King v. State , 1999 Tenn. LEXIS 296 ( 1999 )

992 S.W.2d 946 (1999)

Tommy L. KING, Defendant/Appellant,
v.
STATE of Tennessee, Plaintiff/Appellee.

Supreme Court of Tennessee, at Nashville.

June 7, 1999.

Daniel J. Runde, Assistant Public Defender, Pulaski, Robert D. Massey, Co-Counsel, Pulaski, for Appellant.

John Knox Walkup, Attorney General and Reporter, John P. Cauley, Assistant Attorney General, Nashville, for Appellee.

OPINION

HOLDER, J.

In this post-conviction capital case, we granted this appeal to determine whether the jury's reliance on an invalid felony murder aggravating circumstance was harmless error. Upon review, we hold that the jury's consideration of the invalid felony murder aggravating circumstance was harmless beyond a reasonable doubt due to the strength of the remaining valid aggravating circumstances and the relative weakness or absence of any mitigating circumstances. The Court of Criminal Appeals' decision affirming the trial court's dismissal of the post-conviction petition is affirmed.

BACKGROUND

The defendant, Tommy Lee King, and his co-defendant, Ronald Davis, entered a tavern in May of 1982. The defendant fired a shot into the air and ordered the tavern's patrons and owner to lie down on the floor. The defendant robbed the patrons, rifled through the tavern's cash register, and took the owner's car keys. Apparently, the defendant then without provocation shot the tavern owner, who was lying on the floor. The shot entered the victim's neck and followed a downward trajectory through the victim's spinal cord. The tavern owner died approximately one week later as the result of the gunshot wound.

During the robbery, the defendant informed one of the tavern's patrons that "we ought to kill you anyhow." He then stated, "Let's kill them all." The defendant's co-defendant apparently dissuaded the defendant from killing everyone inside the tavern. The patrons were then told, "Don't even raise your head up an inch. If you do . . . I will just blow your brains out." When leaving the tavern, the defendant encountered a woman who was ordered at gunpoint to lie on the ground. The defendant fled in the tavern owner's car.

The record indicates that the defendant was approximately thirty years old at the time of the robbery and fatal shooting. He had a substantial criminal record that included five previous felony convictions. His felony convictions included kidnapping and attempted robbery. The defendant had a history of violating probation, and the present offenses were committed while the defendant was on probation. The defendant never accepted responsibility for his actions and attempted to justify killing the victim by stating that the victim refused to pay him for blue jeans and other merchandise. He also alleged the shooting was accidental. Witnesses testified contrary to the defendant's assertions, and character testimony indicated that the defendant's reputation for truth and veracity was poor.

The State submitted three aggravating circumstances for the jury's consideration: (1) the defendant had a prior conviction for a violent felony; (2) the defendant knowingly created a great risk of death to two or more persons other than the victim murdered; and (3) the murder occurred during the commission of a felony.^[1] The jury found the presence of all three aggravating circumstances and sentenced the defendant to death. Both the defendant's conviction and the defendant's sentence of death were affirmed by this Court on direct appeal. State v. King, 694 S.W.2d 941 (Tenn.1985). His prior petition for post-conviction relief was also denied, and that decision was affirmed on appeal. King v. State, No. 88-221-III, 1989 WL 28912 (Tenn.Crim.App., Mar. 31, 1989, Nashville), perm. to appeal denied (Tenn., Aug. 7, 1989).

Following this Court's decision in State v. Middlebrooks, 840 S.W.2d 317 (Tenn.1992) (Drowota and O'Brien, JJ. dissenting), cert. dismissed, 510 U.S. 124, 114 S. Ct. 651, 126 L. Ed. 2d 555 (1993), the defendant again petitioned for post-conviction relief. The trial court held that the jury's use of the felony murder aggravating circumstance was error under Middlebrooks. The trial court, however, held that the jury's reliance on the invalid aggravating circumstance was harmless error under the framework provided by this Court in State v. Howell, 868 S.W.2d 238 (Tenn.1993), cert. denied, 510 U.S. 1215, 114 S. Ct. 1339, 127 L. Ed. 2d 687 (1994). The trial court dismissed the defendant's petition for relief, and a majority of the appellate court affirmed finding:

In the present case two valid aggravating factors were clearly established. [King] had two prior felony convictions involving the use of or threat of personal violence. Also, the state presented proof that the appellant created great risk of death to two or more persons other than the victim during the course of the homicide. The proof supporting these two aggravating factors is overwhelming. Very little evidence of mitigation was offered. During the prosecutor's closing argument at sentencing, little emphasis was placed on the invalid aggravator. Furthermore, no additional evidence was introduced to support the invalid aggravating circumstance. . . . We conclude that the sentence would have been the same had the jury given no weight to the invalid felony murder aggravating factor.

