IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
FILED
FOR PUBLICATION
June 7, 1999
Filed: June 7, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
TOMMY L. KING, ) MAURY CRIMINAL
)
Defendant/Appellant, )
)
)
vs. ) HON. JAMES WEATHERFORD,
) JUDGE
)
STATE OF TENNESSEE, )
)
Plaintiff/Appellee. ) No. 01S01-9707-CC-00146
FOR APPELLANT: FOR APPELLEE:
Daniel J. Runde John Knox Walkup
Assistant Public Defender Attorney General & Reporter
Pulaski, Tennessee
Robert D. Massey John P. Cauley
Co-Counsel Assistant Attorney General
Pulaski, Tennessee Nashville, Tennessee
OPINION
COURT OF CRIMINAL APPEALS AFFIRMED HOLDER, J.
OPINION
In this post-conviction capital case, we granted this appeal to determine
whether the jury’s reliance on an invalid felony murder aggravating circumstance
was harmless error. Upon review, we hold that the jury's consideration of the
invalid felony murder aggravating circumstance was harmless beyond a
reasonable doubt due to the strength of the remaining valid aggravating
circumstances and the relative weakness or absence of any mitigating
circumstances. The Court of Criminal Appeals' decision affirming the trial court's
dismissal of the post-conviction petition is affirmed.
BACKGROUND
The defendant, Tommy Lee King, and his co-defendant, Ronald Davis,
entered a tavern in May of 1982. The defendant fired a shot into the air and
ordered the tavern's patrons and owner to lie down on the floor. The defendant
robbed the patrons, rifled through the tavern's cash register, and took the
owner's car keys. Apparently, the defendant then without provocation shot the
tavern owner, who was lying on the floor. The shot entered the victim's neck and
followed a downward trajectory through the victim's spinal cord. The tavern
owner died approximately one week later as the result of the gunshot wound.
During the robbery, the defendant informed one of the tavern's patrons
that "we ought to kill you anyhow." He then stated, "Let's kill them all." The
defendant's co-defendant apparently dissuaded the defendant from killing
everyone inside the tavern. The patrons were then told, "Don't even raise your
head up an inch. If you do . . . I will just blow your brains out." When leaving the
tavern, the defendant encountered a woman who was ordered at gunpoint to lie
on the ground. The defendant fled in the tavern owner's car.
2
The record indicates that the defendant was approximately thirty years old
at the time of the robbery and fatal shooting. He had a substantial criminal
record that included five previous felony convictions. His felony convictions
included kidnapping and attempted robbery. The defendant had a history of
violating probation, and the present offenses were committed while the
defendant was on probation. The defendant never accepted responsibility for his
actions and attempted to justify killing the victim by stating that the victim refused
to pay him for blue jeans and other merchandise. He also alleged the shooting
was accidental. Witnesses testified contrary to the defendant's assertions, and
character testimony indicated that the defendant's reputation for truth and
veracity was poor.
The State submitted three aggravating circumstances for the jury's
consideration: (1) the defendant had a prior conviction for a violent felony; (2)
the defendant knowingly created a great risk of death to two or more persons
other than the victim murdered; and (3) the murder occurred during the
commission of a felony. 1 The jury found the presence of all three aggravating
circumstances and sentenced the defendant to death. Both the defendant's
conviction and the defendant's sentence of death were affirmed by this Court on
direct appeal. State v. King, 694 S.W.2d 941 (Tenn. 1985). His prior petition for
post-conviction relief was also denied, and that decision was affirmed on appeal.
King v. State, No. 88-221-III (Tenn. Crim. App., Mar. 31, 1989, Nashville), perm.
to appeal denied (Tenn., Aug. 7, 1989).
Following this Court's decision in State v. Middlebrooks, 840 S.W.2d 317
(Tenn. 1991) (Drowota and O’Brien, JJ. dissenting), cert. dismissed, 510 U.S.
124, 114 S.Ct. 651, 126 L.Ed.2d 555 (1993), the defendant again petitioned for
1
See Tenn. Code Ann. § 39-2-203(i)(2), (3), and (7)(1982)[now Tenn. Code Ann.
§ 39-13 -204(i)(2) , (3), and (7 )(1997) ].
