State v. Harris

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON

FILED FOR PUBLICATION

STATE OF TENNESSEE, ) Filed: April 12, 1999
April 12, 1999
)
Appellee, ) Hon. Julian P. Guinn
Cecil Crowson, Jr.
) Judge
Appellate Court Clerk
Vs. )
) HENRY COUNTY
TERESA DEION SMITH HARRIS, )
) Supreme Court
Appellant. ) No. 02-S01-9806-CC-00053
)

APPELLANT FOR APPELLEE:
Shipp Weems John Knox Walkup
District Public Defender Attorney General & Reporter
Charlotte, Tennessee
Michael E. Moore
Steve West Solicitor General
West & West
McKenzie, Tennessee Peter M. Coughlan
(TRIAL ONLY) Assistant Attorney General
Nashville, Tennessee

G. Robert Radford
District Attorney General

OPINION

AFFIRMED. DROWOTA, J.
 We granted this appeal to determine whether the constitutional harmless

error analysis delineated in State v. Howell, 868 S.W.2d 238 (Tenn. 1993), applies

when a jury renders an incomplete verdict as to one of the two aggravating

circumstances upon which a sentence of life imprisonment without the possibility

of parole is based.

Although we agree that the incomplete finding is erroneous because the

jury did not apply the aggravating circumstance prescribed by the General

Assembly, the error does not implicate constitutional Eighth Amendment concerns

because no death sentence is involved. Therefore, in the context of this appeal

from a sentence of life imprisonment without the possibility of parole, the error is

statutory, and the constitutional harmless error analysis delineated in Howell does

not apply.

A statutory error is not reversible unless it either affirmatively appears to

have affected the result of the trial on the merits,1 or the error involved a

substantial right which more probably than not affected the judgment or would

result in prejudice to the judicial process. 2 To establish that the jury’s reliance

upon the invalid aggravating circumstance satisfies either of these standards, the

defendant must show that the jury grossly abused its discretion by arbitrarily

sentencing her to life imprisonment without the possibility of parole.3 The

1
Tenn. R. Crim . P. 52(a).

2
Tenn. R. App. P. 36(b).

3
Tenn. Code Ann. § 39-13-207(g) (1997 Supp.) provides in pertinent part that “[a] sentence
of imp risonm ent for life witho ut the pos sibility of parole sh all be cons idered ap propriate if the state
prov ed be yond a rea son able d oub t at lea st on e (1) s tatuto ry agg rava ting c ircum stan ce c onta ined in
§ 39-13-204(i), and the sentence was not otherwise imposed arbitrarily, so as to constitute a gross
abuse of the jury’s discretion.”

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defendant has failed to make this showing. Accordingly, the judgment of the

Court of Criminal Appeals which upheld her conviction and sentence is affirmed.

BACKGROUND

The defendant, Teresa Deion Smith Harris, was convicted of first degree

felony murder. The evidence introduced at the guilt phase of the trial established

that on July 30, 1993, the defendant, her live-in boyfriend, Walter Smothers, and a

neighbor, Stacy Ramsey, spent the day at the defendant’s house drinking tequila,

whiskey, and beer, and smoking marijuana. Smothers was also taking Valium.

The defendant’s ex-boyfriend, David Hampton called her home several

times throughout the day. Smothers answered the telephone on one occasion

and argued with Hampton. The conversation ended when Smothers and

Hampton agreed to meet and fight. Later that evening, the defendant, Smothers,

and Ramsey left to go to Hampton’s house. Smothers asked Ramsey to bring

along his .20 gauge shotgun.

The trio departed in Ramsey’s pickup truck, and after leaving the

defendant’s two young children at their grandmother’s home, they drove around

Carroll County for sometime, drinking alcohol and searching for Hampton’s house.

The defendant testified that she knew the location of Hampton’s house but was

afraid to direct Smothers to it. At some point, they tried to buy motor oil for

Ramsey’s truck but could find no store open, so they continued the search for

Hampton’s house.

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 Eventually, at around 12:00 a.m., the truck broke down on Highway 114

near Hollow Rock.4 To obtain transportation, the defendant, Smothers, and

Ramsey decided to stop the next vehicle that approached and take it from the

driver. They discussed that they might be required to kill the driver of the vehicle.

