State v. Davidson

¶1with whom ADOLPHO A. BIRCH, JR., J„ joins in part, dissenting.

¶2I disagree with the majority’s decision affirming the defendant’s conviction and sentence for premeditated first degree murder. After reviewing the record, I am convinced that the evidence was insufficient for a rational trier of fact to have found the element of premeditation beyond a reasonable doubt and that the admission of Darla Harvey’s testimony was reversible error. I would therefore reverse the Court of Criminal Appeals’ judgment and remand for a new trial.

¶3Premeditation

¶4The majority concludes that the circumstantial evidence was sufficient to support the jury’s verdict that the defendant was guilty of the premeditated first degree murder of Virginia Jackson. In my view, the evidence was insufficient to sustain the conviction for first degree murder because there was no evidence of the defendant’s planning, the defendant’s prior relationship with the victim, the cause or manner of the victim’s death, or any other evidence from which a rational trier of fact could have inferred beyond a reasonable doubt that the crime was premeditated, ie., committed “after the exercise of reflection and judgment.” See TenmCode Ann. § 39-13-202(d) (1997).

¶5When evaluating the sufficiency of the evidence, the Court must determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 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).

¶6At the time of the offense, first degree murder included a “premeditated and intentional killing of another.” Tenn.Code Ann. § 39-13-202(a)(l) (Supp.1995). The element of premeditation was 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 *626the 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.

¶7Tenn.Code Ann. § 39 — 13—202(d) (Supp. 1995).

¶8This Court has traditionally cited several circumstances that may warrant the trier of fact to find premeditation: the defendant’s use of a deadly weapon upon an unarmed victim; the particular cruelty of a killing; the defendant’s threats or declarations of intent to kill; the defendant’s procurement of a weapon; the defendant’s preparations to conceal the crime that are undertaken before the crime is committed; and a defendant’s calmness immediately after a killing. State v. Bland, 958 S.W.2d at 660; see also State v. Keough, 18 S.W.3d 175, 180 (Tenn.2000). These factors, while not exhaustive, demonstrate that premeditation may be established by any evidence from which a rational trier of fact may infer that the killing was done after the “exercise of reflection and judgment.” See Tenn. Code Ann. § 39-13-202(d). They also illustrate, however, that a jury may not speculate as to the events of a crime or the defendant’s mental state. See State v. West, 844 S.W.2d 144, 148 (Tenn.1992) (holding that evidence did not support jury’s finding of premeditation and deliberation beyond a reasonable doubt).

¶9The circumstantial evidence established that the victim accepted a ride from the defendant, that the victim’s belongings were later found strewn along a road near her house, that the defendant was driving slowly with an object wrapped in a white sheet in the passenger seat of his truck, that the victim’s mutilated and decomposed body was found not far from where the defendant had been driving, and that items found near the victim’s body and a nearby campsite were linked to the defendant and the victim. Although there is no doubt that this evidence was sufficient to establish that the defendant killed the victim, that does not end the analysis.

¶10In my view, there was no evidence from which a rational trier of fact could have inferred beyond a reasonable doubt that the defendant’s actions in killing the victim were premeditated, ie., “after the exercise of reflection and judgment,” either before, during or after the offense. There was no evidence in this unusual case, for example, establishing the manner in which the victim was killed, the cause of her death, or even the time or location of the killing. There was no evidence that the defendant had declared his intent to kill the victim or that he had any stated intent or motive in killing the victim. See Keough, 18 S.W.3d at 181. There was likewise no evidence that the defendant procured a weapon in advance for the purpose of killing the victim, made preparations to conceal the lolling before it was committed, or exhibited a calm or cool demeanor immediately after the killing. See West, 844 S.W.2d at 148. In short, evidence supporting the factors we have traditionally relied upon in analyzing premeditation was absent in this case. See id.

