concurring.
I concur in affirming the conviction of first degree murder and the sentence of death.
*263Since September 1, 1990, the Court has reviewed on direct appeal twelve cases in which the sentence was death.1 I stated in dissent in State v. Black, 815 S.W.2d 166 (Tenn.1991), the first case on which I sat in which the sentence of death was affirmed, that whether the imposition of death is cruel and unusual punishment in violation of Article I, Section 16 of the Tennessee Constitution should be reserved until the Court is presented a case in which there are no errors requiring reversal of the conviction or sentence. The case before the Court is the first in which I have participated that is, in my opinion, sufficiently free of error to require consideration of that basic issue.
The District Attorney General and counsel for the defendant obviously were well-prepared for trial; the prosecution presented the case in a forceful but fair and dignified manner. The lawyers for the defendant put the State to its proof on every issue and utilized every apparent opportunity for the benefit of the defendant. 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.
I concur in the decision to affirm the sentence, not because Tennessee death penalty law, in my opinion, now meets constitutional standards, but because the procedures followed and the facts proven in this ease satisfy the essentials of a constitutionally valid system. I write separately to discuss the constitutionality of the death penalty and, in the context of this case, deficiencies in Tennessee’s death penalty jurisprudence.
CONSTITUTIONALITY OF DEATH PENALTY
In a non-capital case, Trop v. Dulles, 356 U.S. 86, 99-100, 78 S.Ct. 590, 597, 2 L.Ed.2d 630 (1958), the United States Supreme Court discussed the history and scope of the rights protected by the constitutional provision against cruel and unusual punishment:
The exact scope of the constitutional phrase “cruel and unusual” has not been detailed by this Court. But the basic policy reflected in these words is firmly established in the Anglo-American tradition of criminal justice. The phrase in our Constitution was taken directly from the English Declaration of Rights of 1688, and the principle it represents can be traced back to the Magna Carta. The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards_ The Court recognized in [Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1909) ] that the words of the Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.
In Gregg v. Georgia, 428 U.S. 153, 171-173, 96 S.Ct. 2909, 2924-2925, 49 L.Ed.2d 859 (1976), the Supreme Court expanded upon the requirements of the Eighth Amendment of the United States Constitution:
Thus the Clause forbidding “cruel and unusual” punishments “is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice.” [Weems v. United States, 217 U.S. at 378, 30 S.Ct. at 553]....
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It is clear from the foregoing precedents that the Eighth Amendment has not been regarded as a static concept. As Mr. Chief Justice Warren said, in an oft-quoted phrase, “[t]he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a ma-*264taring society.” Trop v. Dulles, [356 U.S. at 101, 78 S.Ct. at 597]. See also Jackson v. Bishop, 404 F.2d 571, 579 (CA8 1968). Cf. Robinson v. California, [370 U.S. 660, 666, 82 S.Ct. 1417, 1420, 8 L.Ed.2d 758 (1962) ]. Thus, an assessment of contemporary values concerning the infliction of a challenged sanction is relevant to the application of the Eighth Amendment. As we develop below more fully, see infra, at 2926-2927, this assessment does not call for a subjective judgment. It requires, rather, that we look to objective indicia that reflect the public attitude toward a given sanction.
But our cases also make clear that public perceptions of standards of decency with respect to criminal sanctions are not conclusive. A penalty also must accord with “the dignity of man,” which is the “basic concept underlying the Eighth Amendment.” Trop v. Dulles, [356 U.S. at 100, 78 S.Ct. at 597] (plurality opinion). This means, at least, that the punishment not be “excessive.” When a form of punishment in the abstract (in this case, whether capital punishment may ever be imposed as a sanction for murder) rather than in the particular (the propriety of death as a penalty to be applied to a specific defendant for a specific crime) is under consideration, the inquiry into “ex-cessiveness” has two aspects. First, the punishment must not involve the unnecessary and wanton infliction of pain. Furman v. Georgia, [408 U.S. 238, 392-93, 92 S.Ct. 2726, 2805-06, 33 L.Ed.2d 346 (1972) ] (Burger, C.J., dissenting). See Wilkerson v. Utah, [99 U.S. (9 Otto) 130, 136, 25 L.Ed. 345 (1878); Weems v. United States, [217 U.S. at 381, 30 S.Ct. at 554]. Second, the punishment must not be grossly out of proportion to the severity of the crime. Trop v. Dulles, [356 U.S. at 100, 78 S.Ct. at 597] (plurality opinion) (dictum); Weems v. United States, [217 U.S. at 367, 30 S.Ct. at 549].
