King v. State

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE FILED
April 12, 1999

TERRY LYNN KING ) FOR PUBLICATIONCecil Crowson, Jr.
) Appellate Court Clerk
Appellant, ) FILED: April 12, 1999
)
v. ) KNOX COUNTY
)
STATE OF TENNESSEE ) Hon. Mary Beth Leibowitz
)
Appellee. ) NO. 03S01-9801-CR-00001
)
) (Post Conviction, Capital)
)

For the Appellant: For the Appellee:

Charles W. Fels & John Knox Walkup
Wade V. Davies Attorney General & Reporter
Ritchie, Fels & Dillard
Knoxville, Tennessee Michael E. Moore
Solicitor General
Kenneth F. Irvine, Jr.
Eldridge, Irvine & Hendricks John P. Cauley
Knoxville, Tennessee Assistant Attorney General
Nashville, Tennessee

Randall Eugene Nichols
District Attorney General

OPINION

AFFIRMED BARKER, J.
 OPINION

We granted this post-conviction appeal to review the appellant’s conviction of

felony murder and the sentence of death based, in part, on the felony murder

aggravating circumstance. The appellant requests this Court to clarify the Howell

harmless error analysis used in State v. Hines, 919 S.W.2d 573, 583-84 (Tenn. 1995),

and to address whether the Howell analysis requires a comprehensive review of

cumulative errors in the record. The appellant also alleges ineffective assistance of

counsel and contends that his case should have been severed from his co-

defendant’s under Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162

(1987).

For the reasons that follow, we conclude that any Middlebrooks error in this

case, for use of the felony murder aggravating circumstance, was harmless beyond a

reasonable doubt. Although Howell requires us to review the record for factors that

may have influenced the imposition of the death sentence,1 we hold that such review

need not incorporate a comprehensive analysis of alleged cumulative errors. We find

no reversible error and affirm the judgments of the trial court and the Court of Criminal

Appeals.

BACKGROUND

The appellant’s criminal history reveals a pattern of violent behavior that has

ultimately lead him to a position on death row. In this case, the appellant and co-

defendant Randall Sexton2 were convicted of felony murder and aggravated robbery

1
State v. Ho well, 868 S.W .2d 238, 260-61 (Tenn . 1993).

2
Mr. Sexton was tried together with the appellant for the crimes against Ms. Smith. Mr. Sexton
was sentenced to life in prison plus a term of 125 years for his co nvictions. His appeal is not now before
this Cou rt.

2
of Diana K. Smith.3 The evidence at trial was that on July 31, 1983, the appellant and

Ms. Smith spent the afternoon together drinking beer, ingesting hallucinogenic drugs,

and engaging in sexual intercourse. At some point during the day, Ms. Smith accused

the appellant of raping her. The appellant responded that “he knew what he would

do,” whereupon he forced Ms. Smith into the trunk of her own car and drove to Mr.

Sexton’s residence. With Mr. Sexton following in a separate vehicle, the appellant

drove Ms. Smith to a remote location in Knox County. The appellant ordered Ms.

Smith to get out of the trunk and lie on the ground. He then shot her at close range in

the back of the head with Mr. Sexton’s high-powered rifle.

After the two men disposed of the body, they took Ms. Smith’s car and other

items that she had on her person. The body was discovered several days later in the

Asbury quarry in Knox County. During the police investigation, both the appellant and

Mr. Sexton made written statements to the police implicating themselves in the crime.

At the sentencing phase of trial, the jury sentenced the appellant to death

based upon four aggravating circumstances: (1) the murder was committed by the

appellant while he was engaged in committing rape, robbery, larceny, or kidnapping of

the victim; (2) the murder was especially heinous, atrocious, or cruel in that it involved

torture or depravity of mind; (3) the murder was committed for the purpose of avoiding,

interfering with, or preventing a lawful arrest or prosecution of the appellant; and (4)

the appellant was previously convicted of one or more felonies, other than the present

charge, whose statutory elements involve the use of violence to the person. Tenn.

Code Ann. § 39-2-203 (i) (7), (5), (6), and (2) (1982).

3
The appellant was also convicted of aggravated kidnapping based upon the same criminal
episode. The trial court granted a judgment of acquittal on that conviction.

3
 Following his unsuccessful direct appeal to this Court,4 the appellant filed a

post-conviction petition5 alleging, among other things, that he was convicted and

sentenced to death based in part on an invalid felony murder aggravator, that his trial

counsel were ineffective, and that his joint trial with Mr. Sexton violated Cruz v. New

York. In addition, he argued that he was entitled to a new trial and/or a new

sentencing hearing based upon cumulative errors in the record.

The trial court conducted an evidentiary hearing and dismissed appellant’s

post-conviction petition. The trial court found a Middlebrooks error based upon

appellant’s conviction of felony murder and the State’s use of the felony murder

aggravating circumstance. However, the court determined that the error was harmless

in light of the three remaining valid aggravating circumstances. On the joint trial issue,

the court found that even if Cruz v. New York applies retroactively, the joint trial with

Mr. Sexton was harmless error based upon the overwhelming evidence of appellant’s

guilt. Lastly, the court found that the appellant failed to prove that his counsel were

ineffective at trial or on direct appeal. The trial court found no reversible error and

held that appellant’s claim of cumulative error was without merit.

The Court of Criminal Appeals affirmed the judgment of the trial court. The

intermediate appellate court determined, however, that there was no Middlebrooks

error because the underlying felony used to support the felony murder conviction may

have differed from the felonies found by the jury to support the felony murder

aggravator. The court noted that the felony murder conviction was based upon the

kidnapping and murder of Ms. Smith. The possible underlying felonies listed to

support the felony murder aggravator were kidnapping, rape, larceny, and robbery.

4
State v. King, 718 S.W .2d 241 (Tenn. 1986).

5
The appellant filed his post-conviction petition under the pre-1995 Post Conviction Procedure
Act. Tenn. Code An n. § 40-30-101 to -124 (Repe aled 1995).

4
 Relying in part on this Court’s decision in State v. Hines, 919 S.W.2d 573, 583-

84 (Tenn. 1995), the intermediate appellate court concluded that the appellant was in

a class of death eligible offenders demonstrably smaller and more blameworthy than

the class addressed in Middlebrooks. The court, therefore, held that the use of the

felony murder aggravator was not error in this case.