We granted this appeal to determine whether the error was harmless.

ANALYSIS

At the time of the defendant's trial, the offense of 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, kidnapping, aircraft piracy, or the unlawful throwing, placing or discharging 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 contained virtually identical language: "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)(1997)].

In Middlebrooks, a majority of this Court found that Tenn.Code Ann. § 39-2-203(i)(7) mirrored the elements of Tenn.Code Ann. § 39-13-204(i)(7) and failed to narrow the class of death-eligible defendants. We held that application of the felony murder aggravating circumstance to impose the death penalty for felony murder violated both the Eighth Amendment to the United States Constitution and art. I, § 16 of the Tennessee Constitution. Middlebrooks, 840 S.W.2d at 346. In State v. Howell, this Court held that a Middlebrooks error is subject to a harmless error analysis. When evaluating a Middlebrooks error under a Howell analysis, we shall "completely examine the record for the presence of factors which potentially influence the sentence ultimately imposed." Howell, 868 S.W.2d at 260-61. The factors include "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.

A Middlebrooks error may be deemed harmless if we find "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." Howell, 868 S.W.2d at 261. We have held Middlebrooks errors to be harmless and have upheld the death sentence in the following cases. State v. Boyd, 959 S.W.2d 557 (Tenn.1998); State v. Hines, 919 S.W.2d 573 (Tenn.1995), cert. denied, 519 U.S. 847, 117 S. Ct. 133, 136 L. Ed. 2d 82 (1996); State v. Smith, 893 S.W.2d 908 (Tenn.1994), 516 U.S. 829, 116 S. Ct. 99, 133 L. Ed. 2d 53 (1995); Barber v. State, 889 S.W.2d 185 (Tenn.1994), cert. denied, 513 U.S. 1184, 115 S. Ct. 1177, 130 L. Ed. 2d 1129 (1995); State v. Nichols, 877 S.W.2d 722 (Tenn.1994), cert. denied, 513 U.S. 1114, 115 S. Ct. 909, 130 L. Ed. 2d 791 (1995); State v. Cazes, 875 S.W.2d 253 (Tenn.1994), cert. denied, 513 U.S. 1086, 115 S. Ct. 743, 130 L. Ed. 2d 644 (1995); Howell, 868 S.W.2d at 262. We have held that the error required resentencing in the following cases: State v. Walker, 910 S.W.2d 381 (Tenn.1995), cert. denied, 519 U.S. 826, 117 S. Ct. 88, 136 L. Ed. 2d 45 (1996), and Hartman v. State, 896 S.W.2d 94 (Tenn.1995).

STANDARD OF REVIEW

Middlebrooks has been applied retroactively and may be properly raised in a post-conviction case. See Barber v. State, 889 S.W.2d at 187. Middlebrooks errors are premised upon the Tennessee Constitution. Decisions addressing the harmful effect of a constitutional error that is a mixed question of fact and law are generally not afforded a presumption of correctness. See, e.g., Yates v. Evatt, 500 U.S. 391, 405, 111 S. Ct. 1884, 1894, 114 L. Ed. 2d 432 (1991). Accordingly, our review is de novo upon the record when assessing the effect of a Middlebrooks error. See Harries v. State, 958 S.W.2d 799, 802-803 (Tenn.Crim.App.1997), perm. to appeal denied (Tenn.1997).

REMAINING AGGRAVATING CIRCUMSTANCES

Prior Violent Felony Convictions

King admits that he has been previously convicted of two violent felonies, kidnapping and attempted robbery. He, however, argues that the substance and persuasiveness of these convictions are weak because his conduct in committing the offenses was not egregious. The defendant's argument is premised on his assertions that: (1) the kidnapping conviction merely resulted from a minor domestic dispute; and (2) his attempted robbery conviction resulted from a criminal episode in which his involvement was minimal. The defendant further argues that the relatively light sentences he received on both the kidnapping and the attempted robbery convictions show weakness of this aggravating circumstance.^[2] Finally, the defendant states that his argument is supported by this Court's prior description of the proof supporting this aggravating circumstance as "marginal." See State v. King, 694 S.W.2d 941, 944 (Tenn.1985) (stating "[e]ven if the proof as to this aggravating circumstance were marginal . . . .").

We disagree with the defendant's analysis. The mere fact that the victim of a kidnapping is either a spouse or a former spouse does not decrease the magnitude or substance and persuasiveness of that crime. Domestic violence is a serious problem plaguing our society that should not be minimized. Moreover, the mere fact that King's attempted robbery conviction stemmed from an incident involving three other individuals does not minimize the seriousness of the conviction. While the sentences imposed for these convictions were not extremely severe, we note that at least one of the sentences resulted from a negotiated plea agreement.