In Gregg v. Georgia, the Supreme Court rejected the contention that, though historically the death penalty had been the law in every state and was, at least implicitly, recognized by the language of the Eighth Amendment, contemporary society had in 1976 rejected the death penalty as an appropriate and necessary criminal sanction. The Supreme Court concluded that “in the absence of more convincing evidence, ... death as a punishment for murder is not without justification and thus is not unconstitutionally severe.” 428 U.S. at 187, 96 S.Ct. at 2931.
Consequently, under the federal constitution, when properly made an issue by the pleadings and proof, the determination of whether capital punishment constitutes cruel and unusual punishment requires an assessment of contemporary values in Tennessee concerning the imposition of the penalty of death for a particular offense. That assessment cannot be subjective but must include the consideration of objective indicia which reflect the public attitude. However, public attitude is not conclusive; the assessment must also be consistent with human dignity and must include a finding that capital punishment for the particular offense accomplishes some beneficial social purpose. A similar analysis must be performed under the state constitution, even if this Court should find that the standard for determining whether capital punishment is cruel and unusual is higher than that required by the federal constitution. See State v. Black, 815 S.W.2d 166, 189 (Tenn.1991). In both cases, there are factual issues that can be resolved only by proof. Since these issues are not addressed by the pleadings or proof in this case, there is no basis on which this Court can make an assessment of contemporary values in Tennessee under the United States Constitution or the Tennessee Constitution.
DEFICIENCIES IN DEATH PENALTY JURISPRUDENCE
Under state and federal law, this Court bears the responsibility for the development and imposition of a system of death penalty jurisprudence which meets all constitutional and statutory requirements. My view as to the duty of the Court in this regard was set forth in State v. Black:
Under these circumstances, particularly in light of the nature of the punishment, the imperfection of the judicial system, and the broad discretion vested in the district *265attorneys general of this State, see State v. Dicks, [615 S.W.2d 126, 136, 140-141 (Tenn.1981) ], this Court should assert its full and independent authority under the State Constitution to assure that the process whereby a defendant is sentenced to death is essentially free of error. This Court, through the exercise of strict appellate review, must require stringent and exact compliance with the Tennessee Constitution and state statutes. The United States Supreme Court has repeatedly emphasized the importance of meaningful appellate review to protect against the unlawful imposition of the death penalty. See Zant v. Stephens, [462 U.S. 862, 876, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983) ]; Barclay v. Florida, [463 U.S. 939, 973, 103 S.Ct. 3418, 3437, 77 L.Ed.2d 1134 (1988) ] (Stevens, J., concurring) (“the question is whether, in its regular practice, the Florida Supreme Court has become a rubber stamp for lower court death-penalty determinations.”).
815 S.W.2d at 194-95. Since State v. Black, the Court has addressed some of the more significant deficiencies in Tennessee death penalty law. Some have been resolved, but, in my view, others have been ignored or treated superficially.
Review of a sentence of death involves, in addition to the assignments of error made by the parties, the examination by the Court of three critical aspects of the ease. See State v. Middlebrooks, 840 S.W.2d 317, 351 (1992), (Reid, C.J., concurring and dissenting). The first step is the determination that the sentence of death is not disproportionate to the crime committed, thereby establishing the defendant as a member of the death-eligible class of offenders. Id. The second step is the determination of whether the narrowing process has shown the defendant is among the worst of the death-eligible class. Id. at 351-52. The third step is a comparative proportionality review whereby the Court finds, upon consideration of the defendant and the offense, that the sentence of death is not disproportionate to the penalties imposed in similar cases. Id. at 354-55. Proportionality, as a measure of fairness, is the principle guiding the Court’s review. First, the sentence of death is compared with the offense committed; then, the defendant is compared with other death-eligible offenders; and, last, the defendant and the criminal acts on which the sentence is based are compared with other similar offenders and acts committed. This process helps achieve a “ ‘reasoned moral response to the defendant’s background, character, and crime,’ ” see Penry v. Lynaugh, 492 U.S. 302, 318, 109 S.Ct. 2934, 2947, 106 L.Ed.2d 256 (1989) (quoting California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 841, 93 L.Ed.2d 934 (1987) (O’Connor, J., concurring) (emphasis in original)), and is designed to select for execution only those most deserving of death, the worst of the bad.