DISCUSSION

In this post-conviction proceeding, the appellant has the burden of proving the

allegations in his petition by a preponderance of the evidence. State v. Benson, 973

S.W.2d 202, 207 (Tenn. 1998).6 The factual findings of the trial court are conclusive

on appeal unless the evidence preponderates against the judgment. Butler v. State,

789 S.W.2d 898, 899 (Tenn. 1990); State v. Buford, 666 S.W.2d 473, 475 (Tenn.

Crim. App. 1983).

I.

The appellant first contends that the Court of Criminal Appeals misapplied the

principles announced in Hines, 919 S.W.2d at 583-84, to determine that there was no

Middlebrooks error. He argues that the court effectively created a new non-statutory

aggravating circumstance that “the accused committed the murder in the course of

committing multiple felonies.”

It is now a well-known principle that when a defendant is convicted of first

degree murder solely on the basis of felony murder, the use of the felony murder

aggravating circumstance to support a death sentence, without more, fails to

6
Under the new post-conviction procedure act, petitioners have the burden of proving factual
allegations by clear and convincing evidence. Tenn. Code A nn. § 40-30-210(f) (1997).

5
sufficiently narrow the class of death-eligible offenders. State v. Middlebrooks, 840

S.W.2d 317, 346 (Tenn. 1992).7 The majority of the Court in Middlebrooks based that

decision upon a determination that the felony murder aggravator contains language

that is virtually identical to the statutory definition of felony murder. 8

At the time of the killing in this case, the felony murder aggravator read as

follows:

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

Tenn. Code Ann. § 39-2-203(i)(7) (1982). 9

In comparison, Tenn. Code Ann. § 39-2-202(a) (1982) defined first degree

felony murder as “every 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.”

7
There has been some question concerning whether the decision in Middlebrooks was required
under the cruel and unusual punishment provision of the federal constitution. Following Middlebrooks, a
majority of this Court has held that the Middlebrooks decision was ba sed inde pende ntly on Article I,
section 1 6 of the T ennes see C onstitution. State v. Bigbee, 885 S.W .2d 797, 8 16 (Te nn. 1994 ); How ell,
868 S.W.2d at 259 n.7.

8
Justice Drowota and former Justice O’Brien dissented as to the holding in Middlebrooks. See
840 S.W .2d at 347-350 (Drowota, J., dissenting).

9
The felony murder aggravator has since been amended to provide that, “[t]he murder was
knowingly committed, solicited, directed, or aided by the defendant, while the defendant had a
sub stan tial role in com mittin g or a ttem pting to co mm it, or wa s flee ing af ter ha ving a subs tantia l role in
committing or attempting to commit, any” of the enumerated felonies. Tenn. Code Ann. § 39-13-
204(i)(7) (Supp. 1995).

6
 The duplicative language in the above provisions has served as the basis for

finding Middlebrooks error in cases where the underlying felony used to support a

felony murder conviction was also used to support the felony murder aggravator. In a

case that followed Middlebrooks, however, this Court addressed for the first time

whether it was error to rely on the felony murder aggravator when an additional or

different felony supported the aggravating circumstance, but was not the underlying

felony for the felony murder conviction. State v. Hines, 919 S.W.2d 573 (Tenn. 1995).

The defendant in Hines was convicted of felony murder based upon the victim’s

death during the course of an armed robbery. Id. at 576. The jury sentenced the

defendant to death based in part on the felony murder aggravating circumstance. Id.

at 577.10 The felonies relied upon to support the felony murder aggravator were

robbery, larceny, and rape. Id. at 583.

The Court in Hines reiterated concern for applying aggravating circumstances

and any mitigating circumstances so as to narrow the class of death eligible offenders

in capital cases. Id. at 583. A majority of the Court11 determined, however, that when

a felony not underlying the felony murder conviction is used to support the felony

murder aggravator, there is no duplication, and hence the narrowing function is

sufficiently performed. Id. The majority held that absent any duplication, there is no

constitutional prohibition against the use of the felony murder aggravator to support

the imposition of the death penalty for a felony murder conviction. Id.

10
The jury also found that the defendant had been previously convicted of one or more felonies,
other than the present charge, which involve the use or threat of violence to the person, and that the
mur der was espec ially heinous, atro cious, or c ruel in that it involve d torture o r deprav ity of mind. Id.
(referring to Tenn. Code Ann . § 39-2-203(i)(2),(5) (1982)).

11
O’Brien , Sp., J. wro te for the m ajority, conc urred in by A nderso n, C.J., D rowota a nd Birch , J.J.
Form er Justice Reid diss ented. See Hines, 919 S.W .2d at 584 -88 (Re id, J., dissen ting).

7
 The majority in Hines noted that duplication may have occurred in that case

since armed robbery was the basis for the felony murder conviction and was also

included for the jury’s consideration of the felony murder aggravator. Id. The majority,

therefore, conducted the harmless error analysis under Howell to address the possible

Middlebrooks error. See Hines, 919 S.W.2d at 583-84.

The appellant’s case is remarkably similar to the circumstances in Hines. The

appellant was convicted of felony murder based upon his act of killing Ms. Smith

during the course of a kidnapping. The felonies relied upon to support the felony

murder aggravating circumstance were kidnapping, rape, larceny, and robbery.

The Court of Criminal Appeals relied on Hines to address whether the use of

the felony murder aggravator violated Middlebrooks. The court properly noted that the

jury may have relied on the felonies of rape, larceny, and robbery to impose the felony

murder aggravator, which would have avoided any duplication problem under

Middlebrooks. However, the court went further to conclude that there was no

Middlebrooks error since the appellant was engaged in multiple felonies at the time he

killed Ms. Smith. According to the court, the appellant was in a class of death-eligible

offenders smaller and more blameworthy than the class at issue in Middlebrooks.

