dissenting.
I dissent with regard to the majority’s findings that the defendant waived his right to object to the jury under Article I, section 9 of the Tennessee Constitution, that the prosecutor’s argument concerning parole was not prejudicial error, that the use of the invalid aggravating circumstance of felony murder as an aggravator was harmless error, and that death in this case is not a disproportionate punishment.
CHANGE OF VENUE
The United States Constitution and the Tennessee Constitution guarantee to every person charged with the commission of a crime the right to a trial in the county where the crime was committed by an impartial jury selected from the citizens of that county. U.S. Const, amend. VI; Tenn. Const, art. I, §§ 6, 9. The venue for the trial of a criminal case can be changed only upon the application of the accused or upon the court’s own motion with the consent of the accused. Tenn.R.Crim.P. 21(a). Change of venue can be accomplished in Tennessee only by following the statutory procedure. A defendant in a criminal case is entitled to a change of venue if for “causes, then existing, he cannot have a fair and impartial trial in the county” where the case is pending. T.C.A. § 20-4-208 (1980). If, upon the application of the accused, the court finds that the accused cannot have a fair and impartial trial in the county where the charge is pending, T.C.A. § 20-4-206 (1980) requires that the case be removed “to the nearest adjoining county free from the like exception.”
This statutory procedure was not followed in this case. The trial court granted the defendant’s application for a change of venue upon the necessary finding that the defendant could not have a fair and impartial trial in Hamilton County. The court, however, did not grant a change of venue. Instead, over the objection of the defendant, the court moved the proceedings to Sumner County from whence a jury was selected and transported back to Hamilton County, where the trial was held. There was no showing that Sumner County was the “nearest adjoining county” in which an impartial jury could be impanelled. In fact, Sumner County is five counties removed from Hamilton County. Consequently, despite the finding that the defendant was entitled to a change of venue, he was not in fact granted a change of venue. Instead of granting a change of venue, the trial court gave the defendant a change of venire, a procedure unknown to Tennessee, but permitted in some states by statute. Odle v. Superior Court of Contra Costa County, 32 Cal.3d 932, 187 Cal.Rptr. 455, 654 P.2d 225, 242 (1982) (Mosk, J., dissenting).
I do not agree with the majority’s recommendation that the procedure followed in this case be authorized by statute. In my opinion, the procedure provided by present law is adequate and should be followed. A defendant has the right to a change of venue only when the state cannot afford him an impartial trial guaranteed by the constitution. If the trial must be moved in order to have a fair and impartial trial, the requirement that it be moved to the nearest county in which a fair and impartial trial can be had is entirely reasonable. It accommodates the accused’s right to have the trial as close to the scene of the crime as possible, and it accommodates the public’s interest in conserving time and expense incident to the trial.
I would find the unauthorized departure from the plain provisions of the statute to be reversible error.
ARGUMENT CONCERNING PAROLE
The majority acknowledges that any reference to parole possibilities during argument, even indirect references, are improper. However, it characterizes the prosecution’s argument as perhaps “hinting at the idea that a life sentence carries with it the possibility that defendant will rape and murder *741again,” and concludes the argument was not prejudicial error. Supra at 733.
Even though parole is not specifically mentioned in the prosecutor’s argument, the import of the argument is dramatically clear— unless the defendant is sentenced to death he will be released from prison and rape again. During the prosecutor’s initial closing statement, he rhetorically asked: ‘What do you do with him? He’s been in the penitentiary. He got a five year sentence in ’84 and he served eighteen months. What do you do with him? What’s left? ... And you heard the psychologist say that if he’s out he’ll do it again.” Dining rebuttal, the prosecutor remarked, “[The defendant’s lawyer] says, ‘Prison is hell. Send him there.’ Yeah, ’84 they sent him there on a five year sentence and he served 18 months and got out and raped again. Sure, send him there.” Immediately after mentioning the defendant’s previous release on parole, the prosecutor quoted Dr. Engum as saying that the defendant might “do it again” if released from prison. This remark was pointless except as an attempt to tell the jury that the possibility of release was a real danger in this case. Moreover, the prosecutor’s mention of the defendant’s previous parole in response to defense counsel’s “prison is hell” argument certainly suggests that death would be the only appropriate sentence given the possibility of parole.
The argument was a comment upon the possibility of parole and was reversible error. See Smith v. State, 527 S.W.2d 737, 739 (Tenn.1975).
