IN THE SUPREME COURT OF TENNESSEE
AT JACKSON FILED June 3, 1996
Cecil Crowson, Jr. Appellate C ourt Clerk
STATE OF TENNESSEE, ) ) Appellee, ) Shelby Criminal ) ) Vs. ) ) ) RICHARD ODOM, ) No. 02-S-01-9502-CR-00014 a/k/a OTIS SMITH ) ) Appellant. )
CONCURRING/DISSENTING OPINION
I fully concur in the majority’s decision affirming the conviction in this case.
I also agree with the majority that the trial court’s refusal to admit into evidence
as mitigation the testimony of Dr. John Hutson was error which requires a
reversal and a remand for re-sentencing. However, I dissent from the majority’s
analysis of the constitutionality and sufficiency of the evidence to support the
aggravating circumstance, Tenn. Code Ann. § 39-13-204(i)(5), as amended in
1989.
AGGRAVATING CIRCUMSTANCE (I)(5)
As the majority acknowledges, in this case we are presented with our first
opportunity to address the constitutionality of Tenn. Code Ann. § 39-13-
204(i)(5), which, as amended in 1989, provides that the murder was “especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse
beyond that necessary to produce death.”1
The defendant argues that the statutory language is unconstitutionally
vague on its face. Relying on a decision of the Utah Supreme Court,2 he urges
this Court to construe “serious physical abuse” as physical abuse which is
qualitatively and quantitatively different and more culpable than that necessary to
accomplish the murder. Regardless of the construction of this language, he also
claims that the evidence in this record does not support the aggravating
circumstance.
The State responds that the statute is not vague on its face because it
limits heinous, atrocious and cruel, to murders involving torture or serious
physical abuse beyond that necessary to produce death. As the statute is
constitutional on its face, the State contends that no further construction is
required.
Resolution of this issue is guided by well-settled constitutional principles.
The United States Supreme Court held in Furman v. Georgia, 408 U.S. 238, 92
S.Ct. 2726, 33 L.Ed.2d 346 (1972), that the death penalty may not be imposed
under sentencing procedures that create a substantial risk that the punishment
will be inflicted in an arbitrary and capricious manner. Therefore, if a State
wishes to authorize capital punishment, it is required by the federal constitution
to tailor and apply its law in a manner that avoids the arbitrary and capricious
1 Prior to the am end me nt in 19 89, th e sta tute p rovid ed “th at the mu rder was espe cially heinous , atrocious , or cruel in tha t it involved torture or depra vity of mind .”
2 State v. Tu ttle, 780 P.2d 1203,12 17 (Uta h 1989 ).
-2- infliction of the death penalty. Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct.
1759, 1764, 64 L.Ed.2d 398 (1980).
This constitutional responsibility requires states, as a first step, to adopt
procedures to narrow the class of persons eligible for the death penalty. Zant v.
Stephens, 462 U.S. 862, 877 (1983). Narrowing may be accomplished either by
providing restrictive definitions of first-degree or capital murder or by utilizing
aggravating circumstances at the sentencing hearing. Lowenfield v. Phelps, 484
U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988). In Tennessee, narrowing is
accomplished by use of aggravating circumstances. State v. Middlebrooks, 840
S.W.2d 317 (Tenn. 1992).
Once a method of narrowing is chosen, the standards employed must be
“clear and objective” and provide “specific and detailed” guidance which both
channels the sentencer’s discretion and makes rationally reviewable the process
for imposing a sentence of death. Godfrey v. Georgia, 100 S.Ct. at 1765, 446
U.S. at 428. Indeed, the United States Supreme Court has recognized that a
death penalty “system could have standards so vague that they would fail
adequately to channel the sentencing decision patterns of juries with the result
that a pattern of arbitrary and capricious sentencing like that found
unconstitutional in Furman could occur.” Gregg v. Georgia, 428 U.S. 153, 195,
n. 46, 96 S.Ct. 2909, 2935, 49 L.Ed.2d 859 (1976). Therefore, in Tennessee,
aggravating circumstances, which serve as standards to guide the sentencing
jury’s discretion, must be sufficiently clear, objective, specific, and detailed to
prevent the arbitrary and capricious imposition of the death penalty. In this
case, the defendant argues that the statutory aggravating circumstance, that the
murder was especially heinous, atrocious, or cruel in that it involved torture or
serious physical abuse beyond that necessary to produce death, without further
-3- judicial construction, is unconstitutionally vague because it fails to inform the jury
of what finding is necessary for imposition of the death penalty, and therefore
leaves juries, and appellate courts with the type of open-ended discretion held
invalid in Furman v. Georgia, supra. I disagree. Two cases decided by the
United States Supreme Court provide guidance on this issue.
