IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
FILED
January 5, 1998
FOR PUBLICATION
Cecil Crowson, Jr.
Appe llate Court C lerk
STATE OF TENNESSEE, ) Filed: January 5, 1998
)
Appellee, )
) SHELBY CRIMINAL
)
Vs. )
) HON. JOSEPH B. McCARTIE,
) JUDGE
MICHAEL JOE BOYD, )
)
Appellant. ) No. 02-S-01-9611-CR-00102
For Appellant: For Appellee:
Paul J. Morrow, Jr. John Knox Walkup
Office of the Post-Conviction Attorney General & Reporter
Defender
Nashville, Tennessee Michael E. Moore
Solicitor General
Daniel A. Seward
Memphis, Tennessee Kathy Morante
Deputy Attorney General
Nashville, Tennessee
At Trial:
John W. Pierotti
District Attorney General
Terry Harris
Assistant District Attorney
Memphis, Tennessee
OPINION
AFFIRMED. ANDERSON, C.J.
The issue in this post-conviction death penalty appeal is whether the jury’s
reliance on an invalid aggravating circumstance was harmless error, or whether
resentencing is required because there is reasonable doubt that the sentence
would have been the same had the jury given no weight to the invalid
aggravating factor. The jury relied on a valid aggravating factor, that the
defendant had a prior conviction for a violent felony offense (second-degree
murder), and an invalid aggravating circumstance, that the victim was killed
during the commission of a felony. 1
A majority of this Court held in State v. Middlebrooks, 840 S.W.2d 317
(Tenn. 1992), that the felony murder aggravating factor found in Tenn. Code
Ann. § 39-2-203(i)(7) duplicates and mirrors the elements of the offense of felony
murder and therefore, when applied as an aggravating factor to a felony murder
conviction, it fails to narrow the class of death eligible defendants as is required
by article I, § 16 of the Tennessee Constitution.2 After conducting a harmless
error analysis, however, both the trial court and the Court of Criminal Appeals
concluded beyond a reasonable doubt that under the facts of this case the
sentence would have been the same had the jury given no weight to the invalid
aggravating factor. Both courts denied the post-conviction petition. We agree
and affirm the Court of Criminal Appeals’ judgment.
1
Although the appeal was also granted on the issue of who properly represents the
defendant, i.e., his appointed counsel or the Post-Conviction Defender, the issue was rendered
moot w hen ap pointed c ounse l requeste d and re ceived a n order fro m this C ourt allowin g him to
withdraw .
2
The Middlebrooks holding also applied to the felony murder aggravating circumstance
as sub seque ntly codified in Tenn. C ode An n. § 39-1 3-204(i)(7 )(1990) .
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BACKGROUND
The defendant, Michael Joe Boyd, was convicted of felony murder
stemming from the shooting death of William Price during an armed robbery in
November of 1986. Price and a companion, David Hippen, had solicited two
women, Barbara Lee and Renita Tate, to accompany them to a Memphis motel.
Upon their arrival at the Lorraine Motel, Price gave one of the women a $100 bill
to rent two rooms. Michael Boyd, who was Lee’s boyfriend, drove up to the
scene with two other men and approached Price’s van. Boyd pointed his pistol
at Hippen and demanded money. Price grabbed Boyd’s arm, Boyd fired the gun,
and a struggle ensued. When Price tried to drive away from the scene, Boyd
“emptied” the gun at him, striking him with five or six shots which caused his
death.
The prosecution relied on three aggravating circumstances to seek the
death penalty in the sentencing phase of the trial: (1) that the defendant had a
prior conviction for a violent felony, (2) that the defendant knowingly created a
risk of death to two or more persons other than the victim murdered, and (3) that
the killing occurred in the perpetration of a felony. 3
A judgment showing that the defendant had been convicted in 1983 for
second-degree murder was introduced by the prosecution to support the prior
conviction for a violent felony aggravating circumstance. In mitigation, Boyd
testified that someone asked for change for a $100 bill and he was going to
make change when Hippen pulled a gun. He said a struggle took place, during
which Price was shot. Boyd testified that he was sorry the victim had been killed
but that he did not intend to rob or shoot the victim.