DEFINING THE DEATH-ELIGIBLE CLASS
Review of a case in which the defendant has been sentenced to death logically begins with the definition of the class of death-eligible defendants under the United States Constitution. Under the Eighth and Fourteenth Amendments, death is a disproportionate punishment in all cases except where a defendant kills, attempts to kill, or intends that a killing take place, or that lethal force will be imposed, or where a defendant’s personal involvement in the underlying felony is substantial and who exhibits a reckless disregard or indifference to the value of human life. Tison v. Arizona, 481 U.S. 137, 157-158, 107 S.Ct. 1676, 1688, 95 L.Ed.2d 127 (1987); Enmund v. Florida, 458 U.S. 782, 797, 102 S.Ct. 3368, 3377, 73 L.Ed.2d 1140 (1982); State v. Branam, 855 S.W.2d 563, 570-71 (Tenn.1993); State v. Middlebrooks, 840 S.W.2d 317, 338 (Tenn.1992).
Superimposed upon this defined group of defendants are additional constitutional and statutory limitations. The federal constitution does not permit all murderers in this death-eligible class to be executed. The process fashioned by the United States Supreme Court for selecting those who ultimately will be executed was summarized in State v. Middlebrooks as follows:
As a constitutionally necessary first step under the Eighth Amendment, the Supreme Court has required the states to *266narrow the sentencers’ consideration of the death penalty to a smaller, more culpable class of homicide defendants than the pre-Fmrman class of death-eligible murderers. See Pulley v. Harris, [465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984) ]. A state, however, must not only genuinely narrow the class of death eligible defendants, but must do so in a way that reasonably justifies the imposition of a more severe sentence on the defendant compared to others found guilty of murder. Zant v. Stephens, [462 U.S. at 877, 103 S.Ct. at 2742]. A proper narrowing device, therefore, provides a principled way to distinguish the case in which the death penalty was imposed from the many cases in which it was not, Godfrey v. Georgia, [446 U.S. 420, 433, 100 S.Ct. 1759, 1767, 64 L.Ed.2d 398 (1980)], and must differentiate a death penalty case in an objective, even-handed, and substantially rational way from the many murder eases in which the death penalty may not be imposed. Zant [462 U.S. at 879, 103 S.Ct. at 2744]. As a result, a proper narrowing device insures that, even though some defendants who fall within the restricted class of death-eligible defendants manage to avoid the death penalty, those who receive it will be among the worst murderers — those whose crimes are particularly serious, or for which the death penalty is peculiarly appropriate. See Gregg v. Georgia, [428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) ].
840 S.W.2d at 343. Thus, this Court has recognized that the United States Constitution defines the class of death-eligible defendants but also requires further narrowing by statute or court review.
The State of Tennessee has by constitution and statute further limited those who are death-eligible. As noted in the dissent in State v. Black:
Tennessee constitutional standards are not destined to walk in lock step with the uncertain and fluctuating federal standards and do not relegate Tennessee citizens to the lowest levels of constitutional protection, those guaranteed by the national constitution.
Indeed, the General Assembly has clearly indicated that when a defendant’s life is at stake, citizens of Tennessee are entitled to greater protections than those guaranteed by the United States Constitution. Recognizing higher standards than the United States Supreme Court has found in the federal constitution and reflecting a higher “contemporary standard of decency” in Tennessee, the legislature has forbidden the execution of persons who are under the age of eighteen, T.C.A. § 37-1-134(a)(1), and who are mentally retarded, T.C.A. § 39-13-203. Compare Stanford v. Kentucky, [492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989) ] (Eighth Amendment is not violated by imposition of death on sixteen and seventeen year olds); Penry v. Lynaugh, [492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989)] (Eighth Amendment does not prohibit subjecting mentally retarded defendant to death penalty).
815 S.W.2d at 193.
The Court, since Black, has also narrowed the group of death-eligible defendants by finding death to be a disproportionate penalty. In State v. Branam, 855 S.W.2d 563 (Tenn.1993), the Court found in a unanimous decision that, under the circumstances of that case, death was disproportionate punishment for an accomplice who was not the trigger-man in a felony murder. The Court found in State v. Hale, 840 S.W.2d 307 (Tenn.1992), that death was disproportionate punishment for misdemeanor child abuse causing the death of the child.
The most significant decision by the Court was State v. Middlebrooks, 840 S.W.2d 317 (Tenn.1992), which addressed the use of aggravating circumstances to narrow the death-eligible class to those defendants for whom imposition of the death penalty is most appropriate. In Middlebrooks the Court held that because the felony murder aggravating circumstance, T.C.A. § 39 — 2—203(i)(7) (1982) [now 39-13-204(i)(7) (Supp.1993) ], essentially duplicated the elements of the offense of first degree felony murder, T.C.A. § 39-2-202(a) (1982) and T.C.A. § 39-2-202(a)(1) (Supp.1988), it failed to narrow the population of death-eligible felony murder defen*267dants as required by the Eighth Amendment and Article I, Section 16. Middlebrooks, by eliminating felony murder as an aggravating circumstance in first-degree felony murder prosecutions, has accomplished two significant results. It adds a new category of defendants who are immune from the imposition of the sentence of death in those cases where defendants are charged with first-degree felony murder and the only aggravating circumstance is the felony; and, it eliminates felony murder as an aggravating circumstance in selecting those death-eligible defendants who are most deserving of the sentence of death in those cases where other aggravating circumstances are present.
