dissenting.
I would reverse and remand for a new trial on the following bases: that the jury instruction regarding the defendant’s refusal to give additional handwriting exemplars violated his privilege against self-incrimination, that the court erred in admitting evidence of other crimes committed by the defendant, and that the evidence does not support the finding of the aggravating circumstance defined in T.C.A. § 39-2-203(i)(5) (1982). I would also hold that the court failed to comply with the constitutional and statutory requirement that it establish objective criteria necessary for the performance of a meaningful proportionality review.
SELF-INCRIMINATION
The majority holds that the defendant’s constitutional right against self-incrimination was not violated by the trial court’s admitting evidence of his refusal to supply additional handwriting exemplars in defiance of a court order and by instructing the jury that it may draw an adverse inference from the refusal.
The law under the federal constitution supports the holding of the majority. See South Dakota v. Nevill, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983); United States v. Euge, 444 U.S. 707, 716, 100 S.Ct. 874, 881, 63 L.Ed.2d 141 (1980); Gilbert v. California, 388 U.S. 263, 263, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967); Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). This interpretation of the federal constitution, however, does not foreclose examination of this issue under the Tennessee Constitution since our state constitution may afford greater protections for criminal defendants than those found in the federal constitution. Doe v. Norris, 751 S.W.2d 834, 838 (Tenn.1988); Miller v. State, 584 S.W.2d 758, 760 (Tenn.1979); Mathis v. State, 566 S.W.2d 285, 288 (Tenn.Crim.App.1977). Nor does the fact that the defendant has challenged this evidence only under the Fifth Amendment foreclose review under Tennessee’s equivalent constitutional provision, because plain error affecting “the substantial rights of the accused” may be noticed at any time “where necessary to do substantial justice.” State v. Ogle, 666 S.W.2d 58, 60 (Tenn.1984); T.R.Cr.P. 52(b).
In fact, the defendant’s failure to cite Tennessee’s constitutional grant of the privilege against self-incrimination is understandable in light of this Court’s prior statement that, despite differences in terminology, Tennessee’s prohibition against self-incrimination is no broader nor different than that in the Fifth Amendment. See Delk v. State, 590 S.W.2d 435, 440 (Tenn.1979). Such declarations, however, do not bind this Court to follow every interpretation or limitation placed by the federal courts upon similar provisions of the federal constitution. See, e.g., State v. Jacumin, 778 S.W.2d 430 (Tenn.1989). The interpretation of the rights afforded by our state constitution is a prerogative of the courts of this State unfettered by federal standards except to the extent that they establish minimum protection. See California v. Greenwood, 486 U.S. 35, 50, 108 S.Ct. 1625, 1630, 100 L.Ed.2d 30 (1988); California v. Ramos, 463 U.S. 992, 1013-1014, 103 S.Ct. 3446, 3460, 77 L.Ed.2d 1171 *79(1983); Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570 (1975).
Initially, the difference in language between the Fifth Amendment and Article I, § 9 should be noted. The federal constitution provides that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const, amend. V. The Tennessee Constitution reads, “That in all criminal prosecutions, the accused ... shall not be compelled to give evidence against himself.” It is of interest that the language used in Article I, § 9 antedates that of the Fifth Amendment and is originally found in Section 8 of Virginia’s Bill of Rights adopted in June 1776, from which it was carried over into the constitutions of North Carolina and Pennsylvania, models for the Tennessee Constitution of 1796. See Laska, “A Legal and Constitutional History of Tennessee, 1772-1972,” 6 Mem.St.L.Rev. 563, 582 n. 89 (1976); Pittman, “The Colonial and Constitutional History of the Privilege against Self-Incrimination in America,” 21 Va. L.Rev. 763, 787-788 (1935). The origin of Tennessee’s constitutional privilege against self-incrimination is thus arguably older than and independent of the language used in the federal constitution.