¶11Despite the absence of proof, the majority concludes that there was sufficient circumstantial evidence to show that the killing was premeditated. I disagree. Given that there was no evidence establishing when, where, or even how the victim was killed, any inference that the killing involved a struggle, the use of restraints, or any other premeditated act by the defendant while the victim was alive is pure conjecture. Moreover, given that there was no evidence establishing the manner *627of the killing or the cause of death, any reasonable inference that the mutilation of the victim after her death was probative of the defendant’s premeditation before the killing is likewise not supported by the record. In sum, there was simply no evidence of exactly what transpired from the time the victim accepted a ride from the defendant to the time she was killed and no evidence of the defendant’s premeditated mental state before the killing. Although the prosecution’s theory regarding the events may have been correct, “it remained] only a theory, because the prosecution [had] no evidence to support it.” West, 844 S.W.2d at 148.

¶12Accordingly, I disagree with the majority’s conclusion as to the sufficiency of the evidence and I would hold that the State’s evidence in this unusual case was not sufficient for a rational trier of fact to have found the element of premeditation beyond a reasonable doubt.

¶13Admission of Darla Harvey’s Testimony

¶14My review of the record also indicates that the trial court committed reversible error in allowing Darla Harvey to testify that the defendant made her afraid and nervous by staring at her three weeks after the victim’s disappearance. The testimony was irrelevant, unfairly prejudicial, and an improper lay opinion in violation of Tennessee Rules of Evidence 401, 408, and 701.1

¶15As the majority summarizes, Darla Harvey testified that when Davidson was in Lakeview Tavern on October 12, 1995, i.e., three weeks after the victim’s disappearance, he sat and silently stared at her for over an hour while sipping his beer. Harvey stated that the defendant made her feel “uncomfortable” and that “something was wrong.” She further stated that as the defendant’s staring continued, she got a “gut feeling” that she should go outside and look at his track. After examining his truck, she said to herself, “Good I got me a nut.”2 After re-entering the bar, her unease increased as the defendant continued to stare at her, went to the restroom, and looked out the back door. Harvey testified that it was “odd” for the defendant to leave the bar at one point to get a cigarette because he had just opened a pack of cigarettes. She believed that “something wasn’t right” when the defendant returned because he did not speak to her when she addressed him and he kept his hand in his pocket. Harvey said that by this time, her feeling about the defendant was so “bad” that she placed her gun close at hand and was ready to shoot the defendant if he came any closer. Finally, Harvey testified that she felt so anxious that she urged some customers to ask the defendant to leave and he did so.

¶16Prior to Harvey’s testimony, the trial court conducted a jury-out hearing and determined that Harvey’s testimony was indicative of the defendant’s “common scheme” and was admissible as evidence of motive. The trial court said:

The probative value outweighs the prejudicial effect. I said it’s highly prejudicial, but I think it’s probative value ... and the reason I’m letting it be entered is to prove a circumstantial evidence of motive, and that’s the only reason I’m entering it now.

¶17The Court of Criminal Appeals found that Harvey’s statements about the defendant were relevant to show “intent and *628planning” but that the admission of her testimony regarding her feelings was error. The court found the error to be harmless, however, given that other witnesses conveyed similar stories about the defendant’s behavior. See Tenn. R.App. P. 36(b); Tenn R.Crim. P. 52(a).

¶18Rule 401 of the Tennessee Rules of Evidence defines relevant evidence as that “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401. Evidence that is relevant under Rule 401 may be excluded, however, when “its probative value is substantially outweighed by the danger of unfair prejudice.... ” Tenn. R. Evid. 403.

