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State v. Thomas2/27/2004
CCA-R3-DD, 2003 WL 22220341, at 36-37 (Tenn. Crim. App., Jackson, Sept. 26, 2003).
K. The appellate review process in death penalty cases, including comparative proportionality review, is constitutionally inadequate.
This argument has been rejected. See Reid, 91 S.W.3d app. at 313. Moreover, our supreme court has held that, while important as an additional safeguard against arbitrary or capricious sentencing, comparative proportionality review is not constitutionally required. See State v. Bland, 958 S.W.2d 651, 663 (Tenn. 1997), cert. denied, 523 U.S. 1083, 118 S. Ct. 1536 (1998).
XVIII. Review Pursuant to Tenn. Code Ann. § 39-13-206(c)
For a reviewing court to affirm the imposition of a death sentence, our criminal code requires a determination that:
(1) the sentence was not imposed in an arbitrary fashion;
(2) the evidence supports the jury's finding of statutory aggravating circumstance(s);
(3) the evidence supports the jury's finding that the aggravating circumstances outweigh any mitigating circumstances; and
(4) the sentence is not excessive or disproportionate to the penalty imposed in similar cases.
See Tenn. Code Ann. § 39-13-206(c)(1). The sentencing phase in the present case was conducted pursuant to the procedure established in the applicable statutory provisions and rules of criminal procedure. We conclude that the sentence of death, therefore, was not imposed in an arbitrary fashion. Moreover, the evidence indisputably supports aggravating circumstance (i)(2) (Defendant Thomas was previously convicted of one or more felonies which involved the use or threat of violence to the person), and further supports the jury's determination that this aggravating circumstance outweighs any mitigating circumstances.
Additionally, this Court is required by section 39-13-206(c)(1)(D), Tennessee Code Annotated, and under the mandates of Bland, 958 S.W.2d at 661-674, to consider whether the Defendant's sentence of death is disproportionate to the penalty imposed in similar cases. See State v. Godsey, 60 S.W.3d 759, 781-82 (Tenn. 2001). The comparative proportionality review 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.'" Stout, 46 S.W.3d at 706 (quoting Bland, 958 S.W.2d at 662 (quoting Pulley v. Harris, 465 U.S. 37, 42-43, 104 S. Ct. 871, 875 (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." Stout, 46 S.W.3d at 706 (citation omitted).
In conducting our proportionality review, this Court must compare the present case with cases involving similar defendants and similar crimes. See id. We select only from those cases in which a capital sentencing hearing was actually conducted to determine whether the sentence should be life imprisonment, life imprisonment without the possibility of parole, or death. See State v. Carruthers, 35 S.W.3d 516, 570 (Tenn. 2000), cert. denied, 533 U.S. 953, 121 S. Ct. 2600 (2001). We begin with the presumption that the sentence of death is proportionate with the crime of first degree murder. See Terry v. State, 46 S.W.3d 147, 163 (Tenn.), cert. den. 534 U.S. 1023, 122 S.Ct. 553 (2001), (citing Hall, 958 S.W.2d at 699). This presumption applies only if the sentencing procedures focus discretion on the "`particularized nature of the crime and the particularized characteristics of t
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