While the word “evidence” found in the Tennessee Constitution and the word “witness” found in the federal constitution may in some contexts be considered synonymous, see Delk v. State, 590 S.W.2d at 440, “evidence” generally comprehends not only the statements of witnesses but also whatever is submitted to the judge or jury to elucidate an issue, to prove a case, or to establish or disprove a fact in issue. People v. Leonard, 207 Cal.App.2d 409, 24 Cal.Rptr. 597, 600 (1962); County Treasurer v. First Nat’l Bank of Lake Forest, 87 Ill.App.2d 133, 230 N.E.2d 571, 574 (1967); Commonwealth v. Myers, 393 Pa. 224, 144 A.2d 367, 370 (1958); Crooks v. Harmon, 29 Utah 304, 81 P. 95 (1905). However, whether this semantic distinction between the state and federal constitutions is significant need not be resolved at this time, because the meaning of the privilege against self-incrimination is found in the history and purpose of the privilege. As Justice Fortas wrote:
This great privilege is not merely a shield for the accused. It is also a prescription of technique designed to guide the State’s investigation. History teaches us that self-accusation is an unreliable instrument of detection, apt to inculpate the innocent-but-weak and to enable the guilty to escape. But this is not the end of the story. The privilege historically goes to the roots of democratic and religious principle. It prevents the debasement of the citizen which would result from compelling him to “accuse” himself before the power of the state. The roots of the privilege are deeper than the rack and the screw used to extort confessions. They go to the nature of a free man and to his relationship to the state.
United States v. Wade, 388 U.S. 218, 261, 87 S.Ct. 1926, 1950, 18 L.Ed.2d 1149 (1967) (Fortas, J., concurring in part and dissenting in part). “It is only by prohibiting the Government from compelling an individual to cooperate affirmatively in securing incriminating evidence which could not be obtained without his active assistance, that ‘the inviolability of the human personality’ is assured.” United States v. Dionisio, 410 U.S. 19, 34-35, 93 S.Ct. 781, 782-83, 35 L.Ed.2d 67 (1973) (Marshall, J., dissenting). It is this coerced expression of will that is unreliable as evidence and destructive of personal integrity.
The issue is not the same as when a defendant is compelled to produce physical evidence. The courts of this state have generally agreed with the holding of Schmerber v. California, 384 U.S. at 757, 86 S.Ct. at 1826, that compelling a defendant to provide physical or real evidence does not violate the privilege against self-incrimination. See, e.g., Biggers v. State, 411 S.W.2d 696, 698 (Tenn.1967) (repetition of words); State v. McAlister, 751 S.W.2d 436, 440 (Tenn.Crim.App.1987) (samples of hair and bodily fluids); State v. Mabon, 648 S.W.2d 271, 275 (Tenn.Crim.App.1982) (taking x-rays); State v. Henderson, 623 S.W.2d 638, 641 (Tenn.Crim.App.1981) (display of distinctive tattoo); Trail v. State, 526 S.W.2d 127, 129 (Tenn.Crim.App.1974) *80(field sobriety tests); Black v. State, 479 S.W.2d 656, 658 (Tenn.Crim.App.1972) (display of physical characteristics before jury); Powell v. State, 489 S.W.2d 538, 540 (Tenn.Crim.App.1972) (repeating words for identification). The principles expressed in Schmerber, however, are not necessarily those incident to the privilege under our constitution.
Explaining why real or physical evidence lies outside the protection of the right against self-incrimination, the majority in Schmerber, which involved only the taking of a blood sample, reasoned that a defendant’s “testimonial capacities [are] in no way implicated; indeed his ‘participation, except as a donor, [is] irrelevant to the results of the test, which depend on chemical analysis and on that alone.” 384 U.S. at 765, 86 S.Ct. at 1832-1833 (footnote omitted) (emphasis added). In the case of handwriting, however, the accused’s participation is not irrelevant to the results of the test. It is essential, for the accused is “compelled to give to the State evidence against himself which could be secured only through his affirmative cooperation.” United States v. Dionisio, 410 U.S. at 36, 93 S.Ct. at 783 (Marshall, J., dissenting). There is a clear distinction here between the passive submission required of a defendant in other cases, and the intrusive violation of the will of the accused involved in the giving of a handwriting exemplar. See id., 410 U.S. at 37, 93 S.Ct. at 784 (Marshall, J., dissenting).