¶19Much of Darla Harvey’s testimony, particularly her gut feelings, retrieval of her gun, and negative characterization of the defendant, was irrelevant under Rule 401 of the Tennessee Rules of Evidence. Although the majority reasons that the evidence was helpful to understanding why Harvey acted as she did, there was no showing that this witness’s state of mind, gut feelings, or opinions describing the defendant’s behavior some three weeks after the victim’s disappearance had any probative value in determining what events occurred with respect to the victim’s death. Moreover, there was no explanation of how Darla Harvey’s testimony had any probative value with regard to the defendant’s mental state on September 26, 1995. See Tenn. R. Evid. 401. Accordingly, the probative value of this testimony was substantially outweighed by its risk of unfair prejudice. Tenn. R. Evid. 403.3

¶20In addition, I fail to see how Darla Harvey’s testimony would be admissible as evidence of other crimes, wrongs or acts to establish “planning and intent” as asserted by the Court of Criminal Appeals. See Tenn. R. Evid. 404(b). As stated in Rule 404(b), “[ejvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity with the character trait.” Although such evidence may be admissible for other purposes, there was no showing that Davidson’s conduct as described by Darla Harvey was so unique or distinctive that it fit a “common scheme or plan” as found by the trial court and the Court of Criminal Appeals. See State v. Moore, 6 S.W.3d 235 (Tenn.1999). Nor was there a showing that the evidence was admissible for any other purpose under Rule 404(b). Instead, the prosecution used this testimony to establish the defendant’s alleged anti-social behavior by drinking alone in bars, remaining quiet, and staring at women.

¶21Finally, I disagree that the admission of this evidence was harmless on the basis that it was cumulative to similar testimony from other witnesses. No other witness testified with the same level of unfairly prejudicial detail and characterization as did Darla Harvey. Indeed, it was Darla Harvey’s testimony that the prosecution placed great emphasis upon in its closing arguments:

You all remember Darla Harvey.... You recall what she said ... [the defendant was] staring at her, blatantly I believe her words were. It made her feel uncomfortable ... because Jerry Davidson was sitting there staring at her .... Well Darla Harvey at that time knew something was up because she sat there and said I knew he had opened up a new pack of cigarettes and I knew that he didn’t need any new pack of cigarettes. And she goes to the end of that bar and she reaches up underneath *629there and she gets that gun and she flips it off safety and she is ready for Jerry Davidson .... And she got that gun and what did she say to you all? She sat there and said, “if he’d come just a little bit further, I’d have shot him.”

¶22(Emphasis added). Although the majority concludes that the testimony was “unlikely to result in any unfair prejudice,” the prosecutor emphasized Darla Harvey’s testimony as additional evidence on the close question of the defendant’s mental state and alleged premeditation in killing the victim:

[Davidson] ... was a guy that scared [Darla Harvey] out of her wits.... It’s ... important because coupled with the other evidence in this case, listen to me when I say this, coupled with the other evidence in the case, it gives you a glimpse of the defendant Jerry Davidson’s mind. Just a glimpse. Does it mean anything? Does it mean anything about motive in this case? I told you in the beginning of this case there’s some things we weren’t going to be able to prove, but maybe, maybe we have.... [Y]ou know the instruction the Court’s going to give you, when you’re considering the case of premeditated murder, listen to ... what the judge is going to tell you. It tells you when you’re considering whether he premeditatedly killed this woman, it tells you you kind of have to look in his mind.

¶23(Emphasis added).

¶24Accordingly, given the insufficient evidence of premeditation in this case and the prosecutor’s emphasis on Darla Harvey’s improper testimony for attempting to establish the defendant’s mental state, I would hold that the trial court’s ruling was reversible error.

¶25Conclusion

¶26Accordingly, I disagree with the majority’s decision affirming the defendant’s conviction and sentence for premeditated first degree murder. I am convinced that the evidence was insufficient as to the element of premeditation and that the admission of Darla Harvey’s testimony was reversible error. I would therefore reverse the Court of Criminal Appeals’ judgment and remand for a new trial.

¶27I am authorized to state that Justice Birch joins in this dissent with respect to the admission of Darla Harvey’s testimony.

¶31dissenting.

¶32I write separately to dissent from the majority’s holding that the evidence in this case is sufficient to establish premeditation and to express my grave concern that the majority continues to employ a proportionality review that I view as wholly inadequate. I join, however, Justice Anderson’s dissent regarding the admission of Darla Harvey’s testimony.