INVALID AGGRAVATING CIRCUMSTANCE
This Court concluded in State v. Middlebrooks, 840 S.W.2d 317, 346 (Tenn.1992), cert. dismissed, — U.S. -, 114 S.Ct. 651, 126 L.Ed.2d 555 (1993), that when a defendant is convicted of felony murder, the State’s use as an aggravating circumstance at the sentencing hearing of the fact that the murder occurred during the commission of a felony, violates the state and federal constitutions because the aggravator is simply a duplication of the crime itself, and therefore does not sufficiently narrow the class of death-eligible defendants. The sentence in Middle-brooks was reversed and the case remanded for resentencing because the Court was unable to conclude beyond a reasonable doubt that the use of the invalid felony murder aggravating circumstance was harmless error, even though the Court found that the remaining aggravating circumstance, that the murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of the mind,1 was amply supported by the evidence. Id. at 347.
Middlebrooks was a significant decision in the evaluation of constitutional principles applicable to the sentence of death. It was decided against a background of decisions by this Court and the United States Supreme Court regarding harmless error in capital sentencing.
Prior to 1967, the federal courts assumed that harmless error analysis did not apply to federal constitutional violations, so that when a federal constitutional error occurred, reversal was the automatic remedy. James C. Scoville, Comment, Deadly Mistakes: Harmless Error in Capital Sentencing, 54 U.Chi. L.Rev. 740, 741-42 (1987) (hereinafter “Sco-ville, Deadly Mistakes”). Tennessee courts applied the same rule of automatic reversal to state constitutional errors as well. See e.g. Dykes v. State, 201 Tenn. 65, 296 S.W.2d 861, 862 (1956). In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the U.S. Supreme Court approved the application of the harmless error test to federal constitutional errors in state criminal trials, but held that, in order to deem an error harmless, the reviewing court must be persuaded beyond a reasonable doubt, that the error complained of did not contribute to the verdict obtained. Id. at 24, 87 S.Ct. at 828. However, in Chapman the Court acknowledged that there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error. Id. at 23, 87 S.Ct. at 827 (citing e.g., Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (right to counsel); Turney v. State of Ohio, 273 U.S. 510, 47 *742S.Ct. 437, 71 L.Ed. 749 (1927) (right to impartial judge)).
The United States Supreme Court held in Clemons v. Mississippi 494 U.S. 738, 752, 110 S.Ct. 1441, 1450, 108 L.Ed.2d 725 (1990), that the federal constitution is not violated by an appellate court’s harmless error analysis when errors occur in a capital sentencing hearing, even when the error involved is the unconstitutional submission of an aggravating circumstance to the jury. The question under Chapman, in that context, is not whether the legally admitted evidence was sufficient to support the death sentence, but rather, whether the State has proven “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Satterwhite v. Texas, 486 U.S. 249, 258-59, 108 S.Ct. 1792, 1798-99, 100 L.Ed.2d 284 (1988) (quoting Chapman, 386 U.S. at 24, 87 S.Ct. at 828); see also State v. Cauthem, 778 S.W.2d 39, 47 n. 1 (1989), cert. denied, 495 U.S. 904, 110 S.Ct. 1922, 109 L.Ed.2d 286 (1990).
Error not rising to the level of a constitutional rights deprivation are judged for harm or prejudice under Rule 52(a) of the Tennessee Rules of Criminal Procedure and Rule 36(b) of the Tennessee Rules of Appellate Procedure. In several important ways, the test for harmlessness of constitutional errors differs from that for nonconstitutional errors. First, once a constitutional error is found, the burden shifts to the state to prove that it is harmless; the burden does not shift to the state for the nonconstitutional errors. Second, the reviewing court must be persuaded “beyond a reasonable doubt” that the error did not affect the trial outcome in order to deem the error harmless — a stricter standard of persuasion than for nonconstitutional error. Finally, a most significant difference is that some constitutional errors never can be deemed harmless, whereas any nonconsti-tutional error may be considered harmless in a particular ease. Scoville, Deadly Mistakes, 54 U.Chi.L.Rev. at 744.
Later, in Sochor v. Florida, — U.S. -, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992), the Supreme Court concluded that an appellate court cannot fulfill its obligations of meaningful review by simply reciting the formula for harmless error. Justice O’Connor, concurring, observed that:
In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), we held that before a federal constitutional error can be held harmless, the reviewing court must find “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id. at 24, 87 S.Ct. at 828. This is a justifiably high standard, and while it can be met without uttering the magic words “harmless error,” see ante [— U.S. at -, 112 S.Ct.] at 2122-2123, the reverse is not true. An appellate court’s bald assertion that an error of constitutional dimensions was “harmless” cannot substitute for a principled explanation of how the court reached that conclusion.