Smothers believed that an approaching vehicle would be more likely to stop for a

young woman, so he urged the defendant to flag down the vehicle. She agreed,

and when the headlights became visible, Harris stood on the side of the road and

flagged down the approaching vehicle while Smothers and Ramsey hid behind the

truck.

The truck, a Ford Ranger, was driven by the victim, nineteen-year-old

Dennis Brooks, Jr. He had just finished his shift at Subway and was traveling

home at approximately 12:30 a.m. When Brooks stopped, Ramsey and Smothers

emerged from their hiding place. Smothers held the .20 gauge shotgun on Brooks

and ordered him to get out of his truck. Ramsey forced Brooks to lie on the

ground, and the defendant ran up to Brooks, punched him two or three times in

the back, cursed him, and told him to lie down on the ground. At trial, the

defendant claimed that her actions were intended to force Brooks to be quiet so

that Smothers would not harm him. However, according to nearby residents who

were awakened by the commotion and heard the defendant shouting, the

defendant’s voice sounded “mean” and “very hateful.”

Smothers demanded money from Brooks, took his wallet and forced him to

get onto the back of the victim’s pickup truck. The defendant and Ramsey got into

4
The truck broke down less than one mile from Hampton’s home.

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the cab of the truck. Ramsey drove and, as the truck began to move, Smothers

decided to climb into the cab of the truck through the rear sliding glass window.

Smothers asked Ramsey to slow down and gave the gun to the defendant to hold

on Brooks while he climbed through the window. Testimony diverged as to what

happened next. Smothers said that while the defendant was still holding the gun,

Ramsey accelerated, causing the truck to jerk and the gun to discharge and shoot

the victim in the hip. In contrast, the defendant testified that she had given the

gun back to Smothers, turned back around in the seat, and then heard the gun

discharge and shoot the victim in the hip. According to the defendant, Smothers

told her he had accidentally shot the victim. Ballistics testimony at trial indicated

that to fire the gun which was used to shoot the victim, a person would have to

both pull back the hammer and press the trigger.

In any event, after being shot, the victim began to scream and cry out in

pain. Ramsey, Smothers, and Harris yelled at him to shut up. According to the

defendant, Smothers initially agreed to take Brooks to a hospital but did not follow

through on his promise, and instead the group continued to drive around in the

country for another 20 or 30 minutes searching for Hampton’s house. As lights

from a town became visible, the victim again began to scream for help. Afraid

someone would hear the screaming, Smothers put the gun under the victim’s chin

and fired. Smothers testified that Ramsey, the defendant, or a voice inside his

head told him to shoot the victim.

After the fatal shooting, the trio continued to drive around in the area.

While speeding through the town of Hollow Rock, they were pursued by a police

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officer, but were able to evade apprehension and eventually traveled back to the

defendant’s home. They discussed how to dispose of the victim’s body and

decided to bury his body and truck with a backhoe to which Ramsey had access.

However, this plan had to be abandoned because the backhoe had a flat tire, so

they decided to bury the victim’s body and burn the vehicle.

Smothers obtained an ax and a shovel from Ramsey’s home, and the

defendant retrieved a butcher knife from her kitchen. Ramsey and Smothers

drove the victim’s truck to a deserted area known as Haunted Bridge. The

defendant followed in her car. Once there, the group decided to dismember the

victim’s body to make burial easier and to give the impression that “nobody around

here did it.”

The medical examiner testified at trial that the victim had died from the

gunshot wound to his head, but also stated that the gunshot wound to the victim’s

hip would have resulted in excruciating pain and alone would have been sufficient

to result in death due to the tremendous amount of blood loss. The medical

examiner also recounted the post-mortem mutilation of the victim’s body, testifying

that the victim had been stabbed numerous times and that his legs, right arm, and

penis had been severed from his body. The victim’s chest cavity had been cut

open and his heart had been removed and placed back inside his abdominal

cavity. The medical examiner testified that the victim’s heart had discolored areas

on it which were consistent with a person sucking blood from it.

According to Smothers, he and Ramsey each had severed one of the

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victim’s legs and Ramsey had severed the victim’s right arm. Smothers admitted

that he had removed the victim’s heart, but said he had done so because the

defendant had told him that she “wanted his heart.” Smothers said that he,

Ramsey, and the defendant had each held the victim’s heart and pressed it to

their lips. The defendant admitted stabbing the victim’s body once and touching

the victim’s heart to her lips, but she claimed that she had acted at Smothers

direction and said that she had been afraid to disobey him after he had shot and

killed the victim. The defendant otherwise denied all participation in the mutilation.