At the time of King's sentencing hearing, aggravating circumstance (i)(2) applied if the proof introduced by the State demonstrated beyond a reasonable doubt that "[t]he defendant was previously convicted of one (1) or more felonies, other than the present charge, which involved the use or threat of violence to the person." Tenn.Code Ann. § 39-2-203(i)(2) (1982 Repl.). The jury heard evidence from both the State and the defendant regarding the circumstances of these prior convictions. The jury found the proof sufficient to support this aggravating circumstance beyond a reasonable doubt, and this Court affirmed that finding in King's direct appeal.

Upon review, we have not reweighed the proof. We have, consistent with Howell, considered the evidence that was before the jury at the time it imposed the sentence of death. We have considered the proof supporting this aggravating circumstance. We have also considered the defendant's statements directed at depreciating the seriousness of his prior kidnapping and prior attempted robbery convictions. The defendant's statements are best categorized as mitigating proof that the jury could have used to weigh against its findings of the valid aggravating circumstances. The conduct underlying the defendant's prior convictions may be less egregious than the conduct underlying the prior convictions of other defendants who have appeared before this Court.^[3] We emphasize, however, that Howell does not require us to conduct a comparative review in determining the substance and persuasiveness of the remaining valid aggravating circumstances. Instead, we must consider the record in this case—the evidence actually presented to the jury—in light of the factors enumerated in Howell. We must then determine whether the sentence would have been the same had the jury given no weight to the invalid aggravating circumstance. We have followed the analysis delineated in Howell and conclude that, in this case, the prior violent felony conviction aggravating circumstance is both objectively reliable and amply supported by the proof.

Risk of Death to Others

The jury found that the defendant's conduct in murdering the victim "created a great risk of death to two (2) or more persons, other than the victim murdered, during the act of murder." Tenn.Code Ann. § 39-2-203(i)(3) (1982). The defendant entered a tavern and fired a shot into the air. He ordered the patrons at gunpoint to lie down on the floor. He shot and killed the tavern owner, who was lying on the floor. Upon leaving, the defendant encountered another woman outside the tavern. He ordered her at gunpoint to lie down on the ground. It was fortunate that others were neither killed nor wounded during this robbery as at least two shots were fired within the confines of a crowded tavern.

Again, we are unpersuaded by the defendant's argument that the evidence supporting this aggravator is lacking in substance or persuasiveness and should somehow be given less weight. Those persons ordered to lie on the tavern floor heard the defendant threaten: "We ought to just kill you anyhow" and "Let's kill them all" and were told, "[D]on't even raise your head up an inch. If you do . . . I will just blow your brains out." At least two shots were discharged by the defendant in a crowded tavern. While no additional victims were shot, the threat to their lives was very real. We again conclude that this second remaining valid aggravating circumstance is clearly supported by objectively reliable proof.

ARGUMENT AND EVIDENCE

The defendant lists several instances in which the State mentioned the robbery during argument at the sentencing phase of the trial. According to the defendant, this shows that undue emphasis was placed on the invalid felony murder aggravating circumstance. We disagree with the defendant's assessment.

We have carefully reviewed the State's argument. The State did not introduce any additional evidence in support of the invalid felony murder aggravating circumstance during the sentencing hearing. Taken as a whole, the State's argument did not emphasize the felony murder aggravating circumstance. The State's argument simply reminded the jury of the facts of the case, the circumstances of the offense, the defendant's version of the events, and the evidence impeaching the veracity of the defendant's version. We hold that the State did not place undue emphasis on the felony murder aggravating circumstance.

MITIGATING EVIDENCE

We find little or no mitigating proof upon careful examination of the record. The defendant is an extremely poor candidate for rehabilitation. He has been convicted of five prior felonies. He has a history of violating probation, and his present crimes were committed while he was on probation. He showed little or no remorse and refused to accept responsibility for his actions. Moreover, he attempted to blame the victimfor his actions. See King, 694 S.W.2d at 944 ("Very little was offered by way of mitigating circumstances other than the [defendant's] insistence that he was morally justified in his actions because [the victim] had refused to pay him for merchandise and his insistence that the shooting was accidental.").

The record does indicate that the defendant was thirty-two years old at the time of his trial, had previously been married, and had a three-year-old child. The defendant had previously worked as an insurance salesman, a cook, and a bricklayer. These, circumstances, however, offer little in mitigation.