¶33A. Sufficiency of the Evidence

¶34The majority concedes that the paucity of the evidence supporting premeditation presents the Court with a “close” question as to whether premeditation was established beyond a reasonable doubt; it then concludes that the “facts and circumstances as a whole” show premeditation. In my view, however, the proof of premeditation is woefully lacking. The proof as I view it not only fails to show premeditation, but demonstrates instead that the homicide resulted from impulsive behavior.

¶35There was not even one scintilla of evidence in the record that the defendant engaged in any preparation or planning for this crime. The defendant’s lack of preparation is evidenced in the circumstances that brought the defendant and the victim together. On the evening of the crime, the *630defendant and the victim left a bar together because the victim had no transportation, a circumstance that the defendant could not have anticipated. Further, the defendant showed no concern for keeping his conversation with the victim private, and he offered her transportation while in earshot of the bartender.

¶36The majority points to a “veritable arsenal of weapons” found in the defendant’s truck as evidence of premeditation. The items found in the defendant’s truck, however, allow for numerous other conclusions. To follow the majority’s reasoning, the defendant, who had already planned to kill, had only to choose a victim and then from his “arsenal” find the means with which to accomplish the crime. Other and more plausible conclusions emerge. The items in the defendant’s truck may also suggest a rather nomadic person whose possessions are never far from hand or a person well-equipped for any eventuality that may arise in a rural area. Just as clearly, it may be that the defendant is simply an untidy person.

¶37Further evidence points to the conclusion that the defendant did not act with premeditation. The victim voluntarily left the bar with the defendant, and while the events that followed are unclear, the evidence showed that the victim’s house was unlocked and that there was no sign of struggle or blood in her home. The evidence did show that the victim’s blood was in the defendant’s truck, that articles belonging to the victim were found in a field near her home, and that the defendant made a statement to police that the victim might be found chained to a tree with her head and hands missing. From this evidence, the majority concludes that the victim was first taken to a field near her home and attacked in some way, and then she was taken to a secluded area, chained to a tree, and murdered by the defendant, who was at all times acting with premeditation in committing this crime.

¶38It is with the majority’s interpretation of the evidence that I cannot agree. Had there been blood or signs of struggle in the field, or had the victim been found chained to a tree, this theory would merit further consideration. However, such is not the case, and the evidence lends itself to other more logical interpretations. One interpretation might be that the defendant, as a result of some unexpected event, killed the victim, and after figuring out how to bury her, dumped her possessions in the field. An interpretation such as this does not involve premeditation. Accordingly, the evidence certainly does not prove beyond a reasonable doubt that the defendant committed a premeditated murder, especially when the evidence of premeditation is entirely circumstantial.1

¶39*631The defendant’s behavior after the crime also supports an interpretation that he did not plan this murder. After the crime, the defendant suddenly and unexpectedly disappeared from his job and his home, which resulted in a missing person report being filed. Again, this conduct is more suggestive of a panicked response to an unexpected event rather than of a premeditated murder.

¶40Finally, I disagree with the majority’s conclusion that the “nature of the mutilation” shows a pre-existing intent to kill “carried out with care and precision.” The reason for the mutilation is unascertaina-ble; nothing, however, in this conduct reflects a calm or reflective mental state— either before or after the murder. If anything, this conduct suggests extreme irrationality.

¶41Therefore, since the circumstantial evidence considered as a whole is just as easily construed to support a less culpable mental state, I would find that a reasonable doubt as to the element of premeditation remains.

¶42B. Comparative Proportionality Review

¶43Furthermore, I continue to adhere to the views expressed in a long line of dissents beginning with State v. Chalmers, 28 S.W.3d 913, 920-25 (Tenn.2000) (Birch, Jr., J., concurring and dissenting), and elaborated upon in State v. Godsey, 60 S.W.3d 759, 793-800 (Tenn.2001) (Birch, Jr., J., concurring and dissenting), that the comparative proportionality review protocol currently embraced by the majority is an inadequate protection from the arbitrary and disproportionate imposition of he death penalty. See TenmCode Ann. § 39-13-206 (1997).

