Children were methodically executed, their bodies stacked

'They didn't suffer,' Holton told police

By Leon Alligood - Ashland City Times

09/10/07

SHELBYVILLE, Tenn. — On Sunday, Nov. 30, 1997, at about 9:45 p.m., Daryl Keith Holton walked into the Shelbyville Police Department. Holton, 36, calmly told the dispatcher he wanted to report a crime: "homicide times four.''

The former Army sergeant admitted he was the perpetrator. The victims were his three sons, ages 12, 10 and 6, and the boys' younger half-sister, a 4-year-old who Holton told authorities he loved as if she were his flesh and blood. He said cops would find the bodies in the auto repair shop on North Jefferson Street where he worked and had lived for about four months in a makeshift apartment. The children would be found stacked beneath a tarp, oldest on the bottom, youngest on top, Holton reported. And it was so.

Ex-wife cited as motive

His ex-wife was the motive for the brutality, Holton told detectives who interviewed him long into the night after he made his startling confession. Crystle Holton had not allowed him to see all the children since September of that year. She had secured an order of protection after he assaulted her. The couple's marriage, un stable much of the time since they shared vows in the summer of 1984, had disintegrated. But his love for the children never waned, and Holton complained that his ex-wife had kept the youngsters from him.

On Nov. 30, however, he persuaded her to let him keep them for the day. When he picked them up in Murfreesboro, Brent and Kayla handed him a drawing, according to investigators' notes. "From Brent and Kayla. I love you Daddy,'' was scrawled on the drawing.

After stopping at a McDonald's, the father drove the kids to Shelbyville, to the blue metal building on North Jefferson. About 7:30 p.m., Holton said he called his two oldest children, Stephen and Brent, to the rear of the shop, telling the boys he had something "to show them.'' At the front of the shop, Eric, who was hearing impaired, and Kayla played, un aware of the danger. Holton stood the younger boy directly behind his older brother. "Don't peek,'' he said. With Christmas less than a month away, perhaps the boys thought their father had purchased an early gift for them.

Holton assumed the bent-knee firing position behind them, pointing the barrel of an SKS semi-automatic rifle, a Russian-made infantry carbine with an effective range of 4,000 feet, at Brent's back. When he pulled the trigger, the projectile punched through the boys' chests and they crumpled to the floor. Holton fired two other rounds to make sure they were dead. He hid their bodies beneath a tarp then called the two youngest children.

Holton told police he made Eric and Kayla shut their eyes as they stood in like fashion to their dead siblings, now hidden beneath the plastic just a few feet away. Holton again dropped to one knee. The medical examiner later said death was instantaneous.

Police said he fired additional rounds, to make sure Eric and Kayla were dead. "They didn't suffer,'' Holton assured investigators. "There was no enjoyment to it at all.''

His plan changed

After stacking the bodies and cleaning up, Holton turned on a police radio to make sure no one reported hearing the gunshots. Then he drove toward Murfreesboro, planning to kill his ex-wife, her boyfriend and other family members. The coup de grace would be his suicide.

But after arriving in Murfreesboro, resolve inexplicably failed him. "When I got past Christiana, I decided I wasn't going to kill myself at the shop. I decided I was going to turn myself in,'' he told officers. About 9:15 p.m., with the children's bodies nearby, Holton said, he smoked a joint of marijuana, got into his car and drove about seven blocks to the Shelbyville Police Department.

Holton executed swiftly, as intended: medical examiner

By Jared Allen - The City Paper

September 13, 2007

The execution of Daryl Holton, which was carried out at 1:16 a.m. Wednesday, was “unremarkable” in that it killed Holton swiftly and efficiently, and likely without causing Holton any pain or suffering, according to the state medical examiner who performed Holton’s autopsy. Dr. Bruce Levy, the chief state medical examiner, performed a 90-minute autopsy on Holton just hours after Tennessee Department of Correction officials pronounced Holton dead at 1:25 a.m. Wednesday.

Holton opted to be executed by way of the state’s electric chair, and became the first person to be put to death by electrocution in Tennessee since 1960. The chair used to kill Holton had never before been used outside of its regular voltage tests.

But despite worries from many, including the chair’s builder, Fred A. Leuchter Jr., that the device would not work properly or, even if it did, would fail to execute someone humanely, Holton appears to have felt little to no pain and appears to have been the recipient of enough electricity to kill him during the first surge of 1,750 volts of electricity, both Levy and media witnesses to the execution said on Wednesday.

“In Mr. Holton’s case, the electrocution process appears to have occurred correctly,” Levy said. “The electrocution itself — how the process went, the time frame of it, as well as the autopsy — showed nothing unremarkable in any way.” Final autopsy reports — including the results of blood tests — are still a few weeks away, Levy said.

But on Wednesday morning Levy was able to determine that the cause of Holton’s death was high-voltage electrocution, defined by the medical examiner’s office as greater than 1,000 volts. The electric current caused Holton to undergo cardiac arrest, Levy said “In this case it actually stopped his heart,” he said.

Levy said Holton sustained first- to- second-degree burns on his head and his ankles, which served as the contact points for the current. “That was not an unexpected finding,” Levy said. “The burn marks around his head and his legs were very similar to a severe sunburn.” The burns were caused by the generating of heat produced by the electricity, Levy said, adding that the burns would have emerged toward the end of the electrocution cycle.

A number of media witnesses who observed Holton’s execution said that Holton appeared sleepy and sedated while being strapped into the chair. Corrections Department spokeswoman Dorinda Carter said Holton was not medically sedated in any way. She said he had been hyperventilating prior to being placed in the chair and was given a few minutes to catch his breath.

Levy said the symptoms described by the witnesses — including a bobbing head, yawning, droopy eyelids and slurred speech — could be shown by a person who had just hyperventilated. “Hyperventilation is a possible explanation for what people observed,” he said. “If you try to hyperventilate yourself, you might not be able to do it to the extent he did, but you can feel yourself getting a little bit lightheaded as a result of it.”

Still, Levy’s office will be conducting blood tests to be sure he was not under the influence of any drugs or medication. And Levy said an instant analysis of Holton’s urine showed no signs of any type of sedative agent or other drug. “All the blood tests are pending, but I did perform a rapid screen on his urine here this morning and that was negative. And that looks for eight different classes of drugs, which includes a lot of the major sedatives,” Levy said. “The negative urine test is reassuring, but we’re going to wait until we get the formal blood test results before have any final say on that.”

State executes child killer Holton

By Sheila Burke - The Tennessean

Wednesday, 09/12/07

Convicted murderer Daryl Keith Holton was put to death in the electric chair this morning at Riverbend Maximum Security Institution in Nashville. Holton, 45, was the first death row inmate electrocuted in Tennessee since 1960.

The former mechanic and Gulf War veteran had been on death row since 1999 after a Bedford County jury convicted him of fatally shooting his three sons — ages 12, 10, and 6 — and the 4-year-old daughter of his ex-wife. Holton was pronounced dead at 1:25 a.m., said Department of Correction spokeswoman Dorinda Carter.

