concurring and
dissenting.
While I agree in principle with the concurring and dissenting opinion by my colleague, Justice Drowota, I write separately to express my personal disagreement with the majority opinion in State v. Middlebrooks, 840 S.W.2d 317 (Tenn.1992). Middlebrooks held it to be in violation of the Tennessee Constitution, Article I, § 16, to use the felony murder aggravating circumstance, T.C.A. § 39-2-203(i)(7) (1982) or T.C.A. § 39-13-204(i)(7) (1991), to sustain imposition of the death penalty for a conviction of felony murder, although it can be used to support impo*819sition of the death penalty for premeditated murkier. It was held that the use of the felony murder aggravating circumstance duplicated the elements of the underlying crime and failed to narrow the class of death-eligible murders as required by Article I, § 16 of the Tennessee Constitution. Since the Eighth Amendment of the United States Constitution and Article I, § 16 of the Tennessee Constitution are identical in language, it is incomprehensible to me how the use of the felony murder aggravating circumstance which duplicated the elements of the underlying crime could be construed to be constitutional under the United States Constitution and not under the Tennessee Constitution.
In this case defendant was found guilty of the offense of first degree felony murder in an attempt to perpetrate a robbery. The lead opinion mandates reversal for, among other reasons, the use of the felony murder aggravating circumstance, which was held to be error in the Middlebrooks case.
In Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 646, 98 L.Ed.2d 568 (1988), a case based on the Louisiana capital sentencing statute, the petitioner raised fundamentally the same charge of error under consideration here, that is that the sole aggravating circumstance found at the jury sentencing phase was identical to an element of the capital crime for which he was convicted. Louisiana has a veiy similar narrowing statute as that created by the legislature in this State. Tennessee has established five (5) statutory grades of homicide: First Degree Murder; Second Degree Murder; Manslaughter, Voluntary and Involuntary; and Vehicular Homicide. The punishments for these offenses are graded according to the nature of the offense. First degree murder is defined so as to include only a narrow class of homicide, the punishment for which is death or imprisonment for life with the sentence to be fixed by the jury in a separate sentencing hearing to determine which shall apply upon a finding of guilt. A sentence of death shall not be imposed unless the jury finds beyond a reasonable doubt that at least one statutory aggravating circumstance exists and outweighs any mitigating circumstance the jury may find. Otherwise the sentence shall be life imprisonment.
In discussing the exact same issue we have before us the Lowenfield court said:
“It seems clear to us from this discussion that the narrowing function required for a regime of capital punishment may be provided in either of these two ways: The legislature may itself narrow the definition of capital offenses as Texas and Louisiana have done, so that the jury finding of guilt responds to this concern, or the legislature may more broadly define capital offenses and provide for narrowing by jury findings of aggravating circumstances at the penalty phase ... Here the ‘narrowing function’ was performed by the jury at the guilt phase when it found defendant guilty of three (3) counts of murder under the provision that the ‘offender had a specific intent to kill or to inflict great bodily harm upon more than one (1) person.’ ... The fact that the sentencing jury is also required to find the existence of an aggravating circumstance in addition is no part of the constitutionally required narrowing process, and so the fact that the aggravating circumstance duplicated one of the elements of the crime does not make this sentence constitutionally infirm. There is no question but that the Louisiana scheme narrows the class of death-eligible murderers and then at the sentencing phase allows for the consideration of mitigating circumstances in the exercise of discretion.1 The Constitution requires no more.”
The Legislature in this State has further narrowed the sentencing process in cases in which a sentence of death has been imposed. The statutes provide that the sentence of death is automatically reviewed by this Court even though a defendant convicted of first degree murder does not appeal the conviction. T.C.A. § 39-13-206. The Court first considers assigned errors and then proceeds to review the sentences of death. The statute requires the Court to determine whether (1) the sentence of death was imposed in any arbitrary fashion; (2) the evidence supports the jury’s finding of statutory aggravating *820circumstance or circumstances; (3) the evidence supports the jury’s finding that the aggravating circumstance or circumstances outweigh any mitigating circumstances; (4) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases considering both the nature of the crime and the defendant. In addition to its other authority regarding correction of errors, the Court, in reviewing the death sentence for first degree murder, is authorized to: (A) affirm the sentence of death; or (B) modify the punishment to life imprisonment.
I am satisfied that the judgment in this case meets both State and federal constitutional requirements. Insofar as the narrowing function is concerned. Otherwise, I concur in Justice Drowota’s concurring and dissenting opinion.
. The Tennessee Legislative scheme follows the same procedure.