¶44In addition to the substantive shortcomings of the procedure this Court has adopted, the continuing failure of our database compilation system to generate a reliable source of information for purposes of proportionality review further compromises reliable conclusions as to proportionality. Pursuant to Rule 12 of the Tennessee Rules of the Supreme Court, a report is required to be completed in all cases in which the defendant is convicted of first degree murder, including cases in which the conviction is by a plea of guilty. Tenn. R. Sup.Ct. 12(1). There is a form requiring specific information about the facts of the crime, the background of the defendant and victim, and the sentence received. See id. The trial court is required to compile all the information required and transmit the report to the Clerk of the Supreme Court within fifteen days after it has ruled on the motion for new trial. Id.

¶45The Rule 12 reports constitute the sole method by this Court of keeping a separate tally of the sentences imposed in first degree murder convictions, and thereby, it is the best source of cases to consider in a proportionality review. However, by just looking at my office files of the first degree murder cases presented before this Court in the last six months of 2002, roughly twenty-nine percent of first degree murders are not being included in these Rule 12 reports.2 Although the Department of Corrections apparently keeps records from which all first degree murder convictions and sentences could be extracted, as well as those convictions where the defendant was charged with first degree murder but was convicted for a lesser offense, the Court relies on the Rule 12 reports that are filed with the Clerk for its record of first degree murder convictions and sen*632tences. This Court has been greatly disappointed when revelations of omitted cases have shown the scarcity of these records. Consequently, we have attempted to rectify the problems through both rule amendments and internal procedures.

¶46Despite published assurances from this Court that procedures to ensure the filing of Rule 12 reports are now in place, see Godsey, 60 S.W.3d at 785, it is apparent that the database compilation process is still not working. Petitions for first tier review were filed for roughly forty-one first degree murder convictions; in twelve of these cases (involving thirteen defendants), no Rule 12 report was filed.3 In one of the cases in which a Rule 12 report was filed, the report omitted the facts of the murder.4 Such information is crucial in a proportionality review. The inevitable conclusion is that, six years after our proportionality review process was carefully explained in State v. Bland, 958 S.W.2d 651, 661-74 (Tenn.1997), and one year after remaining problems with reporting were recognized in the dissent in Godsey, 60 S.W.3d at 793-800, twenty-nine percent of first degree murder defendants (in my review, none of whom were sentenced to death5) are still not being represented in the Rule 12 reporting system. The Rule 12 reporting system, as a method of enabling this Court to practically consider similar cases in its proportionality review, has failed.

¶47The omission of cases in which the death penalty was not imposed affects the integrity of our analysis. How can our Court or the Court of Criminal Appeals determine whether the sentence of death is proportional when many of the cases in which death was not imposed are not accessible for review? In looking for cases similar in circumstances to the defendant’s, only death cases were apparent from our initial search of the filed Rule 12 reports, a misleading result considering the number of cases involving kidnapping and killing in which a life sentence was imposed.

¶48For example, in the case of State v. Antonio Dewayne Carpenter, No. W2001-00580-CCA-R3-CD, 2002 WL 1482799, at *1 (Tenn.Crim.App. Feb.12, 2002), the defendant was convicted of felony murder, premeditated murder, especially aggravated kidnapping, and especially aggravated robbery. Id.According to the evidence presented at trial, the victim was abducted from a Sonic restaurant at gunpoint. Id. at *3. She was struck in the head, and run over with a car several times. Id. Her body was moved to a ditch and covered. Id. There was medical testimony that the *633victim was alive when she was struck in the head, when her larynx was crushed, and when she sustained the crushing injuries to her ribs, pelvis, abdomen, and chest. Id. at *4. Though the death penalty was sought, the Fayette County jury sentenced the defendant to life without the possibility of parole. Id. at *1. No Rule 12 report was filed in that case. The two co-defendants in that case were not eligible for the death penalty (and thereby not part of the proportionality pool) because of mental retardation and age. Id. at *1, n. 2; See State v. Robert Lewis Carpenter, Jr., 69 S.W.3d 568 (Tenn.Crim.App.2001); State v. Glover, No. W2000-01278-CCA-R3-CD, 2001 WL 1078279 (Tenn.Crim. App. Sep.14, 2001). The co-defendants, however, are included in the Rule 12 reporting system.

