Strouth v. State

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE FILED
June 28, 1999

Cecil Crowson, Jr.
Appellate Court Clerk
FOR PUBLICATION
DONALD WAYNE STROUTH, )
) Filed: June 28, 1999
Appellant, )
) SULLIVAN COUNTY
V. )
) Hon. Frank L. Slaughter,
STATE OF TENNESSEE, ) Judge
)
Appellee. )
) Supreme Court
) No. 03S01-9707-CC-00079

For the Appellant: For the Appellee:
Mark E. Olive Paul G. Summers
321 W. Jefferson St. Attorney General & Reporter
Tallahassee, FL 32301
Michael E. Moore
Solicitor General

Gordon W. Smith
Associate Solicitor General
Nashville, Tennessee

H. Greeley Wells, Jr.
District Attorney General
Second Judicial District

Edward E. Wilson
Assistant District Attorney
P.O. Box 526
Blountville, TN 37617

OPINION

AFFIRMED. DROWOTA, J.
 In this post conviction capital appeal, we must determine whether the jury’s

reliance upon the invalid felony murder aggravating circumstance as support for

imposition of the death penalty is harmless error beyond a reasonable doubt

under the analysis adopted in State v. Howell, 868 S.W.2d 238 (Tenn. 1993).

Both the trial court and the Court of Criminal Appeals concluded that the error was

harmless and dismissed the petition for post conviction relief. After fully reviewing

the record, we conclude that the sentence would have been the same had the jury

given no weight to the invalid felony murder aggravating circumstance and

therefore affirm the lower courts’ dismissal of the petition.

FACTUAL BACKGROUND

On February 15, 1978, James Keegan, the sole proprietor of a used

clothing store in downtown Kingsport, Tennessee, was murdered. Keegan’s body

was found on the floor of his store. His pockets had been emptied of his billfold

and a large roll of money he habitually carried, and several items were missing

from the store. Keegan had sustained a severe blow to the head with a blunt

object and deep lacerations on his scalp and ear. Keegan’s death resulted from a

deep laceration which extended the entire width of his neck. Keegan’s throat had

been slit literally from ear to ear. The laceration was approximately three inches

deep and completely severed both the large muscle of Keegan’s neck and his

jugular vein. According to the medical examiner, Keegan had been unconscious

from the blow to his head when his throat had been cut, and Keegan had bled to

death from the neck wound within fifteen minutes.

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 Donald Wayne Strouth and Jeffrey Stuart Dicks had been seen in the area

of the store around the time of the murder, and they were eventually arrested and

charged with the robbing and killing of Keegan. The State sought the death

penalty with respect to both Strouth and Dicks. Each made a pre-trial statement

to police acknowledging his presence at the scene of the crime, but accusing the

other of killing Keegan. For this reason, Strouth and Dicks were tried separately

to avoid the possibility of violating Bruton v. United States, 391 U.S. 123, 88 S.Ct.

1620, 20 L.Ed.2d 476 (1968).

The proof introduced at Strouth’s trial demonstrated that Keegan’s body

was discovered by his wife around noon. Police were called to the scene of the

crime and discovered two sets of footprints outside the back entrance of the store.

Police also discovered that an electric heater had been turned on inside the store

and a fuel-soaked towel had been placed across the heater. Testimony indicated

that Keegan did not use electric heaters and had them in the store only as resale

items. Dicks and his girlfriend, Betty Merrit, lived in an apartment near the store

owned by Keegan, and were often visited by their friends, Strouth and his

girlfriend, Barbara Davis. About a week before the murder, Dicks and Merrit went

to Keegan’s store and sold him some clothes. According to Merrit, Keegan paid

them from a large roll of cash he kept in his front pants pocket. On the day before

the murder, an employee of a nearby dry cleaners testified that he had seen

Strouth and Dicks standing and talking beside the cleaners, near Keegan’s store.

Two other eyewitnesses saw both Strouth and Dicks in the area of Keegan’s store

on the morning of the murder.

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 Evidence accumulated by the police and introduced at Strouth’s trial tended

to show that Strouth had been the person who actually cut Keegan’s throat.