After mutilating the victim’s body, the trio returned to the defendant’s home,

obtained gasoline and lantern fuel, and drove the truck into an empty field. After

removing a radio, speaker and several personal items, 5 they set the truck afire

with the victim’s mutilated body inside the cab. Ramsey and Smothers drove the

victim’s truck to the burn site with the defendant following in her own car. After the

fire was ignited, they all returned to the defendant’s home. They all showered and

the defendant laundered their blood-stained clothes.

The day after the night of the murder, the defendant and Smothers

returned to the victim’s truck and, discovering it had not completely burned, again

set the truck afire. They concocted an alibi to conceal their actions and the events

of the previous night. Later that evening the three “partied” at Ramsey’s house

until around 8:00 p.m. and then went to an establishment called Casey’s Bar and

continued to consume alcohol. According to the owner of the Bar, the defendant

was “more active” than usual. She played pool and sang with the jukebox. She

5
These items were recovered from the defendant’s house after she consented to a search.

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was wearing a hat and sunglasses which were later identified as belonging to the

victim.

The victim’s parents had reported him missing on the afternoon of July 31,

1993, the day following the murder. While searching for the victim with a

helicopter, law enforcement officials spotted the smoke from his burning truck. An

investigation followed, and rather quickly, law enforcement officials arrested

Ramsey, Smothers, and the defendant. All three were indicted and charged by a

Carroll County grand jury in a two count indictment with premeditated first degree

murder and first degree felony murder. The State filed a notice of intent to seek

the death penalty as to each defendant.

Upon request, the trial court severed the action and ordered three separate

trials. The defendant was tried first. The venue was changed due to the

magnitude of pretrial publicity. The defendant’s trial was held in Henry County. At

the end of the proof, the State elected to proceed on the charge of first degree

felony murder charge. Upon hearing the proof as summarized above, the jury

found the defendant guilty of first degree felony murder.

At the sentencing hearing, the State sought the death penalty upon the

basis of two aggravating circumstances: “[t]he murder was especially heinous,

atrocious, or cruel in that it involved torture or serious physical abuse beyond that

necessary to produce death;” and “[t]he murder was committed for the purpose of

avoiding, interfering with, or preventing a lawful arrest or prosecution of the

defendant or another.” Tenn. Code Ann. § 39-13-204(i)(5) and (6) (1997 Repl.).

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The State relied upon the evidence presented at the guilt phase of the trial. The

State also called as a witness the victim’s father, who asked the jury not to impose

the death penalty, but to impose instead a sentence of life imprisonment without

the possibility of parole.

The defendant testified in her own behalf and also offered the testimony of

Cynthia Taylor, her sister, Dr. Phillip Carl Morson, a staff physician from Western

Mental Health Institute, and Dr. Gillian Blair, a clinical psychologist. The

defendant expressed sorrow to the victim’s family for the murder and said that she

would not have stopped his truck if she had known it would eventually result in his

death.

From the testimony of the defendant’s sister, the jury learned that the

defendant, twenty-three at the time of trial, is the middle child in a family of three,

with an older sister, Taylor, twenty-eight at the time of trial, and a younger brother,

eighteen at the time of trial. The defendant’s father was employed as a school

bus driver in Carroll County and also owned a small engine shop. Her mother had

suffered from severe rheumatoid arthritis since shortly after the defendant’s birth,

and at the time of trial was unable to walk without crutches. Because of her

mother’s illness, the defendant’s grandmother had cared for her a great deal until

the grandmother was killed in an automobile accident when the defendant was

twelve-years-old.6 The defendant had begun drinking alcohol shortly after her

grandmother’s death and had become an alcoholic.

6
Taylor also testified that the defendant had been sexually abused since the age of twelve,
but because Taylor did not wish to disclose the identity of the abuser, defense counsel did not
pursue this line of questioning.

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 Though the defendant has repeatedly sought treatment, she has been

unable to successfully control the addiction. The defendant also abuses drugs,

including morphine and cocaine. At the age of fourteen, the defendant attempted

to commit suicide by taking an overdose of Tylenol and, as a result, was

hospitalized for treatment. The defendant became pregnant and bore her first

child while she was enrolled in high school. She was able to utilize a homebound

teacher to stay current on her studies. Eventually the defendant returned to

classes and graduated even though she continued to use drugs and alcohol.

