concurring.
The Defendant, Danny Branam, appeals his conviction of first degree felony murder and his sentence of death. The jury found two aggravating circumstances: the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the Defendant or another; and the murder was committed while the Defendant was engaged in committing, or was an accomplice in the commission of, or was attempting to commit ... robbery. T.C.A. § 39-2-203(i)(6) and (7) (1982) [now § 39-13-2040(6) and (7) (1991)].
The majority found that both aggrava-tors should be set aside and that the Defendant’s sentence “must be set at life imprisonment.” I agree that the evidence is insufficient to support subsection (i)(6). However, I continue to adhere to my dissent in State v. Middlebrooks, 840 S.W.2d 317, 347 (Tenn.1992), and would find the evidence sufficient to support the felony murder aggravating circumstance, subsection (i)(7).
*573With one valid aggravating circumstance remaining, I am unable to conclude that the injection of aggravating circumstance (i)(6) into the jury’s sentencing calculus is harmless error beyond a reasonable doubt. I would therefore remand for resentencing but for my agreement with the conclusion in the majority opinion that the sentence of death is disproportionate in this case.
In Middlebrooks, I stated:
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 (Emphasis added.).
840 S.W.2d at 349. This accomplice killing certainly is not one of the “worst of the bad” as described by Chief Justice Reid in Middlebrooks.
In State v. Taylor, 774 S.W.2d 163 (Tenn.1989), the only other case in this State in which a sentence of death has been imposed upon a non-triggerman aider and abettor to felony murder, the defendant handed the killer the murder weapon, nodded to him to shoot the victim, who was seated in front of the killer, and shot the victim’s body afterwards. Branam’s role in the present offense is much less culpable. Pursuant to this Court’s statutory directive under T.C.A. § 39-13-206(c)(1)(D), I would find that the sentence of death is disproportionate to the penalty imposed in similar cases, considering both the nature of the crime and the defendant.
Furthermore, the State has not proved the Defendant’s culpability in the killing is sufficient to impose the death penalty under either the state or federal constitution. Because the Defendant does not meet the second prong of the test of Tison v. Arizona, 481 U.S. 137, 155, 107 S.Ct. 1676, 1686, 95 L.Ed.2d 127 (1987), in that he did not possess a mental state of reckless indifference to human life, id., at 156, 107 S.Ct. at 1688, the imposition of the death penalty under the present record would violate the Eighth Amendment to the United States Constitution and Article I, § 16, of the Tennessee Constitution. I therefore concur with the results reached in the majority opinion in sentencing the Defendant to life imprisonment.
I am authorized to state that Justice O’BRIEN concurs in this opinion.