We agree with the Court of Criminal Appeals that the appellant is a death

eligible offender. However, to the extent that the court found no Middlebrooks error,

we must respectfully disagree. As discussed in Hines, the mere fact that multiple

felonies were listed by the State to support the felony murder aggravator does not

eliminate the possible duplication error under Middlebrooks. Where, as in the instant

case, there is no clear showing of which felonies the jury considered to impose the

felony murder aggravator, we cannot presume that no Middlebrooks error occurred. In

appellant’s case, the jury may have relied on the kidnapping felony in part to convict

8
the appellant of felony murder and to find the felony murder aggravating circumstance.

If that occurred, then the use of the felony murder aggravator is error under

Middlebrooks.

On the premise that the jury improperly relied on the kidnapping felony at

sentencing, we shall conduct a Howell harmless error analysis. The Howell analysis

requires us to determine beyond a reasonable doubt whether the appellant’s sentence

would have been the same had the jury given no weight or consideration to the felony

murder aggravating circumstance. 868 S.W.2d at 260-62. It is important to examine

the entire record for the presence of factors which potentially influenced the sentence

imposed. These include, but are not limited to, the number and strength of remaining

valid aggravating circumstances, the prosecution’s argument at sentencing, the

evidence admitted to establish the felony murder aggravator, and the nature, quality,

and strength of any mitigating evidence. Id. at 261.

Our examination of the record in accordance with the foregoing principles

demonstrates that the use of the felony murder aggravator, if error, was harmless

beyond a reasonable doubt. The remaining three aggravating circumstances were

properly applied and strongly supported by the evidence.12 First, there is no dispute

that the appellant has prior felonious convictions that involve violence or threat of

violence to the person. See Tenn. Code Ann. § 39-2-203(i)(2) (1982). In 1983, the

appellant was convicted of felony murder and aggravating kidnapping based upon a

criminal episode in Grainger County. Moreover, he was convicted of assault with

intent to commit aggravated kidnapping for criminal conduct in Knox County that

occurred only three days after the murder of Ms. Smith.

12
It is important to note that under the law in effect at the time of this trial, a jury could have
imp ose d a se nten ce of deat h upo n find ing on ly one a ggra vating circu ms tanc e beyo nd a r eas ona ble
doubt, so long as there were no mitigating circumstances sufficiently substantial to outweigh the
aggravating circumstance. Tenn. Code. Ann. § 39-2-203(g) (1982). In this case, the jury found four
aggravating circumstances.

9
 The appellant argues that the (i)(2) aggravator was somehow tainted by the

State’s introduction of his juvenile convictions at the sentencing hearing. We

disagree. As this Court determined on direct appeal, the introduction of the juvenile

records, while improper, had no bearing on the outcome of appellant’s trial. His prior

convictions as an adult reflect complete disregard for human life and strongly support

the (i)(2) aggravator. The use of the juvenile record was harmless, and the (i)(2)

aggravator was properly used to impose the death sentence.

Second, as the appellant admitted both before trial and at the sentencing

hearing, he kidnapped and murdered Ms. Smith to avoid an allegation and possible

charge of rape. See Tenn. Code Ann. § 39-2-203(i)(6). The evidence at trial reflected

that the appellant spent the afternoon with Ms. Smith drinking alcohol, ingesting drugs,

and having sexual intercourse. At some point, Ms. Smith asked the appellant why he

had raped her. There is no dispute that appellant’s subsequent criminal conduct

against Ms. Smith was a reaction to Ms. Smith’s accusation.

The appellant nevertheless contends that the (i)(6) aggravator was tainted by

the testimony of appellant’s ex-girlfriend, Lori Eastman Carter. Ms. Carter testified

during the guilt phase that the appellant had previously assaulted her and attempted

to kill her. On direct appeal, this Court determined that the testimony should have

been excluded as irrelevant, but that any error was harmless beyond a reasonable

doubt. The appellant now claims that the testimony improperly served as the factual

basis for the (i)(6) aggravator. We disagree. The appellant’s own admissions fully

support the aggravator without any consideration of Ms. Carter’s testimony. There

was no error in the jury’s finding of that aggravator.

Third, the jury found that the murder was especially heinous, atrocious, and

cruel in that it involved torture or depravity of mind. See Tenn. Code Ann. § 39-2-

10
203(i)(5). The appellant argued on direct appeal and contends now that this

aggravator is invalid because the trial court did not define “torture.” In the direct

appeal, this Court held that there was no prejudicial error in the trial court’s charge on

the (i)(5) aggravator. The appellant offers no valid reason why that determination

should be disturbed now.

As the Court of Criminal Appeals noted, the evidence supports the jury’s finding

that the murder was especially heinous, atrocious, and cruel. The appellant kept Ms.

Smith trapped in the trunk of her own car for at least forty-five (45) minutes before the

shooting. After driving to the remote wooded area, the appellant ordered Ms. Smith to

get out of the trunk and lie face down in the weeds. The appellant had the rifle in his

possession and began placing brush on top of Ms. Smith. She begged him not to

shoot her and offered money to spare her life. When she asked about her fate, the

appellant responded that other guys were coming to have sexual intercourse with her.

The appellant ordered Ms. Smith to look away from him while she was lying in

the weeds. He then shot her at close range in the back of the head. We agree with

the courts below that the manner of Ms. Smith’s death involved severe mental pain

and anxiety as contemplated by the (i)(5) aggravator and as defined by this Court in

State v. Williams, 690 S.W.2d 517, 529 (Tenn. 1985).

The next step under the Howell analysis is to review whether the prosecution

placed undue emphasis on the felony murder aggravator during the closing argument

at sentencing. The record reflects that the prosecution referred to four aggravating

circumstances during his closing argument. He emphasized the manner in which the

jury was to consider and weigh the aggravating circumstances together with any

evidence of mitigation. In briefly discussing the aggravators, the prosecution

mentioned the felony murder aggravator only once in the context of the closing

11
argument. No more weight or emphasis was given to that aggravator than was given

to the other three aggravating circumstances.

Moreover, aside from evidence at the guilt phase of trial, no additional evidence

was submitted by the prosecution to establish the felony murder aggravator. At the

sentencing hearing, the prosecution presented evidence only of appellant’s previous

convictions in Grainger County and Knox County. Therefore, we conclude that the

prosecution did not rely unduly or introduce improper evidence concerning the felony

murder aggravator at sentencing.

