concurring and dissenting.
I concur with part I, Sections A-F of the majority opinion.
I agree that this case must be remanded to the trial court for resentencing because of the prosecutorial misconduct; therefore, I concur in Part II-A of the majority opinion. However, I respectfully dissent from Part II-C of that opinion, in which the Court reaffirms its State v. Middlebrooks, 840 S.W.2d 317, 346 (Tenn.1992) holding that when a defendant is convicted of felony murder, the State’s use of the felony murder aggravating circumstance to impose the death penalty violates Art. I, § 16 of the Tennessee Constitution because the aggravating circumstance duplicates the elements of the underlying offense and thus fails to “narrow” the class of death-eligible offenders. Although I filed a dissent in Middlebrooks, I wish here to further develop the grounds on which I believe the holding of the Middle-brooks majority to be in error.
DISCUSSION OF RELEVANT UNITED STATES SUPREME COURT CAPITAL PUNISHMENT JURISPRUDENCE
The capital punishment jurisprudence of the United States Supreme Court since its landmark decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) may be described in terms of two overarching objectives. First and foremost, the Supreme Court has sought to standardize capital sentencing schemes by requiring the States to formulate clear standards to guide and limit the sentencing body’s discretion in imposing the death penalty. This process of standardization is intended to “minimize the risk of wholly arbitrary and capricious action” by the sentencing body in its determination of whether to impose the death penalty. Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2933, 49 L.Ed.2d 859 (1976); see also Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). Second, the Court has sought to individualize capital sentencing schemes by requiring the States to allow the sentencing body full access to any evidence that might serve to assist in the sentencing determination, such as evidence of the defendant’s character and the circumstances of the crime. See Eddings v. Oklahoma, 455 U.S. 104, 110-12, 102 S.Ct. 869, 874, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 601-605, 98 S.Ct. 2954, 2963-2965, 57 L.Ed.2d 973 (1978); Roberts (Harry) v. Louisiana, 431 U.S. 633, 636-37, 97 S.Ct. 1993, 1995, 52 L.Ed.2d 637 (1977). This process of individualization serves to increase the sentencing body’s discretion. See generally Stephen Gillers, Deciding Who Dies, 129 U.Pa.L.Rev. 1 (1980).
The Supreme Court has stated in several opinions that the standardization of the States’ capital sentencing schemes serves the function mandated by the Eighth Amendment of “narrowing” the class of death-eligible offenders; in other words, standardization serves to circumscribe the unfettered discretion that existed in the sentencing body prior to Furman. Zant v. Stephens, 462 U.S. 862, 876-77, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983). A proper “narrowing device” must accomplish two distinct objectives. First, it must provide standards that are sufficiently determinate to guide and channel the sentencing body’s discretion. Arave v. Creech, 507 U.S.—,—,—, 113 S.Ct. 1534, 1540 — 41, 123 L.Ed.2d 188 (1993); Shell v. Mississippi, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990); Walton v. Arizona, 497 U.S. 639, 653, 110 S.Ct. 3047, *8213057, 111 L.Edüd 511 (1990); Lewis v. Jeffers, 497 U.S. 764, 774, 110 S.Ct. 3092, 3099, 111 L.Ed.2d 606 (1990); Maynard v. Cartwright, 486 U.S. 356, 363-64, 108 S.Ct. 1853, 1858-59, 100 L.Ed.2d 372 (1988); Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 1765, 64 L.Ed.2d 398 (1980). The fact that the narrowing device is determinate, however, does not end the inquiry because the device must also provide a principled basis for distinguishing those defendants convicted of murder who deserve capital punishment from those who do not. Arave, 507 U.S. at —, 113 S.Ct. at 1542. If the narrowing device is so broad that it could be interpreted by the sentencing body to apply to every murder, it is not constitutionally valid. Cartwright, 486 U.S. at 364, 108 S.Ct. at 1859; Godfrey, 446 U.S. at 428-29, 100 S.Ct. at 1765.
