IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MARCH 1996 SESSION
STATE OF TENNESSEE, * C.C.A. # 02C01-9508-CR-00211
VS.
Appellee, *
*
SHELBY COUNTY
Hon. W. Fred Axley, Judge
FILED
PERRY A. CRIBBS, * (Death Penalty)
March 26, 2008
Appellant. *
Cecil Crowson, Jr.
Appellate Court Clerk
For Appellant: For Appellee:
A. C. Wharton Charles W. Burson
District Public Defender Attorney General & Reporter
201 Poplar Avenue
Suite 201 John P. Cauley
Memphis, TN 38103-1947 Assistant Attorney General
450 James Robertson Parkway
W. Mark Ward Nashville, TN 37243-0493
Assistant Public Defender
147 Jefferson, Suite 900 James Wax and David Shapiro
Memphis, TN 38103 Assistant District Attorneys General
201 Poplar Avenue, Third Floor
Memphis, TN 38103
OPINION FILED: ______________________
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The defendant, Perry A. Cribbs, was convicted of premeditated first
degree murder, first degree murder during the perpetration of an aggravated
burglary, first degree murder during the perpetration of aggravated robbery,
aggravated burglary, and attempted first degree murder. The death penalty verdicts
were based upon two of the aggravating circumstances prescribed by statute:
(1) the defendant was previously convicted of one or
more felonies, other than the present charge, whose
statutory elements involve the use of violence to the
person; and
(2) the murder was committed while the defendant
was engaged in committing a burglary.
Tenn. Code Ann. §§ 39-13-204(i)(2) & (7). The defendant was also convicted of
aggravated burglary and attempted first degree murder; the trial court imposed
consecutive, Range II sentences of ten and forty years respectively. Some weeks
after the jury imposed the death penalty on the first degree murder convictions, the
trial court set aside and the state agreed to dismiss convictions for premeditated first
degree murder and first degree murder during the perpetration of aggravated
robbery. In this direct appeal, the defendant has challenged the sufficiency of the
evidence and has presented the following additional issues for our review:
(1) whether the eyewitness jury instructions were
adequate;
(2) whether the crime scene video was unfairly
prejudicial;
(3) whether the photographic lineup was unduly
suggestive;
(4) whether references to the Bible, victim impact,
parole eligibility, and mitigation during final argument
qualified as prosecutorial misconduct;
(5) whether the state may use prior convictions for
attempted second degree murder to establish the prior
violent felonies aggravator, Tenn. Code Ann. § 39-13-
204(i)(2);
2
(6) whether the denial of specially requested jury
instructions was erroneous;
(7) whether the Tennessee death penalty statute
violates the state or federal constitutions;
(8) whether the presentation of evidence of a
nonviolent felony to establish the prior violent felonies
aggravator requires reversal of the death sentence; and
(9) whether use of the underlying felony for this felony
murder could be used as an aggravating circumstance
under the state constitutional standards as defined in
State v. Middlebrooks.
We affirm the convictions. By the application of guidelines established
by our supreme court, we conclude that errors in the penalty phase of the trial were
harmless beyond a reasonable doubt. In our view, the sentence of death for this
defendant is neither excessive nor disproportionate, considering the nature of the
crime. The death penalty does not appear to have been arbitrarily imposed. The
evidence supports the application of one of the aggravating circumstances
established by law. Tenn. Code Ann. § 39-13-206.
Sometime between 1:30 A.M. and 1:45 A.M. on the morning of
January 2, 1994, the victims, Sidney Harris and wife, Linda Harris, returned to their
home from a visit with several friends. After parking their automobile in the carport,
the victims had just entered the kitchen when Ms. Harris was knocked to the ground
by a black male who was armed with a revolver. Mr. Harris described the assailant
as about six feet and one inch, 240 pounds, with a moustache, large round nose,
thick eyebrows, and hair about an inch long. The assailant wore a light-colored
stocking mask, denim overalls, and gloves.
Mr. Harris had wrestled the assailant to the floor when a second man,
approximately six feet and three inches, 220 pounds, and armed with a shotgun,
3
intervened. The second assailant, who also wore a light-colored stocking over his
head, was clothed in a tan or gold-colored auto mechanic's jumpsuit. The two men
directed Harris to a chair in the den and told him that they intended to shoot him.
Harris observed his assailants for twenty to thirty seconds before he was struck in
the left shoulder and hand by a shotgun blast from the second assailant. While
acknowledging that there were no lights on the inside of the house, Harris claimed
that he could see his assailants by the carport light. Harris, apparently knocked
unconscious for two to three minutes, awoke to find that his wife had been killed.
He was able to walk to a neighbor's house and knock before he passed out.
Hospitalized for twenty-two days, Harris identified a photograph of the defendants
some four to six weeks later from a lineup compiled by Memphis police. Harris
testified that the defendant had fired the shotgun. Later, Harris was able to confirm
that a gold-faced Mickey Mouse watch with a leather band was among the items
stolen from his residence.
At the time of the murder, the defendant resided with Jacqueline
Cannon, the mother of his child. Ms. Cannon testified that the defendant, wearing
blue jeans and a blue denim shirt, had left their residence at about 9:00 or 10:00
P.M. on the night before the murder and did not return until after 1:00 A.M. She
described the defendant as covered in blood from a "hit." She claimed that the
defendant had admitted shooting a man and a woman. The defendant explained
that a man with whom Ms. Harris had developed a relationship wanted Mr. Harris
dead; the defendant, who claimed that he was supposed to be paid for his "hit," told
Ms. Cannon that he had killed both victims. Ms. Cannon, who soon discovered from
news reports that Mr. Harris survived the shooting, testified that she withheld
information from police about the incident because of her fear of the defendant.
She related that the defendant beat her sometime later when he suspected that she
4
had told a neighbor about the murder; she was hospitalized as a result of the
beating. She told her brother about the murder; he called Crime Stoppers, who
ultimately paid Ms. Cannon $900.00 for her information.
On the day after the murder, Ms. Cannon discovered a gold-faced
Mickey Mouse watch with a leather band marked "genuine leather." When she
asked about the watch, the defendant explained that he had taken it from the house
where he shot the victim.
Sergeant Ronnie McWilliams of the Memphis Police led the
investigation. The first information about the watch came from Ms. Cannon. When
Sergeant McWilliams prepared a photographic lineup, Harris picked out a
photograph of the defendant, tearfully identifying him as "the mother ______ that
shot me!" Sergeant McWilliams had interviewed Harris the day after the murder.
He testified that Harris had initially said that he could not identify either of the two
suspects because they wore ski masks. Later, Harris had told a Memphis police
officer that he could not get the "complexion" of the man with the shotgun. Sergeant
McWilliams described Harris as being heavily sedated on the day after the murder
and still in serious condition when he made the second statement about a week
later.
Officer Donald Crow, a Memphis policeman, was with Harris when he
was transported to the hospital shortly after the shooting. Officer Crow testified that
Harris had described the first assailant in some detail and stated that he was
wearing a black ski mask. Officer Crow testified that Harris said little about his
second assailant other than the fact that he was tall, thin, and wore a black ski
mask.
5
The victims' daughter had spent the night of the murder with Harris's
sister-in-law. A video tape of the Harris residence showed the body of Ms. Harris in
the kitchen, shotgun shells on the den floor, and bloodstains on a chair. There were
several bullet holes in the wall to the left of the chair in the den. The house had
been ransacked. A bedroom window had been left open. There appeared to be pry
marks around most of the screens on the windows.
A shotgun wound to the left side of the head caused Ms. Harris's
death. The medical examiner found wadding material on the left side of her neck
and powder burns on the body.
After the guilty verdicts were returned, each side made an opening
statement for the penalty phase of the trial. Thereafter, the state established that
the defendant, twenty-three years of age at the time of trial, had been convicted of
two counts of attempted second degree murder and one count of aggravated
robbery some three years earlier. The state also proved that the defendant had
been convicted of attempted second degree burglary in 1989.