CONCLUSION

We find two remaining valid aggravating circumstances and either no mitigating circumstances or mitigating circumstances of nominal weight. We find that the prosecutor's argument did not emphasize the invalid aggravating circumstance and no additional evidence was introduced to support the invalid circumstance. Accordingly, we affirm the Court of Criminal Appeals judgment and hold that beyond a reasonable doubt the jury would have imposed a sentence of death absent consideration of the invalid felony murder aggravating circumstance. It appearing that the defendant is indigent, the costs of this appeal are taxed to the State, for which execution may issue if necessary.

DROWOTA and BARKER, J.J., concurring.

ANDERSON, C.J., See separate Concurring/Dissenting Opinion in which BIRCH, J., concurs.

RILEY ANDERSON, Chief Justice, concurring and dissenting.

I agree with the majority that the jury's reliance on the felony murder aggravating circumstance in this case violated article I, § 16 of the Tennessee Constitution and that a harmless error analysis must be applied under our decision in State v. Howell, 868 S.W.2d 238 (Tenn.1993). I disagree, however, with both the majority's application of the Howell analysis and its conclusion.

In State v. Howell, this Court said that a constitutional harmless error analysis as applied to a capital sentencing proceeding requires the appellate court "to completely examine the record for the presence of factors which potentially influence[d] the sentence ultimately imposed," including the sum, strength, qualitative nature, substance and persuasiveness of any remaining aggravating circumstances. Id. at 261-62. In my view, the majority fails to properly apply this thorough analysis. Moreover, resentencing is necessary because the State has failed to prove beyond a reasonable doubt that the sentence would have been the same had the jury given no consideration to the unconstitutional aggravating circumstance. I therefore dissent.

CONSTITUTIONAL HARMLESS ERROR ANALYSIS

To understand Howell``s rationale and underpinnings, it is helpful to review the history of constitutional harmless error analysis in the United States Supreme Court. In Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), the Supreme Court declined to adopt a rule requiring reversal for all constitutional errors which occur in a trial. The Court observed that "there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless . . . ." Id. at 22, 87 S. Ct. at 827.

The Court recognized that "harmless-error rules can work very unfair and mischievous results when, for example, highly important and persuasive evidence, or argument, though legally forbidden, finds its way into a trial in which the question of guilt or innocence is a close one." Id. The Court therefore held that before a constitutional error could be deemed harmless, the beneficiary of the error, i.e., the prosecution, must prove "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Id. at 24, 87 S. Ct. at 828 (citing Fahy v. Connecticut, 375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171 (1963)).

The Supreme Court first applied Chapman to a capital sentencing proceeding in Satterwhite v. Texas, 486 U.S. 249, 108 S. Ct. 1792, 100 L. Ed. 2d 284 (1988) (holding that the admission of expert testimony about the defendant's risk for future dangerousness violated Sixth Amendment). In holding that the error was not harmless under Chapman, the Court emphasized that the question is "not whether the legally admitted evidence was sufficient to support the death sentence . . . but rather, whether the State has proved ``beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'" Id. at 258-59, 108 S. Ct. at 1798 (quoting Chapman, 386 U.S at 24, 87 S. Ct. at 828).

Two years later in another capital sentencing case, Clemons v. Mississippi, 494 U.S. 738, 110 S. Ct. 1441, 108 L. Ed. 2d 725 (1990), the United States Supreme Court remanded to the Mississippi Supreme Court, holding that when a capital sentencing jury in a weighing state has relied in part on an unconstitutional aggravating circumstance, an appellate court may either reweigh the remaining aggravating circumstances, if that is otherwise permissible under state law, or apply the Chapman harmless error analysis. In performing either analysis at the appellate level, however, the Court stressed that the defendant must be afforded "an individualized and reliable sentencing determination based on the defendant's circumstances, his background, and the crime" as required by the Eighth Amendment to the United States Constitution. Id. at 749, 110 S. Ct. at 1449.

In Stringer v. Black, 503 U.S. 222, 112 S. Ct. 1130, 117 L. Ed. 2d 367 (1992), the Supreme Court again stressed the need for "close appellate scrutiny of the import and effect of invalid aggravating factors to implement the well-established Eighth Amendment requirement of individualized sentencing determinations in death penalty cases." Id. at 230, 112 S. Ct. 1136 (emphasis added). Moreover, with regard to states such as Tennessee which employ a weighing process in the capital sentencing determination, the Court observed:

[W]hen the sentencing body is told to weigh an invalid factor in its decision, a reviewing court may not assume it would have made no difference if the thumb had been removed from death's side of the scale. When the weighing process itself has been skewed, only constitutional harmless-error analysis or reweighing at the trial or appellate level suffices to guarantee that the defendant received an individualized sentence. This clear principle emerges not from any single case . . . but from our long line of authority setting forth the dual constitutional criteria of precise and individualized sentencing.