The Supreme Court has afforded the States a significant amount of flexibility in fashioning devices to narrow the class of death-eligible offenders. The Court’s decision in Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988), exemplifies this commitment to federalism in the realm of capital punishment jurisprudence. In Lowenfield, the petitioner was convicted under Louisiana’s murder statute, which enumerates a narrowly defined “laundry-list” of first-degree murders. La.Rev.Stat.Ann. § 14:30 A (West 1986). The subsection under which the petitioner was convicted defined first-degree murder as the killing of a human being “when the offender has a specific intent to kill or inflict great bodily harm upon more than one person.” La.Rev.Stat. Ann. § 14:30 A(3). After a separate sentencing hearing, the jury found a sole aggravating circumstance — that “the offender knowingly created a risk of death or great bodily harm to more than one person,” La.Code Crim.Pro.Ann. Art. 905.4(d) — and sentenced the petitioner to death. Because Louisiana law provided that these provisions were to be construed in a “parallel fashion,” see State v. Williams, 480 So.2d 721, 726-27 (La.1985), there was no dispute that evidence supporting a conviction under § 14:30 A(3) automatically established the aggravating circumstance enumerated in Article 905.4 of the Louisiana Code of Criminal Procedure.
The petitioner challenged his conviction, arguing that because the sole aggravating circumstance found by the jury duplicated the elements of the underlying offense, Louisiana’s capital sentencing scheme failed to meaningfully narrow the class of death-eligible offenders as required by the Eighth Amendment. A six-member majority of the Court rejected this argument, holding that Louisiana’s “laundry-list” of firsLdegree murders satisfied the narrowing requirement of the Eighth Amendment because it rationally and meaningfully differentiated between the defendants who deserved capital punishment and those who did not. This holding therefore obviated Louisiana’s entire scheme of aggravating circumstances as a matter of federal constitutional law. The majority stated its holding as follows:
It seems clear to us ... 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 ... Louisiana ha[s] 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 [citation omitted].
Lowenfield, 484 U.S. at 246,108 S.Ct. at 555.
To further emphasize its holistic view of the narrowing function, the Court stated:
The use of aggravating circumstances is not an end in itself, but a means of narrowing the class of death-eligible persons and thereby channeling the jury’s discretion. We see no reason why this narrowing function may not be performed by jury findings at either the sentencing phase of the trial or the guilt phase.
Loivenfield, 484 U.S. at 244-45, 108 S.Ct. at 554 (emphasis added).
With these fundamental principles of the narrowing function required by the Eighth Amendment clearly in mind, we now turn to an examination of the Supreme Court’s application of these principles to the felony murder doctrine. Two cases — Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d *8221140 (1982), and Tison v. Arizona, 481 U.S. 137, 107.S.CT. 1676, 95 L.Ed.2d 127 (1987)— are crucial for a proper resolution of the issue addressed by the Court in Middle-brooks.
In Enmund the petitioner was convicted under the Florida felony-murder statute because of his involvement in a robbery in which an elderly couple was killed. The record in the case revealed that petitioner Earl Enmund drove Sampson and Jeannette Armstrong to the home of Thomas and Eunice Kersey and remained in the car while the Armstrongs knocked on the door. When Thomas Kersey appeared, the Armstrongs grabbed him and demanded his money. Mr. Kersey then yelled for help, and Eunice Ker-sey came out of the house with a shotgun. She fired the gun at Jeannette Armstrong and wounded her. At that point, Sampson and possibly Jeanette Armstrong shot and killed both the Kerseys, took their money, and fled. Although the evidence established that Earl Enmund drove the Armstrongs away from the scene of the crime, there was no evidence that he knew that the Arm-strongs had intended to kill the Kerseys.
Under the Florida felony murder statute and capital punishment sentencing scheme, a defendant found guilty of felony murder could be put to death without any proof whatsoever as to his mental state. The jury found Enmund guilty of felony murder, and it recommended that he be put to death; the trial court accepted this recommendation. The Florida Supreme Court affirmed the conviction and sentence of death.