¶49Antonio Dewayne Carpenteris a case involving kidnapping and mutilation that should be included in the pool when determining the proportionality of the defendant’s sentence, but because it was not properly reported, it was not considered by the Court of Criminal Appeals, nor is it mentioned by the majority. Who knows how may other similar kidnapping cases are not included in the Rule 12 reports. Even for the Rule 12 reports that are filed, delays and omissions compromise the integrity of the resulting proportionality pool.

¶50After Rule 12 reports are filed, they are compiled on a CD-ROM disk which attorneys may obtain from the Administrative Office of the Courts. The specific factors of each case relevant to proportionality review are supposed to be entered using “field codes.”6 Thereby, a death penalty computer database is created which may be used by this Court and accessible to the litigants to find similar cases. Additionally, an exact image of the Rule 12 report is scanned onto the disk.

¶51The CD-ROM became available to attorneys in June 1999. Unfortunately, attorneys have had mixed success in their ability to access the information on the disk from their computers. Aside from these purely technical difficulties, there are also problems with incomplete entries. As stated in one newspaper article, “hundreds of cases included in the database ... are missing important details about the crime, defendant, and victim.” Godsey, 60 S.W.3d at 796 (quoting John Shiftman, Missing Files Raise Doubts About Death Sentences, The Tennessean (Nashville), July 22, 2001, at Al). Indeed, this was the case in State v. Alfonzo Williams, W2001-00452-SC-R11-CD (perm.app.denied), in which the Rule 12 report omitted the facts of the murder. Aside from determining from the field codes that the case involved a robbery and killing by shooting, the entry on the database does not explain the facts. Because Williams was appealed, the facts can be found by further research of the Court of Criminal Appeal’s opinion. See State v. Williams, No. W2001-00452-CCA-R3-CD, 2002 WL 1482695 (Tenn.Crim.App. Mar.15, 2002).

¶52Other types of omissions, even in appealed cases, are harder to track. For instance, though there are field codes which indicate whether the death penalty was sought, the information on the CD-ROM sometimes omits this information. In State v. Corley, No. 87-286-III, 1989 WL 41579, at *1 (Tenn.Crim.App. Apr.28, 1989), the unpublished Court of Criminal Appeals opinion states that “[t]he record describes in graphic detail 15 hours of *634unrestrained criminal indulgence during which one victim, an elderly man, was cheated, robbed, kidnapped and held captive and another victim, a young woman, was murdered almost casually.” The defendant was sentenced to life. The field codes entered for this defendant omit any reference to whether the death penalty was sought; therefore, it is unclear whether the case should be included in the pool or not. If one used the field codes to research only capital cases involving a kidnapping on the CD-ROM, this case would not be shown. Nor would more traditional research on Westlaw or Lexis rectify the problem because the opinion does not refer to the original sentence sought. See generally id.In other words, a computer search for the word “death” or “capital” in the opinion will not reveal this case.

¶53In general, the use of traditional methods of research is inadequate to fill the gaps in Rule 12 reporting. Such research is difficult, time consuming, and expensive. Furthermore, such research necessarily reveals only those cases with published or unpublished written opinions, or in other words, those cases which were appealed. Therefore, where a conviction is not appealed (a far more likely occurrence where the sentence is life or life without parole), a Rule 12 report is the only practically available source of information. Additionally, those first degree murder cases which are appealed do not always state whether the death penalty was sought, a determination which presently must be made in deciding whether to include a case in the pool.