Id. at 232, 112 S. Ct. at 1137 (emphasis added).

Finally, in Sochor v. Florida, 504 U.S. 527, 112 S. Ct. 2114, 119 L. Ed. 2d 326 (1992), a majority of the Supreme Court vacated a death sentence due to the Florida Supreme Court's failure to conduct a sufficient harmless error analysis under Chapman. In particular, the Court observed that the Florida court did not "explain or even ``declare'" that the trial court's consideration of an invalid aggravating circumstance "``was harmless beyond a reasonable doubt'" in that it "``did not contribute to the [sentence] obtained.'" Id. at 540, 112 S. Ct. at 2123 (quoting Chapman, 386 U.S. at 24, 87 S. Ct. at 828). In a separate concurring opinion, Justice O'Connor summarized the principles in this area:

In Chapman v. California, . . . we held that before a federal constitutional error can be held harmless, the reviewing court must find "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." This is justifiably a high standard, and while it can be met without uttering the magic words "harmless error," the reverse is not true. An 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. In Clemons v. Mississippi,. . . for example, we did not hesitate to remand a case for "a detailed explanation based on the record" when the lower court failed to undertake an explicit analysis supporting its "cryptic," one-sentence conclusion of harmless error.

Id. at 541, 112 S. Ct. at 2123 (O'Connor, J., concurring) (emphasis added) (citations omitted).

HOWELL ANALYSIS

The principles evident in these Supreme Court cases—that a constitutional error must be harmless beyond a reasonable doubt and that appellate review must preserve the constitutional requirement of individualized sentencing—were of primary concern in our opinion in State v. Howell. We therefore held that when a jury has returned a death sentence based partially on the invalid felony murder aggravating circumstance, the verdict may be upheld only 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 factor. See id. at 260; see also Stringer, 503 U.S. at 230-31, 112 S. Ct. at 1136-37.

In order to guarantee the precision that individualized sentencing considerations demand in capital cases and to provide a principled explanation for our review in each case, we established the following framework for appellate review:

[I]t is important, when conducting harmless error review, to completely examine the record for the presence of factors which potentially influence the sentence ultimately imposed. These include, but are not limited to, the number and strength of remaining valid 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, 112 S. Ct. 1130 (emphasis added).

As discussed above, the first factor in Howell requires consideration of any valid aggravating circumstances found by the jury. We stressed that "even more crucial than 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." Id. at 261. Accordingly, Howell expressly requires in-depth and critical analysis of all remaining aggravating circumstances.

The proper analysis is set out in Howell and later cases. In Howell, we found that the Middlebrooks error was harmless beyond a reasonable doubt in part because evidence supporting the remaining aggravating circumstance of prior violent felony convictions was "undisputed and overwhelming." Id. at 262. Although we observed that this aggravating circumstance is more "qualitatively persuasive and objectively reliable" than other aggravating circumstances, id. at 261, we still analyzed the substance and persuasiveness of the evidence that supported the (i)(2) aggravating circumstance as it applied to defendant Howell. We said:

In addition to the cold-blooded execution-style murder . . . in Memphis, Tennessee, the defendant committed another similar cold-blooded execution-style murder in Oklahoma within twenty-four hours . . . . Less than thirty days later, he committed an armed robbery in Florida and later engaged in a shootout with police officers before his capture, for which he was convicted of attempted murder. A few years earlier, he had been convicted in Wyoming for armed robbery.

Id. at 262.

Similarly, in State v. Nichols, 877 S.W.2d 722 (Tenn.1994), the Middlebrooks error was found to be harmless beyond a reasonable doubt in part because the valid remaining aggravating circumstance, prior violent felonies, was supported by five prior convictions for aggravated rape. In performing the harmless error analysis as required by Howell, we reviewed each of the five prior convictions in detail and considered the substance and persuasiveness of the evidence:

"the defendant had committed five similar aggravated rapes within 90 days of [the victim's] murder, and in three instances was armed with weapons including a cord, a pistol, and a knife. The modus operandi of the convictions was similar to the felony resulting in [the victim's] murder. The defendant, when "energized," went out night after night, roaming the city, selecting vulnerable victims, eventually breaking into their homes and violently committing rape. The evidence supporting the remaining valid aggravating circumstance is undisputed and overwhelming."

Id. at 738 (emphasis added); see also State v. Boyd, 959 S.W.2d 557 (Tenn.1998) (finding Middlebrooks error harmless beyond a reasonable doubt in part due to seriousness of the second degree murder used to establish the prior violent felony aggravating circumstance).

