King v. State

impose rize a court to a new sentence

under the act after a par- defendant has Tommy KING, Defendant/Appellant, L. tially Depart- served his sentence in the ment Bowling, of Correction. Tennessee, STATE of at 364. The trial court had authority Plaintiff/Appellee. original commence execution of the entered, judgment originally as it was but Tennessee, Supreme Court of it did not authority have the to increase at Nashville. original the defendant’s sentence. See June §§ Ann. TenmCode 40-35-310 & 40-35- 311(d); Bowling, 958 S.W.2d at 364.

Therefore, the maximum sentence avail-

able to the court years was six in the penitentiary.

state Accordingly, judgment

amended of conviction of the

trial court should be modified to reflect an six-year

effective sentence.

CONCLUSION

While appellant’s we find that the sen- expired

tences had not prior to the institu-

tion of the revocation proceedings, the ten-

year sentence imposed upon revocation of sentencing alternative was improper. proper years sentence is six in the

Department of Correction. We affirm the

trial judgment court’s as modified. The

cause is remanded to the trial court for

correction of improper judgment

case 14075 and the reinstatement of the

six-year sentence.

Costs are assessed to the of Ten-

nessee.

ANDERSON, C.J, DROWOTA,

BIRCH, HOLDER, JJ., concur. petition post-conviction of the

dismissal affirmed.

BACKGROUND defendant, Tommy King, and Lee The co-defendant, Davis, entered Ronald his May The defendant of 1982. tavern the air and ordered a shot into the fired down on patrons and owner to lie tavern’s pa- the defendant robbed the floor. The trons, cash through rifled the tavern’s keys. car the owner’s register, took defendant then without Apparently, the owner, tavern who shot the provocation on floor. The shot entered lying was followed a downward the victim’s neck and spinal trajectory through victim’s approxi- The tavern owner died cord. of the later as result mately one week wound. gunshot in- robbery, During the defendant tavern’s patrons formed one of the anyhow.” then ought you to Mil He “we stated, all.” “Let’s kill them The defen- apparently co-defendant dissuaded dant’s killing everyone inside the defendant from told, patrons tavern. The were then Runde, Daniel J. Assistant Public De- If head inch. your up even raise an “Don’t fender, PulasM, Massey, Robert D. Co- just ... I blow brains you your do will Counsel, PulasM, Appellant. for tavern, the defen- leaving out.” When a woman who was or- Walkup, Attorney Knox General dant encountered John ground. to lie on the Reporter, Cauley, gunpoint P. Assistant dered at John Nashville, General, in the tavern owner’s Attorney Appellee. for The defendant fled

car. OPINION The record indicates the defendant thirty at the years old approximately was HOLDER, J. shooting. robbery and time of the fatal case, criminal record capital we He had substantial post-conviction In this felony determine five convictions. previous whether included granted appeal Mdnapping felony felony included reliance on an invalid His convictions jury’s attempted The defendant was murder circumstance probation, and history violating review, hold had a Upon error. we harmless while were committed present invalid the offenses jury’s consideration of the de- probation. was on the defendant responsibility accepted never fendant harmless reasonable was killing justify attempted actions and strength due to re- by stating that the victim relative the victim aggravating circumstances and the jeans and other pay him for blue cir- fused to mitigating absence of weakness alleged shoot- Ap- He also merchandise. cumstances. The Court Criminal testified Witnesses affirming ing court’s was accidental. peals’ decision trial contrary to assertions, the defendant’s involving the use of personal or threat of character testimony indicated that the de- Also, violence. presented state reputation fendant’s for truth and veracity proof that appellant great created poor. risk of death to persons two or more other than the victim during the course

The State submitted three aggravating of the homicide. proof The supporting circumstances for jury’s consideration: these two factors is (1) over- the defendant had a conviction for whelming. Very little evidence of miti- felony; violent the defendant know- gation was During prose- offered. ingly great created a risk of death to two closing cutor’s argument at sentencing, persons more other than the victim emphasis little placed on (B) the invalid murdered; the murder occurred aggravator. Furthermore, no additional during the commission felony.1 of a evidence was introduced to support the presence found the of all three aggra- invalid aggravating circumstance.... vating circumstances and sentenced the We conclude that the sentence would defendant to death. Both the defendant’s have been the jury given same had the conviction and the defendant’s sentence of weight no felony the invalid death murder were affirmed this Court on di- aggravating factor. appeal. rect King, 694 S.W.2d 941 (Tenn.1985). prior petition His post- for granted appeal this to determine denied, conviction relief was also and that whether the error was harmless. decision was appeal. affirmed on King v. ANALYSIS