That the compulsion of handwriting exemplars entails something more than the submission involved in taking physical evidence like blood and fingerprints becomes apparent when the nature and value of handwriting examples as evidence are analyzed. The position that the compulsion of real or physical evidence is exempt from the constraints of the privilege is based upon the premise that the privilege protects only evidence of a testimonial or communicative nature. See Schmerber, 384 U.S. at 763-764, 86 S.Ct. at 1832; State v. Mabon, 648 S.W.2d at 275. Even assuming, without necessarily accepting, the validity of this position, see Schmerber, 384 U.S. at 774-778, 86 S.Ct. at 1837-1839 (Black, J., dissenting), the handwriting exemplars fall within the privilege because they are testimonial in nature.
While the lines drawn by a writer have no testimonial content, the actual making of the sample contains an element of testimony. Implicit in the act is the statement, “This is my normal handwriting.” United States v. Izzi, 427 F.2d 293, 295 n. 1 (2d Cir.1970); Weintraub, Voice Identification, Writing Exemplars and the Privilege Against Self-Incrimination, 10 Vand. L.Rev. 485, 496-497 (1957); Comment, 40 U.M.K.C.L.Rev. 51, 56 (1971). As a result, the veracity of the defendant, the heart of testimonial evidence, is involved in this sort of evidence while it is not involved in the so-called “real” evidence admissible under Schmerber and the Tennessee decisions. It is not within the accused’s power to change his fingerprints, hair, breath or blood. But a handwriting exemplar requires the truthful participation of the accused if it is to possess any evidentiary value. The privilege against self-incrimination resulted from attempts to extract from a person’s lips a true statement concerning his guilt and thereby to supply the needed proof against himself. The privilege should, therefore, apply to any compelled conduct the accused can control as a means of expressing ideas inherent in which is the accused’s veracity. Weintraub, supra, at 499, 507; 40 U.M.K.C.L.Rev., supra, at 56.
For these reasons I would hold that the court’s compelling the defendant to provide a handwriting exemplar violated his privilege against self-incrimination under Article I, § 9 of the Tennessee Constitution. It is improper for the State to elicit testimony for which an accused has claimed his privilege against self-incrimination or to allow any adverse inference to be drawn from his assertion of this privilege. See Harrison v. State, 532 S.W.2d 566, 571 (Tenn.Crim.App.1975); cf. State v. Hale, 672 S.W.2d 201 (Tenn.1984); Staples v. State, 89 Tenn. 231, 14 S.W. 603 (1890). Therefore, evidence of the defendant’s refusal to give a handwriting sample should not have been admitted, and the trial court should not *81have instructed the jury as to any inference that could have been drawn therefrom.
EVIDENCE OF OTHER CRIMES
I would hold that the admission of evidence of other crimes committed by the defendant was not harmless error. Over defendant’s objection, co-defendant Joseph DeModica testified that earlier during the week of the murders, while the defendant, DeModica, Silvers, and Pelley were staying at the residence of Tracey Clark in Knoxville, the defendant and DeModica stole jewelry and two credit cards from the home of Clark’s elderly neighbor and pawned some of the stolen jewelry. Tracey Clark was also permitted to testify that the defendant and his companions had taken some jewelry from her neighbor’s house. DeModica further testified that when he and his comrades left Tim Farmer’s apartment the day of the murders they took two coats, a tapestry, and a radio and attempted to sell the coats to Johnnie Schultz in Dandridge, Tennessee. Farmer himself testified that after the defendant and his companions had left, Farmer discovered that a fur coat had been stolen and an AM/FM cassette player was missing from his residence.
The law recognizes that evidence of another crime committed by the defendant is of a highly prejudicial nature, McLean v. State, 527 S.W.2d 76, 84 (Tenn.1975), and that evidence of other crimes should be admitted at trial only when the fact of the crime is relevant to some other matter actually at issue in the case (for example, intent, motive, identity, absence of mistake, etc.) and the probative value of the evidence is not outweighed by its prejudicial effect. State v. Carter, 714 S.W.2d 241, 245-246 (Tenn.1986); State v. Parton, 694 S.W.2d 299 (Tenn.1985); Bunch v. State, 605 S.W.2d 227 (Tenn.1980). The State argued, and the trial judge found, that evidence of these crimes was relevant to corroborate the testimony of accomplice De-Modica to show the defendant’s presence in the area and his association with DeModica at the time of the murders. The record, however, reveals that proof regarding the thefts from Clark’s neighbor and Tim Farmer was unnecessary for this purpose. The testimony of Farmer and Clark already established that the defendant and DeModi-ca were companions at this time and were in the Knoxville-Gatlinburg area. The testimony of the pawn broker from Knoxville and of Johnnie Schultz placing the two men together in the area required no reference to the alleged thefts. In effect, the defendant was on trial for robbery as well as murder; the evidence indicated a character disposed to take the property of others.