3
Tenn. Code Ann. § 39-2-203(I)(2), (3), and (7)(1982)[now Tenn. Code Ann. § 39-13-204
(i)(2), (3), and (7)(199 7)].
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The jury returned the sentence of death based on two aggravating factors,
prior conviction of a violent felony and felony murder, and the conviction and
sentence were affirmed by this Court on appeal. State v. Boyd, 797 S.W.2d 589
(Tenn. 1990), cert. denied, 498 U.S. 1074 (1991). The defendant filed a petition
for post-conviction relief that alleged numerous constitutional errors, including
the violation of article I, § 16 of the Tennessee Constitution under State v.
Middlebrooks. Following an evidentiary hearing, the trial court denied the
petition. The Court of Criminal Appeals affirmed the denial. We granted this
appeal and now affirm the Court of Criminal Appeals’ judgment.
ANALYSIS
In Middlebrooks, we determined that the felony murder aggravating
circumstance set forth in Tenn. Code Ann. § 39-2-203(i)(7) duplicated and
mirrored 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.4 We stressed that a proper narrowing device must
provide
a principled way to distinguish the case in which the death penalty
was imposed from the many cases in which it was not . . . and must
differentiate a death penalty case in an objective, even-handed,
and substantially rational way from the many murder cases in
which the death penalty may not be imposed. As a result, a proper
narrowing device insures that, even though some defendants who
fall within the restricted class of death-eligible defendants manage
to avoid the death penalty, those who receive it will be among the
worst murderers-- those whose crimes are particularly serious, or
for which the death penalty is particularly appropriate.
4
At the time of this offense, 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, k idnappin g, aircraft pira cy, or the unlawfu l throwing, p lacing or d ischarg ing 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 provided “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, 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)(199 7)].
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We concluded that it violates article I, § 16 of the Tennessee Constitution to use
the felony murder aggravating circumstance to support imposition of the death
penalty for a conviction of felony murder. 840 S.W.2d at 343-346. The felony
murder aggravating factor may, of course, be used to support imposition of the
death penalty if a defendant is convicted of premeditated murder, or if the felony
used for the aggravating circumstance is different from and in addition to the
felony used for the felony murder offense. State v. Hines, 919 S.W.2d 573, 583
(Tenn. 1995), cert. denied, U.S. , 117 S.Ct. 133, 136 L.Ed.2d 82 (1996).
Because the Middlebrooks rule enhanced the integrity and reliability of the
sentencing process, we have since applied the rule retroactively. See Barber v.
State, 889 S.W.2d 185, 187 (Tenn. 1994), cert. denied, 513 U.S. 1184 (1995).
Accordingly, as both parties here recognize, the jury’s reliance on the invalid
felony murder aggravating factor was constitutional error properly recognized in
this post-conviction proceeding.
The critical inquiry, therefore, is whether the error was harmless and
whether a resentencing hearing is required. To assist in this inquiry, we review
the analytical framework first announced in State v. Howell, 868 S.W.2d 238
(Tenn. 1993), cert. denied, 510 U.S. 1215 (1994). There, 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.” Id. at 262. Our holding was based on United States Supreme Court
precedent in which that Court had said that if a jury considers an invalid or
improper aggravating circumstance, either “constitutional harmless error analysis
or reweighing at the trial or appellate level suffices to guarantee that the
defendant received an individualized sentence.” Stringer v. Black, 503 U.S. 222,
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232 (1992); see also Richmond v. Lewis, 506 U.S. 40 (1992); Clemons v.
Mississippi, 494 U.S. 738 (1990).
In Howell, we adopted a harmless error analysis that guarantees the
precision that individualized sentencing demands and provides a principled
explanation for our conclusion in each case. We also stressed the need “to
completely examine the record for the presence of factors which potentially
influence the sentence ultimately imposed.” These factors include, but are not
limited to, “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. at 260-61. Only after a thorough and critical consideration of these factors
can a determination be made as to harmless error. See, e.g., Sochor v. Florida,
504 U.S. 527, 541 (1992)(O’Connor, J., concurring)(“appellate court’s bald
assertion that an error of constitutional dimensions was ‘harmless’ cannot
substitute for a principled explanation of how the court reached that
conclusion.”).