The defendant, who had lived in Shelby County for about nine years,
testified in his own behalf. Expelled from junior high school, the defendant served
about four of the twelve-year sentence imposed for his prior convictions. While
conceding that the crime "was terrible," the defendant proclaimed his innocence.
He contended that his girlfriend, Ms. Cannon, had falsely implicated him in the
crime: "The reason she said that [was] because me and her had got into it. She
stole some money from me. I had wh[i]pped her real bad and told her I wasn't going
to come around no more.... So she came in and said this on me." In an attempt to
provide mitigating circumstances, the defendant, who had worked in construction for
6
his uncle, testified that he had a child whom he had seen seven or eight times since
the arrest.
Initially, the defendant claims that the identification evidence was
insufficient to support any of the three convictions. On appeal, however, the state is
entitled to the strongest legitimate view of the evidence and all reasonable
inferences which might be drawn therefrom. The credibility of the witnesses, the
weight to be given their testimony, and the reconciliation of conflicts in the evidence
are matters entrusted exclusively to the jury as the triers of fact. Byrge v. State, 575
S.W.2d 292, 295 (Tenn. Crim. App. 1978). A guilty verdict, approved by the trial
judge, resolves conflicting testimony in favor of the theory of the state. State v.
Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978). This court may set aside a conviction
only when the "evidence is insufficient to support the finding by the trier of fact of
guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e).
Here, one of the victims, Sidney Harris, made an emotional and
positive identification of the defendant as the person "that shot me" from a
photographic lineup. At trial, he again identified the defendant as the second
assailant. There was corroborative evidence. Jacqueline Cannon observed the
defendant covered in blood on the night of the murder, described a watch that met
the description of one taken from the Harris residence, and overheard the defendant
say that he "had shot the lady and the man."
Here, the jury chose to accredit the testimony of the state's witnesses.
That was their prerogative. There is sufficient evidence of the identity of the
defendant, in our view, to support each of the convictions. See Jackson v. Virginia,
443 U.S. 307 (1979).
7
I
In a related issue, the defendant complains that the trial court
inadequately charged the jury on the issue of eyewitness identification. Shortly after
trial, our supreme court promulgated a new jury instruction on identification, holding
that the value of such evidence depended upon several factors:
(1) The witness’ capacity and opportunity to observe
the offender. This includes, among other things, the
length of time available for observation, the distance from
which the witness observed, the lighting, and whether the
person who committed the crime was a prior
acquaintance of the witness;
(2) The degree of certainty expressed by the witness
regarding the identification and the circumstances under
which it was made, including whether it is the product of
the witness own recollection;
(3) The occasions, if any, on which the witness failed
to make an identification of the defendant, or made an
identification that was inconsistent with the identification
at trial; and
(4) The occasions, if any, on which the witness made
an identification that was consistent with the identification
at trial, and the circumstances surrounding such
identifications.
State v. Dyle, 899 S.W.2d 607, 612 (Tenn. 1995).
Because the rule in the Dyle opinion specifically applies to those cases
which were on appeal at the time of its release, the instructions provided by the trial
judge on the issue of identity were clearly inadequate; and thus, this court must
consider each of the Dyle factors in determining whether the error is harmless or
prejudicial. Tenn. R. Crim. P. 52(a). The instruction actually given was as follows:
[T]he burden of proof is on the State to show that the
defendant ... is the identical person who committed the
alleged crime.... In considering the question of identity
..., the Jury may take into consideration the means and
opportunity of identification, if any; whether it was light or
dark; the distance intervening; the dress or clothing worn;
the character and color of the same; the size, height, and
color of the individual; whether known to him and if so,
8
how long, and if seen before, under what circumstances;
whether running or moving rapidly, standing still, walking
fast or slow at the time claimed to the person testifying;
the color of the hair; hat worn; facial expression or
features and appearance; whether with or without
moustache and beard; whether [the] person ... was white,
black, dark, yellow, or light color; masked or not; the
voice and speech.
As to the first Dyle factor, the testimony established that the victim saw
the defendant for as much as thirty seconds from a distance of five feet or less.
Moreover, the jury instruction as to this factor was very much like that required in
Dyle. The victim claimed that the light from the carport was adequate. The physical
description the victim provided to police, while not ideal, generally comported with
the appearance of the defendant.
As to the second factor, the victim expressed certainty of his
identification during the photographic lineup. Officer McWilliams described the
victim's physical reaction to a photograph of the defendant as "shaking ... almost
crying." The photographic lineup, which took place within six weeks after the crime,
does not appear to have been the least bit suggestive.
The third factor is less helpful to the state. The victim did select only
the photograph of the defendant when first presented in the last of three separate
photographic lineups. On the other hand, there was some evidence suggesting that
the victim did not get a good look at his assailants because they wore stockings or
black ski masks. The jury, however, obviously accepted the explanation offered by
the state. That is, the initial descriptions of the assailants were made while the
victim was seriously injured and at times he was receiving treatment, either in the
ambulance or at the hospital; thus a less than accurate description under those
circumstances was understandable.
9
As to the fourth factor, the victim identified the defendant in both the
photographic lineup and later at trial. The victim claimed that he was certain that it
was the defendant who had fired the shotgun. It would be natural to conclude that
the victim had a heightened sense of awareness not only at the time of the offense
but also at the photographic lineup and at trial. In our view, the identification
procedures do not appear to be suggestive.
Under all of these circumstances, it does not appear that the
inadequacy of the identification instructions affected the results of the trial. Thus,
the defendant would not be entitled to a new trial on this basis.
II
The defendant next contends that the videotape introduced as
evidence for the state was unfairly prejudicial. The defendant asserts that there was
no valid reason to display the deceased victim lying in a pool of blood other than to
inflame the jury. The trial court did suppress those portions of the tape which were
the most gruesome. For example, the first deleted segment showed a portion of the
victim's brain matter separated from her skull and scattered across the kitchen floor;
a second segment displayed the shattered face and skull of the victim.
Rule 403 of the Tennessee Rules of Evidence permits trial courts the
discretion to exclude relevant evidence if the probative value of that evidence is
substantially outweighed by the dangers of unfair prejudice. See State v. Banks,
564 S.W.2d 947 (Tenn. 1978). The trial court must abuse its discretionary authority
before this court may consider a reversal.
In this instance, the trial court clearly exercised discretion by admitting
only the least gruesome of what is otherwise relevant evidence. As noted in Banks,
10
"shocking and horrifying the jury emotionally does not assist them in making a
reasoned determination of how serious the crime is...." Id. at 952.
In the context of the trial and the circumstances of the crime, it is our
view that the trial court did not abuse its discretion. The videotape of the crime
scene was probative. While frightening, the videotape was not so inflammatory as
to substantially outweigh its probative value. Similar evidence was admitted in State
v. Van Tran, 864 S.W.2d 465, 477 (Tenn. 1993); while the supreme court ordered
that an accompanying narration by the officer should have been excluded, it held
that the probative value of the evidence outweighed any possible prejudice. Id. We
cannot make a distinction between the facts in this case and those in Van Tran, also
a death penalty case, and thus find no error. Other examples of death penalty
cases in which crime scene videotapes were used are State v. Bates, 804 S.W.2d
868, 878-79 (Tenn. 1991), and State v. Payne, 791 S.W.2d 10, 19-20 (Tenn. 1990),
aff'd, 501 U.S. 808 (1991).
III
The defendant next complains that the photographic lineup was unduly
suggestive. He bases the claim on the fact that police had informed the victim in
advance that they had a suspect and that the photograph of the defendant, from the
total of seven presented, was the only one that had a question mark by the
identification number.
To be admissible as evidence, an identification must not have been
conducted in such an impermissibly suggestive manner as to create a substantial
likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377
(1968). In Neil v. Biggers, 409 U.S. 188 (1972), the Supreme Court held that a
11
reliable identification procedure, even though suggestive, will not negate an
identification of the defendant. The factors determining whether the procedure was
too suggestive to accept as reliable were determined to be the following:
(1) the opportunity of the witness to view the criminal
at the time of the offense;
(2) the witness' degree of attention;
(3) the accuracy of the witness' prior description of
the individual;
(4) the level of certainty demonstrated by the witness
at the confrontation; and
(5) the time between the crime and the confrontation.