Lastly, under Howell, we must review the nature, quality, and strength of any

mitigating evidence in appellant’s case. At the sentencing hearing, the appellant relied

on four mitigating circumstances: (1) the murder was committed while the appellant

was under the influence of extreme mental or emotional disturbance; (2) the victim

was a participant in the appellant’s conduct or consented to the act; (3) the appellant

was only twenty-one years old at the time of the crime; and (4) the capacity of the

appellant to appreciate the wrongfulness of his conduct or to conform his conduct to

the requirements of the law was substantially impaired as a result of mental disease or

defect or intoxication which was insufficient to establish a defense to the crime but

which substantially affected his judgment. Tenn. Code Ann. § 39-2-203(j)(2), (3), (7),

(8) (1982).

The appellant emphasized the detrimental effects of alcohol abuse and mind

altering drugs, such as LSD and quaaludes. There was evidence that the appellant

had been taking those substances on the day of the murder. Also, the appellant

presented evidence of his social history through his own testimony and the testimony

of family members, a childhood friend, and a guidance counselor from his former high

school. The evidence showed that the appellant suffered emotional trauma and

12
became involved in excessive drug use at an early age, following the death of his

father. By the age of fourteen, the appellant was a regular user of cocaine, valium,

and alcohol. He had a poor academic record during his school years and he dropped

out of high school after failing the ninth grade.

The jury considered the above evidence and found beyond a reasonable doubt

that it did not outweigh the strong showing of aggravating circumstances. After our

independent review of the record, we are confident that the weighing of the mitigating

evidence against the three remaining aggravators would have resulted in the same

sentence of death. Accordingly, we conclude that appellant’s sentence of death would

have been the same had the jury given no weight or consideration to the felony

murder aggravator and affirm the capital sentence.

II.

We shall next address whether the Howell analysis requires a comprehensive

review of the cumulative effect of errors in the record, including errors that have

already been previously determined, or waived, on direct appeal. The appellant

contends that there are numerous “harmless” errors in the record, that when

considered cumulatively and in the context of Howell, render his death sentence

fundamentally unfair and invalid.

The appellant essentially asks this Court to conduct a harmless error analysis

within the context of the Howell harmless error analysis. This we decline to do. As we

discussed above, the Howell analysis is conducted in cases where the jury’s

consideration of the felony murder aggravator constitutes error under Middlebrooks.

The crux of the Howell analysis is to review the record to determine whether the

13
appellant’s sentence of death is appropriate based upon the relative strengths and

weaknesses of the valid aggravating circumstances and any mitigating circumstances.

We focus upon those circumstances, including the evidence used to support them,

and determine beyond a reasonable doubt whether the sentence would have been the

same had the jury given no weight or consideration to the felony murder aggravator.

In conducting the Howell analysis, courts must conduct an intensive review of

the sentencing phase of trial to address the strength of the remaining aggravating

circumstances, the nature, quality and strength of any mitigating evidence, the

prosecution’s argument at sentencing, and the evidence used to establish the felony

murder aggravator. Assignments of error concerning the above factors are certainly

relevant to the analysis under Howell.

We have conducted the Howell analysis in this case, addressing the alleged

errors as to the remaining aggravating circumstances and other factors at sentencing.

Based upon our review, we concluded beyond a reasonable doubt that the appellant’s

sentence would have been the same regardless of the felony murder aggravator.

That deliberate process has been approved by this Court in Howell and Hines to

preserve the principles of individualized sentencing and to ensure that the appellant is

a death-eligible offender. We find no reason to modify that analysis here.

The Howell decision was never intended to be a vehicle for reviewing or

relitigating harmless errors or errors that have been previously determined or waived.

Particularly, in post-conviction proceedings, courts must adhere to the limitations set

forth in the Post-Conviction Procedure Act. Under the Act of 1989, a post-conviction

hearing may extend to “all grounds the petitioner may have, except those grounds

which the court finds should be excluded because they have been waived or

previously determined.” Tenn. Code Ann. § 40-30-111 (Repealed 1995).

14
 A ground for relief is “‘waived’ if the petitioner knowingly and understandingly

failed to present it for determination in any proceeding before a court of competent

jurisdiction in which the ground could have been presented.” Tenn. Code Ann. § 40-

30-112(b)(1).13 A ground for relief has been “‘previously determined’ if a court of

competent jurisdiction has ruled on the merits after a full and fair hearing.” Tenn.

Code Ann. § 40-30-112(a).

With those principles in mind, we decline to give comprehensive review to any

errors that were adjudicated on direct appeal or errors that the appellant could have,

but did not raise until this proceeding. Having determined that any sentencing error is

harmless beyond a reasonable doubt, we again conclude that appellant’s sentence of

death should stand.

III.

The appellant next contends that the trial court’s refusal to sever his case from

Mr. Sexton’s was prejudicial error requiring a reversal of his conviction under Cruz v.

New York. Neither the appellant nor Mr. Sexton testified during the guilt phase of trial.

The State, however, introduced into evidence a written confession made by each

defendant during the police investigation. The trial court instructed the jury that each

confession could be considered as evidence only against the confessor. The

appellant argues that the admission of Mr. Sexton’s confession violated his

Confrontation Clause rights and constitutes reversible error under Cruz.

In the direct appeal, this Court upheld the admission of Mr. Sexton’s confession

based on the United States Supreme Court’s decisions in Bruton v. United States, 391

13
Section (b)(2) further provides that “[t]here is a rebuttable presumption that a ground for relief
not raised in any such procee ding whic h was h eld was w aived.” T enn. Co de Ann . § 40-30 -112(b) (2).

15
U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and Parker v. Randolph, 442 U.S.

62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979). The well-established rule from Bruton is

that a defendant is deprived of his Confrontation Clause rights when a codefendant’s

incriminating confession is introduced at their joint trial, even if the jury is instructed to

consider that confession only against the codefendant. In Parker, the Supreme Court

modified the reach of Bruton where multiple defendants in a joint trial each have a

confession that is introduced into evidence. The Court held that there was no

Confrontation Clause violation under Bruton if the defendant’s own confession recited

essentially the same facts as the confession of the nontestifying codefendant. 442

U.S. at 73, 99 S.Ct. at 2140.14

Relying on the decision in Parker, this Court examined the confessions of both

the appellant and Mr. Sexton and determined that they were “interlocking in the crucial

facts of time, location, felonious activity, and awareness of the overall plan or scheme”

of the killing. This Court, therefore, held that there was no Bruton violation and that

the trial court did not err in denying the severance motion under Rule 14(c) of the

Tennessee Rules of Criminal Procedure.

