                  IN THE SUPREME COURT OF TENNESSEE

                              AT NASHVILLE
                                                            FILED
                                                                 June 15, 1998
STATE OF TENNESSEE,                 )      FOR PUBLICATION
                                    )                       Cecil W. Crowson
     Appellee,                      )      FILED:          Appellate Court Clerk
                                    )
v.                                  )      CHEATHAM COUNTY
                                    )
JAMES BLANTON                       )      HON. ALLEN W. WALLACE, JUDGE
                                    )
     Appellant.                     )      NO. 01-S-01-9605-CC-00093



                  CONCURRING AND DISSENTING OPINION



           I join the majority in affirming the conviction of the

defendant on two counts of premeditated first-degree murder, three

counts of grand larceny, and three counts of first-degree burglary.

However,   because   I   conclude   that    the     punishment    of   death     is

disproportionate under the record in this case, I respectfully

dissent.



           The defendant argues that the “heinous, atrocious, and

cruel” aggravating circumstance cannot apply to him because there

is no evidence that he shot or stabbed Mrs. Vester.               The majority

disposes of his argument by concluding that the evidence was

clearly sufficient to support the convictions.                   However, the

“sufficiency of the evidence” analysis, utilized to determine

whether to uphold a conviction, should not also be utilized to

uphold imposition of the death penalty.             Clearly, its standard of

review is too deferential for use in this context.                See State v.

Sutton, 761 S.W.2d 763, 764-65 (Tenn. 1988), cert. denied, 497 U.S.

1031, 110 S. Ct. 3287, 111 L. Ed.2d 796 (1990) (when determining
the sufficiency of the evidence, the standard of review is whether,

after considering the evidence in the light most favorable to the

State, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt).                 The death

penalty involves the most serious of all constitutional issues.

Consequently, evidence should be scrutinized closely when a court

is reviewing its imposition.



             As stated, I agree with the majority’s conclusion that

the evidence is clearly sufficient to support the convictions, even

though there is no direct evidence that the defendant shot or

stabbed either victim. With respect to the sentence, however, I am

unwilling to acquiesce in the imposition of the death penalty

without a closer link between the defendant and the perpetration of

the crime.    As Justice Reid noted in his dissent, the evidence does

not even necessarily place the defendant at the scene of the

killings as they were occurring.         For this reason, I conclude that

“the defendant’s involvement or role in the murder[s],” a factor of

proportionality, is dispositive here.         Because there is no direct

evidence   that   the   defendant   was    present   at   the   time   of   the

killings, I conclude that the penalty of death is disproportionate,

and indeed unconstitutional.        See Tison v. Arizona, 481 U.S. 137,

107 S. Ct. 1676, 95 L. Ed.2d 127 (1987); State v. Branam, 855

S.W.2d 563, 570-71 (Tenn. 1993).            Accordingly, I respectfully

dissent.




                                    ___________________________________
                                    ADOLPHO A. BIRCH, JR., Justice

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