Before the executioner sent 1,750 volts of electricity coursing through Holton’s body, the warden, Ricky Bell, asked the convicted killer if he had any last words. Holton replied, “Um, yeah— two words: ‘I do.’ ”

None of Holton’s family members attended the execution, and neither did his ex-wife, Crystle Holton. But a victim liaison with the state attorney general’s office read a statement from her. “Today, all the anger, hatred and a long time of nightmares can finally leave me,” the ex-wife’s statement read. “It will be replaced by all the sweet, innocent, wondrous love that only a child can give. And I am blessed that I have and always will have, that love times four.”

In her statement, Crystle Holton also expressed sorrow for a “much loved’’ ex-mother-in-law. “Marie has not only had to deal with the death of four grandchildren, but now is dealing with the death of her own son. You are in my thoughts and prayers. You will always be a mother figure for me. I still love and miss you very much.’’

After killing the children in November 1997, Holton surrendered to Shelbyville Police and confessed. Prosecutors said he killed the children because he was angry with his ex-wife for not allowing him to see them as much as he wanted.

Holton refused to participate in his appeals during the past few years, however, he asked Nashville defense attorney David Raybin to witness the electrocution and to protect his rights during the execution process. Raybin said Holton walked to the electric chair with “dignity.’’ “This morning, Daryl Holton is free from the demons that have haunted him,” Raybin said.

When the blinds inside the death chamber were opened at 1:09 a.m., the media witnesses saw Holton already strapped in the electric chair. He yawned several times and appeared to have been sedated, they said.

But prison officials said Holton had not been drugged. “He was hyperventilating as he was brought into the execution chamber,” Carter said. “The warden gave him a minute or so to try and catch his breath, so what you all were seeing was the effects of him hyperventilating and him trying to calm down.” His hands were fastened to the arms of the chair, and straps crossed over his shoulders and his upper body in the same way a pilot is secured, said Scott Couch, a reporter and anchor with WZTV Fox 17 News who was a witness to the execution. Holton’s ankles were also restrained.

Prison official immersed a large sponge in saline solution and put it in what looked like an old-fashioned football helmet and placed it on Holton’s head, Couch said. Water from the sponge dripped on Holton’s shirt and two security guards with towels moved to dry him. Holton appeared to tell them not to worry about it. Prison officials then placed a small leather shroud over Holton’s head and snapped it shut over his face, Couch said.

Holton got the first jolt of electricity at about 1:16 a.m., a violent jerking that left the inmate rising up and grabbing the arms of the chairs with his fingers. He was shocked again, a second time, and witnesses saw Holton jerk up again in the chair. “I don’t think any of us can say whether he felt pain,” Couch said.

About 40 people stood outside the prison protesting the execution, but many of them had resigned themselves to the fact that Holton was going to die. “We want it to be as humane and painless as possible,’’ said Stacy Rector, executive director of the Tennessee Coalition to Abolish State Killing.

A group of lawyers filed a motion with the Tennessee Supreme Court on Tuesday trying to prevent the execution, but the state’s highest court refused to intervene. State law allows death row inmates who committed their crimes before 1999 to choose their method of execution — lethal injection or the electric chair. Holton chose the chair.

Still, the use of the chair is troubling to some of the most ardent death penalty supporters. One victims’ rights advocate said she didn’t like the idea of using the chair to execute people, even though Holton certainly deserved death. “I wish that they would only have lethal injection,” said Verna Wyatt of You Have the Power. “I don’t think that the execution is about vengeance. It’s about justice, and I personally do not see any reason to have a horrific death even though he committed a horrific act.

“I think it’s incredibly sad that we have to have the death penalty, but Daryl Holton murdered four little kids. And the law is that if you step over the line of human decency the death penalty is an option, and he certainly fits that criteria.”

Holton volunteers to die

Shelbyville Times-Gazette

May 29, 2006

The Shelbyville man who killed his 3 sons and a stepdaughter in November 1997 has said he's willing to die for his crimes -- and the Tennessee Supreme Court has set Sept. 19 as his new execution date. Daryl Keith Holton, 45, shot the children in an auto shop where he'd been living.

Holton has become the subject of legal sparring between the State Attorney General's office and a state office established to be sure death row inmates have adequate legal counsel. On May 15, Holton filed a response of his own to the Attorney General's office which, on May 10, had requested a new execution date.

Holton stated that he "does not oppose the State's motion to reset an execution date," according to a state Supreme Court order issued late Thursday. Holton's statement prompted a flurry of legal filings from attorneys who step forward to defend death row inmates, but Thursday the state Supreme Court ruled. Such efforts for a federal order to stop Holton's execution were preceded by several in state courts, some here in Shelbyville.

Post Conviction Defender Donald Dawson has said that Holton shouldn't be executed because he's not competent, evidenced by his refusal to speak with anyone other than his mother. Discussion among state Supreme Court justices indicated a belief that some inmates are willing to accept punishment for their crimes.

Holton, 45, divorced his wife, Crystle, in 1993 after she became pregnant by another man. Reconciliation had failed. He concluded that his children's lives were ruined because they'd be raised in a broken home, so he killed them. He planned to go to Rutherford County and kill their mother and himself but realized if he died, he couldn't explain himself, so he surrendered to police in Shelbyville.

A June 8, 2005, execution date had been set in Holton's case but it was put on hold nearly one year ago by Senior Judge Don Harris, who presided over Holton's case here on May 16, 2005.

In their May 10 request to the Supreme Court for a new execution date, Solicitor General Michael E. Moore and Jennifer L. Smith, associate deputy attorney general, said Dawson's request to Harris was late and wasn't supported by Holton, so that failed, and his request for relief in the federal courts should also fail for the same reasons.

State v. Holton, 126 S.W.3d 845 (Tenn. 2004) (Direct Appeal).

Background: Defendant was convicted in the Circuit Court, Bedford County, William Charles Lee, J., of four counts of first-degree premeditated murder, and he was sentenced to death. Defendant appealed, and the Court of Criminal Appeals affirmed.

Holdings: On direct appeal, the Supreme Court, Frank F. Drowota, III, C.J., held that:
(1) evidence was sufficient to support convictions;
(2) insanity statute does not unconstitutionally shift burden of proof to defendant to negate essential element of offense;
(3) alleged residual doubts as to defendant's mental state at time of killings did not entitle him to relief from death sentences;
(4) certain elements of capital sentencing scheme were not unconstitutional;
(5) evidence was sufficient to support jury's findings of aggravated circumstances and that those circumstances outweighed mitigating circumstances beyond reasonable doubt; and
(6) death sentences were not disproportionate to penalties imposed in similar cases. Affirmed.

FRANK F. DROWOTA, III, C.J.

