State v. Keough

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
HEARD AT MEMPHIS

STATE OF TENNESSEE v. ROY E. KEOUGH

An Appeal from the Criminal Court for Shelby County
No. 96-01977/76 L. T. Lafferty, Judge

No. W1997-00201-SC-DDT-DD - Decided April 10, 2000

A jury convicted the defendant of premeditated first degree murder and attempted first degree
murder. The jury imposed a death sentence after finding that evidence of an aggravating
circumstance, that the defendant was previously convicted of one or more felonies whose statutory
elements involve the use of violence to the person, outweighed evidence of mitigating circumstances
beyond a reasonable doubt. In a separate proceeding, the trial judge found the defendant to be a
Range II, multiple offender and imposed a sentence of forty years for the attempted first degree
murder conviction, to run consecutively to the death sentence for the premeditated first degree
murder conviction. On direct appeal, the Court of Criminal Appeals affirmed the convictions and
the sentences. The Tennessee Supreme Court held that the evidence was sufficient to support the
premeditated first degree murder conviction, that the trial court did not err in refusing to allow the
defendant to cross-examine the only detective called by the State with a statement the defendant
made to other officers, and that the sentence of death is not excessive or disproportion to the penalty
imposed in similar cases. Accordingly, the Tennessee Supreme Court affirmed the Court of
Criminal Appeals in all respects.

Tenn. R. App. P. 3 Direct Appeal from the Court of Criminal Appeals; Judgment of the Court
of Criminal Appeals Affirmed.

ANDERSON, C. J., delivered the opinion of the Court, in which DROWOTA , BIRCH, HOLDER , and
BARKER, JJ., joined.

Joseph S. Ozment and James V. Ball, Memphis, Tennessee, for the appellant, Roy E. Keough

Michael E. Moore, Solicitor General, and Tonya Miner, Assistant Attorney General, Nashville,
Tennessee (On Appeal), and John W. Pierotti, District Attorney General, and Robert Carter and
Rosemary Andrews, Assistant District Attorneys General, Memphis, Tennessee (At Trial), for the
appellee, State of Tennessee

OPINION

CHIEF JUSTICE ANDERSON delivered the opinion of the Court.
 The defendant, Roy E. Keough, was convicted of one count of premeditated first degree
murder and one count of attempted first degree murder. The jury imposed a death sentence after
finding that evidence of an aggravating circumstance, i.e., that the defendant was previously
convicted of one or more felonies whose statutory elements involve the use of violence to the
person,1 outweighed evidence of mitigating circumstances beyond a reasonable doubt. The trial
judge found the defendant to be a Range II, multiple offender and imposed a sentence of forty years
for the attempted first degree murder conviction, to run consecutively to the death sentence.

On direct appeal, the Court of Criminal Appeals affirmed the convictions and the sentences
imposed. After the case was docketed in this Court,2 we reviewed the Court of Criminal Appeals’
decision, the record, and the applicable authority, and entered an order specifying three issues for
argument:3 First, whether the evidence was sufficient to support the conviction for premeditated first
degree murder; second, whether the trial court erred in refusing to allow the defendant to cross-
examine Detective Nichols with a statement the defendant made to other officers; and last, whether
the sentence of death is excessive or disproportionate to the penalty imposed in similar cases.

We have concluded that the evidence was sufficient to support the verdict for premeditated
first degree murder and that the trial court did not abuse its discretion in refusing to allow the
defendant to cross-examine Detective Nichols with a statement the defendant made to other officers.
We further conclude that the evidence supports the jury’s findings as to aggravating and mitigating
circumstances, and the sentence of death is not arbitrary or disproportionate to the sentence imposed
in similar cases considering the nature of the crime and the defendant. Accordingly, the judgment
of the Court of Criminal Appeals is affirmed.

Background

Guilt Phase

1
Tenn. Code Ann. § 39-13-204(i)(2) (1997 & Supp. 1999).
2
Oral argument was heard in this case on November 17, 1999, in Memphis, Shelby
County, Tennessee, as part of this Court’s S.C.A.L.E.S. (Supreme Court Advancing Legal Education
for Students) project.
3
“The affirmance of the conviction and the sentence of death shall be automatically
reviewed by the Tennessee supreme court.” Tenn. Code Ann. § 39-13-206(a)(1) (1997). “Prior to
the setting of oral argument, the Court shall review the record and briefs and consider all errors
assigned. The Court may enter an order designating those issues it wishes addressed at oral
argument. . . .” Tenn. R. Sup. Ct. 12.2.

