State v. Perry A. Cribbs

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
FILED
April 13, 1998
STATE OF TENNESSEE ) FOR PUBLICATION
) Cecil Crowson, Jr.
Appellee ) Filed: Appellate C ourt Clerk
)
v. ) Shelby County
)
PERRY A. CRIBBS ) Hon. W. Fred Axley, Judge
)
Appellant ) S. Ct. No. 02-S-01-9703-CR-00014
CONCURRING AND DISSENTING OPINION
I fully concur in the majority holding that Cribbs’
conviction for first-degree murder should be affirmed. I concur
also in the conclusion reached by Justice Reid that the
Middlebrooks error in this case more probably than not affected the
sentence. I write, however, to express my separate view as to
punishment in this case and, at the same time, to summarize the
manner in which I have addressed Middlebrooks errors in previous
cases.
In State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992),
cert. dismissed, 510 U.S. 124, 114 S. Ct. 651, 126 L. Ed. 2d 555(1993), this Court determined that it is constitutionally
permissible to impose the death penalty for felony-murder under
Tennessee’s death penalty provisions. However, the Court further
held that the aggravating circumstance set forth in Tenn. Code Ann.
§ 39-2-203(i)(7)(1982),1 that the defendant was engaged in
committing a felony, cannot be used as the sole support for
imposition of the death penalty when the defendant’s conviction for
felony-murder is based on the same felony. The reasoning is that
the (i)(7) aggravating circumstance does not sufficiently narrow
the population of death-eligible felony-murder defendants under the
Eighth Amendment to the U.S. Constitution and Art. I, § 16 of the
Tennessee Constitution, because (i)(7) essentially duplicates the
elements of the offense of felony- murder. Id. at 323. After the
application of the (i)(7) aggravating circumstance was found
unconstitutional in that case, the sole aggravating circumstance
remaining to support imposition of the death penalty was that the
murder was heinous, atrocious, or cruel in that it involved
torture, under Tenn. Code Ann. § 39-2-203(i)(5)(1982). Although
the (i)(5) aggravating circumstance was amply supported by the
evidence, the Court was unable to conclude that the constitutional
error was harmless beyond a reasonable doubt, and the Court
accordingly remanded for a resentencing hearing. Id.
In the case under review, the Middlebrooks error occurred
because the jury relied on the aggravating circumstance found in
Tenn. Code Ann. § 39-13-204(i)(7)(1991): the murder was committed
while the defendant was engaged in committing a burglary. The
circumstances of the burglary had already been utilized to convict
Cribbs of felony-murder, and the other two first-degree murder
verdicts had been stricken by the trial court. As a result, the
1
The death penalty provisions at Tenn. Code Ann. § 39-2-203
have been repealed; the aggravating circumstances are now codified
at Tenn. Code Ann. § 39-13-204 (1991).
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class of death-eligible defendants was not sufficiently narrowed,
as is required by the United States and Tennessee Constitutions.
With the now invalidated (i)(7) aggravating circumstance,
only one other aggravating circumstance is left to support Cribbs’
death sentence: the defendant was previously convicted of one or
more felonies, the statutory elements of which involve the use of
violence to the person. Tenn. Code Ann. § 39-13-204(i)(2) (1991).
In support of this aggravating circumstance, the State adduced
proof regarding four prior convictions--two attempted second-degree
murder convictions, one aggravated robbery conviction, and one
second-degree burglary conviction. The State concedes that it
mistakenly admitted evidence of the prior burglary conviction,
which does not involve violence. Standing alone, this error is a
minor one. In addition, however, it is important to note that each
of the remaining three prior convictions arose from the same
incident. Consequently, the number of prior convictions submitted
to the jury--four--is extremely misleading.
Because the Middlebrooks error is combined with
misleading evidence regarding the only remaining aggravating
circumstance, I am unable to find that the jury would have reached
the same conclusion had the improper evidence not been submitted.
Although Cribbs may not have offered persuasive mitigating
evidence, and the prosecution may not have emphasized or adduced
additional proof of the invalid aggravating circumstance, I cannot
conclude that the cumulative effect of these errors was harmless
beyond a reasonable doubt. Particularly in light of my previous
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decisions on this issue, I am convinced that this case must be
remanded for a new sentencing hearing.
In previous death penalty cases involving similar errors,
I have consistently expressed that the cause should be remanded for
a new sentencing hearing. In State v. Walker, 910 S.W.2d 381, 398
(Tenn. 1995) cert. denied. ___ U.S. ___, 117 S. Ct. 88, 136 L.
Ed.2d 45 (1996), I joined in the Court’s unanimous holding
remanding the case for a new sentencing hearing. The defendant had
been convicted of felony-murder, in the shooting death of a woman
in the course of a robbery. The jury based its imposition of the
death sentence on two aggravating circumstances: (1) the defendant
had previously been convicted of a violent felony, voluntary
manslaughter; and (2) the murder was committed in the course of a
robbery. Tenn. Code Ann. § 39-2-203(i)(2) and (i)(7)(1982). The
second aggravating circumstance was invalid under Middlebrooks, and
the Court concluded that there was no way of knowing whether the
jury would have imposed the death penalty, had it not been
permitted to consider the improper evidence. Id.