Witnesses testified to seeing blood on Strouth’s hands and clothes shortly after

the murder. Strouth’s girlfriend told the jury that she had given Strouth a large

hawkbill knife as a present sometime before the murder, and she said that Strouth

had admitted to the robbery, and stated, “Jeff froze on me.” The medical

examiner testified that the hawk-bill knife owned by Strouth was consistent with

and could have been used to slit Keegan’s throat. The medical examiner also

testified that the blood spots on the pants that Strouth had worn at the time of the

murder were consistent with the theory that Strouth had stood over the victim and

cut his throat.1

Upon hearing the proof, the jury found Strouth guilty of murder in the

perpetration of a robbery and robbery with a deadly weapon. In the subsequent

sentencing hearing, the State relied upon the following six aggravating

circumstances: (1) the defendant was previously convicted of one or more

felonies, other than the present charge, which involved the use or threat of

violence to the person; (2) the defendant knowingly created a great risk of death

to two or more persons, other than the victim murdered, during his act of murder;

(3) the defendant committed murder for remuneration or the promise of

remuneration; (4) the murder was especially heinous, atrocious, or cruel in that it

involved torture or depravity of mind; (5) the murder was committed for the

purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of

1
A more complete recitation of the facts is contained in this Court’s opinion on
direct appeal. See State v. Strouth, 620 S.W.2d 467 (Tenn. 1981).

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the defendant or another; and (6) the murder was committed while the defendant

was engaged in committing or was an accomplice in the commission of, or was

attempting to commit . . . robbery. Tenn. Code Ann. § 39-2404(i)(2) - (i)(7) (Supp.

1978).

Little proof was offered by either the State or the defendant at the

sentencing hearing. The State offered proof to establish that the defendant had

been previously convicted of a felony crime against nature in North Carolina. The

defense called Officer Jim Keesling, who had taken two statements from Strouth

on March 8 and 9, 1978. Officer Keesling read the statements into the record for

the jury’s consideration. In the first statement Strouth denied that he had been in

Kingsport on the day of the murder, and in the second statement, Strouth claimed

that Dicks and a third person had committed the robbery and murder while he

waited in the car. The defense attempted to call a minister and sociology teacher

to testify about the Christian philosophy on the death penalty and about the

deterrent effect of the death penalty, but, the trial court disallowed the testimony

after a jury-out hearing.

The jury deliberated for approximately seven hours before returning a

verdict. Finding that the State had proven two aggravating circumstances beyond

a reasonable doubt, (1) the murder was especially heinous, atrocious or cruel in

that it involved torture or depravity of mind; and (2) the murder was committed

while the defendant was engaged in committing a robbery, 2 and also finding that

2
Tenn. Code Ann. § 39-2404(i)(5) & (i)(7) (Supp. 1978).

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there were no mitigating circumstances sufficiently substantial to outweigh the

aggravating circumstances, the jury sentenced Strouth to death by electrocution.

On direct appeal to this Court, Strouth’s first degree felony murder

conviction and death sentence were affirmed. State v. Strouth, 620 S.W.2d 467

(Tenn. 1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1491, 71 L.Ed.2d 692 (1982).3

However, this Court vacated Strouth’s armed robbery conviction holding that dual

convictions for felony murder and the underlying felony violated principles of

double jeopardy. 4

Strouth filed his first post-conviction petition in 1982, alleging numerous

constitutional violations. After a lengthy evidentiary hearing, the trial court denied

relief. The Court of Criminal Appeals affirmed, and this Court declined to review

the case. Strouth v. State, 755 S.W.2d 819 (Tenn. Crim. App. 1986), perm. app.

denied (Tenn. 1987).

Strouth’s current post-conviction petition was filed on December 30, 1993.

Among the claims raised, Strouth asserted that his death sentence should be set

aside under State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992). The trial court

held an evidentiary hearing and concluded that the Middlebrooks error was

3
In his separate trial, co-defendant Dicks was also convicted of first degree
felony murder and sentenced to death by electrocution. Dicks’ conviction and death
sentence were also affirmed by this Court on direct appeal. State v. Dicks, 615
S.W.2d 126 (Tenn. 1981).
4
This Court later held in State v. Blackburn, 694 S.W.2d 934 (Tenn. 1985), that
dual convictions for both felony murder and the underlying felony do not violate double
jeopardy principles.

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harmless beyond a reasonable doubt under the analysis adopted by this Court in

Howell, supra. The trial court held that the remaining claims were either barred by

the statute of limitations or waived.5 The Court of Criminal Appeals affirmed the

trial court’s dismissal of the petition, also finding the Middlebrooks error harmless

beyond a reasonable doubt.

