dissenting.
I dissent from both the majority’s affir-mance of the conviction and its remand for re-senteneing. I would reverse the conviction. In the alternative, I would hold that the death penalty is foreclosed as punishment in this case.
First, for the reasons stated in my dissent in State v. Nichols, 877 S.W.2d 722, 740 (Tenn.1994), cert. denied, — U.S. —, 115 S.Ct. 909, 130 L.Ed.2d 791 (1995), I would hold that the conviction must be reversed because of the procedure used by the trial court in response to the defendant’s motion for a change of venue. As in Nichols, rather than granting the motion in accord with the procedure authorized by statute, Tenn.Code Ann. § 20-4-206 (1994), the court moved jury selection to another county and, after selection was completed, transported the jury back to the county of the offense where the rest of the trial was held. This was not a change of venue but a change of venire, a procedure unknown to Tennessee. The actions of the trial court were an “unauthorized departure from the plain provisions of the statute” and reversible error. Nichols, 877 S.W.2d at 740. Furthermore, I do not find that the defendant’s failure to object to the procedure used by the trial court insulates such extralegal procedures from this Court’s review. See Tenn.RApp.P. 13(b); Tenn. R.Crim.P. 52(b).
The issue is trial by jury. Since the Mag-na Carta was sealed by the King of England in 1215, the dependency of democracy and freedom upon the trial by jury has been recognized by poets, statesmen, judges, and others in eloquent and passionate terms. Perhaps the simple words of Judge Alexander Hanson of Maryland state the truth as well as any.
The institution of the trial by jury has been sanctified by the experience of ages. It has been recognized by the constitution of every state in the Union. It is deemed the birthright of Americans; and it is deemed, that liberty cannot subsist without it....
1 J. Kendall Few, In Defense of Trial by Jury, 210 (1993) (quote from Judge Alexander Hanson in Address on the Proposed Plan of a Federal Government, 1788 as quoted by Bernard Schwartz in 3 The Roots of the Bill of Rights: An Illustrated Source Book of American Freedom, 540-542 (Chelsea House Publishers 1980)).
If the right to trial by jury should ever be lost, as tragically it may, it will not be accomplished directly by constitutional convention and a vote of the people; it will occur, not secretly but silently, without notice or public debate. Judges, with the best of intentions and with laudable purpose, will allow this bedrock of liberty to be dismantled piece*909meal, and note its passing with the inglorious “harmless error.” Preservation of trial by jury, in all its profoundness and simplicity, is the essential duty of this Court.
In this case, the Court has failed that duty, by allowing a seemingly unnecessary part of trial by jury to be sacrificed for the sake of economy and convenience. This case will become precedent and the next encroachment has been made easier.
For this reason, I would reverse the defendant’s conviction and remand for a new trial.
Second, I reaffirm my opinion that, at least in part, the aggravating circumstance in Tenn.Code Ann. § 39 — 2404(i)(5) (Supp.1977), prior to the amendment in 1989, see Tenn. Code Ann. § 39 — 13—204(i)(5), the “murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind,” is unconstitutionally vague as defined by this Court and as instructed to juries in this state. See, e.g., State v. Cazes, 875 S.W.2d 253, 272 (Tenn.1994) (Reid, C.J., concurring and dissenting); State v. Van Tran, 864 S.W.2d 465, 487-489 (Tenn.1993) (Daughtrey, J., dissenting), cert. denied, — U.S. —, 114 S.Ct. 1577, 128 L.Ed.2d 220 (1994); State v. Harris, 839 S.W.2d 54, 83-84 (Tenn.1992) (Reid, C.J., dissenting), cert. denied, — U.S. —, 113 S.Ct. 1368, 122 L.Ed.2d 746 (1993); State v. Black, 815 S.W.2d 166, 195-196 (Tenn.1991) (Reid, C.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 constitutional 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 post-conviction relief,1 Justice Stevens stated:
On occasion it is appropriate to restate the settled proposition that this Court’s denial of certiorari does not constitute a ruling on the merits. United States v. Carver, 260 U.S. 482, 490 [43 S.Ct. 181, 182, 67 L.Ed. 361] (1923). See also Singleton v. Commissioner, 439 U.S. 940, 942-946 [99 S.Ct. 335, 337-339, 58 L.Ed.2d 335] (1978) (opinion of Stevens, J., respecting the denial of the petition for writ of certio-rari). 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’”).