Following graduation, the defendant again became pregnant and married

Jim Harris. The defendant and Harris abused drugs regularly during their

marriage which eventually ended in a divorce. Thereafter, the defendant met and

dated David Hampton for approximately one year. Hampton abused drugs and

also physically abused the defendant. On one occasion, the defendant was

hospitalized as a result of the abuse. When her relationship with Hampton ended,

the defendant began dating Smothers. They had lived together for approximately

two to three weeks before this killing occurred.

On cross-examination Taylor admitted that the defendant had been

rebellious since the age of twelve, that she would not listen to the instruction of

her parents, and that she has made very poor choices with regard to relationships

with men. Taylor said that both she and her mother had tried to help the

defendant “in every way” by seeking professional help but that none of their efforts

had been successful.

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 Dr. Morson, a staff physician at Western Mental Health Institute, testified

that he had treated the defendant beginning on January 15, 1994, after she had

attempted to commit suicide while incarcerated for the victim’s murder. At that

time, the defendant was diagnosed as suffering from major depression with

psychotic features and post-traumatic stress disorder, with post-traumatic stress

disorder being the primary diagnosis. According to Dr. Morson, the traumatic

event which precipitated the onset of the defendant’s post-traumatic stress

disorder was her witnessing and participation in the victim’s murder. In her

admission statement, the defendant had said “I’m going to kill myself. I don’t

deserve to live after what I did.”

Dr. Morson described the defendant as “a very anxious person, a very guilt-

ridden person, a very distraught person, a person who was . . . re-experiencing the

events of last summer, was actually at times feeling like the deceased was in the

room with her, was hearing his voice begging; and was driven to just extreme

anxiety about this, driven to suicidal attempts by this, driven to not want to be alive

by this, over and over again, driven to the point where at times she was so

distracted that she was almost not there.” Dr. Morson said the defendant would

cry and twist her hair each time the subject was brought up and felt extremely

guilty “because she could not stop the events that happened; that she could not

stop Walter [Smothers] from doing what he did; that she didn’t have the courage

to do anything about this. . . .” The defendant expressed remorse and regret for

her actions, according to Dr. Morson, and repeatedly stated that “she didn’t know

how she could go on living with this.” She also attempted to commit suicide on

one occasion while hospitalized at Western State.

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 Based upon an interview and evaluation of the defendant on February 18,

1994, Dr. Blair, a clinical psychologist, diagnosed the defendant as suffering from

severe depression and post-traumatic stress disorder. Dr. Blair also testified that

the defendant has substance dependence and some elements of a personality

disorder. Dr. Blair opined that the defendant is passive and dependent and

makes poor decisions.

Dr. Blair stated that the defendant had reported to her that she had been

raped and had been sexually abused by the rapist since the age of twelve. The

defendant reported the abuse to her parents but was not believed. According to

the defendant’s statement, the alleged perpetrator later admitted the abuse but

was never prosecuted. Following the rape, Dr. Blair said the defendant began

using various drugs and attempted suicide multiple times. Dr. Blair opined that the

defendant participated in the murder of the victim because she is dependent upon

men and, as a result, followed the directions of W alter Smothers.

On cross-examination, Dr. Blair admitted that any post-traumatic stress that

the defendant now suffers would not have impacted her actions on the night of the

murder, July 30, 1993. Also, Dr. Blair conceded that the defendant’s

noncompliance with her parents’ instructions could be considered inconsistent

with her assessment of the defendant as a dependent personality.

Based upon this proof, the jury rejected the death penalty and imposed a

sentence of life imprisonment without the possibility of parole. The trial judge

instructed the jury in accordance with the language of the statute with respect to

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the two aggravating circumstances upon which the State had relied. The verdict

form reflected that the jury had found “[t]he murder was committed for the purpose

of avoiding, interfering with, or preventing a lawful arrest or prosecution of the

defendant or another.” Tenn. Code Ann. § 39-13-204(i)(6) (1997 Repl.). With

respect to the second aggravating circumstance, the verdict form indicated that

the jury had found only that “[t]he murder was especially heinous and atrocious.”