Likewise, the substance and persuasiveness of the remaining valid aggravating circumstances was scrutinized in cases where the Middlebrooks error required remand for a resentencing. In Hartman v. State, 896 S.W.2d 94 (Tenn.1995), this Court stressed:

In Howell, we noted that a critical factor in our harmless-error analysis was the qualitative nature of each aggravating circumstance that remained after the invalid aggravator was removed from the sentencing equation. This Court stated an intention to look to the substance of the remaining circumstances and their persuasiveness, as well as to the quantum of proof supporting them. The objective reliability of a remaining aggravating circumstance is of particular importance in this evaluation.

Id. at 103 (emphasis added).

In State v. Walker, 910 S.W.2d 381 (Tenn.1995), this Court conducted the Howell harmless error analysis and observed that the defendant's prior violent felony conviction for voluntary manslaughter was "not nearly as positive" as the evidence supporting the aggravating circumstance in Howell. Moreover, we indicated that the Howell analysis requires more than merely determining whether the evidence was sufficient to support the remaining aggravating circumstance:

[Walker] was indicted for first degree murder and found guilty of voluntary manslaughter. While this is, as instructed by the trial judge, conviction of a violent felony we have no way of knowing and cannot speculate whether the jury would have imposed the death penalty with one of the two aggravating circumstances withdrawn from their consideration and with the necessity of weighing the one remaining aggravating circumstance against the mitigating circumstances.

Walker, 910 S.W.2d at 398 (emphasis added).

In contrast, the majority in this case declines to "reweigh" the evidence of aggravating circumstances, stating only that it has "considered" the record and finds the valid aggravating circumstances "objectively reliable" and "amply supported by the proof." The majority does not discuss the strength, qualitative nature, substance, persuasiveness, or quantum of the proof supporting the valid aggravating circumstances despite the express requirement in Howell. Thus, the majority fails to properly apply Howell and also fails to preserve the requirement of individualized sentencing.^[1]

Remaining Aggravating Circumstances Prior Violent Felonies

We now apply the Howell harmless error analysis to the valid aggravating circumstances which were considered by the jury along with the invalid felony murder aggravating circumstance. To establish the first aggravating circumstance, that the defendant had a prior conviction for a felony that involved violence or the threat of violence, see Tenn.Code Ann. § 39-2-203(i)(2) (1982) (now codified at Tenn.Code Ann. § 39-13-204(i)(2) (1997 & Supp.1998)), the State relied upon the defendant's prior convictions for kidnapping and attempt to commit a felony, to wit, robbery.^[2]

In analyzing the strength, substance and persuasiveness of this aggravating circumstance as required by Howell, we observe that it was described as "marginal" by this Court on direct appeal. State v. King, 694 S.W.2d 941, 944 (Tenn.1985). The fact that King received only a suspended sentence and probation for the kidnapping of his wife and nine months imprisonment for the attempted robbery necessarily is relevant to the strength, seriousness and persuasiveness of those crimes. Moreover, the fact that the crimes did not involve actual harm to a victim is also relevant.

As pointed out in the concurring opinion by Judge Wade in the Court of Criminal Appeals and by way of illustration,^[3] the strength, substance, and persuasiveness of King's prior convictions are weaker than in any of our prior cases in which the error has been deemed harmless. In Howell, the defendant had prior convictions for murder and armed robbery. 868 S.W.2d at 262. In Boyd, the defendant had a prior conviction for second degree murder. 959 S.W.2d at 561. In Nichols, the defendant had multiple convictions for aggravated rape. 877 S.W.2d at 738. In State v. Smith, 893 S.W.2d 908, 926 (Tenn.1994), the defendant had prior convictions for robbery, assault with intent to murder, and aggravated rape. In State v. Cazes, 875 S.W.2d 253, 270 (Tenn.1994), the defendant had prior convictions for assault with intent to murder and aggravated rape. In contrast, where this factor was supported only by a conviction for voluntary manslaughter, we concluded that resentencing was necessary. Walker, 910 S.W.2d at 398.

Accordingly, in applying Howell, I would conclude that King's prior convictions marginally established this aggravating circumstance. The prior convictions, however, lacked the strength, substance and persuasiveness of the egregious convictions supporting this factor in other cases. In my view, all of these factors should be taken into consideration in conducting the harmless error analysis under Howell.

Remaining Aggravating Circumstances Great Risk of Death

We now apply the Howell harmless error analysis to the second remaining valid aggravating circumstance found by the jury. It was that the defendant "knowingly created a great risk of death to two (2) or more persons, other than the victim murdered, during his act of murder." Tenn.Code Ann. § 39-2-203(i)(3) (1982) (now codified at Tenn.Code Ann. § 39-13-204(i)(3) (1997 & Supp.1998)).

