author: HALL, Justice.

text:
    Floyd F. DUKE et al., Appellants, v. Beatrice LLOYD et al., Appellees.
    No. 6099.
    Court of Civil Appeals of Texas, Waco.
    July 26, 1979.
    Rehearing Denied Aug. 16, 1979.
    Kenyon Houchins, Houchins & Tasker, Houston, for appellants.
    McGillivray Muse, Minor L. Morgan, Dallas, Jack Welch, Welch, Parsons & Stem, Marlin, for appellees.
   ON MOTION FOR REHEARING

HALL, Justice.

Previously, on June 14, 1979, we overruled the motion of appellants William B. Duke, individually, and as Temporary Administrator of the Estate of Floyd F. Duke, Sr., Deceased, and Betty Jean Duke for extension of time to file the transcript and statement of facts. We overruled the motion on the holding that the record did not show a reasonable explanation for appellants’ failure to timely file the transcript and statement of facts. Without a timely-filed transcript, we dismissed the appeal for want of jurisdiction.

On rehearing, we have decided that the record does set up a reasonable explanation for the needed extension. Nevertheless, the record shows that an appeal bond was not filed by appellant Betty Jean Duke; that neither an appeal bond nor notice of appeal was filed by William B. Duke as Temporary Administrator of the Estate of Floyd Duke, Sr., Deceased; and that the only appellant who perfected an appeal (by timely filing of an appeal bond) was William B. Duke, individually. Accordingly, we do not have jurisdiction of the appeals by Betty Jean Duke and by William B. Duke as Temporary Administrator. Rule 356, Vernon’s Tex.Rules Civ.Proc.; Nelson v. State, 497 S.W.2d 538, 539 (Tex.Civ.App. —Waco 1973, no writ); Article 2276, Vernon’s Tex.Civ.St.; V.A.T.S. Probate Code, § 29; Rule 354, Vernon’s Tex.Rules Civ. Proc. Our judgment dated June 14, 1979, dismissing those two appeals was therefore correct; and the motion for rehearing as to those two appellants is overruled.

The motion for rehearing of appellant William B. Duke individually is granted; our opinion and judgment of June 14th overruling his motion for extension of time to file the transcript and statement of facts are set aside; appellant William B. Duke s motion for extension of time is granted; and the transcript, supplemental transcript, and statement of facts which are presently in custody of the clerk are ordered filed.


source: Caselaw Access Project

author: LESTER, Judge.

license: Public Domain

text:
    James R. YOCOM, Commissioner of Labor and Custodian of the Special Fund, Appellant, v. EMERSON ELECTRIC COMPANY, Delores Mae Parker, and Workmen’s Compensation Board, Appellees. Delores Mae PARKER, Appellant, v. EMERSON ELECTRIC COMPANY, James R. Yocom, Commissioner of Labor and Custodian of the Special Fund, and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    April 6, 1979.
    Rehearing Denied Aug. 17, 1979.

      John Riehl, Jr., Asst. Counsel, Dept, of Labor, Louisvillé, Kenneth E. Hollis, Gen. Counsel, Dept, of Labor, Frankfort, for James R. Yocom, etc.
    James C. Milam, Russellville, for Emerson Elec. Co.
    William E. Rueff, Jr., Morgantown, for Delores Parker.
    Before COOPER, HOWERTON and LESTER, JJ.
   LESTER, Judge.

The Special Fund and Delores Mae Parker have taken these consolidated appeals from the February 24,1978, judgment of the Logan Circuit Court. In that judgment, the court directed the Workmen’s Compensation Board to find Parker’s occupational disability in an amount in excess of the 35% which the Board had found and to place some of the responsibility for payment on the Special Fund. The judgment also denied Parker’s request for default against Emerson for total disability which Parker asserted when Emerson did not timely respond in the circuit court. Emerson filed a notice of cross-appeal in this Court, but did not file a brief. Emerson additionally neglected to file an appellee’s brief in either Parker’s or the Special Fund’s appeal. We dismiss Emerson’s attempted appeal from the judgment of the Logan Circuit Court civil action number 5862. CR 76.12(8)(b).

An order of the Court of Appeals entered on September 6,1978, passed to the merits the remedies pursuant to CR 76.-12(8)(c) brought on by Emerson’s not filing appellee’s briefs. Our review of the record leads us to the conclusion that in Parker’s appeal we will accept the appellant’s statement of the facts and issues as correct. CR 76.12(8)(c). From our examination of the evidence before the Board, we observe that the Board had an adequate foundation upon which to base the percentage of disability that it set and that if Emerson had properly appealed, we would have reversed the judgment of the circuit court which required the Board to find greater disability. But, as the case now stands, Emerson has not requested us to grant that relief. We, therefore, must affirm the judgment of the court which mandates that the Board increase its assessment of the percentage of disability. In the Special Fund’s appeal, the summary procedures of CR 76.12(8)(c) as it concerns Emerson’s failure to file an appellee’s brief, would not be warranted since the Special Fund’s position is not adverse to Emerson and Parker’s brief has controverted the arguments of the Special Fund. See Walser v. Glenn, Ky., 400 S.W.2d 223 (1966).

Parker, in her appeal, argues that the circuit court abused its discretion for not entering a default judgment of total permanent disability when the employer did not timely respond. The Special Fund, in its appeal, challenges the decision of the court which remanded the case to the Board to require the Special Fund to pay for some portion of the disability and instructed the Board to reconsider the evidence for the purpose of assessing a greater amount of occupational disability.

Delores Mae Parker worked as a connect line operator for Emerson Electric Company in Russellville, Kentucky. On January 22, 1974, while in the process of unloading motors from a conveyor belt, Parker turned and stepped on a large vacuum hose which rolled and caused her to lose her balance. As she fell, she grabbed the conveyor belt and twisted her back in the motion.

Parker’s family doctor, Wan, gave her an ultrasonic treatment and prescribed medication. Upon the advice of Dr. Wan, Parker entered the hospital due to the persistence of her pain. While in the hospital, Dr. Kerwin Armand Fisher, an orthopedic surgeon, treated her.

Dr. Fisher testified that x-rays of Parker’s spine revealed a narrowing of the lumbosacral disc and a sacralized last lumbar vertebra on the right side. Dr. Fisher also noted that the x-rays showed the defects of spina bifida and a piece of bone on the front of the fourth lumbar vertebra. Dr. Fisher offered his opinion that as a result of the accident, Parker had incurred 15% permanent functional disability, 7½% of which he attributed to the accident alone and the other 7½% he assigned to the arousal of a preexisting nondisabling condition into disabling reality.

The Board appointed Dr. 0. Tom Evans, Jr., an orthopedic surgeon, to examine Parker upon the authority of KRS 342.121, because of the issue of whether the injury aroused a prior condition. Dr. Evans provided the only other medical testimony of the claimant’s impairment. Dr. Evans presented his conclusion that due to the injury, Parker had sustained 6% permanent functional disability. Dr. Evans also observed that despite the congenital abnormalities in Parker’s lower lumbar spine, in his view, this condition did not contribute to the disability.

Dr. Glen R. Larson, a clinical psychologist who qualified as a vocational expert, gave his deposition on behalf of the claimant. Larson conducted a series of tests. He stated that although Parker’s intelligence was in the normal range, her actual education attainment derived from her completion of high school only rose to about a fifth grade equivalency. Because of Parker’s educational background, Larson believed that she would be best suited for vocational training. Larson surmised that ideally Parker should look for a job doing light retail work where she could sit down as well as occasionally walk around and where she would only lift light objects.

The employment experience of Parker, 28 years old on the date of the hearing August 27, 1975, consisted of factory work. From 1966 to 1968, she worked for three companies operating a sewing machine. In 1968, Emerson hired her. She has no other vocational training.

On January 24, 1977, the Board awarded Parker compensation based on 35% permanent occupational disability. The Board overruled Parker’s petition for reconsideration on February 15th. On March 3rd, Parker filed a petition of appeal in the circuit court under KRS 342.285 in which she claimed that the Board erred in not finding her totally disabled. This petition contained a certificate of service on the attorneys of all the parties and had attached to it the opinion and award of the Board and the order overruling Parker’s motion for reconsideration. Summons issued upon the petition which the sheriff of Jefferson County served upon Emerson’s agent for service of process on March 15th. On June 27th, Parker moved for a default judgment against Emerson for failure to answer. Emerson responded on August 1st by filing a reply to plaintiff’s motion, a motion to dismiss and without requesting leave of court, an answer. The ruling of the circuit court on the motion for default stated:

It is within the discretion of this court to hold that this claim be now remanded to the Workmen’s Compensation Board for its consideration in light of the Plaintiff’s greater disability on the basis of the testimony included. Mandatory obedience to the directives of Carnahan v. Yocom, Ky., 526 S.W.2d 301 (1975) is not compelling within the perimeter of these circumstances.

Parker urges that Carnahan, supra, required the circuit court to enter a judgment in her favor of 100% occupational disability. Carnahan, supra, involved a default obtained by the Special Fund in conformity with its pleadings as a result of the absence of an answer by the claimant to the petition of appeal of the Special Fund which sought a remand for reopening and the taking of proof. Carnahan, supra, established the applicability of CR 55.01 to proceedings in the circuit court on appeal from the Workmen’s Compensation Board. CR 55.01 provides in part that,

[i]f, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court without a jury, shall conduct such hearings or order such references as it deems necessary and proper.

