Sample v. State

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
April 3, 2002 Session

MICHAEL EUGENE SAMPLE, ET AL. v. STATE OF TENNESSEE

Appeal by Permission from the Court of Criminal Appeals
Criminal Court for Shelby County
No. P-14252 Bernie Weinman, Judge

No. W1999-01202-SC-R11-PC - Filed August 2, 2002

We granted review in this post-conviction capital case to address two issues: (1) whether the
trial court properly ruled that the petitioner’s claim that the prosecution suppressed exculpatory
evidence was barred by the statute of limitations; and (2) whether the trial court properly determined
that the jury’s reliance on the felony murder aggravating circumstance in imposing a death sentence
for the offense of felony murder in violation of article I, § 16 of the Tennessee Constitution was
harmless error beyond a reasonable doubt. The Court of Criminal Appeals affirmed the denial of
post-conviction relief.

After carefully reviewing the record and applicable authority, we hold that our decision in
Wright v. State, 987 S.W.2d 26 (Tenn. 1999), did not create a per se rule requiring the dismissal of
all late-arising suppression of exculpatory evidence claims, and that the record in this case
preponderates against the trial court’s determination that the petitioner’s liberty interest in raising
such an issue was outweighed by the State’s interest in finality. We therefore remand for further
proceedings on this claim. We further hold that the violation of article I, § 16 of the Tennessee
Constitution under the present facts in the record was harmless error beyond a reasonable doubt
under State v. Howell, 868 S.W.2d 238 (Tenn. 1993). We therefore reverse the Court of Criminal
Appeals’ judgment and remand to the trial court for further proceedings consistent with this opinion.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals
Reversed and Case Remanded to Trial Court

E. RILEY ANDERSON, J., delivered the opinion of the court, in which ADOLPHO A. BIRCH , JR., and
JANICE M. HOLDER , JJ., joined. FRANK F. DROWOTA , III, C.J., filed a concurring opinion. WILLIAM
M. BARKER , J., filed a concurring and dissenting opinion.

David M. Eldridge, Knoxville, Tennessee, and Harry R. Reinhart, Columbus, Ohio, for the appellant,
Michael Eugene Sample.
Michael E. Moore, Solicitor General; Jennifer L. Smith and Erik W. Daab, Assistant Attorneys
General; William L. Gibbons, District Attorney General; and Reginald Henderson and John W.
Campbell, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

BACKGROUND

Trial and Direct Appeal

The petitioner, Michael Eugene Sample, and a co-defendant, Larry McKay, were convicted
of felony murder and sentenced to death for the 1981 killing of two men during an armed robbery
in Memphis, Tennessee. To place the issues raised in this appeal in the appropriate context, we will
briefly summarize the evidence from the trial and sentencing.

Melvin Wallace, Jr., testified that on August 29, 1981, he entered the L & G Sundry Store
and saw two employees, Benjamin Cooke and Steve Jones, being held at gunpoint. Wallace tried
to flee, but was shot in the leg by the petitioner, Michael Sample. While lying on the floor, Wallace
heard Sample demand money and threaten to kill everyone, and he saw McKay shoot Cooke. When
Sample realized that Wallace was still alive, he shot him in the back; Sample then put a gun to
Wallace’s head, but it misfired. Wallace and Sample engaged in a struggle, and Wallace lost
consciousness when the gun fired near his head. Wallace survived the shootings, but Cooke and
Jones were killed.

The day after the offenses, police officers apprehended Sample and McKay and found a .32
caliber handgun in their car. Bullets fired from this weapon matched those found in all three victims.
Two days after the offenses, Wallace identified Sample and McKay from a lineup. At trial, Wallace
again identified Sample and McKay as the persons who committed the offenses. A second witness,
Charles Rice, testified that he fled from the scene when he saw the robbery in progress; he likewise
identified Sample and McKay as the perpetrators. Both Sample and McKay were convicted of two
counts of felony murder.

At a sentencing hearing to determine punishment, Sample introduced mitigating evidence that
he was an “exceptionally good” and “very conscientious” employee. Several family members
testified about Sample’s work history, character, and qualities as a husband, father, and son-in-law.
Sample’s mother testified that he was a good son and asked the jury to spare his life. Sample testified
that he did not commit these crimes and asked the jury to spare his life for the sake of his son and
wife.

