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State v. Godsey11/29/2001
factors relevant to the comparative proportionality inquiry. Bland, 958 S.W.2d at 667. This Court utilizes all the tools at its disposal to conduct a thorough and complete comparative proportionality review in every case.
However, we do not employ a statistical analysis that attempts to quantify the various factors leading to imposition or non-imposition of the death penalty. Id. at 664. Comparative proportionality review is not a rigid, objective test which employs mathematical or scientific techniques. Bland, 958 S.W.2d at 668; Cazes, 875 S.W.2d at 270. This sort of approach has been rightly criticized as an unworkable attempt "to quantify the unquantifiable." See Bland, 958 S.W.2d at 664 (quoting, Webb, 680 A.2d at 209); see also Ramsey, 864 S.W.2d at 327-28. As previously explained, a sentence of death is not disproportionate, unless, the case taken as a whole is plainly lacking in circumstances consistent with those in cases where the death penalty has been imposed.
In comparing similar cases, this Court considers many variables including: (1) the means of death; (2) the manner of death (e.g., violent, torturous, etc.); (3) the motivation for the killing; (4) the place of death; (5) the similarity of the victims' circumstances including age, physical and mental conditions, and the victims' treatment during the killing; (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 effects on nondecedent victims. Bland, 958 S.W.2d at 667 (citing cases). In addition, several criteria are relevant to a comparison of the characteristics of defendants which include: (1) the defendant's prior criminal record or prior criminal activity; (2) the defendant's age, race, and gender; (3) the defendant's mental, emotional or physical condition; (4) the defendant's involvement or role in the murder; (5) the defendant's cooperation with authorities; (6) the defendant's remorse; (7) the defendant's knowledge of helplessness of victim(s); (8) the defendant's capacity for rehabilitation. Id.
Before we consider the record in this case in light of these factors, we first consider the State's assertion that the Court of Criminal Appeals erred when conducting comparative proportionality review by considering Tennessee cases in which the death penalty was not sought and by considering cases from other jurisdictions. We note that the Court of Criminal Appeals indicated in an order denying the State's petition to rehear that the Tennessee cases in which the death penalty were not sought were used only to provide context and to illustrate the possible remedies, in view of the conclusion that the sentence was disproportionate. The Court of Criminal Appeals also explained that the out-of-state cases were cited to demonstrate "the extensiveness of our research and our concerted effort to reach the right result." Accordingly, the Court of Criminal Appeals did not base its decision upon the cases in which the State did not seek the death penalty or the out-of-state cases.
In any event, it is worth reiterating that the pool of similar cases includes only cases in which the death penalty was sought, a sentencing hearing was held, and a sentencing jury determined the appropriate sentence. Whether out-of-state cases should be included in the pool of similar cases for purposes of comparative proportionality review is an issue this Court has not previously addressed. In its jurisprudential history there is no indication that comparative proportionality review was to be conducted on a national scale. Such review generally is performed by at least one state appellate court that has statewide appellate juris
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