Id., — U.S. at -, 112 S.Ct. at 2123 (O’Connor, J., concurring).
Tennessee courts have applied the Chapman constitutional harmless error analysis to both state and federal constitutional errors. See e.g. State v. Middlebrooks, 840 S.W.2d at 347; State v. Cook, 816 S.W.2d 322, 326 (Tenn.1991). The invalidation of the aggravating circumstance in Middlebrooks was clearly constitutionally based, and therefore any Middlebrooks errors are subject to constitutional harmless error analysis. While not every error occurring in a capital sentencing hearing is of constitutional dimension, the line between constitutional and non-constitutional error is often blurred due to the Eighth Amendment requirement for a heightened need for reliability. See State v. Terry, 813 S.W.2d 420 (Tenn.1991) (quoting Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (plurality opinion), and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality opinion)). When evidence is introduced into the sentencing calculation that potentially undermines the Eighth Amendment reliability requirement, constitutional harmless error analysis should be employed. State v. Terry, 813 S.W.2d at 425 (because evidence of the invalid aggravating circumstance was introduced, and the defendant introduced strong mitigation proof and only one valid aggravator remained, this Court could not conclude that the error was *743harmless beyond a reasonable doubt); see also State v. Bobo, 727 S.W.2d 945, 956 (Tenn.) cert. denied, 484 U.S. 872, 108 S.Ct. 204, 98 L.Ed.2d 155 (1987) (evidence of an invalid aggravator was introduced; however, because there was little evidence in mitigation, and two other valid aggravators were clearly established, the error was found harmless beyond a reasonable doubt); State v. Cone, 665 S.W.2d 87, 95 (Tenn.) cert. denied, 467 U.S. 1210, 104 S.Ct. 2400, 81 L.Ed.2d 357 (1984) (jury heard evidence on an aggravator held invalid by the Court, but the error was harmless beyond a reasonable doubt because at least three other aggrava-tors were clearly established); State v. Campbell, 664 S.W.2d 281, 284 (Tenn.) cert. denied, 469 U.S. 920, 105 S.Ct. 302, 83 L.Ed.2d 236 (1984) (jury heard evidence of non-violent prior felony convictions, but the Court held such error was harmless beyond a reasonable doubt because there was no mitigating evidence and two other valid aggrava-tors); compare State v. Williams, 690 S.W.2d 517, 533 (Tenn.1985) (probability of prejudice resulting from the consideration of the improperly admitted evidence required reversal); State v. Johnson, 661 S.W.2d 854, 862 (Tenn.1983) (consideration of the improperly admitted evidence requires reversal because of the probability of prejudice); State v. Adkins, 653 S.W.2d 708, 716 (Tenn.1983) (the probability of prejudice from the wrongfully allowed evidence is so great reversal is required).
In State v. Howell, 868 S.W.2d 238 (Tenn.1993), use of felony murder as an aggravating circumstance was found to be invalid pursuant to the Middlebrooks decision. However, even though the Court in Middle-brooks was unable to conclude that the use of the invalid aggravating circumstance was harmless error, 840 S.W.2d at 347, the Court began in Howell a harmless error analysis based on an examination of the number and weight of remaining aggravating circumstances, the jury instructions, the prosecutor’s argument, the evidence admitted to establish the invalid aggravator, and the nature and quality of mitigating evidence. The Court’s rationale in Howell was:
In order to guarantee the precision that individualized sentencing considerations demand and provide a principled explanation for our conclusion in each case, it is important, when conducting harmless error review, to completely examine the record for the presence of [these] factors which potentially influence the sentence ultimately imposed.
State v. Howell, 868 S.W.2d at 260-61.
My concurrence in Howell was based on the majority’s analysis of these factors, upon which it concluded that beyond a reasonable doubt, charging the invalid aggravating circumstance did not affect the jury’s decision to impose the sentence of death, and also on the fact that no evidence was admitted in support of the invalid aggravating circumstance that was not admissible to show the circumstances of the crime. Id. at 732-733 (Reid, C.J., concurring).