As reflected in the quoted portion of CR 55.01, the rule does not bind the court to granting the particular relief requested in the successful movant’s pleadings. The relief requested by the Special Fund’s pleadings in Carnahan, supra, was the appropriate remedy. In the case before us, Parker appended to her petition a copy of the opinion and award of the Board. Thus, the court could observe from the petition itself that the correct remedy would not be an award by the circuit court of 100% disability; when a reviewing circuit court determines that, substantial evidence does not support the amount of occupational disability set by the Board, the court must remand the case to the Board, because the court does not have the authority to direct a specific disability award. Yocom v. Conley, Ky.App., 554 S.W.2d 416 (1977). Consequently, even though the circuit court suggested that in remanding, it exercised its discretion not to comply with Carnahan, supra, because of the circumstances of the case before it, the result the court reached came under the holding of Carnahan, supra, and was the right decision based upon that case. The determination of the court falls within the portion of CR 55.01 which instructs the court to “order such references as it deems necessary and proper. . . ” Therefore, we do not reach the question raised in Hawes v. Cumberland Contracting Company, Ky., 422 S.W.2d 713 (1968) of whether the court abused its discretion in overruling the motion for default, since Parker received the same relief to which a default judgment would have entitled her.

The Special Fund maintains that substantial evidence supports the finding of the Board as to the degree of Parker’s occupational disability as well as for the determination by the Board that the work related incident caused all of this disability. Because we believe that a sufficient eviden-tiary foundation existed to allow the Board to believe that the accident produced all of Parker’s disability, we will not address the other issue. Dr. O. Tom Evans expressed his views that the abnormalities in Parker’s spine did not increase her disability. In the situation where the work related incident independently brings about all the disability the employer incurs the entire liability. Young v. Fulkerson, Ky., 463 S.W.2d 118 (1971). The Board, as the finder of fact, could properly consider the testimony of Dr. Evans, Armco Steel Corporation v. Mullins, Ky., 501 S.W.2d 261 (1973), and the Board, in discharging its function, would not have to accept the contrary opinion of Dr. Fisher over that of Dr. Evans. Codell Construction Company v. Dixon, Ky., 478 S.W.2d 703 (1972). Parker calls our attention to Shedd Bartush Foods Co. v. Bratcher, Ky.App., 568 S.W.2d 54 (1978), where the Court of Appeals held that the Board could not disregard the testimony of the treating physician when the treating physician was in a better position to observe the claimant’s condition than the examining physician. However, in our case, both physicians relied on basically the same information for their evaluation. Both physicians noted the defect; they differed as to what part they thought the defect played in the disability associated with the accident. The circumstances here do not point to a reason why Dr. Fisher would have superior knowledge as to the effect of the abnormalities than that of Dr. Evans. Accordingly, the court erred in that portion of its judgment which directed the Board to apportion some amount of the liability to the Special Fund.

The judgment is affirmed to the extent that it requires the Board to reconsider the evidence to make an award against the employer based on occupational disability greater than 35%. So much of the judgment which made the Special Fund a party in the further proceedings is reversed with directions to dismiss the Special Fund.

All concur.

      . This case was briefed and argued prior to the Supreme Court decision in Yocum v. Bratcher, Ky., 578 S.W.2d 44 (1979), and is not cited as authority.


author: HOWERTON, Judge.

text:
    James LEWALLEN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    July 6, 1979.
    As Modified July 20, 1979.

      W. Robert Lotz, Jr., Cobb & Oldfield, Covington, for appellant.
    Robert Stephens, Atty. Gen., Nancy S. Marksberry, Asst. Atty. Gen., Frankfort, for appellee.
    Before COOPER, HOWERTON and REYNOLDS, JJ.
   HOWERTON, Judge.

Lewallen appeals from the order denying his motion to vacate the judgment of the Campbell Circuit Court. Lewallen plead guilty to four counts of distributing obscene material and received a fine of $250.00 on each count. The final judgment was entered on June 28, 1978, but Lewallen did not move to vacate the judgment until July 27, 1978. After a hearing on Lewallen’s motion, the court found no manifest injustice in Lewallen’s plea proceeding.

Initially, we must decide whether this appeal is proper or timely. According to Lewallen’s motion, he sought to vacate the final judgment under the authority of RCr 11.42 and CR 60.02. RCr 11.42 provides for relief from a final judgment, if the petitioner is in custody. Lewallen did not receive a jail sentence, so RCr 11.42 was not an appropriate vehicle for attacking the judgment.

CR 60.02 provides for relief from the final judgment for certain specified reasons; however, a motion under this rule does not affect the finality of the judgment or suspend its operation. In Howard v. Commonwealth, Ky., 364 S.W.2d 809, 810 (1963), appellant had failed to appeal in the allotted time and subsequently attacked the final judgment under CR 60.02.

The court maintained:

It has long been the policy of this court that errors occurring during the trial should be corrected on direct appeal, and the grounds set forth under the various subsections of CR 60.02 deal with extra- ' ordinary situations which do not as a rule appear during the progress of a trial. Although the rule does permit a direct attack by motion where the judgment is voidable — as distinguished from a void judgment — this direct attack is limited to specific subsections set out in said rule, none of which appear to be applicable here unless it falls under the residual subsection (6) which authorizes the court to grant relief when circumstances of undue hardship, not included in the other five grounds of the rule, would justify such relief. However, this subsection may be invoked only under the most unusual circumstances and we do not find the facts here to be unusual.
In many cases errors of some nature are committed during the course of a trial and unless there is a restriction upon the method and the time in which these errors are suggested and corrected, a chaotic situation would result. Few judgments would ever achieve finality.

While Lewallen is attacking the guilty plea and not an alleged error during the trial as was the situation in Howard, we believe that the result is the same. In order to be entitled to relief under CR 60.02(f), extraordinary circumstances must be shown. When we view the totality of the record, we must conclude that Lewallen has been treated fairly. Relief pursuant to CR 60.02 would therefore be improper in this instance, and a direct appeal would now be untimely. This action should therefore be dismissed.

In support of our conclusion and to review the totality of this case, we will discuss the merits of Lewallen’s argument. In so doing, we must conclude that the plea proceeding did not violate any of Leweal-len’s constitutional rights.

Lewallen alleges that he was denied due process because the trial court did not determine that there was a factual basis for his plea, nor did the trial court address the defendant to determine whether he understood the nature of the charge against him, nor did the trial court allow Lewallen the right to speak in mitigation of his plea.

The colloquy between the trial court and the defendant and his attorney was as follows:

By the Court: All right. There being no objection by the Commonwealth that motion will be sustained. This is a misdemeanor, therefore, it’s unnecessary for the court to go into any extended dialogue or colloquoy (sic) between the court and the counsel for the defendant. I do in cases of misdemeanor, however, do want some record of the understanding of counsel, and of the defendant. All right, Mr. Lewallen, you are the same person named in this indictment for distribution of obscene material. Is that correct?

By Defendant: Yes sir.

By the Court: And Mr. Oldfield is representing you in this matter. Is that right?

By Defendant: Right.

By the Court: Are you entering this plea of your own free will without any coercion or pressure or any promises or commitments made to you about this plea of guilty?

By Defendant: Yes sir.

By the Court: You understand that although your attorney or you may have some understanding with the Commonwealth regarding the recommendation to be made by the Commonwealth’s attorney’s offices, what the court is not bound to follow that recommendation. Do you understand that?

By Defendant: Yes Sir.

By the Court: And you also understand that you have a right to trial by jury, a speedy trial, right to confront witnesses for the Commonwealth, right to have persons brought in to testify by subpoena or otherwise on your behalf, right to have counsel at all times, including an appeal if you should be convicted by the jury, and right to have an attorney appointed by the court if you cannot afford an attorney. You understand you have all those rights if you plead not guilty?

By Defendant: Yes sir.

By the Court: All right. You’re willing to waive those rights, is that correct?

By Defendant: Right.

By the Court: All right. Mr. Oldfield, as far as you know and based on your conferences with Mr. Lewallen, do you believe he understands the nature and extent of the charges against him and the consequences of his entry of a plea of guilty?

By Oldfield: Yes sir, he does, Your Honor. I should explain to this court there was an arrangement reached between the defendant and the Commonwealth. So that it’s on the record and the court understands the Commonwealth would recommend a fine of $250 on each of the four counts for a total fine of $1,000 and would dismiss the remaining counts in the indictment. In conjunction with that the Commonwealth would also move to dismiss the other pending indictment against Mr. Baker and Mr. — or Mrs. Wright. I think that’s the extent of the agreement.

In Kotas v. Commonwealth, Ky., 565 S.W.2d 445, 447 (1978), the court maintained that, “[t]he validity of a guilty plea is determined not by reference to some magic incantation recited at the time it is taken but from the totality of the circumstances.” The above-mentioned colloquy establishes the fact that Lewallen’s plea was entered voluntarily without any coercion, with a waiver of his rights, and with an understanding of the nature of the charges against him.

Lewallen’s reliance upon Henderson v. Morgan, 426 U.S. 637, 647, 96 S.Ct. 2253, 2259, 49 L.Ed.2d 108, 116 (1976), is misplaced. In Henderson, the defendant plead guilty to the offense of second-degree murder, which required intent. At his sentencing hearing, he stated that he “meant no harm to the lady.” The court reasoned that:

This case is unique because the trial judge found as a fact that the element of intent was not explained to respondent. Moreover, respondent’s unusually low mental capacity provides a reasonable explanation for counsel’s oversight . 96 S.Ct. at 2258-2259.