Thereafter, we granted Strouth’s appeal limited to the issue of whether the

lower courts’ erred in finding the Middlebrooks error harmless beyond a

reasonable doubt.6 For the reasons that follow, we affirm the judgment of the

Court of Criminal Appeals which upheld the trial court’s dismissal of the post

conviction petition.

HARMLESS ERROR ANALYSIS

5
The post conviction statute of limitations on this case expired on July 1, 1989.
Tenn. Code Ann. § 40-30-102 (repealed 1995); Abston v. State, 749 S.W.2d 487
(Tenn. Crim. App. 1988). However, Middlebrooks announced a new constitutional rule
which is to be applied retroactively. Barber v. State, 889 S.W.2d 185, 186 (Tenn.
1994). Accordingly, with regard to Strouth’s Middlebrooks claim, which arose after the
expiration of the statute of limitations, the present petition was timely filed under the
rule announced in Burford v. State, 845 S.W.2d 204 (Tenn. 1992); see also Sands v.
State, 903 S.W.2d 297 (Tenn. 1995).
6
Following oral argument, this Court ordered supplemental briefing on three
additional issues. Upon consideration of the supplemental briefs, particularly the
thorough brief filed by and through counsel for Strouth, the Court is now convinced
that Strouth was convicted solely on the basis of felony murder. Therefore, we deem
it unnecessary to address in the body of this opinion the issues upon which
supplemental briefing was ordered.

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 In Middlebrooks, a majority7 of this Court determined that when a defendant

is convicted of first degree murder solely on the basis of felony murder, the felony

murder aggravating circumstance may not be used as a basis to support

imposition of the death penalty because the aggravating circumstance merely

duplicates the elements of the underlying offense. As such, the felony murder

aggravating circumstance fails to sufficiently narrow the class of death-eligible

murderers and violates Article I, § 16 of the Tennessee Constitution.8 840 S.W.2d

at 346. We held that a sentence of death may not be imposed for a conviction of

first degree felony murder unless it is based upon at least one of the other

statutory aggravating circumstances. Id. at 346-47. Because the rule announced

in Middlebrooks enhanced the integrity and reliability of the sentencing process,

we have applied the rule retroactively. Boyd v. State, 959 S.W.2d 557, 560 (Tenn.

1998); Barber, 889 S.W.2d at 186.

In this case, at the guilt phase of the trial, Strouth was convicted of the first

degree felony murder of James Keegan. In the sentencing phase of the trial, the

jury based the sentence of death upon two aggravating circumstances, one of

which was that the crime was committed while the defendant was engaged in

committing the felony of robbery. Accordingly, the jury’s reliance upon the felony

murder aggravating circumstance in this case contravenes the rule adopted in

Middlebrooks.

7
The author of this opinion and retired Justice O’Brien dissented from the
holding in Middlebrooks. 840 S.W.2d at 347-50 (Drowota, J., dissenting).
8
Though the decision in Middlebrooks discussed federal law, this Court has
emphasized in subsequent cases that Middlebrooks was based independently upon
Article I, § 16 of the Tennessee Constitution. State v. Bigbee, 885 S.W.2d 797, 816
(Tenn. 1994).

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 However, error under Middlebrooks does not result in automatic reversal;

such error is subject to harmless error analysis. A comprehensive analytical

framework to govern harmless error analysis was first announced by this Court in

State v. Howell, 868 S.W.2d 238 (Tenn. 1993). In that case we held that a

Middlebrooks error will be deemed harmless if a 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 premised upon decisions of the United States Supreme Court

which had directed 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, 232, 112 S.Ct. 1130,

1137, 117 L.Ed.2d 367 (1992); see also Richmond v. Lewis, 506 U.S. 40, 113

S.Ct. 528, 121 L.Ed.2d 411 (1992); Clemons v. Mississippi, 494 U.S. 738, 110

S.Ct. 1441, 108 L.Ed.2d 725 (1990).

In Howell, we stressed the importance of applying a harmless error analysis

which guarantees the precision that individualized sentencing demands and which

also provides a principled explanation for our decision in each case. Id. at 260-61;

Boyd, 959 S.W.2d at 560. To aid reviewing courts in achieving these twin

objectives, we enumerated several nonexclusive factors which should guide the

harmless error analysis. The factors include, but are not limited to, the following:

(1) the number and strength of the remaining valid aggravating circumstances; (2)

the extent to which the prosecutor emphasizes the invalid aggravating

circumstance during closing argument; (3) the evidence admitted to establish the

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invalid aggravating circumstance; and (4) the nature, quality, and strength of the

mitigating evidence. Howell, 868 S.W.2d at 260-61. If a reviewing court is

convinced beyond a reasonable doubt that the jury would have imposed the same

sentence had it given no weight to the invalid aggravating circumstance, the error

is harmless and the sentence may be affirmed. Id. at 262. Applying the analysis

in this cases leads us to conclude that the error is harmless and does not require

resentencing.

