*1 assembly Lindsey and not from the courts. Hunt, 215 Tenn.
(1964), grounds, rev’d other Betts v. Tom Gin, (Tenn.1991). Wade statutory express the absence of authori- zation, aggressor we hold the common law it compensa-
defense as relates to workers’ tion claims Act under the is abolished in
Tennessee and does not bar the decedent’s recovery. case is reversed and remand- proceedings
ed to the trial court for further opinion. consistent with this The costs of appeal against shall assessed may defendants issue if execution necessary.
ANDERSON, C.J., REID, J., and TOMLIN, Justice, Senior concur. BIRCH, JJ.,
DROWOTA participating. Tennessee, Appellee,
STATE of CRIBBS, Perry Appellant. A. Tennessee, Supreme Court of at Jackson. April
775 *3 Defender, Wharton, Public
A.C. District Defender, Ward, Assistant Public W. Mark Thomas, Johnson, Pub- Betty Assistant Ron Defenders, Memphis, Appellant. for lic Walkup, Attorney General and John Knox Moore, E. Gener- Reporter, Michael Solicitor al, Attorney Cauley, Gen- P. Assistant John Pierotti, eral, Nashville, District John W. General, Wax, Shapi- James David Attorney General, ro, Attorneys District Assistant Memphis, Appellee.
OPINION
DROWOTA, Justice. defendant, Perry capital
In this Cribbs, premeditated charged first during burglary, aggravated perpetration of an perpetra- degree murder and first robbery killing aggravated tion of Harris, victim, January in her home Linda 2,1994. guilty peals found the defendant briefs of the defendant and the on all three counts.1 In sentencing State, Court, hear- on September en- ing, found aggravating two Order, circum- limiting tered an argu- review at oral (1) stances: “[t]he defendant was ment to setting seven issues and the cause felonies, convicted of one or more other than November, 1997, for the term of this Court in present charge, statutory whose elements See Jackson. Tenn. S.Ct. R. 12.3 involve the use of person;” violence to the record, reviewing After we have deter- “[t]he murder was committed while alleged require mined that none errors engaged the defendant was in committing or Moreover, supports reversal. the evidence commit, attempting burglary.” jury’s findings as to the 13—204(i)(2) Tenn.Code Ann. 39— *4 circumstances, mitigating and the sentence of (1991 Repl.). Finding the aggrava- two arbitrary death is disproportionate ting outweighed circumstances mitigating cases, imposed the in sentence similar consid- beyond doubt, circumstances a reasonable ering the nature of the crime and the defen- the sentenced by the defendant to death Accordingly, dant. judgment the of the trial electrocution. Appeals uphold- court and of Criminal Court hearing At the on the motion for a new ing degree the defendant’s conviction for first trial, conducted some weeks after the by murder and sentence of death electrocu- verdicts, rendered its the trial court set aside tion is affirmed. jury’s the on guilt charges verdicts of of premeditated degree first murder and first degree perpetration during murder of FACTUAL BACKGROUND aggravated robbery. The court trial entered proof presented-by State at The judgment jury’s upholding the verdict of guilt phase trial that some- of the established guilt charge degree on the of first a.m. time between 1:30 a.m. and 1:45 on the during perpetration aggravated of an 2, 1994, victims, morning January of Sid- burglary by sentence elec- Harris, ney Harris, wife, his re- and Linda
trocution. turned visit with their home from a friends to appeal On direct to the Court Criminal Cottonwood, Memphis. located at in As Appeals, challenged both his habit, Sidney was his Harris backed his car sentence, raising conviction and nine claims carport, opened onto the and the door then error, subparts. with some numerous Af- for his wife to enter the house. As she came claims, fully considering ter the defendant’s door, through Harris the kitchen Linda Appeals Court Criminal affirmed the attacked knocked floor an Thereafter, judgment. pursuant trial court’s struggled Sidney unknown assailant. Harris 13—206(a)(1)(1997 to Tenn.Code Ann. 39— man, pistol, with who with a this was armed Repl.),2 ease was docketed this Court. seconds, approximately for and had fifteen
The to the floor when second defendant raised numerous issues in wrestled him Court, carefully assailant, examining this but after with a barrel sawed- armed double law, Harris including shotgun, entire record and the the thor- off intervened and ordered ough opinion Ap- the Court of Criminal man. release the first aggravated Supreme Upon was also Cribbs convicted bur- Court. the affirmance Tennessee glary attempted first murder. The Appeals, Criminal the clerk shall the Court of consecutive, imposed Range trial II court sen- Supreme in the Court and the docket the case forty years, respectively, ten and tences of proceed case with the Ten- shall accordance these convictions. Appellate nessee Rules of Procedure." imposed 2. "Whenever the death for Supreme provides in 3.Tennessee Court Rule 12 judgment murder and when the has pertinent setting part as follows: "Prior to court, in the become final trial argument, oral the record Court