Before the United States Supreme Court, Enmund argued that the Eighth and Fourteenth Amendments prohibited a State from imposing the death penalty on a person convicted of felony murder when that person did not kill, attempt to kill, intend to kill, or know that lethal force would be used. In determining whether the punishment was cruel and unusual, the Court first sought to identify the prevailing societal attitude as to whether the death penalty was an excessive sanction for felony murderers like Enmund by analyzing the actions of state legislatures and lay juries on the issue. After analyzing the states’ felony murder and capital sentencing statutes, the Court found that only eight states allowed a person who was involved in a robbery in which a person was murdered to be sentenced to die simply for his involvement. The Court then surveyed the actions of juries in sentencing persons convicted of felony murder who did not themselves commit the murder, and discovered that only a tiny fraction of convicted felony murderers had been sentenced to death in the absence of evidence of their participation in the killing or a finding of intent to kill. With this evidence in mind, the Court conducted its own proportionality review and concluded that the legitimate goals of capital punishment — deterrence and retribution— were not served when a person convicted of felony murder is sentenced to death in the absence of proof that the person killed, attempted to kill, or intended that life would be taken. Specifically, the majority stated that because American criminal law has always insisted that punishment must be commensurate with the intent of the perpetrator, Florida’s capital sentencing scheme was constitutionally deficient because it treated Enmund, who did not intend that a killing take place, in the same manner as the actors in the underlying felony who did intend to kill.
The Court returned to the theme of culpability in a felony murder situation five years later in Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). In Tison, petitioners Ricky and Raymond Tison brought several concealed weapons into the Arizona State Prison to free Gary Tison, them father, who was serving time for the murder of a prison guard. The Tison brothers were successful in freeing their father and Randy Greenawalt, their father’s cellmate. As the men were driving through the desert, a tire on their Lincoln automobile blew out. Raymond Tison then flagged down a Mazda, which was occupied by John Lyons, his wife, and their young son and niece. The men forced the Lyons’ family into the Lincoln and drove both cars off the road into the desert. At some point the men transferred their belongings to the Mazda; however, thereafter they parked the Mazda and continued to drive the Lincoln deeper into the desert. After stopping the Lincoln, *823Gary Tison ordered the Lyons’ family out of the car. At that time, John Lyons begged the group not to kill them; and he asked that the group give them some water and leave them in the desert. Gary Tison responded to the plea by instructing Raymond and Ricky Tison to return to the Mazda and get some water. As Ricky and Raymond Tison returned with the container of water, Gary Tison and Greenawalt opened fire on the Lyons’ family, killing all four. There was no dispute that both Ricky and Raymond Tison saw the murders and did nothing to assist the victims. The group continued their escape attempt in the Mazda until they were apprehended several days later by a police roadblock.
Both Raymond and Ricky Tison were convicted under the Arizona felony murder statute and were sentenced to death; and the Arizona Supreme Court affirmed the convictions. The Tisons then collaterally attacked the convictions in post-conviction proceedings, arguing that the Supreme Court’s decision in Enmund v. Florida required them convictions to be reversed because they did not kill, attempt to kill, or intend that the victims be killed. A divided Arizona Supreme Court rejected this argument, holding that the Enmund “intent to kill” requirement had been satisfied because the Tisons intended, contemplated, or foresaw that life would be taken in the escape scheme.
The Supreme Court granted certiorari for the purpose of determining whether the death sentence was constitutionally valid under the dictates of Enmund. In its analysis, a five-member majority of the Court first disavowed the analysis employed by the Arizona Supreme Court; it stated that the Arizona court’s definition of “intent” was more akin to “foreseeability” than to the traditional notion of specific intent as used in En-mund. And the majority conceded that the Tisons did not “intend to kill” as that concept had been traditionally understood. Therefore, it also conceded that petitioners did not fall within the category of felony murderers for whom the Enmund court explicitly held the death penalty to be constitutionally permissible.
