State of Tennessee v. Kevin Burns

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
FILED
November 9, 1998
FOR PUBLICATION
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
) Filed: November 9, 1998
Appellee, )
)
) SHELBY CRIMINAL
Vs. )
) HON. JOSEPH B. BROWN, JR.,
) JUDGE
KEVIN BURNS, )
)
Appellant. ) No. 02-S-01-9708-CR-00073
For Appellant: For Appellee:
Glenn I. Wright John Knox Walkup
WILSON & WRIGHT Attorney General & Reporter
Memphis, Tennessee
Michael E. Moore
Solicitor General
Kenneth W. Rucker
Assistant Attorney General
Nashville, Tennessee
At Trial:
John W. Pierotti
District Attorney General
Thomas D. Henderson
John Wheeler Campbell
Assistant District Attorney Generals
Memphis, Tennessee
OPINION
AFFIRMED ANDERSON, C.J
The defendant, Kevin Burns, was convicted of two counts of felony murder
and two counts of attempted felony murder. The jury imposed the death penalty for
one of the felony murder convictions after finding that evidence of an aggravating
factor -- that the defendant knowingly created a great risk of death to two or more
persons other than the victim murdered -- outweighed the evidence of mitigating
factors beyond a reasonable doubt. The jury imposed a life sentence for the other
felony murder conviction.
On direct appeal, the Court of Criminal Appeals affirmed the convictions and
the sentences for the felony murder convictions, but reversed the attempted felony
murder convictions. After the case was docketed as a death penalty appeal in this
Court pursuant to Tenn. Code Ann. § 39-13-206(a)(1) (1997), we reviewed the Court
of Criminal Appeals’ decision, the record, and the applicable law, and we entered an
order specifying three issues for oral argument.1
We have determined that none of the alleged errors claimed by the
defendant affected the convictions for felony murder or the sentences imposed by
the jury. We have further concluded that the evidence supports the jury’s findings
as to the aggravating and mitigating circumstances, and the sentence of death is not
arbitrary or disproportionate to the sentence imposed in similar cases, considering
the nature of the crime and this defendant. Accordingly, the judgment of the Court
of Criminal Appeals is affirmed.
1
“Prior to the setting of oral argument, the Court shall review the record and briefs and consider
all errors assigned. The Court may enter an order designating those issues it wishes addressed at oral
argum ent.” Ten n. Sup. C t. R. 12.
-2-
BACKGROUND
Guilt Phase
On April 20, 1992, four young men, Damond Dawson, Tracey Johnson, Eric
Thomas, and Tommie Blackman, were sitting in a car in Dawson’s driveway in
Memphis. Dawson was in the driver’s seat, Johnson was in the front passenger
seat, Thomas was in the back seat behind Dawson, and Blackman was in the back
seat behind Johnson.
The defendant, Kevin Burns, and Carlito Adams, who knew Blackman,
walked up to the passenger side of the car. Adams pulled out a handgun and told
Blackman to get out of the car. When Blackman refused, Burns pulled out a
handgun and went around to the driver’s side of the car. Blackman got out of the
car and fled. Adams said “get him,” and three or four more men appeared from
behind hedges and fired at Blackman.
Eric Jones, age fourteen, was playing basketball at Dawson’s house with
three friends. Jones saw the men in the car removing jewelry and pulling money
from their pockets. Seconds later, Jones saw Blackman running toward him.
Amidst gunshots, Jones and Blackman escaped to the back of the house; Jones’
three friends ran to an adjacent yard. Once inside the house, Jones heard seven or
eight more gunshots.
Mary Jones, Eric Jones’ mother, lived across the street from the Dawsons.
She saw Adams shoot Johnson once in the chest. She saw Kevin Burns shoot
Dawson several times, walk to the front of the car, and then shoot Dawson again.
Ms. Jones unequivocally identified Burns and stated that she got “a real good look in
his face” as he ran toward her after the shootings.
