concurring.
I concur in affirming the conviction of first degree murder and the sentence of death in this case.
I write separately to state my reasons for not finding as prejudicial error the trial court’s charging of the 1989 version of aggravating circumstance (i)(5), to express my continuing concern regarding the Court’s comparative proportionality review, and to comment on a disturbing aspect of the case which is insulated from review.
First, I repeat an observation made in State v. Howell 868 S.W.2d 238, 268 (Tenn.1993) (Reid, C.J., concurring), which is applicable to the performance of the trial judge in this case: “The trial judge demonstrated the qualities critically important in conducting a highly emotional and legally exacting trial. The record shows that the case was decided by a competent and impartial jury. The record demonstrates that capital cases can be tried relatively free of error.” Counsel pressed to the line the wide latitude necessary for effective advocacy but were appropriately restrained by the cool hand of the judge. The case also demonstrates that having a review by the Court of Criminal Appeals of all assignments of error in capital eases, with a final review by this Court of a limited number of issues in addition to those issues mandated by statute, is an efficient utilization of judicial resources.
The State relied upon, and the jury found, aggravating circumstance (i)(5). The offense in this case was committed in 1988; the trial was held in 1993. At the time the offense was committed, aggravating circumstances (i)(5) was defined as a murder that “was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind.” Tenn.Code Ann. § 39-2-203(i)(5) (1982). In 1989, that definition was amended by deleting “depravity of mind” and substituting “serious physical abuse beyond that necessary to produce death.” Tenn.Code Ann. § 39-13-204(i)(5) (1991). Without objection, the trial court charged the 1989 version of the statute.
The Court held in State v. Brimmer, 876 S.W.2d 75, 82 (Tenn.1994), that in capital cases the applicable law is the law that was in effect at the time the offense was committed. The defendant insists that charging the 1989 definition was reversible error. There can be no denying that under the authority of Brimmer, the instruction was erroneous.1 However, in my opinion, the effect of the error was ameliorative rather than prejudicial, and, therefore, does not constitute reversible error.
I have dissented in every case decided by this Court since September 1990 in which there was reliance for the sentence of death on a finding that the murder involved depravity of mind. The basis of those dissents is that every first degree murder is “especially heinous, atrocious or cruel in that it involved depravity of mind”; consequently, that instruction has no reasonably precise meaning and does not aid the jurors in determining if death is an appropriate punishment. In the first case, State v. Black, 815 S.W.2d 166, 196-97 (Tenn.1991) (Reid, C.J., concurring and dissenting), I suggested that:
a proper limiting construction of “depravity of mind” to be given in those cases where torture is absent would be established by adopting the definition of that term set forth by the New Jersey Supreme Court in State v. Ramseur, 106 N.J. 123, 524 A.2d 188, 230-231 (1987), where it held that this phrase marks
society’s concern to punish severely those who murder without purpose or meaning as distinguished from those who murder for a purpose (albeit a completely unjustified purpose). This term isolates conduct that causes the greatest abhorrence and terror within an ordered society, because citizens cannot either in fact or in perception protect themselves from these random acts of violence. The killer who does it because he likes it, perhaps even because it makes him feel better, who kills bystanders without reason, who kills children and others whose helplessness would indicate that *526there was no reason to murder, evinces what we define as depravity of mind.
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What society is concerned with here ... is the complete absence — from society’s point of view — of any of the recognizable motivations or emotions that ordinarily explain murder.
In State v. Van Tran, 864 S.W.2d 465, 488 (Tenn.1993) (Daughtrey, J., dissenting), I joined Justice Daughtrey' in stating: “Because the “depravity of mind” prong of aggravated circumstance (i)(5) is so vague, the instruction given in this case allowed the jury to exercise the sort of unguided discretion condemned by the United States Supreme Court in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), and Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988).”
Having obviously failed to convince my colleagues of the correctness of my position, I stated the matter a bit more firmly in State v. Shepherd, 902 S.W.2d 895, 909 (Tenn.1995) (Reid, J., dissenting):
As stated in prior dissents, the words “heinous, atrocious or cruel” are so bereft of particular meaning that this aggravating circumstance does not accomplish the con-, stitutional mandate of directing and limiting the jury’s discretion “so as to minimize the risk of wholly arbitrary and capricious action.” Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976); see State v. Black, 815 S.W.2d 166, 195 (Tenn.1991). The precariousness of the Court’s persistent reliance upon this patently invalid aggravating circumstance is indicated by the opinion of Justice Stevens in Barber v. Tennessee, — U.S. -, 115 S.Ct. 1177, 130 L.Ed.2d 1129 (1995). In denying the capital defendant’s petition for certiorari from the judgment of this Court denying postconviction relief, Justice Stevens stated:
... In this case, for example, there are valid reasons for the Court’s decision to deny review. But this does not mean petitioner’s challenge to his death sentence, based in part upon the trial judge’s definition of an aggravating circumstance, lacks merit. Under the trial court’s instruction, a jury could find an aggravating circumstance sufficient to impose the death penalty merely by concluding that a murderer’s state of mind was “wicked or morally corrupt.” Because such a state of mind is a characteristic of every murder, the instruction is plainly impermissible under this Court’s holdings in Godfrey v. Georgia, 446 U.S. 420, 428-429 [100 S.Ct. 1759, 1764-65, 64 L.Ed.2d 398] (1980) (striking down instruction allowing jury to find aggravating circumstance if murder was “ ‘outrageously or wantonly vile, horrible and inhuman’”), and Maynard v. Cartwright, 486 U.S. 356, 363-364 [108 S.Ct. 1853, 1858, 100 L.Ed.2d 372] (1988) (‘“especially heinous, atrocious, or cruel’ ”).