Id. at 199.
Initially, a physical or a photographic lineup is the preferred means of
identification. Either has been determined to be much less suggestive than a
"showup," where the victim is either presented with the suspect or a single
photograph of the suspect. State v. Terry M. Henderson, slip op. at 5, No. 01C01-
9401-CR-00012 (Tenn. Crim. App., at Nashville, October 6, 1994). Beyond that, the
extent to which an identification procedure may suggest a single suspect, even with
the Neil v. Biggers factors, is largely subjective. If the procedure qualified as being
suggestive, the defendant could have relied on several other facts to support his
argument: that the encounter lasted less than a minute, that there was no direct
light in the Harris residence, that the defendant wore a stocking over his face, and
that Mr. Harris may have suffered diminished capacity due to his injuries. All of that
would favor the suppression of the lineup identification. There exist, however, other
more significant factors favorable to the state. There was proof that Harris did not
know whether or not a photograph of the suspect was in the original array. The
victim testified that the photograph of the defendant was among the third or fourth
that he saw and that he immediately recognized the defendant as his assailant. All
12
of the photographs included profile and frontal views of black males with similar
complexions, moustaches, and hair length. All of the individuals were dressed in t-
shirts and two were wearing jackets. None appear to stand out from the others in
any way. The victim looked at several other lineups which did not include
photographs of the defendant and he was unable, of course, to identify anyone else.
The victim stated that he paid no attention to the numbers underneath the
individuals in the photographs before making the identification. To the objective
eye, the question mark appears to be associated with the number underneath the
photograph and not the individual therein.
In order to determine whether the pretrial photographic lineup was so
unnecessarily suggestive as to violate constitutional due process, this court must
examine the totality of the circumstances existing at the time of the identification.
See Stovall v. Denno, 388 U.S. 293 (1967). Absent a showing by the defendant that
the evidence preponderates against the judgment of the trial court, this court must
defer to the ruling of the trial court. State v. Davis, 872 S.W.2d 950, 955 (Tenn.
Crim. App. 1993). By the use of these guidelines, our assessment is that the
process was not suggestive. Even if it had been, the photographic identification was
still properly admitted into evidence by the use of the Neil v. Biggers criteria. The
victim saw the defendant at a distance of less than five feet for over thirty seconds.
Despite the stocking, the victim specifically recalled the facial features of the
defendant. The victim described the defendant as having a moustache, thick
eyebrows, and a large round nose. The height and weight descriptions were
consistent with the defendant's actual appearance. The victim testified that a beam
of light from the carport allowed for a clear view of his assailant.
IV
13
Having found no reversible error in our analysis of the trial, the
judgments of conviction are affirmed. We now turn to those grounds alleged to have
affected the propriety of the sentence of death.
Initially, the defendant contends that several comments made by the
prosecutor during closing argument at the sentencing phase of the trial violated his
constitutional right to a fair proceeding. Specifically, the defendant claims that the
prosecutor made inappropriate Biblical, victim impact, parole eligibility and mitigation
references. The state claims that all but one of the contentions have been waived.
In the alternative, the state asserts that the prosecutor did not commit error, but if
so, it was harmless.
In a recent, similar case of State v. Johnnie Lamont Dalton, this court
ruled as follows:
When a defendant alleges prosecutorial
misconduct, the defendant is required to show that the
argument was so inflammatory or the conduct so
improper that it affected the verdict to his detriment. In
reviewing an allegation of improper conduct, this court
should consider several factors including the intent of the
prosecutor, the curative measures which were
undertaken by the court, the improper conduct viewed in
context and in light of the facts and circumstances of the
case, the cumulative effect of the remarks with any other
errors in the record, and the relative strength or
weakness of the case. The trial judge has wide
discretion in controlling the argument of counsel. That
discretion will not be interfered with on appeal in the
absence of an abuse thereof.
Slip op. at 4-5, No. 01C01-9408-CR-00291 (Tenn. Crim. App., Nashville, July 11,
1995) (citations omitted); see also Coker v. State, 911 S.W.2d 357 (Tenn. Crim.
App.), app. denied, (Tenn. 1995); State v. Norris, 874 S.W.2d 590 (Tenn. Crim. App.
1993).
14
Though the defendant failed to contemporaneously object to most of
the claimed errors and neglected to raise the issue in his motion for new trial,
obvious reasons for the application of the waiver rule, our supreme court has
traditionally reviewed the merits of such claims in capital cases.1 So shall we.
During the prosecutor's closing argument, the defendant did lodge an
objection to the prosecutor's religious references. The trial judge overruled the
objection. The disputed portions of the argument are as follows:
And I never liked, quite frankly, I never really feel
comfortable using biblical references.... What I want to
do--and the only reason I mentioned that is because I tell
you quite frankly, I don't feel comfortable even
mentioning the biblical references. And the only
reference I do want to make is it is written whether it is
Koran, New Testament or Old Testament there is one
consistent thing, that is: Whatever a man sows, so shall
be reaped. What that means is accountability. It means
that there are standards of conduct. It means
accountability what you sow, you reap. And that is the
only religious thing I get in there and I don't want to
interject myself. I just said that. I didn't want anybody to
get offended, you know, if I make a biblical reference but
that it a very important part in our law, our law in the
State of Tennessee. Whatever a man sows, so shall he
reap.... Mr. Cribbs needs to be accountable for his life.
Whatever a person sows, so shall he reap.
(Emphasis added). Not only does the defendant question the propriety of the
Biblical reference, he argues more strenuously that the error was exacerbated by
the insinuation that the law of the state is rooted in the Bible.
It is well established in Tennessee that references to Biblical passages
or religious law during a criminal trial are inappropriate. See State v. Stephenson,
878 S.W.2d 530, 541 (Tenn. 1994) (judge's references to Biblical passage);
1
Though the defendant failed to contem poraneously object to m ost of the claim ed errors and
neglected to raise the issue in his m otion for new trial, in light of the nature of the case, it appears this
court should nonetheless review the alleged m isconduct. See State v. Bigbee, 885 S.W .2d 797, 805
(Tenn. 1994); State v. Duncan, 698 S.W .2d 63, 67-68 (Tenn. 1985); State v. Strouth, 620 S.W .2d 467,
471 (Tenn. 1981).
15
Kirkendoll v. State, 281 S.W.2d 243, 254 (Tenn. 1955) (prosecutor's reference to
religious law). Such references, however, do not constitute reversible error unless
the appellant can clearly establish that they had some effect on the verdict.
Stephenson, 878 S.W.2d at 541; Kirkendoll, 281 S.W.2d at 254.
In Kirkendoll, the prosecutor apparently referred to Mosaic law during a
voir dire exchange with one of the prospective jurors. Our supreme court deemed
the error harmless because the trial judge admonished the prosecutor against any
further such comments. 281 S.W.2d at 254. In Stephenson, the court also ruled
the error harmless because inappropriate remarks made by the trial judge, "Judge
not lest ye be judged," were isolated references occurring well before the jury
returned the death sentence. 878 S.W.2d at 541. In State v. Alfonzo E. Anderson,
slip op. 15, No. 02C01-9410-CR-00243 (Tenn. Crim. App., at Jackson, Sept. 20,
1995), app. denied (Tenn. 1996), the prosecutor referred to the Bible as "the real
law book" during closing arguments. The defense objected and the trial judge
instructed the jury that this was just closing argument and that nothing the
prosecution said should be taken as fact. Holding that the error was harmless, this
court observed that the remarks were limited in scope and that the trial court took
remedial measures. Id. at 15-16.