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 The defendant, Roy Keough, and his estranged wife, Betty Keough, were separated following
a stormy marriage of two years that was beset with problems and arguments. After the separation,
the defendant and his girlfriend rented a room at the home of his girlfriend’s brother, Bobby Holly.
In December of 1995, the defendant moved out of the residence, and Kevin Berry, a friend of
Holly’s, moved in.

On December 24, 1995, the victim, Betty Keough, visited the Holly residence several times
looking for the defendant. At around 11:30 a.m., the victim told Holly that she had a gun in her car;
she threatened to kill the defendant and his girlfriend if she found them. She returned around 3:00
p.m.; she appeared to have been drinking, but she did not make any threats during this visit.
Sometime after the victim left, the defendant stopped by the Holly residence. Kevin Berry told the
defendant that the victim was looking for him. The defendant left.

The victim returned to the Holly residence for the third time around 8:30 p.m. She asked
Kevin Berry to join her for a drink at a neighborhood bar. Although the two had not met before that
day, Berry accepted the offer. The two drove to Irene’s Grill in the victim’s car. Shortly after they
departed, the defendant stopped by the Holly residence to see if the victim had returned. Holly told
the defendant that the victim and Berry had gone to Irene’s Grill. The defendant seemed calm and
did not appear to have been drinking. Holly testified that the defendant appeared to have parked his
car where it could not be seen.

The victim and Berry were seated at a table drinking beer when the defendant arrived at
Irene’s Grill. According to witnesses, the defendant and the victim began “talking loud” and
appeared to have an argument. Berry testified that the defendant got “louder and louder” and wanted
to know what the victim was doing there. The owner of the bar did not hear the victim and the
defendant arguing, but she nonetheless asked them to leave the bar. She testified that the defendant
did not appear to be drunk, but she refused to serve him a beer. The defendant, the victim, and Berry
walked through a hallway toward the back door. According to one witness, the victim appeared to
push either the defendant or Berry.

Berry testified that the defendant and the victim continued to argue as the three walked to the
victim’s car in the parking lot. The defendant asked Berry to drive his car back to the Holly
residence; Berry, who had been drinking a beer, declined. Berry testified that the defendant then
“pushed [the victim] with both hands” with “some force behind it.” When Berry stepped forward
to intervene, the defendant stabbed him in the chest with a knife. Berry tried to run but was pursued
by the defendant and stabbed in the thigh. Berry pushed the defendant away and ran toward the bar;
the defendant again caught him and stabbed him in the back. Berry somehow managed to escape
into the bar where individuals tended to his wounds and called police.

Officer James Currin arrived at the scene at approximately 10:00 p.m. After checking on
Berry’s condition and talking to individuals in the bar, he went outside to the parking lot and found
the victim in her car slumped over the steering wheel. She was not moving. There was blood on her
face and on the seat of the car. The car doors were locked. Currin broke out the rear window of the
car so paramedics could examine the victim and confirm that she was dead.

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 Martha Stephenson, the defendant’s girlfriend, testified that she had lived with the defendant
off and on for about twenty years. The defendant called her at her daughter’s home around 9:30 p.m.
and asked for money for gasoline. She borrowed ten dollars from her daughter and went to the Holly
residence but was unable to find the defendant. She returned to her daughter’s home, where she
found the defendant in the driveway. The defendant told her that “he had just stabbed his wife and
her boyfriend” and that he had thrown the knife away. When she told the defendant that she did not
have any money, he said he would just wait on the police.

Stephenson’s daughter, Mary Stokes, testified that the defendant showed up at her home and
asked to borrow money. She told the defendant she did not have any money. The defendant said
that he and the victim had a fight. The defendant asked for a drink and went outside to “wait for the
police.” He drank half a fifth of vodka and also some rum. The defendant asked to use the phone
to call his attorney. Stokes testified that she heard the defendant say that he had “stabbed his wife”
and that “she was probably dead.” An officer later arrived and arrested the defendant. The arresting
officer testified that the defendant asked him, “which one did I get ?”4

The defendant gave a statement to Detective James Nichols the next day. Nichols testified
that he read the defendant his Miranda rights and that attorney Leslie Ballin was present for the
interview. According to Nichols, the defendant said he had been looking for his wife when he found
her in the bar with another man. They became involved in a verbal dispute and were asked to leave
by the management of the bar. Nichols testified that the defendant told him that the argument with
the victim escalated once they went outside and that he stabbed the victim with a rifle knife. The
defendant also told Nichols that he also stabbed the man who was with his wife at the time. The
defendant further said, however, that “[h]e was angry or . . . his emotions were so high he couldn’t
remember how many times or where he had stabbed his wife or where he had stabbed the man that
was with his wife.”