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post-conviction relief. The trial court held that the jury's use of the felony murder
aggravating circumstance was error under Middlebrooks. The trial court,
however, held that the jury's reliance on the invalid aggravating circumstance
was harmless error under the framework provided by this Court in State v.
Howell, 868 S.W.2d 238 (Tenn. 1993), cert. denied, 510 U.S. 1215, 114 S.Ct.
1339, 127 L.Ed.2d 687 (1994). The trial court dismissed the defendant's petition
for relief, and a majority of the appellate court affirmed finding:
In the present case two valid aggravating factors were clearly
established. [King] had two prior felony convictions involving the
use of or threat of personal violence. Also, the state presented
proof that the appellant created great risk of death to two or more
persons other than the victim during the course of the homicide.
The proof supporting these two aggravating factors is
overwhelming. Very little evidence of mitigation was offered.
During the prosecutor’s closing argument at sentencing, little
emphasis was placed on the invalid aggravator. Furthermore, no
additional evidence was introduced to support the invalid
aggravating circumstance. . . . We conclude that the sentence
would have been the same had the jury given no weight to the
invalid felony murder aggravating factor.
We granted this appeal to determine whether the error was harmless.
ANALYSIS
At the time of the defendant’s trial, the offense of felony murder included
“[e]very murder committed in the perpetration of, or attempt to perpetrate, any
murder in the first degree, arson, rape, robbery, burglary, larceny, kidnapping,
aircraft piracy, or the unlawful throwing, placing or discharging of a destructive
device or bomb. . . .” Tenn. Code Ann. § 39-2-202(a) (1982)[now Tenn. Code
Ann. § 39-13-202(a)(2)(1997)]. The felony murder aggravating circumstance
contained virtually identical language: “the murder was committed while the
defendant was engaged in committing . . . any first degree murder, arson, rape,
robbery, burglary, larceny, kidnapping, aircraft piracy or unlawful throwing,
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placing or discharging of a destructive device or bomb.” Tenn. Code Ann.
§ 39-2-203 (i)(7)(1982)[now Tenn. Code Ann. § 39-13-204(i)(7)(1997)].
In Middlebrooks, a majority of this Court found that Tenn. Code Ann.
§ 39-2-203(i)(7) mirrored the elements of Tenn. Code Ann. § 39-13-204(i)(7) and
failed to narrow the class of death-eligible defendants. We held that application
of the felony murder aggravating circumstance to impose the death penalty for
felony murder violated both the Eighth Amendment to the United States
Constitution and art. I, § 16 of the Tennessee Constitution. Middlebrooks, 840
S.W.2d at 346. In State v. Howell, this Court held that a Middlebrooks error is
subject to a harmless error analysis. When evaluating a Middlebrooks error
under a Howell analysis, we shall “completely examine the record for the
presence of factors which potentially influence the sentence ultimately imposed.”
Howell, 868 S.W.2d at 260-61. The factors include “the number and strength of
remaining 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.
A Middlebrooks error may be deemed harmless if we find "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.” Howell, 868
S.W.2d at 261. We have held Middlebrooks errors to be harmless and have
upheld the death sentence in the following cases. State v. Boyd, 959 S.W.2d
557 (Tenn. 1998); State v. Hines, 919 S.W.2d 573 (Tenn. 1995), cert. denied,
___ U.S. ___, 117 S.Ct. 133, 136 L.Ed.2d 82 (1996); State v. Smith, 893 S.W.2d
908 (Tenn. 1994), 516 U.S. 829, 116 S.Ct. 99, 133 L.Ed.2d 53 (1995); Barber v.
State, 889 S.W.2d 185 (Tenn. 1994), cert. denied, 513 U.S. 1184, 115 S.Ct.
1177, 130 L.Ed.2d 1129 (1995); State v. Nichols, 877 S.W.2d 722 (Tenn. 1994),
cert. denied, 513 U.S. 1114, 115 S.Ct. 909, 130 L.Ed.2d 791 (1995); State v.
5
Cazes, 875 S.W.2d 253 (Tenn. 1994), cert. denied, 513 U.S. 1086, 115 S.Ct.