Under these guidelines, the prosecutor in this case committed error by
making references to the Bible. When afforded an opportunity to minimize the error,
the trial judge instead overruled the objection by the defense. Other than the
instruction form later provided to the jury in which the judge stated that the court was
the proper source of the law, there were no curative instructions. The defendant
suggests that the prosecutor's intent in making the comments was to explain and
justify the law of this state in term of Biblical maxims and to inform the jury that the
16
Bible could guide them in their decision under the law. The defendant claims this
was an improper attempt by the prosecutor to inflame the jury by insisting that the
law of the Bible, being the same as the law of the state, demanded the imposition of
the death penalty.
While we admonish the trial court for having failed to take appropriate
curative precautions, we view the "reap what you sow" argument more as a common
metaphor for individual accountability rather than a Biblical mandate; many
authorities would likely concede that this particular phrase logically applies to our
criminal justice system. For that reason, we hold that the terminology had no effect
on the verdict. The effort by the prosecutor to establish an association between
religious and state law is, however, a matter of concern. It is one thing to argue that
the law of this state is founded upon general principles of morality, but quite another
to insist that the specific Bible verse is a part of the law of Tennessee. Nonetheless,
the specific comments made by the prosecutor in this case did not, in our view,
affect the verdict and would not, therefore, warrant a new sentencing hearing in and
of themselves. Juries, by and large, are plenty astute; they usually understand that
argument by counsel is just that and that it is the exclusive responsibility of the
judge to provide instructions in the law. The trial court charged the law adequately;
we are confident that the "Bible is the law" implication, in the context of the entire
proceeding, had no impact on the verdict.
The defendant also contends that the prosecutor improperly inflamed
the passions of the jury by references to the impact of the murder on the victim's
family. The defendant objected to the comments on the ground that the argument
exceeded the scope of the statutory aggravators. The judge overruled the objection.
In this appeal, the defendant concedes that victim impact evidence is permissible
17
under our state and federal constitutions; he claims, however, that the evidence
does not meet the statutory definition of "relevant evidence." Tenn. R. Evid. 401.
The defendant insists that victim impact has no bearing on any of the statutory
aggravating circumstances.
A significant portion of the prosecution's closing argument addressed
the impact of the murder on the victim's family:
[The defense] says that life without parole
sentence is the same as death. I respectfully disagree.
I'm sorry if I sound too strong. And I'm sorry if I raise my
mouth. But there is a substantial amount of difference.
Because little Michael Harris who is four years old is
never going to be able to visit her mother. She will never
... hold her mother. She will never be able to cry to her
mother. She will never be able to call her mother on the
phone. She won't get letters from her. And she won't be
able to write letters to her. She won't be able to call her
on the phone or get calls for [sic] her. She won't be able
to tell her about her boyfriends in life. Tell her about her
problems. Tell her about her accomplishments.
***
I can't and you can't bring back Linda Harris for
her mother, for her husband, for her daughter. We can't
do that. That is true. We can't give Michael Harris back
her mother. But we can give justice. And that is what I
ask you to do.
In State v. Brimmer, 876 S.W.2d 75, 86 (Tenn. 1994), the Tennessee
Supreme Court expressly adopted the holding in Payne v. Tennessee, 501 U.S.
808, 827 (1991): remarks made during the sentencing phase by the prosecutor
about the victim and the impact to his or her family do not per se violate the
Constitution. It is true that the victim impact statements may not be relevant to the
proof of any statutory aggravator. Yet the prosecutor's remarks simply point out
what the jury already knew, or could have legitimately inferred, from other sources in
the trial. Even if irrelevant, these remarks by the prosecutor would not, in our view,
18
have warranted a new sentencing hearing.
The defendant also argues that the prosecutor made improper
references to the defendant's parole possibilities and the fact that he was released
from prison early for a prior conviction:
There are no winners. This is just a horrible
situation. The defendant goes into custody and now you
hear this is his testimony, in 1990 and he is convicted. In
1993 he is out. He's told it was a twelve-year sentence.
The penitentiary system doesn't work.... No question
that he got out early. You heard from him. It wasn't the
state's proof. What happened and why it happened is
something we may never know. But it does happen.
Our supreme court was faced with the same issue in State v. Nichols,
877 S.W.2d 722 (Tenn. 1994); in that case, the court noted that references, even
indirect ones, to parole possibilities during argument are improper. Id. at 733 (citing
both Smith v. State, 527 S.W.2d 737, 738 (Tenn. 1975), and Graham v. State, 304
S.W.2d 622 (Tenn. 1957)). The court observed that while references to the
defendant's premature release on an earlier conviction could have "hinted" to the
jury that a life sentence carried with it the possibility of early release, the
prosecutor's remarks did not "clearly" mention parole possibilities for the defendant.
Nichols, 877 S.W.2d at 733. The court also noted that the argument more directly
commented on the failure of the defendant's prior incarceration to have a positive
effect on his behavior (which of course could be an indirect argument about future
parole). Id. In Nichols, however, our supreme court ultimately held that the
references, to whatever degree improper, did not constitute prejudicial error
affecting the outcome of the trial. Id.
Likewise here, the prosecutor, while submitting that the "system
doesn't work," made no mention of parole possibilities. See State v. Hines, 758
19
S.W.2d 515, 520 (Tenn. 1988)("Had [the prosecutor] gone on to mention parole
possibilities for defendant in this proceeding, he certainly would have been treading
on forbidden ground."). It is only when the argument could be fairly interpreted as a
reference to parole that it becomes improper. In our view, this argument would not
have warranted a new sentencing hearing.
The defendant also argues that the prosecutor insinuated that the jury
should not consider the defendant's mitigation because it was non-statutory. For
example, the state argued, "what have you heard that is mitigation?"; "have you
heard anything?"; and "we don't have mitigating [circumstances]." In Brimmer, 876
S.W.2d at 85, our supreme court held that such statements by the prosecutor do
little more than "set out the State's interpretation of the proof." Accordingly, this
aspect of the defendant's claim is meritless.
In summary, the Biblical references, while inappropriate in these
circumstances did not, in our assessment, affect the results of the proceeding. The
victim impact argument, while of questionable relevance, did not affect the death
penalty verdict. The alleged references to parole did not likely violate precedent.
The argument as to the lack of mitigating circumstances was not improper.
V
Next, the defendant insists that his two prior convictions for criminal
attempt to commit second degree murder did not qualify as felonies "whose
statutory elements involve the use of violence to a person." Tenn. Code Ann. 39-
13-204(i)(2). The argument is based upon the statutory definition of criminal
attempt:
(a) A person commits criminal attempt who, acting
with the kind of culpability otherwise required for the
20
offense:
(1) Intentionally engages in action or causes a result
that would constitute an offense if the circumstances
surrounding the conduct were as the person believes
them to be;
(2) Acts with intent to cause a result that is an element
of the offense, and believes the conduct will cause the
result without further conduct on the person's part; or
(3) Acts with intent to complete a course of action or
cause a result that would constitute the offense, under
the circumstances surrounding the conduct as the
person believes them to be, and the conduct constitutes
a substantial step toward the commission of the offense.
(b) Conduct does not constitute a substantial step
under subdivision (a)(3) unless the person's entire course
of action is corroborative of the intent to commit the
offense.
(c) It is no defense to prosecution for criminal attempt
that the offense attempted was actually committed.
Tenn. Code Ann. § 39-12-101. The defendant points out that this statutory
language does not include as an element "violence to person" and, thus, should not
have been admitted to the jury. While the state has failed to brief the issue, insisting
only that the evidence of the defendant's prior "crimes of violence was compelling"
when, in fact, no evidence of the crimes appear in the record of the sentencing
phase of the trial, we nonetheless reject the argument of the defense. The attempt
statute requires the perpetrator to act "with the kind of culpability otherwise required
for the [principal offense]." Tenn. Code Ann. § 39-12-101(a). Second degree
murder necessarily includes violence:
(1) [a] knowing killing of another; or
(2) [a] killing of another which results from the
unlawful distribution of any Schedule I or Schedule II
drug when such drug is ... the proximate cause of the
death of the user.
