*1 defendant, judicial process ther the nor the case. prejudiced by the error in this
Accordingly, I decision of would reverse the Appeals of Criminal and reinstate upholding the judgment of the trial court attempted aggra- conviction for
defendant’s rape. vated Tennessee, Appellee,
STATE BOYD, Appellant. Michael Joe Tennessee, Supreme Court of at Jackson. 5, 1998. Jan. Rehearing Denied March *2 Walkup, Attorney
John Knox General and Moore, Reporter, Michael E. Solicitor Gen- eral, Morante, Kathy Deputy Attorney Gen- eral, Nashville, Pierotti, John District W. (at Trial), Attorney Terry Harris, General (at Trial), Attorney Assistant District Mem- phis, Appellee. for
OPINION
ANDERSON, Chief Justice. pen- post-conviction The issue this death alty appeal is whether the reliance on aggravating an invalid error, resentencing or whether required because there is reasonable doubt that the sentence the same would have been jury given aggravating jury relied on a factor. The factor, valid that the defendant felony had a conviction for a violent murder), in- (second-degree offense and an the vic- during tim of a was killed commission felony.1 majority A of this Court held murder factor 39-2-203(i)(7) found in Tenn.Code Ann. du- plicates and mirrors the elements of the of- fense of murder and when applied as an factor to a conviction, it fails to narrow the class eligible required by of defendants as is I, § article 16 of the Tennessee Constitution.2 conducting analysis, After a harmless error however, court and the Court both the trial Appeals of Criminal concluded a rea- sonable doubt that under the facts of ease the have the same sentence would been jury given weight had the to the invalid aggravating factor. Both courts denied the Morrow, Jr., post-conviction petition. agree and af- Paul J. Office of Post- We Defender, Nashville, A. firm Appeals’ judg- Conviction Daniel Se- the Court of Criminal ward, Memphis, Appellant. ment. Although appeal granted holding applied was also on 2. The Middlebrooks to the also defendant, properly represents the issue of who circumstance as sub- i.e., appointed counsel or the Post-Conviction sequently § 39-13- codified in Tenn.Code Ann. Defender, when the issue was rendered moot 204(i)(7)(l990). requested appointed and received an or- counsel allowing der from this Court him to withdraw. felony and of a violent viction
BACKGROUND af the conviction and sentence defendant, Boyd, was con- Michael Joe appeal. firmed this Court stemming from the victed of de Boyd, shooting during Price death William nied, robbery of 1986. Price armed November *3 (1991). a filed The defendant L.Ed.2d 861 companion, Hippen, solicited and a David alleged that post-conviction relief petition for Tate, women, to Barbara Lee and Renita two errors, including numerous constitutional Memphis Upon a accompany them to motel. I, § Tennessee 16 of the of article violation Motel, at Lorraine Price their arrival v. Middlebrooks. under State Constitution gave a bill rent two one of the women to $100 evidentiary hearing, trial Following an Boyd, boy- who was Lee’s rooms. Michael petition. The court denied friend, up the scene with two other drove to We Appeals affirmed the denial. Criminal Boyd approached men and Price’s van. now affirm the Court granted appeal pointed pistol Hippen and demanded his Appeals’ judgment. of Criminal arm, grabbed Boyd money. Boyd’s Price gun, struggle ensued. When fired the a scene, away from