When the trial judge noticed the variation between the jury’s finding and the

actual statutory language of the aggravating circumstance, the following colloquy

occurred.

THE COURT: I notice that where you set out the aggravating
circumstance number one that you do not have the entire
aggravating circumstance written out. Is there some reason?

JURY FOREMAN: Well, we just

THE COURT: Was it intended to be that you found the entire
circumstance there?

JURY FOREMAN: Well, just what I’ve got written out.

THE COURT: You’ve written here that you found that the murder
was especially heinous and atrocious.

JURY FOREMAN: Yes, sir.

THE COURT: You have omitted that it was cruel, involved torture or
serious physical abuse beyond that necessary to produce death. Is
that what you intended for it to be?

JURY FOREMAN: Yes, sir.

THE COURT: All right, but then you have found that the second
aggravating circumstance there in its entirety is correct.

JURY FOREMAN: Yes, sir.

THE COURT: Based upon that you fixed a sentence of life

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 imprisonment without the possibility of parole. Have I read it
correctly?

JURY FOREMAN: That’s correct.

Following this exchange, the trial judge entered a judgment in accordance

with the jury’s verdict which found the defendant guilty of first degree felony

murder and imposed a sentence of life imprisonment without the possibility of

parole.

On appeal, the defendant challenged the validity of her sentence and

argued that she should be given a new sentencing hearing because the jury

rendered an incomplete verdict with respect to one of the two aggravating

circumstances upon which the sentence had been based. A majority of the Court

of Criminal Appeals rejected her claim and affirmed the conviction and sentence

imposed. One judge dissented from the majority decision, concluding that the jury

had erroneously returned an incomplete verdict with respect to one of the two

aggravating circumstances. Applying the analysis delineated in State v. Howell,

868 S.W.2d 238 (Tenn. 1993), the dissenting judge concluded that the error was

not harmless beyond a reasonable doubt.

Thereafter we granted the defendant’s application for permission to appeal

and now affirm the decision of the Court of Criminal Appeals which upheld the

defendant’s conviction of first degree felony murder and the sentence of life

imprisonment without the possibility of parole.

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 HARMLESS ERROR ANALYSIS

In this Court, the defendant argues that she should be given a new

sentencing hearing because the jury rendered an incomplete verdict with respect

to one of the aggravating circumstances upon which her sentence was based.

Relying upon the analysis delineated in Howell, supra, the defendant argues that

the error is not harmless.

The State concedes that the jury’s incomplete finding with respect to the

(i)(5) aggravating circumstance constitutes error. However, the State asserts that

the Howell analysis does not apply because the error is statutory rather than

constitutional. According to the State, the error is harmless because it does not

affirmatively appear to have affected the sentencing verdict to the defendant’s

prejudice. Tenn. R. Crim. P. 52(a); Tenn. R. App. P. 36(b).

To resolve the issue in this appeal we must first determine whether the

error complained of is constitutional or statutory. 7 The answer to this question is

important because the test for harmlessness of constitutional errors differs from

that for nonconstitutional errors. First, once a constitutional error is found, the

burden shifts to the State to prove harmlessness; the burden does not shift to the

state for nonconstitutional errors. James C. Scoville, Deadly Mistakes: Harmless

Error in Capital Sentencing, 54 U.Chi. L. Rev. 740, 741-42 (1987). Second, the

7
In so statin g, we note our a gree me nt with both the d efen dan t and the S tate th at the jury’s
inco mp lete fin ding w ith res pec t to the (i)(5) aggr avatin g circ um stan ce w as er ror. W e also again
reiterate that “[w]here the jury reports an incorrect or imperfect verdict, the trial court has both the
power a nd duty to re direct the ju ry’s attention to th e law and return the m to the jury room with
directions to reconsider their verdict.” State v. Nic hols , 877 S.W.2d 722, 730 (Tenn. 1994). The
trial court in this case failed to follow that procedure despite its realization that the jury’s verdict was
incomplete with respect to the (i)(5) aggravating circumstance.

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standard which applies to assess the harm or prejudice resulting from

constitutional errors is more exacting than the standard which applies to

nonconstitutional errors. Id.; see also 3A Wright & Miller, Federal Criminal

Practice and Procedure § 855 (2d ed. 1982).