-3-
Tracey Johnson died at the scene. Damond Dawson, who suffered five
gunshots to his arm, buttocks, chest, and hip was alive when police arrived but died
after being transported to the hospital. Eric Thomas, who sustained gunshots to his
chest and stomach, survived and made a photo identification of Kevin Burns two
days after the incident. Thomas testified that Burns and the others had “opened
fire” after robbing him and his friends of their jewelry and money. Thomas said that
he initially told police he had been shot by Adams, but explained that he believed he
was going to die and gave police the only name he knew, which was Adams.
On June 23, 1992, Burns was found in Chicago and arrested. After being
advised of his rights and signing a waiver, the defendant gave a statement in which
he admitted his role in the killings. He said that he had received a telephone call
from Kevin Shaw, who told him that four men had “jumped” Shaw’s cousin. Burns,
Shaw, and four others intended to fight the four men, and Shaw gave Burns a .32
caliber handgun. As the others approached a car with four men sitting in it, Burns
stayed behind. He heard a shot, saw a man running across the yard, and fired three
shots. He then left the scene with the other men.
After the guilt phase of the trial, the jury deliberated and returned verdicts of
guilty for two counts of felony murder and two counts of attempted felony murder.
The trial moved into the penalty phase of the proceedings for the jury to determine
the punishment for each of the felony murder convictions.
Penalty Phase
Jonnie Dawson, mother of Damond Dawson, testified that Damond was the
youngest of her three children and seventeen years of age when he was killed. She
said he was a good son who was very good at athletics. The neighborhood had
changed after the killings; people locked their doors and were afraid. Ms. Dawson
testified that she no longer knew what it was like to be happy.
-4-
Brenda Hudson, mother of Tracey Johnson, testified that Tracey was the
oldest of her three children and twenty years of age when he was killed. He had
been working at Wal-Mart and saving money for his four-month-old daughter.
Tracey’s death had greatly affected Ms. Hudson’ other two children, Tracey’s
grandfather, and Tracey’s young daughter:
When you go over to her house to see her, she has a picture in a
frame and she will show you. She’ll say, ‘this is my father -- this is my
daddy, Tracey. He lives in God’s house up in heaven.’ And it’s hard
for me to go see her a lot because it breaks my heart to hear her say
that.
In mitigation, Leslie Burns, the defendant’s mother, testified that the
defendant was twenty-six years of age and had twelve brothers and sisters. He had
graduated from high school and had presented no disciplinary problems while in
school. The defendant’s father, Reverend Obra Carter, testified that his son had
always been obedient and well-mannered. Phillip Carter, the defendant’s brother,
testified that the defendant had been active in the church and had always tried to
avoid trouble.
Norman McDonald, the defendant’s Sunday School teacher, testified that he
had known Kevin Burns for several years. According to McDonald, Burns was a
“faithful” young man who had always attended church regularly. Mary Wilson, a
Captain with the Shelby County Sheriff’s Department, and Bennet Dean, a volunteer
chaplain, both testified that Burns had actively participated in religious services while
in custody for these offenses.
The prosecution relied on two aggravating circumstances to seek the death
penalty for the felony murder convictions -- that the defendant knowingly created a
great risk of death to two or more persons, other than the victim murdered, during
the act of murder, and that the murder had been committed for the purpose of
avoiding, interfering with, or preventing a lawful arrest or prosecution of the
-5-
defendant or another. Tenn. Code Ann. § 39-13-204(i)(3) and (6) (1997 & Supp.
1998).
With regard to the felony murder of Damond Dawson, the jury imposed the
death penalty after finding that the evidence supported the “great risk of death”
aggravating circumstance and that this factor outweighed the evidence of mitigating
factors beyond a reasonable doubt. With regard to the felony murder of Tracey
Johnson, the jury imposed a sentence of life imprisonment.
The trial court entered judgment in accordance with the jury’s verdict. The
Court of Criminal Appeals affirmed the convictions and sentences for the offenses of
felony murder, but reversed the convictions for attempted felony murder based on
our opinion in State v. Kimbrough, 924 S.W.2d 888 (Tenn. 1996).2 After our review
of the record and applicable authority, we affirm the Court of Criminal Appeals.