Price tried to drive ANALYSIS him, striking Boyd “emptied” gun him determined In we with five or six shots which caused death. felony murder circum that prosecution aggrava- The relied on three § Ann. 39-2- stance set forth Tenn.Code penalty to seek the circumstances death 203(i)(7) ele duplicated and mirrored the (1) sentencing phase of the trial: that and, offense murder ments of the prior a a conviction for defendant had murder, a failed applied to when (2) felony, violent that the defendant know- eligible murderers narrow the class of death ingly a risk of death to or more created I, § 16 of the Tennes article murdered, persons than the victim Eighth and the Amendment see Constitution (3) killing perpetra- that the occurred in the We to the United States Constitution.4 felony.3 tion of a narrowing must proper a device stressed that judgment showing provide A that second-degree had been convicted 1983for distinguish way to the case principled a prosecution murder was introduced imposed from penalty was which the death prior a conviction for not ... and many in which it was eases
felony aggravating mitiga- circumstance. penalty must case differentiate tion, Boyd that for testified someone asked even-handed, objective, and substantial- change going he bill and $100 many way from the murder ly rational Hippen pulled gun. He change make when may penalty in which the death eases struggle place, during which took said result, proper imposed. As a narrow- be he Boyd that Price shot. testified that, though even some ing device insures sorry killed that he the victim had been fall within the restricted defendants who to rob or shoot the victim. did not intend manage death-eligible defendants class of penalty, re- the death those who of death to avoid returned factors, among the worst murder- ceive it will be con- based on two 39-13-202(a)(2)(1997)]. 39-2-203(i)(2), § murder § Ann. 3. Tenn.Code (7)(1982)[now § provided "the Ann. 39-13- murder Tenn.Code 204(i)(2), (3), (7)(1997) engaged ]. while the defendant was committed any degree committing ar- first offense, felony murder in- the time of this At son, larceny, kidnap- robbery, burglary, rape, "[e]veiy perpe- cluded murder committed piracy, throwing, plac- or ping, unlawful aircraft of, any attempt perpetrate, tration or or discharging of device or a destructive arson, burgla- degree, rape, robbery, the first in ry, larceny, § 39-2- Tenn.Code Ann. bomb.” piracy, kidnapping, aircraft or the 203(i)(7)(1982)[now § Tenn.Code Ann. 39-13- discharging throwing, placing unlawful 204(i)(7)(1997)]. bomb_” Tenn.Code device or destructive 39-2-202(a)(1982)[now Ann. Tenn.Code Ann. (1992); Lewis, particularly ers—those whose are crimes see also Richmond v. 506 U.S. serious, penalty or for which the death (1992); particularly appropriate. Mississippi, Clemons v. (1990). 1441, 108 I, §
We concluded
violates article
of the Tennessee Constitution to use the
adopted
a harmless error
circumstance to
guarantees
precision
support imposition
penalty
of the death
for a
pro-
demands and
conviction of
murder. 840 S.W.2d at
principled explanation
vides a
for our conclu-
343-346. The
sion in each case. We also stressed the need
course,
may,
factor
be used to
completely
“to
examine the record for the
imposition
penalty
of the death
if a defendant
presence
potentially
of factors which
influ-
premeditated
convicted
or if the
*4
ultimately imposed.”
ence the sentence
used for the
circumstance
include,
to,
These factors
are
but
not limited
is different
in
from and
addition to the
strength
remaining ag-
“the number and
used for the
murder offense. State v.
gravating
prosecutor’s
ar-
Hines,
573,
(Tenn.1995),
919 S.W.2d
583
cert.
gument
sentencing,
at
the evidence admitted
—
denied,
-,
133,
U.S.
117 S.Ct.
136
to establish the invalid
and the
(1996).
L.Ed.2d 82
nature, quality,
strength
Because the Middlebrooks rule en
Only
evidence.” Id. at 260-61.
after a thor-
integrity
reliability
hanced the
ough and critical
consideration
these fac-
sentencing process,
applied
since
have
tors can a determination be made as to
State,
retroactively.
rule
See Barber v.
889
See,
Florida,
e.g.,
harmless error.
Sochor v.
185, 187 (Tenn.1994),
denied,
S.W.2d
cert.
513
527, 541,
2114, 2123-24,
504
112
U.S.
S.Ct.
1184,
1177,
U.S.