We have since applied the Howell harmless error analysis on numerous
occasions in which the jury considered an invalid aggravating circumstance in
conjunction with one or more valid aggravating circumstances. In the following
cases, the error was found to be harmless and the sentence was affirmed. State
v. Hines, 919 S.W.2d at 583; State v. (Sylvester) Smith, 893 S.W.2d 908 (Tenn.
1994), ___ U.S. ___, 116 S.Ct. 99, 133 L.Ed.2d 53 (1995); Barber v. State, 889
S.W.2d at 187; State v. Nichols, 877 S.W.2d 722 (Tenn. 1994), cert. denied, 513
U.S. 1114 (1995); State v. Cazes, 875 S.W.2d 253 (Tenn. 1994), cert. denied,
513 U.S. 1086 (1995); State v. Howell, 868 S.W.2d at 262. Conversely, we
concluded that the constitutional error required resentencing in State v. Walker,
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910 S.W.2d 381 (Tenn. 1995), ___ U.S. ___, 117 S.Ct. 88, 136 L.Ed.2d 45
(1996), and Hartman v. State, 896 S.W.2d 94 (Tenn. 1995).
We disagree with the dissent’s assertion that “the high standard for
harmless error analysis set forth in Howell has been significantly compromised in
some cases.” On the contrary, the Howell analysis has been employed in the
same manner in each case-- the fact that some errors have been held to be
harmless and others harmful underscores that an individualized determination
must be made in each case.5
Applying the analysis in this case leads us to conclude that the error is
harmless and does not require resentencing. The remaining aggravating factor
relied upon by the jury was that the defendant had a prior conviction for second
degree murder--a violent felony. We said in Howell that “even more critical than
Though this Court and the United States Supreme Court previously had
5
recognized that errors occurring during the sentencing phase of a capital trial
may be reviewed under the harmless error doctrine by an appellate court, it was
not until 1992 that the United States Supreme Court completely delineated the
proper analysis to be applied by an appellate court when an invalid aggravating
circumstance has been relied upon by the initial sentencing authority. See
Stringer v. Black, 503 U.S. at 232; Sochor v. Florida, 504 U.S. at 540-541. This
Court’s decision in Howell delineating the proper harmless error analysis for a
Middlebrooks error was not rendered until after our decisions in State v. Evans,
838 S.W.2d 185 (Tenn. 1992); State v. Sparks, 1993 Tenn. Lexis 187; No.
03S01-9212-CR-00105 (Tenn., May 10, 1993); State v. Bane, 853 S.W.2d 483
(Tenn. 1993); State v. Smith, 857 S.W.2d 1 (Tenn. 1993); and State v.
Middlebrooks, 840 S.W.2d 317 (Tenn. 1992). Therefore, since all these
decisions predated Howell, the dissent’s reliance upon these cases as examples
of the proper application of the Howell analysis is unwarranted.
Mor eov er, in e ach of the cas es th at the disse nt co nten ds w ere “s ignific antly
compromised,” the How ell analysis yielded a conclusion that the Middlebrooks error was harmless
beyond a reasonable doubt. In State v. Cazes, supra, there were two remaining aggravating
factors, prior convictions for a violent felony and heinous, atrocious or cruel. The prior convictions
were aggravated rape and assault; no additional evidence or undue emphasis had been placed
on the invalid felony murder aggravator during sentencing. In State v. Nic hols , supra, five rape
convictions supported the remaining factor of prior convictions for a violent felony; no additional
evidence or undue emphasis was placed on the invalid factor. In State v. (S ylvester ) Smith ,
supra, there were two remaining aggravating factors, prior convictions for a violent felony and
heino us, a trocio us or crue l. The prior c onv iction s inclu ded robb ery w ith a de adly wea pon , ass ault
with intent to commit murder, and aggravated rape. Accordingly, our application of these factors,
as well as the mitigating evidence offered by the defendants, led to the same conclusion -- that
the error w as harm less bey ond a re asona ble doub t.