The defendant, Daryl Keith Holton, was convicted of four counts of first degree premeditated murder. The jury imposed a sentence of death on each conviction, finding that the prosecution had proven beyond a reasonable doubt the existence of one or more aggravating circumstances FN2 and that the aggravating circumstances so proven outweighed any and all mitigating circumstances beyond a reasonable doubt. The defendant appealed, challenging both his convictions and sentences.

After fully considering the defendant's claims, the Court of Criminal Appeals affirmed the convictions and the sentences. The case was then docketed in this Court, briefs were filed, and after considering the briefs and the record, this Court entered an Order requesting that the parties address certain issues at oral argument, including the sufficiency of the convicting evidence, the constitutionality of the statutory insanity defense, the constitutionality of Tennessee's capital sentencing scheme in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and the propriety of the death sentences in light of the mandatory review required by Tennessee Code Annotated section 39-13-206(c)(A)-(D) (1997). After carefully and fully considering the issues in light of the record and the relevant authority, we affirm the defendant's convictions and sentences.

FN2. As to three of the convictions, the jury relied upon both the age of the victim and the mass murder aggravating circumstances in imposing the death penalty. See Tenn.Code Ann. § 39-13-204(i)(1) & (12) (1997). As to the fourth conviction, the jury based imposition of the death penalty solely upon the mass murder aggravating circumstance.

I. Background

A. Guilt Phase

On November 30, 1997, the defendant, thirty-six-year-old Daryl Keith Holton, shot and killed his four children, four, six, ten, and twelve years old. The State charged the defendant with four counts of premeditated murder. The critical issue at trial was the defendant's mental state at the time of the killings.

The State's proof showed that the defendant and Crystal Holton, the mother of the victims, married in 1984 while the defendant was serving in the United States Army and stationed at Fort Jackson in South Carolina. Shortly after their marriage, the defendant was reassigned to a post in Germany where he administered a dental clinic.

While the defendant was stationed in Germany, the couple had two sons: Stephen, born in 1985, and Brent, born in 1987. Mrs. Holton testified that the defendant “loved” his military career, but she characterized their marriage as “up and down.”

After his tour of duty in Germany, the defendant was stationed at Fort Gordon in Georgia. While there, he volunteered for service in Saudi Arabia at the conclusion of the 1991 Gulf War. Mrs. Holton remained in the United States with Stephen and Brent, and on September 17, 1991, she gave birth to a third son, Eric, who was hearing-impaired. Shortly after Eric's birth, the federal government incorrectly routed the defendant's paychecks causing Mrs. Holton serious financial difficulties.

Also during the fall of 1991 Mrs. Holton left her children home alone overnight while she went to a country music bar and dance hall. The police were called after one of the children arrived at a neighbor's house looking for his mother. When Mrs. Holton returned home the next morning, the police declined to bring criminal charges, and representatives of the Georgia Department of Children's Services allowed Mrs. Holton to retain custody of the children.

After learning of these events, the defendant secured an emergency leave of absence and returned to the United States for several days. During this time, the defendant moved his family from Georgia to his father's home in Shelbyville, Tennessee. However, after the defendant returned to Saudi Arabia, Mrs. Holton left Shelbyville to visit a cousin in Indiana and thereafter moved to South Carolina, leaving the children in the custody of the defendant's father. The defendant obtained a hardship discharge and returned to Shelbyville so that he could care for his children.

In June of 1992, he returned to Georgia and obtained a divorce and custody of the three boys. He and the children returned to Shelbyville; however, Mrs. Holton testified that the defendant brought the children to visit her in South Carolina two or three times each month.

After Mrs. Holton became pregnant in late 1992 as a result of a “one night stand,” she and the defendant reconciled and lived together in Shelbyville. On June 22, 1993, Mrs. Holton gave birth to her daughter, Kayla Marie. According to Mrs. Holton, the defendant accepted Kayla “rather well” and gave her his last name. Although the couple did not remarry, they lived together with the four children for approximately two years. During this time, Mrs. Holton drank heavily, and the defendant struck her on several occasions, blaming his violence on her drinking.

Eventually Mrs. Holton and the children left the defendant and moved into public housing in Murfreesboro, Tennessee. The defendant visited the children on a daily basis while they lived in Murfreesboro and was at some point awarded weekend visitation rights. Mrs. Holton testified that the defendant would pick up the children on Friday and return them on Sunday.

Mrs. Holton related that the defendant expressed concern about the crime rate in the neighborhood where she and the children lived and frequently complained about the condition of her apartment. Mrs. Holton admitted that she was a mediocre housekeeper, that she regularly accepted money from the defendant for the purchase of alcohol, and that she purchased several pint-sized bottles of liquor each week. However, Mrs. Holton said she had not demanded money or liquor as a condition of the defendant's visitation with the children.

Mrs. Holton testified that the visitation happened without incident until one Sunday night in 1995 when the defendant refused to let the children get out of his car and ordered Mrs. Holton to get into the car if she ever wanted to see the children again. When Mrs. Holton refused, the defendant said, “Fine. You are going to regret it,” and drove away. Mrs. Holton, who had the impression that the defendant was armed,FN3 immediately called the police. Learning of his former wife's call from a police “scanner” in his car, the defendant surrendered the children to the police unharmed.

Mrs. Holton recalled that after this incident the defendant continued to threaten that she would “regret it” if she ever took his children away from him. Mrs. Holton acknowledged that, at some point while she and the children were living in Murfreesboro, the Tennessee Department of Children's Services briefly obtained legal custody of the children, although Mrs. Holton retained physical custody.

Thereafter, on February 27, 1996, the defendant and Mrs. Holton agreed to the entry of an order by the Bedford County Juvenile Court granting Mrs. Holton custody of the children. The order stated that the defendant agreed “it would be in the best interest of the minor children that full custody be granted to the natural mother with visitation to be at the discretion of the mother.” FN3. In his confession to the homicides in this case, the defendant admitted that he had been armed during the 1995 incident.

The defendant continued to visit the children until the late summer or early fall of 1997, when Mrs. Holton obtained an order of protection and moved with the children to a different residence. In the fall of 1997, Mrs. Holton became romantically involved with Morris Rhodes. In October 1997 she and the children moved to Rhodes' home in Spring Hill, Tennessee.

Although he knew that Mrs. Holton and the children had left their apartment in Murfreesboro, the defendant did not know where they had gone until late November of 1997. On Thanksgiving Day of that year, Mrs. Holton attempted to telephone the defendant at his uncle's garage in Shelbyville, where the defendant lived and worked. No one answered; however, the next day, the defendant returned Mrs. Holton's call.

When Mrs. Holton told the defendant that the children “missed him and ... wanted him to take them Christmas shopping,” the defendant responded that “he didn't think anybody remembered he was still their dad,” expressed concern that the children might be calling Mr. Rhodes “Dad,” and said that he never wanted them to think that anyone else was their father. After reassuring the defendant about his relationship with the children, Mrs. Holton made arrangements for him to visit with the children on Sunday, November 30.