State, 88-221-III, No. 1989 WL 28912 (Tenn.Crim.App., 31, 1989, Mar. Nash- At trial, the time of the defendant’s ville), perm, (Tenn., to appeal denied Aug. offense of felony “[e]very murder included 7,1989). murder of, committed in perpetration or attempt to perpetrate, any murder Following this Court’s decision State degree, arson, the first rape, robbery, bur- Middlebrooks, (Tenn. v. 840 S.W.2d 317 glary, larceny, kidnapping, dissenting), piracy, aircraft 1992) (Drowota O’Brien, JJ. or the throwing, unlawful placing or dis- dismissed, rt. 124, 510 U.S. 114 ce charging of a destructive device or 651, (1993), 126 L.Ed.2d 555 the de ” bomb.... § Tenn.Code Ann. 39-2- again fendant petitioned post-convic for 202(a) (1982)[now § Tenn.Code Ann. 39- tion relief. The trial court held that the 13-202(a)(2)(1997) felony ]. The murder jury’s felony use of the aggrava murder aggravating circumstance contained virtu- ting circumstance was error under Middle- ally identical language:, “the murder was court, however, brooks. The trial held committed while the defendant was en- jury’s reliance on the ag gaged in committing ... any degree first gravating circumstance was harmless er murder, arson, rape, robbery, burglary, ror under the provided by framework this larceny, kidnapping, aircraft piracy or un- Howell, Court in v. State 868 S.W.2d 238 lawful throwing, placing or discharging of (Tenn.1993), denied, 1215, cert. a destructive device or bomb.” Tenn.Code 114 S.Ct. 127 L.Ed.2d 687 39-2-203(i)(7)(1982)[now § Ann. Tenn. The trial court dismissed the defendant’s 39-13-204(i)(7)(1997) § Code Ann. ]. relief, petition for and a appellate finding: court affirmed Middlebrooks, In a majority of this present case two valid Court found § that Tenn.Code Ann. 39-2- 203(i)(7) clearly factors were established. mirrored the elements of Tenn.

[King] prior felony 13—204(i)(7) had two § convictions Code Ann. and failed to 39— 39-2-203(i)(2), (3), 204(i)(2), § (3), (7)(1997) See Tenn.Code Ann. ]. (7)(1982)[now § Tenn.Code Ann. 39-13-

949 Walker, v. following State death-eligible cases: defen- narrow class of denied, (Tenn.1995), cert. application We held that S.W.2d 381 dants. L.Ed.2d circumstance to felony U.S. State, (1996), 896 S.W.2d mur- and Hartman penalty the death impose (Tenn.1995). Eighth violated both the Amendment der art. States Constitution and to the United

1, § of the Tennessee Constitution. OF REVIEW STANDARD Middlebrooks, at 846. In applied has been Middlebrooks that a held Middle- Court raised properly retroactively and subject to a harmless error brooks error Barber v. post-conviction case. See evaluating Middle- analysis. When State, at 187. Middlebrooks 889 S.W.2d analysis, error under a Howell we brooks upon Tennessee errors the premised are the “completely examine record shall the addressing Decisions Constitution. potentially presence of factors which the that harmful effect of a constitutional ultimately im- influence the sentence are of fact and law question is a mixed Howell, at 260-61. posed.” 868 S.W.2d of presumption afforded a generally not number and The factors include “the Evatt, See, e.g., 500 Yates v. correctness. strength remaining aggravating 1894, 391, 1884, 114 405, 111 S.Ct. U.S. stances, prosecutor’s argument the at sen- our re Accordingly, L.Ed.2d 432 the to tencing, evidence admitted establish the when upon view is novo record de nature, aggravator, invalid and the er assessing effect of Middlebrooks quality, strength mitigating and evi- State, 799, v. 958 ror. See Harries S.W.2d dence.” Id. to (Tenn.Crim.App.1997), perm, 802-803 (Tenn.1997). may

A Middlebrooks error be appeal deemed denied if “beyond harmless we And reasonable that the sentence would have been REMAINING AGGRAVATING given had no jury weight