743, 130 L.Ed.2d 644 (1995); Howell, 868 S.W.2d at 262. We have held that the
error required resentencing in the following cases: State v. Walker, 910 S.W.2d
381 (Tenn. 1995), cert. denied, ___ U.S. ___, 117 S.Ct. 88, 136 L.Ed.2d 45
(1996), and Hartman v. State, 896 S.W.2d 94 (Tenn. 1995).
STANDARD OF REVIEW
Middlebrooks has been applied retroactively and may be properly raised
in a post-conviction case. See Barber v. State, 889 S.W.2d at 187.
Middlebrooks errors are premised upon the Tennessee Constitution. Decisions
addressing the harmful effect of a constitutional error that is a mixed question of
fact and law are generally not afforded a presumption of correctness. See, e.g.,
Yates v. Evatt, 500 U.S. 391, 405, 111 S.Ct. 1884, 1894, 114 L.Ed.2d 432
(1991). Accordingly, our review is de novo upon the record when assessing the
effect of a Middlebrooks error. See Harries v. State, 958 S.W.2d 799, 802-803
(Tenn. Crim. App. 1997), perm. to appeal denied (Tenn. 1997).
REMAINING AGGRAVATING CIRCUMSTANCES
Prior Violent Felony Convictions
King admits that he has been previously convicted of two violent felonies,
kidnapping and attempted robbery. He, however, argues that the substance and
persuasiveness of these convictions are weak because his conduct in
committing the offenses was not egregious. The defendant's argument is
premised on his assertions that: (1) the kidnapping conviction merely resulted
from a minor domestic dispute; and (2) his attempted robbery conviction
resulted from a criminal episode in which his involvement was minimal. The
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defendant further argues that the relatively light sentences he received on both
the kidnapping and the attempted robbery convictions show weakness of this
aggravating circumstance.2 Finally, the defendant states that his argument is
supported by this Court’s prior description of the proof supporting this
aggravating circumstance as “marginal.” See State v. King, 694 S.W.2d 941,
944 (Tenn. 1985) (stating "[e]ven if the proof as to this aggravating circumstance
were marginal . . . .").
We disagree with the defendant’s analysis. The mere fact that the victim
of a kidnapping is either a spouse or a former spouse does not decrease the
magnitude or substance and persuasiveness of that crime. Domestic violence is
a serious problem plaguing our society that should not be minimized. Moreover,
the mere fact that King's attempted robbery conviction stemmed from an incident
involving three other individuals does not minimize the seriousness of the
conviction. While the sentences imposed for these convictions were not
extremely severe, we note that at least one of the sentences resulted from a
negotiated plea agreement.
At the time of King’s sentencing hearing, aggravating circumstance (i)(2)
applied if the proof introduced by the State demonstrated beyond a reasonable
doubt that "[t]he defendant was previously convicted of one (1) or more felonies,
other than the present charge, which involved the use or threat of violence to the
person." Tenn. Code Ann. § 39-2-203 (i)(2) (1982 Repl.). The jury heard
evidence from both the State and the defendant regarding the circumstances of
these prior convictions. The jury found the proof sufficient to support this
aggravating circumstance beyond a reasonable doubt, and this Court affirmed
that finding in King’s direct appeal.
2
The defenda nt was sentenced to two years in the state penitentiary and ten years
probation on the kidnapping conviction. He received nine months probation on the attempted
robbery conviction.
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Upon review, we have not reweighed the proof. We have, consistent with
Howell, considered the evidence that was before the jury at the time it imposed
the sentence of death. We have considered the proof supporting this
aggravating circumstance. We have also considered the defendant’s statements
directed at depreciating the seriousness of his prior kidnapping and prior
attempted robbery convictions. The defendant’s statements are best
categorized as mitigating proof that the jury could have used to weigh against its
findings of the valid aggravating circumstances. The conduct underlying the
defendant’s prior convictions may be less egregious than the conduct underlying
the prior convictions of other defendants who have appeared before this Court.3
We emphasize, however, that Howell does not require us to conduct a
comparative review in determining the substance and persuasiveness of the
remaining valid aggravating circumstances. Instead, we must consider the
record in this case -- the evidence actually presented to the jury -- in light of the
factors enumerated in Howell. We must then determine whether the sentence
would have been the same had the jury given no weight to the invalid
aggravating circumstance. We have followed the analysis delineated in Howell
and conclude that, in this case, the prior violent felony conviction aggravating
circumstance is both objectively reliable and amply supported by the proof.