The defendant telephoned Mrs. Holton again on Saturday, November 29, to inquire whether he should purchase the children clothing during the Sunday visit. He also asked permission to take the children to a movie in Shelbyville and remarked that he wanted to take the children by the garage where he lived and worked so they could see a dog he kept there.

As agreed, the defendant picked up the four children at a Murfreesboro Wal Mart around 3 p.m. on Sunday. The children were excited about the visit. They ran to the defendant and hugged him. Two of the children gave the defendant a drawing that said “From Brent and Kayla. I love you Daddy.” Although the defendant returned their embraces, Mrs. Holton said he appeared detached or “numb.”

The defendant agreed to return the children to Mrs. Holton at 9:30 p.m. at the Rutherford County Sheriff's Department.FN4 FN4. As part of his own custody arrangements, Mr. Rhodes was scheduled to pick up his daughter at the Rutherford County Sheriff's department that same night.

The defendant did not arrive as planned, however. Instead, he walked into the Shelbyville Police Department around 9:45 p.m. that night and told the dispatcher that he wanted to report a “homicide times four.” The dispatcher described the defendant as calm and said he displayed no emotion.

The dispatcher radioed for an officer and asked the defendant to wait in the lobby. Soon thereafter, an officer arrived and approached the defendant. After giving his name, address, and birth date, the defendant again indicated that he wished to report four homicides. When the officer asked how the defendant learned of the homicides, the defendant responded that he had killed his four children and then stood and placed his hands behind his back to allow the officer to handcuff him.

The defendant confessed that, because his wife and the Department of Human Services had kept his children from him for the past few months, he had killed the four children with an SKS semi-automatic rifle at his uncle's automobile repair garage, Holton's Wrecker Service and Garage. The defendant indicated that the murder weapon and the bodies were still located inside the garage.

The officers testified that the defendant appeared normal and calm during this exchange, that he spoke in a matter-of-fact tone, and that he never exhibited any bizarre behavior. One of the officers had been acquainted with the defendant for several years, and as the officers were leaving to investigate his claim, the defendant warned this officer of the “bomb” in the garage.

At the garage, the officers discovered an SKS rifle and homemade incendiary devices. The police also located the bodies of the four children stacked underneath a plastic tarpaulin in the rear bay of the garage, the area of the garage where the defendant lived.

The defendant gave two statements to the police describing how he had killed his children. According to the defendant, he had contemplated killing the children in 1995 when he was driving them home to their mother following a weekend visit. On that occasion, he had been armed with a “Derringer,” but he was unable to harm the children and instead surrendered the children to the police.

He explained how, after his former wife obtained an order of protection against him, he had driven by her apartment in Murfreesboro “wanting something to happen,” then “they were gone.” When Mrs. Holton finally called him to arrange visitation Thanksgiving weekend, he decided to murder the children because they “had been taken away from me and given back to me, taken away from me and given back to me enough.”

The defendant described how he had prepared for the killings by hiding his loaded SKS semi-automatic rifle behind a mattress in his living quarters at the garage, locating Mr. Rhodes' home in Spring Hill, and making five incendiary devices out of old oil filters.

The defendant recalled that he had planned to kill his children, then travel to Spring Hill and use the incendiary devices to firebomb Mr. Rhodes' residence, and then drive to Murfreesboro and shoot Mr. Rhodes' young daughter, who would be at her mother's apartment in the public housing project in Murfreesboro until the scheduled custody change at the Sheriff's Department.

The defendant parked a car next to the back door of his uncle's garage, headed in the direction he would need to travel, so that he could quickly leave the garage after he killed his children and commit the other criminal offenses.

The defendant recalled that, when he had picked up the children, his former wife “was dressed nicely. She was wearing makeup. She said she was happy. And that did not make me happy.” After picking up the children at Wal Mart and taking them to McDonald's and Funland, the defendant brought the children to his uncle's garage, where they visited with him and played with some tools. The defendant noted that he “had to play along to avoid any suspicion on the children's part.”

Around 7 to 7:30 p.m. the defendant left four-year-old Kayla and six-year-old Eric, who was hearing impaired, playing in the front bay of the garage with a hammer and other tools so they would be distracted and not hear the shots. The defendant then led twelve-year-old Stephen and ten-year-old Brent to the rear bay where he lived and had earlier hidden the SKS rifle. There he told the two older boys that he “had something for them” and instructed them to close their eyes and stand with their backs to him with Stephen, who was the taller, standing directly in front of Brent. Telling the boys “don't peek,” the defendant pulled out the SKS rifle, knelt down and aimed the rifle.

The defendant explained that he positioned the children to enable him to pierce both of their hearts with a single shot. With the barrel of the rifle touching Brent's back, he fired and then shot the boys again to be sure they were dead. After hiding the boys' bodies under a tarpaulin, the defendant brought Kayla and Eric to the rear bay and told them he had “something for them.” When the children inquired about their older brothers, the defendant did not respond.

Instead he positioned the taller Eric directly in front of Kayla, placed their hands over their eyes, told them not to peek, and knelt and fired the rifle into the two children. The defendant said that he shot Kayla a second time before placing the bodies beside the older children under the tarpaulin. The defendant told the police that there was no enjoyment in killing the children.

The defendant recalled that he then straightened the area, washed, and prepared to complete the next phase of his plan by placing the re-loaded rifle and the firebombs in his car. After checking to see if anyone could have seen him at the garage and listening to his police scanner to see if anyone had reported gunshots, he left the garage. However, when it became apparent that there was not enough time to carry out his plan, he returned to the garage.

The defendant explained, “I planned a lot of different scenarios and chose the one that time permitted. I was constantly subtracting-going over what ... options ...-were left.” The defendant further observed, “I had done what I wanted to do. I wanted to shock [my ex-wife] to death. I was done. I was done.”

After considering suicide, he turned himself in to the police. He explained to the police that he had decided not to kill himself because someone who “was involved” should be left alive to help people “have a chance of understanding this.” While professing love for his children, the defendant told the police that he felt no regret or remorse for killing them.

The defendant's account of the killings was supported by physical evidence. For example, spent bullets and cartridges recovered both from the victims' bodies and from the crime scene had been fired from the SKS rifle found by the police. Gunshot residue was found on the defendant's hands, and the children's blood was found on his clothing.

Additionally, the results of the autopsies performed by forensic pathologist Dr. Charles Harlan were consistent with the defendant's story. Dr. Harlan testified that all four children died as the result of multiple gunshot wounds to the chest and/or abdomen.

According to Dr. Harlan, the angle of the gunshot wounds was consistent with someone kneeling behind the victims and shooting upwards with the children standing in the positions described by the defendant. Dr. Harlan also opined that some of Kayla's wounds were consistent with someone shooting her from above as she lay on the garage floor.

The defendant declined to testify in his own behalf, but he offered the testimony of several witnesses, with the bulk of the defense proof aimed at establishing the defendant's insanity or diminished capacity and possible carbon monoxide poisoning.FN5 The administrator of the Bedford County Jail testified that the defendant was placed on suicide watch during the first week after his arrest. The administrator noted that the defendant had been a quiet and cooperative inmate.