the same CIRCUMSTANCES fac- Felony Prior Violent Convictions Howell, tor.” 868 S.W.2d 261. We that have held errors to harm- admits he has been King Middlebrooks felo upheld previously and have death convicted two violent less sentence nies, Boyd, and following kidnapping attempted cases. State v. 959 Hines, He, (Tenn.1998); however, argues v. the substance S.W.2d 557 State denied, (Tenn.1995), convictions persuasiveness cert. and these 919 S.W.2d 573 847,117 133,136 weak his conduct in commit 519 S.Ct. L.Ed.2d 82 are because U.S. (1996); Smith, not The egregious. was 893 S.W.2d 908 offenses his (Tenn.1994), 829,116 99,133 premised on argument 516 defendant’s U.S. S.Ct. (1) con (1995); State, the kidnapping that: L.Ed.2d 53 Barber 889 assertions (Tenn.1994), denied, minor do merely viction resulted from a 185 cert. 513 S.W.2d 1177, attempted 1184, dispute; 115 130 mestic his S.Ct. L.Ed.2d U.S. Nichols, (1995); resulted a crimi robbery conviction from 1129 State v. denied, his (Tenn.1994), episode nal in which involvement 722 cert. argues minimal. 1114, 909, defendant further 130 L.Ed.2d 791 (1995); Cazes, he re relatively light that the sentences 875 S.W.2d 253 denied, (Tenn.1994), kidnapping ceived on both cert. U.S. (1995); show attempted convictions L.Ed.2d 644 aggravating circums weakness of 868 S.W.2d at 262. We have held Finally, the defendant states in the tance.2 required resentencing that the error kidnapping re- conviction. He years tion on the defendant was sentenced two 2. The years penitentiary proba- and ten in the state that his argument is supported by this the sentence of death. We have consid- prior Court’s description of proof proof ered the supporting this aggravating supporting this aggravating We have also considered as “marginal.” King, See State v. defendant’s statements directed at de- (Tenn.1985) preciating S.W.2d prior the seriousness of (stating kid- proof napping prior “[e]ven if the attempted robbery as to this aggravating victions. The marginal....”). circumstance were defendant’s statements are categorized best mitigating proof disagree with the analy- defendant’s could weigh against have used to sis. The mere fact that the victim of a its findings of the valid aggravating cir- kidnapping is a spouse either or a former cumstances. The conduct underlying the spouse does not decrease magnitude defendant’s convictions be less substance egregious than the conduct underlying the crime. Domestic violence is a serious prior convictions of other defendants who problem plaguing society our that should appeared have before this Court.3 We not be minimized. the mere however, emphasize, that Howell does not fact King’s attempted robbery convic- require us to conduct comparative a review tion stemmed from an incident involving in determining persua- the substance and three other individuals not does minimize remaining siveness of the valid the seriousness of the conviction. While Instead, ting circumstances. must we con- imposed sentences for these convic- sider the record in this case—the evidence severe, extremely tions were not we note actually presented jury light to the —in that at least one of the sentences resulted factors enumerated Howell. We from negotiated plea agreement. a must then determine whether the sentence At the time of King’s sentencing hear- would have been the same had the jury (i)(2) ing, aggravating circumstance ap- given weight no to the if plied proof introduced the State circumstance. We have followed the anal- beyond demonstrated a reasonable doubt ysis delineated in Howell and conclude that “[t]he defendant previously was con- that, case, prior this violent (1) felonies, victed of one or more other conviction aggravating circumstance is than present charge, which involved both objectively reliable and amply sup- the use or threat of per- violence to the ported by proof. 2—208(i)(2) son.” § TenmCode Ann. 89— (1982 Repl.). jury heard evidence Risk of Death to Others from both the State and the defendant The jury found that the defendant’s con- regarding the prior circumstances of these duct in murdering the victim “created a jury convictions. The proof found the suf- great risk of death to two or more support ficient to this persons, murdered, other than the victim doubt, a stance reasonable and this during the act of murder.” TenmCode Court finding King’s affirmed di- 2—203(i)(3)(1982). §Ann. The defen- 39— appeal. rect dant entered tavern and fired a shot into review,