A forensic pathologist testified that the victim, age forty-two, sustained a large stab wound
at the top of her breastbone, which penetrated almost six inches into her chest cavity. The wound
inflicted upon her probably did not immediately render her unconscious; death probably occurred
within two to five minutes. The wound was consistent with that caused by a bayonet used with a
moderate amount of force. There were no other wounds on the victim of a defensive nature.

Several witnesses, including three who were present at Irene’s Grill, testified during the
defendant’s proof. Joanne Waine testified that she did not see any argument or pushing between the
defendant and the victim. Lisse Moore testified that she believed the victim may have pushed the
defendant as they walked out of the bar. Virginia Walden testified that she saw the victim slap the

4
Defense counsel objected and moved for a mistrial on the basis that the prosecution
did not disclose this statement as required under Tenn. R. Crim. P. 16(a)(1)(A). The prosecution’s
only explanation was that it did not know what discovery had been obtained by the defense and that
it had learned of the statement only prior to calling the arresting officer to testify. The trial court
overruled the motion for a mistrial. The defendant did not raise the issue on appeal.

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defendant while still inside the bar. Bobby Holly testified that the victim had been looking for the
defendant on the day in question. She told Holly that she would kill the defendant and his girlfriend
if she found them. Holly contacted the defendant and told him about the threat.

After deliberating on the charges, the jury convicted the defendant of premeditated first
degree murder and attempted first degree murder.

Sentencing Phase

Joyce Smart, the victim’s sister, testified that the victim’s first husband died after he and the
victim had been married for twenty-three years. The victim met the defendant several months later,
and they eventually married. The victim was a grandmother and a very friendly woman. Ms. Smart
concluded that “our Christmases will never be the same.”

The prosecution introduced court records indicating that the defendant was convicted of
assault to commit voluntary manslaughter in Tennessee in 1974 and of manslaughter in Mississippi
in 1989.

Several witnesses testified on behalf of the defendant. The defendant, fifty-three years old,
was one of eight children. Two of the defendant’s sisters asked the jury to spare his life. Although
the defendant was generally cordial and nice, he and the victim had a “stormy” relationship.
William Powers testified that he worked with the defendant at a body shop for six or seven years.
On one occasion, the victim showed up at work, argued with the defendant, and tried to hit the
defendant with an air ratchet.

The jury found that the prosecution had proven one aggravating circumstance– that the
defendant was previously convicted of one or more felonies whose statutory elements involve the
use of violence to the person. Tenn. Code Ann. § 39-13-204(i)(2) (1997 & Supp. 1999). The jury
also found that the evidence of this aggravating circumstance outweighed evidence of any mitigating
circumstances beyond a reasonable doubt and therefore imposed a sentence of death. In a separate
sentencing proceeding, the trial court imposed a forty year sentence as a Range II offender for the
attempted first degree murder, to run consecutively. The Court of Criminal Appeals thereafter
affirmed the convictions and the sentences.

Sufficiency of Evidence

The defendant argues that there was insufficient evidence of premeditation to establish the
first degree murder of Betty Keough. The State maintains that the evidence was sufficient to
support the jury’s verdict.

When evaluating the sufficiency of the evidence, we must determine whether “any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

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Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). We are
required to afford the prosecution the strongest legitimate view of the evidence in the record as well
as all reasonable and legitimate inferences which may be drawn therefrom. State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). Questions regarding the credibility of witnesses, the weight to be
given the evidence, and any factual issues raised by the evidence are resolved by the trier of fact.
Id.; State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994).

First degree murder includes a “premeditated and intentional killing of another.” Tenn. Code
Ann. § 39-13-202(a)(1) (1997 & Supp. 1999). By statute, the element of premeditation is defined
as follows:

“[P]remeditation” is an act done after the exercise of reflection and judgment.
“Premeditation” means that the intent to kill must have been formed prior to the act
itself. It is not necessary that the purpose to kill pre-exist in the mind of the accused
for any definite period of time. The mental state of the accused at the time the
accused allegedly decided to kill must be carefully considered in order to determine
whether the accused was sufficiently free from excitement and passion as to be
capable of premeditation.