However, Middlebrooks accomplished only a partial solution. My concurrence and dissent in that case stated:
This holding based on Article I, Section 16 of the Tennessee Constitution is a step toward limiting the jury’s discretion in imposing capital punishment to a “demonstrably smaller and more blameworthy” class of murderers. Maynard v. Cartwright, [486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988) ]. However, even with the felony murder aggravating circumstance eliminated, the Tennessee sentencing statute still includes in the class of death-eligible defendants accidental and unintentional murderers whose culpability is minimal. It still allows convictions for first degree felony murder of persons who killed accidentally or unintentionally and those who did not kill, did not intend to kill and did not intend that any person suffer any physical harm. The 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.
840 S.W.2d at 350 (Reid, C. J., concurring and dissenting). I further criticized the majority’s reasoning because:
The result ... is illogical: an aggravating circumstance that fails to narrow the class because it duplicates the elements of the offense is unconstitutional, but aggravating circumstances that fail to narrow the class for other reasons are not unconstitutional. The logical conclusion from the majority Opinion’s analysis would be that any provision of the statute that fails to accomplish the constitutional imperative to narrow the class is invalid.
Id. at 352.
On the authority of Middlebrooks, the Court subsequently reversed the sentence of death and remanded for resentencing in State v. Bane, 853 S.W.2d 483 (Tenn.1993), in which the aggravating circumstances found by the jury were T.C.A. § 39-13-204(i)(5), the murder was especially heinous, atrocious or cruel, and (i)(7), felony murder; State v. Evans, 838 S.W.2d 185 (Tenn.1992), in which the aggravating circumstances were (i)(6), the murder was committed to avoid lawful arrest and (i)(7) felony murder; and State v. Smith, 857 S.W.2d 1 (Tenn.1993), in which the aggravating circumstances were (i)(2), previous felony convictions, and (i)(7), felony murder. The defendant in Smith was not, in my view, death-eligible, because the record did not show that the killing was deliberate or intentional or accompanied by a conscious purpose of producing death or a conscious realization that death likely would occur. See Middlebrooks, 840 S.W.2d at 353.
In summary, the federal constitution allows the prosecution to seek a sentence of death for any defendant who himself kills, attempts to kill, or intends that a killing take place or that lethal force will be imposed, or for any defendant whose personal involvement in the underlying felony is substantial and who exhibits a reckless disregard or indifference to the value of human life. However, T.C.A. § 39-13-203 prohibits the imposition of death upon any mentally retarded person; T.C.A § 37-1-134(a)(1)(A) prohibits the imposition of death upon any person less than 18 years of age; State v. Branam, 855 S.W.2d at 570, raises the level of participation required of a defendant who did not personally wield the lethal agent and may be read to exclude such persons from the death-eligible group; and State v. Hale, 840 S.W.2d at 314, excludes any person who caused the death of another by the commission of an act which is not a felony. Middle-*268brooks excludes any person charged with felony murder and not charged with some aggravating circumstance other than T.C.A. § 39 — 13—204(i)(7), felony murder. Nevertheless, the class still includes some defendants who killed accidentally or unintentionally and those who did not kill, did not intend to kill, and did not intend that any person suffer physical harm. I would limit the felony murderers eligible for the imposition of the death penalty to those defendants in cases, like the present, in which the proof shows the killing was deliberate or intentional or accompanied by a conscious purpose of producing death or a conscious realization that death will likely occur.
The record in this ease shows the defendant is a member of the death-eligible class under both the federal and state constitutions. The defendant’s own statement shows the killing was deliberate or intentional.
USE OF AGGRAVATING AND MITIGATING CIRCUMSTANCES TO ACCOMPLISH PARTICULARIZED SENTENCING
At the second stage of the death penalty procedure, at which the jury is required to consider aggravating and mitigating circumstances in order to achieve particularized sentencing, the Court has not given sufficient guidance in the use of aggravating and mitigating circumstances. The Court has, instead, it seems to me, searched for some basis on which to affirm the sentence of death despite a misuse of aggravating circumstances, most often by a finding of harmless error.
