estate. Since almost all persons sentenced to death are indigent, this, again, is little more than a meaningless gesture.

Since the right and responsibility to punish for crimes committed lies with the law and not with the victim or his or her family, the law then must address the proper treatment of the defendant. In this regard, the law has two responsibilities — the defendant and society. Historically, society’s rights have been vindicated by retribution, life for life, tooth for tooth, and stripe for stripe. 4 W. Blackstone, Commentaries *13. Of late, the law has found justification for punishment in deterrence of others. See, e.g., T.G.A. § 40-35-103(l)(B).

*192 In a capital case, the law’s obligations to the defendant require that “[f]or purposes of imposing the death penalty, [the defendant’s] ... punishment must be tailored to his personal responsibility and moral guilt.” Enmund v. Florida, 458 U.S. 782, 801 , 102 S.Ct. 3368, 3378 , 73 L.Ed.2d 1140 (1982). The criminal sentence must be directly related to the offender’s personal culpability. Tison v. Arizona, 481 U.S. 137, 149 , 107 S.Ct. 1676, 1683 , 95 L.Ed.2d 127 (1987). “[T]he sentence imposed ... should reflect a reasoned moral response to the defendant’s background, character, and crime.” Penry v. Lynaugh, 492 U.S. 302 , 109 S.Ct. 2934, 2947 , 106 L.Ed.2d 256 (quoting California v. Brown, 479 U.S. 538, 545 , 107 S.Ct. 837, 841 , 93 L.Ed.2d 934 (1987) (concurring opinion) (emphasis in original).

In all of this, the limit to which the law can go in imposing punishment upon the defendant in retribution for his crime and for the benefit of society is set forth in the federal and state constitutions. That limit is “cruel and unusual punishments.” U.S. Const, amend. VIII; Tenn. Const. Art. I, § 16.

In Furman v. Georgia, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972), the United States Supreme Court failed to find that the death penalty per se is cruel and unusual punishment forbidden by the Eighth Amendment to the United States Constitution. However, it did indicate in Furman that the imposition of the death penalty by any procedure which allows the sentencer standardless discretion in deciding who lives and who dies was cruel and unusual punishment. The decisions in Furman; Gregg v. Georgia, 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976); Woodson v. North Carolina, 428 U.S. 280 , 96 S.Ct. 2978 , 49 L.Ed.2d 944 (1976); and their companion cases resulted in a flurry of legislative activity in Tennessee during the years from 1973 through 1977 in an attémpt to ensure that Tennessee’s death penalty statute complied with the federal constitution. In response to Gregg v. Georgia, the General Assembly passed the present capital sentencing statute. No court has found that this statute, by its terms, offends the minimum standards set by the federal constitution.

A study of the case law over the past decade, however, reveals that there has been no meaningful review of the death penalty and the state statute under the Tennessee Constitution. The United States Supreme Court has acknowledged that the federal constitution states only the minimum standard, the floor, and that the states are free to provide greater protections in their criminal justice systems than the federal constitution requires. California v. Ramos, 463 U.S. 992,1013-1014 , 103 S.Ct. 3446, 3460 , 77 L.Ed.2d 1171 (1983); see also California v. Greenwood, 486 U.S. 35, 50 , 108 S.Ct. 1625, 1630 , 100 L.Ed.2d 30 (1988); Oregon v. Hass, 420 U.S. 714, 719 , 95 S.Ct. 1215, 1219 , 43 L.Ed.2d 570 (1975); Sibron v. New York, 392 U.S. 40, 60-61 , 88 S.Ct. 1889, 1901-1902 , 20 L.Ed.2d 917 (1968). This Court has acknowledged its authority to hold that the Tennessee Constitution provides protection of a defendant’s rights beyond the comparable federal constitutional guarantees. See Doe v. Norris, 751 S.W.2d 834, 838 (Tenn.1988); Miller v. State, 584 S.W.2d 758, 760 (Tenn.1979).

The United States Supreme Court has also found that “an evolving sense of decency” determines the standard of protection afforded. By definition, an evolving sense of decency means a developing standard of dignity and respect. This Court has not decided if our constitutional standard for imposing the sentence of death is, like the federal, an evolving standard. It has not pronounced an “evolving standard of decency” in Tennessee that determines the validity of punishment imposed under our own constitution. For example, in Cozzolino v. State, 584 S.W.2d 765, 767 (Tenn.1979), the Court refused to detail “the precise scope of the protection afforded” by Article I, § 16 but concluded that it “places no greater restriction on the punishments that may be imposed by this state than does the federal constitution.”