115 S.Ct.
more critical than sum the not prosecution the did record reveals that qualitative aggravating circumstances is the felony murder emphasize the nature of each its substance 2—203(i)(7), factor, § Ann. Tenn.Code 39— quantum persuasiveness, as the and well as sentencing No evi- phase. the additional proof supporting Although it.” the statute fac- of the dence was introduced importance weight assigns or tor, no relative placed little was relatively and reliance argument. we observed prosecutor’s during the on it prior “may Instead, that a violent conviction be prosecution stressed defen- objectively throughout argu- qualitatively persuasive prior and more conviction its dant’s by following pas- reliable” than other factors. 868 S.W.2d ment as demonstrated sage: 261. Moreover, Though cases the dissent Su- in each this Court and the United States "significantly compromised,” the preme previously recognized er- contends were Court analysis occurring during sentencing phase yielded a conclusion that of a rors beyond a rea- may was harmless capital the harmless Middlebrooks error trial be reviewed under Cazes, court, supra, there by appellate In State v. an it was not sonable doubt. error doctrine factors, prior remaining aggravating Supreme were until 1992 that the United States heinous, analysis and completely proper for a violent to be convictions delineated
' prior convictions by appellate atrocious or cruel. applied an court when an invalid assault; rape additional evi- upon aggravated relied circumstance has been placed Stringer emphasis sentencing authority. had been See dence undue the initial 1137-38; during aggravator sentenc- 112 S.Ct. at Nichols, 540-41, Florida, rape supra, convic- ing. five In State 504 U.S. at Sochor v. remaining prior factor of This Court’s decision in Howell tions at 2123-24. felony; no additional for a violent delineating proper convictions harmless emphasis placed on the undue rendered until evidence or a Middlebrooks error for Smith, Evans, (Sylvester) su- State v. S.W.2d invalid factor. in State v. after our decisions remaining aggravating fac- (Tenn.1992); pra, Sparks there were two 1993 WL 185 151324, 187; tors, prior convictions for Tenn. Lexis No. 03S01-9212- heinous, Bane, (Tenn., 1993); convic- May or cruel. The atrocious State v. CR-00105 Smith, deadly weapon, (Tenn.1993); robbery included State v. tions S.W.2d aggra- (Tenn.1993); with intent to commit assault Therefore, application (Tenn.1992). Accordingly, our rape. since vated factors, mitigating evidence as well as the predated these dissent’s all these decisions defendants, con- led to the same examples upon offered these cases reliance beyond a the error was is un- clusion—that proper application of the Howell reasonable doubt. warranted. says you morse, The law also if kill significant once and then accept it is that he you again, okay kill you it’s for to suffer responsibility part offense; for his consequences penalty. of the death instead he denied that he shot or robbed the take, What does gentlemen? ladies and victim. No other evidence was many people How have to die before we presented jury. before the We have consid- put stop Do [the defendant]. we have all analytical ered of the relevant Howell to wait until he kills and kills and kills record, factors in our review and have again? He’s killed twice. You would applied requirement considered and for killing think ... after once that a man like princi- and made a that, all, got any if he’s conscience at would pled explanation for our conclusion. After get want away pistol, as far from a so, doing we conclude a reasonable death, instrument of as he could ever doubt that the verdict would have been the get.... good nothing It’s other than jury given same had to the to kill beings. other human [the Twice factor. defendant] used the same instrument of The dissent concludes that a put death. It’s time ... stop to it. objective harmless error cannot be based on Finally, the balance of argument the State’s inappropriate. facts and is therefore Not- to arguing devoted fac- withstanding up” robbery a “set 2—20B(i)(3), tor Tenn.Code Ann. 39— and that “emptied” gun the defendant knowingly created risk of scene, while the victim tried to flee from the persons death to during two or more killing the dissent contends that the occurred discrediting victim’s and to the testi- jealousy as a result of an altercation based on (cid:127) mony