Upon we have not re air. patrons gun- He ordered the weighed have, the proof. We point consistent to lie down on the floor. He shot Hoivell, with owner, considered the evidence that and killed the tavern lying who was was before the at the imposed time it on Upon the floor. leaving, the defendant probation ceived attempt- greater nine months on resulting and the conduct in the con robbery ed conviction. egregious. viction was more Smith, See (Tenn. 1994); 893 S.W.2d Indeed, examples the dissent cites of cases Cazes, (Tenn. prior in which the number of convictions 1994). supporting circumstance was EVIDENCE MITIGATING another woman outside encountered he gunpoint her at to tavern. He ordered mitigating proof no find little or It fortunate ground. on the was down record. careful examination upon neither killed nor wound- that others were candi- extremely poor is an The defendant two during this as at least ed con- He has been rehabilitation. date for fired the confines of shots were within He has felonies. victed of five tavern. crowded pres- and his history violating probation, he was the de- committed while unpersuaded by are ent crimes were Again, we little no re- sup- He showed probation. that the evidence on argument fendant’s accept responsibility lacking sub- and refused to porting aggravator morse attempted he to and should actions. stance or for his his actions. See given weight. less Those the victim for somehow be blame (“Very floor little was King, to he on the tavern at 944 persons ordered S.W.2d ought mitigating circumstances by way the defendant threaten: “We heard offered kill insistence that just you anyhow” kill and “Let’s than the [defendant’s] to other “[Djon’t told, justified in his actions be- morally were even them all” and he was pay him you an inch. If do ... had refused your up victim] raise head cause [the that the At least and his insistence just your I will brains out.” for merchandise blow accidental.”). discharged by shooting two shots were the defen- was no addi- dant a crowded tavern. While indicate that the defen- The record does shot, were the threat tional victims at the time thirty-two years old dant was very again their real. We lives married, trial, previously had been of his ag- clude that this second The defen- three-year-old child. and had gravating clearly sup- circumstance is an insur- worked as previously dant had ported by objectively proof. reliable salesman, cook, bricklayer. and a ance however, These, circumstances, little offer AND ARGUMENT EVIDENCE mitigation. in The defendant lists several instances mentioned the which the State CONCLUSION argument sentencing phase at the during defendant, According of the trial. to the aggrava- find two We emphasis placed this that undue was shows mitigat- and either no ting circumstances felony aggravating on the invalid murder circum- mitigating ing circumstances disagree with the de- circumstance. We find that weight. of nominal stances fendant’s assessment. empha- did not prosecutor’s argument the aggravating circumstance size the invalid carefully reviewed the State’s We have introduced and no additional evidence not introduce argument. The State did Ac- the invalid circumstance. support any support evidence in of the additional the of Criminal cordingly, we affirm Court felony murder beyond a and hold that Appeals judgment hearing. during sentencing stance im- jury would have reasonable doubt whole, argument did Taken as a the State’s consider- of death absent posed a sentence felony aggrava- murder emphasize not felony murder the invalid ation of argument ting circumstance. State’s It appearing circumstance. of the facts simply reminded this the costs of indigent, is defendant offense, case, the circumstances of the State, which to the for are taxed appeal events, and of the the defendant’s version necessary. if may issue execution veracity of impeaching the the evidence that the We hold the defendant’s version. J.J., BARKER, on the DROWOTA place emphasis not undue

State did concurring. felony murder ANDERSON, C.J., separate insignificant they may, See tant and Constitution, Concuiring/Dissenting Opinion in sistent with the Federal be which harmless_” 22, BIRCH, J., deemed Id. at 87 S.Ct. concurs. at 827. ANDERSON, Justice, RILEY Chief recognized The Court that “harmless- concurring dissenting. error very rules can work unfair and mis- I agree majority with the jury’s when, example, chievous highly results reliance on the evidence, important persuasive or ar- I, this case violated article forbidden, gument, though legally finds its § 16 of the Tennessee Constitution and way question into a trial which the that a analysis harmless error must be guilt or innocence is a close one.” Id. The applied under our decision State v. How- Court therefore held that before a consti- ell, (Tenn.1993). 868 S.W.2d 238 I dis- harmless, tutional error could deemed however, agree, majority’s with both the error, i.e., beneficiary prose- application analysis of the Howell and its cution, prove “beyond must a reasonable conclusion. that the complained error did not contribute to the obtained.” Id. at verdict

In State v. this Court said that a 24, 87 (citing Fahy S.Ct. v. Connect- constitutional harmless icut, U.S. L.Ed.2d applied to a capital sentencing proceeding (1963)). appellate completely court “to examine presence the record for the Chap The Supreme applied Court first potentially factors which influence[d] the capital sentencing proceeding man to a ultimately imposed,” including sentence Texas, Satterwhite v. sum, nature, strength, qualitative sub- 1792, 100 (holding L.Ed.2d 284 stance and remain- testimony expert admission of ing aggravating circumstances. Id. at about the defendant’s risk for future dan view, my 261-62. fails to Amendment). gerousness violated Sixth properly apply thorough analysis. In holding that the error was not harmless Moreover, resentencing necessary be- Chapman, emphasized under the Court prove beyond cause the State has failed to question legal that the is “not whether the a reasonable doubt the sentence ly sup admitted to evidence was sufficient would have been the same had the rather, port the death sentence ... but given no consideration to the unconstitu- proved ‘beyond whether the has a tional I there- com reasonable doubt the error fore dissent. plained of did not contribute to the verdict ” 258-59, at obtained.’ Id. at 108 S.Ct. 24, (quoting Chapman, 1798 386 U.S at 87