The jury sentenced Sample to death based on three aggravating circumstances: that he created
a great risk of death to two or more persons other than the victims who were murdered; that he
committed the murder to avoid, interfere with or prevent a lawful arrest or prosecution; and that the
murders were committed in the course of committing a felony. See Tenn. Code Ann. § 39-2404(i)(3),

-2-
(6), (7) (Supp. 1981).1 The convictions and sentences were upheld on direct appeal. State v. McKay,
680 S.W.2d 447 (Tenn. 1984), cert. denied, 470 U.S. 1034 (1985).

Post-Conviction Proceedings

The present action for post-conviction relief was filed in January of 1995.2 The petition
alleged, among other grounds, that the prosecution violated his rights to due process and a fair trial
under the Fourteenth Amendment to the United States Constitution and article I, § 8 of the Tennessee
Constitution by suppressing exculpatory evidence. See Brady v. Maryland, 373 U.S. 83, 83 S. Ct.
1194 (1963); Johnson v. State, 38 S.W.3d 52 (Tenn. 2001). The petition also alleged that the jury’s
reliance upon the felony murder aggravating circumstance violated article I, § 16 of the Tennessee
Constitution. See State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992).

The trial court initially dismissed the post-conviction petition without requiring the State to
file an answer, conducting an evidentiary hearing, or addressing the merits of the issues raised. When
the dismissal was appealed, the Court of Criminal Appeals recognized that the petition had been filed
after the expiration of the three-year statute of limitations then applicable to post-conviction cases,
see Tenn. Code Ann. § 40-30-102 (1990), but concluded that the trial court erred in summarily
dismissing the petition without determining whether the exculpatory evidence issue should be heard
as a “later-arising” claim. The Court of Criminal Appeals further held that the trial court erred in
failing to determine whether the violation of article I, § 16 of the Tennessee Constitution was
harmless error beyond a reasonable doubt. Sample v. State, Nos. 02C01-9505-CR-000131 and
02C01-9505-CR-00139, 1996 Tenn. Crim. App. LEXIS 597 (Sept. 30, 1996).

On remand, the trial court determined that consideration of the exculpatory evidence issue was
barred because the petition had been filed after the three-year statute of limitations. The trial court
cited Wright v. State, 987 S.W.2d 26 (Tenn. 1999), in which this Court held that a late-arising
exculpatory evidence claim was properly rejected because the petitioner had not been denied a
reasonable opportunity to litigate the issue and the petitioner’s liberty interests in raising the issue
were outweighed by the State’s interest in finality of judgments. The trial court also found that the
violation of article I, § 16 of the Tennessee Constitution was harmless beyond a reasonable doubt.

On appeal following the remand, the Court of Criminal Appeals affirmed the trial court’s
conclusion that the exculpatory evidence issue was barred by the statute of limitations, yet expressed

1
Present versions of these aggravating circumstances are foun d in Tenn. Co de An n. § 39-13-2 04(i)(3),
(6), (7) (1997 & Supp. 200 1).

2
The trial court found that the petitioner has filed six petitions for post-conviction relief, all of which
have been d enied. O ur records indicate tha t the following po st-conviction suits were denied and also affirmed on
app eal: McKay & Sam ple v. State, No. 25, 1989 Ten n. Crim. A pp. L EX IS 15 3 (M arch 1, 19 89); Sam ple & M cKay v.
State, No. 02C01-9104-CR-00062, 1995 Tenn. Crim. App. LEXIS 11 5 (Fe b. 15, 1995 ); State v. Sample & M cKay,
No. 02C01-9506-CR-00175, 1996 Tenn. Crim. App. LEXIS 460 (July 26, 1996).

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concern that the decision in Wright may unfairly prevent petitioners from litigating late-arising
exculpatory evidence issues through no fault of their own. The appeals court also agreed with the
trial court’s determination that the jury’s reliance on the felony murder aggravating circumstance in
violation of article I, § 16 was harmless beyond a reasonable doubt under State v. Howell, 868
S.W.2d 238 (Tenn. 1993).

We granted this appeal.

EXCULPATORY EVIDENCE CLAIM

Suppressed “Brady” Evidence

The United States Supreme Court has held that “suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material either to
guilt or punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v.
Maryland, 373 U.S. at 87, 83 S. Ct. at 1196-97.3 Evidence is favorable to an accused where it
exculpates the accused, mitigates the punishment, or impeaches the prosecution’s witnesses. See
Johnson v. State, 38 S.W.3d at 55-56. Evidence is material when there is a reasonable probability
that the result of the proceeding would have been different had the exculpatory evidence been
disclosed. Id. at 58.