credibility of the defendant. and that the defendant testified he did not Similarly, the third Howell fac- applying intend to rob or shoot the victim. The dis- tor, we observe that no additional evidence sent, however, apply does not the Howell admitted to *6 objective factors that conclusion circumstance; aggravating jury’s that the verdict would have been the prosecution merely upon relied the evidence same even had it not considered the invalid Howell, guilt phase. As we said in particular, factor. the dissent does not “an duplicates factor which quality strength address the of the re- underlying elements of the crime has less maining aggravator sup- factor that was tendency relative prejudicially affect the ported by the defendant’s conviction for imposed than invalid murder, nor, second-degree apparently, does interject factors which inadmissible evidence place objective significance the dissent on the calculus, into the or which re- Howell factors that no additional evidence or quire sentencing jury to draw additional emphasis placed on the invalid guilt phase conclusions from the evidence.” aggravator during Thus, sentencing. Accordingly, at 868 S.W.2d 261. solely the dissent takes issue majori- with the in this case heard no more in sup- ty’s conclusion and not its methodology. port cir- already cumstance than presented had been Rejecting precedent, the defendant prove the offense of murder dur- appellate improp contends that our review is guilt phase. reasons, er for several all of which we have implicitly rejected Finally, in our formulation and we consider final Howell nature, First, application continued quality strength factor—-the Howell. he ease, argues that he has a federal and evidence. this state due process liberty jury sentencing evidence was limited to the defen interest testimony. Although mandatory dant’s language own the defen due to the found in argues appeal § on dant that he showed re- Ann. Tenn.Code 39-2-20S.6 The case cited cites, among provisions, hearing”, § and Tenn.Code Ann. 39-2- 39-2-203(a)(1982), "jury § 203(k)(1982), Tenn.Code Ann. punish- "a new trial on the issue of punishment separate sentencing shall fix in a
563
Constitu
States
argument,
of the Tennessee
United
at the
had not been decided
Dutton,
tions because
F.Supp.
854
1305
Rickman v.
offense,
prior cases
and because
however,
time
this
(M.D.Tenn.1994),
recognizes that
re
aggravating factor
only
one
which
liberty
exists
process
if a due
interest
even
resentencing.
It
were remanded
mained
statutory provisions,
of these
basis
cases,
however,
ex
clear,
pre-Howell
that
is
is not
constitutional harmless
offense,
of the defendant’s
isting at
time
We,
disagree with the
precluded.
penalty
where
sentences
upheld
had
statutory
that
defendant’s assertion
these
had relied on an
preclude appellate review of the
provisions
Bobo,
v.
727
State
circumstance. See
Moreover, the United States Su-
sentence.
denied,
872,
(Tenn.),
108
484 U.S.
945
cert.
repeatedly
preme
has
held that consti-
Court
(1987);
204,
v.
L.Ed.2d 155
State
S.Ct.
98
appropri-
tutional harmless error
(Tenn.),
Workman,
44
de
cert.
667 S.W.2d
context, provided
preserves
ate in
that it
nied,
873,
226, 83 L.Ed.2d
469
U.S.
requirement
of individual-
constitutional
Cone,
(1984);
87
v.
665 S.W.2d
155
See,
Stringer
sentencing.
e.g.,
ized
v.
denied,
1210, 104
(Tenn.),
U.S.
S.Ct.
cert.
(1992);
S.Ct. at 1137-38
U.S.
(1984);
Camp
Mississippi,
U.S.
Clemons
(Tenn.),
bell,
at 1450-51.7
L.Ed.2d
argues
How
The defendant also
(1984). Therefore,
forth
which sets
ell conflicts with the constitutional
in a manner
principled means of review
Chapman
error test
forth in
set
sentencing,
Califor
preserves
nia,
824, 17
L.Ed.2d
facto,
post
process, or
ex
due
does not violate
that,
Chapman,
applying
equal
provisions.
protection
prove beyond
State cannot
a reasonable
doubt that the error “did not contribute to
CONCLUSION
because this
did in
verdict obtained”
us to con-
Our
of the record leads
review
rely
fact
factors set out
Tenn.Code
beyond a
doubt that
clude
reasonable
39-2-203(i)(7). Again
disagree.
Ann.
have been the same
verdict would
analysis in
rele
Our
derived from
given
aggrava-
been
precedent
Supreme
vant United States
jury’s consid-
and that the
every
partly
indicates
verdict based
aggravating circum-
of the invalid
eration
on an unconstitutional or invalid
*7
Therefore, the
was harmless error.
stance
resentencing,
requires
and that
circumstance
§
Ann.