AGGRAVATING CIRCUMSTANCE
The defendant argues that the Court of Criminal Appeals’ reversal of the
attempted felony murder convictions requires a finding that the evidence failed to
support the single aggravating circumstance found by the jury -- that the defendant
knowingly created a great risk of death to two or more persons, other than the victim
murdered. Tenn. Code Ann. § 39-13-204(i)(3). The State maintains that the
evidence overwhelmingly supported the jury’s finding, notwithstanding the reversal
of the attempted felony murders.
We begin by observing that the Court of Criminal Appeals properly reversed
the attempted felony convictions. In Kimbrough, supra, we noted that the statutes
governing attempted crimes require a defendant to intend the commission of a
2
The Court of Criminal Appeals remanded the cases to the trial court for possible retrial for
attempted prem editated murder.
-6-
specific crime or result, while the offense of felony murder requires “a reckless killing
of another” in the course of certain enumerated felonies. Tenn. Code Ann. §§ 39-
12-101 (1997) & 39-13-202(a)(2) (1997 & Supp. 1998). Like nearly every
jurisdiction that has addressed the issue, we concluded that the offense of
attempted felony murder does not exist:
[I]t is illogical that someone could intend to cause someone else’s
death through negligence or even recklessness. While one may
reasonably conclude that a defendant intentionally behaved in a
reckless manner and may have intended to kill the victim, it does not
make sense to say that a defendant intended to kill the victim by being
reckless.
We conclude that one cannot intend to accomplish the
unintended. Consequently, the offense of attempted felony-murder
does not exist in Tennessee.
Kimbrough, 924 S.W.2d at 892.
Aggravating circumstance (i)(3) “contemplates either multiple murders or
threats to several persons at or shortly prior to or shortly after an act of murder upon
which the prosecution is based.” State v. Cone, 665 S.W.2d 87, 95 (Tenn.), cert.
denied, 467 U.S. 1210, 104 S. Ct. 2400, 81 L. Ed. 2d 357 (1984). It most often has
been applied where a defendant fires multiple gunshots in the course of a robbery or
other incident at which persons other than the victim are present. State v. McKay,
680 S.W.2d 447 (Tenn. 1984), cert. denied, 470 U.S. 1034, 105 S. Ct. 1412, 84 L.
Ed. 2d 795 (1985) (defendants killed two victims during robbery and shot at and
threatened two other persons inside store); State v. Workman, 667 S.W.2d 44(Tenn.), cert. denied, 469 U.S. 873, 105 S. Ct. 226, 83 L. Ed. 2d 155 (1984) (during
a shoot out with police, the defendant killed one officer, wounded a second, and
narrowly missed a third); State v. Johnson, 632 S.W.2d 542 (Tenn.), cert. denied,
459 U.S. 882, 103 S. Ct. 183, 74 L. Ed. 2d 148 (1982) (three shot and injured inside
store; two shot and killed in the parking lot as defendant fled).
-7-
The defendant’s argument is that the prosecution relied upon the attempted
felony murder convictions to establish this aggravating circumstance, and that the
reversal of the convictions renders the aggravating circumstance inapplicable. The
defendant cites the following excerpts from the prosecutor’s closing argument:
We haven’t proven a risk of death to two or more people? My God,
you’ve returned a verdict that he attempted to murder two other
people. It is established, beyond a reasonable doubt, and already
been found as a verdict that there was a risk of death to two or more
people.
....
So, how anybody can say those [the aggravators] weren’t proven when
the verdict proves one of them and going back and shooting him again
proves the other.
....
If you look at the evidence, you know the aggravating circumstances
are there, and one of them has already been found.
The transcript reveals, however, that the above statements were made in the
context of the prosecution’s detailed argument as to the evidence which supported
this aggravating circumstance. In its initial argument, for example, the prosecutor
said:
Now, what we’re talking about is when Mr. Blackman was running from
the car, Eric Jones was in the way of the shooting. Eric Jones
confronted Tommie Blackman as he ran from the car and was caught
in this gunfire. . . . But also there were three other young men playing
basketball on the side of the yard. All three of those young men were
also caught in the gunfire of the individual shooting at Tommie
Blackman. That is risk of death or great bodily injury to persons other
than the intended victims in this case. . . . In addition to Tommie
Blackman, there were four persons that were in the line of fire. That is
one of the aggravating factors. . . .