The post-conviction petition and attached exhibits in this case alleged that the prosecution
violated these due process principles by suppressing police records that included numerous statements
made by Melvin Wallace. For instance: Wallace told Sgt. J.D. Welch that he did not notice Sample
during the robbery; Wallace told Sgt. Welch that he had been shot by McKay; Wallace told Officer
J.D. Douglas that he could identify McKay but not the second man involved in the offense; and
Wallace gave physical descriptions that did not match either McKay or Sample. The petition alleged
that these statements were exculpatory and material because they contradicted Wallace’s critical
eyewitness testimony at trial.

In addition, the petition alleged that the prosecution suppressed the following exculpatory
evidence: reports that Sample’s fingerprints were not found at the scene of the offenses; reports that
other potential suspects were near the scene at the time of the offenses; descriptions given to the
dispatcher that matched neither Sample nor McKay; descriptions given to officers by witness Charles

3
Mo reover, the prosecution is responsible for any favorable evidence known to others acting on the
State’s behalf, inclu ding the police. See Kyles v. Whitley, 514 U.S. 419 , 437 , 115 S. Ct. 1555 (1995); Johnson v. S tate,
38 S.W.3d at 56.

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Rice that matched neither Sample nor McKay; inconsistent statements made by Rice regarding the
offenses; and reports that drugs were commonly sold from the L & G grocery store.4

The petitioner asserted that the claim was not raised within the three-year statute of limitations
because he was unaware that the prosecution suppressed the exculpatory evidence until he had access
to police investigative files pursuant to the decision in Capital Case Resource Center of Tennessee,
Inc. v. Woodall, No. 01A01-9104-CH-00150, 1992 Tenn. Ct. App. LEXIS 94 (Jan. 29, 1992), which
held that the Tennessee Public Records Act5 applies to criminal cases under collateral review.
Moreover, after remand, the petitioner asserted that he had requested exculpatory evidence both
before trial and after the Woodall decision and that he did not obtain possession of the evidence until
September of 1993. The trial court nonetheless determined that the claim was barred by the statute
of limitations.

Statute of Limitations

At the time the petitioner filed this petition for post-conviction relief, the Post-Conviction
Procedure Act stated:

[a] prisoner in custody under sentence of a court of this state must
petition for post-conviction relief under this chapter within three (3)
years of the date of the final action of the highest state appellate court
to which an appeal is taken or consideration of such petition shall be
barred.

Tenn. Code Ann. § 40-30-102 (1990).6 The statute was applied prospectively, meaning that
petitioners whose cases were final before the statute was enacted were given three years from the
effective date of July 1, 1986, in which to seek post-conviction relief. See State v. Masucci, 754
S.W.2d 90 (Tenn. Crim. App. 1988). Because this Court decided the petitioner’s direct appeal in
1984, the parties agree that the three-year statute of limitations began to run on July 1, 1986, and that
the present petition, filed in January of 1995, was filed well after the limitations period expired.

Sample argues, however, that the exculpatory evidence claim could not have been raised
before the statute of limitations expired because he did not have access to investigative files until the
decision in Woodall in January of 1992 and did not have actual possession of the exculpatory

4
In addition, the petition alleged that the prosecution w ithheld exculpatory evidence regarding an earlier
robbery comm itted in the same area that the prosecution had attempted to link to Sample and McKay.

5
Presently codified at Tenn. Code A nn. § 10-7-5 05 (199 9 & S upp. 200 1).

6
In contrast, the current Post-Conviction Procedures Act contains a one (1) year statute of limitations.
See Tenn. Code Ann. § 40-30-202(a) (1997). Because Sample’s petition was filed before the effective date of the
prese nt act, it is go vern ed by the Post-C onv iction P rocedure Act then in effect.

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evidence until September of 1993. Sample urges that application of the statute of limitations would
deny him a reasonable opportunity to raise the claim and violate due process. The State, which notes
that Woodall was decided in January of 1992, and that the petition was not filed until January of
1995, maintains that the claim was barred by the statute of limitations and that the petitioner was not
denied a reasonable opportunity to have the claim heard.7

Due Process

We first addressed whether due process may require an exception to the post-conviction
statute of limitations in Burford v. State, 845 S.W.2d 204 (Tenn. 1992). The petitioner, whose post-
conviction petition challenging his enhanced sentencing as a persistent offender was filed after the
statue of limitations, argued that he could not raise the issue until prior convictions used to enhance
his sentence were set aside in a separate post-conviction suit in another county. Id. at 205.