In this case, defense counsel told the trial court that he had explained the nature of the charge to Lewallen that Lewallen understood it. Mr. Oldfield, Lewallen’s trial counsel, fully explained this to the court at the evidentiary hearing on the motion. Mr. Lewallen did not attend his hearing.

Lewallen further claims that the trial court committed reversible error by not allowing him to speak in mitigation of the plea. We note that the fine imposed by the trial court was exactly what Lewallen had bargained for with the Commonwealth. We, therefore, fail to see any manifest injustice.

Lewallen’s appellate counsel, who works in the law office with trial counsel, vigorously claims that the plea was unfairly induced because of the recommendation of the Commonwealth to dismiss indictments against the other defendants if Lewallen would plead guilty. There is no indication in the record that that part of the bargain had a coercive effect on Lewallen. In fact, the trial court asked Lewallen if he was entering his plea of his own free will without any coercion or pressure, and he answered affirmatively. The other parties were Lewallen’s landlords, and nothing was brought out at the time of the plea or at the hearing to indicate any threat or coercion of any type against Lewallen, if he failed to accept the bargain. Several charges were also dismissed against Lewal-len. He received the benefits of a reasonable and fairly processed bargain. To set it aside at this late date for the reasons argued would be grossly unjust to the Commonwealth and unfair to the prosecution. We find no reason of an extraordinary nature justifying relief under CR 60.02.

This appeal is dismissed.

All concur.


author: COOPER, Judge.

text:
    Billy MILLIGAN, Appellant, v. SCHENLEY DISTILLERS, INC., Special Fund, and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    July 13, 1979.
    As Modified July 27, 1979.

      Robert L. Catlett, Jr., Louisville, for appellant.
    Denis Kline, Dept, of Labor, William P. Swain, Louisville, for appellees.
   OPINION AND ORDER

Before COOPER, REYNOLDS and VANCE, JJ.

COOPER, Judge.

Schenley Distillers, Inc., a named appellee in this appeal, has moved this Court to dismiss this appeal on the grounds that the notice of appeal does not properly specify the appellants and appellees in accordance with CR 73.03. The ruling on this motion is made the subject of a published opinion and order because of the necessity of deciding whether or not the Workmen’s Compensation Board is an indispensable party to an appeal to this Court from a circuit court’s review of a Workmen’s Compensation Board decision.

On April 12, 1979, the Jefferson Circuit Court entered an opinion and order which affirmed the decision of the Workmen’s Compensation Board which determined that the appellant was not entitled to workmen’s compensation benefits for a subsequent injury because the total resulting occupational disability was less than that for which the petitioner had already been compensated as a result of the previous injury. Schenley Distillers, Inc., the Special Fund, and the Workmen’s Compensation Board were defendants in this action in the circuit court.

The notice of appeal, which was filed with the clerk of the Jefferson Circuit Court on April 19, 1979, is set out as follows:

NO. 78CI06923 JEFFERSON CIRCUIT COURT THIRTEENTH DIVISION
BILLY MIL[L]IGAN PLAINTIFF
VS NOTICE OF APPEAL
SCHENLEY DISTILLERS, INC., ET AL. DEFENDANT
Notice is hereby given that the Plaintiff, Billy Mil[l]igan, by counsel, hereby Appeals to the Court of Appeals from the final Judgment of the Jefferson Circuit Court entered April 12,1979.

The notice of appeal is signed by the attorney for the appellant.

On May 16,1979, Schenley Distillers filed this motion testing the adequacy of the appellant’s notice of appeal. The body of the notice of appeal designates Billy Milli-gan as an appellant; no appellees are named. Schenley Distillers, Inc., is named in the caption and is identifiable as an appellee. Schultz v. Chadwell, Ky.App., 548 S.W.2d 181 (1977). The notice of appeal nowhere names the Workmen’s Compensation Board or the Special Fund as parties to the appeal.

Therefore, it appears that Milligan has a properly taken appeal against Schenley Distillers, Inc. But, if Milligan has failed to name an indispensible party to the appeal, the appeal must be dismissed. Commonwealth, Department of Transportation v. Kelley, Ky.App., 376 S.W.2d 539, 540 (1964); Yocom v. Franklin County Fiscal Court, Ky.App., 545 S.W.2d 296, 298 (1976).

An indispensible party is one whose absence prevents the Court from granting complete relief among those already parties. CR 19.01.

Clearly, the Special Fund is not an indispensible party. There are only certain statutorily defined situations in which liability may be assessed against the Special Fund, and it is only where this Court is being asked to rule on the Special Fund’s liability that the Special Fund must be made a party to the appeal.

KRS 342.285(1) requires that the Workmen’s Compensation Board be made a party to appeals to the circuit court from the decisions of the Board. There is no similar statutory provision requiring that the Board be made a party in this Court. However, the Court of Appeals of Kentucky, in the case of Scott Brothers Logging and Lumber Co. v. Cobb, Ky., 465 S.W.2d 241 (1971), in construing KRS 342.285, made the following statement in affirming a circuit court dismissal of a workmen’s compensation appeal for failure to join the Board:

Appellant’s argument that the Board is merely a nominal party does not impress us. The statute which prescribes the method of appeal specifically requires that the Board be made a party. The Board’s presence as a party is essential because the Board is required to transmit its proceedings to the circuit court and judicial review is confined in most cases to a consideration of the Board’s record. Also the judicial determination made in many instances requires further action by the Board. Hence, the Board in no sense can be regarded as merely a nominal party in proceedings for judicial review of its actions. Id. at 243.

We believe that the same reasoning requires that the Workmen’s Compensation Board be made a party in appeals of workmen’s compensation cases from the circuit court to this Court. The opinions of this Court in workmen’s compensation cases frequently require the Workmen’s Compensation Board to take some further action in the case. We do not believe that the Board can be required to take that action unless the Board has been a party before this Court.

We do not believe that the Board’s presence as a party in the circuit court is adequate. The situation is similar to that of an appeal to this Court of a circuit court’s review of the decision of any other administrative agency. Relief cannot be sought against the agency in this Court unless the agency is properly made a party before this Court.

Therefore, we find that the notice of appeal in this case did not designate the Workmen’s Compensation Board as a party to this appeal, and that the Workmen’s Compensation Board is an indispensable party to this appeal. Therefore, it is ordered that this appeal be, and it is hereby, dismissed.


author: HAYES, Judge.

text:
    Addie H. CARLSON, Appellant, v. Mary V. McELROY and Regina McElroy, Appellees. ALLSTATE INSURANCE COMPANY, Appellant, v. Mary V. McELROY, Regina McElroy, Addie Carlson and U.S.A.A. Insurance Company, Appellees. and ALLSTATE INSURANCE COMPANY, Appellant, v. Addie CARLSON, Appellee.
    Court of Appeals of Kentucky.
    July 20, 1979.

      Reford H. Coleman, Collier, Arnett, Coleman & Cooper, Elizabethtown, for Mary V. McElroy, Regina McElroy and U.S.A.A. Ins. Co.
    David F. Broderick, Cole, Harned & Bro-derick, Bowling Green, for Allstate Ins. Co.
    G. D. Milliken, Jr., Milliken & Milliken, Bowling Green, for Addie H. Carlson.
    Before COOPER, HAYES and WINTER-SHEIMER, JJ.
   HAYES, Judge.

Addie Carlson was sitting in her automobile which was parked in the parking lot on the Western Kentucky University campus in Bowling Green. Mary McElroy, operating an automobile owned by her mother Regina McElroy, negligently drove her automobile into the rear of the Carlson car. The fact that the accident was due to the negligence of Mary McElroy is not disputed.

There was evidence introduced that the McElroy car was travelling at about five miles per hour (5 m. p. h.) at impact; that the collision was merely a “bump” which did not move the Carlson auto, which was driven from the scene by Mrs. Carlson. Even though Carlson, at the scene, advised a Western Kentucky University police officer and Mary McElroy that she was not injured, she did see her family doctor the next day after the accident. Her complaint was that she had suffered a cervical injury as a result of the accident.

About a week after the accident Carlson was admitted to the Greenview Hospital in Bowling Green where she remained for one month. While there, an orthopedic surgeon was consulted and Carlson was assigned to physical therapy.

Three days after dismissal from the hospital, Mrs. Carlson was readmitted for a bloodclot (thrombophlebitis) in her left leg. Testimony was introduced that Carlson had been having problems with broken veins behind her left leg, for which she wore support hose and received hormone medication for at least three (3) years before this accident. Treatment on this second visit to the hospital consisted mainly of anticoagulant medication for the bloodclot.

A neurosurgeon examined Carlson during this second visit to the hospital, and he determined that Carlson’s symptoms were psychosomatic and had no organic etiology. Neither the orthopedic doctor nor the neurosurgeon related the phlebitis with Carlson’s neck complaints or the accident.

Carlson then sought medical treatment from neurosurgeons in Nashville, Tennessee, and eventually from a chiropractor in Bowling Green; was readmitted to the hospital on at least two more occasions, all for which the Allstate Insurance Company, Carlson’s insurer, paid Carlson $9,140.37 under her personal injury protection (PIP) clause of insurance. Carlson filed suit against the McElroys in October, 1976. Previous to the trial of this action in February, 1978, Carlson was involved in a second accident in October, 1977.