FN5. The defendant also presented the testimony of his parents' neighbor, who had known the defendant and his family in 1992; of a worker at a Murfreesboro liquor store, who described purchases made by Mrs. Holton; and of a former ATF agent, who opined that the “bomb” found at the garage would not have worked and was made by someone who knew “nothing about how explosives work.”

The defendant's uncle, who owned the garage where the killings occurred, testified that the defendant had lived in the rear bay of the garage for the four months preceding the killings. He had slept in an area draped with plastic tarpaulins at the back of the bay and had used a propane heater to warm this enclosed area.

The defendant's uncle, who saw the defendant daily, testified that, after he was unable to see his children, the defendant became “quieter and withdrawn, unresponsive” and had less energy. Nonetheless, on the day of the murder the defendant appeared very happy to see his children.

The defendant's uncle recalled that the police returned to the garage following the murders and reconstructed the defendant's living quarters “better and tighter than it originally was” and tested the propane heater inside the enclosed area. The temperature outside on the day of the murders was between forty and fifty degrees Fahrenheit, and the outside temperature was much colder at the time the police reconstructed the living quarters and tested the heater.

Dr. Donna Seger, a toxicologist, testified that carbon monoxide can affect memory, decrease IQ, and cause depression, psychosis and neurologic deficit. Dr. Seger, however, had not examined the defendant. Another witness, Dr. Leighton Sissom, a mechanical engineer who had examined the propane heater and the defendant's living quarters at the garage, testified that the ventilation of the area was inadequate for safe use of the heater and that it was probable that carbon monoxide had been present where the defendant slept.

However, Dr. Sissom could not state that the defendant had been exposed to carbon monoxide on or before November 30, 1997, and conceded that the heater, when tested, was functioning properly and did not emit a significant amount of carbon monoxide.

The defendant also introduced the deposition of Dr. Howard S. Kirshner, a neurologist who had tested the defendant for symptoms of carbon monoxide poisoning. Dr. Kirshner described the effects of carbon monoxide poisoning ranging from coma and death to headaches, insomnia, problems with coordination, memory loss, and irritability. According to Dr. Kirshner, the defendant had reported experiencing headaches, irritability and sluggishness after purchasing the propane heater in October 1997 and had also described memory loss after the killings.

However, except for difficulty with the fine motor coordination tests, the defendant performed normally on the tests administered by Dr. Kirshner. Results of an MRI on the defendant's brain were likewise normal, but Dr. Kirshner explained that changes to the brain caused by carbon monoxide poisoning would not necessarily appear on an MRI scan. Although the defendant's minor coordination problems were consistent with carbon monoxide poisoning, Dr. Kirshner could not diagnose the defendant with carbon monoxide poisoning.

Dr. Pamela Auble, a clinical neuropsychologist, also testified for the defense. She had interviewed and tested the defendant about six months after the offenses. Testing indicated that the defendant's IQ was superior (120) but that he had experienced deficits in processing information, in learning visual information, and in motor speed and manual dexterity. The defendant also experienced difficulty relating to people.

Dr. Auble opined that these test results were consistent with exposure to carbon monoxide, although she was unable to definitively conclude that the defendant had been exposed to carbon monoxide. Rather, Dr. Auble opined that at the time these homicides were committed the defendant had been suffering from major depression caused by the termination of his marriage and “his concerns over [the] well-being of his children.”

Dr. Auble conceded that the defendant had not been depressed, anxious, or psychotic at the time of her June 1998 interview, stating, “at the time I saw him as he said it, really he didn't have to worry about his children anymore and how they were being taken care of. In November of '97 that was a big concern for him.” In short, at the time of Dr. Auble's interview, the defendant was “glad [his children] were dead.”

Dr. William Kenner, a psychiatrist, testified that the defendant had been suffering from major depression at the time he killed his children. Dr. Kenner explained that a severely depressed parent may believe that his life, as well as that of his children, is worthless, and may kill his children to save them from the “terrible fate” of living. Dr. Kenner opined that the defendant matched the profile of a father who would kill his children, i.e., commit filicide, and emphasized that “the more a parent loves his or her children, the greater the risk is that they will kill them if they get severely depressed.”

Dr. Kenner based his opinion that the defendant had been suffering from major depression at the time of these killings upon reports that the defendant had been unable to sleep at night, that he had worked seven days a week except when he saw his children, that he had lost interest in other activities, that he had difficulty thinking and concentrating, that he had spoken slowly and stared into space, that he had lost weight and withdrawn from human contact, and that, in the month before the murder, the defendant had been found lying on the floor for no reason and had expressed a desire to commit suicide.

Dr. Kenner believed that the defendant's depression had been exacerbated by carbon monoxide poisoning, which had also made the defendant more irritable. Dr. Kenner, however, conceded that a person can suffer from major depression and still be capable of distinguishing right from wrong. Indeed, Dr. Kenner acknowledged that parents who commit filicide “know it's against the law but [typically believe] it's done for almost the right reasons.”

The State's rebuttal proof consisted of the testimony of Ralph Mosley, a safety consultant who had recreated the defendant's living quarters in the rear bay under conditions similar to those existing at the time of the killings in order to test for carbon monoxide contamination. The test revealed no evidence of carbon monoxide.

The State also presented the testimony of Dr. Daniel Martell, a forensic neuropsychologist, who had examined and tested the defendant. Dr. Martell noted that the defendant had a history of depression which was reflected in his medical and military records. Dr. Martell opined that, at the time of the crime, the defendant had been suffering from major depression, passive-aggressive personality disorder, and a schizoid personality.

Dr. Martell explained that a person with a passive-aggressive personality disorder acts out anger or hostility in passive ways and that a person with a schizoid personality is a “loner,” someone who isolates himself from others and has poor social skills. Dr. Martell dismissed the theory of carbon monoxide poisoning based upon the negative results of the tests performed by the safety consultant and the results of psychological tests which were entirely consistent with depression alone.

As a result of his examination, Dr. Martell concluded that, despite his depression, the defendant knew the nature and the consequences of his behavior and also knew that killing his children was wrong.

Dr. Martell stated that the defendant's depression did not preclude premeditation and pointed out that the defendant admitted he had contemplated murdering his children for two years, that the defendant had elaborately planned and prepared for the murders, that the defendant had formulated “a time chart” of how the crimes would be committed, that the defendant had targeted the hearts of the children, wounds certain to cause death, that the defendant had concealed the bodies and the murder weapon from view and washed the blood from his body, and that the defendant had ultimately surrendered to the police, the surrender itself an acknowledgment of wrongdoing.

As to Dr. Kenner's testimony that the defendant was motivated by love for his children, Dr. Martell pointed out that the defendant had planned and prepared to shoot Mr. Rhodes' daughter, to whom he was not related, and had intended to fire bomb Mr. Rhodes' home.