We recognized that although the State has a legitimate interest in preventing the litigation of
stale claims by enacting statutes of limitations in post-conviction cases, “due process requires that
potential litigants be provided an opportunity for the presentation of claims at a meaningful time and
in a meaningful manner.” Id. at 208. In weighing the interests of a petitioner against the interests of
the State, we said that “the test is whether the time period provides an applicant a reasonable
opportunity to have the claimed issue heard and determined.” Id. at 208. Accordingly we concluded
that strict application of the statute of limitations to prevent the petitioner from challenging his
improperly enhanced sentence under the unusual procedural circumstances in Burford violated due
process. Id.

In applying Burford, we have since clarified that due process may prohibit strict application
of the statute of limitations in a post-conviction case “when the grounds for relief, whether legal or
factual, arise after . . . the point at which the limitations period would normally have begun to run.”
Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995). In such a case, the court must determine whether
application of the limitations period would deny the petitioner a reasonable opportunity to present the
claim by balancing the “liberty interest in ‘collaterally attacking constitutional violations occurring
during the conviction process,’ . . . against the State’s interest in preventing the litigation of ‘stale and
fraudulent claims.’” Id. (citations omitted); see also Caldwell v. State, 917 S.W.2d 662 (Tenn. 1996)
(application of the three-year statute of limitations did not deny petitioner a reasonable opportunity
to raise a pretextual arrest issue).8

7
In addition, the State notes that the claim was actually available several months earlier pursuant to the
Court of Appeals’ decision in Freeman v. Jeffcoat, No. 01A01-9103-CV-00086, 1991 Tenn. Ct. App. LEXIS 659
(Sept. 11 , 1991 , as corrected), which reached a similar con clusion as Wood all.

8
In adopting this balancing analysis, we have declined to create a specific limitations period for later-
arising claim s. Burford v. State , 845 S.W .2d at 208 ; see also Wright v. State, 987 S.W.2d at 30.

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 As the parties recognize, we applied this balancing analysis to circumstances similar to the
present case in Wright v. State, 987 S.W.2d 26 (Tenn. 1999). In Wright, the petitioner’s first degree
murder conviction and death sentence were affirmed on direct appeal in 1988. In January of 1995,
after the three-year statute of limitations had expired, the petitioner filed a post-conviction petition
alleging that the prosecution violated his right to due process by withholding exculpatory evidence.
As in the present case, the petitioner alleged that the claim did not arise until he had access to
investigative records under the Court of Appeals’ decision in Woodall. The trial court nonetheless
found that the claim was barred by the three-year statute of limitations and dismissed the petition.

On appeal, we agreed that the exculpatory evidence issue was a later-arising claim and
stressed that “the critical inquiry [was] whether . . . application of the three-year statute of limitations
effectively denied Wright a ‘reasonable opportunity’ to raise the issue.” Wright v. State, 987 S.W.2d
at 29. We also acknowledged that the right asserted by Wright – the denial of due process from the
prosecution’s suppression of exculpatory evidence – was a personal trial right directly relating to the
justice or integrity of the conviction and sentence. Id. at 30 (citing Brady v. Maryland, 373 U.S. at
87, 83 S. Ct. at 1197).

In applying the analysis, however, we determined that the balancing otherwise “weigh[ed]
heavily in favor of the legitimate interests of the State,” inasmuch as the post-conviction suit was filed
ten years after the commission of the offense, six and one-half years after the conviction became final,
three and one-half years after the three-year post-conviction statute of limitations expired; and nearly
three years after the Woodall decision. See id. Moreover, we concluded:

[T]his passage of time is directly related to the manner and means of
litigating Wright’s issue. The availability of critical witnesses and
their ability to recall and relate details as to the alleged suppression of
exculpatory evidence and the facts of this offense are immediate and
significant concerns. Wright’s mere allegation that the prosecution
suppressed exculpatory evidence does not warrant relief. Instead,
Wright must establish that favorable evidence existed, that it was
material to the defense, and that it was, in fact, suppressed by the
prosecution. Accordingly, . . . raising this issue at this stage of the
proceedings, would require extensive, possibly expensive litigation.