This constitutionally mandated function is accomplished by requiring the jury to find beyond a reasonable doubt the existence of one or more statutory aggravating circumstances and that, beyond a reasonable doubt, the aggravating circumstances outweigh any mitigating circumstances. T.C.A. § 39-13-204(g). Implicit in this exercise is the rational consideration of the substance of each aggravating and mitigating circumstance and an understanding of their practical use in accomplishing the stated purpose of determining that the defendant is not only a member of the death eligible class, but also one of the worst of the death eligible class. There should be sufficient evidence to support each aggravating circumstance found. More than one aggravating circumstance should not be based on the same acts of the defendant. See Provence v. State, 337 So.2d 783, 786 (Fla.1976); but see also State v. Carter, 714 S.W.2d 241 (Tenn.1986). Aggravating circumstances which are factually inconsistent should not be given effect. See State v. Black, 815 S.W.2d at 197 (Reid, C.J., concurring and dissenting). The jury should be instructed as to the meaning of each aggravating circumstance so as to aid the jury in its application. See, e.g., State v. Hines, 758 S.W.2d 515, 523 (Tenn.1988); State v. Williams, 690 S.W.2d 517, 527, 532 (Tenn.1985); State v. Moore, 614 S.W.2d 348, 350-351 (Tenn.1981).
The problems often associated with the definition and application of aggravating circumstances are not present in this case, even though one invalid aggravating circumstance was charged. The defendant was charged with aggravating circumstances T.C.A. § 39-13-204(i)(2), having previously been convicted of one or more felonies involving violence to the person; (i)(6), committing the murder to prevent the lawful arrest or prosecution of the defendant; and (i)(7), committing the murder during the course of a felony. The jury found aggravating circumstances (i)(2) and (i)(7). Aggravating circumstance (i)(7) was found in State v. Middlebrooks, 840 S.W.2d at 341-47, to be an invalid aggravating circumstance on the charge of first-degree felony murder, and the case was remanded for re-sentencing. However, the Court has found in this case that charging (i)(7) was harmless error, and has affirmed the sentence of death.
I have indicated previously that harmless error analysis is inappropriate whenever one of the aggravating circumstances found by the jury is found to be invalid on appeal. I still subscribe to that view with regard to the previous cases considered by the Court and in all cases where the Court must make a subjective decision regarding the effect of the aggravating circumstance found to be harmless. However, even though in the present case, the court improperly submitted *269to the jury the aggravating circumstance of felony murder, T.C.A. § 39-13-204(i)(7), I concur in the majority’s finding that under the circumstances of this case, this error was harmless beyond a reasonable doubt, and that the sentence would have been the same had the invalid aggravating circumstance not been charged. Stringer v. Black, 503 U.S. -, -, 112 S.Ct. 1130, 1137, 117 L.Ed.2d 367 (1992).
The issue on harmless error analysis is whether the Court can conclude that beyond a reasonable doubt the invalid aggravating circumstance did not influence the jury in its determination that the sentence would be death. Id. 503 U.S. at -, 112 S.Ct. at 1136. The issue is not the extent to which the aggravating and mitigating circumstances were supported by the evidence or whether the aggravating circumstances outweighed the mitigating circumstances. A finding that the evidence in support of the valid aggravating circumstance was overwhelming and the evidence in mitigation was meager may, and in this case does, support the jury’s finding that beyond a reasonable doubt the aggravating circumstance outweighed the mitigating circumstances, but it does not necessarily follow that the jury was not influenced by the invalid aggravating circumstance. And, further, the Court must conclude that admission of the invalid aggravating circumstance was harmless error before it can consider whether the record supports the jury’s finding that aggravating circumstances outweighed mitigating circumstances.
In Middlebrooks, the Court found that: Even though the evidence amply supports the aggravating circumstance of the murder being especially heinous, atrocious, or cruel in that it involved torture or depravity of mind, Tenn.Code Ann. § 39-2-203(i)(5) (1982), we are unable to conclude that the elimination of the aggravating circumstance (i)(7) is harmless error beyond a reasonable doubt.
840 S.W.2d at 347. The dissent in Middle-brooks emphasized that:
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.”
Id. at 350 (Drowota, J. concurring and dissenting). However, there was no insistence in the dissent that the admission of aggravating circumstance (i)(7), if error, was harmless error.
The main opinion undertakes a “principled explanation” of its conclusion that admission of the invalid aggravating circumstance was harmless beyond a reasonable doubt. That explanation is that the “quantum and quality” of all relevant evidence in aggravation and mitigation must be examined and fully considered. The problem with this objective and logical procedure is that jurors are not required to be objective or logical in determining the sentence. This Court in State v. Terry, 813 S.W.2d 420 (Tenn.1991), unanimously found that the erroneous instruction of aggravating circumstance (i)(7) was not harmless error beyond a reasonable doubt. The Court stated, quoting State v. Pritchett, 621 S.W.2d 127, 139 (Tenn.1981),
We have no way of knowing and cannot speculate whether the jury would have imposed the death penalty with one of the two aggravating circumstances withdrawn from their consideration and with the necessity of weighing the one remaining aggravating circumstance against the mitigating circumstances.