The Allstate Insurance Company intervened and brought in the insurer of the McElroys, the U. S. A. A. Insurance Company, claiming a subrogation right under KRS 304.39-070.

The trial court directed a verdict for Carlson on the issue of liability and submitted the case to the jury on the question of damages only. The jury awarded Carlson no damages and further wrote on their verdict, “We the undersigned believe that the plaintiff should not receive any compensation as a result of this complaint.”

On these appeals by Carlson and Allstate Insurance Company, Carlson complains of the instructions given by the trial court to the jury which she alleges caused the jury to speculate that the injuries suffered by Carlson were not from this accident} when all the medical proof was to the contrary. Allstate asserts that they are still entitled to subrogation from U. S. A. A. Insurance Company even though Carlson, Allstate’s insured, received nothing from the McEl-roys.

The trial court instructed the jury, in instruction number two, as follows:

The Court instructs the Jury that if they believe from the evidence that all, or any part, of the injuries of which the Plaintiff complains were not caused by her automobile being struck by Defendant’s automobile, but were caused at some other time, or occurred from some other cause, you will not find for Plaintiff on account of any of the injuries which you may believe from the evidence were caused at some other time or occurred from some other cause, but will only find such damages as you may believe Plaintiff sustained on account of the injuries which she suffered by being struck by Defendant’s automobile.

A careful review of the transcript of evidence and the depositions in this case indicate to us that there was some question, even in the minds of the medical experts, with the possible exception of the family doctor and the chiropractor, whether Carlson received any injury as a result of this accident. Contrary to what Carlson contends in her brief, we do not see the evidence as all one-sided for her. Obviously the jury didn’t either.

The fact Carlson received a directed verdict on liability does not necessarily mean she was entitled to some damages, if, as here, the jury believed she was not injured, or, if so, she was injured as a result of some other cause. In any event, the jury was not bound to accept as the absolute truth the testimony of either Carlson or her doctors relating to her injuries, and having the opportunity to observe Carlson giving her testimony and to hear first hand all the other evidence in arriving at their verdict, the jury could have believed Carlson grossly exaggerated the extent of her injuries, if any, or that her injuries were not as a result of this accident. Davidson v. Vogler, Ky., 507 S.W.2d 160 (1974) and Wilkins v. Hopkins, 278 Ky. 280, 128 S.W.2d 772 (1939).

Due to the peculiar facts of this case (some evidence of pre-existing medical problems and evidence of a prior and succeeding accident) we believe it was proper for the trial court to instruct as it did. Carlson’s reliance on the case of Reitze v. Williams, Ky., 458 S.W.2d 613 (1970), for the proposition that the instruction was erroneous is misplaced. In Reitze, the court held such an instruction as given in the instant case was erroneous; however in Reitze, there was no evidence of any pre-ex-isting injury nor a subsequent accident. In the instant case, instruction number one given by the trial court did not contain, with reference to Carlson’s injuries, the “if any” provision required by Hetrick v. Willis, Ky., 439 S.W.2d 942 (1969). Under the facts of this case, we believe the McElroys were entitled to instruction number two.

Having determined that the jury’s award of no damages to Carlson was proper, Allstate’s subrogation claim against U. S. A. A. Insurance Company, the insurer of the McElroys, must necessarily fail. Subro-gation, either legal or conventional, is derivative in nature, and in this case, Allstate’s claim against the reparations obligor of the McElroys reached no greater status than Carlson’s claim against the McElroys.

Allstate argues that it is entitled to repayment from U. S. A. A. Insurance Company for the sum total of PIP benefits paid to Carlson ($9,140.37) by virtue of KRS 304.39-020(2). We construe subsection (2) of that statute to apply to subrogation rights of a basic reparations obligor against “unsecured” persons or organizations, such as uninsured motorists. Here the McElroys were “secured persons”. If Allstate has any claim in the instant case, it would be under subsection (3) of KRS 304.39-070 which states:

(3) A reparations obligor shall have the right to recover basic reparation benefits paid to or for the benefit of a person suffering the injury from the reparation obligor of a secured person as provided in this subsection, .

Of course, Allstate cannot avail itself of the provisions of subsection (3) because the key word in that subsection is “injured person,” and since the jury determined Carlson was not an injured person, in this accident, Allstate cannot recover. We realize a factual situation as we have here places the basic reparations obligor in a position of paying out benefits under PIP coverage, long before, in most instances, a jury determines whether there even was injury with the result that the reparations obligor might have paid gratuitously. However, we are reminded that at least one purpose of the Kentucky No-Fault Law is the prompt payment of medical bills, and that legal duty to pay on behalf of the reparations obligor is not based on fault. Therefore, under the peculiar facts of this case, Allstate was legally bound to pay PIP benefits to Carlson, but its right of subrogation against U. S. A. A. Insurance Company must fail because the injuries Carlson sustained, if any, were not the result of any conduct of U. S. A. A.’s insureds, the McEl-roys.

The judgments of the trial court are affirmed.

All concur.


author: HENRY, Chief Justice. HARBISON, Justice, PER CURIAM

text:
    Sammy MILLER, Appellant, v. STATE of Tennessee, Appellee.
    Supreme Court of Tennessee.
    April 2, 1979.
    Rehearings Denied Aug. 10, 1979.
    Second Rehearing Denied Oct. 22, 1979.

      H. H. Gearinger, Chattanooga, for appellant.
    William M. Leech, Jr., Atty. Gen., Robert L. Jolley, Jr., Asst. Atty. Gen., Nashville, Gary Gerbitz, Dist. Atty. Gen., Chattanooga, for appellee.
   OPINION

HENRY, Chief Justice.

In this criminal action the defendant was convicted of murder in the first degree and sentenced to death by electrocution. It comes before us on direct appeal pursuant to § 39-2406, T.C.A.

We affirm so much of the jury verdict and the judgment of the court thereon as found defendant guilty of murder in the first degree, but modify the sentence imposed and adjudged by reducing it to life imprisonment.

I.

Factual Background

This was a brutal and senseless murder. A full narration of the facts would serve no useful purpose. Suffice it to say that on April 7,1976, defendant, after participating in robbing Randall Ray West, a seventeen year-old boy, placed him in the trunk of his own vehicle, started the engine, drove the vehicle into Lake Chickamauga, and jumped clear leaving West to drown, while pleading for his life and pounding upon the trunk of the car in a frantic effort to escape. The automobile sank into twenty-five feet of water.

We have reviewed the record and find that defendant was convicted upon legally sufficient evidence in a fair and error-free trial. Without hesitation we affirm the conviction.

II.

Appellant’s primary contention is that he was tried under Chapter 51, Public Acts of 1977, which became effective April 11,1977, for a crime committed on April 7, 1976. Therefore, he contends that his conviction was ex post facto under Article 1, Section 10 of the Constitution of the United States.

The holding of the Supreme Court of the United States in Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), irrespective of our personal views as to its correctness, compels us to overrule this contention.

We are bound by the interpretation given to the United States Constitution by the Supreme Court of the United States. This is fundamental to our system of federalism. The full, final, and authoritative responsibility for the interpretation of the federal constitution rests upon the Supreme Court of the United States. This is what the Supremacy Clause means. However, as to Tennessee’s Constitution, we sit as a court of last resort, subject solely to the qualification that we may not impinge upon the minimum level of protection established by Supreme Court interpretations of the federal constitutional guarantees. But state supreme courts, interpreting state constitutional provisions, may impose higher standards and stronger protections than those set by the federal constitution. It is settled law that the Supreme Court of a state has full and final power to determine the constitutionality of a state statute, procedure, or course of conduct with regard to the state constitution, and this is true even where the state and federal constitutions contain similar or identical provisions. Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); Jankovich v. Indiana Toll Road Commission, 379 U.S. 487, 85 S.Ct. 493, 13 L.Ed.2d 439 (1965). Thus, although state courts cannot interpret their state constitution so as to restrict the protections afforded by the federal constitution, as interpreted by the United States Supreme Court, they may expand protections on the basis of a textually identical state constitutional provision.

If this were not true the frictions of federalism would be fierce and frustrating and state supreme courts would be reduced to mere conduits through which federal edicts would flow.

The Supreme Court of Hawaii, in State v. Kaluna, 520 P.2d 51 (1974) stated the principle eloquently and accurately:

In our interpretation of the United States Constitution, or course, we are bound to follow applicable pronouncements by the United States Supreme Court.
However, as the ultimate judicial tribunal in this state, this court has final, unre-viewable authority to interpret and enforce the Hawaii Constitution. We have not hesitated in the past to extend the protections of the Hawaii Bill of Rights beyond those of textually parallel provisions in the Federal Bill of Rights when logic and sound regard for the purposes of those protections have so warranted. 520 P.2d at 58.

We do not accept the holding of Dobbert as a matter of Tennessee constitutional law.

While appellant assigns no error based on Tennessee’s pertinent constitutional provisions, we do not think that this constitutional court of last resort can ignore them when exercising the awesome responsibility of de-términing whether a Tennessee citizen lives or dies.

We are solemnly enjoined by § 40-3409, T.C.A., that “[n]o assignment of error or joinder in error is necessary in criminal cases taken to the Supreme Court, but the court shall render such judgment on the record as the law demands.”