Id. (citations omitted); see also Caldwell v. State, 917 S.W.2d at 666 (“All the dangers inherent in the
litigation of stale claims – which the State has a legitimate interest in preventing – appear to be
present here”).

Despite the factual similarities to the present case, we believe that the State reads Wright too
broadly in asserting that it requires the dismissal of all late-arising exculpatory evidence claims. We
did not establish such a per se rule for rejecting exculpatory evidence claims in Wright or any other
case, nor have we ever created a specific limitations period for late-arising claims in general. See

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Wright v. State, 987 S.W.2d at 30; Burford v. State, 845 S.W.2d at 208. Instead, beginning with
Burford, we have consistently said that the principles of due process are flexible and require balancing
of a petitioner’s liberty interests against the State’s finality interests on a case by case basis. See
Burford v. State, 845 S.W.2d at 207 (“Identification of the precise dictates of due process requires
consideration of both the governmental interests involved and the private interests affected by the
official action.”).

Accordingly, our review must consider that the record in the present case differs in several
important respects from that in Wright. The post-conviction petition filed by Sample was
accompanied by exhibits and records replete with apparent exculpatory evidence; in contrast, the
petition in Wright contained “mere allegations” of exculpatory evidence. See Wright v. State, 987
S.W.2d at 30; see also Tenn. Code Ann. § 40-30-104(b) (1990) (“The petition shall have attached
affidavits, records or other evidence supporting its allegations . . . .”).9 When the court undertakes
its review of the petition, exhibits, and records, such considerations necessarily bear upon the
petitioner’s liberty interest.10

Similarly, the record in this case, unlike Wright, details the petitioner’s efforts to obtain
exculpatory evidence both before trial, after trial, and after the decision in Woodall. The petitioner
asserted that the prosecution refused to respond to his repeated requests and that he was unable to
secure the evidence until September of 1993, and then only through the assistance of the Capital Case
Resource Center. The State’s sole response is that the exculpatory evidence was available when
Woodall was decided in January of 1992; the State does not explain why the prosecution did not
respond to the repeated requests of the petitioner and does not otherwise convincingly respond to the
assertions regarding the petitioner’s efforts to secure the evidence.11 Again, these considerations bear
upon not only the significance of the petitioner’s liberty interest in asserting a late-arising claim in
a capital case but also the balancing of that interest against the State’s asserted interest.

9
As we have recognized in analogous circumstances regardin g the tolling of the statute for mental
incompetency: “W e em pha size that to make a prima facie showing of incompetence requiring tolling of the limitations
period, a post-conviction petition must include specific factual allegations that demon strate [men tal incompetency].
Unsupported, conclusory, or general allegations of mental illness will not be sufficient to require tolling and prevent
sum ma ry dismissal . . . . State v . Nix, 40 S.W.3d 459, 464 (Tenn. 200 1).

10
In this case, the trial court appeared to m ake such an initial determ ination by fin ding that M elvin
Wallace’s inconsistent statements regarding identification were not material because he was thoroughly examined at
trial. We no te, however, that the trial court assessed only a portion of the witness’s statements and, moreover, did not
make findings regarding all of the allegedly excu lpatory ev idence asse rted b y the petition er.

11
The trial cou rt’s finding th at the p etitioner’s effo rts to acquire the evidence amounted to a challenge
to the conduc t of his post-conviction counsel is clearly erroneous; the efforts were directly relevant to the question of
whether the petitioner had a reasonable opportunity to raise the issue. Similarly, the trial court’s observation that the
petitioner did not comply with the Public Records Act by requesting the records in person during business h ours is
hard ly dispo sitive of wh ether the petitione r had a reaso nab le opportunity to raise the issue within the statutory period.

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 Moreover, given these significant distinctions, our decisions following Wright likewise bear
upon the issue in this case. In Williams v. State, 44 S.W.3d 464 (Tenn. 2001), for example, the
petitioner alleged that his pro se petition for post-conviction relief was untimely because his attorney
failed to comply with the procedural requirements for withdrawing from representation following
direct appeal and the petitioner did not know whether his direct appeal remained pending. We
remanded for an evidentiary hearing to determine whether the petitioner was denied a reasonable
opportunity to seek post-conviction relief through no fault of his own due to the possible
misrepresentation of his counsel. Id. at 471. Moreover, even though the petitioner apparently had
three months to seek post-conviction relief after learning that his direct appeal had concluded, we
remanded for a determination of whether he had “time enough” to preserve a reasonable opportunity
to seek relief. See also Burford v. State, 845 S.W.2d at 208.