¶54Aside from the failure to enter certain information, the sheer delay in disseminating the information affects the pool. In looking for cases with facts similar to the case pending before us, one recent case that indicates current juries would impose a sentence of life without parole is State v. Geraldrick Jones, W2002-00747-CCA-R3-CD (pending in C.C.A.). In Jones, after a first date, the defendant brought the willing victim home with him; after an argument, he hit her several times with his hands and with a five pound barbell weight. The victim attempted to escape, but the defendant choked her, obtained a knife from the kitchen, and cut the victim’s throat seven times, almost severing her head. He attempted to sever her limbs so that she would fit into the garbage container. A Shelby County jury sentenced the defendant to life without parole. However, when searching for cases similar to Davidson using the Rule 12 CD-ROM on January 8, 2003, this case could not be found even though the Rule 12 report had been filed with the clerk eight months earlier.7 It was not until an updated CD-ROM was distributed in mid-January of 2003, after the publication of the Court of Criminal Appeals opinion, that the Jones case appeared on the CD-ROM disk. Although the Administrative Office of the Courts has actively sought to update the disk every six months,8 given that recent cases are more indicative of how recent crimes under recent circumstances influence sentencing, every six months is not enough. Any system that denies access to current sentencing in first degree murder cases denies a true proportionality review.

¶55These flaws must be rectified before a death sentence may be affirmed. The problems with the Rule 12 proportionality review system do not exist because of intentional or insincere efforts on the part of *635our judicial system. The problem is that the goal — a system of fairly comparing cases so that defendants are guaranteed that the termination of life is not a disproportionate punishment — requires precise compliance with the adopted method of compiling and disseminating pertinent information. The diversity of human nature exhibited in each particular county, jury, and juror, inevitably leads to disparate sentences in capital cases. There is no other logical explanation for life sentencing in cases involving the brutal kidnapping, torture and murder of more than one victim, see e.g., State v. Tatrow, No. 03C01-9707-CR-00299, 1998 WL 761829 (Tenn.Crim.App. Nov. 2, 1998),9 and a death sentence in the kidnapping and murder in the case before us now. A true proportionality review is critical to rectifying and balancing such disparate sentences. Without a proportionality review that is based on all of the pertinent cases, this Court, as well as the Court of Criminal Appeals, continues to risk affirming disparate sentences.

¶56The problem of implementing an effective proportionality review is not unique to Tennessee. Relying on findings from the Bureau of Justice Statistics and other legal studies, legal commentators opine that the drop in the percentage of Americans who favor the death penalty (from eighty percent to seventy percent),10 the drop in the number of people entering death row (which also declined relative to the homicide rate),11 and the drop in the number of people executed,12 reflect the public’s and the judicial system’s serious concerns about the administration of capital punishment. Adam Liptak, Number of Inmates on Death Row Declines as Challenges to Justice System Rise, N.Y. Times, Jan. 11, 2003, at A13. News articles show that in public opinion polls, forty to fifty percent of the population believe the death penalty is not administered fairly, a perception that “has more to do with practical problems [in fairly choosing those to be executed] than bedrock beliefs [opposing capital punishment].” Id.The result is that although only twelve states plus the District of Columbia have formally rejected execution as a form of punishment. Tracy L. Snell & Laura M. Maruschak, U.S. Dep’t of Justice, Capital Punishment 2001 1 (Dec.2002). In practicality, it is the minority of locations that utilize the death sentence: “[Eighty] percent of American counties had no death penalty convictions from 1983 to 1997, and another 10 percent had only one.... ” Liptak, supra, at A13. Such limited use of capital punishment not only indicates concerns with the system by those responsible for imposing the law, but it also somewhat explains the inconsistency between sentences in cases in which the facts are equally horrendous.

¶57*636No sentence of death should be affirmed until the evident inconsistencies in the imposition of sentences among juries can be checked through an adequate proportionality review. Both the imposition and execution of death sentences should be recognized by this Court as too unpredictable to meet the requirements of justice.

¶58C. Conclusion

¶59In conclusion, I find that the evidence is not sufficient to establish a premeditated killing beyond a reasonable doubt, and that a death penalty review under the comparative proportionality protocol presently used by the majority must not be upheld. Accordingly, I respectfully dissent.