CONSTITUTIONAL HARMLESS 828). at S.Ct. ERROR ANALYSIS years capital To understand Howell’s rationale and Two later another sen- case, underpinnings, helpful tencing Mississippi, it is to the Clemons v. 494 review 738, 1441, history of constitutional error 108 L.Ed.2d 725 harmless U.S. 110 S.Ct. (1990), analysis in Supreme Supreme the United States the United States Court Chapman California, Mississippi Supreme Court. In v. 386 remanded to the 18, 824, Court, holding capital U.S. 87 S.Ct. 17 L.Ed.2d 705 that when a sentenc- (1967), Supreme ing jury the declined to in a has relied in weighing Court state adopt requiring part a rule reversal for all con- on an unconstitutional circumstance, appellate may stitutional errors which occur in a trial. an court ei- may reweigh remaining aggravating observed that “there be ther the Court circumstances, permis- if some constitutional errors which that is otherwise law, apply Chap- setting particular unimpor- of a case are so sible under state or of an invalid consideration analysis. perform- court’s harmless error In man “ level, ‘was harmless analysis appellate at the ing either “ ” not however, de- in that it ‘did stressed that the a doubt’ Court reasonable obtained.’” afforded “an individual- to the [sentence] fendant must be contribute Chap- 540,112 (quoting determination sentencing reliable at 2123 ized and Id. at S.Ct. 828). circumstances, 24, In a man, the defendant’s based on U.S. at S.Ct. re- the crime” as Justice background, concurring opinion, separate Amendment to Eighth principles quired summarized O’Connor 749, Id. at Constitution. United States this area:

110 S.Ct. at ... held California, we Chapman In v. Black, 222, er- constitutional Stringer In that before a federal (1992), harmless, reviewing 117 L.Ed.2d 367 ror can held S.Ct. the need a reasonable again “beyond Court stressed must find Supreme court scrutiny import appellate complained for “close of did that the error to to the verdict obtained.” not contribute factors effect Eighth standard, implement the well-established justifiably high This requirement of individualized Amendment uttering the it can be met without while sentencing penalty determinations death error,” the re- “harmless magic words (empha Id. at cases.” appellate court’s not true. An verse is added). Moreover, to regard with sis consti- that an bald assertion employ a states such as Tennessee which “harmless” tutional dimensions capital sentencing in the weighing process ex- principled cannot substitute for determination, the observed: Court reached that how the court planation of body to sentencing Mississip- is told

[W]hen conclusion. Clemons decision, weigh example, an invalid factor its we did not hesitate pi,... for reviewing explana- not assume it court remand a case for “a detañed made no would have on the record” when tion based difference if thumb had been removed death’s an ex- court faded to undertake lower from weighing “cryptic,” side the scale. its plicit analysis supporting When skewed, er- only has been of harmless process one-sentence conclusion itself stitutional harmless-error ror. level reweighing appellate at the trial or (O’Connor, J., at 2123 Id. at guarantee defendant suffices added) (citations (emphasis concurring) sentence. received an individualized omitted). principle emerges This clear not from long ... from our any single case but ANALYSIS HOWELL authority forth the dual setting line of Supreme in these principles evident The in- precise criteria of and constitutional a constitutional Court cases—that sentencing. dividualized beyond a reasonable be harmless must (emphasis Id. at 112 S.Ct. at 1137 pre- must appeUate and that review doubt added). in- requirement of the constitutional serve Florida, sentencing primary in 504 U.S. dividualized Finally, Sochor —were in v. Howell. opinion in our 527, 112 119 L.Ed.2d 326 concern S.Ct. jury that when a has therefore held (1992), majority Supreme Court We a partially based Flori- returned a death sentence due to the vacated a death sentence aggravating felony murder conduct a on the invalid Court’s failure to Supreme da circumstance, upheld the verdict be analysis under sufficient harmless error beyond reviewing court concludes only ob- if a Chapman. particular, In Court the sentence court did not “ex- a reasonable that the Florida served had the the same would have been ‘declare’” that the trial plain or even it to defen- given weight applied no to the invalid factor. See circumstance as 260; dant Howell. We said: Stringer, id. at see also 230-31,112 at 1136-37. S.Ct. In addition to the cold-blooded execu- tion-style ... in Ten- Memphis, guarantee precision In order to nessee, anoth- the defendant committed sentencing individualized considerations execution-style er similar cold-blooded provide in and to capital demand cases twenty-four murder in within Oklahoma for principled explanation our review later, thirty days hours.... Less than case, following each we established the an in Flor- he committed armed appellate framework for review: in a engaged ida and later shootout with conducting harm- important, [I]t is when capture, for police officers before review, completely less error examine attempted which he was convicted of presence the record of factor's earlier, years A he had murder. few potentially which the sentence influence Wyoming convicted in for armed been include, ultimately imposed. These but to, are not limited the number and 262. Id. at strength remaining valid Nichols, Similarly, circumstances, prosecutor’s argu- (Tenn.1994), S.W.2d Middlebrooks sentencing, ment at the evidence admit- harmless error was found aggravator, ted to establish the invalid in part reasonable doubt because the valid nature, quality strength and the circumstance, remaining aggravating prior mitigating evidence. felonies, supported by pri- violent five 260-61, (emphasis Id. at In aggravated rape. or convictions for added). analysis the harmless error performing above, As discussed the first factor in Howell, required by we reviewed each of Howell consideration of valid prior the five convictions detail and circumstances found persuasive- considered substance jury. that “even more crucial We stressed ness of the evidence: remaining aggravating than the sum of the five simi- “the defendant had committed qualitative circumstances is the nature of days aggravated rapes lar within circumstance, per- each its substance murder, and in three in- victim’s] [the suasiveness, quantum of as well as the weapons with includ- stances was armed it.” Id. at Accord- proof supporting cord, a and a knife. The ing pistol, ingly, expressly requires in-depth Howell operandi modus of the convictions was remaining ag- critical of all felony resulting in [the similar to the gravating circumstances. defendant, murder. The when victim’s] “energized,” night night, went out after proper analysis is set out Howell city, selecting vulnerable roaming the and later cases. we found victims, eventually breaking into their the Middlebrooks error was harmless be- violently committing rape. homes and yond part a reasonable doubt because remaining supporting The evidence aggra- supporting evidence circumstance is un- vating violent disputed overwhelming.” and over- “undisputed convictions was added); see also Although (emphasis at we ob- Id. at 738 State whelming.” Id. 262. (Tenn.1998) (find- Boyd, 959 S.W.2d 557 aggravating served that this circumstance beyond a Middlebrooks error harmless persuasive ing and ob- “qualitatively is more due to serious- part reasonable doubt jectively aggravating reliable” than other to circumstances, degree of the murder used analyzed id. at we still ness second felony aggrava- prior of the establish the violent the substance and circumstance). (i)(2) supported that the evidence aggravating one of the two Likewise, penalty with persuasive- the substance their from withdrawn aggravating circumstances of the ness necessity the of and with consideration scrutinized cases circumstances was remaining aggravating weighing the one required error re- where the Middlebrooks cir- mitigating the against In Hartman v. circumstance resentencing. for a mand (Tenn.1995), State, cumstances. this 896 S.W.2d Court stressed: Walker, (emphasis add- at 398 ed). noted that a critical