39-2-
jury’s reliance on Tenn.Code
may
may
an error
deemed harmless if it
be
error,
203(i)(7), although
does
constitutional
be
a reasonable doubt that
concluded
resentencing. Accordingly, require
been the same
verdict would have
of
judgment
affirm the
of the Court Criminal
given
to the invalid factor.
petition.
Appeals denying
post-conviction
232,
Stringer
at
See
v.
503 U.S.
out
The
of death will be carried
1137-38;
Mississippi,
Clemons
1998,
May,
by
day
5th
of
provided
law on the
753,
(1983). of a murder and the conviction felony. The facts of this ease show that the victim In State v. way was on his to a motel room with the dismissed, 510 U.S. girlfriend defendant’s when he was shot specifically the defendant. The evidence felony murder Court found the use of as an Hippen showed that the victim and David aggravator is based on when the conviction Memphis drove in a van into downtown unconstitutional: compan find a motel room and solicit female women, light of the ionship. Lounge, At that in Raiford’s two We have determined Tate, and the agreed Barbara Lee and Renita broad definition accompany got duplicating language them and into the van. Lee narrowing lounge had been at the with the defendant first-degree boyfriend, who was her Tennessee’s and with two other occurs under that, men, when the Wright Terry Bruce Yarber. murder statute. hold We women, first-degree mur- Hippen the victim and then defendant is convicted parking solely drove to the der basis of lot the Lorraine set out in give Motel where the victim “started to one 39-2-203(i)(7) (1982) §§ Ann. women bill rent two rooms.” Tenn.Code $100 39-13-204(i)(7) (1991), not narrow Boyd, does death-eligible suffi- rt. murderers class ce (1991). ciently Eighth Amendment under the While it was I, Constitution, § 16 and Article being go discussed in to the U.S. who would rent the rooms, Yarber, because Wright, Constitution and the defendant the Tennessee As of the offense. up parked duplicates drove next to van. the elements result, Ann. that Tenn.Code circumstances of the we conclude murder are described 39-2-203(i)(7) unconstitutionally ap- opinion appeal the direct of this case Eighth Amendment to the plied as follows: under I, § 16 of the and Article Constitution stepped Defendant into the van on the *8 the death where Tennessee Constitution passenger side the driver’s and behind felony penalty imposed for murder. is passenger’s pointed pis- seats. He then a said, Hippen’s tol toward face and “I want case, the agree Id. at 346. All you.” your money going or I’m to kill He aggravating jury’s murder as an use victim’s] snatched the bill from [the $100 Eighth Amend- factor a was violation wallet, Hippen gave defendant his hand. and ment to the United States Constitution which contained I, $30. Consti- Article 16 of the Tennessee Section Nonetheless, majority Hippen, affirms [the
As defendant leaned over tution. grabbed his arm and shoved it onto the sentence of death victim] “beyond the verdict a shot and a reasonable doubt that the console. Defendant fired jury given struggle had the began the three men to over the would have been the same weight aggravating factor.” the van and no to the invalid gun. As the victim started Majority Opinion at 562. away, “emp- drive tried to murder”, prosecutor execution-style ed Supreme Court has The United States aggra- weighing emphasize “in held that State infection did not vator, was introduced process aggravating factor no additional evidence an invalid mitigating might require sen and invalidation of for the invalid 222, 231, character, it conclude Stringer good 503 U.S. could tence.” evidence of (1992). 117 L.Ed.2d have been same the sentence would It also that “under such circum jury given has held to the invalid appellate reweigh court could stances state The aggravating factor. aggravating and circum death was affirmed. analy stances or undertake harmless-error constitutionally purpose of mandated The long is not sis” as death sentence in How- set forth the harmless error thorough analysis of the affirmed “without a ell, “beyond a reasonable to insure that is played role factor an invalid complained of did not the error doubt sentencing process.” Chap- obtained.” contribute the verdict properly applied a harmless This Court 18, 24, California, man U.S. error in State v. (1967) (Scalia, J., 824, 828, 17 L.Ed.2d “obliged concurring). to deter- The Court (1994). L.Ed.2d [is] mine reasonable doubt as whether there
Howell, the victim was a convenience store
the constitutional
contribut-
whether
clerk
was shot
in the forehead at
who
once
jury’s
impose the sen-
ed to the
decision to
range.
defen-
close
sentenced the
Tuggle
tence of death.”
v. Netherlands
aggravators
to death based on the
dant
10, 15,
133 L.Ed.2d
murder and three
(1995)
J.,
(Scalia,
concurring).