Similarly, a majority of the Court recently held under analogous circumstances that due
process mandated an exception to the one-year statute of limitations where a petitioner in a capital
case sought a writ of error coram nobis based on newly discovered evidence of actual innocense.
State v. Workman, 41 S.W.3d 100 (Tenn. 2001).12 In relying on Burford and Williams, the Court
observed:

Weighing the[] competing interests in the context of this case,
we have no hesitation in concluding that due process precludes
application of the statute of limitations to bar consideration of . . . this
case. [The defendant’s] interest in obtaining a hearing to present
newly discovered evidence that may establish actual innocence of a
capital offense far outweighs any governmental interest in preventing
the litigation of stale claims.

Id. at 103. Significantly, the majority stressed that the “delay in obtaining th[e] evidence [was] not
attributable to the fault of [the defendant] or his attorneys,” and that the State had failed to respond
to a prior subpoena that sought the evidence. Id. Moreover, the majority concluded that the fact that
the defendant waited 13 months to raise the claim did not eliminate the due process implications. Id.
at 103-104.

In our view, these considerations are applicable in the present case given the distinctions
between it and Wright. In Williams, for example, we emphasized that a post-conviction petitioner
should not be denied a reasonable opportunity to raise a claim due to another’s misconduct. In
Workman, we emphasized that newly found exculpatory evidence in a capital case may warrant due
process consideration where the fault in creating delay in raising the issue does not rest with the

12
Although I joined Justice Barker in dissenting from the m ajority in Workm an, I fully re spect that it
is the law in this State and must be applied when applicable. As such, I find that the reasoning in Workm an with respect
to the appropriate du e pro cess balanc ing analysis under Burford and its prog eny is persu asive as applied in this post-
con viction capital case.

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petitioner. Moreover, the fact that Sample waited approximately 16 months after discovering the
evidence before raising the issue is not substantially different than the 13-month period in Workman.
As we said in Workman, “the time within which th[e] petition was filed does not exceed the
reasonable opportunity afforded by due process.” Id. at 103.

In reaching this holding we disagree with the dissent’s conclusion that the petitioner is barred
from hearing his claim because he waited an unreasonable length of time to raise the issue after
obtaining the evidence. Initially, we stress that the petitioner, despite his efforts, did not obtain the
exculpatory evidence until well after the three-year statute of limitations had expired and therefore
had no opportunity to file the claim within the statutory period. In comparison, the Court has granted
due process relief in cases where the petitioners discovered their late-arising claims for relief before
the statute of limitations had expired yet asserted the claims after the statute expired. See Burford
v. State, 845 S.W.2d at 209 (nine months remaining in the statutory period); Williams v. State, 44
S.W.3d at 471 (three months remaining in the statutory period).

In addition, although the petitioner did not raise the issue until 16 months after obtaining the
evidence, it bears noting that there was at that time no statute of limitations applicable to late-arising
claims; indeed, the Court in Burford, which was decided nine months before Sample obtained the
evidence in this case, declined to adopt a specific period for asserting late-arising claims in favor of
a case by case due process analysis. Burford, 845 S.W.2d at 208; see also Wright, 987 S.W.2d at
30.13 Moreover, the 16-month period under these circumstances must be viewed with and mitigated
by the fact that the prosecution suppressed the evidence and prevented the issue from being litigated
for over 10 years. In balancing the interests of the parties, there is simply no basis for holding that
the 16-month period in and of itself was unreasonable.

Accordingly, we conclude that our decision in Wright v. State, 987 S.W.2d 26 (Tenn.
1999), did not create a per se rule requiring the dismissal of all late-arising suppression of exculpatory
evidence claims and that the record in this case preponderates against the trial court’s determination
that the petitioner’s liberty interests in raising such an issue were outweighed by the State’s interest
in finality. We therefore remand for further proceedings on this claim.

MIDDLEBROOKS ERROR

As detailed above, the petitioner asserted that the jury’s reliance on the felony murder
aggravating circumstance to impose a death sentence for the offense of felony murder violated article

13
The dissent writes that if the petitioner is “somehow gran ted an additional 1 2 m onth s after his
discovery of the alleged exculpatory evidence to file a petition for relief, nothing here suggests that he is entitled to an
extra four mon ths beyond that period . . . .” (emphasis in original). The dissent’s consideration of a 12-month period
in its analysis is misplaced given that the statute of limitations applicable in this post-conviction case was three years
and there was no specific statutory period for raising late-arising claims. Although the dissent faults the Workm an
decision for allo win g a 13-m onth delay where the statute of limitations in a coram nobis case was 12 months, that
statutory period is not at issu e here.