That admission, however, did not settle the issue because the majority went on to state that the Tisons also did not fit within the category of felony murderers for whom the Enmund court had held the death penalty to be constitutionally impermissible: those felony murderers who, like Enmund, had not participated in the crimes in a major way and who had no culpable mental state. The Court contrasted petitioners’ actions of securing the weapons, participating in the jailbreak, trapping the victims, and failing to help them in the face of their impending death with Enmund’s comparatively innocuous role as the driver of the “getaway” car. Because it believed that the Tisons’ actions could be construed as exhibiting a reckless indifference to human life, the Court recast the issue as whether the Eighth Amendment prohibits the imposition of the death penalty upon a person convicted of felony murder who has exhibited recklessness and whose participation in the underlying felony can be said to have been major rather than minor.
The majority answered this question in the negative. After surveying the state felony murder and capital punishment statutes, the court held that only a small minority — eleven states — forbade the imposition of the death penalty where the defendant acted with recklessness and played a substantial role in the underlying felony. The majority then specifically addressed the culpability issue that was so essential to the holding in Enmund. Although it agreed with the Enmund court that punishment must be closely tailored to the culpable mental state of the perpetrator, the majority rejected petitioners’ argument that only a classic intentional, premeditated murder is deserving of the death penalty. Justice O’Connor, writing for the majority, reasoned as follows:
A narrow focus on the question of whether or not a defendant “intended to kill,” however, is a highly unsatisfactory means of definitively distinguishing the most culpable and dangerous of murderers. Many who intend to, and do, kill are not criminally liable at all — those who act in self-defense or with other justification or excuse. Other intentional homicides, though criminal, are often felt undeserving of the death penalty — those that are the result of prov*824ocation. On the other hand, some nonin-tentional murderers may be among the most dangerous and inhumane of all — the person who tortures another not caring whether the victim lives or dies, or the robber who shoots someone in the course of a robbery, utterly indifferent to the fact that the desire to rob may have the unintended consequence of killing the victim as well as taking the victim’s property. This reckless indifference to the value of human life may be every bit as shocking to the moral sense as an “intent to kill.” Indeed it is for this very reason that the common law and modern criminal codes alike have classified behavior such as occurred in this case along with intentional murders [citation omitted]. Enmund held that when “intent to kill” results in its logical though not inevitable consequence — the taking of human life — the Eighth Amendment permits the State to exact the death penalty after a careful weighing of the aggravating and mitigating circumstances. Similarly, we hold that the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result.
[[Image here]]
We will not attempt to precisely delineate the particular types of conduct and states of mind warranting imposition of the death penalty here. Rather, we simply hold that major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the En-mund culpability requirement. Tison, 481 U.S. at 157-58,107 S.Ct. at 1687-88 (emphasis added).
Several principles can be derived from the Lowenfield, Enmund, and Tison decisions. First, it is clear that a State need not employ a scheme of aggravating circumstances in order to fulfill the narrowing mandate of the Eighth Amendment; that mandate can be fulfilled by a narrow definition of the offenses themselves if the offenses are both sufficiently determinate and provide a principled basis for differentiating between convicted persons who deserve capital punishment and those who do not. Moreover, it is abundantly clear after Tison that the death penalty may be imposed in a felony murder situation if the defendant exhibits recklessness and plays a substantial role in the underlying felony.