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the sum of the remaining aggravating circumstances is the qualitative nature of
each circumstance, its substance and persuasiveness, as well as the quantum of
proof supporting it.” Although the statute assigns no relative importance or
weight to the aggravating circumstances, we observed that a prior violent felony
conviction “may be more qualitatively persuasive and objectively reliable” than
other factors. 868 S.W.2d at 261.
Accordingly, the defendant’s prior conviction for second-degree murder is
a significant element to be considered in our analysis; in fact, we have affirmed
the death sentence in all but one previous case in which a prior violent felony
conviction supported the aggravating factor in Tenn. Code Ann. § 39-2-203(i)(2).
See State v. Hines, 919 S.W.2d at 584 (assault in the first-degree); State v.
Smith, 893 S.W.2d at 926 (robbery, assault with intent to murder, and
aggravated rape); State v. Nichols, 877 S.W.2d at 738 (rape); State v. Cazes,
875 S.W.2d at 270 (aggravated rape and assault with intent to murder); State v.
Howell, 868 S.W.2d at 261 (murder, aggravated robbery). In the remaining case,
State v. Walker, the conviction was for voluntary manslaughter, a lesser grade of
offense than second-degree murder. 910 S.W.2d at 398.
Turning to the second Howell factor, the record reveals that the
prosecution did not emphasize the felony murder aggravating factor, Tenn. Code
Ann. § 39-2-203 (i)(7), in the sentencing phase. No additional evidence was
introduced in support of the factor, and relatively little reliance was placed on it
during the prosecutor’s argument. Instead, the prosecution stressed the
defendant’s prior conviction throughout its argument as demonstrated by the
following passage:
The law also says if you kill once and then you kill again, it’s okay
for you to suffer the consequences of the death penalty. What
does it take, ladies and gentlemen? How many people have to die
before we put a stop to [the defendant]. Do we have to wait until
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he kills and kills and kills again? He’s killed twice. You would think
. . . after killing once that a man like that, if he’s got any conscience
at all, would want to get as far away from a pistol, an instrument of
death, as he could ever get. . . . It’s good for nothing other than to
kill other human beings. Twice [the defendant] used the same
instrument of death. It’s time . . . to put a stop to it.
Finally, the balance of the State’s argument was devoted to arguing the
aggravating factor in Tenn. Code Ann. § 39-2-203 (i)(3), that the defendant
knowingly created a risk of death to two or more persons during the victim’s
murder, and to discrediting the testimony and credibility of the defendant.
Similarly, applying the third Howell factor, we observe that no additional
evidence was admitted to support the invalid felony murder aggravating
circumstance; the prosecution merely relied upon the evidence 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.
Finally, we consider the final Howell factor -- the nature, quality and
strength of the mitigating evidence. In this case, the mitigating evidence was
limited to the defendant’s own testimony. Although the defendant argues on
appeal that he showed remorse, it is significant that he did not accept
responsibility for his part in the offense; instead he denied that he shot or robbed
the victim. No other mitigating evidence was presented before the jury. 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
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sentencing and made a principled explanation for our conclusion. After doing so,
we conclude beyond a reasonable doubt that the verdict would have been the
same had the jury given no weight to the invalid aggravating factor.
The dissent concludes that a finding of harmless error cannot be based on
objective facts and is therefore inappropriate. Notwithstanding evidence of a “set
up” robbery and that the defendant “emptied” his gun while the victim tried to flee
from the scene, the dissent contends that the killing occurred as a result of an
altercation based on jealousy and that the defendant testified he did not intend to
rob or shoot the victim. The dissent, however, does not apply the Howell factors
that support an objective conclusion that the jury’s verdict would have been the
same even had it not considered the invalid factor. In particular, the dissent
does not address the quality and strength of the remaining aggravator factor that
was supported by the defendant’s prior conviction for second-degree murder,
nor, apparently, does the dissent place objective significance on the
Howell factors that no additional evidence or emphasis was placed on the invalid
felony murder aggravator during sentencing. Thus, the dissent takes issue
solely with the majority’s conclusion and not its methodology.