Tenn. Code Ann. § 39-13-210(a). This language supports the classification of the
crimes as violent. In our view, this issue has no merit.
21
In a related issue the defendant claims the trial court undermined the
defense by illustrating to the jury those statutory mitigating circumstances the
defense did not actually raise. The defendant concedes that the supreme court has
consistently recognized this error to be harmless absent a clear showing of
prejudice. See State v. Smith, 893 S.W.2d 908, 921 (Tenn. 1994); State v. Teel,
793 S.W.2d 236, 252 (Tenn. 1990); State v. Carter, 714 S.W.2d 241, 251 (Tenn.
1986). He claims prejudice because the prosecutor read the list of statutory
mitigators submitted by the defense and argued that the defendant failed to prove
any of them. The prosecutor's actions appear to be little more than an attempt to
evaluate the proof; accordingly, any error could be classified as harmless.
VI
Next, the defendant claims the trial judge should have instructed the
jury that its sentence would actually be carried out to the extent provided by law.
Specifically, the defendant suggests that without the instruction, the jury would
speculate that the death penalty might not be carried out and that he might be
released in a few years even if sentenced to life without parole. The defendant cites
to an instance in the record where a prospective juror, who did not sit on the case,
actually questioned the validity of the sentences. The defendant reasons that the
comments by the prospective juror and those of the court in issuing its charge may
have influenced jurors on the panel.
Our supreme court has consistently found this special request made
by the defendant to be improper. See Van Tran, 864 S.W.2d at 481; State v.
Caughron, 855 S.W.2d 526, 543 (Tenn. 1993); State v. Payne, 791 S.W.2d 10, 21
(Tenn. 1990), aff'd, 501 U.S. 808 (1991); State v. Melson, 638 S.W.2d 342, 367
(Tenn. 1982). So, without further comment, we reject the contention of the
22
defendant.
The defendant also insists that the trial court committed reversible
error by refusing to instruct the jury that it could consider sympathy when deciding
on a sentence. He argues that the trial court should not have charged the jury to
render its verdict on the law and the facts rather than any sympathetic notions for
the defendant. By rejecting this argument, the trial judge acted in perfect
accordance with established precedent. See State v. Smith, 893 S.W.2d 908, 921
(Tenn. 1994); State v. Bigbee, 885 S.W.2d 797, 814 (Tenn. 1994); State v. Cazes,
875 S.W.2d 253, 168 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn.
1992). Thus, we hold that this claim is without merit.
VII
While acknowledging that the supreme court has consistently upheld
the death penalty statute under similar attacks, the defendant insists that our statute
fails to meaningfully narrow the class of death eligible defendants. He contends that
the death sentence is imposed capriciously and arbitrarily; that electrocution is cruel
and unusual punishment; and that the appellate review process is constitutionally
inadequate.
Based upon a long line of authority, we must reject each claim. See
State v. Smith, 893 S.W.2d 908 (Tenn. 1994); State v. Brimmer, 876 S.W.2d 75
(Tenn. 1994); State v. Cazes, 875 S.W.2d 253 (Tenn. 1994); State v. Smith, 857
S.W.2d 1 (Tenn. 1993); State v. Black, 815 S.W.2d 166 (Tenn. 1991); State v.
Boyd, 797 S.W.2d 589 (Tenn. 1990); State v. Teel, 793 S.W.2d 236 (Tenn. 1990);
State v. Thompson, 768 S.W.2d 239 (Tenn. 1989).
23
Specifically, the defendant argues that our statutory scheme fails to
meaningfully narrow the class of death eligible defendants. Our supreme court
reviewed and dismissed this argument in State v. Howell, 868 S.W.2d 238, 258
(Tenn. 1993).
The defendant also contends that the statute is unconstitutional
because district attorneys have unlimited discretion in whether to seek the death
penalty or not. Our supreme court rejected this argument in Brimmer, 876 S.W.2d
at 86. See also Cooper v. State, 847 S.W.2d 521, 536-38 (Tenn Crim. App. 1992).
Next, the defendant insists that the statute is unconstitutional because
it is imposed in a discriminatory fashion. This very argument was rejected by the
supreme court in Brimmer, 876 S.W.2d at 87 n. 5. See also State v. Evans, 838
S.W.2d 185, 196 (Tenn. 1992).
Next, the defendant complains that the denial of individual
sequestered voir dire of prospective jurors in capital cases violates constitutional
principles. In Cazes, 875 S.W.2d at 269, our supreme court rejected this
contention. See also Caughron, 855 S.W.2d at 542.
Next, the defendant submits that the death qualification process for
prospective jurors creates a "prosecution-prone, guilt-prone jury." Noting the
contention has also been rejected by the United States Supreme Court, our
supreme court rejected this contention as meritless in Teel, 793 S.W.2d at 246.
The defendant alleges that he was unlawfully prohibited from
addressing jurors' misconceptions about sentencing. This argument has been
24
routinely rejected by our supreme court. See Brimmer, 876 S.W.2d at 86-87;
Cazes, 875 S.W.2d at 268; Black, 815 S.W.2d at 179.
Next, the defendant asserts the jury should have been informed of the
effect of a non-unanimous verdict; that is, that the penalty shall be a life sentence.
Tenn. Code Ann. § 39-13-204(h). This contention was rejected by our supreme
court in Brimmer, 876 S.W.2d at 87, Cazes, 875 S.W.2d at 268, and Smith, 857
S.W.2d at 22-23. In a related argument, the defendant asserts that requiring the
jury to unanimously agree on a life sentence violates the standards enunciated in
McKoy v. North Carolina, 494 U.S. 433 (1990), and Mills v. Maryland, 486 U.S. 367
(1988). This claim has consistently been found to be without merit by our supreme
court. See Brimmer, 876 S.W.2d at 87; Thompson, 768 S.W.2d at 250.
The defendant also insists that the statute is unconstitutional because
the jury is not required to make the ultimate determination that death is the
appropriate penalty. Again, our supreme court has rejected this contention. See
Brimmer, 876 S.W.2d at 87; Smith, 857 S.W.2d at 22.
Next, the defendant complains about his being denied the opportunity
to present the final closing argument in the penalty phase of the trial. Our supreme
court has rejected this contention in at least two prior cases. See Brimmer, 876
S.W.2d at 87 n. 5; Caughron, 855 S.W.2d at 542.
The defendant also contends that death by electrocution is cruel and
unusual punishment. Our supreme court has repeatedly rejected this notion. See
Nichols, 877 S.W.2d at 737; Cazes, 875 S.W.2d at 268; Howell, 868 S.W.2d at 258.
25
The defendant submits that appellate review in death penalty cases is
constitutionally inadequate. Again, our supreme court has found the claim to be
meritless. See Harris, 839 S.W.2d at 77.
VIII
The defendant claims that the admission of a previous nonviolent
felony conviction (attempted second degree burglary) during the penalty phase of
the trial was erroneous. The state asserts that the defendant has waived the issue
by failing to timely object to the evidence or raise it in the motion for new trial. The
state also argues that the admission of this prior nonviolent felony conviction was
harmless error.
Generally, a ground has been waived when the defendant fails to
lodge an objection or fails to raise an issue on motion for new trial. Tenn. R. App. P.
3(e), 36(a); State v. Baker, 785 S.W.2d 132, 135 (Tenn. Crim. App. 1989); State v.
Killebrew, 760 S.W.2d 228, 235 (Tenn. Crim. App. 1988). Because of the
qualitative difference between death and other sentences, however, our supreme
court has considered the merits of an issue even when the defendant fails to object
or raise the issue in the motion for new trial. See Footnote 1. Accordingly, we must
consider this issue on the merits.
Tennessee Code Annotated section 39-13-204(i) provides that the
death penalty may be imposed solely upon a unanimous finding that one or more of
the statutory aggravating circumstances has been proven beyond a reasonable
doubt. One of the two aggravating circumstances found by the jury in this case was
that the defendant had previously been convicted of a violent felony. The prior
violent felony thus requires proof of a prior felony conviction "whose statutory
26
elements involve the use of violence to the person." Tenn. Code Ann. § 39-13-
204(i)(2).