PART I
In Middlebrooks, I applied these principles to our felony murder aggravating circumstance, Tenn.Code Ann. § 39 — 13—204(i)(7),1 which, like the first degree murder statute that included felony murder, Tenn.Code Ann. § 39-13-202(a),2 was at that time (1987) unqualified by either the culpability or participation requirements of Tison. Although this deficiency did serve to deprive the jury of the opportunity to decide whether the felony murder aggravating circumstance, as modified by the Tison requirements, applied in a defendant’s case (because the jury was not informed of the Tison requirements in the charge), I did not believe this was sufficient to render the aggravating circumstance unconstitutional because I felt that any constitutional error made by the jury in applying the open-ended felony murder aggravating circumstance could be corrected by this Court on direct appeal. Middlebrooks, 840 S.W.2d at 349. Moreover, because we had rejected essentially the same argument as *825-that propounded by Middlebrooks in State v. Smith, 755 S.W.2d 757, 768 (Tenn.1988), a post-Tison case, I believed that the doctrine of stare decisis demanded that we adhere to the position previously taken on this issue. Id. at 347. Because I continue to believe that the felony murder aggravating circumstance is constitutional, even when it and the definition of felony murder are unqualified by any culpability or participation requirement, I dissent from the holding in Part II-C of the majority opinion.
PART II
As stated above, I still believe that my Middlebrooks dissent was correct because of the doctrine of stare decisis; and I also think that it was a correct analysis of federal constitutional law. However, I wish here to set forth another argument which, although not specifically applicable to the case at hand,3 even more strikingly illustrates the fallacy of the Middlebrooks majority’s conclusion that our felony murder aggravating circumstance violates Art. I, § 16 of the Tennessee Constitution because it duplicates the elements of the underlying offense.
In 1989 the General Assembly amended § 39-13-202(a) by defining as first degree murder:
(2) A reckless killing of another committed in the perpetration of, or attempt to perpetrate any first degree murder, arson, rape, robbery, burglary, theft, kidnapping, or aircraft piracy; [or]
(3) A reckless killing of another committed as the result of the unlawful throwing, placing, or discharging of a destructive device or bomb[.]
Tenn.Code Ann. § 39-13-202(a)(2) and (3) (emphasis added).
The legislative insertion of “recklessness” into the felony murder portions of § 39-13-202(a) is crucial because the interaction of the principles announced in Lowenfield, En-mund, and Tison appears to lead inexorably to one conclusion: that a definition of felony murder which includes the Tison requirements of recklessness and a substantial degree of participation in the underlying felony is a constitutionally valid narrowing device because it is both determinate and because it provides a principled basis for distinguishing between those defendants who deserve to die and those who do not. As to the determinacy prong of the test, there is no question that such a definition is sufficiently determinate to guide and channel the sentencing body’s discretion — this is especially apparent when a Tison-type definition of felony murder is contrasted with the types of narrowing devices that have been held to be unconstitutionally vague. See cases cited on p. 3-4, supra. As to the second prong of the test, Justice O’Connor’s opinion in Tison explains with remarkable lucidity and power the reasons that such a definition does provide a rational, meaningful method of separating those defendants who deserve the death penalty from those who do not. Felony murderers who recklessly engage in criminal activity that poses grave danger to others may be much more dangerous to society than some intentional murderers. I am in total agreement with Justice O’Connor’s vigorous rejection of the simplistic view that only intentional or premeditated murders are deserving of the death penalty. See Middlebrooks, 840 S.W.2d at 347.
This does not settle this question, however, for while Tennessee’s current definition of felony murder obviously includes the culpability requirement set forth in Tison, it does not include the second requirement of Ti-son — that the defendant’s participation in the felony have been substantial. Therefore, standing alone, the statute does not seem to satisfy the dictates of Tiscm and therefore does not qualify as a constitutionally valid narrowing device.
However, it is a well-settled rule of statutory construction that a court may, indeed must, apply a saving construction to a statute of questionable constitutionality if the saving construction is rational and is within the realm of the intent of the legislature. State v. Lyons, 802 S.W.2d 590 (Tenn.1990); State ex rel Maner v. Leech, 588 S.W.2d 534 (Tenn.1979). Because the General Assembly *826amended the felony murder statute in 1989 by inserting the word “reckless,” it is obvious that the legislature was attempting to ensure the constitutionality of the statute by conforming it to the dictates of Tison. Therefore, given the legislature’s intent in amending the statute, it is but a small step to construe the statute to require the defendant to have participated in a substantial way in the underlying felony before he can be convicted of felony murder and therefore become death-eligible. Therefore, I would construe the statute in that manner. And I would require that the jury be charged to that effect.
