State v. Bondurant3/20/1998
ostitute, accompanied the victim, who sought the defendant's services, to the victim's home. There, the defendant bound the victim's hands and feet and, with the help of a female accomplice, removed property from the victim's home. Afterward, despite the victim's pleas for his life, the defendant strangled him with a rope. The defendant was 24, the victim 37. Both men were white. Several non-statutory mitigating circumstances were listed by the trial court, and the jury found the presence of aggravating factors (2) and (5). The supreme court found that factor (5) was supported by the proof, as was factor (2) which was based upon prior convictions for armed robbery, attempted kidnapping, robbery, and murder.
State v. James Lloyd Julian II, No. 03C01-9511-CV-00371 (Tenn. Crim. App., Knoxville, July 24, 1997), pet. perm. app. filed (Tenn. Oct. 30, 1997), is a case where the jury, after convicting Julian of first-degree murder, declined to impose the death penalty and imposed instead a life sentence without parole. The victim was a female child, age three. Julian killed the victim by strangulation during the perpetration of rape. Id., slip op. at 5. The defendant offered expert testimony both at the trial and the sentencing hearing to show that the defendant, a "polysubstance abuse" and himself a victim of sexual abuse as a child, was afflicted with a depressive disorder, a mixed personality disorder, and chronic alcoholism. Id., slip. op. at 8, 37-38. The jury found as aggravating circumstances that the "victim was under twelve (12) years old and that the murder was especially heinous, atrocious, or cruel," Tenn. Code Ann. § 39-13-204(I)(1), (5) (1990); however, the jury found the aggravating circumstances did not outweigh the mitigating circumstances. Id., slip op. at 9.
In totality these cases illustrate that the death sentence imposed in the present case is neither arbitrary nor disproportionate. As pointed out above, the means and manner of the murder are cognizable under factor (5). Hodges, 944 S.W.2d at 357. Moreover, the penalty has been imposed on several occasions when a male defendant murdered a male victim of the same race and same general age grouping, especially when aggravating factor (2) was present. As mentioned above, our supreme court in Boyd assigned particular significance to a prior violent felony conviction. In conducting a Howell analysis, see State v. Howell, 868 S.W.2d 238 (1993), of a Middlebrooks claim, the court compared the impact of factor (7) with that of factor (2) and concluded that Boyd's prior conviction for second-degree murder weighed heavily in the balance in rendering harmless any Middlebrooks error. It said, "Although the statute assigns no relative importance or weight to the aggravating circumstances, we observed that a prior felony conviction `may be more qualitatively persuasive and objectively reliable' than other factors." Boyd, --- Tenn. ---, slip op. at 8 (quoting Howell, 868 S.W.2d at 261).
XII. CONCLUSION
We have carefully considered the appellant's contentions as to alleged errors occurring during the guilt phase and the sentencing phase of the trial. We fail to find reversible error and affirm the appellant's convictions and sentences.
CURWOOD WITT, JUDGE
CONCUR:
PAUL G. SUMMERS, JUDGE
DAVID G. HAYES, JUDGE
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