During the sentencing phase of the trial, the state introduced evidence
that the defendant was previously convicted of two counts of attempted second
degree murder, aggravated robbery, and attempted second degree burglary.
Except for the attempted second degree burglary, these prior offenses involved
violence against a person. Because the convictions of attempted second degree
murder and aggravated robbery necessarily involve violence to the person, the state
was precluded from introducing into evidence the underlying facts thereof based on
the rule established in State v. Bigbee, 885 S.W.2d 797, 811 (Tenn. 1994). The
state was not, however, prohibited from proving that the defendant's conviction of
attempted second degree burglary, a crime that by statutory definition does not
necessarily include violence to the person did, in fact, involve a violent act against a
person.
In State v. Johnson, 661 S.W.2d 854 (Tenn. 1983), the jury sentenced
the defendant to death based upon the finding of two aggravating circumstances:
that the murder was committed while the defendant was engaged in committing a
felony and that the defendant had previously been convicted of one or more violent
felonies (second degree murder, grand larceny, and attempted burglary of an
automobile). In holding that the trial court committed error by allowing the
nonviolent convictions into evidence without any showing of violence to the person,
our supreme court wrote that "the probability of prejudice resulting from the
introduction of the evidence hereinabove held to have been wrongfully admitted is
so great as to require a reversal of the death sentence." Id. at 862. See also State
v. Adkins, 653 S.W.2d 708, 716 (Tenn. 1983) (prejudice resulted where state relied
27
upon convictions of second degree murder, larceny from the person, and attempt to
commit a felony, but offered no proof of violence for the latter two); State v. Teague,
645 S.W.2d 392, 399 (Tenn. 1983); State v. Moore, 614 S.W.2d 348, 352 (Tenn.
1981).
Though the three violent felony convictions were properly before the
jury, the trial court should not have allowed the jury to consider the conviction of
attempted second degree burglary without any underlying proof of violence to the
person. Johnson might be read to create a per se rule that when the state
introduces nonviolent felonies in attempting to establish the aggravating
circumstance of prior violent felonies, a remand for a new sentencing hearing is
required. In our view, however, the ruling in Johnson does not require a remand for
a new sentencing hearing in this case.
Our 1983 supreme court determined that a remand was necessary in
Johnson because of "the action of the Supreme Court in the recent case of Zant v.
Stephens, 456 U.S. 410, 102 S. Ct. 1856, 72 L.Ed.2d 222 (1982)." Johnson, 661
S.W.2d at 862. In Zant, the United States Supreme Court reviewed a death penalty
case where the Georgia Supreme Court held one of the aggravating circumstances
invalid but nevertheless affirmed the sentence of death. Zant, 456 U.S. at 415-17.
The United States Supreme Court remanded to the Georgia Supreme Court to
answer the question: "What are the premises of state law that support the
conclusion that the death sentence in this case is not impaired by the invalidity of
one of the aggravating circumstances found by the jury." Id. at 416.
For a time, the ruling in Zant created some uncertainty about whether
an appellate court could uphold a death sentence when one of two or more
28
aggravating circumstances was found to be invalid. That question was resolved in
Clemons v. Mississippi, 494 U.S. 738 (1990), where the United States Supreme
Court "held that when a sentencing jury in a weighing state has relied, in part, on a
constitutionally invalid aggravating circumstance, state appellate courts may reweigh
the remaining aggravating circumstances against the mitigating evidence." Howell,
868 S.W.2d at 259 (discussing the holding in Clemons). Thus, the reason for the
1983 ruling in Johnson no longer applies. It is impossible, of course, for appellate
courts to determine with absolute certainty whether a jury, no matter the quality or
quantity of the aggravating circumstances, would have still imposed the death
penalty when one factor is later found to have been invalid. Yet there is no per se
rule for a remand under these circumstances. We must, therefore, attempt to
assess whether the erroneous introduction of the attempted second degree burglary
conviction affected the outcome of this case.
We acknowledge that Johnson has never been explicitly overruled. In
State v. Campbell, 664 S.W.2d 281, 284 (Tenn. 1984), however, our supreme court
addressed the same issue, ruling that the admission of a nonviolent felony was
harmless beyond a reasonable doubt; the state had introduced evidence of an
aggravated assault, a grand larceny and a second degree burglary. Id. at 284. Our
supreme court held that there was a valid prior violent felony; thus that aggravating
circumstance had been adequately established. Id.
In summary, it was error to admit proof of the conviction for attempted
second degree burglary. We must, however, find the error to be harmless beyond a
reasonable doubt. The proof is uncontested that the defendant had been convicted
of two counts of attempted second degree murder and one count of aggravated
robbery. All qualified as prior violent felonies. Moreover, the prosecution, during
29
opening and final argument, made no reference to the burglary. All remarks were
directed to the three properly admitted offenses involving violence. Under these
circumstances, the error was clearly harmless beyond reasonable doubt.
IX
The defendant contends that the death penalty in this case violates the
mandates of State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992). The jury
returned verdicts of guilt for premeditated first degree murder, first degree murder
during the perpetration of an aggravated burglary, and first degree murder during
the perpetration of an aggravated robbery. At the conclusion of the second phase of
the trial, the jury returned death penalty verdicts on each of the three convictions.
Several weeks later, during the motion for new trial, the trial court made the
following observation:
You are absolutely correct in pointing out that [the
defendant] can't receive three death penalties. And, only
one should stand. The terms available to the court are
that the other verdicts are simply surplusage. It is
discretionary with the court as a finder of fact, thirteenth
juror, to strike the verdicts, and I will do that.
(Emphasis added). Thereafter, the court struck the verdicts in Count One and
Three, the premeditated first degree conviction and the conviction for first degree
murder during the perpetration of an aggravated robbery. The judgment of
conviction allowed to stand was first degree murder during the perpetration of
aggravated burglary; the suggestions made by counsel for the state played a key
role in that determination.
During the motion for new trial, the defendant sought to have two of
the death sentences set aside. The state responded to the trial court's comments
by arguing the evidence supported all three convictions. When the trial court
restated its intention to strike two of the convictions, the state asked that Counts
30
One and Three be stricken and that the conviction for murder during the
perpetration of a burglary, for which the state argued the evidence was the
strongest, stand. Thereafter, the trial court honored the state's request.
On appeal, the defendant argues that the jury's use of the felony as an
aggravating factor under these circumstances violated the constitutional standards
first enunciated in Middlebrooks. In Middlebrooks, our supreme court held that to
satisfy state constitutional standards when the defendant is convicted of felony
murder, the felony murder aggravator, Tenn. Code Ann. § 39-13-204(i)(7), may not
be used as an aggravating circumstance supporting the imposition of the death
penalty. 840 S.W.2d at 346. Here, the defendant argues that because he was
ultimately convicted of felony murder, it was impermissible to use the felony murder
aggravator as a basis for imposing the death penalty. In response, the state argues
the following:
When guilty verdicts on alternative counts are returned
only one judgment of conviction and one punishment
may result. But this does not mean that the trial court
must elect which verdict should stand. ... The
unmistakable intent of the trial court was to accredit the
jury's verdict.
We interpret this as a concession that there can be only one judgment of conviction;
but the state also insists that, in this case, there still remains multiple valid verdicts
and that the jury verdict of guilty of premeditated murder precludes any
Middlebrooks error.
Initially, the trial judge correctly pointed out that the defendant could
not "receive three death penalties" where there was only one victim. In State v.
Hurley, 876 S.W.2d 57, 70 (Tenn. 1993), our supreme court held the defendant
could not be convicted of two murders for one killing. See also State v. Bell, 745
S.W.2d 858 (Tenn. 1988); State v. Zirkle, 910 S.W.2d 874 (Tenn. Crim. App.), app.
31
denied, (Tenn. 1995). Multiple convictions for the single killing would violate double
jeopardy principles.