Tenn. Code Ann. § 39-13-202(d) (1997 & Supp. 1999). In Bland, we identified several
circumstances which may warrant the trier of fact to find or infer premeditation: the use of a deadly
weapon upon an unarmed victim; the particular cruelty of a killing; any threats or declarations of
intent to kill made by the defendant; the procurement of a weapon; any preparations to conceal the
crime which are undertaken before the crime is committed; and calmness immediately following a
killing. Bland, 958 S.W.2d at 660.

In our view, the evidence of premeditation, although far from overwhelming, was legally
sufficient to support the jury’s verdict. When viewed in a light most favorable to the prosecution,
the evidence revealed: that the defendant was looking for the victim on the night in question; that
the defendant was in possession of a rifle knife or bayonet; that the defendant found the victim at a
bar drinking with another man; that an argument ensued between the defendant and the victim; that
once outside the bar, the defendant stabbed the unarmed victim forcibly in the chest with the
bayonet; that the defendant disposed of the murder weapon; and, that the defendant sought money
to flee. This evidence, when viewed as a whole under the appropriate standards of appellate review,
was legally sufficient to support a finding that the defendant acted with premeditation.
Cross-Examination of Detective Nichols

The defendant contends that the trial court erred in refusing to allow the defendant to cross-
examine Detective Nichols with a statement the defendant later made to other officers. The
underlying circumstances are as follows:

On the day after the killing, the defendant, having waived his Miranda rights, gave an oral
statement to Detective James Nichols. The defendant admitted that he had been looking for the
victim when he found her in a bar in the company of another man, and that, following an argument,

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he stabbed both the victim and the man. The record indicates that Nichols took notes of the
interview, but the statement was not transcribed or recorded. When Nichols was then called away
on another case, the defendant, after receiving his Miranda rights a second time, gave a statement
to Detectives Sullivan and Stewart. This statement was placed in writing; it was similar to what the
defendant had told Nichols, but contained the defendant’s assertion that the victim carried a gun and
had shot at him on an earlier occasion.

At trial, Nichols testified as to the defendant’s oral statement. Nichols’ notes from the
interview were not introduced. The defense then sought to cross-examine Nichols by introducing
the portion of the defendant’s written statement in which he told Sullivan and Stewart that the victim
carried a gun and had once shot at him. The trial court refused to allow the cross-examination on
the basis that Nichols did not have personal knowledge of what the defendant may have told the
other officers. The State maintains that this ruling was proper.

In support of his position, the defendant relies primarily on the following language found in
Espitia v. State, 288 S.W.2d 731, 733 (Tenn. 1956), and later cases:

When a confession is admissible, the whole of what the accused said upon the subject
at the time of making the confession is admissible and should be taken together; and
if the prosecution fails to prove the whole statement, the accused is entitled to put in
evidence all that was said to and by him at the time which bears upon the subject of
controversy including any exculpatory or self-serving declarations connected
therewith.

Id. (quoting 20 Am. Jur. Evidence § 488 (1939)). At least one treatise contains similar language, 23
C.J.S. Criminal Law § 885 (1989 & Supp. 1999).

In a later case, Sambolin v. State, 387 S.W.2d 817, 819 (Tenn. 1965), citing language similar
to that found in Espitia, the Supreme Court held that the trial court erred in allowing an officer to
testify as to the defendant’s statement when the State had failed to furnish a copy of the summary
found in the police report to the defendant. Likewise, in State v. Robinson, 622 S.W.2d 62, 69-70
(Tenn. Crim. App. 1980), the Court of Criminal Appeals indicated that the defendant should have
been permitted to introduce his statement, including an exculpatory portion, following the State’s
introduction of a version that had been redacted to comply with the Bruton rule.5

These Tennessee decisions relied on by the defendant are, however, factually distinguishable
from the present case and, in any event, predate the enactment of the Tennessee Rules of Evidence.
We therefore turn to the analogous provision found in Tenn. R. Evid. 106, which states:

5
In Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968),
the Court held that admission of a codefendant’s confession implicating the defendant in a joint trial
violates the defendant’s constitutional right of confrontation.

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 When a writing or recorded statement or part thereof is introduced by a party, an
adverse party may require the introduction at that time of any other part or any other
writing or recorded statement which ought in fairness to be considered
contemporaneously with it.