Dr. Martell concluded that the defendant had been a very angry person, that he had committed these homicides to cause pain for his former wife and her new boyfriend, and that he had been capable of distinguishing right from wrong and of appreciating the wrongfulness of his conduct.

Based upon this proof, the jury found the defendant guilty on all four counts of first degree premeditated murder.

B. Sentencing Phase

At the sentencing hearing the State sought to establish two aggravating circumstances. With respect to all four convictions, the State relied upon the “mass murder” aggravating circumstance, “which is defined as the murder of three (3) or more persons whether committed during a single episode or at different times within a forty-eight-month period.” Tenn.Code Ann. § 39-13-204(i)(12) (1997).

With respect to the killings of ten-year-old Brent, six-year-old Eric, and four-year-old Kayla Marie, the State sought to establish that “the murder was committed against a person less than twelve (12) years of age and the defendant was eighteen (18) years of age, or older.” Tenn.Code Ann. § 39-13-204(i)(1) (1997).

The State relied upon the proof presented during the guilt phase of the trial. The State also replayed the audiotape of the defendant's November 30, 1997, confession that contained his date of birth and re-introduced the February 27, 1996, custody order of the Bedford County Juvenile Court that established the ages of the children.

Pursuant to the defendant's instructions, the mitigation proof was limited to testimony by the jail administrator that the defendant had been a good prisoner, that he had obeyed the rules, performed assigned tasks well, and interacted well with the prison staff. The administrator testified that the defendant was kept in isolation but was regularly visited by his family.

The defendant did not dispute the applicability of the aggravating circumstances but instead argued that the aggravating circumstances did not outweigh the following mitigating circumstances beyond a reasonable doubt: (1) the defendant has no significant history of prior criminal activity; (2) the murder was committed while the appellant was under the influence of extreme mental or emotional disturbance; (3) the murder was committed under circumstances that the appellant reasonably believed to provide a moral justification for his conduct; (4) the capacity of the appellant to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was substantially impaired as a result of a mental disease or defect that was insufficient to establish a defense to the crime but substantially affected his judgment; and (5) any other mitigating circumstance raised by either the prosecution or the defense during both the guilt/innocence phase of the trial and the sentencing phase. See Tenn.Code Ann. § 39-13-204(j) (1997).

Based upon this proof, the jury imposed a sentence of death for each conviction. The defendant appealed, challenging both his convictions and sentences. The Court of Criminal Appeals affirmed, and the case was docketed in this Court. We affirm.

II. Sufficiency of the Evidence

The defendant first challenges the sufficiency of the convicting evidence. Specifically the defendant argues that the evidence is insufficient to support the jury's finding of premeditation because he had been suffering from severe depression at the time of the killings that prevented the exercise of reflection and judgment.

The defendant declares that “[t]here is no way that a person with the defendant's past record, including giving up a military career for his children, could kill them after the exercise of reflection and judgment.”

The defendant was convicted of four counts of first degree murder-“[a] premeditated and intentional killing of another.” Tenn.Code Ann. § 39-13-202(a)(1) (1997). Intentional “refers to a person who acts intentionally with respect to the nature of the conduct or to a result of the conduct when it is the person's conscious objective or desire to engage in the conduct or cause the result.” Tenn.Code Ann. § 39-11-302(a) (1997).

A killing is premeditated if it is an act done after the exercise of reflection and judgment. “Premeditation” means that the intent to kill must have been formed prior to the 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. Tenn.Code Ann. § 39-13-202(d) (1997).

The proper inquiry for an appellate court reviewing a sufficiency challenge is whether, considering the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Tenn. R.App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Hall, 8 S.W.3d 593, 599 (Tenn.1999).

A verdict of guilt removes the presumption of innocence and replaces it with a presumption of guilt, and on appeal the defendant has the burden of illustrating why the evidence is insufficient to support the verdict rendered by the jury. State v. Carruthers, 35 S.W.3d at 557-58 (Tenn.2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.1982). In contrast, the State on appeal is entitled to the strongest legitimate view of the trial evidence and all reasonable inferences which may be drawn from the evidence. See Carruthers, 35 S.W.3d at 557-58; Hall, 8 S.W.3d at 599.

Questions about the credibility of witnesses, the weight and value of the evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact, and this Court does not re-weigh or re-evaluate the evidence. Id. Nor may this Court substitute inferences it draws from circumstantial evidence for those drawn by the trier of fact. See Carruthers, 35 S.W.3d at 557-58; Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). The standard of appellate review is the same whether the conviction is based upon direct or circumstantial evidence. State v. Vann, 976 S.W.2d 93, 111 (Tenn.1998).

Finally, Tennessee courts have identified several circumstances that may be considered indicative of premeditation, including: the use of a deadly weapon upon an unarmed victim; the particular cruelty of the killing; declarations by the defendant of an intent to kill; evidence of procurement of a weapon; preparations before the killing for concealment of the crime, and calmness immediately after the killing. State v. Bland, 958 S.W.2d 651, 660 (Tenn.1997); see also State v. Dellinger, 79 S.W.3d 458, 492 (Tenn.2002).

Evaluating the proof in this record in accordance with these standards we hold that the evidence clearly is sufficient to support the defendant's convictions. The proof has been thoroughly reviewed and need not be again recounted in detail. To summarize, however, the record reflects that the defendant admitted that he had contemplated and planned to murder his four young children. Indeed, the defendant told the police that he had been thinking about killing his children for two years.

The defendant explained that he definitively resolved to kill his children after speaking with his former wife two days before the killings occurred. The record reflects that the defendant formulated the plan, that he concealed the loaded gun at the garage, that he called his former wife to let her know that he would be taking the children by the garage on the pretense of showing them a dog, that he lured the children, two at a time, to the rear bay of the garage promising them a surprise, that he positioned the children so that one shot would pierce the hearts of both, that he gave the two younger children a drill and a hammer to play with so they would be distracted and not hear their brothers being shot, that he concealed the bodies of his older sons before persuading the two younger children to come to the rear bay of the garage, and that by killing the children he intended to “shock” his ex-wife “to death” and to end the custody disputes, explaining that his children had been “had been taken away from me and given back to me, taken away from me and given back to me enough.”

The defendant also concealed the victim's bodies and “squared away” the crime scene, prepared and planned to commit other related crimes by locating the residence of his former wife, by constructing homemade incendiary devices to firebomb that residence, and by parking a vehicle in a way that would facilitate his ability to commit all the crimes he had planned.

While all the mental health experts testified that the defendant had been suffering from depression at the time he killed his children, none testified that the depression rendered him incapable of premeditation, of distinguishing right from wrong, or of appreciating the wrongfulness of his conduct.

To the contrary, Dr. Martell opined that the defendant had been capable of forming the requisite mental intent for premeditated first degree murder and of distinguishing right from wrong and of appreciating the wrongfulness of his conduct. Dr. Auble agreed that the defendant had been capable of appreciating the wrongfulness of his conduct and of distinguishing right from wrong.