In Manning v. State, 500 S.W.2d 913 (Tenn.1973), this Court rejected as untenable the contention that Tennessee appellate courts could not consider an issue that was not raised during the trial or by assignment of error on appeal. Quoting from Silber v. United States, 370 U.S. 717, 82 S.Ct. 1287, 8 L.Ed.2d 798 (1962), the Court approved the following language:

In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise affect the fairness, integrity, or public reputation of judicial proceedings. 500 S.W.2d at 914

The Court went on to state that “the right to act on unassigned error exists where not ‘to do so would be nothing less than knowingly perpetrating a palpable injustice.’ ” Id. More recently, we unanimously held in Adams v. State, 547 S.W.2d 553, 557 (Tenn.1977), that this Court “is bound to consider any errors in the record, whether there has been an assignment or not.” (Emphasis supplied).

The gravity of this case compels us to consider Tennessee’s Constitution and statutes. Article I, Section 11 of our Constitution provides:

That laws made for the punishment of acts committed previous to the existence of such laws, and by them only declared criminal, are contrary to the principles of a free Government; wherefore no Ex post facto law shall be made.

This section denouncing prejudicial retrospective change, in our view, is sufficiently broad to proscribe the application of a statute fixing punishment in excess of that provided by a law in effect at the time of the commission of an offense.

In State v. Rowe, 116 N.J.L. 48, 181 A. 706 (1935), the Court lays down four broad and generally “accepted classifications of ex post facto laws,” as follows:

1. A law which provides for the infliction of punishment upon a person for an act done which, when it was committed, was innocent.
2. A law which aggravates a crime or makes it greater than when it was committed.
3. A law that changes punishment or inflicts a greater punishment than the law annexed to the crime when it was committed.
4. A law that changes the rules of evidence and receives (sic) less or different testimony than was required at the time of the commission of the offense in order to convict the offender. 181 A. at 709.

Among other classifications added by the Court was:

Every law which, in relation to the offense or its consequences, alters the situation of a person to his disadvantage, 181 A. at 710.

The Rowe Court relied upon Calder v. Bull, 3 U.S. (3 Dali.) 386, 1 L.Ed. 648 (1798) for the first four characteristics. There Justice Chase laid down the time-honored test. The application of these commonly accepted principles precludes a sentence of death by electrocution in this case.

III.

In State v. Dixon, 530 S.W.2d 73 (Tenn.1975), Mr. Justice Cooper, writing for the Court, recognized that “[a]n unconstitutional act designed to amend or supersede an existing law does not repeal or change the former valid act but leaves it in full force and effect.” 530 S.W.2d at 74. In Dixon the murder was committed and the defendant was tried and convicted under a statute that was subsequently found to be unconstitutional because of caption difficulties. The Court upheld the conviction because the former law proscribing first degree murder was left intact. Since the indictment conformed to the requirements of the prior valid statute the conviction was valid absent other prejudicial error.

In Dixon the trial court erroneously instructed the minimum sentence under the unconstitutional statute. Since the jury’s verdict indicated that it did not intend to impose the minimum sentence, this Court ruled that the error was harmless. In the instant case, however, Miller is prejudiced by the erroneous instruction since he is subjected to the death penalty, which could not have been applied under the statute in effect when the crime was committed.

Finally, we think that the holding of the Court in Collins v. State, 550 S.W.2d 643 (Tenn.1977), requires a reversal to the extent of the sentence of death by electrocution.

In Collins, responsive to various 1976 decisions of the Supreme Court of the United States, we declared Section 3, Chapter 462 of the Public Acts of 1974, as codified in Section 39-2405, 2406, T.C.A. to be unconstitutional.

We noted that prior law (specifically Section 10771, Williams Tennessee Code, and Section 39-2405, T.C.A.), provided that persons convicted of murder in the first degree “shall suffer death by electrocution, or be imprisoned for life or over twenty (20) years, as the jury may determine”, and that under then section 39-2406 the jury might fix the punishment at death, but “if they are of opinion that there are mitigating circumstances,” the punishment might be fixed at some period over twenty years. We then held that those pre-1973 statutes, to the extent of the death penalty provisions, were invalid. 550 S.W.2d at 646, 647. This operated to leave prior valid acts in full force and effect. Dixon, supra.

Collins effectively operated to invalidate all death penalty provisions of acts going back to Chapter 181 of the Public Acts of 1915. Section 1 of that act provided, in pertinent part:

That the death penalty as punishment for crime be, and the same is hereby abolished, and in lieu thereof . . . shall be the punishment of life imprisonment [except for the crimes of rape and convicts serving life terms convicted of any capital crime.]

Thus the legally effective punishment for first degree murder on the date of the crime committed by appellant was life imprisonment, as there was no constitutional procedure for the infliction of the death penalty at the time of the crime. The statute enacted subsequent to the crime may not be applied retroactively to him.

IV.

We hold that so much of the verdict of the jury and judgment of the court thereon as imposed upon appellant a sentence of death by electrocution is invalid as being in contravention of Article I, Section 11 of the Constitution of the State of Tennessee.

We affirm the finding of guilt and reduce the sentence imposed to life imprisonment.

COOPER and BROCK, JJ., concurring.

HARBISON, J., dissents with opinion.

FONES, J., concurs in dissenting opinion.

APPENDIX

SEQUENCE OF EVENTS

6-22-72 Furman v. Georgia decided

5- 8-73 Chapter 192, Acts of 1973 became effective

2- 4-74 Chapter 192, Acts of 1973 declared unconstitutional in State v. Hailey, 505 S.W.2d 712 (Tenn.1974)

2-27-74 Chapter 462, Acts of 1974, providing a mandatory death penalty for murder I, became effective

4- 7-76 Miller murdered West (mandatory death penalty was in effect)

7- 2-76 Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859; Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913; Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929; Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944; and Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 decided by Supreme Court of the United States.

7- 6-76 Williams v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3218, 49 L.Ed.2d 1215 decided.

Note: These cases alerted the bench and bar that a mandatory death penalty violated the Fifth and Fourteenth Amendments to the Constitution of the United States.

8- 5-76 Miller arrested

9-22-76 Miller indicted (For all practical purposes, Tennessee’s mandatory death penalty had been obliterated)

1-24-77 Collins v. State, 550 S.W.2d 643 (Tenn.1977)' decided. This decision was predicated wholly on the Federal Constitution.

2- 8-77 Governor commuted all death row prisoners

4-11-77 Chapter 51, Public Acts of 1977, the present death penalty law, Sec. 39-2402, 2404 and 2406 became effective when passed over tne Governor’s veto.

5- 2-77 Petition to rehear in Collins was overruled

12- 8-77 Opening date of trial

12- 9-77 Miller Convicted of Murder I and given death penalty

This was:

1 year and 8 months after the crime 1 “ “4 “ “ “ arrest

1 “ “5 “ “ “ Gregg, etc.

1 “ "2 “ and 17 days after the indictment

10½ months after Collins

HARBISON, Justice,

dissenting.

I respectfully dissent, particularly from that portion of the majority opinion which recognizes but refuses to follow and to apply the holding of the Supreme Court of the United States in Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977).

In that case the Supreme Court of the United States, in a six-to-three decision, construed the ex post facto provisions of the United States Constitution fully and authoritatively. The majority of this Court has seen fit to accept the rationale of the dissenting opinion, rather than the majority opinion of that Court, and has accepted arguments advanced in this case which were considered in depth and expressly rejected by the United States Supreme Court.

The Constitution of Tennessee has neither been cited, briefed nor argued in this case. I think that it is an unfortunate development in constitutional law for the Court, sua sponte, to conclude that the term “ex post facto” has a different meaning in the Constitution of Tennessee from the identical words used in the Constitution of the United States. Heretofore, the courts of this state, in discussing ex post facto laws, have cited and relied upon interpretations of Article I, Section 10, of the United States Constitution, and there has never been the slightest suggestion that the provisions of the Tennessee Constitution were any different in content, scope and meaning from those in the federal constitution. See Stinson v. State, 208 Tenn. 159, 344 S.W.2d 369 (1961); Davis v. Beeler, 185 Tenn. 638, 207 S.W.2d 343 (1947).

Implicit in the majority opinion is a conclusion that the 1977 statute, under which petitioner was brought to trial, m some way “enhanced” or “increased” the punishment for first-degree murder. That statute, rather than making the death penalty for first-degree murder mandatory, made it discretionary and expressly authorized the trier of fact to consider specific aggravating circumstances and any and all mitigating circumstances which the accused might wish to present. In an identical situation, the Supreme Court of the United States in Dobbert v. Florida, supra, held that there was no enhancement of punishment in such a new statute, but that the new statute was basically procedural and tended to ameliorate, not to enhance, the punishment prescribed in an earlier mandatory death penalty statute.

There is not the slightest suggestion in the majority opinion that Dobbert v. Florida, supra, can be distinguished, in any constitutional sense, from the instant case. The “sequence of events” set forth in the appendix to the majority opinion is almost identical to that which occurred in Florida, as outlined in the majority opinion in Dob-bert. There the murder was committed several months before an existing mandatory death penalty was held invalid. A new statute was enacted subsequently, and the accused was brought to trial thereunder. Holding that there was no ex post facto application of the new statute, the Supreme Court of the United States rejected the contention, accepted by the majority here, that there was no “valid” death penalty “in effect” on the date of the crime — and the implicit notion contained in such contention that a criminal, somehow, acquires a constitutional “right” to commit first-degree murder and be immunized from any power of the state later to subject him to the death penalty.

