concurring and dissenting.
I would affirm the Defendant’s conviction of first-degree felony murder and his sentence of death; therefore, I concur in part and dissent in part. I concur with Part I of Justice Anderson’s majority opinion, in which all members of this Court find that there is no error in the guilt phase. I also concur with Part II of Justice Anderson’s opinion, in which he finds the death penalty may constitutionally be imposed upon conviction under the felony-murder statute, T.C.A. § 39-2-202(a) (1982). As the majority opinion reveals, the Defendant did not raise the issue of the constitutionality of Tennessee’s death penalty statute as punishment for felony murder. However, we wish to address this question because the present Court has not yet considered this important issue. As members of the former Court, Justice O’Brien and I have previously upheld the constitutionality of capital punishment for felony murder. Today, a three-member majority of the present Court reaffirms the prior holdings of this Court on this issue, beginning with State v. Dicks, 615 S.W.2d 126 (1981).
I would like to acknowledge that, although prior decisions of this Court have held the death penalty in felony murder to be constitutional, no former opinion of this Court has articulated in such depth and scholarly manner the issue now before us, as has Justice Anderson in Part II of this opinion. The dissent of Chief Justice Reid, joined by Justice Daughtrey, to Part II of the majority opinion states: “[T]he statute still does not effectively limit the class of death-eligible defendants (which is a group different from those actually executed) to those most deserving of death as punishment and, therefore, it violates the Tennessee constitutional prohibition against cruel and unusual punishment.” I respond only by saying I respectfully disagree with the analysis found in the dissent filed by my colleagues, including the simplistic categorization of cases based on the presence of intent to kill.
I dissent from Part III of the majority opinion which holds that use of the aggravating circumstance in T.C.A. § 39-2-203(i)(7) (1982) [now § 39-13-204(i)(7) (1991)] to impose a sentence of death in cases of felony murder violates the Eighth Amendment to the United States Constitution and Article I, § 16, of the Tennessee Constitution. This same position, under the various guises of double jeopardy, mandatory death penalty and inadequate narrowing, has previously been rejected by this Court. See, e.g., State v. Smith, 755 S.W.2d 757, 768 (Tenn.1988); State v. Barnes, 703 S.W.2d 611, 618 (Tenn.1985); State v. Zagorski, 701 S.W.2d 808, 816 (Tenn.1985); State v. Smith, 695 S.W.2d 954, 959-960 (Tenn.1985); State v. King, 694 S.W.2d 941, 946 (Tenn.1985); State v. Laney, 654 S.W.2d 383, 387 (Tenn.1983); State v. Pritchett, 621 S.W.2d 127, 139-141 (Tenn.1981); Houston v. State, 593 S.W.2d 267, 276 (Tenn.1980). In State v. Pritchett, 621 S.W.2d at 140-141, the Court rejected the rationale of State v. Cherry, 298 N.C. 86, 257 S.E.2d 551 (1979), now adopted by *348the Court; and in State v. Smith, 755 S.W.2d at 768, we held that our statute complied with the constitutional requirement of “narrowing” under Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988).
No intervening law compels that we abandon these former decisions. I find disturbing the tendency of members of this Court to disregard long established precedents in capital punishment decisions. Consistency in the law is of utmost importance, particularly in this area of the law. Inconsistency creates questions and concerns that leave the bench and bar without any confidence that what was said yesterday will hold true for tomorrow.
My disagreement with the majority is not based solely on the principle of stare deci-sis, however. It also arises from my conviction that these previous decisions are not in error and that the statute does not contravene the requirements of either the Eighth Amendment or Article I, § 16. As was pointed out in Pritchett, the United States Supreme Court has implicitly approved an identical application of the felony element of the offense of felony murder as a valid aggravating circumstance for imposition of the death penalty in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). There the Court held that the Florida capital sentencing system, upon which our statute was in part closely modeled, on its face satisfied the constitutional deficiencies identified in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Cf. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (upholding death penalty under Georgia statute effectively allowing similar duplication under the facts of the case). The United States Supreme Court has also explicitly held that there is no Eighth Amendment prohibition against using an element necessary to the conviction of first-degree murder as an aggravating circumstance to support the death penalty. Lowenfield v. Phelps, supra; see also State v. Cauthern, 778 S.W.2d 39, 47 (Tenn.1989).
The majority, however, finds that the statute fails to “narrow” the class of death eligible defendants sufficiently to satisfy the cruel and unusual clauses of the two constitutions because, in the case of felony murder, the statute returns our sentencing scheme to the days before Furman, when the jury was given unfettered discretion to determine who lived and who died. This is neither a correct assessment of the statute nor of Furman and its progeny. The concern in Furman was that the death penalty not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner. Gregg v. Georgia, 428 U.S. at 188, 96 S.Ct. at 2932. Its guiding principle was that the sentencer’s discretion must be suitably directed and limited and must be exercised in an informed manner. Id. at 189, 96 S.Ct. at 2932. The sentencer must have relevant information under fair procedural rules and be provided with standards to guide its use of this information. Id. at 195, 96 S.Ct. at 2935. As stated in Proffitt v. Florida, “the requirements of Furman are satisfied when the sentencing authority’s discretion is guided and channeled by requiring examination of specific factors that argue in favor of or against imposition of the death penalty, thus eliminating total arbitrariness and capriciousness in its imposition.” 428 U.S. at 258, 96 S.Ct. at 2969.
Furman nowhere mentions the concept of “narrowing” as understood by the majority. Aggravating factors are considered “means of confining the sentencers’ discretion — giving them something specific to look for rather than leaving them to wander at large among all aggravating circumstances.” Walton v. Arizona, 497 U.S. 639, 650, 110 S.Ct. 3047, 3063, 111 L.Ed.2d 511 (1990) (Scalia, J., concurring). So long as the aggravating circumstance is not unconstitutionally vague, i.e., so vague as to fail adequately to channel the sentencing patterns of juries, it may serve as the basis for imposing capital punishment. See Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983).