Following appellant’s direct appeal, the United States Supreme Court decided

the case of Cruz v. New York. In Cruz, the Court overruled the “interlocking”

confession exception in Parker, reasoning that a codefendant’s confession may be

“devastating” 15 to the defendant and violative of the Confrontation Clause, even if it

overlaps material facts in a confession made by the defendant. Cruz, 481 U.S. at 193,

14
A plurality of the Court in Parker reasoned that when the defendant has confessed to the
crime, his case is already “devastated,” so that the codefendant’s confession “will seldom, if ever, be of
the ‘devastating’ character referred to in Bruton,” and impeaching the codefendant’s confession on
cross-exam ination “would likely yield small advantage.” Parker, 442 U.S . at 73, 99 S .Ct. at 213 9.

15
The Court acknowledged that the codefendant’s confession may actually enhance the
reliability of the defendant’s confession, and increase the likelihood of a conviction, where the two
confes sions ar e interlock ing. Cruz, 481 U.S . at 193, 10 7 S.Ct. at 1 719.

16
107 S.Ct. at 1719. The Court, therefore, held that “where a nontestifying

codefendant’s confession incriminating the defendant is not directly admissible against

the defendant, ... the Confrontation Clause bars its admission at their joint trial, even if

the jury is instructed not to consider it against the defendant, and even if the

defendant’s own confession is admitted against him.” Id.

The appellant requests this Court to apply Cruz retroactively and to hold that

the admission of Mr. Sexton’s confession was constitutional error. Having carefully

reviewed the progeny of cases under Bruton, we find it unnecessary to determine

whether Cruz has retroactive application in this case. We are confident that even

under the principles of Cruz, the admission of Mr. Sexton’s confession was harmless

beyond a reasonable doubt. Schneble v. Florida, 405 U.S. 427, 432, 92 S.Ct. 1056,

1060, 31 L.Ed.2d 340 (1972); Harrington v. California, 395 U.S. 250, 254, 89 S.Ct.

1726, 1728-29, 23 L.Ed.2d 284 (1969); State v. Porterfield, 746 S.W.2d 441, 446

(Tenn. 1988), cert. denied, 486 U.S. 1017 (1988).

Mr. Sexton’s written confession described his involvement in the killing from the

time the appellant arrived at his residence with Ms. Smith locked in the trunk of her

own car. In his confession, Mr. Sexton stated that the appellant was not going to

release Ms. Smith because he was afraid “he would get in the same mess he got into

with Lori [Eastman Carter].” Mr. Sexton admitted that the appellant took his high-

powered rifle and that the two men drove separately out to a rural area in Knox

County.

Before reaching their destination, both Mr. Sexton’s vehicle and the vehicle

driven by the appellant ran out of gasoline. In his confession, Mr. Sexton stated that

he purchased five (5) dollars of gasoline for his car and five (5) dollars of gasoline in a

17
separate container for Ms. Smith’s car. The two men then drove a few miles up the

road to a wooded area where the shooting was to occur. Mr. Sexton’s confession

describes in pertinent part:

I left and took a funnel back to the Publix station and got me a Coke. I
drove back down to the creek and drove into the wooded area. I saw the
Camaro. It was stuck. I helped [the appellant] get it unstuck. Terry told
me he had already killed the girl. Terry told me he laid the girl down on
her stomach, and that while she was begging for him not to, he shot her
in the back of the head. Terry told me he had covered the body up with
some weeds.

Having carefully reviewed the written confessions made by the appellant and

Mr. Sexton, we again note that they are substantially similar as to the facts and

circumstances involving the murder. The appellant’s confession, however, contains

greater detail concerning the actual shooting. His confession provides in pertinent

part:

I pulled up in a wooded area and got stuck. I made the girl get out of the
trunk. I had loaded the rifle and was pointing it at her. This [sic] was
daylight. And I took the girl over into some weeds and made her lay
down. She asked me what I was going to do, if I was going to kill her. I
said, no, some more guys are going to screw you. I started covering her
up with weeds. I told her this was so she couldn’t be seen. I still had the
gun. She was laying facedown. I picked up the rifle, held it
approximately 3 feet from the back her head and shot her. [Mr. Sexton]
wasn’t there. We got the [victim’s car] unstuck after [Mr. Sexton] came
back. We then went through her personal belongings. I burned her
pictures and I.D. and panties. [Mr. Sexton] walked over and looked at
her. We started to leave, but decided to bury her. We started digging a
grave next to the fence, but the ground was too hard, and we quit. We
discussed what to do and decided to wrap her in a tent [Mr. Sexton] had
in the back of his car, [sic] weight her and put her in the water. We
decided we would do it the next morning.

It is clear that the admission of Mr. Sexton’s confession into evidence would

have constituted a Bruton violation under the rationale of Cruz. Nevertheless, the

mere finding of a Bruton error in the course of the trial “does not automatically require

reversal of the ensuing criminal conviction.” Schneble, 405 U.S. at 430, 92 S.Ct. at

18
1059. In cases where the properly admitted evidence of guilt is overwhelming, and

the prejudicial effect of the codefendant’s confession is insignificant by comparison,

then the improper admission is harmless beyond a reasonable doubt. Id. See also

Porterfield, 746 S.W.2d at 446.

In this case, the objective evidence against the appellant was overwhelming.

Jerry Childers, an acquaintance of the appellant, testified that the appellant came to

his house on August 1, 1983, to inquire if he knew anyone who wanted to buy parts

from a 1979 Camaro. Mr. Childers testified that the appellant confessed to having

killed the woman who owned the Camaro after she threatened to charge him with

rape.16 The appellant told Mr. Childers that he ordered the woman to get out of the

trunk of her own car and to lie face down on the ground. The woman begged the

appellant not to shoot her and offered him money. The appellant told Mr. Childers that

he told the woman to turn away from him, and when she complied, he shot her in the

back of the head.