In we analysis factor in our harmless-error case contrast, majority this In the aggra- nature of each qualitative was the ag- of “reweigh” the evidence to declines after that remained vating circumstance circumstances, only that stating gravating aggravator was removed the invalid and finds the record it has “considered” sentencing equation. This from the “ob- aggravating circumstances the valid to the an intention to look Court stated “amply supported jectively reliable” and remaining circum- the substance dis- does not by proof.” of persuasiveness, their as stances and nature, sub- strength, qualitative cuss the quantum proof support- to the well as stance, of the quantum persuasiveness, of objective reliability of a ing them. The cir- aggravating proof the valid supporting remaining aggravating circumstance require- despite express cumstances in this evalua- particular importance of Thus, majority fails in Howell. ment tion. and also fails to apply to Howell properly of individualized preserve requirement added). (emphasis Id. at 103 sentencing.1 Walker, In 910 S.W.2d 381 State (Tenn.1995), this Court conducted Remaining Aggravating Circumstances analysis and ob- Howell harmless Felonies Prior Violent prior the defendant’s violent served manslaugh- voluntary conviction for harmless er- apply the Howell We now nearly positive” “not as the ter was cir- aggravating to the valid ror cir- supporting evidence by considered which were cumstances Moreover, we indi- cumstance Howell. felony murder jury along with the analysis requires the Howell cated that To establish aggravating circumstance. merely determining than whether more circumstance, the first support the evidence was sufficient conviction for had a the defendant remaining aggravating circumstance: the threat involved violence or felony that § violence, Ann. 39-2- TenmCode see degree indicted for first

[Walker] 203(i)(2) (1982) (now codified TenmCode voluntary guilty and found (1997 39-13-204(i)(2) Supp. is, § & Ann. manslaughter. as in- While 1998)), upon the defen- relied conviction judge, structed the trial kidnapping way prior convictions felony we have no of dant’s a violent wit, rob- felony, attempt to commit speculate and cannot whether knowing bery.2 the death imposed have would the use or threat majority appears felonies ... which involve to consider legally Ann. only person.” the evidence was Tenn.Code whether violence to the suffi- contrast, establish an present cient to § 39-2-203 substance, persua- strength, and not (i)(2) finding "[t]he form of establishing proof siveness of one previously convicted defendant was stance. statutory elements ... whose or more felonies person.” violence to the the use of involve (i)(2) time of in effect at the 2. The version 39-13-204(i)(2)(1997 & § Ann. Tenn.Code finding that defen- "[t]he a this case Supp.1998). previously of one or more dant was convicted

956 this factor in analyzing strength, supporting

In and victions other substance view, persuasiveness my of this cases. In all of these factors Howell, by required stance we observe should be into consideration-in con- taken “marginal” by that it was described as analysis ducting the harmless error under appeal. King, Court on direct State v. 694 Howell. (Tenn.1985). 941,