With the aid of the above mentioned saving construction, I believe that §§ 39-13-202(a)(2) and (3) constitute a valid narrowing device under federal constitutional law. While this conclusion does not end the inquiry as a matter of state constitutional law, it is of tremendous persuasive force, particularly since we have rejected more restrictive approaches to this issue in the past while deferring to the pronouncements of the Supreme Court. See e.g., State v. Smith, 755 S.W.2d 757, 768 (Tenn.1988).
I believe that when considered in light of my argument dealing with the 1989 amendment to the first degree murder statute, the weakness of the Middlebrooks majority’s analysis of the relevant federal law becomes apparent. A primary reason for this conclusion is the majority’s treatment of the Tison decision. Although the majority realized that Tison provided a “nationwide threshold of culpability at the reckless indifference level, meaning that a defendant who acts without reckless indifference is not constitutionally eligible for the death penalty,” Middlebrooks, 840 S.W.2d at 345, it went on to say that the Tison requirement (the majority did not mention the participation factor also mandated by Tison) did not serve the narrowing function required by the Eighth Amendment because
[a]ll felony murderers ... potentially meet a recklessness standard; that is, one who purposely undertakes a felony that results in a death, almost always can be found reckless. Therefore, the narrowing devices in these states [states requiring proof of recklessness before the defendant can become death-eligible] are essentially no different from those in pure felony murder states.
Id. at 345.
The majority concluded its argument by stating: “[t]herefore, since the absence of reckless indifference constitutionally immunizes a defendant from the death penalty, its presence cannot meaningfully further narrow the class of death eligible offenders.” Id. (emphasis added).
This analysis is flawed in two principal ways. Initially, the majority’s assertion that all or “almost all” felony murderers can be found to be reckless — a proposition for which it cited no authority — is simply not the case. As Tison itself illustrated, there are felony murderers, such as the petitioner in En-mund, who cannot be found to have been reckless, and those defendants are constitutionally immunized from the punishment of death. Thus, the restrictive definition'.of felony murder in our first degree murder statute does narrow, to some extent, the class of death-eligible defendants.
Second, my argument pertaining to the 1989 amendment of the first degree murder statute substantially undermines another main pillar of the Middlebrooks majority’s analysis — its argument that the felony murder aggravating circumstance does not further narrow the class of death-eligible defendants. Although the majority acknowledged that under Lowenfield a State is not required to further narrow the class of death-eligible defendants with the use of aggravating circumstances if it has already adequately narrowed that class by restrictively defining the capital offenses, it determined that Lowen-field was inapplicable because while Louisiana had narrowly defined its capital offenses, “Tennessee has a broad definition of murder and has not narrowed in the definitional stage.” Id. at 346. While the majority is correct that Tennessee does not have a comprehensive scheme of narrowly defined capital offenses as does Louisiana, this fact is immaterial because Tennessee’s 1989 definition of felony murder, when construed as I have urged in this dissent, is an acceptable narrowing device under the Eighth Amend*827ment. Therefore, the fact that the felony murder aggravating circumstance largely duplicates the elements4 of the definition of felony murder is irrelevant as a matter of federal constitutional law. With this clearly in mind, the majority’s attempt to distinguish Lowenfield on the ground that Tennessee has no comprehensive list of narrowly defined capital offenses loses all its persuasive force.