This Court has previously held that this aggravating circumstance "contemplates either multiple murders or threats to several persons at or shortly prior to or shortly after an act of murder upon which the prosecution is based." State v. Cone, 665 S.W.2d 87, 95 (Tenn.), cert. denied, 467 U.S. 1210, 104 S. Ct. 2400, 81 L. Ed. 2d 357 (1984). We have most commonly upheld its application in cases where the defendant fires multiple gunshots in the course of a robbery or other incident at which several persons other than the murder victim are present. E.g., State v. McKay, 680 S.W.2d 447 (Tenn.1984), cert. denied, 470 U.S. 1034, 105 S. Ct. 1412, 84 L. Ed. 2d 795 (1985) (defendants killed two victims during robbery and shot at and threatened two other persons inside store); State v. Workman, 667 S.W.2d 44 (Tenn.), cert. denied, 469 U.S. 873, 105 S. Ct. 226, 83 L. Ed. 2d 155 (1984) (defendant engaged in shoot-out with police, killing one officer, wounding a second, and missing a third); State v. Johnson, 632 S.W.2d 542 (Tenn.), cert. denied, 459 U.S. 882, 103 S. Ct. 183, 74 L.Ed.2d 148 (1982) (three people shot and injured in store and two people shot and killed in the parking lot as defendant fled). On the other hand, this Court has held that this factor was not applicable where the defendant shot and threatened three persons while fleeing from a robbery but did not kill the two victims until the following day. Cone, 665 S.W.2d at 95.

Courts in other states have analyzed similar aggravating factors by considering a multitude of circumstances: the manner of the killing, the type of weapon used by the defendant, the number of gunshots fired, the size of the scene in which the killing occurred, and the proximity of other individuals. See, e.g., State v. Rose, 327 N.C. 599, 398 S.E.2d 314 (1990); Commonwealth v. Moser, 519 Pa. 441, 549 A.2d 76 (1988).

Other courts have restricted the application of this aggravating factor, holding that "great risk" of death means "highly probable" and not merely possible. See, e.g., State v. Smith, 146 Ariz. 491, 707 P.2d 289 (1985); Kampff v. State, 371 So. 2d 1007 (Fla.1979).

I agree with the majority that King's actions were legally sufficient to support this aggravating factor. I disagree, however, with the majority's view that Howell requires only a determination of whether the factor is supported by "objectively reliable" proof. Instead, in reviewing the strength, substance and persuasiveness of the aggravator, I note that this case substantially differs from the multiple gunshots and random shoot-outs that marked such cases as Johnson, Workman, and McKay. Moreover, although several individuals were present, there was no random exchange of gunfire and only the victim was shot at and killed. I believe, therefore, that all of these circumstances must be taken into consideration in applying the constitutional harmless error analysis.

Prosecutor's Argument at Sentencing

We next turn to the third Howell factor in the harmless error analysis—whether and the extent to which the prosecution relied on the invalid felony murder factor in arguing for the death penalty in the sentencing phase of the trial. The State's argument is replete with references to the felony murder factor, as well as to the fact that the killing occurred during a robbery. A review of the prosecutor's opening argument reveals the following statements:

[W]hen you carefully analyze as you have done, and find that on May 27th, 1982, without justification of any sort, without claim of any right, this man willfully, deliberately took the life another with malice with a deadly weapon and took that in the course of committing another felony, to wit: Armed robbery.

. . .

The day is gone when we can just pick out a county and go there and pick out a man and pick out a business, rob and kill, and then with impunity seek to escape the accountability of our deeds.

. . .

And 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. He committed this murder in the course of an armed robbery.

. . .

Hold this man accountable, stop his reign of criminal activity, put him under the kind of sentence that will forbid him to once again roam the streets seeking criminal activity, that will forbid him from once again choosing to come on a tour of Maury County to kill and to murder.

The following additional references to the felony murder aggravating factor appear in the prosecution's final closing remarks:

[The defendant] comes to Maury County for no good reason other than he says he has some stolen goods in his car that he wants to sell, and goes into a place of business in Maury County to a man that he says he doesn't even know, and with the purpose, with his big pistol, with the purpose to rob and the, the pre-conceived notion that he will kill if he has to, and rob and kill the decent citizens of this community.

. . .

We have listed for your consideration no less than three mitigating [sic] circumstances. One of which you have already determined, and that is that this murder was committed during the course of an armed robbery.

. . .