Responding to the argument that the mandatory death penalty contained in the statutes at the time the murder was committed could not be enforced, and that, therefore, a later death penalty provision could not be applied to the criminal offense, the majority of the Supreme Court stated:

“But this sophistic argument mocks the substance of the ex post facto clause. Whether or not the old statute would in the future, withstand constitutional attack, it clearly indicated Florida’s view of the severity of murder and of the degree of punishment which the legislature wished to impose upon murderers. The statute was intended to provide maximum deterrence, and its existence on the statute books provided fair warning as to the degree of culpability which the State ascribed to the act of murder.” 432 U.S. at 297, 97 S.Ct. at 2300.

Whether Tennessee does or does not have a death penalty is a matter to be determined by the duly elected representatives of the people of this state. Consistently since 1919, the General Assembly has provided for the death penalty for first-degree murder. The experiment attempted in 1915, abolishing the death penalty, was short-lived. Regardless of our views as to the desirability or effectiveness of the death penalty, it is the General Assembly which must make the policy for the state on this subject. In my opinion, that body has spoken in clear, decisive terms and has enacted a statute which is not vulnerable to the ex post facto or retroactivity arguments advanced by the majority in this case.

It must be remembered, after all, that we are dealing with first-degree murder, one of the highest crimes against society. When the unspeakably brutal murder involved herein was committed by the petitioner, the penalty prescribed by the General Assembly of this state was death by electrocution, and that penalty was mandatory in all cases of first-degree murder. The 1977 statute, under which petitioner was tried, made the penalty discretionary. The same conduct was proscribed in both statutes, however, and the definition of first-degree murder, insofar as pertinent to this case, was not changed by the 1977 legislation.

Every contention advanced by the petitioner in this case was thoroughly and carefully considered by the Supreme Court of the United States in Dobbert v. Florida, supra, and was rejected. Similar arguments were rejected by the Supreme Court of Virginia in the recent case of Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135 (1978).

I cannot concur in or approve the statement contained in the majority opinion that this Court will not “accept the holding of Dobbert as a matter of Tennessee constitutional law.”

I have reviewed the record in this case in detail. After considering all of the assignments of error made by counsel appointed to represent the petitioner, I would affirm both the conviction and the sentence imposed pursuant thereto.

I am authorized to state that Mr. Justice Fones joins in this dissenting opinion.

MEMORANDUM ON PETITIONS TO REHEAR

Both Miller and the State have filed petitions to rehear. The State asks us to reconsider our determination that application of the 1977 Act to Miller violates the ex post facto provision of the Tennessee Constitution. This Court labored long and laboriously in a concentrated effort to reconcile conflicting internal views. We decline to accept the State’s invitation. The majority continues to be of the opinion that the penalty of death by electrocution is invalid under Article I, Section 11 of the Constitution of Tennessee. Justices Harbison and Fones continue to adhere to a contrary view.

Miller argues that the Court should have remanded the case and allowed a jury to fix his punishment for a term of years between twenty years and life imprisonment. This claim is predicated upon the original disposition ordered in Collins v. State, 550 S.W.2d 643 (Tenn.1977).

The first opinion in Collins applied the rule that the invalidation of a statute operates to revive prior valid acts. See State v. Dixon, 530 S.W.2d 73 (Tenn.1975). Then we looked briefly to Chapter 5 of the Acts of 1919, which recited, inter alia:

When any person is convicted of the crime of murder in the first degree, or as an accessory before the fact of such a crime, it shall be the duty of the Jury convicting him in their verdict to fix his punishment, which punishment shall be death in the mode prescribed by law for the infliction of the death penalty in capital cases, or the Jury may, if they are of opinion that there are mitigating circumstances, fix the punishment at imprisonment in the penitentiary for life, or for some period over twenty years.

We then observed that this statute “did not prescribe sufficiently detailed procedures to accomplish ‘controlled discretion’ by the jury in the imposition of the death penalty . . . .” Therefore, we declared the death penalty provisions contained therein void. This, however, in the view of the Court, affected only the death penalty and not the remaining penal provisions of the Act. Hence, in the original opinion, we remanded to the trial court, under the 1919 Act, for the assessment of punishment ranging from twenty years to life imprisonment.

We note, upon examination of Chapter 5 of the Acts of 1919, that it contains no severability clause. In the absence of such a clause the unconstitutional death penalty provision may not be elided from the Act. The doctrine of elision is not favored in the law, Armistead v. Karseh, 192 Tenn. 137, 237 S.W.2d 960 (1951). There is also a presumption arising from the absence of a severability clause that the Legislature would not have passed the enactment without the objectionable matter. Maury County v. Porter, 195 Tenn. 116, 257 S.W.2d 16 (1953). In order for the Court to elide, we must be able to say that the statute would have been passed without the omitted provision. Phillips v. West, 187 Tenn. 57, 213 S.W.2d 3 (1952). The brevity of the statute and the fact that the penal provisions are so closely related and interdependent make it unwise and untenable for us to speculate that the Legislature would have passed one provision without the other.

The result is that Chapter 5 of the Acts of 1919 is unconstitutional. This validates the assertion contained in the main opinion that “the legally effective punishment for first degree murder on the date of the crime . . . was life imprisonment,” pursuant to ch. 181 of the 1915 Act.

The petitions to rehear are respectfully overruled.

BROCK, C. J., and COOPER, J., concurring.

FONES and HARBISON, JJ., dissenting.

MEMORANDUM ON SECOND PETITION TO REHEAR

PER CURIAM

The Second Petition to Rehear is respectfully denied.

All members of the Court adhere to their original opinions.

      . Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859; Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978. 49 L.Ed.2d 944: Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974; Williams v. Oklahoma, 428 U.S. 907. 96 S.Ct. 3218. 49 L.Ed.2d 1215.

      . Chapter 192, Public Acts of 1973, was declared unconstitutional in State v. Hailey, 505 S.W.2d 712 (Tenn.1974).

      . In the present case the petitioner made n attempt to prove any mitigating circumstances at the sentencing hearing.


author: COOPER, Justice. HARBISON, Justice,

text:
    Ralph R. COZZOLINO, Appellant, v. STATE of Tennessee, Appellee.
    Supreme Court of Tennessee.
    June 11, 1979.
    Rehearing Denied Aug. 20, 1979.

      John C. Littleton, Roger W. Dickson, Chattanooga, for appellant.
    William M. Leech, Jr., Atty. Gen., Robert L. Jolley, Jr., Asst. Atty. Gen., Nashville, for appellee.
   OPINION

COOPER, Justice.

This case is before us pursuant to TCA § 39-2406, which provides for review by this court of all cases in which a death penalty is imposed for first degree murder. We reverse, and remand for a new sentencing proceeding.

The defendant, Ralph Cozzolino, pled guilty to the first degree murder of Clarence Hamler, an officer of the Chattanooga Police Department. A proceeding was then held under the provisions of TCA § 39-2404 to determine the punishment to be imposed. Under this statute, a trial of first degree murder is a bifurcated proceeding, with the jury first determining the defendant’s guilt or innocence of the charge, or, as happened here, with the defendant first admitting his guilt. If it is found that the defendant is guilty of first degree murder, a second proceeding is held before the same jury to determine the sentence — either life imprisonment or death — to be imposed. The jury may impose the death penalty only upon finding that one or more aggravating circumstances, listed in the statute, are present, and further that such circumstance or circumstances are not outweighed by any mitigating circumstance. With respect to the evidence that may be introduced on these issues, the statute provides, in TCA § 39-2404(c), that

[i]n the sentencing proceeding, evidence may be presented as to any matter that the court deems relevant to the punishment and may include, but not be limited to, the nature and circumstances of the crime; the defendant’s character, background history, and physical condition; any evidence tending to establish or rebut the aggravating circumstances enumerated . . below; and any evidence tending to establish or rebut any mitigating factors. Any such evidence which the court deems to have probative value on the issue of punishment may be received regardless of its admissibility under the rules of evidence .

In the course of the defendant’s sentencing proceeding, the State, over the objection of the defendant, introduced evidence of statements by the defendant in which he admitted committing a number of armed robberies during the time between the murder and his capture. The jury imposed a sentence of death.

The defendant has raised several assignments of error, only two of which we need reach. The first of these is his contention that the death penalty constitutes cruel and unusual punishment, and as such may not be imposed by this state either under the 14th amendment of the United States Constitution or under Article 1, § 16 of the constitution of this state. This court has previously held that this state is not prohibited from imposing the death penalty in the manner set forth in TCA § 39-2404 et seq. by the restrictions placed on it by the 14th amendment. Miller v. State, Tenn., 584 S.W.2d 758 (1979). In that case, the question was not raised as to whether the death penalty could stand in the face of the prohibition against cruel and unusual punishment contained in the state constitution. Without detailing the precise scope of the protection afforded by that clause, we hold that it places no greater restriction on the punishments that may be imposed by this state than does the federal constitution.