In Godfrey v. Georgia, supra, a Georgia jury was instructed in the
language of the statutory aggravating circumstance -- "the offense was
outrageously or wantonly vile, horrible or inhuman in that it involved torture,
depravity of mind, or an aggravated battery to the victim,"-- but its verdict only
recited that the murder was "outrageously or wantonly vile, horrible or inhuman."
Id., at 422, 100 S.Ct. at 1762. The Georgia Supreme Court affirmed the jury's
verdict, finding only that the language was unobjectionable, and thus failed to
rule whether the offense involved torture or an aggravated battery to the victim.
Id., at 426-27, 100 S.Ct. at 1763-64. The U.S. Supreme Court reversed the
death sentence stating:
In the case before us, the Georgia Supreme Court has affirmed a sentence of death based upon no more than a finding that the offense was 'outrageously or wantonly vile, horrible and inhuman.' There is nothing in these few words, standing alone, that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence. A person of ordinary sensibility could fairly characterize almost every murder as 'outrageously or wantonly vile, horrible and inhuman.'
Id., 446 U.S. at 428-29, 100 S.Ct. at 1764 (footnote omitted) (emphasis added).
More recently, in Maynard v. Cartwright, 108 S.Ct. 1853 (1988), the
United States Supreme Court considered a vagueness challenge to an
Oklahoma statutory aggravating circumstance. There, the jury imposed the
death penalty upon a finding of two aggravating circumstances, one of which
was the murder was “especially heinous, atrocious, or cruel.” Initially, the Court
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IN THE SUPREME COURT OF TENNESSEE
AT JACKSON FILED June 3, 1996
Cecil Crowson, Jr. Appellate C ourt Clerk
STATE OF TENNESSEE, ) ) Appellee, ) Shelby Criminal ) ) Vs. ) ) ) RICHARD ODOM, ) No. 02-S-01-9502-CR-00014 a/k/a OTIS SMITH ) ) Appellant. )
CONCURRING/DISSENTING OPINION
I fully concur in the majority’s decision affirming the conviction in this case.
I also agree with the majority that the trial court’s refusal to admit into evidence
as mitigation the testimony of Dr. John Hutson was error which requires a
reversal and a remand for re-sentencing. However, I dissent from the majority’s
analysis of the constitutionality and sufficiency of the evidence to support the
aggravating circumstance, Tenn. Code Ann. § 39-13-204(i)(5), as amended in
1989.
AGGRAVATING CIRCUMSTANCE (I)(5)
As the majority acknowledges, in this case we are presented with our first
opportunity to address the constitutionality of Tenn. Code Ann. § 39-13-
204(i)(5), which, as amended in 1989, provides that the murder was “especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse
beyond that necessary to produce death.”1
The defendant argues that the statutory language is unconstitutionally
vague on its face. Relying on a decision of the Utah Supreme Court,2 he urges
this Court to construe “serious physical abuse” as physical abuse which is
qualitatively and quantitatively different and more culpable than that necessary to
accomplish the murder. Regardless of the construction of this language, he also
claims that the evidence in this record does not support the aggravating
circumstance.
The State responds that the statute is not vague on its face because it
limits heinous, atrocious and cruel, to murders involving torture or serious
physical abuse beyond that necessary to produce death. As the statute is
constitutional on its face, the State contends that no further construction is
required.
Resolution of this issue is guided by well-settled constitutional principles.
The United States Supreme Court held in Furman v. Georgia, 408 U.S. 238, 92
S.Ct. 2726, 33 L.Ed.2d 346 (1972), that the death penalty may not be imposed
under sentencing procedures that create a substantial risk that the punishment
will be inflicted in an arbitrary and capricious manner. Therefore, if a State
wishes to authorize capital punishment, it is required by the federal constitution
to tailor and apply its law in a manner that avoids the arbitrary and capricious
1 Prior to the am end me nt in 19 89, th e sta tute p rovid ed “th at the mu rder was espe cially heinous , atrocious , or cruel in tha t it involved torture or depra vity of mind .”