We first consider the strength of the single remaining valid aggravating

circumstance -- the murder was especially heinous, atrocious or cruel in that it

involved torture or depravity of mind. Tenn. Code Ann. § 39-2404(i)(5) (Supp.

1978). Strouth asserts that this aggravating circumstance is weak and lacks

objective reliability. In support of his argument, Strouth points out that Keegan

was unconscious when his throat was cut and therefore did not experience pain.

Strouth also emphasizes that the jury instructions included only the language of

the statutory aggravating circumstance and did not include the definitions

announced later by this Court in State v. Williams, 690 S.W.2d 517, 529-532

(Tenn. 1985). The State responds that this Court has repeatedly upheld the

constitutionality of the (i)(5) aggravating circumstance, and has never held that the

Williams definitions are constitutionally required. The State emphasizes that a

victim need not be conscious to support a finding of depravity of mind and

contends that the proof in this record overwhelmingly establishes the applicability

and strength of the aggravating circumstance. We agree.

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 As noted by the State, this Court has repeatedly upheld the constitutional

validity of the (i)(5) aggravating circumstance. See e.g. State v. Blanton, 975

S.W.2d 269, 280 (Tenn. 1998); Hartman v. State, 896 S.W.2d 94, 105 (Tenn.

1995); State v. Black, 815 S.W.2d 166, 181 (Tenn. 1991); State v. Thompson, 768

S.W.2d 239, 252 (Tenn. 1989); State v. Barber, 753 S.W.2d 659, 670 (Tenn.

1988). In addition, as the State points out, we have specifically held that the

Williams instruction requirement is not to be retroactively applied. State v.

O’Guinn, 709 S.W.2d 561, 568 (Tenn. 1986). Finally, we have never held that the

Williams definitions are constitutionally required. Hartman, 896 S.W.2d at 105. In

fact, in Thompson, we distinguished the language of Tennessee’s (i)(5)

aggravating circumstance from the language held to be unconstitutionally vague

by the United States Supreme Court in Godfrey v. Georgia, 446 U.S. 420, 100

S.Ct. 1759, 64 L.Ed.2d 398 (1980), and Maynard v. Cartwright, 486 U.S. 356, 108

S.Ct. 1853, 100 L.Ed.2d 372 (1988). We pointed out that, unlike those cases, the

“heinous, atrocious, or cruel” language in the Tennessee statute does not stand

alone, but, instead, is modified and limited by the phrase, “in that it involved

torture or depravity of mind.” Thompson, 768 S.W.2d at 252.9 In conducting

9
As support for his contention that the (i)(5) aggravating circumstance is
unconstitutionally vague without further definition Strouth relies upon the Sixth Circuit’s
decision in Houston v. Dutton, 50 F.3d 381 (6th Cir. 1995). In our view, the Houston
decision on this issue is not particularly persuasive considering that the State
conceded the “instruction to be erroneous in this case.” Id. at 387. In any event, this
Court is not bound by decisions of the federal district and circuit courts. We are bound
only by decisions of the United States Supreme Court. State v. McKay, 680 S.W.2d
447, 450 (Tenn. 1984). This issue has been asserted in the United States Supreme
Court by many inmates of Tennessee’s death row, yet the Supreme Court has never
granted review and held the (i)(5) aggravating circumstance unconstitutional. We
realize that the United States Supreme Court’s denial of certiorari is not a ruling on the
merits. Teague v. Lane, 489 U.S. 288, 296, 109 S.Ct. 1060, 1067, 103 L.Ed.2d 334
(1989). However, until the United States Supreme Court renders an opinion holding
the aggravating circumstance unconstitutional, we will continue to adhere to the prior
decisions of this Court which have upheld the constitutional validity of the aggravating

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Howell harmless error review, we have considered whether the Williams

instructions were provided to the jury. 10 We necessarily must consider the

evidence and instructions remaining after elimination of the invalid aggravating

circumstance in order to answer the inquiry posed by Howell --whether beyond a

reasonable doubt the sentence would have been the same had the jury given no

weight to the invalid aggravating circumstance. The absence of the Williams

definitions has never been held to limit the significance of the (i)(5) aggravating

circumstance in a Howell analysis.