The defendant has raised another claim that we consider dispositive of the case. He contends that it was error for the trial judge to permit the State to introduce, in its case in chief, evidence that the defendant committed crimes subsequent to the murder, in that this evidence was not relevant to the proof of the presence or absence of any statutory aggravating circumstance or mitigating factor, the only issues properly before the jury. In opposition, the State has argued that TCA § 39— 2404(c) permits the introduction of this evidence regardless of its relevance to those issues. On its face section (c) would seem to permit the introduction of evidence “relevant to the punishment” in addition to that “tending to establish or rebut the aggravating circumstances” or “tending to establish or rebut any mitigating factors.” However, this interpretation is one that we cannot accept. When the statute is considered as a whole, it is clear that the only issues that the jury may properly consider in reaching a decision on the sentence to be imposed are whether the State has established one or more of the aggravating circumstances beyond a reasonable doubt and, if so, whether any mitigating factors have been shown that would outweigh those aggravating circumstances. Any evidence that does not go to the proof of one or the other of those issues is irrelevant to the jury’s deliberation. We cannot believe that the legislature intended that irrelevant evidence be placed before the jury, fraught as such a procedure would be with the “substantial risk that [the death penalty] would be inflicted in an arbitrary or capricious manner,” Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976), i. e., on the basis of factors other than those deemed by the legislature to be proper predicates for the sentencing determination. We think that a better interpretation of TCA § 39-2404(c), and one more in keeping with both the sense of the entire statute and the mandate of the United States Supreme Court, see, e. g., Gregg v. Georgia, supra; Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), is that evidence is relevant to the punishment, and thus admissible, only if it is relevant to an aggravating circumstance, or to a mitigating factor raised by the defendant.

At the outset, it is apparent that this evidence of subsequent crimes was not admissible to establish any of the aggravating circumstances set forth in TCA § 39-2404(i), for it is relevant to none of them. This was recognized by the trial judge. From the limitations placed on the use of this evidence in the court’s instructions, it appears that the trial judge permitted its introduction on the theory that it was relevant to rebut evidence of mitigating circumstances that might be advanced by the defendant. In this, he was in error. “Rebutting evidence” is that which tends to explain or controvert evidence produced by an adverse party. See, e. g., State v. Anderson, 159 N.W.2d 809 (Iowa 1968); Hutchinson v. Shaheen, 55 A.D.2d 833, 390 N.Y.S.2d 317 (1976). One cannot rebut a proposition that has not been advanced. While this error admittedly might have been made harmless by the later introduction by the defendant of evidence to which the State’s proof of subsequent crimes was relevant in rebuttal, that did not occur in the instant case. The defendant’s proof was limited to an attempt to show the origin, in a troubled childhood, of the defendant’s criminal acts. This proof was not controverted by the State’s demonstration of his present criminal proclivities.

As this evidence was relevant to neither the statutory aggravating circumstances, nor to any mitigating factors raised by the defendant, its admission was error. Given the nature of the issue on trial, we are unable to hold that this error was harmless. Therefore, the verdict of the jury imposing the death penalty is reversed, and the case remanded for a new sentencing hearing. Our decision pretermits the other assignments of error raised by the defendant.

FONES and BROCK, JJ., concur.

HARBISON, J„ and ALLISON HUM-PHREYS, Special Justice, concur.

HARBISON, Justice,

dissenting.

In this case appellant pled guilty to murder in the first degree committed in the perpetration of, or attempt to perpetrate, armed robbery. T.C.A. § 39-2402(a). The punishment prescribed for this offense is death by electrocution or imprisonment for life. T.C.A. § 39-2402(b).

Appellant’s plea of guilty was entered into after a long and careful colloquy between him, his counsel and the trial judge. It came after more than two days of detailed voir dire examination of prospective trial jurors.

After the guilty plea had been accepted by the trial judge, the jury was impanelled and sworn, without additional examination by counsel. A sentencing hearing was then held under the provisions of T.C.A. § 39-2404, to determine the punishment to be imposed.

At the guilty plea hearing, the District Attorney made a narrative statement of the facts giving rise to the prosecution, which appellant stated to the trial judge was substantially correct. At the sentencing hearing the State called numerous witnesses, whose testimony generally corroborated the statement made by the District Attorney. Appellant’s confession was read to the jury, in which he admitted the homicide, but contended that it was accidental rather than deliberate.

The evidence showed that appellant had previously been convicted five times, during the years between 1942 and 1957, of housebreaking, burglary, robbery and armed robbery. He had been sentenced in Tennessee as an habitual criminal in 1956, and was serving a sentence of life imprisonment immediately before the incident giving rise to the present prosecution.

On August 14,1977 appellant and another prisoner left a minimum security institution in Nashville, and they were attempting to rob a grocery store in Chattanooga, holding the manager, a security guard and another store employee at gunpoint, when the homicide occurred. A young Chattanooga police officer was in the rear of the grocery store talking with his brother, a store employee, when he was notified by a young man employed as a grocery sacker that the robbery was taking place. The officer, in full uniform, approached appellant with his pistol drawn. Appellant ordered the officer to drop his weapon, and when the officer did not do so, appellant shot him twice, one of the bullets entering his neck and shoulder and inflicting injuries which proved fatal within a few moments. Appellant fled, exchanging gunshots with the manager of the store and the brother of the officer, and was not apprehended until nearly five months later, when, in January 1978, he was arrested in Georgia on charges of another armed robbery.

There was ample evidence from which the jury could conclude that the conduct of appellant was deliberate and calculated, and that the shooting was not accidental. Appellant had seen the police officer in the rear of the store earlier and had taken him for a security guard. After appellant and his companion had captured the store manager and a store security officer, near the front part of the store, appellant made a comment to the manager that there was another security officer in the rear. When the manager told appellant that the store had only one security guard, appellant called the manager a liar. Appellant was on the lookout for the approaching officer, however, and had given warnings that he would shoot and kill anyone attempting to interfere with him and his companion in the robbery of the store.

The State offered evidence not only of appellant’s prior convictions but also offered the testimony of a Federal Bureau of Investigation officer to whom appellant had admitted the commission of at least six armed robberies in the months intervening between the August 1977 homicide and his capture in January 1978.

Appellant did not take the stand during the sentencing hearing to deny the testimony of the FBI officer, or for any other purpose. He offered testimony of two of his sisters, one of them by deposition, indicating that he had been the victim of a broken home and of mistreatment by his father and stepmother during his youth. There was testimony that he and his brothers and sisters had grown up under harsh economic circumstances and had had limited opportunities. There was further testimony, however, that after appellant matured, he was married and held a job at Oak Ridge, Tennessee for some time. He was later divorced and apparently had been incarcerated almost continuously since 1948.

Counsel for appellant offered evidence at the sentencing hearing, consisting of statements and data taken from dissenting opinions of a member of the United States Supreme Court, to the effect that the death penalty was not a deterrent to crime.

Following the introduction of evidence, the trial judge charged the jury fully on the provisions of the Tennessee first degree murder statutes, and the jury unanimously returned a verdict imposing the death penalty. They found five aggravating circumstances, all of which were clearly shown by the evidence, and, indeed, practically admitted by the appellant in his plea of guilty to the charges, and found that these were not outweighed by any mitigating circumstances.

The trial judge concurred in the verdict and overruled a post-trial motion. He also filed a detailed report of the trial, as required by Rule 47 of this Court, in which he stated that the verdict was fully justified by the evidence. Direct review of death penalty verdicts is provided in this Court by T.C.A. § 39-2406.

I have carefully considered the assignments of error filed on behalf of appellants by able counsel and have reviewed the record in detail. In my opinion the verdict of the jury was fully justified and there were no mitigating circumstances whatever offered in evidence to justify our interfering with the conclusions of the jury. The jury found, and the evidence conclusively showed, the following statutory aggravating circumstances (T.C.A. § 39 — 2404(i)):

(1) The defendant was previously convicted of one or more felonies, other than the present charge, which involved the use of threat of violence to the person.

(2) The defendant knowingly created a great risk of death to two or more persons, other than the victim murdered, during this act of murder.

(3) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another.

(4) The murder was committed while the defendant was engaged in committing, or was an accomplice in the commission of, or was attempting to commit, or was fleeing after committing or attempting to commit, any first degree murder, arson, rape, robbery, burglary, larceny, kidnapping, aircraft piracy, or unlawful throwing, placing or discharging of a destructive device or bomb.

(5)The murder was committed against any peace officer, corrections official, corrections employee or fireman, who was engaged in the performance of his duties, and the defendant knew or reasonably should have known that such victim was a peace officer, corrections official, corrections employee or fireman, engaged in the performance of his duties.

As required by T.C.A. § 39-2406, the Court has made a complete review of this case, and in accordance with the provisions of T.C.A. § 39-2406(c) I do not find that the sentence of death was imposed arbitrarily. In my opinion the evidence supports the jury’s findings of aggravated circumstances and the absence of any mitigating circumstances sufficient to outweigh these. I do not believe that the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering the nature of the crime and of the defendant.

The principal assignment of error made on behalf of appellant is that the trial court erred in permitting the FBI official to testify to subsequent criminal activity of appellant following the homicide with which he is presently charged. Appellant did not deny or contradict in any manner the testimony of this officer. Appellant and his counsel had been notified prior to the sentencing hearing that this official would testify, and during the guilty plea phase of the case, the following questions were asked of appellant by the Court:

“THE COURT: You understand that, all right.
Do you understand that in the second phase of the trial that is before the jury on the question of punishment that the State may or probably will attempt to introduce evidence of any prior offenses that you had?
MR. COZZOLINO: I do.
THE COURT: And that they may attempt to introduce evidence as to any subsequent offenses that you had.
MR. COZZOLINO: I do.