(armed robbery,
first-degree
convictions
My
was based on
concurrence
robbery
attempted
and armed
conclusion,
factors,
considering the
after
murder).
first-degree
evi-
doubt that
that it was
reasonable
dence was that the defendant was
dam-
brain
charging
circum-
injuries
aged
up
and grew
from four head
decision to
stance did
affect the
a violent home environment. The Court
How-
impose
the sentence
death.
stated:
ell,
(Reid,
J.,
270-71
C.
concur-
868 S.W.2d at
guarantee
precision
In order to
ring).
sentencing
considerations
explana-
provide
principled
demand and
decision, the
Based on the Middlebrooks
case,
tion for our conclusion
each
has
a remand
conducting
er-
important, when
subsequent
involving
in 6
cases
review,
completely
ror
the rec-
examine
aggravator.1 In
use of the
po-
the presence
ord for
of factors which
year
boy
where
old
tentially
ultimately
influence the sentence
hands
tied behind his
beaten while his
include,
imposed.
not limit-
These
are
knife,
stick,
knuckles and a
back with
brass
to,
strength
the number
of remain-
ed
mouth,
his
burned
was urinated on
acts,
lighter,
among other brutal
with a
argument
sentencing,
prosecutor’s
he
had an “X” cut into
chest while
admitted
establish the
alive,
though
found that even
the Court
nature, quality
aggravator, and
of torture
strength mitigating
evidence.
proved,
amply
it could not conclude that
circum-
the elimination of
*9
Id.
260-61. The Court found that because
error
felony murder was harmless
first “eold-blood-
stance of
this
not the defendant’s
was
error);
Branam,
resentencing
an unrelated
manded for
also State v.
S.W.2d 563
See
(Tenn.
Keen,
(Tenn.1993)(there
aggravators
nied,
740,
(Tenn.1993),
guilty
was found
(1994),
L.Ed.2d 702
where the defendant was
premeditated murder and
murder.
killing grocery
convicted of
store clerk who
premeditated
The evidence showed a
single gun
he
shot to the back of
beaten,
knew with
robbery in which the victim was
and'
head,
only
jury
opinion
*10
hit-
the defendant’s
The death resulted from
murder and sentenced the defendant
aggravators
two-by-four during the
of
with a
to death based
the victim
murder,
previous
days
the
con
later.
struggle;
and
existence of a
died two
the victim
felony (voluntary
viction
a
man
expressed
of
I
remorse.
dis-
The defendant
slaughter). The
that the miti
Court found
conclusion that the
sented from the Court’s
gating
“inadequate” to
evidence was
overturn
jury
the
mur-
allowance of the
to use
sentence,
“prior
the
but that the
violent felo
aggravator was harmless error because
der
ny aggravator
positive”
nearly
was not
as
as
prove beyond reasonable
failed to
the State
murder,
robbery,
degree
that of armed
first
by
jury
the
was not influenced
doubt
the
degree
attempted
and
first
found
Indeed,
aggravating circumstance.
invalid
The
remanded
Howell.