S.W.2d 944 The fact only a King suspended received sen- Remaining Aggravating Circumstances probation kidnapping for the of

tence and imprisonment nine months for wife and Risk of Death Great attempted robbery necessarily is rele- now the Howell harmless er- apply We strength, per- vant to the and seriousness ror to the second crimes. suasiveness of those by circumstance found crimes did fact that not involve jury. “knowing- It was that the defendant a victim is relevant. actual harm to also (2) death to ly great created a risk of two concurring opinion in the pointed As out more than the victim persons, other in the Judge Wade Court of Criminal murdered, of during his act murder.” illustration,3 Appeals by way of and 39-2-203(i)(3) (1982) § Ann. Tenn.Code substance, persuasiveness strength, (now §Ann. 39-13- codified at Tenn.Code King’s are than in prior convictions weaker 204(i)(3) (1997 Supp.1998)). & prior of our cases which the error This held that this Howell, previously Court has has harmless. In deemed been “contemplates prior had convictions for defendant or threats to sev multiple either murders murder and armed 868 S.W.2d shortly prior at In eral to or short Boyd, persons 262. defendant had at or prior for murder. degree ly upon conviction second after an act of murder which the Nichols, Cone, 969 In defen- 561. v. prosecution S.W.2d State 665 is based.” multiple aggravat- denied, dant convictions 87, (Tenn.), had for cert. 467 S.W.2d 95 ed at 738. In v. rape. 1210, 2400, 877 S.W.2d State 81 L.Ed.2d 357 U.S. 104 S.Ct. 908, (Tenn.1994), Smith, 926 893 S.W.2d commonly upheld have most prior had convictions defendant application its in cases where defen murder, with intent robbery, assault in the gunshots fires course multiple dant Cazes, In State v. aggravated rape. incident at of a or other which 253, (Tenn.1994), 875 270 the de- S.W.2d persons than the murder vic several other prior had convictions for assault fendant McKay, are 680 present. E.g., tim State aggravated with to murder and intent (Tenn.1984), denied, cert. S.W.2d 447 contrast, rape. where this factor was 1412, 1034, 84 L.Ed.2d 795 U.S. 105 S.Ct. supported only by a conviction for volun- (defendants (1985) killed two victims dur tary that re- manslaughter, we concluded at and threatened ing robbery and shot Walker, necessary. sentencing was store); two other inside persons cert, S.W.2d at 398. Workman, (Tenn.), 667 S.W.2d denied, 469 U.S. I applying

Accordingly, (defendant engaged L.Ed.2d 155 King’s prior convic- would conclude officer, killing one police, shoot-out tions marginally established this with third); second, missing a convictions, wounding (Tenn.), Johnson, however, strength, lacked substance 882, 103 denied, cert. egregious Indeed, thorough undertaking a review. Although agree I with the assertion purpose examining precedent for the require comparative our does not that Howell cases, measuring of an error a case also the effect I would observe review being component appel- comparison reviewed is a preclude such a basic Howell does not purpose late review. illustration other cases for prosecution to which the (1982) (three the extent and and people shot L.Ed.2d felony murder factor on the invalid shot and relied people and two injured store fled). in the penalty for the death arguing as defendant parking in the lot killed The State’s hand, has held of the trial. sentencing phase this Court the other On to the applicable where with references replete this factor was not is argument factor, three the fact shot and threatened well as to the defendant as felony murder robbery. a but fleeing during while from persons killing occurred follow until the argu- kill the two victims opening did not prosecutor’s A of the review Cone, 665 S.W.2d at 95. ing day. following statements: reveals the ment analyzed have [Wjhen you in other states carefully analyze Courts you considering by 27th, factors May done, similar find that on and have manner sort, circumstances: multitude of any of justification without used killing, type weapon this man any right, claim of without defendant, gunshots the number of anoth- deliberately took the life willfully, fired, in which the size of the scene weapon and deadly er with malice with occurred, of other proximity and the killing committing course of in the took Rose, See, e.g., State v. individuals. robbery. felony, to wit: Armed another (1990); 599, 398 S.E.2d 314 Common- N.C. Moser, A.2d 76 v. 519 Pa. wealth just pick we can day gone when applica- courts have restricted Other out a go pick there and county out a and factor, holding that tion of this business, rob and pick and out a man proba- “great “highly risk” of death means kill, seek to es- impunity then with See, e.g., merely possible. ble” and not accountability of our deeds. cape the Smith, Ariz. 707 P.2d 289 State,