These points were reiterated in the prosecutor’s rebuttal argument as well:
There wasn’t a risk of death to two or more people. How about . . .
Eric Thomas who caught three rounds in his body fired not by one of
[the] codefendants but by that man [defendant] right there. He shot
him and shot him and shot him. That’s a pretty good risk of death.
How about Tommie Blackman who’s running? There’s a risk of death
-8-
to two people right there, not even counting the children playing
basketball.
....
He went with other armed men. He robbed. He shot and wounded an
unarmed teenager. He helped others shoot at and kill other unarmed
teenagers. With others, he shot in the direction of children playing
basketball; and he personally shot two people repeatedly.
Of even greater significance, however, is that the evidence in this record
overwhelmingly supports the prosecutor’s argument and the jury’s finding that the
defendant knowingly created a great risk of death to two or more persons other than
the victims murdered. The defendant, while armed and acting in concert with
others, approached a car containing four unarmed men. The defendant fired his
weapon inside the car where Dawson, Johnson, and Thomas were seated, killing
Dawson and wounding Thomas. He admitted firing shots at the fleeing Blackman,
which, according to testimony, directly imperiled Eric Jones and the three individuals
who were playing basketball in the Dawson’s driveway.
Accordingly, the evidence overwhelmingly supports the prosecutor’s
argument and the jury’s finding that the defendant knowingly created a great risk of
death to two or more persons other than the victim during the act or murder. The
reversal of the attempted felony murder convictions, which under Kimbrough was
predicated upon a matter of statutory law, does not affect the jury’s finding regarding
the aggravating circumstance.
VICTIM IMPACT EVIDENCE
The defendant argues that the trial court erred in admitting testimony of the
victims’ mothers during the penalty phase of the trial and by allowing the prosecutor
to emphasize this evidence during its closing argument. The defendant contends
that so-called “victim impact” evidence and argument is inflammatory, irrelevant to
-9-
the sentencing determination in a capital proceeding, inadmissible under our death
penalty statutes, and violative of Article I, §§ 8 and 16 of the Tennessee Constitution
and the Eighth and Fourteenth Amendments to the United States Constitution. The
State maintains that the evidence is relevant and admissible in the penalty phase of
a capital trial.
In State v. Nesbit, ___ S.W.2d ___ (Tenn. 1998), we recently held that victim
impact evidence and argument is not per se improper under either statutory or
constitutional law. Our analysis of the sentencing statutes began with Tenn. Code
Ann. § 39-13-204(c), which states:
In the sentencing proceeding, evidence may be presented as to any
matter that the court deems relevant to the punishment and may
include, but not be limited to, the nature and circumstances of the
crime; the defendant’s character, background history, and physical
condition; any evidence tending to establish or rebut the aggravating
circumstances enumerated in subsection (i); and any evidence tending
to establish or rebut any mitigating factors. Any such evidence which
the court deems to have probative value on the issue of punishment
may be received regardless of its admissibility under the rules of
evidence; provided, that the defendant is accorded a fair opportunity to
rebut any hearsay statements so admitted. However, this subsection
shall not be construed to authorize the introduction of any evidence
secured in violation of the constitution of the United States or the
constitution of Tennessee.
(emphasis added).
This statute delineates a procedure which enables the sentencing jury to be
informed about the presence of statutory aggravating circumstances, the presence
of mitigating circumstances, and the nature and circumstances of the crime. As we
said in Nesbit, “the impact of the crime on the victim’s immediate family is one of
those myriad factors encompassed within the statutory language ‘nature and
circumstances of the crime.’” ___ S.W.2d at ___. The statute, therefore, allows the
sentencing jury to be reminded that “just as the murderer should be considered as
an individual, so too the victim is an individual whose death represents a unique loss
-10-
to society and in particular to his family.” Payne v. Tennessee, 501 U.S. 808, 825,
111 S. Ct. 2597, 2608, 115 L. Ed. 2d 720 (1991).3
We also, in Nesbit, recognized that the United States Supreme Court has
held that Eighth Amendment to the United States Constitution does not constitute a
per se bar to the admission of victim impact evidence and argument:
We are now of the view that a State may properly conclude that for the
jury to assess meaningfully the defendant’s moral culpability and
blameworthiness, it should have before it at the sentencing phase
evidence of the specific harm caused by the defendant.