State v. Terry, 813 S.W.2d at 425.
The decision of whether a defendant lives or dies “requires a profoundly moral evaluation of the defendant’s character and crime,” in which the sentencer, by constitutional mandate, “is afforded substantial discretion.” Satterwhite v. Texas, 486 U.S. 249, 261, 108 S.Ct. 1792, 1800, 100 L.Ed.2d 284 (1988) (Marshall, J., dissenting).
Because of the moral character of a capital sentencing determination and the substantial discretion placed in the hands of the sentencer, predicting the reaction of a sentencer to a proceeding untainted by constitutional error on the basis of a cold record is a dangerously speculative enter*270prise. As the Court recognized in Caldwell v. Mississippi, 472 U.S. 320, 330, 105 S.Ct. 2633, 2640, 86 L.Ed.2d 231 (1985), “[w]hatever intangibles a jury might consider in its sentencing determination, few can be gleaned from an appellate record.” In the same vein, an appellate court is ill equipped to evaluate the effect of a constitutional error on a sentencing determination. Such sentencing judgments, even when guided and channeled, are inherently subjective, and the weight a sentencer gives an instruction or a significant piece of evidence that is later determined to violate a defendant’s constitutional rights is nowhere apparent in the record. In McCleskey v. Kemp, [481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987)], the Court acknowledged that “[i]ndividual jurors bring to their deliberations ‘qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable,’ ” and their collective judgment of the appropriate sentence is marked by an “inherent lack of predictability.” Id., 481 U.S., at 311, 107 S.Ct., at 1776-1777, quoting Peters v. Kiff, 407 U.S. 493, 503, 92 S.Ct. 2163, 2169, 33 L.Ed.2d 83 (1972) (opinion of Marshall, J.). The threat of an erroneous harmless-error determination thus looms much larger in the capital sentencing context than elsewhere.
* * * * * ⅜
Harmless-error analysis impinges directly on the reliability of the capital sentencing decision by allowing a court to substitute its judgment of what the sentencer would have done in the absence of constitutional error for an actual judgment of the sen-tencer untainted by constitutional error.
Id. 407 U.S. at 242, 243, 92 S.Ct. at 262, 263 (Marshall, J., dissenting).
However, even though the Court cannot reasonably discover the impact of erroneously considered material on an essentially subjective decision,2 a court can conclude beyond a reasonable doubt that there was no evidence before a jury which could influence its decision. It is on this basis that I concur with the finding of harmless error in this case.
The most significant fact in harmless error analysis is whether the error permitted the sentencers to consider evidence that would not otherwise have come before them. Cf. State v. Harris, 839 S.W.2d at 54, 83 (Tenn.1992) (Reid, C.J., dissenting) (evidence of other offenses not properly before jury absent error at guilt phase). In this case, as stated in the main opinion,3 the jury heard no evidence in support of the invalid aggravating circumstance that was not admissible to prove the elements of the crime. Submission of the felony murder aggravator to the jury exposed the sentencers to no evidence which they would not have properly heard at the guilt phase even if the State had not relied upon that aggravating circumstance. Under our statute and the federal constitution, the jury can properly consider evidence of the nature, facts and circumstances of the crime in making its determination as to whether a sentence of death is warranted. See T.C.A. § 39-13-204(c) (formerly § 39 — 2—203(c)); Clemons v. Mississippi, 494 U.S. 738, 748, 110 S.Ct. 1441, 1448, 108 L.Ed.2d 725 (1990). The evidence of the offense and its nature was thus properly before the jury at sentencing. Consequently, there was no inadmissible evidence that could have affected the jury’s decision. The argument of the prosecutor regarding the invalid aggravating circumstance did not go beyond statements that were permissible with reference to the commission of the offense of which the defendant was convicted. As a result, the jury heard nothing that was not appropriate, except that numerically, there were two aggravating circumstances rather than one. Finding prejudicial error on this super-technical ground would require the absolute rejection of the principle of harmless error found in Rule 52 of the Tennessee Rules of Criminal Procedure and Rule 36(b) of the Tennessee Rules of Appellate Procedure. Where there was in fact error but, as in this case, the error could not have affected the verdict of the jury, it is *271appropriate to find the error was harmless beyond a reasonable doubt.