That has [been] determined in order to find that this man was guilty of felony murder, so that has been found by you already beyond a reasonable doubt.

. . .

Violence, crimes of violence, risk of death to two or more persons, and of course, the underlying felony in this felony murder charge of which he now stands convicted which you have already found beyond a reasonable doubt.

. . .

When a man takes a pistol, whether he takes a large pistol such as this, or a little bitty pistol, when he takes an instrument of death and goes into another person's business with the preconceived purpose of using that instrument of death for whatever, or in whatever manner is necessary in order to steal and rob from the people there, then I cannot see any mitigating circumstances when he goes in there and kills a man.

It is evident from the foregoing that the State's reliance on the invalid felony murder aggravating factor was substantial and strongly emphasized in seeking the death penalty. Moreover, the jury was told on several occasions that, by virtue of its guilty verdict, it had already found this circumstance to have been proven. Accordingly, I disagree with the majority's conclusion that taken as a whole, the State's argument did not emphasize the felony murder aggravating circumstance.

Mitigating Evidence

The fourth enumerated factor in Howell requires the reviewing court to look at the nature, quality, and strength of mitigating evidence that was before the jury. Mitigating evidence may include any aspect of the defendant's background, record, character, and any circumstances about the offense that may mitigate against the death penalty. State v. Teague, 897 S.W.2d 248, 255 (Tenn.1995); see also Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 2964, 57 L. Ed. 2d 973 (1978).

The defendant's mitigation evidence consisted of only his own testimony and was not extensive or overwhelming. Nonetheless, King testified that he was 32 years old at the time of sentencing; that he had two brothers and two sisters, and his parents were deceased. He had been married and divorced, and had one son who was 3 years old at the time of the sentencing hearing. King had worked selling insurance and as a cook for a restaurant in Chattanooga. After having surgery on his stomach, he worked part-time for his brother as a brick-layer. King testified that he had never intentionally harmed anyone.^[4]

CONCLUSION

The majority has failed to properly apply the constitutional harmless error analysis as required by Howell by failing to consider the strength, qualitative nature, substance, and persuasiveness of the remaining valid aggravating circumstances and, as a result of its failure, has reached a conclusion with which I cannot agree.

The constitutional error in the sentencing phase of a capital case may be deemed harmless only 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." Howell, 868 S.W.2d at 262 (emphasis added). As Justice O'Connor emphasized in Sochor v. Florida, "this is justifiably a high standard." 504 U.S. at 541, 112 S. Ct. at 2123 (O'Connor, J., concurring).

Having thoroughly reviewed the relevant factors which potentially influenced the sentence reached by the jury, I cannot conclude beyond a reasonable doubt that the sentence would have been the same had the jury given no weight to the invalid aggravating circumstance. I would, therefore, remand for resentencing free from the constitutional defect that was present in this case. I am authorized to state that Justice Birch concurs in this opinion.

NOTES

[1] See Tenn.Code Ann. § 39-2-203(i)(2), (3), and (7)(1982)[now Tenn.Code Ann. § 39-13-204(i)(2), (3), and (7)(1997)].

[2] The defendant was sentenced to two years in the state penitentiary and ten years probation on the kidnapping conviction. He received nine months probation on the attempted robbery conviction.

[3] Indeed, the dissent cites examples of cases in which the number of prior convictions supporting the aggravating circumstance was greater and the conduct resulting in the conviction was more egregious. See State v. Smith, 893 S.W.2d 908, 926 (Tenn.1994); State v. Cazes, 875 S.W.2d 253, 270 (Tenn.1994).

[1] Moreover, the majority appears to consider only whether the evidence was legally sufficient to establish an aggravating circumstance and not the strength, substance, and persuasiveness of the proof establishing that circumstance.

[2] The version of (i)(2) in effect at the time of this case requires a finding that "[t]he defendant was previously convicted of one or more felonies . . . which involve the use or threat of violence to the person." Tenn.Code Ann. § 39-2-203 (1982). In contrast, the present form of (i)(2) requires a finding that "[t]he defendant was previously convicted of one (1) or more felonies. . . whose statutory elements involve the use of violence to the person." Tenn.Code Ann. § 39-13-204(i)(2)(1997 & Supp.1998).

[3] Although I agree with the majority assertion that Howell does not require a comparative review of cases, I would also observe that Howell does not preclude such a comparison to other cases for the purpose of illustration in undertaking a thorough review. Indeed, examining our precedent for the purpose of measuring the effect of an error in a case being reviewed is a basic component of appellate review.

[4] Cf. Hartman, 896 S.W.2d at 103 (Middlebrooks error required resentencing despite minimal evidence of mitigating factors).