                   IN THE SUPREME COURT OF TENNESSEE
                              AT NASHVILLE



STATE OF TENNESSEE,                         )
                                            )
       APPELLEE,                            )       HUMPHREYS COUNTY
                                            )
v.                                          )       Hon. Allen W. Wallace
                                            )
WILLIAM E. HALL AND                         )       No. 01S01-9703-CC-00068
DERRICK D. QUINTERO,                        )
                                            )
       APPELLANT.                           )
                                                                  FILED
                                                                 September 21, 1998
               CONCURRING AND DISSENTING OPINION
                                                                 Cecil W. Crowson
                                                                Appellate Court Clerk

       I concur in the majority's conclusion that the defendants' convictions and

sentences of death should be affirmed. I write separately because I disagree

with the majority's analysis of aggravating circumstance Tenn. Code Ann.

§ 39-2-203(i)(8) in this case and in State v. Odom, 928 S.W.2d 18 (Tenn. 1996).

I would reverse Odom on the issue of (i)(8) and hold that aggravating

circumstance (i)(8) is applicable when a defendant commits murder during his or

her escape from lawful confinement. I would hold that the phrase "during an

escape from lawful confinement" denotes the time frame beginning with the

prisoner's unauthorized departure from the prison grounds and continuing until

the prisoner is returned to lawful custody. This holding would: (1) remove any

arbitrariness and ambiguity in the circumstance's application; (2) preserve the

plain meaning of the statute's clear language; and (3) prevent the third prong of

(i)(8) from duplicating (i)(6) so that no part of (i)(8) will be inoperative,

superfluous, void or insignificant.



       The aggravating circumstance in Tenn. Code Ann. § 39-2-203(i)(8)

provides that a sentence of death may be imposed upon a finding that “the

murder was committed by the defendant while the defendant was in lawful
custody or in a place of lawful confinement or during the defendant’s escape

from lawful custody or from a place of lawful confinement” (emphasis added).

The leading case regarding the application of this aggravating circumstance is

State v. Odom, 928 S.W.2d 18 (Tenn. 1996). In Odom, the defendant murdered

an elderly woman while stealing her purse during his escape from a Mississippi

jail where he was serving a life sentence for a previous murder conviction. On

appeal, neither the defendant nor the state challenged the jury's finding that (i)(8)

was applicable.



        In Odom, the Court, without the benefit of argument from either party and

without the development of facts supporting the circumstance's application,

raised the (i)(8) issue sua sponte1 and held that the jury erred in applying (i)(8).

The Court reasoned:



        Our rationale is simple--"during" as used in the statute means
        "throughout the continuance of." The end of the escape marks the
        beginning of one's status as an "escapee." Although Odom was,
        assuredly, an "escapee," by no stretch can we say that the murder
        occurred during the defendant's escape from lawful confinement or
        during the defendant's escape from lawful custody or from a place
        of lawful confinement. When he committed the murder, Odom's
        escape was an accomplished fact--a fait accompli.



State v. Odom, 928 S.W.2d at 27 (emphasis added). The logical interpretation

of Odom on the issue of (i)(8) is that the prisoner's escape was an accomplished

fact once he had left the confines of the prison facility. In the absence of any

development or analysis of the facts on the issue, this is the only reasonable

interpretation of Odom.




        1
         The S tate argu ed in its petition to rehear th at it was ne ver provid ed the op portunity to
brief and argue the application of aggravating circumstanc e Tenn. Code Ann. § 39-2-203(i)(8).

                                                     2
        The majority's logic implies that (i)(8) was inapplicable in Odom because

the murder for which Odom was sentenced to death in Tennessee was

unconnected with and did not further his escape. This logic is inaccurate. In

Odom, the majority noted that:



        the defendant said that his initial intention was to accost Johnson
        and "snatch" her purse after having seen her in the parking garage
        beside her car.



Id. at 22. The jury could have easily made a sound and logical inference that

Odom, after escaping from prison, needed money and killed the victim while

stealing her purse to obtain money to continue or further his escape.2

Accordingly, the jury could have found that Odom's actions furthered his escape

just as the majority concludes that Hall and Quintero's actions furthered their

escape. Because this Court raised the issue, however, sua sponte and decided

without either development of facts or argument by either party, this Court merely

supplanted the jury's findings with a finding of its own on the (i)(8) aggravator.



        The majority's analysis in this case appears to distinguish Odom on two

bases: (1) time; and (2) the fact that the defendants' acts furthered their escape

(were "simply a step toward accomplishing the end"). Employing time as the

sole distinguishing factor creates an ambiguous and arbitrary standard. Is an

escape accomplished after a week, two weeks, or perhaps after six months? An

escape, in my view, is simply ongoing until an escapee is returned to lawful

confinement. Attempting to utilize time as a distinguishing factor on an ad hoc

basis provides absolutely no guidance. Accordingly, the majority in this case,




        2
          The apparent initial motivation for the attack on the 78-year-old victim was that the
defendant wanted to steal her purse. As noted by the dissent in Odom , the defendant accosted
the 78-yea r-old victim and forc ed her into her car d uring the ro bbery attem pt.

                                                3
unlike in Odom, now focuses on whether the murder also furthered the escape,

i.e. whether the "murders were simply a step toward accomplishing this end."