In accord with this doctrine, the Court appears to have continued to affirm sentences of death by ascertaining whether *193 procedural and substantive law satisfies the latest national minimum standard. See, e.g., State v. Alley, 776 S.W.2d 506, 518 (Tenn.1989) (adopting federal standard for appellate review of excusal of jurors for cause because of their views on the death penalty); State v. West, 767 S.W.2d 387, 396-397 (Tenn.1989) (adopting broadest power of appellate review suggested in Cabana v. Bullock, 474 U.S. 376 , 106 S.Ct. 689 , 88 L.Ed.2d 704 (1986)); State v. Smith, 755 S.W.2d 757, 768 (Tenn.1988) (accepting Lowenfield v. Phelps, 484 U.S. 231 , 108 S.Ct. 546 , 98 L.Ed.2d 568 (1988) on the use of felony murder as an aggravating circumstance); State v. Barber, 753 S.W.2d 659, 663-668 (Tenn.1988) (assuming comparative proportionality review is not required by the State Constitution, following Pulley v. Harris, 465 U.S. 37 , 104 S.Ct. 871 , 79 L.Ed.2d 29 (1984)); State v. Porterfield, 746 S.W.2d 441, 450-451 (Tenn.1988) (following California v. Brown, 479 U.S. 538 , 107 S.Ct. 837 , 93 L.Ed.2d 934 (1987)). In effect, the only standards in Tennessee have been those announced by the United States Supreme Court as required by the federal constitution.

Yet the standards applied by the United States Supreme Court are torn by tension between Gregg’s requirement of chan-nelled and guided discretion to achieve measured, consistent application of the penalty in a manner designed to rationally distinguish those for whom death is an appropriate sanction and the commandment of cases like Woodson, 428 U.S. at 280 , 96 S.Ct. at 2978 ; Eddings v. Oklahoma, 455 U.S. 104 , 102 S.Ct. 869 , 71 L.Ed.2d 1 (1982); and Lockett v. Ohio, 438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978), which hold that sentencing must be individualized and, therefore, that the sentencer must not be precluded from considering any mitigating factor. See Walton v. Arizona, 497 U.S. -, 110 S.Ct. 3047, 3058-3068 , 111 L.Ed.2d 511 (1990) (Scalia, J., concurring); State v. Dicks, 615 S.W.2d 126, 133-134 (Tenn.1981) (Brock, J., dissenting). Despite the court’s pronouncements that there must be “heightened reliability” to ensure “the fundamental respect for humanity underlying the Eighth Amendment,” Woodson, 428 U.S. at 304 , 96 S.Ct. at 2991 , the only settled principle of federal jurisprudence appears to be “a life for a life.” See Coker v. Georgia, 433 U.S. 584 , 97 S.Ct. 2861 , 53 L.Ed.2d 982 (1977). Such “legal doctrine-making in a state of nervous breakdown,” as Weisberg describes the current state of Eighth Amendment jurisprudence in Deregulating Death, 1983 Sup. Ct.Rev. 305, 306 (1983), accentuates the critical role of state courts in capital punishment cases. See Acker & Walsh, Challenging the Death Penalty Under State Constitutions, 42 Vand.L.Rev. 1299 (1989).

Tennessee constitutional standards are not destined to walk in lock step with the uncertain and fluctuating federal standards and do not relegate Tennessee citizens to the lowest levels of constitutional protection, those guaranteed by the national constitution.

Indeed, the General Assembly has clearly indicated that when a defendant’s life is at stake, citizens of Tennessee are entitled to greater protections than those guaranteed by the United States Constitution. Recognizing higher standards than the United States Supreme Court has found in the federal constitution and reflecting a higher “contemporary standard of decency” in Tennessee, the legislature has forbidden the execution of persons who are under the age of eighteen, T.C.A. § 37-l-134(a)(l), and who are mentally retarded, T.C.A. § 39-13-203. Compare Stanford v. Kentucky, 492 U.S. 361 , 109 S.Ct. 2969 , 106 L.Ed.2d 306 (1989) (Eighth Amendment is not violated by imposition of death on sixteen and seventeen year olds); Penry v. Lynaugh, 492 U.S. 302 , 109 S.Ct. 2934 , 106 L.Ed.2d 256 (1989) (Eighth Amendment does not prohibit subjecting mentally retarded defendant to death penalty). ' Likewise, although the federal constitution does not require comparative proportionality review, Pulley v. Harris, 465 U.S. 37 , 104 S.Ct. 871 , 79 L.Ed.2d 29 (1984), the General Assembly has mandated under T.C.A. § 39-13-206(c)(l)(D) [previously § 39-2-205(e)(4)] that in reviewing a sentence of death for murder in the first degree, this Court must determine whether the sen *194 tence of death imposed in each case “is excessive or disproportionate to the penalty imposed in similar cases, considering both the nature of the crime and the defendant.”