Id.
I would hold this aggravating circumstance to be invalid.
Even were I convinced of the constitutionality of this aggravating circumstance, in the present case I find the evidence insufficient to support a finding that the murder was “especially heinous, atrocious, or cruel.” It is the State’s burden to prove beyond a reasonable doubt the aggravating circum*910stances upon which it relies before a defendant may be sentenced to death. See Tenn. Code Ann. § 39-2404(g) [now Tenn.Code Ann. § 39-13-204(g)(l)(A) ]. To prove the aggravating circumstance in § 39-2404(i)(5), the State must present evidence that the murder involved torture or depravity of mind. To do this, there must be proof of the willful infliction of severe physical or mental pain upon the victim while he or she was alive and conscious, see State v. Williams, 690 S.W.2d 517, 529 (Tenn.1985), or of the infliction of gratuitous and senseless violence on a helpless victim. See State v. Van Tran, 864 S.W.2d at 479-480. Failing this, the proof is insufficient to support this aggravating circumstance.
The record in this case shows that, almost immediately after the defendant attempted to coerce the victim into having sexual relations with him, the victim disappeared. Approximately a month and a half later the victim’s body was found buried in a shallow grave near the house where the defendant lived. There was no sign of trauma to the body and no physical evidence of strangulation. The pathologist who had examined the body admitted that he had found no obvious cause of death. Nonetheless, he theorized that suffocation or asphyxiation was the cause of death most consistent with the physical findings, which included evidence of hemorrhaging in the larynx. The pathologist admitted that he did not know whether the victim had been buried alive and testified that the absence of dirt in her mouth and lungs indicated that she had not been alive when buried. He also opined that dirt might not have entered the oral cavity if a denim jacket, like that found with the victim, had been placed over her face before she was buried.
From this, the majority finds the evidence sufficient to support the heinous, atrocious or cruel aggravating circumstance because there is proof that the victim suffocated after being buried alive. However, this conclusion is based only on speculation. The actual evidence establishes nothing more than that the cause of death cannot be determined. The circumstances of the victim’s death, such as whether she was conscious when buried and whether the defendant willfully placed her alive in the grave, are unknown. Furthermore, the critical inquiry in determining depravity is the murderer’s state of mind at the time of the killing, State v. Van Tran, 864 S.W.2d at 479; yet there is not one scintilla of evidence in this record regarding the defendant’s mental state at the time the victim was killed. As a result, the proof falls far short of that necessary to establish beyond a reasonable doubt that the murder involved torture or depravity of mind.
With the invalidation of the aggravating circumstance in Tenn.Code Ann. § 39-2404(i)(5), no aggravating circumstance remains upon which a sentence of death may be based. Under the facts of this case, I would therefore modify the sentence to life imprisonment pursuant to Tenn.Code Ann. § 39 — 13—206(d)(2), as suggested by the Attorney General in oral argument.
In this regard, while I concur with the majority that the State’s concession that the defendant should be sentenced to life is not binding on this Court, I would emphasize that the Attorney General has concluded that life imprisonment is the proportionate punishment for this defendant. This recommendation is extraordinary and, to my knowledge, unprecedented in a capital case. Such a concession, while not dispositive of the issue, should carry great weight with this Court.
In light of the entire record in this cause, I would find that, even were the defendant properly convicted of the first degree murder of Roxanne Woodson, the only permissible punishment under the law is life imprisonment.
. Barber v. State, 889 S.W.2d 185 (Tenn.1994).