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I, § 16 of the Tennessee Constitution as provided in State v. Middlebrooks, 840 S.W.2d 317 (Tenn.
1992). In Middlebrooks, we held that the felony murder aggravating circumstance set forth in Tenn.
Code Ann. § 39-2-203(i)(7) (1982) duplicated the elements of the offense of felony murder and, when
applied to a felony murder, failed to narrow the class of death eligible murderers as required by article
I, § 16 of the Tennessee Constitution and the Eighth Amendment to the United States Constitution.

The new constitutional rule announced in Middlebrooks has since been applied retroactively
in post-conviction cases. See Barber v. State, 889 S.W.2d 185, 187 (Tenn. 1994). As both parties
recognize, therefore, the jury’s reliance on the invalid felony murder aggravating factor was
constitutional error properly recognized in this post-conviction proceeding. The critical inquiry is
whether the error was harmless and whether a resentencing hearing is required.14

In State v. Howell, we held that a Middlebrooks error does not require a resentencing hearing
if the reviewing court concludes “beyond a reasonable doubt that the sentence would have been the
same had the jury given no weight to the invalid felony murder aggravating factor.” 868 S.W.2d 238,
262 (Tenn. 1993). We stressed that the reviewing court must “completely examine the record for the
presence of factors which potentially influence the sentence ultimately imposed,” including “the
number and strength of remaining valid aggravating circumstances, the prosecutor’s argument at
sentencing, the evidence admitted to establish the invalid aggravator, and the nature, quality and
strength of mitigating evidence.” Id. at 260-61.15

In reviewing the first factor under Howell, there were two valid aggravating circumstances
relied upon by the jury in imposing the death sentences, in addition to the invalid felony murder
aggravating circumstance: that Sample knowingly created a great risk of death to two or more
persons other than the victim murdered, during the act of murder; and that the murders were
committed to avoid arrest or prosecution. Tenn. Code Ann. § 39-2404(i)(3), (6) (Supp. 1981).16

With regard to the “great risk of death” aggravating circumstance, this Court has said it “has
been applied where a defendant fires multiple gunshots in the course of a robbery or other incident
at which persons other than the victim are present.” State v. Henderson, 24 S.W.3d 307, 314 (Tenn.

14
Although we have remanded on the exculpatory evidence issue, we b elieve it is approp riate to address
the Middlebrooks issue as it presently h as been raised unde r the ex isting circum stances in this record. Our conclusions
will not p reclude ad ditional con sideration of the sen tencing error as it may relate to the findings regarding the
exculpatory evidence. See Johnson v. S tate, 38 S.W.3d at 59 (consideration o f exculpatory evidence with resp ect to
remaining ag gravating circumstances).

15
Initially, we note that w e hav e previou sly rejected the petitioner’s argument that an appellate court
may not conduct harm less erro r review o f an invalid aggravating circum stance. See State v. Boyd, 959 S.W.2d 557,
562-63 (Ten n. 19 98). We have also previously rejected the argument that the harmless error review must also weigh
the effect of alleg ed errors that are n ot pro perly befo re the post-con viction court. See State v. King, 989 S.W.2d 319,
327 (Ten n. 19 99).

16
Presently found at Tenn . Code A nn. § 39-13 -204(i)(3), (6) (1997 & Supp. 200 1).

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2000) (citation omitted). The trial court found that both Sample and McKay “were convicted of
murdering two people and in addition a third person was shot and left to die.” The Court of Criminal
Appeals likewise observed that the evidence showed that “McKay and Sample were acting jointly to
kill three people, and they fired at least seven gunshots between them.” The court reasoned that the
murder of Cooke placed two other victims, Jones and Wallace, at great risk of death, and that the
murder of Jones placed two other victims, Cooke and Wallace, at great risk of death. We agree that
the facts revealed that Sample engaged in conduct that knowingly created a great risk of death to two
or more persons in the store other than the murder victims. Indeed, we have previously cited the
present case as an example of this aggravating circumstance being applied properly. See Johnson v.
State, 38 S.W.3d at 61; see also State v. Burns, 979 S.W.2d 276, 281 (Tenn. 1998).