Comparative proportionality review is a means of insuring against the arbitrary imposition of the death penalty and assuring that capital sentencing in Tennessee reflects the “evolving standard of decency” in this state. By the enactment of this statute, the General Assembly has required this Court to focus on the accused and compare the circumstances of his offense with those of other first degree murders. The question of traditional proportionality seeks to ascertain whether the punishment of death is proportional to the gravity of the specific crime for which it is being imposed. The comparative proportionality analysis mandated by the statute requires that this Court examine on a state-wide basis the sentences imposed in all first degree murder cases and, as necessary, in factually similar homicides. The Court must determine whether the procedures designed to curb arbitrariness and capriciousness in capital sentencing have failed to exclude from that sentence the defendant “whose crime does not seem so aggravated when compared to those of many who escaped the death penalty.” Kaplan, The Problem of Capital Punishment, 1983 U.Ill.L.Rev. 555, 576. Such review was designed to assure, “at least on a statewide level, that the death penalty is not imposed in an arbitrary fashion.” Raybin, New Death Penalty Statute Enacted, Judicial Newsletter, University of Tennessee College of Law, at 11 (May 1977). This review identifies “the most extreme examples of disproportionality among similarly situated defendants” thereby serving “to eliminate some of the irrationality that currently surrounds imposition of a death sentence.” Pulley v. Harris, 465 U.S. at 70 , 104 S.Ct. at 890 (Brennan, J., dissenting).

Comparative proportionality review requires the articulation of “standards of decency” as they exist and evolve in Tennessee. It has been commented that “a single jury may not accurately reflect dominant community sentiment” since, while juries are designed to represent the community, “voir dire and peremptory and cause challenges can skew a jury’s cross-sectional character” and since even a jury representative of the local community “is not necessarily attitudinally representative of the population of a state taken as a whole.” Goodpaster, Judicial Review of Death Sentences, 74 J.Crim.L. & Criminology 786, 798 (1983). Review of death sentences undertaken with a broad awareness of the decisions made by a number of juries across Tennessee in assessing whether death is an appropriate punishment assures that capital punishment is inflicted only where consistent with the prevailing standards of this state as represented by its citizens’ consensus and therefore only where appropriate under Art. I, § 16 of the Tennessee Constitution.

With the aid of the information available under our Supreme Court Rule 12, this Court can assure by a rigorous and thorough comparative review of each capital case that the death penalty is rationally, and therefore constitutionally, imposed in those few cases in which the people of this state agree that the ultimate sanction is warranted.

Under these circumstances, particularly in light of the nature of the punishment, the imperfection of the judicial system, and the broad discretion vested in the district attorneys general of this State, see State v. Dicks, 615 S.W.2d at 136, 140-141 , this Court should assert its full and independent authority under the State Constitution to assure that the process whereby a defendant is sentenced to death is essentially free of error. This Court, through the exercise of strict appellate review, must require stringent and exact compliance with the Tennessee Constitution and state statutes. The United States Supreme Court has repeatedly emphasized the importance of meaningful appellate review to protect against the unlawful imposition of the death penalty. See Zant v. Stephens, 462 U.S. 862, 876 , 103 S.Ct. 2733, 2742 , 77 L.Ed.2d 235 (1983); Barclay v. Florida, 463 U.S. 939, 973 , 103 S.Ct. 3418, 3437 , 77 L.Ed.2d 1134 (1983) (Stevens, J., concurring) (“the question is whether, in its regu *195 lar practice, the Florida Supreme Court has become a rubber stamp for lower court death-penalty determinations”).

I.

With these principles as guidance, I now address the narrow issues of the constitutionality of certain aggravating circumstances found in this case and the sufficiency of the evidence to support them. The jury is required to consider the aggravating and mitigating circumstances to determine if death is an appropriate sanction in this case. The purpose of this consideration under federal law is to direct and limit the jury’s discretion “so as to minimize the risk of wholly arbitrary and capricious action” and to prevent the jury from imposing the death penalty in an unreasoned, emotional reaction to the murder. Gregg v. Georgia, 428 U.S. at 189, 96 S.Ct. at 2932 ; California v. Ramos, 463 U.S. at 999, 103 S.Ct. at 3452 . The jury must examine “the character of the individual and the circumstances of the crime,” Zant v. Stephens, 462 U.S. at 879 , 103 S.Ct. at 2744 , and the defendant’s “personal responsibility and moral guilt,” Enmund v. Florida, 458 U.S. at 801 , 102 S.Ct. at 3378 , measured against the conscience of the community. See Caldwell v. Mississippi, 472 U.S. 320, 333 , 105 S.Ct. 2633, 2641 , 86 L.Ed.2d 231 (1985) (the jury decides whether another should die “on behalf of the community”).