2 State v. Tu ttle, 780 P.2d 1203,12 17 (Uta h 1989 ).
-2- infliction of the death penalty. Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct.
1759, 1764, 64 L.Ed.2d 398 (1980).
This constitutional responsibility requires states, as a first step, to adopt
procedures to narrow the class of persons eligible for the death penalty. Zant v.
Stephens, 462 U.S. 862, 877 (1983). Narrowing may be accomplished either by
providing restrictive definitions of first-degree or capital murder or by utilizing
aggravating circumstances at the sentencing hearing. Lowenfield v. Phelps, 484
U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988). In Tennessee, narrowing is
accomplished by use of aggravating circumstances. State v. Middlebrooks, 840
S.W.2d 317 (Tenn. 1992).
Once a method of narrowing is chosen, the standards employed must be
“clear and objective” and provide “specific and detailed” guidance which both
channels the sentencer’s discretion and makes rationally reviewable the process
for imposing a sentence of death. Godfrey v. Georgia, 100 S.Ct. at 1765, 446
U.S. at 428. Indeed, the United States Supreme Court has recognized that a
death penalty “system could have standards so vague that they would fail
adequately to channel the sentencing decision patterns of juries with the result
that a pattern of arbitrary and capricious sentencing like that found
unconstitutional in Furman could occur.” Gregg v. Georgia, 428 U.S. 153, 195,
n. 46, 96 S.Ct. 2909, 2935, 49 L.Ed.2d 859 (1976). Therefore, in Tennessee,
aggravating circumstances, which serve as standards to guide the sentencing
jury’s discretion, must be sufficiently clear, objective, specific, and detailed to
prevent the arbitrary and capricious imposition of the death penalty. In this
case, the defendant argues that the statutory aggravating circumstance, that the
murder was especially heinous, atrocious, or cruel in that it involved torture or
serious physical abuse beyond that necessary to produce death, without further
-3- judicial construction, is unconstitutionally vague because it fails to inform the jury
of what finding is necessary for imposition of the death penalty, and therefore
leaves juries, and appellate courts with the type of open-ended discretion held
invalid in Furman v. Georgia, supra. I disagree. Two cases decided by the
United States Supreme Court provide guidance on this issue.
In Godfrey v. Georgia, supra, a Georgia jury was instructed in the
language of the statutory aggravating circumstance -- "the offense was
outrageously or wantonly vile, horrible or inhuman in that it involved torture,
depravity of mind, or an aggravated battery to the victim,"-- but its verdict only
recited that the murder was "outrageously or wantonly vile, horrible or inhuman."
Id., at 422, 100 S.Ct. at 1762. The Georgia Supreme Court affirmed the jury's
verdict, finding only that the language was unobjectionable, and thus failed to
rule whether the offense involved torture or an aggravated battery to the victim.
Id., at 426-27, 100 S.Ct. at 1763-64. The U.S. Supreme Court reversed the
death sentence stating:
In the case before us, the Georgia Supreme Court has affirmed a sentence of death based upon no more than a finding that the offense was 'outrageously or wantonly vile, horrible and inhuman.' There is nothing in these few words, standing alone, that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence. A person of ordinary sensibility could fairly characterize almost every murder as 'outrageously or wantonly vile, horrible and inhuman.'
Id., 446 U.S. at 428-29, 100 S.Ct. at 1764 (footnote omitted) (emphasis added).
More recently, in Maynard v. Cartwright, 108 S.Ct. 1853 (1988), the
United States Supreme Court considered a vagueness challenge to an
Oklahoma statutory aggravating circumstance. There, the jury imposed the
death penalty upon a finding of two aggravating circumstances, one of which
was the murder was “especially heinous, atrocious, or cruel.” Initially, the Court
-4- considered whether or not the statutory language, on its face, provided sufficient
guidance to the jury. The Court concluded that, as in Godfrey v. Georgia, the
bare language of the Oklahoma statute provided no guidance to the sentencing
jury, because “an ordinary person could honestly believe that every unjustified,
intentional taking of human life is “especially heinous.” Maynard v. Cartwright,
108 S.Ct. at 1859. Moreover, the conclusion of the Oklahoma court that the
evidence “adequately supported the jury’s finding”, did nothing according to the
United States Supreme Court, “to cure the unfettered discretion of the jury and to
satisfy the commands of the Eighth Amendment.” Id. Although declining to
delineate an exclusive limiting construction of the heinous, atrocious, or cruel
aggravating circumstance, the Court implicitly approved as constitutionally
acceptable a limiting construction which requires “some kind of torture or serious
physical abuse.” Id.