With regard to the “avoiding arrest or prosecution” aggravating circumstance, this Court has
frequently said that this aggravating circumstance applies whenever the evidence demonstrates that
avoidance of arrest or prosecution was one of the motives for the killing, and that it need not be the
sole motive. See State v. Henderson, 24 S.W.3d at 314; see also State v. Bane, 57 S.W.3d 411, 423
(Tenn. 2001); Terry v. State, 46 S.W.3d 147, 161 (Tenn. 2001). The trial court found that it was
“abundantly clear from the record that the shootings occurred in order for [Sample and McKay] to
avoid arrest and prosecution.” The Court of Criminal Appeals likewise correctly observed that
Sample and McKay killed two eyewitnesses to the robbery and then fled after believing a third
eyewitness had been killed.

In turning to the next Howell factor, we observe that no additional evidence was admitted to
support the invalid felony murder aggravating circumstance and that it was relied upon by the
prosecution solely to prove the offenses in the guilt phase. As we said in Howell, “an aggravating
factor which duplicates the elements of the underlying crime has less relative tendency to
prejudicially affect the sentence imposed than invalid aggravating factors which interject inadmissible
evidence into the sentencing calculus, or which require the sentencing jury to draw additional
conclusions from the guilt phase evidence.” 868 S.W.2d at 261. Accordingly, the jury in this case
heard no more evidence in support of the felony murder aggravating circumstance than had already
been presented to prove the offense of felony murder during the guilt phase of the trial.

With regard to the emphasis placed on the felony murder, the record reveals that the
prosecution mentioned the felony murder aggravating circumstance on several occasions in its closing
argument following the sentencing proceedings. As the trial court found, however, “it was certainly
mentioned that the murders were committed during the commission of a robbery,” but “more
significance was attributed to the other aggravating factors.” Similarly, the Court of Criminal
Appeals noted that while the prosecution’s closing argument “did mention the felony murder
aggravator several times, this issue was not dwelled upon or given undue emphasis.” Our review also
reveals that the majority of the prosecution’s arguments was devoted to the remaining two
aggravating circumstances and rebutting the mitigating evidence.

With regard to the final Howell factor – the nature, quality and strength of the mitigating
evidence – the trial court found that Sample asked the jury to spare his life for his wife and child and

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that he presented evidence regarding his family support and work background. The Court of Criminal
Appeals summarized the mitigating proof as follows:

Two of Samples’ foremen testified on his behalf, stating that he was
an ‘exceptionally good’ employee, that he was ‘very conscientious,’
and that he had ‘no problem with the people’ he oversaw. Sample’s
sister testified, explaining that Sample had left school after the ninth
grade to start working. [Sample’s] mother-in-law and father-in-
law . . . testified as to Sample’s good character and as to his good
qualities as a husband, father, and son-in-law. His mother testified . . .
that Sample was a good son and [asked] the jury to spare his life.
Sample testified on his own behalf, stating that he did not commit
these crimes and asking the jury to spare his life for the sake of his son
and wife.

We have considered all of the relevant Howell analytical factors in our review of the record,
and have considered and applied the requirement for individualized sentencing. We agree with the
Court of Appeals that while the evidence in mitigation warrants some weight, the evidence of two
remaining aggravating circumstances was substantial. Moreover, we agree that there was no
additional or improper evidence of felony murder during sentencing and that the prosecution did not
place great or undue emphasis on the felony murder aggravating circumstance. Accordingly, we
agree with the Court of Criminal Appeals’ that the verdict would have been the same had the jury
given no weight to the invalid aggravating circumstance.

CONCLUSION

After carefully reviewing the record and applicable authority, we hold that our decision in
Wright v. State, 987 S.W.2d 26 (Tenn. 1999), did not create a per se rule requiring the dismissal of
all late-arising suppression of exculpatory evidence claims and that the record in this case
preponderated against the trial court’s determination that the petitioner’s liberty interests in raising
such an issue were outweighed by the State’s interest in finality. We further hold that the violation
of article I, § 16 of the Tennessee Constitution under the present facts in the record was harmless error
beyond a reasonable doubt under State v. Howell, 868 S.W.2d 238 (Tenn. 1993). We therefore
reverse the Court of Criminal Appeals’ judgment and remand to the trial court for further proceedings
consistent with this opinion. Costs of this appeal are taxed to the State of Tennessee for which
execution may issue if necessary.

_____________________________________
E. RILEY ANDERSON, JUSTICE

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