In the case before the Court, no evidence was admitted in support of the invalid circumstance, but the record does not, in my view, support the conclusion that the State has shown beyond a reasonable doubt, the jury was not influenced by the aggravating circumstance. Even under the Howell analysis, the admission of the invalid circumstance was not harmless error. The State relied on two aggravating circumstances to support the death penalty — previous convictions for aggravated rape, and the fact that the murder occurred during the commission of a violent felony. The jury was instructed to decide whether the aggravating circumstances were supported by the evidence, and whether they outweighed the mitigating evidence. At the sentencing hearing, evidence of the aggravating circumstances was offered, which included substantial emphasis on the circumstances of the crime itself. Evidence of mitigating circumstances was offered from the defendant, his family, coworkers, and friends as to his character, work background and attitude, and family history. He also submitted the testimony of a clinical psychologist who had diagnosed the defendant as having intermittent explosive disorder. The State’s closing argument emphasized the felony murder aggravating circumstance at least as much as the aggrava*744ting circumstance of prior convictions. The most dramatic evidence of the content of the jury’s instruction and deliberation, and the weight of the remaining aggravator, was their initial return of the juror death penalty verdict form. This form cited four “aggravating circumstances” concerning the murder itself, but no aggravating circumstances concerning the defendant’s record of convictions. The death penalty verdict form cited the four aggravating circumstances as follows:
1. First-degree murder of Karen E. Pulley
2. Unfeeling brutality of the first-degree murder
3. Lack of remorse
h. Lack of respect of human rights
The trial judge sent the jury out to deliberate a second time, and only then did it insert the statutory language supporting the prior conviction aggravating circumstance onto the death penalty verdict form. These circumstances cast grave doubt on the jury’s decision.
Our narrow task here is to determine whether the invalid aggravating circumstance of felony murder influenced the jury to impose a sentence of death. There is at the very least a reasonable possibility that the injection of the invalid felony murder aggravating circumstance into the weighing process by the jury contributed to the death sentence, and I cannot conclude that beyond a reasonable doubt the error did not contribute to the verdict. See Chapman, 386 U.S. at 24, 87 S.Ct. at 828.
Based on the same analysis, I would find that the evidence does not support the verdict that beyond a reasonable doubt the aggravating circumstance does not outweigh the mitigating circumstances. See State v. Smith, 857 S.W.2d 1, 21 (Tenn.) cert. denied, - U.S. -, 114 S.Ct. 561, 126 L.Ed.2d 461 (1993).
COMPARATIVE PROPORTIONALITY REVIEW
The majority summarily states that the sentence of death is “neither excessive nor disproportionate.” Supra at 739. I disagree with the majority’s conclusion for two reasons. The first is that no meaningful proportionality review was done in this case. The comparative proportionality review mandated by statute requires more of this Court than its general impressions of what sentences have been imposed in similar cases. See State v. Howell, 868 S.W.2d 238, 262 (Tenn.1993) (Reid, C.J., concurring). This is the type of case that demonstrates the need for a definite and precise procedure that includes objective criteria for determining whether the sentence of death in a particular case is excessive or disproportionate in comparison to the penalties imposed in similar cases. A procedure whereby the conduct and character of criminal offenders can be categorized according to generally accepted levels of moral turpitude would provide a structure and standards needed by this Court, trial courts, defense counsel, and prosecutors to avoid the arbitrariness inherent in the present practice. State v. Harris, 839 S.W.2d 54, 84-85 (Tenn.1992), cert. denied, — U.S. -, 113 S.Ct. 1368, 122 L.Ed.2d 746 (1993) (Reid, C.J., dissenting).
The second reason for dissenting on this issue is that the evidence is not sufficient to support a finding that the defendant is among the worst of the bad. The circumstances of the offense in this case are egregious and could qualify the defendant for the ultimate sanction if only the criminal act is considered. However, T.C.A. § 39-13-206(c)(1)(D) requires that reviewing courts consider both the nature of the crime and the character of the offender. The evidence regarding the character of the defendant is not conclusive. Expert evidence shows that the defendant suffered from substantial mental and emotional problems. The other evidence shows that he lived a normal and productive life, except for the criminal episodes. In the absence of objective criteria whereby the defendant’s conduct and character can be adjudged dispassionately, I cannot say that the penalty of death is not disproportionate to the penalty imposed in similar cases in which the death penalty was rejected. See State v. Cazes, 875 S.W.2d 253, 270 (Tenn.1994), (Reid, C.J., concurring and dissenting); State v. Middlebrooks, 840 S.W.2d 317, 354-55 *745(Teim.1992) (Reid, C.J., concurring and dissenting).
. Tenn.Code Ann. § 39-2-203(i)(5) (1982).