Typically, when the defendant is convicted of multiple offenses which
would violate double jeopardy, the trial judge will merge the lesser offense into the
greater offense. See State v. Banes, 874 S.W.2d 73, 81 (Tenn. Crim. App. 1993).
The state's brief, however, has used the phrases "merge the convictions" and
"dismiss the convictions" interchangeably. These are different concepts which, in
some instances, must be distinguished in order to achieve the desired result.
This court has described the principle of merger as applicable when
there are alternative charges: "the guilty verdict on the greater charge stands and
the guilty verdict on the lesser charge merges into the greater charge." Banes, 874
S.W.2d at 81. Later, in Zirkle, 910 S.W.2d at 889, this court ruled as follows:
A merger has been generally defined as follows:
"The fusion or absorption of one thing or right into
another; generally spoken of a case where one of the
subjects is of less dignity or importance than the other.
Here the less important ceases to have an independent
existence.
* * *
When a man commits a major crime which includes a
lesser offense, or commits a felony which includes a tort
against a private person, the latter is merged in the
former." Black's Law Dictionary 1140 (6th ed. 1990).
"[M]erger may occur where one conviction is a lesser included offense of another
conviction." Raybin, Tenn. Crim. Practice and Pro. § 16.20. Thus, the term is more
appropriately used in considering greater and lesser included offenses.
It is tempting to apply a "merger" concept in this situation and
32
determine that felony murder simply "merged" into the premeditated murder, thereby
avoiding a potential Middlebrooks error. Generally, when the defendant has been
convicted of both premeditated murder and felony murder, trial judges either
"merge" or "vacate" in order to eleminate the felony murder conviction and allow the
premeditation murder conviction, which preempts the possibility of a Middlebrooks
error, to remain. In Hurley, 876 S.W.2d at 70, the supreme court "vacated" the
felony murder conviction when there were two murder convictions for a single death.
In Bell, 745 S.W.2d at 863, our supreme court affirmed the trial judge's rejection of
the felony murder conviction and approval of the premeditated murder conviction. In
Zirkle, however, our court tacitly approved the trial court's "merging" a felony murder
count into the premeditated murder count. So, our own opinion in Zirkle is some
precedent for the conclusion that felony murder would as a matter of law
automatically "merge" into premeditated murder, thus avoiding a Middlebrooks error;
however, a precise application of the doctrine only permits the merger of a lesser
offense into the greater one; and felony murder is not a lesser grade offense than
that of premeditated murder.
In Wright v. State, 549 S.W.2d 682 (Tenn. 1977), our supreme court
confirmed the test to determine whether an offense is lesser and included in the
greater offense. Quoting the late Justice Weldon White in Johnson v. State, 397
S.W.2d 170, 174 (1965), the court ruled as follows:
The true test of which is a lesser and which is a greater
crime is whether the elements of the former are
completely contained within the latter, so that to prove
the greater the State must first prove the elements of the
lesser.
Wright, 549 S.W.2d at 685-86.
Two years later, our supreme court again addressed the subject:
33
We believe that the better rule, and the one to be
followed henceforth in this State, is the rule adopted
implicitly by this court in Wright v. State, supra, that, in
this context, an offense is necessarily included in another
if the elements of the greater offense, as those elements
are set forth in the indictment, include, but are not
congruent with, all the elements of the lesser.
Howard v. State, 578 S.W.2d 83, 85 (Tenn. 1979).
More recently, in State v. Trusty, 919 S.W.2d 305 (Tenn. 1996), the
supreme court identified the two types of lesser offenses. A lesser included offense
is one whose elements are a subset of the greater offense and which does not
require proof of any element not included in the greater offense, as described above
in Wright and Howard. A lesser grade or class of offense is established by statute.
Trusty, 919 S.W.2d at 310-11. The grades of homicide are first degree murder,
second degree murder, voluntary manslaughter, criminally negligent homicide and
vehicular homicide.
The elements of felony murder are a "reckless killing of another
committed in the perpetration of, or attempt to perpetrate any" of the enumerated
felonies. Tenn. Code Ann. § 39-13-202(a)(2). The elements of premeditated
murder are an "intentional, premeditated and deliberate killing of another." Tenn.
Code Ann. § 39-13-202(a)(1). Thus, depending upon the factual situation, the state
could prove felony murder without having proved premeditated murder and vice
versa. Thus, neither offense is a "lesser included" offense. Moreover, neither
offense is a "lesser grade or class" than the other. Tennessee's statutory scheme
provides that each offense is within the same class of homicide--first degree murder.
They both are death eligible offenses; each is classified in our code as "first degree
murder." See Tenn. Code Ann. § 39-13-202. The penalties for felony murder and
premeditated murder are the same.
34
Because neither offense is greater or lesser than the other, the
doctrine of merger does not resolve this issue. That is, if felony murder could be
said to merge into premeditated murder, then there would be no Middlebrooks
problem.
In our view, the trial judge, who might have avoided the Middlebrooks
error by setting aside the felony murder convictions, nonetheless followed the proper
technical procedure by vacating or "striking" two of the convictions rather than
merging them. Vacate means "[t]o annul; to set aside; to cancel or rescind. To
render an act void; as to vacate an entry of record, or a judgment." Black's Law
Dictionary 1548 (6th ed. 1990). So, once the other convictions (including that of
premeditated murder) were "struck," they were rendered "void."
In State v. Davis, 613 S.W.2d 218, 221(Tenn. 1981), our supreme
court ruled that once a conviction is dismissed, "[t]here was not [a] legally valid
verdict" to reinstate. We emphasize that in this case, the prosecution concurred in
the trial judge's decision to strike the convictions for premeditated murder and for
murder during the perpetration of a robbery. For the purposes of our appellate
review, only the conviction for murder committed during a burglary, a felony murder,
remains. As indicated, the effect of vacating the premeditated murder conviction
retroactively nullified the applicability of the "commission of a felony" aggravating
circumstance, Tenn. Code Ann. § 39-13-204(i)(7). We are constrained then to find
that the trial court's action at the hearing on the motion for new trial created a
Middlebrooks error.
In addition, the defendant argues the thirteenth juror rule also requires
us to conclude a Middlebrooks error occurred. Rule 33(f), Tenn. R. Crim. P.,
35
provides, in part, as follows: "The trial court may grant a new trial following a verdict
of guilty if it disagrees with the jury about the weight of the evidence. " In
interpreting Rule 33(f), our supreme court has held as follows:
Rule 33(f) imposes upon a trial court judge the
mandatory duty to serve as the thirteenth juror in every
criminal case, and that approval by the trial judge of the
jury's verdict as the thirteenth juror is a necessary
prerequisite to imposition of a valid judgment.
State v. Carter, 896 S.W.2d 119, 122 (Tenn. 1995) (emphasis added). "The
purpose of the thirteenth juror rule is to be a 'safeguard ... against a miscarriage of
justice by the jury.'" State v. Moats, 906 S.W.2d 431 (Tenn. 1995) (quoting State v.
Johnson, 692 S.W.2d 412, 415 (Tenn. 1985) (Drowota, J., dissenting)). Here,
because the trial court dismissed two of the convictions, the verdicts supporting the
convictions obviously had not been approved by the trial judge as thirteenth juror. In
fact, the trial judge made specific reference to that at the hearing on the motion for
new trial. In Davis, our supreme court held that when the trial judge sets aside a
verdict, he has not approved it as required by the thirteenth juror rule. 613 S.W.2d
at 221. Without the trial court's approval, the verdict is invalid. Id. We are
compelled to follow the precedent established in Davis. Again, the result is a finding
of Middlebrooks error in the penalty phase of the trial.
The state argues that the trial judge implicitly accredited all three
verdicts and that the thirteenth juror rule does not apply because the trial judge did
not order a new trial. We must disagree with the state; a new trial was not
necessary, or even permissible, because the trial judge fully approved of the verdict
for murder in the commission of a burglary. In this appeal, we fully concur that the
conviction was warranted; that would preclude, on double jeopardy principles,
another trial on either of the two convictions that were set aside.