This failure of the analysis employed by the Middlebrooks majority to accommodate the concerns prompted by my argument concerning the 1989 amendment is of paramount importance because the Middlebrooks majority failed to enunciate “adequate and independent state grounds,” Michigan v. Long, 468 U.S. 1032, 1037-46, 103 S.Ct. 3469, 3474-78, 77 L.Ed.2d 1201 (1983), for deviating from an ascertainable Eighth Amendment standard. Indeed, it would be extremely difficult to do so because there is nothing in the Tennessee Constitution or in our state’s capital punishment jurisprudence that compelled the Middlebrooks majority to deviate from such a federal standard. This conclusion is accentuated by the fact that the majority did not discuss any Tennessee decision in its opinion; its analysis was entirely based on federal law. This reliance on federal law is underscored by the fact that the United States Supreme Court granted certiorari in this case;5 and it was argued by the parties before being dismissed as improvidently granted.6
Viewed from this perspective, the Middle-brooks majority’s sole argument is, and must be, that it is irrational and/or disproportionate for the Tison-tjpe felony murderer to enter the sentencing phase of the proceedings with one aggravating circumstance in place while the intentional murderer enters the sentencing phase with no such burden. I would reply only that this delicate, difficult matter is solely one for the determination of the legislature — the most direct link, other than the lay jury, to the moral will of the community. See Spaziano v. Florida, 468 U.S. 447, 472-90, 104 S.Ct. 3154, 3168-78, 82 L.Ed.2d 340 (1984) (Stevens, J. dissenting). As Justice O’Connor so ably pointed out in Tison, there is nothing inherently irrational about the statement that some felony murderers are much more dangerous than some murderers who kill in an intentional, premeditated fashion. Therefore, there is nothing inherently irrational about the legislature’s choice to treat them differently. Moreover, under the argument set forth above, the jury itself will perform the narrowing function in its determination of whether the defendant is guilty of felony murder in the first place, not an appellate court. Because the jury is charged, in a capital case, with the primary sentencing responsibility in Tennessee, its determination as to whether the death penalty may be constitutionally imposed on a defendant is superior to that same decision made by on appellate review by judges, who are by definition more removed from the popular will than are juries. Spaziano, 468 U.S. at 486-87, 104 S.Ct. at 3176.
Furthermore, any error that the jury may commit in applying §§ 39-13-202(a)(2) and (3) may still be remedied at another point in the sentencing process. As I pointed out in my Middlebrooks dissent, although it is true that a person convicted of a Tison-type felony murder automatically has one aggravating circumstance established against him, this does not translate into an automatic sentence of death. The jury still must find that the aggravating circumstances outweigh the mitigating circumstances to impose a sentence of death. Tenn.Code Ann. § 39-13-204(f). And the mitigating circumstances include the statutory factors set forth in § 39-13-204(j), plus any other relevant evidence. § 39-13-*828204(j)(9). Furthermore, in any ease in which a sentence of death has been imposed, this Court must review that sentence to determine if: (1) the sentence was imposed in an arbitrary fashion; (2) the evidence supports the jury’s findings as to the statutory aggravating circumstances; and (3) the evidence supports the jury’s finding that the aggravating circumstances outweigh any mitigating circumstances. § 39 — 13—206(e)(1)(A), (B) and (C). Finally, this Court must conduct a proportionality review to determine if the sentence of death is excessive or disproportionate when compared to the penalty imposed in similar cases. § 39-13-206(c)(l)(D). In short, the process of sentencing in Tennessee is extremely individualized to ensure that the death penalty is employed in only the most deserving of cases.
Because I believe that the portions of Tennessee’s first degree murder statute dealing with felony murder, when construed as I have urged, serve to narrow the class of death-eligible defendants in accordance with federal constitutional requirements, and because I believe that the Middlebrooks majority failed to enunciate a compelling justification for deviating from this ascertainable federal standard, I must respectfully dissent from Part-II(C) of,the majority opinion.
