State v. Erskine Johnson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON JUNE SESSION, 1999 FILED August 12, 1999 ERS KINE LERO Y JOH NSO N,) C.C.A. NO. 02C01-9707-CR-00292 ) Cecil Crowson, Jr. Appe llant, ) Appellate Court Clerk ) ) SHELBY COUNTY VS. ) ) HON. WILLIAM H. WILLIAMS,, STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Con viction, Death Pe nalty) DISSENTING OPINION I respe ctfully dissent from that portion of the opinion which concludes that a reman d for resentenc ing is necessa ry. I agree that the crime scene report suppressed by the Sta te was favora ble to the Defen dant an d therefo re shou ld have b een pro vided to the defens e. I cannot agree, howeve r, that had th is report be en disclo sed to the defense , there is a reasonable probability that the jury wo uld not have sentenced the Defendant to death. The Defendant and another armed gunman entered a grocery store for the purpose of robbery. Several customers were in the store. The Defendant fired more than one shot, killing the store owner as he stood behind the counter. The withhe ld crime sc ene rep ort tends to establish that a shot which grazed a customer was not fired from the same spot where the Defendant stood when he shot and killed the store owner. Although this evidence sugge sts that perhaps the Defendant did not fire the shot which grazed the customer, I cannot conclude that had th is repo rt been furnish ed to th e defe nse, th ere is a reaso nable probab ility that the jury would not ha ve found that the Defendant created a great risk of death to two or more persons other than the victim , during this felony- murder. I also agree with the State’s argum ent tha t this De fenda nt, bas ed on his participation in this ar med robbe ry and felony- murd er, is responsible for the acts of his co-defendant such that this ag grava ting circ ums tance would apply even if the co-defendant fired the shot which grazed the customer. The Defendant know ingly created the great risk to others during his act of felony-murder when he entered the store w ith his arm ed coh ort. Thus , even tho ugh this is not the precise issue before us, I cannot conclude that had the crime scene report been disclosed, it is reasonably probable that the jury would not have found the existence of the great-risk aggravating circumstance. The issue before this Court is whether there is a reasonable probability that, had the crime scene report been furnished to the defen se, the jury wo uld not have imposed the death penalty on the Defendant for killing the store owner during this robbery. As the majo rity note s, a res olution of this issue also involves the harmless error analysis established by the supreme court in State v. How ell, 868 S.W .2d 238 (Te nn. 1993). Even if we totally discount the great-risk aggravating circumstance, the remaining aggravator—that the Defendant was previously convicted of felonies involving violence to the person— was very strong . The jury heard proof of seven such prior convictions, includ ing on e cou nt of rob bery, th ree co unts o f assa ult with a firearm, and two counts of a ttempted m urder. -2- As the majority notes, our supreme court has stated that the effect and qualitative persuasiveness of the prior violent felony aggravator increases when there is more than one prior violent felony c onviction. State v. Nich ols, 877 S.W.2d 722, 738 (Tenn. 1994). The supreme court has on several occasions found a Middlebrooks error to be harmless when the only remaining aggravating circumstance was prior violent felony convictions. See State v. Boyd , 959 S.W.2d 557 (T enn. 19 98); State v. Cribbs, 967 S.W .2d 773 (Tenn . 1998); State v. How ell, 868 S.W .2d 238 (Tenn . 1993); see also Harris v. S tate, 958 S.W.2d 799 (Ten n. Crim. App . 1997). The majority concludes that because “the felony murder aggravator is clearly erroneous and the great risk aggrava tor was argua bly misapplied, w e are unab le to conclude that the jury w ould ha ve sente nced th e Defe ndant to death based solely on th e prior violen t felonies a ggravato r.” Because I do not find that the suppressed crime scene report puts this case in such a different light as to undermine confidence in the jury’s verdict, I cannot agree. I would affirm the sentence of death. __________________________ DAVID H. WELLES, JUDGE -3-