Separately Upon The Presence of The Error First Recognized In State v. Middlebrooks

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
SEPTEMBER 1996 SESSION February 12, 1997
Cecil W. Crowson
Appellate Court Clerk
TOMMY L. KING )
) C.C.A. No. 01C01-9512-CC-00415
Appellant, )
) Maury County
V. )
) Honorable James L. Weatherford, Judge
)
STATE OF TENNESSEE, ) (Post-Conviction: Felony Murder)
)
Appellee. )
CONCURRING OPINION
While I concur in the results reached by my colleagues, I choose to comment
separately upon the presence of the error first recognized in State v. Middlebrooks,
840 S.W.2d 317 (Tenn. 1992), and the harmlessness of its effect in this case. The
defendant had prior convictions for kidnapping, for which he served a ten-year
period of probation, and for attempted robbery, about which the record contains
almost no information. Each of those convictions qualified as an aggravating
circumstance; only one prior felony involving violence to a person is required for the
application of this factor. Tenn. Code Ann. § 39-13-204(i)(2). A second aggravating
circumstance, that the defendant created a "great risk of death to two (2) or more
persons, other than the victim," was also properly found to apply. Tenn. Code Ann.
§ 40-13-204(i)(3). The third aggravating circumstance found by the jury, that the
murder was perpetrated during the commission of a felony, has been eliminated
from consideration.
Certainly, a harmless error analysis is warranted. State v. Howell, 868
S.W.2d 238, 259 (Tenn. 1993). Yet these circumstances, it should be noted, are
less egregious than those prior instances in which our supreme court has applied
the harmless constitutional error doctrine with favorable results to the state. For
example, in Howell, the defendant's prior convictions were for an execution-style
murder, two armed robberies, and attempted murder. Id. at 262. In State v.
Nichols, 877 S.W.2d 722, 738 (Tenn. 1994), the defendant had five aggravated
rapes within ninety days of the murder that eventually resulted in the death penalty
verdict. In State v. Smith, 893 S.W.2d 908, 926 (Tenn. 1994), the prior offenses
were armed robbery, aggravated rape, and assault with intent to commit first degree
murder. In State v. Cazes, 875 S.W.2d 253, 270 (Tenn. 1994), the prior convictions
were for aggravated rape and assault with intent to commit first degree murder.
Because of the gravity of the prior violent offenses by these individuals, our supreme
court had little difficulty in determining that the Middlebrooks error was harmless
beyond a reasonable doubt.
In my view, this case presents a closer question. Two valid aggravating
circumstances remain. For example, in the direct appeal of this case, our supreme
court yielded to the death penalty verdict by the jury even though it described the
proof of the prior violent felonies as "marginal." State v. King, 694 S.W.2d 941, 944
(Tenn. 1985).
That circumstance is nonetheless present; as indicated, the defendant had
two prior violent crimes. Coupled with the real threat to the other patrons during the
course of this robbery and murder, the presence of two significant aggravating
circumstances suggests the death penalty verdict would have been the same
despite the erroneous reliance upon the invalid aggravating circumstance. While
not as overwhelming as the history of prior violence of Howell, Nichols, Smith and
Cazes, the quality, persuasiveness, and substance of the valid aggravating factors
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in this case do warrant the penalty assessed. I agree that in the context of the
entire record, the Middlebrooks error was harmless beyond a reasonable doubt.
____________________________________
Gary R. Wade, Judge
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