Though the (i)(5) aggravating circumstance is more subjective than other

aggravating circumstances in the sense that it requires careful consideration of the

facts of each murder, this subjectivity does not negate its strength in a Howell

analysis if, as in this case, the evidence in the record presented to the jury

overwhelmingly established the applicability of the aggravating circumstance.

In this case, the victim was approximately seventy (70) years old at the time

of the murder. The medical examiner found that Keegan had suffered a skull

fracture so severe that the skull had been pushed in toward the brain, causing a

laceration on the frontal lobe of the brain. This injury bruised the outer surface of

the skin and was two inches in diameter. A blunt instrument, possibly a rock,

circumstance.
10
In Hartman, 896 S.W.2d at 103-104, this Court considered the fact that the
jury was not given the Williams definitions as part of its Howell analysis. Also
considered significant in that case was the fact that the (i)(5) aggravating
circumstance was based almost entirely upon the testimony of a witness whose
credibility had been “seriously contested.” Though the Williams definitions were not
given in this case, unlike Hartman, the (i)(5) aggravating circumstance is based upon
objective physical evidence and testimonial evidence which is not seriously disputed.

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likely caused this wound and rendered the victim unconscious. Keegan also had

a jagged laceration over the right portion of his skull which penetrated the full

thickness of the scalp through to the bone. This injury was one-half to three-

quarters of an inch deep. Keegan also had a laceration across his right ear which

transected and cut through the cartilage. Both of these wounds were made by a

very sharp instrument. The fatal injury was a laceration of the throat which

extended from ear to ear and which was two and one-half to three inches in depth.

As one law enforcement official described this wound, the “victim’s throat was cut;

head almost decapitated.” The medical examiner testified that this fatal wound

was inflicted when the victim was lying unconscious on the floor. The cruelty with

which the perpetrators attacked this elderly man and showed no mercy toward him

after he was already unconscious and helpless demonstrates depravity of mind.

See State v. Zagorski, 701 S.W.2d 808, 814 (Tenn. 1985) (holding that infliction of

gratuitous violence and needless mutilation of victims who were already helpless

evinced depravity of mind); State v. Van Tran, 864 S.W.2d 465 (Tenn. 1993)

(holding that depravity of mind established by proof that the defendant shot the

seventy-four-year-old victim as she lay injured and helpless on the floor).

In specifically rejecting Strouth’s vagueness challenge to the aggravating

circumstance in an opinion denying his petition to rehear this Court’s opinion on

direct appeal, we described the aggravating circumstance and the proof

supporting it as follows:

This Court has consistently held that this aggravating
circumstance is directed to the conscienceless or pitiless act of a
defendant which is unnecessarily torturous to the victim, or evinces a
depraved state of mind; and that the depraved state of mind or the
torture inflicted must meet the test of heinous, atrocious, or cruel.
See State v. Pritchett, 621 S.W.2d 127 (Tenn. 1981); State v.

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 Groseclose, et al., 615 S.W.2d 142 (Tenn. 1981); State v. Dicks, 615
S.W.2d 126 (Tenn. 1981). This holding or construction, in our
opinion, meets the test of Godfrey v. Georgia, supra, and also that
voiced in Proffitt v. Florida, 428 U.S. 242, 255-56, 96 S.Ct. 2960,
2968, 49 L.Ed.2d 913 (1976).

[Strouth] and his companion-in-crime Jeffrey Dicks, struck
James Keegan on the head with a rock, rendering him unconscious.
While Mr. Keegan was in an unconscious state, [Strouth] and his
companion slit Mr. Keegan’s throat and left him to bleed to death - a
cold-blooded, intentional, conscienceless and pitiless act. An act
which can only be characterized as heinous and atrocious, and one
which evinces a depraved state of mind and justifies the imposition
of the death penalty, no mitigating circumstances being shown.

Contrary to Strouth’s assertion, the remaining valid aggravating circumstance in

this case is strong. It is supported by an abundance of proof which was presented

to the jury. Given the qualitative nature of this aggravating circumstance and the

high quantum of proof supporting, we conclude that it carried substantial weight

with the jury.