Furthermore, she conceded that the defendant had not been depressed when she interviewed him some months after the killings because he no longer had to worry about his children and that he was “glad [his children] were dead.”

Finally, by explaining that he had killed his children to end the custody dispute and to shock his former wife, the defendant himself contradicted Dr. Kenner's opinion that the killings were altruistic.

Furthermore, the defendant's behavior immediately after the killings indicate that he was able to distinguish right from wrong and to appreciate the wrongfulness of his conduct. Before leaving the garage after the killings, the defendant listened to the police scanner in his car to determine whether anyone had reported hearing gunshots.

The defendant later surrendered to police, walking into the sheriff's department and reporting a “homicide times four.” Officers testified that the defendant appeared normal and calm, spoke in a matter-of-fact tone, and never exhibited any bizarre behavior.

Indeed, the defendant warned one of the officers, whom he had known for several years, of the homemade incendiary devices in the garage. In sum, there is sufficient, indeed overwhelming, evidence in the record to support the jury's verdict finding the defendant guilty of four counts of premeditated first degree murder. This issue is without merit.

* * *

Tennessee Code Annotated § 39-13-206(c)(1) (1997) mandates that this Court determine (1) whether the sentence of death was imposed in any arbitrary fashion; (2) whether the evidence supports the jury's finding of statutory aggravating circumstances; (3) whether the evidence supports the jury's finding that aggravating circumstances outweigh any mitigating circumstances; and (4) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the nature of the crime and the defendant.

A thorough review of the record reveals that the evidence is sufficient to support the jury's finding of the aggravating circumstances beyond a reasonable doubt. As to all four convictions of first degree murder, the jury found that the defendant had committed “mass murder,” “which is defined as the murder of three (3) or more persons whether committed during a single episode or at different times within a forty-eight-month period.” Tenn.Code Ann. § 39-13-204(i)(12) (1997). As to three of the convictions, the jury found that “the murder was committed against a person less than twelve (12) years of age and the defendant was eighteen (18) years of age, or older.” Tenn.Code Ann. § 39-13-204(i)(1) (1997).

The defendant did not contest the applicability of these aggravating circumstances, both of which involve objective, readily ascertainable facts. Furthermore, the evidence is sufficient to support the jury's findings that the aggravating circumstances so found outweighed mitigating circumstances beyond a reasonable doubt. Additionally, there is no indication that the sentences of death were imposed in an arbitrary fashion.

Finally, the sentences of death in this case are not disproportionate to the penalty imposed in similar cases, considering the nature of the crime and the defendant Tenn.Code Ann. § 39-13-206(c)(1)(D) (1997). A death sentence is disproportionate only if “the case, taken as a whole, is plainly lacking in circumstances consistent with those in similar cases in which the death penalty has been imposed.” Bland, 958 S.W.2d at 665.

A death sentence is not disproportionate merely because the circumstances of the offense are similar to those of another offense for which the defendant has received a life sentence. Id. Thus, the duty of an appellate court is not to assure “that a sentence less than death was never imposed in a case with similar characteristics,” but instead to “assure that no aberrant death sentence is affirmed.” Id.

While there is no mathematical or scientific formula involved in comparing similar cases, this Court generally considers: (1) the means of death; (2) the manner of death; (3) the motivation for the killing; (4) the place of death; (5) the similarity of the victim's circumstances, including age, physical and mental conditions, and the victim's treatment during the killing; (6) the absence or presence of provocation; (7) the absence or presence of justification; and (8) the injury to and effects on non-decedent victims. See Vann, 976 S.W.2d at 107 (citing Bland, 958 S.W.2d at 667). When reviewing the characteristics of the defendant, we consider: (1) the defendant's prior 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 the helplessness of the victim; and (8) the defendant's capacity for rehabilitation. Id.

Moreover in conducting this review, “we select from the pool of cases in which a capital sentencing hearing was actually conducted to determine whether the sentence should be life imprisonment, life imprisonment without the possibility of parole, or death.” Carruthers, 35 S.W.3d at 570 (citing Bland, 958 S.W.2d at 666).

Considering the record in this case in light of these factors, the proof shows that the thirty-six-year-old, highly intelligent white male defendant meticulously planned and carefully premeditated the murders of his four young children. The defendant admitted that his motivation was anger at his former wife for removing the children from his custody and his desire to “shock” his former wife “to death.”

To accomplish these murders, the defendant exploited the trust and love of his children. He agreed to visit with them and take them Christmas shopping. He enticed them to the back bay of the garage on the pretense that he had a surprise for them, and used this pretense to carefully position the children so that one shot would pierce two hearts.

To fully ensure their death, the defendant repeatedly shot the unarmed, unresisting children at close range with an SKS semi-automatic rifle. While the mental health experts agreed that the defendant had been depressed at the time he committed these crimes, there was no evidence indicating that he was incapable of distinguishing right from wrong or of appreciating the wrongfulness of his conduct.

Instead, the proof indicated that he methodically devised a plan and carefully carried it out against the vulnerable, unsuspecting victims, all the while realizing the consequences of his actions. While the defendant told police he took no enjoyment from committing these murders, he certainly expressed no remorse for his actions, telling Dr. Auble several months later that he was “glad [his children] were dead.”

Dr. Auble testified that the defendant had not been suffering from depression when he made that comment. While there is no evidence in the record regarding the defendant's amenability to rehabilitation, the record reflects that the defendant had cooperated with the police, confessing to the crimes and warning officers about the homemade incendiary devices.

Furthermore, the jail administrator testified that the defendant had caused no problems during his incarceration. While no two capital cases and no two defendants are alike, the following cases and defendants share several similarities with this case and this defendant.

In State v. Black, 815 S.W.2d 166 (Tenn.1991), the defendant shot and killed his girlfriend and her two daughters, nine and six years old. The defendant was motivated by his anger at his girlfriend's attempt to reconcile with her ex-husband, the father of her children. The defendant had a prior conviction involving a shooting and was on a weekend furlough from the Metropolitan Workhouse in Davidson County when he committed these murders.

The defendant denied any involvement in the murders, but he was convicted of first degree premeditated murder as to each victim. The defendant presented the testimony of former teachers, friends, and family members in mitigation. This testimony portrayed the defendant as a good student, a good father, a good provider, a good inmate, a responsible, polite, friendly, helpful, and nonviolent person who had experienced a religious conversion while incarcerated.

Nevertheless, the jury imposed a death sentence for the murder of the six-year-old child and sentences of life imprisonment on the remaining convictions. In imposing the death sentence, the jury relied upon five aggravating circumstances, including the young age of the victim and the defendant's commission of mass murder. See Tenn.Code Ann. § 39-13-204(i)(1), (2), (5), (6), (7), (12) (1989).