(Footnotes omitted.)
While “depravity of mind,” in my view, is fatally deficient in meaning, the language of the 1989 statute, “serious physical abuse beyond that necessary to produce death,” is plain and provides a meaningful standard for determining the appropriateness of death as a penalty. As a practical matter, then, the substantive effect of the “error” in this case was to elide, or even to correct, the unconstitutional portion of this aggravating circumstance. The error was entirely technical and curative of those constitutional defects which I have previously found in this aggravating circumstance and, under the facts of this case, the instruction gave the jury a constitutional equivalent to the prior unconstitutional version of aggravating circumstance (i)(5) found in Tenn.Code Ann. § 39-2-203(i)(5). I have not in any prior case, and I do not now, find that definition deficient as an aggravating circumstance. Consequently, I agree with the main opinion that giving the erroneous instruction to the jury is not grounds for reversal of the sentence.
Also, in some prior cases, I have insisted that the evidence did not support a finding of torture as an aggravating circumstance. See e.g., State v. Cazes, 875 S.W.2d 253, 272 (Tenn.1994) (Reid, J., concurring and dissenting); State v. Van Tran, 864 S.W.2d 465, 483 (Tenn.1993) (Reid, C.J., concurring and dis*527senting); State v. Black, 815 S.W.2d at 196. The facts of this case, as stated in the main opinion, clearly support a finding of torture as that term is generally understood. Perhaps it is noteworthy that the sufficiency of the evidence supporting this aggravating circumstance, though mandated by statute for review, Tenn.Code Ann. § 39-13-206(c)(l)(B) (Supp.1996), was not raised by the defendant. Consequently, I concur in the holding that the evidence is sufficient to support the jury’s finding of the torture component of aggravating circumstance (i)(5).
Another issue which, in my view, requires further discussion is the comparative proportionality review mandated by Tenn.Code Ann. § 39 — 13—206(c)(Z )(D) (Supp.1996); this issue has been the basis for prior dissent. There is no methodology to the majority’s analysis. The review consists entirely of conelusory, and defensive, statements followed by a further recitation of the facts. See State v. Nichols, 877 S.W.2d 722, 744 (Tenn.1994) (Reid, C.J., dissenting); State v. Hurley, 876 S.W.2d 57, 71 (Tenn.1993) (Reid, C.J., dissenting); State v. Howell, 868 S.W.2d at 271-72 (Reid, C.J., concurring); State v. Van Tran, 864 S.W.2d at 484-85 (Reid, C.J., concurring and dissenting); State v. Harris, 839 S.W.2d 54, 84-85 (Tenn.1992)(Reid, C.J., dissenting).
Nevertheless, as in State v. Howell and State v. Smith, 868 S.W.2d 561, 585 (Tenn.1993) (Reid, C.J., concurring), the record establishes that upon comparison of the character of the defendant and the nature of his crime, to other defendants and other first degree murders, by any rational standard, the defendant is among the worst of the bad.
The character of the defendant and the circumstances of the killing in this case would justify the sentence of death judged by the definition of “depravity of mind” urged in State v. Black, see supra, at - [p. 4]. The defendant’s conduct in killing an aged and helpless victim, who surrendered her last means of protection by opening the door of her home to the grandson of her best friend, is conduct which causes the greatest abhorrence and terror within an ordered society. There is no protection against a random killing by a trusted acquaintance. The character of the defendant shows more than a calculated robbery which got out of hand. The evidence shows a person of intelligence who is fascinated with vampires and demons, who dreams of killing, and whose life is inhabited by demons and monsters. His explanation of the homicide is disturbing; he was compelled by an underworld group. But that fanciful compulsion is belied by his manner of performing the act so that he literally became drenched with the victim’s blood and by the relish with which he recounted the crime to acquaintances. As stated in Howell, 868 S.W.2d at 272, “comparison of the character of the defendant in this case and the nature of his crime, by any standard of analysis, would show that he is among the worst of the bad.”
It is, in fact, the abundant evidence of the defendant’s maleficence that is disturbing. The record contains significant evidence beyond the circumstances relating directly to the crime. The defendant has been exhibiting symptoms of schizophrenia since he was in high school and was diagnosed as a schizophrenic while awaiting trial. The record discloses that, based upon the assessment of court-appointed mental health experts, the trial court found that the defendant was incompetent to stand trial. Those same mental health professionals also found that an insanity defense could be supported. However, the defendant has not challenged the court’s subsequent determination of competency, and the record discloses no facts upon which plain error can be found in this regard. Apparently, counsel was content to present evidence of the defendant’s mental condition at the sentencing hearing. Since the record does not facially establish that the mental condition of the defendant is disproportionate to that of other defendants sentenced to death, this aspect of the case cannot effectively be reviewed on the record before the Court.
In conclusion, the record does not disclose reversible error, but rather, supports the judgment rendered in the trial court and affirmed by the Court of Criminal Appeals and this Court.
. As noted in the main opinion, Brimmer was decided after this case had been tried.