But aggravating factors are not the only component of a capital sentencing system assuring that the commands of Furman are met. The system must be examined as *349a whole just as it works as a whole. In addition to aggravating factors, our statute further guides and channels the sentencer’s discretion by providing a bifurcated proceeding, requiring consideration of mitigating circumstances, explicitly directing the manner in which the jury must weigh the various sentencing factors, and mandating meaningful appellate review. See Zant v. Stephens, 462 U.S. at 875, 103 S.Ct. at 2741; Proffitt v. Florida, 428 U.S. at 252-253, 96 S.Ct. at 2967; Gregg v. Georgia, 428 U.S. at 191, 96 S.Ct. at 2933. The cumulative effect of these procedural safeguards assures that our statute’s use of the underlying felony as an aggravating circumstance does not violate the principles of Furman.
As its reliance on the quoted language from State v. Cherry discloses, the majority decision is based to a large extent upon the potential problems of disproportionality inherent in allowing capital punishment for felony murder. Allowing the underlying felony to act as an aggravating circumstance does not, however, result in imposition of the death penalty in a disproportionate manner. First of all, it is well-settled that under the Eighth Amendment death is not a disproportionate punishment for felony murder so long as the defendant in fact killed, attempted to kill, or intended that a killing take place or that lethal force be used, or the defendant was a major participant in the felony and exhibited reckless indifference to human life. Tison v. Arizona, 481 U.S. 137, 158, 107 S.Ct. 1676, 1688, 95 L.Ed.2d 127 (1987); Enmund v. Florida, 458 U.S. 782, 797, 102 S.Ct. 3368, 3376-3377, 73 L.Ed.2d 1140 (1982). Yet the majority’s decision removes wholesale this category of persons 1, unquestionably death eligible under the Eighth Amendment, from the list of those upon whom the state can impose capital punishment unless some factor beyond the commission of the felony is present in the crime. I cannot, however, consider “unreasonable, unjust or unconstitutional” the legislature’s determination that killings perpetrated during a felony occur under circumstances of enhanced culpability sufficient to expose the perpetrator and certain accomplices to a death sentence. See Whalen v. State, 492 A.2d 552, 567 (Del.1985). I believe that, applied under the constitutional restrictions set forth in Tison and Enmund, T.C.A. § 39-2-203(i)(7) constitutionally narrows the category of death eligible defendants in the case of felony murder at the sentencing stage. To the extent that the majority’s decision rests upon concerns that the death penalty is disproportionate punishment for some types of conduct falling under the felony murder statute, our sentencing system, created to meet the mandates of Furman, may be trusted to discern and remove those persons perpetrating these less egregious forms of felony murder from the list of those condemned to death.
It is here that this Court’s obligations under T.C.A. § 39-13-206 [formerly § 39-2-205] become critical. In order to prevent the execution of all but the most deserving of murderers and to avoid arbitrary and capricious sentencing, the Court reviews all felony-murder cases to assure that a sentence of death has not been arbitrarily imposed, that the evidence supports the jury’s findings and that the sentence of death is not disproportionate. For purposes of the death penalty, a distinction must be drawn in felony-murders between cold-blooded, execution-style murders and accidental, unforeseen killings or accomplice killings. However, the mechanical narrowing adopted by the Court today bears no relationship to these considerations.2 Following a jurisprudence of case specific proportionality review, on the other hand, ensures that the dictates of the Eighth and Four*350teenth Amendments and their state counterparts, Article I, §§ 16 and 8, are met in capital felony murders.
Applying these principles to the present case, I would find: that the sentence of death was not imposed in an arbitrary fashion; that the evidence supports the jury’s findings of two statutory aggravating circumstances; and that the evidence supports the jury’s finding of the absence of mitigating circumstances sufficiently substantial to outweigh the aggravating circumstances so found. The sentence is neither excessive nor disproportionate to the penalty imposed in similar cases, considering both the nature of the crime and the Defendant. See State v. Alley, 776 S.W.2d 506 (Tenn.1989); State v. Miller, 771 S.W.2d 401 (Tenn.1989); State v. West, 767 S.W.2d 387 (Tenn.1989); State v. Hartman, 703 S.W.2d 106 (Tenn.1985); State v. Coe, 655 S.W.2d 903 (Tenn.1983); State v. Groseclose, 615 S.W.2d 142 (Tenn.1981). The defendant’s culpability also meets the criteria of Tison and Enmund, supra. The aggravating circumstances applied are constitutionally valid. This torture-murder of a kidnapped child unquestionably is one of the most aggravated killings that this Court has seen. The fourteen-year-old victim’s ordeal, as described in the majority opinion, began at 7:30 p.m. and ended at 11 p.m. This brutal and tragic murder is certainly one of the “worst of the bad.”
I would affirm the judgment both as to the defendant’s guilt and his sentence of death. I am authorized to state that Justice O’BRIEN concurs in this opinion.
. See, e.g., State v. Smith, 695 S.W.2d 954 (1985); State v. Matson, 666 S.W.2d 41 (Tenn.1984); State v. Laney, 654 S.W.2d 383 (Tenn.1983); State v. Simon, 635 S.W.2d 498 (Tenn.1982). In the above felony murder cases, the sole aggravating factor was (i)(7).
. In disallowing the jury from considering aggravating circumstance (i)(7) at the sentencing stage in all felony murder convictions, over one third of the persons on death row may have their sentences reviewed, first for a harmless error analysis, and upon a finding of harmful error as in this case, then for a remand to the trial court for resentencing.