In State v. Oscar Franklin Smith, 868 S.W.2d 561 (Tenn.1993), the jury imposed the death sentence upon the forty-year-old defendant who shot and stabbed his estranged wife and his thirteen-and sixteen-year-old stepsons. The murders were motivated by the defendant's anger at being separated from his wife.

The defendant had previously assaulted the victims and, as a result, was facing charges for aggravated assault at the time he committed the murders. Witnesses testified that for several months prior to the murder, the defendant had publicly plotted to kill the victims. Expert testimony revealed that he mutilated two of the bodies shortly after the victims' deaths.

The defendant denied his involvement in the murders. Nevertheless, the jury found him guilty of first degree premeditated murder as to each victim and imposed a sentence of death for each murder, finding that the murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind, that the murder was committed for the purpose of avoiding arrest or prosecution, that the murders were committed during the perpetration of another felony, and that the defendant had committed mass murder. See Tenn.Code Ann. § 39-13-204(i)(5), (6), (7), (12) (1989).

In State v. Keen, 31 S.W.3d 196 (Tenn.2000), the twenty-seven-year-old defendant was convicted of first degree murder during the perpetration of a rape of his girlfriend's eight-year-old daughter. In sentencing the defendant, the jury applied two aggravating circumstances, including the young age of the victim, and the fact that the murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death. Id. at 205; see Tenn.Code Ann. § 39-13-204(i)(1), (5) (1989).

The evidence established that the defendant raped the child while choking her, possibly with a shoelace. Id. at 203-04. When the child stopped breathing, the defendant threw her into a river. Id. at 203. An autopsy revealed multiple scrapes and bruises to the child's face and neck and a deep ligature mark around the front of her neck. Id. at 204. The autopsy further indicated that the child was alive when she was thrown into the river. Id.

The defendant was highly intelligent but was suffering from attention deficit disorder, post-traumatic stress disorder, and serious depression. Id. Additionally, the defendant had been sexually abused as a child. Id. at 205. The defendant had no prior criminal record and demonstrated remorse following the offense. Id. at 221.

In State v. Vann, 976 S.W.2d 93 (Tenn.1998), the defendant was convicted of felony murder during the perpetration of a rape of his eight-year-old daughter. The proof indicated that the victim's death was the result of ligature strangulation. The jury applied three aggravating circumstances in sentencing the defendant to death: the young age of the victim, the defendant's prior convictions for aggravated rape, and the fact that the murder was especially heinous, atrocious or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death. See Tenn.Code Ann. § 39-13-204(i)(1), (2), (5) (1997).

Medical testimony indicated that the condition of the victim's anus was consistent with ongoing, repeated anal penetration. Witnesses testified that the defendant showed no remorse at the hospital about his daughter's death, and nothing in the record indicated a capacity for rehabilitation.

In State v. Irick, 762 S.W.2d 121 (Tenn.1988), the twenty-six-year-old defendant was babysitting a friend's children, including the victim. The defendant raped the seven-year-old victim vaginally and anally. The victim suffocated as the defendant held his hand over her mouth to keep her from screaming. The defendant was convicted by a jury of first degree felony murder and aggravated rape.

Following a sentencing hearing, the jury found four aggravating circumstances: the victim was less than twelve years of age; the murder was especially heinous, atrocious or cruel in that it involved torture or depravity of mind; the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another; and the murder was committed during the perpetration of a felony. See Tenn.Code Ann. § 39-2-203(i)(1),(5), (6), (7) (1982). The defendant had offered mitigating evidence that he had been under the influence of marijuana or alcohol at the time he committed the offense, and that he had a past mental impairment.

In State v. Coe, 655 S.W.2d 903 (Tenn.1983), the defendant was a stranger to the eight-year-old victim. He lured her into his car, drove to an isolated spot, and raped her. When Coe completed the rape, the victim told him that Jesus loved him. At that point, the defendant strangled the victim until she turned blue.

When the victim did not immediately die from the strangulation, he stabbed her in the neck with a pocket knife and watched as she suffered agonizing death throes. Eventually, he left her to die in the wooded area. Coe was convicted of first degree murder, kidnapping, and aggravated rape.

Following the sentencing hearing the jury sentenced the defendant to death upon finding four aggravating circumstances: the victim was not twelve years of age; the murder was especially heinous, atrocious or cruel in that it involved torture or depravity of mind; the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another; and the murder was committed while the defendant was engaged in committing or attempting to commit rape. See Tenn.Code Ann. § 39-2-203(i)(1), (5),(6), (7) (1982). As mitigating evidence the defendant claimed that he had been under the influence of extreme mental or emotional disturbance at the time he committed the offense.

In State v. Payne, 791 S.W.2d 10 (Tenn.1990), the twenty-year-old defendant stabbed to death his girlfriend's twenty-eight-year-old neighbor and the neighbor's two-year-old daughter. The jury imposed the death penalty for each conviction, and as to the two-year-old child, relied upon the age of the victim, the fact that the defendant knowingly created a great risk of death to two or more persons other than the victim, and that the murder was especially heinous, atrocious or cruel in that it involved torture or depravity of mind. Tenn.Code Ann. § 39-2-203(i)(1), (3), & (5) (1982); see also State v. Carruthers, 35 S.W.3d 516 (Tenn.2000) (imposing the death sentence based in part on the mass murder aggravating circumstance where the defendants shot two men, strangled the mother of one of the men, and buried all three victims alive).

Like the present case, the defendant in each of these cases murdered a minor, indeed in many instances a very young child. In most of these cases, as in this case, the victim was either well-acquainted with the defendant or related to the defendant. In many of these cases, the jury relied upon the age of the victim aggravating circumstance, and in two cases, the jury relied upon the mass murder aggravating circumstance.

Unlike the present case, in many of these cases the defendants denied involvement in the crime and presented extensive mitigating proof. While no two capital cases are identical, we have compared the circumstances of the present case with the circumstances of the cases set out above and others not herein detailed and conclude that this case, taken as a whole, is not plainly lacking in circumstances consistent with other similar cases in which the death penalty has been imposed. Thus, the defendant's sentences of death are not disproportionate considering the circumstances of the crime and the defendant.

VII. Conclusion

We have considered the entire record in this case and find that the sentences of death were not imposed in any arbitrary fashion, that the sentences of death are not excessive or disproportionate, that the evidence supports the jury's finding of the statutory aggravating circumstances and the jury's finding that these aggravating circumstances outweigh mitigating factors beyond a reasonable doubt. We have also considered all the defendant's assignments of error and conclude that none has merit. With respect to issues not specifically addressed herein, we affirm the decision of the Court of Criminal Appeals, authored by Judge Norma McGee Ogle and joined in by Judge David H. Welles and Judge Jerry L. Smith. Relevant portions of that opinion are published hereafter as an appendix.

The defendant's convictions and sentences are affirmed. The sentences of death shall be carried out as provided by law on the 3rd day of June, 2004, unless otherwise ordered by this Court or other proper authority. It appearing that the defendant is indigent, costs of this appeal are taxed to the State of Tennessee.