Id. As one commentator has said, this so-called “rule of completeness” allows the trier of fact to
“assess related information at the same time rather than piecemeal.” Neil P. Cohen et al., Tennessee
Law of Evidence § 106.1, at 33 (3d ed. 1995).

In our view, Rule 106 reflects the concern for fairness found in cases such as Espitia – that
the trier of fact be permitted to assess related information without being misled by hearing only
certain portions of evidence. Cohen, § 106.1, at 33. Accordingly, it appears that where the
prosecution introduces a statement made by the defendant, the trial court may in the interest of
fairness order that the remainder of the statement be admitted as well under Rule 106. Indeed, it
would not be consistent with fundamental fairness to allow the prosecution to introduce only the
most incriminating portions of a defendant’s statement without regard to the overall context or
relevant exculpatory portions found in the same statement. As Espitia indicates, the jury is to
determine which statements to accredit.

In any event, we conclude that Rule 106 is not applicable and that the defendant is not
entitled to relief in this case. In short, we cannot conclude that the trial court abused its discretion
in finding that the defendant, in essence, gave two statements: an oral statement to Detective Nichols
followed by a written statement to Detectives Sullivan and Stewart. The statements were given to
different officers, and the defendant was read his Miranda rights before giving each statement.

Moreover, it appears that Detective Nichols did not have personal knowledge of what the
defendant later told Sullivan and Stewart. The State did not call Sullivan or Stewart as witnesses,
nor did it attempt to introduce the written statement.6 Likewise, the defendant did not call these
witnesses. Finally, we observe that the defendant is not entitled to relief on this issue because there
was other evidence in the record that the victim had threatened to kill the defendant on the day in
question. Under these circumstances, our narrow holding is that the trial court did not abuse its
discretion in refusing to allow the defendant to cross-examine Nichols with a statement made by the
defendant to two other officers.

Proportionality

Where a defendant has been sentenced to death, we must undertake a comparative
proportionality review pursuant to Tenn. Code Ann. § 39-13-206(c)(1) (1997). The analysis is
designed to identify aberrant, arbitrary or capricious sentencing by determining whether the death
penalty in a given case is “disproportionate to the punishment imposed on others convicted of the
same crime.” Bland, 958 S.W.2d at 662 (quoting Pulley v. Harris, 465 U.S. 37, 42-43, 104 S. Ct.

6
The statement was apparently introduced for identification purposes only.

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871, 875, 79 L. Ed. 2d 29 (1984)). If a case is “plainly lacking in circumstances consistent with
those in cases where the death penalty has been imposed,” then the sentence is disproportionate. Id.
at 668; see also State v. Burns, 979 S.W.2d 276, 283 (Tenn. 1998).

This Court has consistently employed the precedent-seeking method of comparative
proportionality review, which compares a case with cases involving similar defendants and similar
crimes. Bland, 958 S.W.2d at 667. We consider numerous factors regarding the offense: (1) the
means of death; (2) the manner of death; (3) the motivation for the killing; (4) the place of death; (5)
the victim’s age, physical and psychological condition; (6) the absence or presence of premeditation;
(7) the absence or presence of provocation; (8) the absence or presence of justification; and (9) the
injury to and effect on nondecedent victims. We also consider multiple factors about the defendant:
(1) prior criminal record; (2) age, race and gender; (3) mental, emotional and physical condition; (4)
role in the murder; (5) cooperation with authorities; (6) level of remorse; (7) knowledge of the
victim’s helplessness; and (8) potential for rehabilitation. Id. at 667. Since no two defendants and
no two crimes are precisely alike, our review is not mechanical or based on a rigid formula. Id. at
668.

In this case, evidence in the record shows that the defendant and the victim were separated
following a troubled marital relationship. The day of the offense, the defendant learned the victim
was looking for him and had threatened to kill him, so he in turn decided to try to find her. He was
told that she was at Irene’s Grill with another man. He went to the Grill and found her having a
drink with another man. An argument ensued which eventually escalated into the parking lot. The
defendant stabbed the victim with a bayonet with sufficient force to produce a wound nearly six
inches deep into the chest cavity. Although there was evidence of an argument, there is no proof
whatsoever that the victim was armed or that the defendant was in anyway provoked into the killing
or in anyway justified. Moreover, the defendant also pursued and repeatedly stabbed the other man
who was at the scene – indeed, Kevin Berry was not killed only because he was able to escape from
the defendant, despite three separate stab wounds, and summon help.