The majority Opinion acknowledges that evidence of other crimes “was unnecessary” but excuses the admission of that evidence on several grounds, none of which are sufficient. The majority first states that “such proof was not extensive or emphasized.” To my knowledge, however, the well-established rule regulating the admission of evidence of other independent crimes has not been modified to provide that only extensive or emphasized evidence that the defendant has committed other crimes is not admissible. The majority further excuses the erroneous admission of the evidence with the conclusory statement that the admission was clearly harmless beyond a reasonable doubt.
That evidence of other crimes is prejudicial is axiomatic. The Court in Bunch v. State, 605 S.W.2d 227 (Tenn.1980), after stating the rule that evidence that the defendant has committed other crimes is usually not admissible because it is irrelevant, recognized the prejudicial nature of such evidence with this observation:
Moreover, because of the obvious prejudice of such evidence to the defendant its admission often constitutes prejudicial error, requiring the reversal of a conviction.
605 S.W.2d at 229. The highly prejudicial nature of such evidence is implicit in the remaining portion of the rule, which provides that even if such evidence is relevant to some matter actually in issue, it is admissible only if its probative value outweighs its prejudicial effect upon the defendant. Id.
*82The majority Opinion cites no authority for the proposition that the “Court must assume” that the jury disregarded the prejudicial evidence in assessing the death penalty. In State v. Lawson, 695 S.W.2d 202 (Tenn.Cr.App.1985), relied upon by the majority, the Court of Criminal Appeals affirmed the defendant's conviction of receiving stolen property. The Court of Criminal Appeals in that case found that the statement made by the Assistant District Attorney General, though improper, did not affect the judgment of guilty. A different issue is presented in the case before the Court. Nor does State v. Carter, 714 S.W.2d 241 (Tenn.1986), cited by the majority, support its conclusion that the error was harmless. Although evidence in that case of the defendant’s prior criminal acts was improperly admitted for the purpose of identification, the Court found that “the jury legitimately learned that Price and the defendant were engaged in similar illegal activity.” Since the jury in Carter properly knew of the criminal acts, formal admission of this evidence obviously did not further prejudice the accused. The “findings” by the majority that evidence of the several felonies committed by the defendant the day before the murders were committed “added no ‘new dimension to the jurors’ view of defendant’ ” is disingenuous. There simply is no reasonable basis on which to reach that conclusion. What evidence there is would suggest the opposite. The offenses named by the majority as conclusively foreclosing any possibility that at least one juror might vote for life imprisonment were crimes that the defendant had committed ten years earlier and for which he had been convicted and served the designated sentences. The inadmissible evidence reasonably could have been considered by some jurors as showing that the defendant was an unredeemably bad person. Such evidence is clearly prejudicial.
The majority further excuses the admission of the prejudicial evidence with the statement that the proof of the defendant’s guilt is overwhelming. The evidence found to be overwhelming was the testimony of DeModica, the admitted accomplice, with the suspect handwritten note attributed to the defendant affording the only corroboration. In addition, the conclusion that the proof of the defendant’s guilt is overwhelming provides no support for the majority’s position. The rule in determining whether an error was harmless is not whether there was sufficient other evidence on which to find the defendant guilty, or even on which to impose the death penalty. The issue is whether the inadmissible evidence, in and of itself, was harmful. That determination necessarily requires viewing the evidence from the viewpoint of the jury, which has the obligation to decide if the defendant will be sentenced to life imprisonment or death. Discussing the responsibility of the jury, Justice Marshall stated:
[Although much of the [United States Supreme Court’s] capital jurisprudence since Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), has been focused on guiding and channeling the decision whether death is the appropriate sentence in a specific case, the sentencer nonetheless is afforded substantial discretion. Even in the face of overwhelming aggravating evidence, the sentencer has discretion to act with leniency and refuse to impose the death sentence. See [McCleskey v. Kemp, 481 U.S. 279, 311, 107 S.Ct. 1756, 1777, 95 L.Ed.2d 262 (1987) ] (“[Discretionary exercises of leniency [by the sentencer] are final and unreviewable”).
Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988) (Marshall, J., concurring in part and concurring in the judgment) (citations omitted). A reviewing court cannot know the significance placed by the jury on evidence that is admittedly prejudicial.
In a capital case, consideration of the effect of error is not limited to the jury’s determination as to guilt but also must extend to the decision on sentencing. At this point, the doctrine of harmless error becomes particularly inappropriate. A capital sentencing determination, “even when guided and channeled, [is] inherently subjective, and the weight a sentencer gives ... a significant piece of evidence ... is *83nowhere apparent in the record.” Satterwhite v. Texas, 486 U.S. 249, 262, 108 S.Ct. 1792, 1800, 100 L.Ed.2d 284 (1988) (Marshall, J., concurring in part and concurring in judgment). Because of the substantial discretion given the sentencer in weighing and evaluating aggravating and mitigating circumstances under our statute, this Court has no way of knowing whether the jury would have imposed the death penalty if erroneously admitted evidence had not been before them. Cf. State v. Moore, 614 S.W.2d 348, 352 (Tenn.1981). Furthermore, because of the need for heightened reliability in capital sentencing, any error potentially affecting the jury’s consideration of aggravating or mitigating factors should be harmless beyond any reasonable doubt before this Court will affirm a sentencing determination tainted by such error. Cf. State v. Hines, 758 S.W.2d 515, 524 (Tenn.1988) (applying this standard to error, both procedural and constitutional in nature, at capital sentencing).
The jury in this case was instructed that it might consider the proof from both the guilt and sentencing phases of the trial. The evidence of other crimes was part of this proof. One significant circumstance that reasonably could have affected the subjective judgment of the jurors is the role of the defendant as principal or accomplice in these offenses and the objective fairness of the punishment imposed upon the defendant and that received by DeMo-dica. The extent of the defendant’s participation in the killings, particularly in comparison to that of DeModica, is not without serious doubt. The State relied heavily on the note describing DeModica as the hands-on leader in the killing. The note, which the State claimed the defendant wrote, stated, “Joe [DeModica] went crazy, cut them up.” Nevertheless, “Crazy Joe” was the State’s case; and the jury knew to a certainty that he was not testifying for the State in exchange for a seat in the electric chair. The defendant argued and the court instructed the mitigating circumstance that the defendant was an accomplice rather than a principal in the murders. With what assurance can the majority say that the additional evidence that the defendant was a bad person did not affect the jury’s determination regarding this mitigating circumstance and the fairness of the punishment imposed on the defendant?
The majority’s conclusion that the error was harmless rests on no recitation of facts or reasoning. The conclusion is asserted “in the context of the entire record.” The standard for determining whether the error was harmless or prejudicial should be “beyond a reasonable doubt.” I find extraordinary the majority’s conclusion that the jury beyond a reasonable doubt would have imposed the death penalty even in the absence of evidence that the defendant recently had committed multiple felonies. In dissent, I can only say that neither the record nor the majority’s opinion has demonstrated any basis for that conclusion.
PROOF OF AGGRAVATING CIRCUMSTANCE
The jury found the aggravating circumstance set forth in T.C.A. § 39-2-203(i)(5) (1982), (“[t]he murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind”). As in State v. Black, 815 S.W.2d 166, 196 (Tenn.1991), this aggravating circumstance could only have been based upon a finding of depravity. Regarding the murder of Valentine, the proof shows that Valentine was unconscious when killed and since under State v. Williams, 690 S.W.2d 517 (Tenn.1985), “torture” requires that the victim be conscious, torture could not have been found by the jury. As for Melissa Hill’s killing, the jury expressly found in its verdict form that it involved depravity of mind, and the form did not mention torture as an element of its finding. Consequently, the instructions provided no help in guiding the jury to its decision of whether the murderers were “especially heinous, atrocious, or cruel in that [they] involved ... depravity of mind.” The Williams definition of depravity, charged by the trial court in this case, is “[m]oral corruption; wicked or perverse act,” 690 S.W.2d at 529. This definition is merely a slight expansion of a circle of synonyms, none of which have sufficient meaning to guide or limit the jury in its *84otherwise unfettered discretion. The jury in this case received no guidance in determining whether the defendant’s mind was materially “depraved” beyond that of any first-degree murderer, and was bestowed unconstitutionally unfettered and unguided discretion in applying this aspect of aggravating circumstance (i)(5). See Shell v. Mississippi, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990) (per curiam with Marshall, J., concurring); State v. Black, 815 S.W.2d 166, 195-97 (Tenn.1992) (Reid, J., dissenting).