Accordingly, under Maynard v. Cartwright, Tenn. Code Ann. § 39-13-
204(I)(5), which, as amended in 1989, provides that the murder was “especially
heinous, atrocious, or cruel in that it involved torture or serious physical abuse
beyond that necessary to produce death” is constitutionally acceptable. To base
imposition of the death penalty upon this aggravating circumstance, the jury must
find either torture, which has been defined in this State “as the infliction of severe
physical or mental pain upon the victim while he or she remains alive and
conscious,”3 or “serious physical abuse beyond that necessary to produce
death.” The findings required by this statutory aggravating circumstance are
both clear and specific. The aggravating circumstance channels and limits the
jury’s discretion and sufficiently eliminates the risk of arbitrary and capricious
imposition of the death penalty. Therefore, in my opinion, no further judicial
3 State v. Williams, 690 S.W .2d 517 (Tenn. 1985).
-5- construction is needed, and the definitions suggested by the majority are
superfluous.
Moreover, I disagree with the majority’s conclusion that the evidence in
this record is insufficient to support the aggravating circumstance.4 In this case,
the evidence, including the defendant’s own statement, established that the 78
year-old victim was accosted and pushed into her car during a robbery attempt.
Once inside the car, the defendant pulled out a knife and “cut” the victim. In
pleading with him to stop, the victim addressed the defendant as “son.” The
defendant became very angry, replied “I’ll give you a son,” and then, in apparent
retaliation for the victim’s use of the term “son,” raped her. When asked if the
victim was alive when he raped her, the defendant said he was “quite sure she
was alive because she told me she had never had sex before.” Although the
defendant denied any recollection of stabbing the victim, the medical examiner
testified that the victim had suffered multiple stab wounds to her body, including
penetrating wounds to the heart, lungs and liver. These wounds caused internal
bleeding, and ultimately death, but according to the medical examiner, would not
have resulted in instantaneous death. The medical examiner also noted
defensive wounds on the victim’s hands, and a tear in the victim’s vaginal wall.
As previously stated, “torture” was defined in State v. Williams, supra, as
“the infliction of severe physical or mental pain upon the victim while he or she
remains alive and conscious.” In this case, the defendant inflicted severe
physical and mental pain upon the victim while she remained alive and
conscious. The victim was alive when violently accosted, she pleaded with the
4 Because a new sentencing hearing is required in this case, the question of the sufficiency of the evid ence to suppo rt the aggr avating c ircum stance is moo t. See State v. Harris & Thompson , __ S.W .2d __ (T enn. 199 5)(Disc ussing r esente ncing he arings). S ince the m ajority addressed the issue, however, I must express my disagreement with the majority’s conclusion that the evid ence is n ot sufficien t.
-6- defendant for mercy, but instead she no doubt experienced terror, when the
defendant raped her as punishment for her use of the term “son.” According to
the defendant’s own statement, she remained alive and conscious throughout
the rape. Defensive stab wounds to her hands indicate that she struggled for
survival as the defendant inflicted multiple penetrating stab wounds, which
caused internal bleeding, and pain, but which did not cause immediate death.
Though always utterly reprehensible, rape is not always torture. However, the
facts and circumstances of this case, including the rape of the victim, in my
opinion, establish torture as that term was defined in State v. Williams, supra.
Compare State v. Cazes, 875 S.W.2d 253, 271 (Tenn. 1994); State v.
Porterfield, 746 S.W.2d 441, 449-50 (Tenn. 1988). Therefore, I dissent from the
majority’s analysis of the constitutionality and sufficiency of the evidence to
support the aggravating circumstance. In the result reached, and in all other
aspects of the majority decision, I concur.
I am authorized to state that Justice Drowota concurs in this Concurring
and Dissenting Opinion.
________________________________ E. RILEY ANDERSON, Chief Justice
CONCUR:
Drowota, J.
-7-