The defendant, a white male, was fifty-three years of age at the time of sentencing. He had
twice been convicted for felonies involving violence – in 1974 he was convicted of assault with
intent to commit voluntary manslaughter, and in 1989 he pled guilty to the offense of manslaughter.
These convictions certainly established the single aggravating circumstance in this case. There was
no evidence regarding the defendant’s mental, physical or psychological condition. The record does
reveal that the defendant’s marriage to the victim had been a troubled one. The defendant ultimately
waited for police to arrive to make the arrest, but not before disposing of the murder weapon and
trying to obtain money for gasoline to flee. Although the defendant told several individuals that he
had stabbed the victim and another individual, there is no proof that he exhibited any remorse for
his actions. Finally, there was little evidence regarding the defendant’s potential for rehabilitation.

We have reviewed and upheld the death sentence in numerous cases bearing similarity to the
present case. For example, in the following cases, the sentence of death was imposed and upheld
where the defendant had killed an estranged wife or girlfriend in a domestic violence context. State
v. Hall, 958 S.W.2d 679 (Tenn. 1997); State v. Johnson, 743 S.W.2d 154 (Tenn. 1987); State v.

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Cooper, 718 S.W.2d 256 (Tenn. 1986). Similarly, we have often upheld the sentence where the sole
aggravating circumstance was the defendant’s prior convictions for felonies involving violence or
whose statutory elements involve violence. State v. Smith, 993 S.W.2d 6 (Tenn. 1999); State v.
Cribbs, 967 S.W.2d 773 (Tenn. 1998); State v. Adkins, 725 S.W.2d 660 (Tenn. 1987); State v. Goad,
707 S.W.2d 846 (Tenn. 1986). We have also upheld the death sentence in cases where the means
and manner of death involved a stabbing. See, e.g., State v. Mann, 959 S.W.2d 503 (Tenn. 1997);
State v. Thompson, 768 S.W.2d 239 (Tenn. 1989). Finally, we have upheld death sentences imposed
on defendants who were of similar age to the defendant. State v. Wilcoxson, 772 S.W.2d 33 (Tenn.
1989); State v. Barnes, 703 S.W.2d 611 (Tenn. 1985).

The defendant argues that the evidence of premeditation was insufficient and that the
defendant committed the killing in a state of passion provoked by the victim.7 Our review indicates
that some defendants have received lesser sentences for similar crimes against estranged wives or
girlfriends. See, e.g., State v. Dick, 872 S.W.2d 938 (Tenn. Crim. App. 1993). We also observe that
this case involves a single stab wound in contrast to those death penalty cases involving multiple
stab wounds. See State v. Pike, 978 S.W.2d 904 (Tenn. 1998); State v. Bush, 942 S.W.2d 489
(Tenn. 1997).

Our function, however, is not to invalidate a death sentence merely because the
circumstances may be similar to those in which a defendant received a less severe sentence. Burns,
979 S.W.2d at 285. Instead, our review requires a determination of whether a case plainly lacks
circumstances found in similar cases where the death penalty has been imposed. Id. Here, the
similarity of the circumstances to cases in which the death penalty has been upheld and, in particular,
the strength of the aggravating circumstance – the defendant’s two prior convictions for violent
felonies – reveals that the penalty is not arbitrary or disproportionate as applied in this case.

Conclusion

In accordance with Tenn. Code Ann. § 39-13-206(c) and the principles adopted in prior
decisions, we have considered the entire record and conclude that the sentence of death has not been
imposed arbitrarily, that the evidence supports the jury’s finding of the statutory aggravating
circumstance, that the evidence supports the jury’s finding that the aggravating circumstance
outweighs evidence of mitigating circumstances beyond a reasonable doubt, and that the sentence
is not excessive or disproportionate.

We have reviewed all of the issues raised by the defendant and conclude that they do not
warrant relief. With respect to issues not addressed in this opinion, we affirm the decision of the
Court of Criminal Appeals authored by Judge David Welles and joined in by Judge Joe Riley. The
relevant portions of that opinion are attached as an appendix to this opinion. The defendant’s

7
The defendant also makes a general challenge to the Bland analysis, notwithstanding
the fact that we have consistently employed this analysis in our review. See, e.g., Burns, 979 S.W.2d
at 283-84.

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sentence of death is affirmed and shall be carried out on the 10th day of July, 2000, unless otherwise
ordered by this Court or proper authority.

It appearing that the defendant Roy Keough is indigent, costs of appeal are taxed to the State.

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