In response to the insistence in the dissent in State v. Black, 815 S.W.2d at 197, and in this dissent, suggesting that “depravity” be defined so that juries will have some constitutional guidance in determining the acts that are sufficient to justify the imposition of the penalty of death, the majority merely restates the manner in which the victims were killed. It seems obvious that the facts of every killing can be described in sordid detail. Such descriptions, however, do little to give guidance to prosecutors, trial courts, and jurors regarding those offenses that meet a standard designed to identify those defendants who, under the constitution, qualify for the death penalty.
Again, I urge that some standard definition of “depravity of mind” be used in determining whether, under constitutional principles, the accused should be executed. See State v. Black, 815 S.W.2d at 197 (Reid, C.J., dissenting) (suggesting a standard). In the absence of such direction, I would hold that the sentence based on this aggravating circumstance is invalid. Regardless of errors at the guilt phase of the trial, the case therefore should be remanded for a new sentencing hearing.
COMPARATIVE PROPORTIONALITY REVIEW
This Court has failed to" articulate and apply a standard for comparative proportionality review of the death sentence mandated by T.C.A. § 39-13-206(c)(l)(D). This statute places upon the Court more than the mere responsibility of reviewing the assignments of error made by the appellant or the obligation to ascertain that the sentence has been legally imposed. It contemplates that this Court will act independently to ensure the constitutionality of each sentence by determining that the death penalty is not “excessive or disproportionate to the penalty imposed in similar cases, considering both the nature of the crime and the defendant.” Id. In § 39-13-206(c)(2), the Court is empowered to develop rules and procedures to enable it to perform this duty properly. Through these statutes the General Assembly has established an additional safeguard against the constitutional concerns of capricious and freakish imposition of the death penalty by placing upon this Court the task of meaningful appellate review designed to distinguish “the few cases in which [the death penalty] is imposed from the many cases in which it is not.” Furman v. Georgia, 408 U.S. 238, 313, 92 S.Ct. 2726, 2764, 33 L.Ed.2d 346 (1972) (White, J., concurring); see generally Gregg v. Georgia, 428 U.S. 153, 195, 198, 96 S.Ct. 2909, 2935, 2937, 49 L.Ed.2d 859 (1976) (plurality opinion).
Comparative review obligates the Court to determine through an analysis of cases from the entire state those categories of homicides that society, as represented by the members of the petit juries faced with this sentencing determination, deems serious enough to warrant the extinguishment of a human life. See Gregg v. Georgia, 428 U.S. at 223-224, 96 S.Ct. at 2948-2949 (White, J., concurring). Each jury can act only within the narrow realm of the specific case before it. While the statutory sentencing guidelines should assure that the death penalty will not be imposed except in the most serious of homicides, this Court, able to consider not just individual cases but the spectrum of sentences in cases statewide, is charged with guarding against arbitrary, capricious, and freakish imposition of capital punishment. The statute, which reflects a constitutional safeguard, imposes an original and additional duty on the Court as a part of the procedure for selecting those for whom the death penalty is reserved, those deemed the most culpable, the worst of the bad.
*85In the present case, the majority performed this profound duty with the conclu-sory statement:
Our comparative proportionality review convinces us that the sentence of death is neither excessive nor disproportionate to the penalty imposed in similar cases, considering both the nature of the crime and the Defendant.
The statute and the constitution require more.