Immediately following the guilty plea hearing and the impanelling of the jury, the District Attorney and counsel for appellant made opening statements to the jury. In the course of his opening statement, counsel for appellant gave notice that the appellant would rely upon certain mitigating factors or circumstances. His statement, in part, is as follows:

“But I think after you hear what Ralph Cozzolino suffered in his childhood, what his life has been like since that time, its not an excuse for what he has done, but I think it will be shown to you and proven to you that this man has not had it, a very easy life, and he has not had a situation where he has had any guidance when he was coming up. And here again we go back to the questions you spanked your children and you did certain things and you tried to show your children and teach them things, and these things were absent. These things are not present in Mr. Cozzolino’s background and we’ll show you those things.”

The statutory provisions regarding the sentencing hearing are as follows:

“In the sentencing proceeding, evidence may be presented as to any matter that the court deems relevant to the punishment and may include, but not be limited to, the nature and circumstances of the crime; the defendant’s character, background history, and physical condition; any evidence tending to establish or rebut the aggravating circumstances enumerated in subsection (i) below; and any evidence tending to establish or rebut any mitigating factors. Any such evidence which the court deems to have probative value on the issue of punishment may be received regardless of its admissibility under the rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements so admitted. However, this subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or of the state of Tennessee.” T.C.A. § 39-2404(c)

T.C.A. § 39-2404(j) lists eight mitigating factors which may be considered by the jury, but expressly states that these are not exclusive, and that any mitigating circumstances may be shown. Among those listed in the statute are:

“(1) The defendant has no significant history of prior criminal activity.”

The trial court overruled the objection of counsel for appellant to the testimony of the FBI official regarding subsequent criminal activity of appellant. He also overruled objections to some references to such activity made by appellant in a confession given to a state police officer. In his final instructions to the jury, the trial judge directed their consideration of this testimony in the following manner:

“Members of the jury, there has been testimony concerning criminal offenses committed subsequent to the offense to which the defendant has pleaded guilty. You are instructed that you shall not consider this testimony in your consideration of any of the aggravating circumstances alleged by the State, but you may only consider testimony concerning any subsequent offenses to the extent that this testimony may rebut a mitigating circumstance advanced by the defendant.”

In my opinion the ruling and the instructions given by the trial judge to the jury were correct. It is the insistence of the appellant that the word “rebut” as used in T.C.A. § 39-2404(c) is used in a technical, formal and legalistic sense, so that the State may not, in its case “in chief” during the sentencing hearing offer any evidence tending to negate mitigating factors or circumstances until these have been affirmatively advanced by the accused during his presentation “in chief.”

Counsel for appellant concedes that had the appellant affirmatively advanced any mitigating circumstance during his presentation of evidence, the State would have been entitled, by rebuttal evidence, to meet these. In effect it is conceded that the evidence of appellant’s subsequent criminal activity would have been admissible as rebuttal evidence, but it is contended that it was not admissible prior to the appellant’s having offered evidence.

I do not believe that the sentencing hearing, as authorized by the present statutes, contemplates such a technical and formal presentation of evidence, nor do I believe that an accused could cut off the State from presenting a full picture of his character, background and history to the jury, by the simple device of not taking the stand or offering affirmatively any evidence of mitigating circumstances. The burden of proof rests upon the State to establish aggravating circumstances, and the jury must specifically find that these outweigh any mitigating circumstances before they are justified in imposing the death penalty. T.C.A. § 39-2404(f).

In his opening statement, defense counsel had given notice that appellant would attempt to establish mitigating circumstances. He expected to show the social history of appellant, his limited opportunities and background, as a mitigating factor in the assessment of punishment and as an appeal to the sympathy of the jurors. With the issues thus joined, in my opinion, the State was entitled to show affirmatively the absence of any mitigating circumstances, including a life and career of violent and dangerous criminal activity.

Counsel for appellant correctly urges that the death penalty can only be imposed upon a showing of one or more aggravating circumstances. The subsequent criminal conduct of the accused, at least as offered in the present case, did not involve statutory aggravating circumstances. It did, however, in my opinion, bear directly upon the absence of mitigating circumstances, both as set out in the statutes and as advanced by counsel. As previously stated, it is practically admitted by counsel for appellant that this testimony was relevant and would have been admissible as “rebuttal” testimony. Ordinarily, however, in the absence of any testimony whatever upon the subject of the criminal history of the accused, the jury would be entitled to assume that he had not engaged in criminal activity prior to the sentencing hearing other than the offense charged in the indictment. If the accused could simply stand silent and not offer any evidence “in chief” upon the subject, he could, by that device, eliminate from consideration by the jury the actual facts and leave them with what might well be a false impression.

I recognize the authorities cited by counsel for appellant that proof of other crimes is ordinarily received with great caution and is usually not admissible except in limited circumstances to prove motive, identity, and the like. It must be recognized, however, that these authorities deal with evidence adduced at a trial of guilt or innocence, not with a sentencing hearing after guilt has been determined as in the present case. The provisions of T.C.A. § 39-2404(c) contemplate a broad and comprehensive hearing so that the jury may have all relevant information pertinent to their decision as to the imposition of punishment.

In the case of State v. Mackey, 553 S.W.2d 337 (Tenn.1977), a somewhat similar issue was considered. In that case the Court dealt with the admissibility of evidence in a sentencing hearing after a plea of guilty. Defense counsel objected to the admission of prior convictions of the accused on the ground that the accused had not taken the stand in his own defense; hence, his character and reputation were not in issue. Holding that this contention was without merit, the Court said:

“Evidence may be presented by the defendant and by the State with respect to any matter relevant to the issue of sentence.”

These were said to include:

. .a full description of any prior criminal record of the defendant, his reputation and character . . . .” 553 S.W.2d at 344.

In the case of Gregg v. Georgia, 428 U.S. 153, 203-204, 96 S.Ct. 2909, 2939, 49 L.Ed.2d 859 (1976), the Supreme Court of the United States said:

“We think that the Georgia court wisely has chosen not to impose unnecessary restrictions on the evidence that can be offered at such a hearing and to approve open and far-ranging argument. [Citations omitted]. So long as the evidence introduced and the arguments made at the presentence hearing do not prejudice a defendant, it is preferable not to impose restrictions. We think it desirable for the jury to have as much information before it as possible when it makes the sentencing decision.”

In my opinion, the trial judge correctly admitted and instructed the jury concerning the evidence objected to, and the assignments of error pertaining thereto should be overruled.

Other assignments of error have been advanced by the appellant. Among these were alleged errors in failing to grant a continuance and in jury selection. These procedural errors, however, if any, were clearly waived by the subsequent plea of guilty submitted by appellant. See Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973); State ex rel. Edmondson v. Henderson, 220 Tenn. 605, 421 S.W.2d 635 (1967). I have carefully examined the record, however, and do not find that these assignments of error, in any event, have merit or that any reversible error was committed.

Likewise, I find no merit in appellant’s contentions that the death penalty constitutes cruel and unusual punishment under the Constitution of Tennessee. The United States Supreme Court has repeatedly rejected such contentions advanced under the federal constitution, and, in my opinion, the Tennessee Constitution contains no provisions which would prohibit the imposition of the death penalty under the terms, procedures and conditions set out in the 1977 statutes under which appellant was tried and convicted.

Accordingly, in my opinion, the judgment of the trial court and the sentence imposed pursuant thereto should be affirmed.

I am authorized to state that Mr. Justice ALLISON B. HUMPHREYS, sitting specially with the Court, concurs in this opinion.

      . TCA § 39-2404(i) provides:
      No death penalty shall be imposed but upon a unanimous finding, as heretofore indicated, of the existence of one or more of the statutory aggravating circumstances, which shall be limited, to the following:
      (1) The murder was committed against a person less than twelve years of age and the defendant was eighteen years of age, or older.
      (2) The defendant was previously convicted of one or more felonies, other than the present charge, which involve the use or threat of violence to the person.
      (3) The defendant knowingly created a great risk of death to two or more persons, other than the victim murdered, during his act of murder.
      (4) The defendant committed the murder for remuneration or the promise of remuneration, or employed another to commit the murder for remuneration or the promise of remuneration.

        (5) The murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind.
      (6) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another.
      (7) The murder was committed while the defendant was engaged in committing, or was an accomplice in the commission of, or was attempting to commit, or was fleeing after committing or attempting to commit, any first degree murder, arson, rape, robbery, burglary, larceny, kidnapping, aircraft piracy, or unlawful throwing, placing or discharging of a destructive device or bomb.
      (8) The murder was committed by the defendant while he was in lawful custody or in a place of lawful confinement or during his escape from lawful custody or from a place of lawful confinement.
      (9) The murder was committed against any peace officer, corrections official, corrections employee or fireman, who was engaged in the performance of his duties, and the defendant knew or reasonably should have known that such victim was a peace officer, corrections official, corrections employee or fireman, engaged in the performance of his duties.
      (10) The murder was committed against any present or former, judge, district attorney general or state attorney general, assistant district attorney general or assistant state attorney general due to or because of the exercise of his official duty or status and the defendant knew that the victim occupied said office.
      (11) The murder was committed against a national, state, or local popularly elected official, due to or because of the official’s lawful duties or status, and the defendant knew that the victim was such an official.
      No limitation is imposed on the mitigating factors that may be raised by the defendant. See TCA § 39-24040. Cf. Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).