As one of six aggravating circumstances, the jury in this case found that the murder of Lakeisha Clay satisfied the conditions of T.C.A. § 39-2-203(i)(5) (1982). The defendant contends that this circumstance is unconstitutionally vague. Aggravating circumstance (i)(5) requires that a murder involve “torture” or “depravity of mind” for it to be “especially heinous, atrocious or cruel.” The trial court in the present case instructed the jury on the definitions of these terms as established by this Court in State v. Williams, 690 S.W.2d 517 (Tenn.1985). The majority states, “The trial court’s definitions of the terms removed any vagueness and narrowed the class of persons eligible for the death penalty.” The opinion contains no further analysis of this aggravating circumstance, nor was there any analysis made in the prior decisions relied upon for this holding.

In Williams , “torture” was defined as the “infliction of severe physical or mental pain upon the victim while he or she remains alive and conscious.” 690 S.W.2d at 529 . Williams also implies that the infliction of such pain must be willful. Id. There is not any evidence in the record to support a finding that the victim in the present case suffered torture under this definition. The proof shows that Lakeisha Clay was shot twice and that she may have been conscious at this time, but such evidence is insufficient to support a finding of torture within the meaning of circumstance (i)(5). See Williams, 690 S.W.2d at 530 ; State v. Pritchett, 621 S.W.2d 127, 137-139 (Tenn.1981).

Circumstance (i)(5) may also be proved by showing “depravity of mind.” Proof of torture ipso facto establishes depravity of mind because the mind of one who willfully inflicts such severe physical or mental pain on the victim is depraved. Williams, 690 S.W.2d at 529 . As just said, there is no torture in this case upon which to base a finding of depravity. In Williams this Court held, however, that depravity may exist in the absence of torture without specifying those circumstances which established such “depravity of mind.” Id. The Court simply defined “depravity” as “moral corruption; wicked or perverse act.” Id. Even though the jury in this case was instructed in these exact words, they were given no real guidance.

An examination of the dictionary definitions of the three terms meant to clarify the term “depravity” so that it might be used to guide and channel the jury’s discretion reveals that “corruption” and “wicked act” are so synonymous with “depravity” that they serve no limiting or clarifying function. Likewise, “perverse” means simply that the object or action described is “directed away from what is right or good.” See The American Heritage Dictionary of the English Language (1970). It, too, in no way guides the jury’s discretion to those first degree murders in which *196 death is warranted since any first degree murder is neither good nor right.

An examination of cases subsequent to Williams in which this aggravating circumstance was used to support a sentence of death discloses no further clarification or limitation of the meaning of “depravity of mind.” See, e.g., State v. Teel, 793 S.W.2d 236, 251 (Tenn.1990); State v. Payne, 791 S.W.2d 10 (Tenn.1990); State v. Alley, 776 S.W.2d 506 (Tenn.1989); State v. Henley, 774 S.W.2d 908 (Tenn.1989); State v. Thompson, 768 S.W.2d 239 (Tenn.1989); State v. Barber, 753 S.W.2d 659, 668-669 (Tenn.1988); State v. Porterfield, 746 S.W.2d 441, 449 (Tenn.1988); State v. McNish, 727 S.W.2d 490, 494 (Tenn.1987); State v. Cooper, 718 S.W.2d 256, 259 (Tenn.1986); State v. Hartman, 703 S.W.2d 106, 119 (Tenn.1985). It is unclear from these cases whether they involve torture or something more. The key factors used to test for this aggravating circumstance are also unclear. One commentator states that they “appear to be” the length of time used to kill, the defendant’s attitude during the killing, the victim’s consciousness and realization of impending death, the dangerousness of the instrumentality used to inflict death, the number of blows, and several other factors. S. Feld-man, Criminal Offenses and Defenses in Tennessee 75 (1990 Supp.). There is no analysis of such factors in this case.

It is notable that this circumstance was amended during the recent revision of the criminal code. The phrase “depravity of mind” was deleted from that statute, and circumstance (i)(5) is now limited to murders involving “torture or serious physical abuse beyond that necessary to produce death.” T.C.A. § 39-13-204(i)(5).