Mr. Childers testified that a few days after talking to the appellant, he went to

the location where appellant had said the shooting occurred. While walking in the

area, he found an object with hair on it. He then gave the information he had to

Detective Herman Johnson of the Knox County Sheriff’s Department and to Agent

David Davenport with the Tennessee Bureau of Investigation. The two officers met

Mr. Childers at the professed shooting location and searched the area, finding pieces

of bone, hair, and bloodstains. A later more thorough search revealed bullet

fragments and additional bone fragments.17

16
The appellant testified at the post-conviction hearing that he had told four people about the
shooting , including M r. Childers , before h e was q uestione d by police.

17
Additional evidence was provided by Agent Davenport and Tommy Heflin, a firearms examiner
for th e T.B .I. Age nt Da venp ort tes tified th at afte r the a ppe llant m ade a sta tem ent, a ppe llant to ok h im
and othe r offic ers to the p lace whe re the Cam aro w as hid den and t o wh ere h e had hidde n the vehic le’s
license plate. Also, appellant showed the officers where the shooting occurred a nd where he and M r.

19
 There is no question that the evidence of appellant’s guilt was overwhelming

even without consideration of the two written confessions. Considering the above

evidence, coupled with appellant’s properly admitted confession, any Bruton error was

harmless beyond a reasonable doubt.

IV.

The appellant next contends that he received ineffective assistance of counsel

at both the trial and the direct appeal. To prevail on a claim of ineffective counsel in

this proceeding, the appellant must prove by a preponderance of the evidence that the

advice given or services rendered by his counsel fell below the range of competence

demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 903, 936

(Tenn. 1975). He must also demonstrate prejudice by showing a reasonable

probability that but for counsels’ error, the result of the trial proceeding would have

been different. Strickland v. Washington, 466 U.S. 669, 687, 104 S.Ct. 2052, 2064,

80 L.Ed.2d 674 (1984); Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996).

The appellant first claims that his trial counsel abandoned the defense theory of

voluntary intoxication after having introduced it to the jury during the opening

statement.18 Defense counsel Robert Simpson stated during his opening remarks that

Ms. Smith willingly spent time with the appellant and appellant’s cousin, Don King, on

the day of the killing. While at Don King’s trailer, the three drank large quantities of

Sexton had submerged the body in the quarry. Mr. Heflin testified that, based upon his examination, at
least two bullets had been fired from a rifle with the same firing characteristics as Mr. Sexton’s rifle. He
further s tated that th e intact m etal bullet jack et found at the sce ne had been fired from Mr. Sex ton’s rifle.

18
The a ppellant w as repre sented at trial by attorneys Robe rt R. Sim pson a nd Jos eph M . Tipton.
Mr. T ipton has b een a res pec ted ju dge on th e Te nne sse e Co urt of Crim inal A ppe als sin ce 19 90. H e did
not testify at the post-conviction hearing.

20
alcohol and ingested various mind-altering drugs, including LSD and quaaludes.

Counsel stated that:

We think the proof will show that whatever happened to Mrs. Smith, Mr.
King’s involvement was the product of an incredible quantity of
intoxicants. And we think the proof will show that he cannot be held
legally responsible for all of his actions to the degree the State would ask
you, simply because of the vast quantities of intoxicants that he
consumed. And the proof is going to be very clear on that point.

During the guilt phase of trial, proof of appellant’s alcohol and drug

consumption was admitted into evidence through the testimony of Jerry Childers19 and

the admission of appellant’s police confession. Counsel Simpson testified at the post-

conviction hearing that he did not call Don King to testify at the guilt phase because he

strategized that Don King’s testimony would hurt the defense.20 Moreover, counsel

stated that he decided to abandon the use of voluntary intoxication to defend

appellant’s actions after the testimony of appellant’s ex-girlfriend, Lori Eastman Carter.

Ms. Carter testified for the prosecution, over the objection of defense counsel,

that the appellant had attempted to kill her on October 13, 1982. According to Ms.

Carter, the appellant hit her with a slapstick numerous times while repeatedly asking

her “how it felt to be dying, so that the next woman he killed he would know how she

felt.” Ms. Carter testified that the appellant was sober when he attacked her with the

slapstick.

Counsel Simpson testified at the post-conviction hearing that Ms. Carter’s

testimony was unexpected and devastating to appellant’s case. Counsel had

19
Mr. Childers was an acquaintance of the appellant. He testified at trial that the appellant came
to his house on August 1, 1983, to inquire whether he would purchase automotive parts from a 1979
Camaro. During his visit, the appellant told Mr. Childers that he had killed the owner of the vehicle after
she threatened to charge him with rape. The appellant confessed the de tails of the killing to Mr.
Childers , including the events th at prece ded the c rime.

20
The appellant had apparently confessed his involvement in the murder to Don King.

21
attempted to contact Ms. Carter for an interview before trial, but was unable to locate

her. During appellant’s case in chief, counsel attempted to rebut her testimony by

calling appellant’s cousin, James King, who testified that he and the appellant had

taken Ms. Carter to St. Mary’s Hospital for treatment. In addition, the defense called

Karen Greeg, Ms. Carter’s sister, who testified that Ms. Carter could not be believed,

even under oath.

Counsel Simpson testified that the theory of voluntary intoxication was

rendered futile after Ms. Carter’s testimony. Counsel decided to challenge Ms.

Carter’s credibility during the guilt phase of trial and to rely on the evidence of

intoxication during the sentencing.

The appellant relies on State v. Zimmerman, 823 S.W.2d 220, 224-26 (Tenn.

Crim. App. 1991), to argue that the change in the defense theory constituted

ineffective assistance of counsel. His reliance on that decision is misplaced. In

Zimmerman, the defense theorized initially that the defendant was a battered and

abused wife who had killed her husband in self defense. Id. at 224. Opening

statements were made to the jury based upon that theory, and the defense planned to

call the defendant as a witness. Id. at 224-25.