Id.
opposite conclusion:
suggested
record
the
the
resentencing.
the case for
aggravating cir-
relied on two
The State
hand,
high
the
standard for
On the
penalty—
the death
cumstances
harmless error
set forth Howell
rape,
aggravated
previous
convictions
compromised
significantly
has
in some
been
the fact
the murder occurred
instance,
Cazes,
cases. For
State
during
felony.
the commission of violent
(Tenn.1994),
denied,
S.W.2d
cert.
jury
whether
The
was instructed
decide
shooting. aggravator valid relied L. Bertha by on is the conviction mitigating cir- degree second murder. by the defendant are cumstances offered CO., INC., MERCHANDISE SERVICE killed, he sorry
he was the victim had been Thomas, Manager, Lisa Dun Michael victim, and not to rob or shoot the intend Wilson, Defendants-Appel can, Velma happened victim killing because the lees. him. pulled gun on The evidence Tennessee, simply enough not persuasive Appeals record is Court of Section, assume that without the consideration at Jackson. Western would Sept. my have reached same conclusion. view, the circum- admission of Appeal Application for Permission to not error under the stance was harmless by Supreme Denied analysis. 17, 1997. March The issue is not the extent which mitigating circumstances evidence wheth-
er circumstances out- weighed A circumstances.
finding that the evidence over- circumstance was mitigation whelming and the evidence may, meager finding a reasonable doubt outweighed the does necessarily follow aggravating cir- influenced cumstance. (Tenn. 1993) (Reid, C.J.concurring). all cases “[I]n subjective make where the Court must aggrava regarding decision the effect circumstance,” of harmless er view, my at 268. In inappropriate. ror is finding of error cannot be and, objective case based facts subjective must be conclusion. resentencing. I the case for would remand notes that the cut, strangled, gagged, placed in a tub “aggravating found circumstances” and that jury plastic bag over his head. The under Middlebrooks the sentence is set aside sentenced the defendant to death Sparks In and the case is remanded. aggravators of torture and murder. State, required 1993 WL 1993 Tenn. Lexis The held that Middlebrooks Court (Tenn. May jury No. 03S01-9212-CR-00105 the evidence “even reconsider 10,1993)(not amply supports ag published), though where the defendant the evidence robbery liquor gravating of the murder to be was convicted of armed atrocious, heinous, especially or cruel in that during which he shot and killed a deliv store man, depravity torture or of mind.” Id. ery remanded the case for it involved Smith, 857 at 490. In State v. S.W.2d resentencing, stating, (Tenn.1993), accomplice the defendant and an cases, however, In we have found robbery operated by during the of a store to harmless error difficult sustain elderly couple, knocked down the man and findings by the absence of written fatally shot the woman when she resisted jury concerning mitigating circumstances. robbery. Though error also See, e.g., Terry, stated, resentencing, “The the Court Middle- (Tenn.1991). Considering 424-25 elimination of the brooks rule establishes that “heightened reliability in death need for requires jury [felony aggravator] cases,” Terry predict what we refused to determine if the to reconsider the evidence the outcome of the case would have been appropriate in this case.” sentence of death is aggravating cir the absence of one of the Id. at 25. In Hartman v. 896 S.W.2d Similarly, in State v. Pritch cumstances. (Tenn.1995), years sixteen the victim was ett, 621 S.W.2d we kidnapped, raped, killed old when she was “speculate” declined to on what the head, raped again. four blows to the aggra of two sentence would be when one analysis, doing harmless error the Court vating from circumstances was removed though no stated that additional consideration. ag- introduced in statute, The current T.C.A. prosecutor emphasize not gravator, the 39-13-204(g), predecessor, its like only and there was § 39-2-203(g), requires the T.C.A. proof minimal weighing process, bal- engage in a careful remaining aggravator of the hei because the ancing specified aggravating circumstances nous, offense or cruel nature of the atrocious against any mitigating circumstances by testimony which was con But, predecessor, also like its the record. tested, conclude the Court was “unable to report in its require does been the same the sentence would have mitigating factors were con- verdict what jury given weight to the invalid had the Walker, for re- Without a sufficient basis sidered. aggravator.” Id. at 104. — record, weighing the evidence instance speculate -, are disinclined jury might have several times about what verdict the the victim was shot aggra- driveway; proof single of a in her she sitting returned based on in her car while hospital. Certainly, we cannot The defendant vating bled to death at the circumstance. felony-mur- carrying a lot of thought would be say that in the absence of the victim money. there is found der minder, guilty of guilty premeditated doubt that the proof a reasonable