The Tennessee Supreme Court has affirmed the felony murder conviction and death sentence Memphis jurors imposed on Andrew Thomas, who shot an armored truck guard in the back of the head, stole his victim's money deposit bag and went on a shopping spree.
Thomas was sentenced to death for the 1997 shooting of James Day, who died two years later from an infection resulting from the wound that damaged his spinal cord and caused other devastating injuries. Thomas, 24 at the time of the shooting, previously had been convicted of nine felonies, including eight aggravated robberies.
In an opinion written by Justice E. Riley Anderson, a majority of the court affirmed an earlier Court of Criminal Appeals decision. Chief Justice Frank F. Drowota, III, Justice William M. Barker and Justice Janice M. Holder concurred in the majority opinion upholding Thomas's conviction and sentence.
As required by state law, the court reviewed whether the sentence of death was disproportionate to the penalties imposed in similar cases, considering the nature of the crime and the defendant. Anderson and the majority held that the analysis used by the court to ensure that a death sentence is not "aberrant, arbitrary or capricious" is valid:
"In conducting this analysis, this court employs the precedent-seeking method of comparative proportionality review, in which we compare a case with other cases involving similar defendants and similar crimes," Anderson wrote. "We conclude that the death sentence as applied to the defendant in this case was not arbitrary, excessive or disproportionate when compared to defendants in other cases."
In a separate concurring/dissenting opinion, Justice Adolpho A. Birch, Jr., agreed with the majority that Thomas's conviction should be affirmed, but disagreed that the death sentence should be upheld. As he has in "a long line of dissents," Birch wrote that "the comparative proportionality review protocol currently embraced by the majority is inadequate to shield defendants from the arbitrary and disproportionate imposition of the death penalty."
The Supreme Court considered two other issues raised by Thomas in this direct appeal. The court found that the trial court judge did not err when he excused a prospective juror who said he could not impose the death penalty unless he witnessed the crime or the defendant confessed. Anderson wrote that the trial court did err when the judge refused to instruct the jury on lesser included offenses of felony murder, but concluded the error was "harmless beyond a reasonable doubt."
Day, who was married and the father of a 12-year-old son, was shot as he was leaving a store with a money deposit bag. His wife testified that he worked two jobs to support his family.
"The defendant ran up, shot the guard in the back of the head, grabbed the deposit bag" and jumped into a car driven by co-defendant Anthony Bond, Anderson wrote. Bond was sentenced to life in prison for his role in the crime.
For the two years he survived, Day underwent numerous surgeries and required constant care.
"He was confined to one room, was unable to use the bathroom and became depressed," Anderson wrote.
Experts testified that his death was a direct result of the shooting. During the trial, Day's wife testified that when her husband died she lost her "confidant, lover and best friend."
"After reviewing the record, we conclude that the evidence in this case clearly supported the jury's finding that the aggravating circumstance, i.e., that the defendant had prior convictions for felonies whose elements involved violence to the person, was proven beyond a reasonable doubt," Anderson wrote. "Similarly, the evidence supported the jury's finding that the evidence of this aggravating circumstance outweighed the evidence of mitigating circumstances beyond a reasonable doubt."
The court set an Aug. 10, 2005, execution date for Thomas, who has state and federal appeals remaining. The legal process in death penalty cases is explained on the court system website at www.tsc.state.tn.us under "Information" and "Capital Case Information."