Nesbit, ___ S.W .2d at ____ (quoting Payne, 501 U.S. at 825, 111 S. Ct. at 2608).
Our recent decisions have followed Payne and have held that victim impact
evidence and argument is likewise not precluded by the Tennessee Constitution.
E.g., Nesbit, ___ S.W.2d at ___.
Not all victim impact evidence and argument, however, is appropriate. It
should be limited to “information designed to show those unique characteristics
which provide a brief glimpse into the life of the individual who has been killed, the
contemporaneous and prospective circumstances surrounding the individual’s
death, and how those circumstances financially, emotionally, psychologically or
physically impacted upon members of the victim’s family.” Id. at ___ (citing, Payne,
501 U.S. at 822, 111 S. Ct. at 2607) (footnote omitted).
Moreover, any evidence that threatens to render the trial fundamentally unfair
or poses a risk of unfair prejudice may violate the due process provisions of the
United States and Tennessee Constitutions and must be excluded. Id. The trial
3
In Nes bit, we also o bserve d that State v. Cozzolino, 584 S.W .2d 7 65 (T enn . 197 9), in w hich this
Court had said that evidence must be relevant to an aggravating circumstance or mitigating circumstance,
had not been applied so as to preclude evidence that is relevant to the “nature and circumstances of the
offense.” ___ S.W.2d at ___. We also note that the legislature has since enacted 1998 Pub. Acts, ch.
916, which expressly allows the State to introduce victim impact evidence and argument. This provision
became effective July 1, 1998.
-11-
court should also exclude any evidence where its probative value is substantially
outweighed by its unfair prejudice. Tenn. R. Evid. 403. Finally, the prosecutor and
the trial court should ensure that the prosecution’s argument is restrained and
reasoned, fairly based on the evidence, and not merely an appeal to the bias or
emotional responses of the jury. Nesbit, ___ S.W.2d at ___.
Here, the victims’ mothers testified during the penalty phase. Each related a
few details about their deceased sons. Ms. Dawson testified that the shootings had
a negative effect on her own life: she had divorced, moved to another house, and no
longer knew what it was like to feel happy. Johnson’s mother, Ms. Hudson, testified
that “it had been hard to let go” of the killings, and she cried every day. She also
testified that the killing affected her other two children, her father, and the victim’s
young daughter.
Although evidence regarding the emotional impact of the murder “should be
most closely scrutinized,” Nesbit, ___ S.W.2d at ___, nearly all of this evidence was
limited in scope to a glimpse into the lives of Dawson and Johnson and the effects
of the killings on their immediate families. This testimony was reserved in nature
and not inflammatory, and its admission was not barred by the capital sentencing
statutes or the Constitutions of the United States and Tennessee. Moreover, the
prosecutor did not extensively discuss or emphasize this evidence in summation.
Accordingly, neither the admission of this evidence nor the prosecution’s argument
was improper.
Ms. Dawson also testified, however, that the killings had adversely affected
the entire community -- for instance, people were afraid and kept their doors locked.
The prosecutor emphasized this testimony during closing:
Do you remember the testimony of Miss Dawson? Stay home. Get
back over here on David Street. Stay in your own driveway. Stay in
your own yard. You’ll be safe there. I never thought anybody would
-12-
come up in the yard. It reminds me of the old anonymous African
proverb: It takes a whole village to raise a child. And that’s what this
village was. That’s what David street was. This wasn’t a street.
You’ve heard it described here. This is the neighborhood we all wish
America really had. And that was part of the impact evidence in this
case. They didn’t just kill a couple of more Memphis teenagers and try
to kill a couple more. They killed an entire village. They killed an
entire neighborhood. They destroyed the very backbone of this
community when they do things like that. . . .
....
You’ve heard what it did to this part of Orange Mound -- not just to
families and not just to individuals, but what it did to Orange Mound.
