dissenting.
I agree that the mass murder aggravating circumstance is unconstitutional because it does not require the State to prove that defendant has been convicted of two or more other murders prior to the sentencing hearing.
I disagree that the mass murder aggravating circumstance can be rescued from unconstitutional infirmity, under the guise of preserving its meaning and purpose, “through a constitutionally correct construction.”
The only other aggravating circumstance that allows proof of other crimes not committed in connection with the commission of the murder on trial is the second aggravating circumstance that requires conviction of one or more felonies involving the use or threat of violence. The Legislature obviously made a conscious choice in omitting the requirement of conviction in enacting the mass murder aggravating circumstance.
Thus, in my view, we are not preserving the meaning and purpose of the legislative enactment, but are substantially altering its meaning and purpose as written and as clearly intended. That view is supported by the inescapable fact that, as rewritten by this Court, the mass murder aggravating circumstance is completely redundant because every murder conviction that could be proven would fully support aggravating circumstance number two and in some instances would fully support the death penalty under aggravating circumstance number seven. The result is that the Court strains legislative intent to the breaking point, rewrites a statute to conform to its view of legislative intent, but nothing of substance that was not already included in the aggravating circumstances theretofore enacted, has been added. I would declare the mass murder aggravating circumstance unconstitutional, period.
In my opinion a new sentencing hearing is required, whether the mass murder aggravating circumstance is constitutional or unconstitutional. The use of the mass murder aggravating circumstance enabled the State to present evidence to the jury at the sentencing hearing that convincingly proved defendant had murdered Kenneth Willet, in the presence of Mrs. Willet, and in the course of committing another armed robbery, even though defendant had not been convicted of that murder. The Willet murder enabled the prosecution to label defendant a mass murderer, with the imprimatur of the Tennessee Legislature. I find it impossible to say that was harmless error beyond a reasonable doubt, in spite of my recognition that it is probable that the jury would have imposed the death penalty if they had never heard of Kenneth Willet or the mass murder aggravating circumstance.
I am authorized to state that Chief Justice BROCK concurs in this dissenting opinion.