36
Because the trial judge did not approve the verdict for premeditated
murder, that verdict is entitled to no weight. The simple conclusion is that the only
valid conviction remaining against the defendant for which the death penalty may be
imposed is one for felony murder. While the circumstances are unusual, we must
hold that under the rule of Middlebrooks, the use of the felony aggravator during
sentencing was error.
The error does not necessarily result in a reversal of the death penalty.
As stated previously in this opinion, our supreme court has developed a standard to
determine whether the jury's use of an invalid aggravating factor in imposing death
might qualify as harmless beyond a reasonable doubt. State v. Howell, 868 S.W.2d
238, 259 (Tenn. 1993). The Howell court considered four factors in determining
whether the error was harmless: (1) the number and strength of the remaining valid
aggravating circumstances; (2) the prosecutor's argument at sentencing; (3) the
evidence admitted to establish the invalid aggravator; and (4) the nature, quality,
and strength of mitigating evidence. Id. at 261.
Our supreme court applied the Howell analysis to determine whether
the erroneous application of the felony murder aggravator constituted reversible
error in at least eight cases. See State v. Hines, 919 S.W.2d 573 (Tenn. 1995),
cert. denied, ____ U.S. ____, 117 S.Ct. 133 (1996); State v. Walker, 910 S.W.2d
381 (Tenn. 1995); State v. Hartman, 896 S.W.2d 94 (Tenn. 1995), cert. denied,
_____ U.S. _____, 117 S.Ct. 88 (1996);State v. Smith, 893 S.W.2d 908 (Tenn.
1994); Barber v. State, 889 S.W.2d 185 (Tenn. 1994);State v. Nichols, 877 S.W.2d
722 (Tenn. 1994); State v. Cazes, 875 S.W.2d 253 (Tenn. 1994);State v. Howell,
868 S.W.2d 238 (Tenn. 1993). In all but Walker and Hartman, the error was been
found to be harmless beyond a reasonable doubt.
37
In Barber, 889 S.W.2d at 188-90, there was only one remaining
aggravator, that the murder was heinous and atrocious; because proof of the
remaining aggravator was so overwhelming, our supreme court found the error to be
harmless beyond a reasonable doubt. In making its ruling, the court reasoned the
state did not emphasize the invalid aggravator, no new evidence was admitted to
establish the invalid aggravator, and the mitigating evidence was insubstantial Id.
In Nichols, 877 S.W.2d at 738-39, the only remaining aggravator was the
commission of prior violent felonies, Tenn. Code Ann. § 39-13-204(i)(2). It was
established by proof of five aggravated rapes. Id. As in Barber, the supreme court
found no reversible error because proof of the aggravator was so overwhelming; the
remaining Howell factors were also favorable to the state. Id.
This case is closely akin to Barber and Nichols because there is only
one remaining valid aggravator. As in each of those two cases, the proof of the
single remaining aggravating circumstance is overwhelming. Moreover, the
remaining Howell factors also support a finding of harmlessness beyond a
reasonable doubt. The first of the four factors, the number and strength of the
remaining valid aggravators, has been described as follows:
[W]e necessarily consider the number of remaining valid
aggravating circumstances ...; but even more crucial than
the sum of the remaining aggravating circumstances is
the qualitative nature of each circumstance, its
substance and persuasiveness, as well as the quantum
of proof supporting it.
Howell 868 S.W.2d at 261 (emphasis added). Here, the jury had a basis for finding
that the defendant had three prior violent felony convictions. See Tenn. Code Ann.
§ 39-13-204(i)(2). The state introduced proof that the defendant had previously
attempted two second degree murders and an aggravated robbery. Thus, the
remaining proof of this aggravator was both "persuasive" and well supported by an
adequate "quantum of proof." Id. at 261. The state need only prove that the
38
defendant has been convicted of one prior violent felony to establish this
aggravating circumstance; there was a surplus in proof of two. In Nichols, our
supreme court observed that "the effect and qualitative persuasiveness of the
remaining aggravating circumstance [prior violent felonies] increases where there is
proof of more than one prior violent felony conviction." 877 S.W.2d at 738.
The second Howell factor is the prosecutor's argument at sentencing.
During opening and closing argument, the prosecutor did not emphasize the felony
murder aggravator. In fact, much of the argument was geared toward addressing
the defendant's prior violent felonies. For example, the state argued during closing
that the defendant had been "convicted of three violent crimes. We didn't go into
the details of all of those crimes. Don't believe it would be proper to do that. But we
do know he was convicted." The state did not emphasize the felony murder
aggravator nearly as much as the prior violent felonies; that weighs against a finding
of prejudicial error. In Nichols, 877 S.W.2d at 737, the court found the
Middlebrooks error to be harmless in part because "[a]n examination of the State's
argument ... reveal[ed] that no great emphasis was placed on the fact that the
murder occurred during the course of a felony. The bulk of the argument relative to
aggravating circumstances focused on the defendant's prior criminal record and the
predatory nature of the crimes."
The third factor is whether any evidence was admitted to establish the
invalid aggravating circumstance. The only proof of the felony murder was during
the guilt phase of the trial. None was presented during the penalty phase. That
favors the state in the harmless error analysis. "Elimination of the invalid felony-
murder aggravating circumstance [would not have] 'remove[d] any evidence from
the jury's total consideration.'" Nichols, 877 S.W.2d at 738 (quoting Howell, 868
39
S.W.2d at 261).
Finally, we must consider the nature and quality of the mitigating
evidence. The only such evidence was the defendant's assertion that he still had
family members with whom he kept contact; that he was well-behaved while he was
incarcerated; and that he had some work history. The defendant also proclaimed
his innocence of the crime. In our view, this evidence qualified as little more than
minimal. As in Howell, where the Middlebrooks error was found to be harmless,
there was no "mitigating evidence relating to the good character of the defendant ."
Howell 868 S.W.2d at 262. The death penalty in Nichols was affirmed, despite one
invalid aggravating circumstance, because the defendant did not present any
persuasive mitigation evidence. This case is similar in that regard. We conclude,
therefore, that the Middlebrooks error was harmless beyond a reasonable doubt.
That the evidence would have supported a conviction of premeditated murder, had
the trial judge not set it aside, serves to buttress our conclusion. So does the fact
that there was more than one underlying felony to support the felony murder
conviction; that is, both attempted murder and aggravated burglary were established
by the proof. In theory, one could have been used as an element of the felony
murder conviction, i.e., aggravated burglary. The other could have been utilized as
an aggravating circumstance under Tenn. Code Ann. § 39-13-204(i)(7) despite the
Middlebrooks rule:
Where, as in the instant case, a felony not underlying the
felony murder conviction is used to support the felony
murder aggravating circumstance, there is no duplication.
Furthermore, under these facts the aggravating
circumstance as applied restricts the sentencer's
discretion to those who kill while in the perpetration of
multiple felonies, a class of murderers demonstrably
smaller and more blameworthy than the general class of
murderers eligible for the death penalty under the
previous felony murder statute in Tenn. Code Ann. § 39-
2-202(a)(1982). Under these circumstances, where a
felony other than that used to prove the substantive
40
offense is used to establish the aggravating
circumstance, there is no constitutional prohibition
against the use of the aggravating circumstance in § 39-
2-203(i)(7) to support the imposition of the death penalty
for felony murder.
State v. Hines, 919 S.W.2d 573, 583 (Tenn. 1995) (emphasis added).
Finally, the sentence is neither excessive nor disproportionate to the
penalty imposed in similar cases. The sentence does not appear to have been
imposed in an arbitrary fashion. Proof of the valid, remaining aggravating
circumstance outweighs the proof of mitigating circumstances.
Accordingly, the judgment is affirmed.
____________________________________
Gary R. Wade, Judge
CONCUR:
_____________________________
Joe B. Jones, Presiding Judge
_____________________________
William M. Barker, Judge
41
State of Tennessee v. Perry A. Cribbs
Combined Opinion