This evidence and argument went beyond “information designed to show
those unique characteristics which provide a glimpse into the life of the individual
who has been killed, the contemporaneous and prospective circumstances
surrounding the individual’s death, and how those circumstances financially,
emotionally, psychologically or physically impacted upon member’s of the victim’s
family.” Nesbit, ___ S.W.2d at ___ (footnote omitted)(emphasis added). The
testimony was not objected to by the defendant, however, and the prosecutor’s
argument was based on this evidence. Although beyond the scope of Nesbit,
neither the evidence nor the argument was inflammatory, and it did not render the
proceedings fundamentally unfair or unduly prejudicial to the defendant. See
Darden v. Wainwright, 477 U.S. 168, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986).
Thus, we conclude the defendant is not entitled to relief on this issue.
PROPORTIONALITY
A comparative proportionality review must be undertaken in capital cases
pursuant to Tenn. Code Ann. § 39-13-206(c)(4) (1997). The analysis is designed to
identify aberrant, arbitrary or capricious sentences by determining whether the death
penalty in a given case is “disproportionate to the punishment imposed on others
convicted of the same crime.” State v. Bland, 958 S.W.2d 651, 662 (Tenn. 1997)
(quoting, Pulley v. Harris, 465 U.S. 37, 42, 104 S. Ct. 871, 875, 79 L. Ed. 2d 29(1984)). If a case is “plainly lacking in circumstances consistent with those in cases
-13-
where the death penalty has been imposed,” then the sentence is disproportionate.
Bland, 958 S.W.2d at 668.
As we discussed in Bland, we have consistently employed the precedent
seeking method of comparative proportionality review, which compares the case at
issue with other cases in which defendants were convicted of the same or similar
crimes. Since no crimes are precisely alike, the precedent seeking method of review
is not a rigid, mechanical formula. Instead we consider numerous factors regarding
the offense itself: (1) the means of death; (2) the manner of death; (3) the motivation
for the killing; (4) the place of death; (5) the victims’ age, physical and psychological
condition; (6) the absence or presence of premeditation; (7) the absence or
presence of provocation; (8) the absence or presence of justification; and (9) the
injury to and effects on nondecedent victims. Id. at 667. We also consider
numerous factors about the defendant: (1) age, race and gender; (2) prior criminal
record; (3) mental, emotional, or physical condition; (4) role in the murder; (5)
remorse; (6) cooperation with authorities; (7) the defendant’s knowledge of a victim’s
helplessness; and (8) the defendant’s potential for rehabilitation. Id.
Here, the defendant shot the victim Dawson, walked around the side of the
car, and then returned to shoot Dawson again. Acting in concert with others, the
defendant shot and killed Dawson, shot and wounded Thomas, and shot at the
fleeing Blackman. One apparent motivation for the killing was robbery; another,
offered in the defendant’s own statement, was to assist in a revenge scheme.
There was no evidence to suggest the defendant was provoked or justified in his
actions. The defendant’s main argument with regard to the nature of the offense is
that he did not know that the victims were unarmed.
The defendant was twenty-three years of age when the offense was
committed. He had prior criminal convictions for burglary and theft. There is no
-14-
evidence that he suffered from any emotional, mental, or physical conditions. There
is no evidence that the defendant showed remorse for these crimes or that he
assisted the authorities; indeed, the proof shows that the defendant fled to Chicago
after committing these crimes. The defendant played a major role in the
commission of the crimes, killing Dawson, wounding Thomas, and firing at
Blackman. There is extensive evidence of the defendant’s religious faith and
activities both before and after the offenses, but no other evidence as to his
rehabilitative potential.
Our review reveals numerous cases similar to this one in which the death
penalty was upheld. In Bland, supra, the defendant was convicted of premeditated
murder for shooting an unresisting victim. As in this case, Bland and several co-
defendants had planned to rob the victims. When one of the victims tried to flee,
Bland shot him in the leg, pursued him a considerable distance, and then shot him
several more times as the victim tried to hide under a truck. In addition to the
similarities in how the killings occurred, Bland, age nineteen, was the same
approximate age as Burns, and he had no prior adult criminal record. Also like the
present case, only a single aggravating circumstance found by the jury -- that the
“murder was especially heinous, atrocious, or cruel in that it involved torture or
serious physical abuse beyond that necessary to produce death.” Tenn. Code Ann.