In this case, where there was no evidence of torture, the jury received no guidance in determining whether the defendant’s mind was materially “depraved” beyond that of any first-degree murderer. See State v. Hines, 758 S.W.2d 515, 524 (Tenn.1988). It appears that in cases not involving torture this Court has failed to supply on appellate review a principled definition of T.C.A. § 39-2-203(i)(5) adequate to satisfy the requirements of Godfrey v. Georgia, 446 U.S. 420 , 100 S.Ct. 1759 , 64 L.Ed.2d 398 (1980); Maynard v. Cartwright, 486 U.S. 356 , 108 S.Ct. 1853 , 100 L.Ed.2d 372 (1988); and Article I § 16, of the Tennessee Constitution.

The United States Supreme Court has made it clear that aggravating circumstances requiring that a murder be “especially heinous, atrocious, or cruel” need not be construed to require torture or serious physical abuse. See Maynard v. Cartwright, 486 U.S. at 356, 108 S.Ct. at 1859 . The term “depravity of mind” may identify concerns distinct from those leading a legislative body to include torture of a victim as a circumstance warranting consideration of death as a sentence. However, if “depravity of mind” is to be an aggravating factor, it must be defined so that it aids the jury in determining under constitutional principles if the accused should be executed.

In accord with the principles of Williams and Godfrey v. Georgia, a proper limiting construction of “depravity of mind” to be given in those cases where torture is absent would be established by adopting the definition of that term set forth by the New Jersey Supreme Court in State v. Ramseur, 106 N.J. 123 , 524 A.2d 188, 230-231 (1987), where it held that this phrase marks

society’s concern to punish severely those who murder without purpose or meaning as distinguished from those who murder for a purpose (albeit a completely unjustified purpose). This term isolates conduct that causes the greatest abhorrence and terror within an ordered society, because citizens cannot either in fact or in perception protect themselves from these random acts of violence. The killer who does it because he likes it, perhaps even because it makes him feel better, who kills bystanders without reason, who kills children and others whose helplessness would indicate that there was no reason to murder, evinces what we define as depravity of mind.

* * * * * *

*197 What society is concerned with here ... is the complete absence — from society’s point of view — of any of the recognizable motivations or emotions that ordinarily explain murder.

In determining whether a murder is heinous, atrocious or cruel in that it involves depravity of mind, the jury also must base its findings on something more than the existence of one of the other statutory aggravating circumstances. Each part and every word of a statute is presumed to have meaning and purpose and should not be construed as superfluous or as surplus-age. Tidwell v. Collins, 522 S.W.2d 674, 676-77 (Tenn.1975); Marsh v. Henderson, 221 Tenn. 42 , 424 S.W.2d 193, 196 (1968). It must be assumed that in choosing those circumstances severe enough to warrant the death penalty the General Assembly did not intend to repeat itself in senseless duplication. For example, in this case, the showing that the defendant was an adult and the victim was a child under the age of twelve clearly established the aggravating circumstance contained in § 39-2-203(i)(l). As heinous and senseless as such a killing is, however, this factor should not be available to support circumstance (i)(5). The express inclusion of the killing of a child by an adult as a separate aggravating circumstance indicates that this circumstance alone is not meant to be included within aggravating circumstance (i)(5) since to do so would render circumstance (i)(5) superfluous. Such an interpretation of the statute not only clarifies the meaning of circumstance (i)(5) but also prevents the unintended “double-weighing” of aggravating factors encouraged by the vagueness of the previous statutory language.

An instruction embodying the Ramseur definition and this interpretation of circumstance (i)(5) would guide the jury in “distinguishing the few cases in which [the death penalty should be] imposed from the many cases in which it [should not be],” Furman v. Georgia, 408 U.S. at 313 , 92 S.Ct. at 2764 (White, J., concurring), and would isolate those murders characterized by a vileness and inhumanity beyond that inherent in every first degree murder.

Analysis of the facts of this case under the Ramseur definition of depravity reveals an inconsistency in the logic of the jury’s findings regarding aggravating circumstances. The murders encompassed by aggravating circumstance (i)(5) are those committed without “any of the recognizable motivations” ordinarily explaining murder. Yet the jury in this case found that the murder was committed with a purpose, although a “completely unjustified purpose,” to prevent the defendant’s apprehension for the murders of the victim’s mother and sister. A killing cannot be committed for no recognizable purpose, and therefore demonstrating “depravity of mind,” and at the same time for the purpose of preventing the perpetrator’s identification and his “lawful arrest or prosecution.”