During the course of the trial, however, counsel advised the defendant to “shut

down” the defense and to decline from testifying. Id. Zimmerman’s counsel

apparently reasoned that a conviction was inevitable, even though no surprise or new

evidence had been presented by the State. Id. The Court of Criminal Appeals held

that the sudden change in defense strategy constituted ineffective assistance of

counsel under the circumstances of that case. Id. at 224. The court particularly noted

that nothing changed or transpired during the course of trial to warrant counsel’s

peremptory abandonment of the sound defense theory. Id. at 224, 226.

22
 In appellant’s case, Counsel Simpson testified that he revised the defense

theory solely in response to the surprise testimony of Ms. Carter. Counsel objected to

the introduction of her testimony, but was forced to deal with it after the trial court

allowed it into evidence. Although we acknowledge that defense attorneys should

strive to present a consistent theory of defense at trial, we must avoid judging the

tactical decisions of counsel in hindsight. Strickland, 466 U.S. at 689, 104 S.Ct. at

2065; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). We have reviewed the

circumstances from counsel’s perspective at the time and conclude that the change in

strategy does not rise to the level of ineffective assistance.

The appellant next contends that his counsel were ineffective in failing to obtain

the assistance of mental health experts in a timely fashion. Counsel Simpson testified

that he began the process of locating a mental health expert on January 9, 1985. At

that time, the trial was set to begin on January 21, 1985, but was subsequently

postponed to January 23, 1985, due to weather. Counsel obtained the services of Dr.

Martin Gebrow, a psychiatrist, on January 15, 1985, and the doctor evaluated

appellant on the first day of trial. 21 Counsel subsequently made a strategic decision

not to use Dr. Gebrow’s evaluation because the appellant had initially lied about the

circumstances of the murder22 and because Dr. Gebrow opined that the appellant was

an impulsive person who enjoyed hurting people.

21
Dr. Gebrow retained the services of a psychologist, Dr. David Mindes, to conduct neurological
testing of the appellant. Those results were included in the evaluation report submitted to defense
counsel by Dr. Gebrow.

22
At the time of the evaluation, the appellant claimed that Mr. Sexton was responsible for the
death of Ms. Smith. The appellant and Mr. Sexton had fabricated this false version of the crime through
a suicide letter that Mr. Sexton had left in his jail cell at the Fort Pillow State Prison. In the letter, Mr.
Sexton confes sed tha t he was the killer and that the ap pellant wa s not res ponsible for Ms. S mith’s d eath.
Mr. Sexton’s suicide attempt failed, and both he and the appellant eventually admitted that the
inform ation in the lette r was fa lse.

23
 Counsel Simpson testified at the post-conviction hearing that the defense was

unable to obtain a second opinion due to the time constraints of trial. Counsel instead

relied upon their own investigation of the appellant, including appellant’s familial

relations and his social history. Through the testimony of appellant’s family and

friends,23 the defense presented evidence that the appellant suffered emotional

trauma arising from the death of his father when appellant was eight (8) years old.

The appellant became involved in harmful activities, including sniffing gasoline and

alcohol abuse, at an early age. By the age of fourteen (14), he was a regular user of

alcohol, LSD, cocaine, and valium. His scholastic record was poor and he dropped

out of high school after failing the ninth grade.

Dr. Robert Booher, a medical doctor specializing in “addictionology,” testified for

the defense regarding the harmful effects of LSD and other hallucinogenic drugs.

Defense counsel intended to use Dr. Booher’s testimony together with evidence that

the appellant had taken LSD and quaaludes on the day of the killing. The evidence

supported part of the defense’s mitigation theory that the murder was committed while

the appellant was under an extreme mental disturbance and that appellant’s capacity

to appreciate the wrongfulness of his actions was substantially impaired by mental

disease, defect or intoxication. Tenn. Code Ann. § 39-3-203 (j)(2), (8) (1982).

The appellant argues that the mitigating evidence could have been

strengthened if his counsel had initiated the mental health evaluations earlier before

the start of trial. He relies on the testimony of psychologist Dr. Pamela Auble, who

conducted a mental evaluation of him after his convictions.

23
Defense witnesses in that regard included the appellant, his mother, his brother, a childhood
friend, and a guidance counselor from appellant’s former high school. Additional witnesses for the
defense during the sentencing ph ase were Dr. Rob ert Booher and two correctional officers from the Fort
Pillow State Prison.

24
 Dr. Auble testified at the post-conviction hearing that the appellant is an

impulsive, immature person who has difficulty trusting other people. She opined that

based upon appellant’s experiences as a child, he also has a strong sense of

insecurity and often perceives other people as being hostile towards him. This

impulsive and insecure nature, according to Dr. Auble, does not necessarily lead the

appellant to act violently. However, she opined that when the appellant is confronted

with a stressful situation, he is unable to think clearly before reacting. Dr. Auble

further stated that appellant’s impulsive behavior is exacerbated by his abuse of drugs

and alcohol.

Based upon Dr. Auble’s review of the facts in this case, she opined that the

appellant unleashed a lifelong build-up of anger and hostility when Ms. Smith accused

him of rape.24 Dr. Auble testified that the appellant probably looked to Mr. Sexton for

advice and then carried out the killing because of his impulsive nature and poor

judgment.

The trial court reviewed Dr. Auble’s testimony and determined that her

evaluation provided little information in addition to that previously discovered by Dr.

Gebrow. The trial court concluded, therefore, that even if defense counsel had

initiated the mental health evaluations earlier, there was no proof that a more

favorable report would have been obtained. We find no evidence to preponderate

against that finding. Moreover, the record reflects that counsel presented evidence

24
Dr. A uble t estifie d tha t there were three reas ons why th e rap e acc usa tion trig gere d app ellant ’s
anger: (1) the appellant was fearful of rejection relating back to the death of his father; (2) his sister-in-
law had accused h im of rape when h e was a juvenile; and (3) he had been involved in an abus ive
relationsh ip with his ex -girlfriend, Lo ri Eastm an Ca rter.

25
through lay witnesses that was remarkably similar to the information provided by Dr.

Auble. Appellant’s counsel were not ineffective on this issue.25

The appellant next contends that his counsel were ineffective in failing to

thoroughly investigate Ms. Smith’s past. According to appellant, counsel should have

discovered public records concerning a prior false allegation of rape made by Ms.

Smith.