(1985); 371 So.2d 1007 Kampff

(Fla.1979). King’s agree I with the committed while the murder was And legally support sufficient to actions were in commit- engaged the Defendant I how- disagree, factor. in the com- accomplice an ting, or was ever, majority’s that Howell with the view commit, of, attempting to or was mission only a determination whether at- committing, or fleeing after or was supported by “objectively reli- the factor is degree first to commit tempting Instead, reviewing proof. able” arson, robbery, burglary, murder, rape, strength, substance and piracy, or aircraft larceny, kidnapping, I note that this case sub- aggravator, discharg- throwing, placing, unlawful multiple gun- stantially differs from the bomb. He device or ing of a destructive marked and random shoot-outs that shots in the course this murder committed Workman, Johnson, such cases as an armed indi- although several McKay. there was no random present,

viduals were victim only

exchange gunfire believe, accountable, I there- at and killed. stop was shot this man Hold fore, circumstances must that all of these him under activity, put reign of criminal applying consideration him taken into forbid sentence that will the kind of analysis. seeking harmless error constitutional again roam the streets to once him activity, that forbid will criminal Sentencing Argument at Prosecutor’s come on a choosing to again once from kill County to Maury factor tour of the third Howell next turn to murder. harmless error —whether 958 following

The additional necessary references to the ner is in order to steal and felony murder aggravating appear there, factor rob from I people then cannot in prosecution’s final closing any mitigating remarks: see circumstances when goes he there and kills man. Maury County

[The comes to defendant] good for no reason says other than he he It is evident from the foregoing that the has goods some stolen his car that he felony State’s reliance on the invalid mur- sell, wants to goes place into a of der aggravating factor was substantial and Maury County business in to a man that strongly emphasized seeking the death know, says he he doesn’t even and with penalty. was told on purpose, big pistol, with his with the that, by several occasions virtue of its the, purpose to rob and the pre-con- verdict, guilty already it had found this ceived notion if that he will kill he has proven. circumstance to have been Ac- to, and rob and kill the decent citizens of cordingly, disagree I with majority’s community. whole, conclusion that taken as a argument emphasize

State’s did not felony murder your We have listed for consideration no Mitigating Evidence mitigating less than three [sic] you stances. already One of which have The fourth enumerated factor Howell determined, is that this murder reviewing court to look at the was committed during the course of an nature, quality, and strength mitigating of armed jury. evidence that was before Miti

gating any aspect evidence include record, background, the defendant’s char acter, circumstances about the That has determined in [been] order may mitigate against offense that guilty find that this man was penalty. Teague, death murder, by you so that has been found (Tenn.1995); S.W.2d see also already beyond a reasonable doubt. Ohio, 586, 604, Lockett v. 438 U.S. 98 S.Ct.

2954, 2964, 57 L.Ed.2d 978 mitigation The defendant’s evidence con- Violence, violence, crimes of risk of testimony of only sisted his own and was persons, death to two or more and of overwhelming. not extensive Nonethe- course, underlying felony in this fel- less, King years testified he was ony charge which he now at the sentencing; old time he had stands you already convicted which have sisters, par- two brothers and two and his found a reasonable doubt. ents deceased. He had been married were divorced, and had one son who was 3 years sentencing old at the time of the pistol, hearing. King selling When a man takes a whether he had worked insur- this, a large pistol takes such as or a ance and as a cook for a restaurant bitty pistol, little in- Chattanooga. having surgery when he takes an After on his stomach, goes part-time strument of death and into another he worked for his person’s brick-layer. preconceived King business with the brother as a testified purpose using intentionally instrument of that he had never harmed whatever, anyone.4 death for or in whatever man- Hartman, (.Middle- factors). mitigating S.W.2d at minimal evidence of Cf. required resentencing despite brooks error at 2123 dard.” CONCLUSION (O’Connor,J., concurring). ap- properly has failed rele- thoroughly anal- Having constitutional harmless error reviewed ply the influenced by failing potentially ysis required by Howell factors which vant nature, I cannot strength, jury, reached qualitative consider the the sentence substance, persuasiveness of the re- reasonable conclude the same maining circumstances would have been the sentence failure, and, jury given weight of its reached no to the as a result has had the would, I there- agree. conclusion with which cannot I from fore, resentencing free remand constitutional in the sentenc- present constitutional defect that deemed ing capital of a phase case I am to state in this case. authorized if the only reviewing harmless court opinion. Birch concurs in this Justice “beyond a doubt that cludes reasonable had would have been the same sentence jury given no to the invalid weight How- factor.” added).

ell, at 262 (emphasis

As O’Connor Sochor emphasized Justice Florida, “this is stan- justifiably high

Case Details

Case Name: King v. State

Court Name: Tennessee Supreme Court

Date Published: Jun 7, 1999

Citation: 992 S.W.2d 946

Docket Number: 01S01-9707-CC-00146

Court Abbreviation: Tenn.