I also conclude that the facts of this case are legally insufficient to establish the so-called “mass murder” aggravating factor found in T.C.A. § 39-2-203(i)(12). At first glance the evidence technically complies with the wording of the statute. However, review of the legislative history clearly reveals that this circumstance was intended to apply solely to serial murders like those committed in the late 1970s by Wayne Williams in Atlanta and the early 1980s by the “Son of Sam” in New York. See State v. Bobo, 727 S.W.2d 945, 951 (Tenn.1987). Even if the legislative intent had been to encompass murders like the multiple homicides inflicted by the sniper at the University of Texas, as the majority concludes, this murder still does not fall under the statute. The sum and substance of this killing was the domestic involvement between the defendant and the adult victim. The facts of this case do not show what is generally considered mass murder. In my view, in holding the evidence sufficient to support this circumstance, the Court is “not preserving the meaning and purpose of the legislative enactment, but [is] substantially altering its meaning and purpose as written and as clearly intended.” State v. Bobo, 727 S.W.2d at 957 (Fones, J., dissenting).

*198 II.

The invalidation of these aggravating circumstances found by the jury requires examination of whether the error that has occurred is harmless. The majority upholds the applicability of § 39 — 2—203(i)(12) with the seemingly unsupported statement that any error in the jury’s consideration of that circumstance “is harmless and could not have caused prejudice to the defendant.” Perhaps, as it has done in the past, the Court is engaging in a quantitative analysis of aggravating and mitigating circumstances simply by counting the number of aggravating and mitigating factors. See, e.g., State v. Hines, 758 S.W.2d at 524 ; State v. Bobo, 727 S.W.2d at 955-956; State v. Cone, 665 S.W.2d 87, 95 (Tenn.1984). Such analysis ignores the procedure by which a jury reaches its determination of whether death is an appropriate sentence. The process is not one of simply tallying aggravating and mitigating circumstances but of weighing their qualitative values. See State v. Thompson, 768 S.W.2d 239, 251-252 (Tenn.1989). As a result, one mitigating circumstance may outweigh six aggravating circumstances or vice versa. See, e.g., State v. Barber, 753 S.W.2d at 669 ; State v. Harbison, 704 S.W.2d 314 , 320 (Tenn.1986).

Because under our sentencing scheme, the jury has this “discretion to weigh all the mitigating circumstances in terms of their value and significance, and to compare them to the quality of aggravating proof introduced,” Feldman, supra, at 64, this Court must affirmatively pursue a review of the facts to determine what aspect of the defendant’s conduct satisfies each aggravating circumstance. When the present case is analyzed in this manner, it is clear that the submission of invalid aggravating circumstances to the jury cannot be said to be harmless error. 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(i)(6) and (7). Qualitatively, except for the age of the victim, every aggravating circumstance properly found in this case 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.

Furthermore, it is my opinion that the Court should not rely upon harmless error to affirm a sentence whenever one of the aggravating circumstances found by the jury is invalidated on appeal. No error with regard to this critical function can be harmless when a human being’s life hangs in the balance. See Comment, Deadly Mistakes: Harmless Error in Capital Sentencing, 54 U.Chi.L.Rev. 740, 749-758 (1987). Harmless error analysis is particularly inappropriate in these circumstances under a capital sentencing scheme like Tennessee’s in which each juror has the independent duty of weighing aggravating and mitigating circumstances and possesses the unfettered personal discretion to determine the existence of any mitigating factors. See T.C.A. § 39 — 13—204(f) and (g); State v. Thompson, 768 S.W.2d 239, 250-251 (Tenn.1980). It is beyond the power of any court to say how error may have affected the performance of these inherently subjective duties. Cf. State v. Pritchett, 621 S.W.2d at 139 (Tenn.1981); State v. Moore, 614 S.W.2d 348, 352 (Tenn.1981). While I do *199 not deem it necessary that there must be some mitigating evidence in the proof to foreclose harmless error analysis, I do feel that such analysis is particularly inappropriate in a case like the present one where mitigating evidence was presented. I therefore would remand for resentencing.

III.

I also conclude that remand is appropriate to dispose fully of another issue raised in this case. The sole method of implementing a sentence of death in this State is by electrocution. T.C.A. § 40-23-114. Pri- or to trial the defendant filed a “Motion to Exclude Death Penalty Because Electrocution Is Cruel and Unusual Punishment.” No evidence was presented on the motion, and, finding “no support whatsoever for this position,” the trial court denied the motion.

The majority dismisses the claim that the method of imposing the sentence of death is cruel and unusual punishment with reference to State v. Adkins, 725 S.W.2d 660, 664 (Tenn.1987), in which the Court stated, “This Court’s authority over punishment for crime ends with the adjudication of constitutionality.” The Court’s observation obviously overlooks the substance of the constitutional prohibition against cruel and unusual punishment. This refusal to examine the issue of the constitutionality of the means of imposing death explains the trial court’s finding that there is no case law supporting this position, but it does not dispose of the proposition that electrocution as a method of imposing the death penalty may be cruel and unusual punishment.