Risk of Death to Others
The jury found that the defendant's conduct in murdering the victim
"created a great risk of death to two (2) or more persons, other than the victim
murdered, during the act of murder." Tenn. Code Ann. § 39-2-203(i)(3) (1982).
The defendant entered a tavern and fired a shot into the air. He ordered the
patrons at gunpoint to lie down on the floor. He shot and killed the tavern owner,
3
Indeed, the dissent cites examples of cases in which the number of prior convictions
supporting the aggravating circumstance was greater and the conduct resulting in the conviction
was m ore egre gious. See State v. Sm ith, 893 S.W .2d 908, 9 26 (Te nn. 1994 ); State v. Cazes, 875
S.W .2d 253, 270 (Tenn. 1994 ).
8
who was lying on the floor. Upon leaving, the defendant encountered another
woman outside the tavern. He ordered her at gunpoint to lie down on the
ground. It was fortunate that others were neither killed nor wounded during this
robbery as at least two shots were fired within the confines of a crowded tavern.
Again, we are unpersuaded by the defendant’s argument that the
evidence supporting this aggravator is lacking in substance or persuasiveness
and should somehow be given less weight. Those persons ordered to lie on the
tavern floor heard the defendant threaten: "We ought to just kill you anyhow"
and "Let's kill them all" and were told, "[D]on't even raise your head up an inch.
If you do . . . I will just blow your brains out." At least two shots were discharged
by the defendant in a crowded tavern. While no additional victims were shot, the
threat to their lives was very real. We again conclude that this second remaining
valid aggravating circumstance is clearly supported by objectively reliable proof.
ARGUMENT AND EVIDENCE
The defendant lists several instances in which the State mentioned the
robbery during argument at the sentencing phase of the trial. According to the
defendant, this shows that undue emphasis was placed on the invalid felony
murder aggravating circumstance. We disagree with the defendant's
assessment.
We have carefully reviewed the State's argument. The State did not
introduce any additional evidence in support of the invalid felony murder
aggravating circumstance during the sentencing hearing. Taken as a whole, the
State's argument did not emphasize the felony murder aggravating
circumstance. The State's argument simply reminded the jury of the facts of the
case, the circumstances of the offense, the defendant's version of the events,
9
and the evidence impeaching the veracity of the defendant's version. We hold
that the State did not place undue emphasis on the felony murder aggravating
circumstance.
MITIGATING EVIDENCE
We find little or no mitigating proof upon careful examination of the record.
The defendant is an extremely poor candidate for rehabilitation. He has been
convicted of five prior felonies. He has a history of violating probation, and his
present crimes were committed while he was on probation. He showed little or
no remorse and refused to accept responsibility for his actions. Moreover, he
attempted to blame the victim for his actions. See King, 694 S.W.2d at 944
("Very little was offered by way of mitigating circumstances other than the
[defendant's] insistence that he was morally justified in his actions because [the
victim] had refused to pay him for merchandise and his insistence that the
shooting was accidental.").
The record does indicate that the defendant was thirty-two years old at the
time of his trial, had previously been married, and had a three-year-old child.
The defendant had previously worked as an insurance salesman, a cook, and a
bricklayer. These, circumstances, however, offer little in mitigation.
CONCLUSION
We find two remaining valid aggravating circumstances and either no
mitigating circumstances or mitigating circumstances of nominal weight. We find
that the prosecutor's argument did not emphasize the invalid aggravating
circumstance and no additional evidence was introduced to support the invalid
circumstance. Accordingly, we affirm the Court of Criminal Appeals judgment
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and hold that beyond a reasonable doubt the jury would have imposed a
sentence of death absent consideration of the invalid felony murder aggravating
circumstance. It appearing that the defendant is indigent, the costs of this
appeal are taxed to the State, for which execution may issue if necessary.
JANICE M. HOLDER, JUSTICE
Concurring:
Drowota and Barker, J.J.
Concurring and Dissenting:
Anderson, C.J. - See separate Concurring/Dissenting Opinion
Birch, J.
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