No issue is made of the aggravating circumstance found under T.C.A. § 39-13-204(i)(2). The record shows that the defendant’s prior convictions supporting this aggravating circumstance were two convictions of armed robbery, one conviction of first degree murder and one conviction of attempt to commit first degree murder. The evidence in mitigation was meager. Accordingly, I concur that the record supports the jury’s finding that the aggravating circumstance outweighed the mitigating circumstances and the imposition of the sentence of death.
COMPARATIVE PROPORTIONALITY REVIEW
The greatest deficiency in this case, and in the present death penalty law as applied in this state, is the total absence of a meaningful and exacting comparative proportionality review. Where the statute defining a capital offense does not accomplish narrowing, as the Tennessee statute does not, comparative proportionality analysis is a vital component in the constitutional imposition of the death penalty. See Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 3058, 111 L.Ed.2d 511 (1990); McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987); Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984).
The comparative proportionality review in this case consisted of the conclusory statement, “Further, our comparative proportionality review reveals that the sentence in this case is neither excessive nor disproportionate to the penalty imposed in similar cases, considering both the nature of the crime and character of the defendant.” This statement is followed by citation to a series of other cases in which the death penalty was imposed. In addition to revealing the lack of any articulated standard for comparative proportionality review, see State v. Harris, 839 S.W.2d at 85 (Reid, C.J., dissenting), the court’s opinion also reflects a basic misunderstanding of the purpose of such review. If the case under review is compared only with cases in which the defendant has been sentenced to death, as in the Court’s opinion in this case, its similarity to cases in which the sentence of death was not imposed, and, thus, any disproportionality, could not be noted. To make this determination, the Court must also examine first degree murder cases in which the sentence of death is not imposed. Limiting review to those cases in which a sentence of death was given compares the case under review only to the standard for death-eligibility as discussed in step one of the analysis. Supra, p. 265. The same observation was made in State v. Middlebrooks:
The Court obviously has substituted for the proportionality review required at this third stage of the proceedings a finding that the proof shows the defendant to be a member of the death-eligible group which, under the federal constitution and the Tennessee statute, includes all eases in which the proof meets the threshold standard of reckless indifference. This practice is acknowledged by the statement in Justice Drowota’s dissent that the death penalty is not disproportionate punishment so long as the reckless indifference standard of En-mund and Tison is met. Drowota, J., dissenting at 349. Consequently, the Court has not found the punishment disproportionate in any of the 84 cases in which the sentence of death has been imposed since 1977. This fact alone would suggest there has been no effective proportionality review on appeal.
840 S.W.2d at 355.
The need to look beyond cases in which the jury actually imposed a sentence of death in order to assure valid proportionality review is recognized in Rule 12 of the Supreme Court Rules. This Rule sets forth the information regarding the defendant and the offense furnished by the trial judge, on which this Court bases its comparative proportionality review. The Rule requires that the report be completed “in all first-degree murder cases in which life imprisonment or a sentence of death is imposed.” (Emphasis supplied.) It thus implicitly establishes all cases resulting in first degree murder convictions as the universe of cases to which this Court must look when determining whether a *272sentence of death is proportionate.4 Regardless of whether, as some defendants have argued, Rule 12 provides an insufficient basis for the Court’s comparative proportionality review under T.C.A. § 39 — 13—206(c)(1)(D) (Supp.1991), the record shows that the majority has not in the present appeal followed the Rule. Compare State v. Barber, 753 S.W.2d 659, 664-665 (Tenn.1988) (reviewing cases in which life imprisonment and sentences of death were imposed).
Another deficiency in the Court’s comparative proportionality review is the absence of any process for determining if geographic or racial patterns of charging and prosecuting capital cases demonstrate an arbitrary exercise of the prosecutorial function. The Court must respect the broad discretionary powers given prosecutors. However, the statutes and the constitution require consistency and reliability in the administration of capital punishment. See Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 874, 71 L.Ed.2d 1 (1982). That ultimate responsibility rests on the Court. Even though statistical information alone regarding the number of prosecutions in a county or judicial district may not be a reliable standard for determining that the death penalty is being arbitrarily and capriciously imposed, the court should collect and review that information which may demonstrate the need for the adoption of a procedure that would ensure the avoidance of any extraneous influences from the race, sex, or status of the defendant or victim, or the resources available to prosecute or defend a case.
An adequate structure for comparative proportionality review cannot be set forth in a dissent. It requires the formulation of standards and the implementation of procedures for collecting and comparing cases and can be accomplished only by action of the court.