In addition to a brief account included with the defendant’s pretrial motions, several court opinions, articles, and treatises contain graphic descriptions of the torture and lingering death suffered by the prisoner “after the switch is thrown.” See, e.g., Glass v. Louisiana, 471 U.S. 1080, 1086-1092 , 105 S.Ct. 2159 , 2164-2168, 85 L.Ed.2d 514 (Brennan, J., dissenting); State v. Dicks, 615 S.W.2d at 137-138 ; Hopkinson v. State, 632 P.2d 79, 211-212 (Wyo.1981) (Rose, C.J., dissenting); Tools for the Ultimate Trial, 2:10-2:11 (2d ed. 1987); Comment, The Death Penalty Cases, 56 Cal. L.Rev. 1268, 1338-1339 (1968); Gardner, Executions and Indignities — An Eighth Amendment Assessment of Methods of Inflicting Capital Punishment, 39 Ohio St. L.J. 96 , 126 (1978). The literature, with its descriptions of repeated failures to achieve swift execution and of the multiple electric shocks endured by prisoners before death finally results, suggests that electrocution involves suffering beyond that necessary “in any method employed to extinguish life humanely.” Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464 , 67 S.Ct. 374, 376 , 91 L.Ed. 422 (1947). These accounts confirm Justice Brennan’s statement that it is “difficult to imagine how such procedures constitute anything less than ‘death by installments’ — ‘a form of torture [that] would rival that of burning at the stake.’ ” Glass v. Louisiana, 471 U.S. at 1090-1091 , 105 S.Ct. at 2166-2167 (Brennan, J., dissenting) (quoting Louisiana ex rel. Francis v. Resweber, 329 U.S. at 474, 476 , 67 S.Ct. at 381, 382 ).

In State v. Adkins, this Court suggested that it was the sole prerogative of the legislature to address “the validity and humanity” of the complaint that electrocution should be replaced with more humane forms of execution. While legislative decisions concerning the appropriate forms of punishment are entitled to great deference, it is this Court’s duty to interpret the constitution of this State and declare void any statute violating it. See Brinkley v. State, 125 Tenn. 371 , 143 S.W. 1120 , 1122 (1911). Legislative judgments alone cannot determine whether a punishment is cruel and unusual. See Gregg v. Georgia, 428 U.S. at 174 n. 19, 96 S.Ct. at 2925 n. 19 (opinion of Stewart, Powell, and Stevens, JJ.). Furthermore, it is widely accepted that clauses forbidding cruel and unusual punishment found in the early state and the federal constitutions were intended by their framers to apply to the cruelty of particular kinds of punishment, including the method of administering the death penalty. Gardner, Executions and Indignities — An Eighth Amendment Assessment of Methods of Inflicting Capital Punishment, 39 *200 Ohio St.L.J. 96, 98 (1978); Granucci, “Nor Cruel and Unusual Punishments Inflicted:” The Original Meaning, 57 Cal.L.Rev. 839 (1969); see also Furman v. Georgia, 408 U.S. at .377, 92 S.Ct. at 2797-2798 (Burger, C.J. dissenting); Louisiana ex rel. Francis v. Resweber, 329 U.S. at 464 , 67 S.Ct. at 376 .

The Court in Adkins apparently assumed the constitutionality of electrocution and considered the issue as one of choosing between constitutionally valid methods of imposing the death penalty. This Court and the federal courts have ruled in the past that electrocution as a means of carrying out a sentence of death violates neither the state nor the federal constitution. See, e.g., In re Kemmler, 136 U.S. 436 , 10 S.Ct. 930 , 34 L.Ed. 519 (1890); Sullivan v. Dugger, 721 F.2d 719 (11th Cir.1983); Spinkellink v. Wainwright, 578 F.2d 582, 616 (5th Cir.1978); State v. Barber, 753 S.W.2d 659, 670 (Tenn.1988); State v. Adkins, 725 S.W.2d at 664 (Tenn.1987), cert, denied, 482 U.S. 909 , 107 S.Ct. 2491 , 96 L.Ed.2d 383 (1987); State v. Caldwell, 671 S.W.2d 459, 466 (Tenn.1984). Nonetheless, in none of these cases, except In re Kemmler, was any evidence presented concerning the facts of electrocution, including proof of any unnecessary and wanton pain inflicted on the prisoner.

This Court’s previous holdings on this issue have been made without any but the briefest discussion of the arguments posed by defendants and seem in part to be but another reflection of the Cozzolino doctrine that requires no more under Article I, § 16 than has been mandated under the Eighth Amendment. Since the United States Supreme Court in 1890 stated in the case of In re Kemmler, 136 U.S. at 426 , 10 S.Ct. at 930 , that electrocution was a constitutionally permissible method of execution, this Court has concluded that a similar position is warranted under our constitution.