Rejecting precedent, the defendant contends that our appellate review is
improper for several reasons, all of which we have implicitly rejected in our
formulation and continued application of Howell. First, he argues that he has a
federal and state due process liberty interest to jury sentencing due to the
mandatory language found in Tenn. Code Ann. § 39-2-203.6 The case cited by
the defendant in support of his argument, Rickman v. Dutton, 854 F. Supp. 1305
(M.D. Tenn. 1994), however, recognizes that even if a due process liberty
6
The defendant cites, among other provisions, Tenn. Code An n. § 39-2-203(a)(1982),
the “jury shall fix punishment in a separate sentencing hearing”, and Tenn. Code Ann. § 39-2-
203(k)(1982), “a new trial on the issue of punishment shall be held by a new jury empaneled for
that purpose.”
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interest exists on the basis of these statutory provisions, constitutional harmless
error analysis is not precluded. We, therefore, disagree with the defendant’s
assertion that these statutory provisions preclude appellate review of the
sentence. Moreover, the United States Supreme Court has repeatedly held that
constitutional harmless error analysis is appropriate in this context, provided that
it preserves the constitutional requirement of individualized sentencing. See,
e.g., Stringer v. Black, 503 U.S. at 232 (1992); Clemons v. Mississippi, 494 U.S.
at 753.7
The defendant also argues that Howell conflicts with the constitutional
harmless error test set forth in Chapman v. California, 386 U.S. 18 (1967), and
that, applying Chapman, the State cannot prove beyond a reasonable doubt that
the error “did not contribute to the verdict obtained” because this jury did in fact
rely on factors set out in Tenn. Code Ann. § 39-2-203 (i)(7). Again we disagree.
Our analysis in Howell is derived from relevant United States Supreme Court
precedent that indicates not every verdict based partly on an unconstitutional or
invalid aggravating circumstance requires resentencing, and that an error may
be deemed harmless if it may be concluded beyond a reasonable doubt that the
verdict would have been the same had the jury given no weight to the invalid
factor. See Stringer v. Black, 503 U.S. at 232; Clemons v. Mississippi, 494 U.S.
at 753. We view these decisions, and the test set forth in Howell, as the
appropriate analysis and consistent with the Chapman harmless error test.
Finally, the defendant insists that application of Howell violates ex post
facto, due process, and equal protection provisions of the Tennessee and United
States Constitutions because it had not been decided at the time of this offense,
7
The M ississippi c ases re lied on by th e defend ant, e.g., Wilcher v. State , 635 So.2d 789
(Miss. 1993), are specifically predicated on an interpretation of state law that is not controlling on
this Cou rt.
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and because prior cases in which only one aggravating factor remained were
remanded for resentencing. It is clear, however, that pre-Howell cases, existing
at the time of the defendant’s offense, had upheld death penalty sentences
where the jury had relied on an invalid aggravating circumstance. See State v.
Bobo, 727 S.W.2d 945 (Tenn.), cert. denied, 484 U.S. 872 (1987); State v.
Workman, 667 S.W.2d 44 (Tenn.), cert. denied, 469 U.S. 873 (1984); State v.
Cone, 665 S.W.2d 87 (Tenn.), cert. denied, 467 U.S. 1210 (1984); State v.
Campbell, 664 S.W.2d 281 (Tenn.), cert. denied, 469 U.S. 920 (1984).
Therefore, Howell, which sets forth a principled means of review in a manner that
preserves individualized sentencing, does not violate ex post facto, due process,
or equal protection provisions.
CONCLUSION
Our review of the record leads us to conclude beyond a reasonable doubt
that the jury’s verdict would have been the same had no weight been given to
the invalid aggravating circumstance, and that the jury’s consideration of the
invalid aggravating circumstance was harmless error. Therefore, the jury’s
reliance on Tenn. Code Ann. § 39-2-203(i)(7), although constitutional error, does
not require resentencing. Accordingly, we affirm the judgment of the Court of
Criminal Appeals denying the post-conviction petition. The sentence of death
will be carried out as provided by law on the 5th day of May, 1998, unless
otherwise ordered by this Court, or other proper authorities.
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The costs of this appeal are taxed to the defendant for which execution
may issue.
_______________________________
RILEY ANDERSON, CHIEF JUSTICE
CONCUR:
Drowota, Birch, and Holder, JJ.
Reid, J., dissenting - see separate dissent
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