IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
AUGUST 1997 SESSION
March 17, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
JEFFREY STUART DICKS, ) No. 03C01-9606-CC-00231
Appellant, ) Greene County
V. ) Hon. William H. Inman, Judge
STATE OF TENNESSEE, ) (Post-Conviction--Death Penalty)
Appellee. )
OPINION CONCURRING IN PART; DISSENTING IN PART
I agree with the majority's determination that the issues concerning
jury instructions on mitigating circumstances have been waived. In my view,
however, the state has not carried the burden of establishing, beyond a reasonable
doubt, that the Middlebrooks error was harmless. In consequence, I believe that the
petitioner is entitled to a new hearing in the penalty phase of the trial.
In 1979, the petitioner and Donald Wayne Strouth robbed a store. The
theory of the state was that Dicks disabled the victim by striking him on the head
with a rock. Strouth then slit his throat from ear to ear. Although tried separately,
Strouth also received the death penalty when the jury determined there were two
aggravating circumstances: (1) that the murder was heinous, atrocious, and cruel;
and (2) that the murder was committed during the perpetration of a felony. See
Tenn. Code Ann. § 39-2404(i)(5), (7) (Supp. 1978). Strouth filed a post-conviction
petition claiming Middlebrooks error. This court ruled that the error was harmless.
Donald Wayne Strouth v. State, No. 03C01-9507-CC-00195 (Tenn. Crim. App., at
Knoxville, Mar. 4, 1997), app. granted, (Tenn., July 7, 1997). While the supreme
court has granted review, no opinion has been released as of yet.
The state, in this case, acknowledges that the trial court erred by
allowing the jury to consider the felony murder aggravator, Tenn. Code Ann. § 39-
2404(i)(7) (Supp. 1978), as an aggravating circumstance. In State v. Howell, 868
S.W.2d 238, 261 (Tenn. 1993), our supreme court ruled that reviewing courts should
consider the following factors to determine whether the error, as recognized in State
v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992), is harmless in the context of the
trial:
(1) the number and strength of remaining valid
aggravating circumstances;
(2) the prosecutor's argument at sentencing;
(3) the evidence admitted to establish the invalid
aggravator; and
(4) the nature, quality and strength of mitigating
evidence.
In my view, these factors suggest the Middlebrooks error contributed to the jury's
conclusion that the death sentence was warranted in this case.
(1)
Absent the felony murder aggravating circumstance, the only valid
remaining aggravating circumstance is that the murder was heinous, atrocious and
cruel. Tenn. Code Ann. § 39-2404(i)(5) (Supp. 1978). The proof shows that the
victim suffered three injuries: a cut over the skull about one-half to three-quarters of
an inch deep; a laceration on the right ear extending completely through the
cartilage; and a slash over the neck from ear to ear about two inches deep. Thus,
the evidence is sufficient, as indicated by the majority, to establish the heinousness
of the offense.
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Of particular importance, however, is that the jury was not given
instructions that adequately defined the statutory terms. See Tenn. Code Ann. § 39-
2404(i)(5) (Supp. 1978). The jury was charged as follows:
"Heinous" means extremely wicked or shockingly evil.
"Atrocious" means outrageously wicked and vile. "Cruel"
means designed to inflict a high degree of pain, either
indifference to or enjoyment of, the suffering of others,
pitiless.
***
[You may impose the death penalty if you find the murder
was] especially heinous, atrocious, or cruel in that it
involved torture or depravity of mind.
In State v. Williams, 690 S.W.2d 517, 529 (Tenn. 1985), several years after the trial
in this case, the supreme court adopted the following definitions:
Heinous--"Grossly wicked or reprehensible; abominable;
odious; vile."
Atrocious--"Extremely evil or cruel; monstrous;
exceptionally bad; abominable."
Cruel--"Disposed to inflict pain or suffering; causing
suffering; painful."
Torture--"The infliction of severe physical pain as a
means of punishment or coercion; the experience of this;
mental anguish; any method or thing that causes such
pain or anguish; to inflict with great physical or mental
pain."
Depravity--"Moral corruption; wicked or perverse act."
While the trial court did instruct the jury on the meaning of heinous, atrocious, and
cruel, there were no definitions provided for either torture or depravity. 1
In Hartman v. State, 896 S.W.2d 94, 106 n.7 (Tenn. 1995), a case in
which the supreme court determined that the Middlebrooks error required reversal
and remand for resentencing, the supreme court reasoned as follows:
While the trial court's failure to instruct the jury in accord
with Williams does not by itself require relief be granted
the petitioner under the circumstances of this case, the
omission of the Williams definition has been a factor in
1
The federal courts have so far rejected the pre-Williams "hein ous , atroc ious , and crue l"
aggrav ating circu msta nce as a legitima te factor in im position of the death penalty. See Houston v.
Dutton, 50 F.3d 381, 387 (6th Cir. 19 95), cert. denied, 116 S. Ct. 272 (1995).
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our determination that the Middlebrooks error was not
harmless.
The court also observed that the heinous, atrocious, and cruel aggravator "is less
objective in nature [and that the court] has sought to make it more objective by
defining its terms [in Williams] and by requiring ... the jury be instructed as to these
definitions." Id. at 104. Because the jury was not given the complete set of the
Williams instructions, I would have found that this factor, the relative weakness of
the remaining valid aggravating circumstance, weighs against a finding of
harmlessness.
(2)
The majority concludes that the second factor, the nature of the
prosecutor's argument at sentencing, weighs favorably for the state. It has
determined the felony murder aggravator received little attention because, "in
rebuttal argument, the prosecutor ... argued for ... application of [the] aggravator,
that the murder was committed to avoid arrest or prosecution." Majority opinion, slip
op. at 13. The final argument of the state included the following:
Who is responsible for the killing of Jimmy Keegan?