Notwithstanding that I firmly believe the majority’s position on this important issue to be in error, its rejection of the argument set forth in Part II of this dissenting opinion at least serves to finally resolve the uncertainty which has shrouded the felony murder doctrine since the Middlebrooks decision was released. Whatever other conclusions one may draw from Middlebrooks and the majority opinion in Bigbee (Part II — C), this much is now obvious: in the absence of other aggravating circumstances, Article I, § 16' of the Tennessee Constitution does not permit a defendant convicted of felony murder to be put to death without a showing that the defendant exhibited a mental state, with regard to the killing itself, of greater culpability than reckless indifference.
This now unequivocal message does not, however, mean that the felony murder aggravating circumstance, Tenn.Code Ann. § 39-13 — 204(i)(7), must disappear forever from our criminal law. Just as any statute that has been held to be unconstitutional may be remedied by legislative amendment, so too may § 39 — 13—204(i)(7). Because both the Middlebrooks and Bigbee majorities identify the mens rea component of our felony murder scheme as its constitutional deficiency, perhaps one way to remedy the scheme would be to insert a requirement in the aggravating circumstance that the defendant kill with either a “knowing” or “intentional” mental state. See Tenn.Code Ann. § 39 — 11— 302(a) and (b). Although there may be other ways of ensuring the constitutionality of the scheme, this appears to me to be the most straightforward method.7
CONCLUSION
I had initially hoped by this dissent to convince the newest member of this Court, who did not participate in Middlebrooks, to join with the Middlebrooks dissenters in this decision and thereby correct what I believe to have been an erroneous interpretation of both the state and federal constitutions. I have failed in this endeavor. However, I chose to file this lengthy dissent in the hope that the members of this Court would further clarify their respective positions regarding the constitutionality of our felony murder scheme in light of the 1989 amendment to the felony murder statute. This they have done. I have also filed this dissent to point out that the holdings of the majorities in Middle-brooks and the present case should not be interpreted, in my opinion, as forever foreclosing capital punishment for felony murder in this state in the absence of some additional aggravating circumstance. It is abundantly clear, however, that any further action in this important and controversial area of our state’s capital punishment jurisprudence will have to be taken by the legislature.
O’BRIEN, C.J., concurs.
. In 1987, at the time Middlebrooks was charged, § 39 — 13—204(i)(7) provided as follows:
The murder was committed while the defendant was engaged in committing, or was an accomplice in the commission of, or was attempting to commit, or was fleeing after committing or attempting to commit, any first degree murder, arson, rape, robbery, burglary, theft, kidnapping, aircraft piracy, or unlawful throwing, placing or discharging of a destructive device or bomb[.]
. In 1987, § 39-13-202(a) provided as follows:
Every murder perpetrated by means of poison, lying in wait, or by other kinds of wilful, deliberate, malicious, and premeditated killing, or committed in the perpetration of, or attempt to perpetrate, any murder in the first degree, arson, rape, robbery, burglary, larceny, kidnapping, aircraft piracy, or the unlawful throwing, placing or discharging of a destructive device or bomb ... (emphasis added).
. The argument set forth in Part II is not applicable to this case because Bigbee was indicted prior to the effective date of the 1989 amendment.
. Of course, the felony murder aggravating circumstance does not totally duplicate the post-1989 definition of felony murder because the definition of felony murder now contains the element of "recklessness” that the aggravating circumstance does not have.
. -U.S.-, 113 S.Ct. 1840, 123 L.Ed.2d 466 (1993).
.Although the United States Supreme Court had denied Middlebrooks's petition to dismiss for lack of jurisdiction,-U.S.—, 114 S.Ct. 48, it dismissed the petition, — U.S. —, 114 S.Ct. 651, in apparent reliance on our subsequent statement in State v. Howell, 868 S.W.2d 238, 259 n. 7 (Tenn.1993) that the decision in Middlebrooks was based on Art. I, § 16 of the Tennessee Constitution.
. Of course, the definition of felony murder itself could be amended to include one of these mental states. However, because Tennessee already utilizes a scheme of aggravating and mitigating circumstances, it would probably be preferable to amend the aggravating circumstance.