§ 39-13-204(i)(5).
In State v. Van Tran, 864 S.W.2d 465 (Tenn. 1993), the defendant killed a
seventy-four-year-old victim in the course of a robbery. The victim had been shot
once and was lying on the floor when the defendant shot her in the head. The
defendant was age nineteen and had no prior record. Mitigating evidence included
the defendant’s good work record, cooperation with law enforcement, remorse, and
educational problems. The jury imposed the death sentence after finding only one
aggravating circumstance -- that the “murder was especially heinous, atrocious, or
-15-
cruel in that it involved torture or serious physical abuse beyond that necessary to
produce death.” Tenn. Code Ann. § 39-13-204(i)(5).
In State v. McKay, 680 S.W.2d 447 (Tenn. 1984), co-defendants McKay and
Sample were convicted of two counts of felony murder for shooting to death two
store clerks in the course of a robbery. The defendants and victims were the same
race, gender and approximate age. For Sample, the jury found three aggravating
circumstances: great risk of death to two or more persons, murder was committed to
prevent prosecution, and the killing occurred in the perpetration of a felony. Tenn.
Code Ann. § 39-2-203(i)(3), (6), and (7) (1982) [now Tenn. Code Ann. § 39-13-204
(i)(3), (6), and (7)]. McKay had these same aggravators in addition to a prior
conviction for a violent felony. Tenn. Code Ann. § 39-2-203(i)(2) (1982) [now Tenn.
Code Ann. § 39-13-204(i)(2)]. See also State v. Johnson, 632 S.W.2d 542 (Tenn.
1982) (defendant and co-defendant shot three people during a robbery and shot
and killed two people in the parking lot).
In State v. King, 694 S.W.2d 941 (Tenn.1985), the defendant and a co-
defendant entered a tavern, fired a shot into the ceiling and ordered everyone to lie
on the floor. After robbing each individual and taking money from the cash register,
the defendant shot and killed the owner of the tavern. The defendant was convicted
of felony murder and was sentenced to death based upon three aggravating
circumstances: previous convictions for violent felonies; risk of death to two or more
persons; and felony murder. Tenn. Code Ann. § 39-2-203(i)(2), (3), and
(7) (1982) [now Tenn. Code Ann. § 39-13-204(i)(2), (3), and (7)].
In State v. Hurley, 876 S.W.2d 57 (Tenn. 1993), cert. denied, 513 U.S. 933,
115 S. Ct. 328, 130 L. Ed. 2d 287 (1994), the defendant killed the victim by shooting
him once in the head. The jury found the defendant guilty of premeditated murder
and imposed the sentence of death upon finding that the murder was committed
-16-
while the defendant was engaged in committing a felony -- robbery. Tenn. Code
Ann. § 39-2-203(i)(7) (1982) [now Tenn. Code Ann. § 39-13-204(i)(7)].
In State v. Cooper, 718 S.W.2d 256 (Tenn. 1986), cert. denied 479 U.S.
1101, 107 S. Ct. 1332, 94 L. Ed. 2d 183 (1987), the thirty-three-year-old defendant
shot his estranged wife four time while she was trapped inside a cashier's booth.
After shooting the victim once, he walked away, then turned back and resumed firing
at her. The jury imposed the death penalty, as in this case, upon finding that the
murder was especially heinous, atrocious, or cruel in that it involved torture or
depravity of mind. Tenn. Code Ann. § 39-2-203(i)(5) (1982) [now Tenn. Code Ann.
§ 39-13-204(i)(5)] .
These cases, although not identical, contain numerous similarities to both the
offense and the defendant before us. In each case, the defendant shot and killed
unarmed victims, with robbery being the apparent motive. In four of the cases,
Bland, Van Tran, Hurley, and Cooper, the death penalty was imposed based upon a
single aggravating circumstance found by the jury. In two of the cases, King and
McKay, one of the aggravating circumstances was, as in this case, that the
defendant knowingly created a great risk of death to two or more persons other than
the victim murdered. In two of the cases, Bland and Van Tran, mitigating
circumstances included the youth of the offender and their minimal criminal records
as adults. In all of these cases, this Court upheld the death penalty after finding that
it was neither arbitrary nor disproportionate.