Well, when two (2) people set out together on a joint
venture to rob and to kill, they are guilty of murder in the
first degree. ... Who planned this thing out? Who from
the very beginning was the primary moving factor in this
case? Well, and then the robbery went down, the
robbery was planned. Folks, let's face it, there's no
questions about that. You've hashed all this over in the
jury room when you decided the first phase. This was a
planned out thing, it wasn't an accident, it wasn't ... spur
of the moment.... [Dicks] pointed out this is the [victim]
we're going to rob. He had seen that money. He's the
one that had to have [the victim] killed because [the
victim] had done business with him, not Strouth. [Dicks]
was the beneficiary of this killing. ... If Dicks was to
participate in the robbery of this man, then this man
would have to die. There was no other logical way that
this robbery could have been done with any hope of
success in not being apprehended unless it was planned
that they were going to kill him in cold blood. ... Death
was always the only alternative that [Dicks] ever had for
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[the victim], from the moment that the wheels of this
deadly thing w[ere] put into motion, death was the only
alternative that this man had in order to make that
endeavor successful. ... Jeffrey Dicks knew what the
punishment for armed robbery was. He said, I'm not
going to serve life for a sum of money. ... Armed robbery
does carry life in this State, so what was there to lose ...
the only reason they had not to kill the victim would be
that there is something else [additional punishment] if
you kill the victim. ... If you say life in your verdict, you're
going to say it makes good sense ... to kill the victims of
rape and robbery because you don't have anything else
to fear. If you say by your verdict death, you're saying
that's stupid to kill your victim, that makes bad sense,
and I'm asking you to say that it makes bad sense to kill
your victim in a rape, armed robbery, the cases that are
enumerated right here in this book that will be in His
Honor's charge. "If the murder was committed while the
defendant was engaged in committing, or was an
accomplice in the commission of ... robbery." ... Without
the use of this punishment, we are extending an open
invitation to every potential robber and rapist to go ahead
and kill their victim .... Well, I think that ... [another]
factor[] in this case ... was this murder committed for the
purpose of avoiding or interfering with or preventing the
lawful arrest or prosecution of the Defendant. ... That
aggravating circumstance is there without any doubt.
Aren't the people who ... run the little stores ... aren't they
entitled to the best protection that you can give them
from armed robbers who will kill them. ... By telling
others if they kill their victims in a robbery, that there's
another reason besides the fear of going to the
penitentiary that ought to keep them from doing this, and
that fear is [getting] the death penalty. By your verdict,
ladies and gentlemen, you will let the potential
committers of robbery, rape and the other enumerated
crimes know that if they do that, the death penalty awaits
because not to give the death penalty is to tell them that
it doesn't wait.
(Emphasis added).
While portions of this argument do, in fact, relate to the killing to avoid
arrest or prosecution aggravating circumstance, parts may also be construed to
support the felony murder aggravator. The prosecutor specifically referred to the
enumerated crimes listed in the felony murder statute. At one point, he quoted a
substantial part of the felony murder statute. His final argument covers several
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pages of transcript. There was substantially more emphasis on the prohibited
perpetration of a felony circumstance than the heinous, atrocious, or cruel
circumstance, which was hardly mentioned. Because the jury determined the
existence of the felony murder aggravator and rejected the avoiding prosecution
aggravator, I think it is reasonable to infer that the jury interpreted the argument of
the state as in support of the felony murder aggravating circumstance.
(3)
The third factor, the consideration of the amount of evidence admitted
to establish the invalid aggravator, weighs in favor of the state. There was no
additional evidence admitted at the penalty phase of the trial to establish the felony
murder aggravating circumstance. So, this factor should be considered as an
indication that the Middlebrooks error was, in fact, harmless.
(4)
In my view, the fourth factor, the strength and quality of the mitigating
evidence, should be given neutral application. The nature, quality, and strength of
the mitigating evidence neither supports nor militates against a finding of
harmlessness. The defendant argued the following mitigating circumstances:
(1) no significant criminal history;
(2) the murder was committed while under the influence
of extreme mental disturbance;
(3) the defendant played a minor role;
(4) the defendant acted under the domination of another
person;
(5) the defendant was young at the time; and
(6) the defendant had a mental defect which impaired
his ability to conform his conduct to the requirements of
the law.
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A psychologist offered testimony that the defendant, who was twenty
years old when he committed the crime, was passive, dependent, and weak. He
concluded that the defendant used repression and denial as defense mechanisms.
There was evidence that the defendant was a passive follower who usually sought
out dominating people. While he had no convictions for violent behavior, other proof
established that he was "wanted" at the time of the murder for writing bad checks
totaling over $14,000.
In my opinion, the mitigating evidence is entitled to some weight.
Because the defendant was young and did not have a prior record of committing
violent crimes, there was a credible basis for the argument that a life sentence, as
opposed to the death penalty, would have been a reasonable alternative. But the
mitigating evidence was not overwhelming. The jury could have reasonably rejected
the defense argument for leniency.
In assessing whether the Middlebrooks error qualified as harmless, I
would have concluded that two factors weigh for the defendant, one weighs for the
state, and one is neutral. While a close case, I believe that the trial court should
have granted a new sentencing hearing based upon the supreme court rulings in
Middlebrooks and Howell. My primary concern relates to the weakness of the
charge relating to the heinous atrocious and cruel aggravating circumstance. It is
worth pointing out that the state, under our existing law, bears the burden of
demonstrating that the error was harmless beyond a doubt. In my opinion, the state
has been unable to meet that standard.
__________________________________
Gary R. Wade, Judge
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