For example, in Tennessee, nonconstitutional errors will not result in

reversal unless the error affirmatively appears to have affected the result of the

trial on the merits, or considering the whole record, the error involves a substantial

right which more probably than not affected the judgment or would result in

prejudice to the judicial process. Tenn. R. Crim. P. 52(a); Tenn. R. App. P. 36(b);

State v. Cook, 816 S.W.2d 322, 326 (Tenn. 1991); State v. Williams, 977 S.W.2d

101, 105 (Tenn. 1998). In contrast, a constitutional error will result in reversal

unless the reviewing court is convinced “beyond a reasonable doubt” that the error

did not affect the trial outcome. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824,

17 L.Ed.2d 705 (1967); Howell, 868 S.W.2d at 260; Cook, 816 S.W.2d at 326;

Tenn. R. Crim. P 52(a). Finally, and perhaps most significantly, though any

nonconstitutional error may be considered harmless in a particular case, there are

some constitutional errors which defy harmless error analysis and will always

require reversal.8

The defendant reasons that the error in this case is constitutionally based

because, like Howell, the jury’s sentencing determination was based in part upon

an invalid aggravating circumstance. There is an important and vital distinction,

8
Chapman , 386 U.S. at 23, 87 S.Ct. at 827, (citing e.g. Gideon v. Wainwright, 372 U.S. 335,
83 S.C t. 792, 9 L.E d.2d 799 (1963)( right to cou nsel); Tum ey v. St ate o f Oh io, 273 U.S. 510, 47
S.Ct. 437 , 71 L.Ed. 7 49 (192 7) (right to im partial judge )); see also Arizona v. F ulmina nte, 499 U.S.
279, 111 S.Ct. 124 6, 113 L.E d.2d 302 (1991); State v. Bobo, 814 S.W .2d 353, 358 (Tenn. 1991 ).

-16-
however, which the defendant has overlooked. Unlike Howell, this appeal does

not involve a sentence of death.

In Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972),

the United States Supreme Court held that the death penalty may not be imposed

under sentencing procedures that create a substantial risk that the punishment will

be inflicted in an arbitrary and capricious manner. Therefore, if a State decides to

authorize capital punishment, the federal constitution requires that it tailor and

apply its law in a manner that avoids the arbitrary and capricious infliction of the

death penalty. Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 1764, 64

L.Ed.2d 398 (1980). This constitutional responsibility requires states, as a first

step, to adopt procedures to narrow the class of persons eligible for the death

penalty. Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d

235 (1983). Narrowing may be accomplished either by providing restrictive

definitions of first degree or capital murder or by utilizing aggravating

circumstances at the sentencing hearing. Lowenfield v. Phelps, 484 U.S. 231,

108 S.Ct. 546, 98 L.Ed.2d 568 (1988). In Tennessee, narrowing is accomplished

by use of aggravating circumstances at the sentencing hearing. State v.

Middlebrooks, 840 S.W.2d 317 (Tenn. 1992).

Once a method of narrowing is chosen, the standards employed must be

“clear and objective” and provide “specific and detailed” guidance which both

channels the sentencer’s discretion and makes rationally reviewable the process

for imposing a sentence of death. Godfrey, 446 U.S. at 428, 100 S.Ct. at 1765. A

State’s death penalty scheme may not employ aggravating circumstances which

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are so vague that they fail to channel the sentencing decision of jurors and result

in arbitrary and capricious sentencing. Gregg v. Georgia, 428 U.S. 153, 195 n. 46,

96 S.Ct. 2909, 2935 n. 46, 49 L.Ed.2d 859 (1976). Significantly, in the death

penalty context, jury findings of statutory aggravating circumstances similar to the

jury’s finding in this case have been held to be unconstitutionally vague. Maynard

v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988) (jury

imposed the death penalty upon finding aggravating circumstance that the murder

was “especially heinous, atrocious, or cruel” and court held the statutory language

unconstitutionally vague because it did nothing “to cure the unfettered discretion

of the jury and to satisfy the commands of the Eighth Amendment”); Godfrey, 446

U.S. at 428-29, 100 S.Ct. at 1764 ( jury found the murder was “outrageously or

wantonly vile, horrible or inhuman” and the finding was held unconstitutionally

vague “because there is nothing in these few words, standing alone, that implies

any inherent restraint on the arbitrary and capricious infliction of the death

sentence”).