        I believe that the focus in (i)(8) should not be on whether the murder

furthered the escape. Whether a murder was committed to further an escape or

to avoid an arrest is specifically addressed by Tenn. Code Ann. § 39-13-

204(i)(6). The focus in (i)(8), however, is on the defendant's status when the

murder was committed. I believe that circumstance (i)(8) was codified to provide

protection to society from escaped convicts who are less likely to be deterred by

the prospect of further confinement from committing additional crimes. The

danger Odom posed to society as a desperate escaped convict needing money

is the precise danger that (i)(8) was designed to deter. Obviously, the threat of

possible further confinement did not deter Odom, already sentenced to life

imprisonment for murder, from robbing the victim, brutally raping her and

stabbing her multiple times. 3



        Aggravating circumstance (i)(8) may be broken into three prongs: (1)

murder while in lawful confinement; (2) murder while in lawful custody; or (3)

murder during escape from lawful custody or confinement. As applied to the

facts of this case, the first prong would apply to any killing that occurred while the

defendants were on the prison facility's premises. The second would apply if the

defendants had continued to be in lawful custody when they murdered the

victims. See Burns v. State, 584 S.W.2d 827, 829 (Tenn. Crim. App. 1979)

(holding inmate in constructive custody of correctional center although

unguarded while receiving training on college campus; unauthorized leave




        3
         The dissent in Odom indicates Odom's complete disregard for the law and welfare of
others. The dissent noted that victim pleaded with Odom, during the attack, to stop and in her
plea referred to the defendant as "son." The defendant then stated "I'll give you a son" and raped
her in apparent retaliation before killing her.

                                                4
constituted an escape from lawful custody). Neither of these prongs is

applicable to this case.



       The third prong encompasses a murder that occurs "during escape from

lawful custody or confinement." See State v. Workman, 667 S.W.2d 44, 49

(Tenn. 1984) (holding (i)(8) applicable when a fleeing defendant killed officer who

had arrested and escorted defendant from a Wendy's restaurant). If this

language is construed only to encompass a murder occurring on the premises of

a prison, the construction will duplicate the first prong thereby rendering the third

prong superfluous. This Court, however, must construe a statute so that no part

of it will be inoperative, superfluous, void or insignificant. Tidwell v. Collins, 522

S.W.2d 674, 676 (Tenn. 1975). The third prong, therefore, should apply when a

defendant commits murder off the premises of the prison facility and during an

unauthorized leave from confinement or custody. See generally State v.

Gundlah, 702 A.2d 52, 58 (Vt. 1997) (interpreting "murder committed while . . . in

custody under a sentence of confinement" to apply to escaped prisoners "who

have shown by their previous conduct that additional deterrence may be

required") (citing Model Penal Code § 210.6(3)(a), commentary at 136).



       The legislature's choice of words in the statute also supports this

conclusion. The legislature used the word "escape" in (i)(8) as a noun, indicating

an accomplished fact. Had the legislature intended the language "during the

defendant's escape from lawful custody or from a place of lawful confinement" to

be limited only to the actual act of leaving the prison facility grounds, the

legislature should have used escape as a verb, i.e., "while the defendant was

escaping from lawful custody." Alternatively, the legislature could have limited

the factor to "hot pursuit," as a handful of states have done, by explicitly limiting

the circumstance's application only to murders committed to "effect, perfect or


                                           5
during an attempt to perfect" an escape from lawful custody or confinement.

See generally Cal. Penal Code § 190.2(5) ("The murder was committed for the

purpose of avoiding or preventing a lawful arrest, or perfecting or attempting to

perfect, an escape from lawful custody."); Nev. Rev. Stat. 200.033(5) ("The

murder was committed to avoid or prevent a lawful arrest or to effect an escape

from custody."); Utah Code Ann. § 76-5-202(1)(e) ("homicide was committed . . .

for the purpose of effecting . . . escape").



       The phrase "during escape" implies that the circumstance applies to a

murder committed by a defendant while on escape status from a sentence of

imprisonment. A defendant who has unlawfully departed from confinement or

custody and temporarily regained his liberty is on "escape status" until returned

to lawful custody. See generally People v. Davis, 400 N.Y.S.2d 735, 741 (N.Y.

1977) ("escaped from such confinement or custody and had not yet been

returned"). Extending (i)(8) to murders occurring off the prison premises while a

defendant is on escape status fulfills society's need for protection from escaped

convicts who are less likely to be deterred from committing homicide merely by

the prospect of possible further confinement. See generally People v. Davis,

794 P.2d 159, 181-82 (Colo. 1990) ("providing additional deterrence to persons

with little to lose in committing criminal acts"). Accordingly, I believe that the

legislature intended the third scenario of (i)(8) to apply when an escaped convict

commits murder while on escape status or during an unauthorized leave from

custody or confinement.



       In the case now before us, the evidence establishes that the defendants

murdered the victims during their escape from the state penitentiary in Eddyville,

Kentucky, just as Odom murdered his victim during his escape from lawful

confinement where he was serving a life sentence for a prior murder. The


                                           6
majority distinguishes the present case on the basis that these defendants stole

a car to further their escape. This contingency, however, is covered by

aggravating circumstance (i)(6). Tenn Code Ann. § 39-13-204(i)(6) ("murder was

committed for the purpose of avoiding, interfering with or preventing a lawful

arrest . . .").



        Limiting (i)(8)'s application to only those circumstances in which the proof

establishes that the defendant killed another to further his escape would render

the third prong of (i)(8) duplicative of (i)(6). I do not believe that the legislature

intended the third prong of (i)(8) to apply only when (i)(6) is applicable.

Moreover, I find it tenuous to distinguish this case from Odom especially when

the facts in Odom were neither developed nor argued on the (i)(8) issue now

before this Court.



        In conclusion, I would overrule Odom's interpretation of (i)(8). I would

hold that (i)(8) is applicable when a prisoner commits murder during an

unauthorized departure from lawful confinement.




                                            JANICE M. HOLDER, JUSTICE




                                            7