In Hartman v. State, 896 S.W.2d 94, 104 (Tenn. 1995), a
post-conviction case, the defendant had been convicted of murder in
the perpetration of a kidnaping. An inmate testified that the
defendant had bragged to him about raping the victim before and
after he killed her. I wrote for the majority of the Court,
retroactively applying Middlebrooks and remanding the case for
resentencing because the Middlebrooks error invalidated the
aggravating circumstance that the murder was committed during the
commission of a kidnaping. In addition, the jury had relied on two
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valid aggravating circumstances: (1) the murder was especially
heinous, atrocious, or cruel in that it involved torture or
depravity of mind; and (2) the murder was committed by the
defendant during his escape from lawful confinement. Tenn. Code
Ann. § 39-2-203(i)(5) and (i)(8)(1982).
We noted in Hartman that several facts supported a
finding of harmless error. First, no additional evidence was
introduced in support of the invalid aggravating circumstance that
the murder was committed during a kidnaping. Additionally, the
prosecutor did not emphasize the invalid aggravating circumstance
in his argument, and there was little mitigating evidence.
Moreover, the Court found that the “escapee” aggravating
circumstance was both objective and uncontradicted. Nevertheless,
because the “heinous, atrocious or cruel” aggravating circumstance
was less objective and the credibility of the testimony supporting
it was highly contested, the Court could not conclude that the
sentence would have been the same had the jury accorded no weight
to the invalid aggravator. Id. at 103-05.
Finally, in State v. Bigbee, 885 S.W.2d 797, 800 (Tenn.
1994), I joined the majority’s conclusion that the case be remanded
for a new sentencing hearing. The defendant had been convicted of
felony-murder in the beating and shooting death of a convenience
store clerk during a robbery attempt. The jury found two
aggravating circumstances to support imposition of the death
sentence: (1) the defendant was previously convicted of one or
more violent felonies; and (2) the murder was committed while the
defendant was attempting to commit a robbery. Tenn. Code Ann.
5
§ 39-13-203(i)(2) and (i)(7)(1982). The second aggravating
circumstance was invalid under Middlebrooks. Additionally,
irrelevant evidence was admitted regarding the defendant’s prior
conviction of felony-murder. The jury heard evidence concerning:
the life sentence the defendant had received when he was previously
convicted, the facts surrounding the previous murder, the character
of the previous victim, and the impact the murder had on the
previous victim’s family. Further, the State improperly emphasized
the facts of the prior murder and made an appeal to vengeance in
its argument. The Court held that these cumulative errors were not
harmless beyond a reasonable doubt and remanded for resentencing.
Id. at 809-16.
In two cases, I joined the majority in finding a
Middlebrooks error harmless. In the first, State v. Boyd, 959
S.W.2d 557 (Tenn. 1998), a post-conviction case, the defendant was
convicted of felony-murder stemming from the shooting death of a
person during a robbery. After we retroactively applied
Middlebrooks and invalidated the (i)(7) aggravating circumstance,
only one other aggravating circumstance, a prior conviction for
second-degree murder, supported the death sentence. Tenn. Code
Ann. § 39-2-203(i)(2)(1982). Because the prosecutor did not
emphasize or bring additional evidence of the invalid aggravating
circumstance, and because the mitigating evidence was weak,
consisting only of the defendant’s testimony, the majority found
the error harmless beyond a reasonable doubt.
In the second, State v. Hines, 919 S.W.2d 573 (Tenn.
1995) cert. denied, ___ U.S. ___, 117 S. Ct. 133, 136 L. Ed. 2d 826
(1996), I joined in the conclusion that the Middlebrooks error was
harmless because the (i)(7) aggravating circumstance was supported
by three different felonies: larceny, robbery, and rape. Thus,
there was only a partial duplication with the felony-murder
conviction, which was based solely on the robbery. Additionally,
two other aggravating circumstances supported the death sentence.
Id. at 583-84.
In the case under review, I conclude that a remand is
appropriate. With the exception of Boyd, when error leaves only a
single aggravating circumstance remaining, I have been unwilling to
hold that the jury’s decision was unaffected by the error.
Moreover, when the Middlebrooks error is combined with at least one
additional error, I have also been unwilling to hold the jury’s
decision was unaffected. I distinguish Boyd from the instant case:
in Boyd the Middlebrooks error was the sole sentencing problem.
Here, not only was the Middlebrooks error misleading to the jury,
but also the number of prior convictions submitted to the jury was
misleading.
In sum, I agree with the majority that the first-degree
murder conviction must be affirmed. However, because I find that
the submission to the jury of an invalid aggravating circumstance
and an invalid prior conviction is not harmless beyond a reasonable
doubt, I respectfully dissent. I would remand this cause to the
trial court for a new sentencing hearing.
_________________________________
ADOLPHO A. BIRCH, JR., Justice
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