The defendant argues that unlike the defendants in these prior cases, he did
not know that the victims were unarmed. He argues that the case is similar to State
v. Jack Jay North, No. 02C01-9512-CC-00369 (Tenn. Crim. App., Jackson, Dec. 12,
1996), and State v. Horace Jones, No. 117 (Tenn. Crim. App., Jackson, Dec. 4,
-17-
1980) -- first-degree murder cases in which the defendants received sentences of
life imprisonment.
In North, the defendant and a co-defendant entered the victim’s home and
shot the victim several times with a shotgun. The evidence showed that the killing
was committed for the defendants to prove their worthiness to other members of a
gang. In mitigation, North was only twenty years of age, had received a G.E.D, did
not have a lengthy prior criminal record, and testified in a “tearful, emotional
manner.” The jury found three aggravating circumstances were proven but returned
a verdict of life imprisonment.
In Jones, the defendant shot the victim several times in a pool hall. After the
gun misfired and the defendant stopped to reload, the victim attempted to flee and
was shot and killed. The defendant, who was twenty-four, was apprehended and
arrested one month later. There was extensive mitigating evidence including the
defendant’s rehabilitative potential, extreme emotional disturbance, and threatening
actions by the victim. The jury returned a life sentence for the offense.
Although not cited by the defendant or the State, we observe that the present
case bears obvious similarities to Burns’ co-defendants, Carlito Adams and Derrick
Garrin, who were tried separately and received life sentences. Garrin had given a
statement admitting he was present at the scene and fired shots at Blackman; but,
he denied firing shots inside the car. State v. Derrick K. Garrin, No. 02C01-9501-
CR-00028 (Tenn. Crim. App., Jackson, May 24, 1996). Adams testified that he and
Blackman had a prior altercation in which Blackman pulled a gun. He admitted
being at the scene but denied shooting anyone. In the sentencing phase, his family
members and other witnesses testified about his employment history, character, and
rehabilitative potential. His family members asked the jury to spare his life. State v.
-18-
Carlito Adams, No. 02C01-9608-CR-00267 (Tenn. Crim. App., Jackson, Dec. 11,
1997).
Despite these similarities to the present case, our function is not to invalidate
a death sentence merely because the circumstances of the offense are similar to
those in which another defendant or even a co-defendant received a life sentence.
See State v. Cauthern, 967 S.W.2d 726 (Tenn. 1998) (defendant’s death sentence
not disproportionate merely because co-defendant received life sentence). Instead,
we must review factors about the crimes and the defendant and, in comparing these
factors with prior cases, determine whether the case plainly lacks circumstances
found in similar cases in which the defendant received the death penalty. Bland,
957 S.W.2d at 687. Our review in this case reveals numerous comparable cases in
which the death penalty was upheld. Thus, we conclude that the death sentence
was not disproportionate or arbitrary as applied in this case.
CONCLUSION
In accordance with Tenn. Code Ann. § 39-13-206(c) and the principles
adopted in prior decisions, we have considered the entire record and conclude that
the sentence of death was not imposed arbitrarily or capriciously, that the evidence
supports the jury’s finding of the statutory aggravating circumstance, and that the
evidence supports the jury’s finding that the aggravating circumstance outweighed
evidence of mitigating circumstances beyond a reasonable doubt.
We have reviewed all of the issues raised by the defendant and conclude that
they are without merit. With respect to issues not specifically addressed in this
opinion, we affirm the decision of the Court of Criminal Appeals authored by Judge
John Peay and joined in by Judges Joe B. Jones and Joe Riley. Relevant portions
of that opinion are attached as an appendix. The defendant’s sentence of death by
-19-
electrocution is affirmed and shall be carried out on the 9th day of February, 1999,
unless otherwise ordered by this Court or proper authority.
Costs of the appeal are taxed to the defendant, for which execution shall
issue if necessary.
_________________________________
RILEY ANDERSON, CHIEF JUSTICE
CONCUR:
Drowota, Birch, and Holder, JJ.
-20-