If appellate review is to be meaningful, then it is this Court’s duty and obligation to explain and set forth in its opinions the process by which it has concluded that a case falls within that class of offenses society has seen fit to punish with death. The Court must develop and apply objective criteria and procedures for comparing all first degree murder cases and in each capital case expressly analyze those features showing it to be similar to or different from other first degree murders.
This process of intense analyzation is a difficult duty; however, it will assure not only meaningful appellate review but also assist in clarifying what type of crime is indeed capital. Under such a system a standard of consensus will develop to guide not only courts and juries in deciding cases, but also prosecutors in determining whether the circumstances of a case justify seeking the death penalty. In such a way, rigorous and searching proportionality review lessens the arbitrariness of capital sentencing, ensures the principled imposition of-the penalty, and permits the infliction of death only where such a sanction is warranted. See State v. Black, 815 S.W.2d at 193-195 (Reid, C.J., dissenting).
OTHER ISSUES
Although the manner in which voir dire was conducted in this ease does not constitute reversible error, the procedure followed by the trial court is not that which is best calculated to inspire confidence in the jury selection process. The trial court frequently supplied prospective jurors with the answers to questions asked them, while on occasion literally “putting words” into their mouths. The trial court appeared too ready to excuse jurors who had reservations about the imposition of the death penalty. His explanation was that the court did not wish to “impose” upon citizens. Further, the trial court’s adamant denial of counsel’s request that an effort be made to rehabilitate prospective jurors on the question of death qualification is troublesome. While rehabilitation was not required under the standards of State v. Alley, 776 S.W.2d 506 (Tenn.1989), and State v. Strouth, 620 S.W.2d 467 (Tenn.1981), in the specific instances complained of in this case, the court’s ruling on this issue seemed based on an antipathy to rehabilitation in general and a desire to assure quick jury selection, rather than a consideration of the specific circumstances regarding each juror and the need to guarantee the constitutional rights of the defendant. The rule regarding the voir dire of the venire established in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and followed in Beaver v. State, 475 S.W.2d 557 (Ct.Crim.App.1971), is as follows:
[A] sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.... [T]he most that can be demanded of a venireman is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings. Exclusion on any broader basis than this makes the carrying out of the death sentence constitutionally impermissible.
475 S.W.2d at 559 (citation omitted) (emphasis in original). To excuse a juror for cause based on his absolute unwillingness to consider imposing the death penalty, “(a) disqualifying statement must be unambiguous and it can never be assumed otherwise that that is the position of the prospective juror.” Id. at 558. See also State v. Har*86rington, 627 S.W.2d 345, 349-50 (Tenn.1981). Erroneous excusal of any juror in violation of the principles of Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985); Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980); and Witherspoon v. Illinois, 391 U.S. at 510, 88 S.Ct. at 1770, can never be harmless error. Gray v. Mississippi, 481 U.S. 648, 668, 107 S.Ct. 2045, 2057, 95 L.Ed.2d 622 (1987). For this reason, a trial court should exercise care in refusing counsel the opportunity to rehabilitate a prospective juror on his or her views regarding the death penalty whenever any ambiguity exists as to the juror’s qualifications. While rehabilitation is subject to abuse by counsel and must be controlled by the court, questioning by counsel often clarifies a prospective juror’s views and offers a new perspective on the juror’s answers. This precaution helps assure compliance with the principles of Witt, Adams, and Witherspoon. It also reassures the defendant, the jury, counsel, and the reviewing court that the defendant received a fair trial.
The present case raises other issues, two of which I find unnecessary to resolve. First of all, the defendant contends that the death penalty violates Article I, § 16 of the Tennessee Constitution. Because I find other errors requiring remand for a new trial, I pretermit this issue. See State v. Black, 815 S.W.2d at 191 (Reid, C.J., dissenting). Since the present defendant was found guilty of premeditated murder as well as felony murder, I also refrain from addressing any of the problems arising under the state constitution when the death penalty is imposed for the crime of felony murder. But see Rosen, Felony Murder and the Eighth Amendment Jurisprudence of Death, 31 B.C.L.Rev. 1103 (1990).
In conclusion, because of errors committed during both the guilt and sentencing phases in this case, I would reverse and remand for a new trial. I am authorized to say that Justice Daughtrey joins in this dissent.