Counsel Simpson testified at the post-conviction hearing that he investigated

Ms. Smith’s past and her involvement with the appellant before the killing. He stated

that he did not rely heavily on Ms. Smith’s past because he did not want the jury to

focus on her as a victim. Counsel was aware that Ms. Smith had lived in McMinn

County, but he had no information concerning her prior rape allegation.

We agree with the Court of Criminal Appeals that the prior rape allegation

would not have benefited the appellant at trial. If anything, the information would have

strengthened the prosecution’s evidence of motive against him. Moreover, Ms.

Smith’s character was not at issue, and there has been no showing that information of

her prior rape allegation would have been admissible. Therefore, we cannot say that

defense counsel were ineffective for failing to discover it.

The appellant next argues that his counsel were ineffective for failing to ensure

the recording of all bench conferences during trial. Counsel Simpson testified that he

mistakenly believed the bench conferences were being recorded throughout the trial.

25
We further note that portions of Dr. Auble’s testimony supported the State’s theory that the
appellant committed the murder to avoid prosecution for rape. It is questionable whether defense
counsel would have used that information even if it had been available.

26
Only a few of the numerous bench conversations between counsel and the trial judge

were preserved for the record.

The State concedes that counsels’ failure to preserve all of the bench

conferences was an instance of deficient performance. The State argues, however,

that the appellant has not demonstrated any prejudice as a result of the deficiency.

We agree. In order to demonstrate prejudice here, the appellant must show a

reasonable probability that one or more of the unrecorded bench conferences resulted

in an adverse ruling that constituted reversible error. The appellant has not satisfied

that burden. Accordingly, this issue is without merit.

The appellant next contends that counsel should have called him as a witness

at the pre-trial suppression hearing. Counsel Simpson testified that appellant’s value

and credibility as a witness was seriously undermined by his violent criminal history.

Based upon that premise, counsel believed that any benefit from allowing the

appellant to testify at the suppression hearing would have been outweighed by the risk

of consequences from the prosecution’s in-depth cross-examination. Counsel testified

that he wanted to make the prosecution wait until trial before taking a crack at the

appellant.

As correctly noted by both the trial court and the Court of Criminal Appeals,

counsel made a tactical decision not to call the appellant as a witness at the

suppression hearing. We will not second guess that strategy on appeal with the

benefit of twenty-twenty hindsight. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065;

Hellard, 629 S.W.2d at 9. Counsel made a calculated decision, and there has been

no showing of ineffectiveness.

27
 The appellant next contends that his counsel were ineffective in failing to object

to the admission of Mr. Sexton’s suicide letter at the sentencing hearing. Mr. Sexton

had written the letter in contemplation of suicide while he and the appellant were

incarcerated at the Fort Pillow State Prison.26 During the cross-examination of Mr.

Sexton at the sentencing hearing, the State introduced the letter into evidence.

Mr. Sexton testified that he had discussed the contents of the letter with the

appellant prior to writing it, and that the appellant had encouraged him to include a

statement that he, Mr. Sexton, was responsible for Ms. Smith’s death, not the

appellant. Appellant’s counsel relied on the letter in his closing argument to

undermine Mr. Sexton’s credibility and to demonstrate that the appellant had not used

the letter as a defense. Counsels’ strategy in part was to show that the appellant had

admitted to the killing and was remorseful.

We agree with the Court of Criminal Appeals that counsel made a tactical

decision to use the suicide letter, not only to attack Mr. Sexton’s credibility, but to

bolster the credibility of the appellant. Again, we decline to second guess the strategy

chosen by defense counsel. Counsel knew about the suicide letter before trial and

chose to use it during the sentencing phase to undermine the testimony of Mr. Sexton.

The appellant further contends that his counsel were ineffective for failing to

challenge on direct appeal the State’s improper use of a dismissed juvenile charge

during the sentencing phase of trial. At sentencing, the State cross-examined the

appellant as to his criminal conduct as a juvenile.27 His juvenile record revealed two

26
The lette r was fo und at the prison fa cility after Mr. Se xton attem pted to co mm it suicide.

27
As mentioned above, the State also introduced appellant’s criminal record as an adult. The
appellant had a prior conviction of felony murder, aggravated kidnapping, and joyriding. Also, he was
convicted of assault with the intent to commit aggravated kidnapping based upon a criminal episode that
occurr ed three days after th e mu rder of M s. Sm ith.

28
armed robbery convictions and a dismissed charge of rape. Appellant’s counsel

challenged on direct appeal the admission of the two armed robbery convictions, but

apparently omitted the State’s use of the dismissed rape charge.

This Court has previously held that there is no constitutional requirement for an

attorney to raise every issue on appeal. Campbell v. State, 904 S.W.2d 594, 596-97

(Tenn. 1995). See also Jones v. Barnes, 463 U.S. 745, 750-51, 103 S.Ct. 3308,

3312, 77 L.Ed.2d 987 (1983). “Generally, the determination of which issues to

present on appeal is a matter which addresses itself to the professional judgment and

sound discretion of appellate counsel.” Cooper v. State, 849 S.W.2d 744, 747 (Tenn.

1993). Counsel is given considerable leeway to decide which issues will serve the

appellant best on appeal, and we should not second guess those decisions here.

Campbell, 904 S.W.2d at 597.

Counsel Simpson testified that the defense carefully examined the trial record

and listed every issue that might have merit on appeal. Counsel included a challenge

on direct appeal to the State’s use of the armed robbery convictions, and this Court

held that admission to be harmless error. Under those circumstances, we cannot say

that counsels’ omission of the dismissed rape charge was ineffective.

CONCLUSION

Based upon the foregoing, we conclude that any Middlebrooks error in this

case, for use of the felony murder aggravator, was harmless beyond a reasonable

doubt. We have addressed the concerns of individualized sentencing under

Middlebrooks and Howell and conclude that the appellant was properly sentenced to

29
death. Finding no reversible error, we affirm the judgments of the trial court and the

Court of Criminal Appeals.

Unless stayed by this Court or other appropriate authority, the appellant’s

sentence of death shall be carried out as provided by law on the 16th day of August,

1999.

______________________________
WILLIAM M. BARKER, JUSTICE

Concur:

Anderson, C.J.,
Drowota, Birch, Holder, JJ.

30