However, these Eighth Amendment constitutional narrowing requirements

and vagueness prohibitions have not been extended to cases which do not involve

the death penalty. See Harmelin v. Michigan, 501 U.S. 957, 995, 111 S.Ct. 2680,

2701, 2702, 115 L.Ed.2d 836 (1991). In Harmelin, a case involving a sentence of

imprisonment for life without the possibility of parole, Justice Scalia explained the

Court’s reluctance to extend these constitutional requirements beyond the capital

sentence context as follows:

The penalty of death differs from all other forms of criminal
punishment, not in degree but in kind. It is unique in its total
irrevocability. It is unique in its rejection of rehabilitation of the
convict as a basic purpose of criminal justice. And it is unique,

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 finally, in its absolute renunciation of all that is embodied in our
concept of humanity.

Harmelin, 501 U.S. at 995-96, 111 S.Ct. at 2702 (quoting Furman, 408 U.S. at

306, 92 S.Ct. at 2760 (Stewart, J., concurring)).

Recently in State v. Butler, 980 S.W.2d 359 (Tenn. 1998), this Court

adopted Justice Scalia’s rationale that the death penalty is unique to all other

forms of punishment. As a result, we refused to apply the narrowing requirement

adopted in Middlebrooks, supra, to proceedings in which the State is seeking a

sentence of life imprisonment without the possibility of parole. Instead we held

that the constitution does not bar the State from relying upon the felony murder

aggravating circumstance to support imposition of a sentence of life imprisonment

without the possibility of parole even though the defendant has been convicted of

first degree felony murder.

Therefore, while the jury’s finding in this case would have implicated

constitutional vagueness concerns had the jury imposed a sentence of death,9

those same constitutional concerns do not apply outside the death penalty context

and are not implicated in this appeal from the defendant’s sentence of life

imprisonment without the possibility of parole.

9
For p urpo ses of cla rity, we em pha size th at it is o nly the jury’s in com plete findin g in this
case, “the murder was especially heinous and atrocious,” which would raise constitutional
vagueness concerns in the death penalty context. In contrast, the statutory aggravating
circu ms tanc e in its e ntirety, “the m urde r was espe cially he inous , atroc ious , or cr uel in th at it
involved torture or serious physical abuse beyond that necessary to produce death,” previously has
been u pheld ag ainst con stitutional vag uenes s attack s in the de ath pena lty context. E.g. State v.
Odom , 928 S.W .2d 1 8, 25 -27 (T enn . 199 6). W e reite rate th at un like th e jury f inding whic h wa s held
constitutionally invalid in Godfrey, supra, and the a ggra vating circu ms tanc e held cons titution ally
invalid in Maynard, supra, the language of our statutory aggravating circumstance is constitutional
on its face because it requires a finding of torture or serious physical abuse beyond that necess ary
to produ ce dea th. See State v. Thompson , 768 S.W .2d 239, 252 (Tenn. 1989 ).

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 Accordingly, the jury’s incomplete finding with respect to the aggravating

circumstance is not constitutional error, but is instead an erroneous deviation from

the statutory scheme adopted by the General Assembly to govern imposition of

sentences of life imprisonment without the possibility of parole. Cf. State v.

Hodges, 944 S.W.2d 346, 352 (Tenn. 1997) (right to instruction on nonstatutory

mitigating circumstances derives from statute not constitution; therefore refusal to

instruct on nonstatutory mitigating circumstances is statutory rather than

constitutional error).

Having concluded that the error is statutory rather than constitutional in

nature, we must next explain the showing necessary to establish that the error has

affirmatively or more probably than not affected the judgment to the defendant’s

prejudice. See Tenn. R. Crim. P. 52(a); Tenn. R. App. P. 36(b). To resolve this

question, we focus upon the sentencing scheme for first degree murder.

When a defendant is convicted of first degree murder in a case in which the

State is seeking the death penalty, three sentencing options exist, life

imprisonment, life imprisonment without the possibility of parole, or death. Tenn.