Next, we must consider the extent to which the prosecutor emphasized the

invalid felony murder aggravating circumstance in his closing argument. Our

review of the record does not indicate that the district attorney placed any unusual

emphasis on this aggravating circumstance. The closing argument first focused

upon the fact that little or no evidence of mitigating circumstances had been

presented. Next the prosecutor argued each of the six aggravating circumstances

upon which the State was relying at the sentencing hearing. The argument

relating to the felony murder aggravating circumstance was minimal. The

prosecutor merely reminded the jurors that by finding the defendant guilty of the

offense, they had also found the felony murder aggravating circumstance.

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 In his brief, Strouth quotes extensively from the district attorney’s argument

in an attempt to demonstrate undue emphasis. However, as the Court of Criminal

Appeals held, an objective reading of these excerpts reveals that the prosecution

was trying to emphasize an aggravating circumstance that the jury eventually

rejected, that the murder was committed to avoid arrest or prosecution, i.e. a

witness killing. Therefore, the prosecutor did not unduly emphasize the invalid

aggravating circumstance in closing argument. In fact, the emphasis placed upon

this aggravating circumstance was minimal.

Next, we note that no materially inaccurate or inadmissible evidence was

admitted to establish the aggravating circumstance. The evidence relied upon to

establish the aggravating circumstance had been properly admitted at the guilt

phase of the trial to support the conviction for felony murder. See Howell, 868

S.W.2d at 261. No additional evidence was introduced to support the invalid

aggravating circumstance at sentencing. An aggravating circumstance which

duplicates the elements of the underlying crime has less relative tendency to

prejudicially affect the sentence imposed. Id.

Finally, we must consider the nature, strength, and quality of the mitigating

evidence. We note that very little evidence was offered in mitigation. Officer

Keesling read two statements Strouth had given to law enforcement officials.

Counsel for the defense sought to introduce evidence on the Christian philosophy

of death as a punishment, but the court excluded such evidence as irrelevant.

Strouth now argues that much weight should be given to the fact that he was

young at the time this offense was committed -- nineteen-years-old. He argues

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that youth is an intrinsically strong mitigating circumstance and that it lessens his

degree of culpability for the crime. The State mentioned the defendant’s age

when arguing to the jury that little mitigation evidence had been presented.

Defense counsel did not stress Strouth’s age in closing argument. Instead,

defense counsel asked the jury to impose a life sentence because all “killing,”

including the death penalty as punishment for crime, is wrong.

We agree with the Court of Criminal Appeals that the quality of the

mitigation offered was weak. Strouth’s statements read by Officer Keesling to the

jury were contradictory. Any positive effect the exculpatory statement may have

had was virtually eliminated when measured against testimony and physical

evidence at trial that demonstrated Strouth’s primary role in the crime. The fact

that Strouth was nineteen at the time of the killing carries no great mitigation

weight since the record reflects that Strouth had been living independent of his

parents, traveling routinely between Tennessee and North Carolina, and

committing crimes as a juvenile. This is not the picture of a dependent teenager,

nor does it demonstrate an innocent young man whose inexperience in criminal

matters may have led him into an unlawful situation. Though Strouth argues that

he did not actually commit the murder, but was merely present when it occurred

and submits that this lesser degree of culpability should be considered in

mitigation, the evidence submitted at trial belies these contentions. The evidence,

as summarized previously, indicates that Strouth was actively involved in the

crime and actually inflicted the fatal wound. Overall, the quantity, nature and

quality of the mitigating evidence is weak.

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 CONCLUSION

After fully considering the record in this case in light of the analysis adopted

in Howell, we are convinced, beyond a reasonable doubt, that the sentence would

have been the same had the jury given no consideration to the invalid felony

murder aggravating circumstance. Therefore, we conclude that the jury’s

consideration of the invalid aggravating circumstance was harmless error. The

remaining aggravating circumstance was supported by an abundance of proof

which was qualitatively persuasive. The prosecutor did not emphasize the invalid

aggravating circumstance in his closing argument, and no inadmissible evidence

was introduced to support the invalid felony murder aggravating circumstance.

Little mitigation proof was offered, and the nature and quality of the mitigating

proof which was offered is weak. As a result, we conclude that the trial court and

Court of Criminal Appeals correctly held the Middlebrooks error harmless beyond

a reasonable doubt. The judgments of the lower courts which dismissed Strouth’s

petition for post-conviction relief are affirmed. Unless stayed by this Court or other

proper authority, Strouth’s sentence of death by electrocution shall be carried out

on October 28, 1999.

_______________________________
FRANK F. DROWOTA, III
JUSTICE

Concur:

Anderson, C.J.
Birch, J.

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Holder, J. - Separate Concurring Opinion

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