Nevertheless, despite the deficiencies in the procedure and information available for a proper comparative proportionality review, 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. From the opening lines of the proof, which is discussed in detail in the main opinion, the defendant is shown to possess the characteristics most repulsive to society’s sense of decency, and most destructive to the very fabric of society. His proclamation that he was “going down hard this time” and he would “be taking some people with him,” evinces a total disrespect for life, his own and that of others, and an arrogant and callous defiance of an ordered society, made dangerous by a fatalistic eagerness for violence. The immediate and efficient procurement of the weapon shows a deliberate and deadly purpose. His quick, but calculated, use of the weapon against the stranger at the market demonstrates, in traditional legal language, a heart bent on fatal mischief.
The defendant’s deification of the weapon as Jesus Christ exposed a consummate contempt for morality and a gratuitous defilement of the sacred. His utter immorality is matched by the efficient casualness of the murders, once to obtain $111.16 and again to obtain possession of a vehicle. The deliberateness of the murder of the market clerk, his reasoned purpose for the murder, and the *273enormity of Ms contempt for life, moral values and the divine are summed up in Ms statement to the witness Johnson, “Yeah, he wouldn’t open the safe, so I told him I would introduce him to Jesus Christ.” Even the cold pages of the record show the defendant to be the embodiment of the danger against which people are the most defenseless — deliberate but meaningless violence unmitigated by even the ordinary human frailties of anger, fear, jealousy, or greed.
The valid aggravating circumstance, the defendant’s prior convictions of felomes involving violence to the person, T.C.A. § 39-13-204(i)(2), was compelling. It was shown that the defendant had been twice convicted of armed robbery. He also had been convicted of first degree murder and attempted first degree murder. These violent felomes are among the most serious in any penal code and show the defendant’s deliberately violent nature over an extended period of time. The record establishes beyond a reasonable doubt that, upon consideration of the defendant’s background and character and the nature and circumstances of the crime, the defendant is among those most deserving of the ultimate sanction.
For the reasons stated in State v. Black, I renew the objection to electrocution as the means of executing the sentence of death; but, I do not consider that grounds for reversal of the sentence.
For these reasons, I concur in the Court’s affirmance of the death penalty in tMs case.
. State v. Tran, 864 S.W.2d 465 (Tenn.1993); State v. Smith, 857 S.W.2d 1 (Tenn.1993); State v. Branam, 855 S.W.2d 563 (Tenn.1993); State v. Caughron, 855 S.W.2d 526 (Tenn.1993); State v. Bane, 853 S.W.2d 483 (Tenn.1993); State v. Middlebrooks, 840 S.W.2d 317 (Tenn.1992); State v. Hale, 840 S.W.2d 307 (Tenn.1992); State v. Harris, 839 S.W.2d 54 (Tenn.1992); State v. Evans, 838 S.W.2d 185 (Tenn.1992); State v. Brown, 836 S.W.2d 530 (Tenn.1992); State v. Black, 815 S.W.2d 166 (Tenn.1991); State v. Terry, 813 S.W.2d 420 (Tenn.1991).
. See Comment, Deadly Mistakes: Harmless Error in Capital Sentencing, 54 University of Chicago Law Review 740 (1987).
. See supra p. 262.
. The question of an appropriate universe for comparative proportionality analysis in death penalty cases is thoroughly reviewed in State v. Marshall, 130 N.J. 109, 613 A.2d 1059 (1992). While Marshall adopted a broader universe than that contained in Rule 12, some other jurisdictions have limited themselves to a review of cases resulting in first degree murder convictions. See e.g., State v. Moore, 210 Neb. 457, 316 N.W.2d 33, 44, cert. denied, 456 U.S. 984, 102 S.Ct. 2260, 72 L.Ed.2d 864 (1982); State v. Rupe, 108 Wash.2d 734, 743 P.2d 210, 229 (1987) cert. denied, 486 U.S. 1061, 108 S.Ct. 2834, 100 L.Ed.2d 934 (1988).
I also note for comparison with the cursory comparative proportionality analysis applied in this case, the proportionality review procedures employed by the New Jersey Supreme Court in Marshall and by the courts of other states. See, e.g., Dawson v. State, 581 A.d 1078, 1109-1110 (Del.1990), vacated on other grounds, - U.S. -, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992); Godfrey v. State, 248 Ga. 616, 284 S.E.2d 422, 425 (1980); State v. Cummings, 323 N.C. 181, 372 S.E.2d 541, 551-553 (1988), vacated on other grounds, 494 U.S. 1021, 110 S.Ct. 1464, 108 L.Ed.2d 602 (1990); Commonwealth v. Frey, 504 Pa. 428, 475 A.2d 700, 707-709, cert. denied, 469 U.S. 963, 105 S.Ct. 360, 83 L.Ed.2d 296 (1984); State v. Rupe, 743 P.2d at 228-230.