The circumstances under which In re Kemmler, the leading case in this area, was decided also weaken the continuing authority of the case law holding that electrocution is a constitutional method of inflicting the death penalty. Electrocution was first authorized in the United States as a means of killing criminals in 1888. In that year the New York legislature approved the dismantling of its gallows and the construction of an “electric chair” because it believed electrocution to be “the most humane and practical method known to modern science of carrying into effect the sentence of death in capital cases.” Glass v. Louisiana, 471 U.S. at 1082 , 105 S.Ct. at 2160 (Brennan, J., dissenting) (quoting Report of the Commission to Investigate and Report the Most Humane and Practical Method of Carrying Into Effect the Sentence of death in Capital Cases, at 3 (Transmitted to the Legislature of the State of New York, January 17, 1888)); H. Bedau, The Death Penalty in America 15 (3d ed. 1982). At that time it was thought that electrical science could “generate and apply to the person of the convict a current of electricity of such known and sufficient force as certainly to produce instantaneous, and therefore painless, death.” In re Kemmler, 136 U.S. at 443 , 10 S.Ct. at 932 (emphasis added).

It is apparent, then, that Kemmler was decided without any actual experience of electrocution as a means of execution. No prisoner had yet been subjected to this ordeal. In addition, the only federal constitutional issue before the court in that case was whether New York had acted arbitrarily or applied the law unequally to violate the Fourteenth Amendment. The Court in Kemmler, in fact, stated that the Eighth Amendment was inapplicable to the states. 136 U.S. at 446 , 10 S.Ct. at 933 . Its comments regarding the constitutionality of electrocution are therefore dictum. See Gardner, supra, 39 Ohio St.L.J. at 100-101.

The only other United States Supreme Court case of significance on this issue is Louisiana ex rel. Francis v. Resweber, 329 U.S. at 459 , 67 S.Ct. at 374 , in which the question was not whether electrocution per se violates the Eighth Amendment but whether an aborted initial execution renders subsequent attempts to execute the prisoner cruel and unusual. The plurality held that successive electrocutions were not unconstitutionally cruel, but even the *201 dissent assumed that electrocution involved instant and painless death. Id., 329 U.S. at 474-475 , 67 S.Ct. at 381-382 .

In fact, the United States Supreme Court has never reviewed evidence of the actual pain inflicted by execution to determine whether this method of extinguishing a prisoner’s life involves “unnecessary cruelty,” Wilkerson v. Utah, 99 U.S. 130, 136 , 25 L.Ed. 345, 348 (1878), or something more than the mere extinguishment of life, In re Kemmler, 136 U.S. at 447 , 10 S.Ct. at 933 . The summary rejection of constitutional challenges to electrocution, usually based upon the dicta in Kemmler, has thus allowed our constitution to remain imprisoned by the scientific and medical knowledge and the standards of decency of the late nineteenth century. This refusal to consider the issue is completely contrary to the principle of “evolving standards of decency” at the heart of the Eighth Amendment and Article I, § 16. See Trop v. Dulles, 356 U.S. 86 , 78 S.Ct. 590, 598 , 2 L.Ed.2d 630 (1958) (plurality opinion).

It is time that this Court, the potential beneficiary of evidence of a century’s experience in imposing electrocution, re-examine this issue. As Justice Brennan has written,

But having concluded that the death penalty in the abstract is consistent with the “evolving standards of decency that mark the progress of a maturing society,” Trop v. Dulles, 356 U.S., at 101 , 78 S.Ct., at 598 (plurality opinion), courts cannot now avoid the Eighth Amendment’s proscription of “the unnecessary and wanton infliction of pain” in carrying out that penalty simply by relying on 19th-century precedents that appear to have rested on inaccurate factual assumptions and that no longer embody the meaning of the Amendment. Gregg v. Georgia, supra, 428 U.S., at 173, 96 S.Ct., at 2925 (opinion of Stewart, POWELL, and STEVENS, J.J.).

Glass v. Louisiana, 471 U.S. at 1094 , 105 S.Ct. at 2169 (mem., Brennan, J., dissenting from denial of certiorari).

I would hold that upon remand the defendant in this case should be allowed to present evidence to the court on the constitutional issue of whether electrocution per se is cruel and unusual punishment under Article I § 16, of the Tennessee Constitution.

IV.

Based on the above reasons, I would reverse the sentence in the present case and remand the case to the trial court for further proceedings not inconsistent with this opinion.

I am authorized to say that Justice DAUGHTREY joins me in this dissent.