Code Ann. § 39-13-204 (1997 Repl.). A life sentence is mandatory if the jury finds

that the State has not proven any statutory aggravating circumstances beyond a

reasonable doubt. Tenn. Code Ann. § 39-13-204(f)(1) (1997 Repl.). A death

sentence is appropriate if the jury unanimously finds both that the State has

proven at least one or more statutory aggravating circumstances beyond a

reasonable doubt and that the aggravating circumstances proven outweigh

mitigating circumstances beyond a reasonable doubt. Tenn. Code Ann. § 39-13-

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204(g)(1) (1997 Repl.). However, if, as in this case, the jury determines that the

State has proven one or more statutory aggravating circumstances, but concludes

that the circumstance or circumstances so proven do not outweigh mitigating

circumstances beyond a reasonable doubt, the jury may impose a sentence of

either life imprisonment or life imprisonment without the possibility of parole.

Tenn. Code Ann. § 39-13-204(f)(2) (1997 Repl.). In determining which sentence

to impose, the statute provides only that the jury must “weigh and consider the

aggravating and mitigating circumstances.” Id. The statute does not require the

jury to determine that the aggravating circumstances proven outweigh the

mitigating circumstances by any specific level of proof to impose a sentence of life

imprisonment without the possibility of parole. Id.

In recognition of the substantial discretion afforded jurors in determining

which sentence to impose, the statute governing appellate review declares that

“[a] sentence of imprisonment for life without the possibility of parole shall be

considered appropriate if the State proved beyond a reasonable doubt at least

one (1) statutory aggravating circumstance contained in § 39-13-204(i), and the

sentence was not otherwise imposed arbitrarily, so as to constitute a gross abuse

of the jury’s discretion.” Tenn. Code Ann. § 39-13-207(g) (1997 Repl.). 10

Under this statutory scheme, when a sentence is based in part upon one or

10
We observe, however, that the statutory scheme with regard to the manner of sentencing
and appellate review in life without parole cases needs further clarification by the Legislature. As
we have discussed, Tenn. Code Ann. § 39-13-204(f)(2) allows a jury to impose a sentence of either
life or life without parole upon a finding of at least one aggravating circumstance. There are no
required findings or standards for choosing one sentence or the other. Thus, in any case where at
least one valid aggravating circumstance has been found, there are few practical means by which
an appellate court can determine whether a sentence of life without parole was a ‘gross abuse’ of
the jury’s disc retion und er § 207 (g).

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more invalid aggravating circumstances, but at least one valid aggravating

circumstance remains, the jury’s reliance upon the invalid aggravating

circumstance is not reversible error under either Tenn. R. Crim. P. 52(a) or Tenn.

R. App. P. 36(b) unless the defendant demonstrates that the jury grossly abused

its discretion by arbitrarily imposing the sentence.

Applying that standard to the facts in this case, it is clear that the jury’s

reliance upon the incomplete aggravating circumstance is harmless error. Clearly,

one valid aggravating circumstance remains to support the defendant’s sentence.

The jury found proof beyond a reasonable doubt that “[t]he murder was committed

for the purpose of avoiding, interfering with, or preventing a lawful arrest or

prosecution of the defendant or another.” Tenn. Code Ann. § 39-13-204(i)(6)

(1997 Repl.). The testimony of both the defendant and Smothers, who said that

the victim was shot the second time because he began to scream for help as they

drove into a populated area, support the jury’s finding of this aggravating

circumstance. The defendant offers no specific argument which demonstrates

that the jury grossly abused its discretion by imposing a sentence of life

imprisonment without the possibility of parole beyond her assertion that a new

sentencing hearing is necessary because the jury relied upon the incomplete

aggravating circumstance. Furthermore, nothing in the record suggests that the

sentence was imposed arbitrarily so as to constitute a gross abuse of the jury’s

discretion. In sum, the defendant has failed to establish that the jury grossly

abused its discretion by imposing a sentence of life imprisonment without the

possibility of parole. Accordingly, the jury’s reliance upon the incomplete and

invalid aggravating circumstance was harmless error in this case.

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 CONCLUSION

For the reasons previously explained, we conclude that the incomplete

finding as to the aggravating circumstance constitutes statutory error which, in this

case, is harmless because the defendant failed to establish that the jury grossly

abused its discretion by arbitrarily imposing a sentence of life imprisonment

without the possibility of parole. Accordingly, the judgment of the Court of

Criminal Appeals which upheld the defendant’s conviction and sentence is

affirmed.

_____________________________________
FRANK F. DROWOTA, III
JUSTICE

Concur:

Anderson, C.J.
Birch and Holder, JJ.

Hayes, Sp. J. - Separate Concurring Opinion

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