shall review right appeal from the trial shall have direct assigned. and briefs consider all errors Appeals. Court court to the of Criminal may designating those is- Court enter order affirmance of the conviction the sentence of automatically argument.” reviewed sues it death shall wishes addressed oral ski him, wearing a black in- man had been guns the two With leveled assailant, respect the second chair mask. With truders ordered Harris to sit in a locat- Crow, Harris, home, just according to said Officer ed the den of his which was off tall, thin, ski kitchen, and wore black five his that he was about feet from where Sergeant Ronnie McWilliams point, At intrud- mask. wife was located. some Harris, investigation Memphis police directed the dope?” and ers asked “where is the day Harris the after they they him. and interviewed told Harris intended to shoot time, that he At Harris said Though lights shooting. were not on in house suspects time, identify of the two either carport Harris said the could not ski they wearing black had been through open kitchen door because shone later, told a a week Harris provided for him masks. About sufficient illumination get the “com- he could not police the facial features of the intrud- officer that observe shotgun. man Ser- plexion” the assailants ers. Harris observed being twenty thirty geant seconds before second described Harris McWilliams shotgun, striking heavily day Harris the murder assailant fired the on the after sedated the left shoulder and hand. Harris lost con- condi- that he had been serious said time was shot. sciousness after he when second statement had tion consciousness, regained the assail- speaking When he could not remember taken. Harris *5 his gone. were Harris observed wife’s night ants and police on of the murder the body in a of lying pool blood on floor spoke with being when he recalled sedated initially trial, she had as- Thereafter, the kitchen where been day. and at next police the upon discovery of saulted. Based wad- as black the first assailant a Harris described ding on the side of her neck and material left man, stocking wearing light-colored a sheer powder body, her medical ex- burns on mask, jumpsuit, gloves, approxi- and a denim that sus- aminer testified Linda Harris had weight, in mately height, pounds in 61” shotgun tained contact wound to the left a moustache, nose, thick large round with a in side her head which would have resulted length.5 in eyebrows, hair about one inch way instantaneous death. Harris made his assailant, who had Harris said the second house, neighbor’s to a where he was able man, wearing him, also had a black shot been again losing con- summon assistance before mask, dirty light-colored stocking a sheer sciousness. jumpsuit and light green gold or mechanic’s said this man was taller and gloves. Harris they police at When the arrived the scene assailant, approximate- the first thinner than disarray. in The intruders found the house height, in ly 6’3” or 6’4” and about entry apparently gained had to the house pounds weight in through open Toys an bedroom window. daughter were belonging to the victim’s murder, At the time of videotape of on the that bedroom visible Cannon, the residing Jacqueline with was videotape by police.4 The
the scene made daughter. stated that his Cannon mother of body in the also of Linda Harris showed defendant, night on the kitchen, floor, shotgun shells on den shirt, jeans denim wearing blue and a blue Sidney on the chair bloodstains approximately 9:00 residence at left their had sitting been when he been Harris had returned sometime p.m. 10:00 When he holes in the There several bullet shot. were a.m., cov- Cannon said he was 1:00 around chair in the den. to the left wall a “hit.” told her ered in blood from Cribbs Crow, had shot a man and woman. Memphis police- that he Donald Officer explained he had been hired man, transported Harris he was Cribbs rode with as been by another man who had shortly shooting. kill man hospital after the to the having affair with the female victim. described testified that Harris Officer Crow detail, he had both victims said that killed but stated Cribbs first assailant some appre- identified nor man was never daughter home when 5. This at 4. The victims' night spent by police. She had the crime occurred. hended aunt, the victim’s sister. with her paid and claimed that above, he would for upon proof-summarized Based soon. day, “hit” The next Cannon discovered guilty pre- found the defendant at her gold-faced Mickey residence a degree; Mouse first degree meditated first murder watch with a leather during perpetration wrist band aggravated of an “genuine words imprinted leather” on burglary; degree during and first back. When she asked about perpetration aggravated Cribbs robbery. watch, explained he that he taken it guilty had was also aggravat- found couple home of the burglary attempted had killed. ed mur- der. thereafter,
Shortly Cannon learned from reports proceeded sentencing news that a woman man and The trial shot, claimed, night phase. Cribbs The State relied the evidence 2,1994. January trial, presented guilt phase The woman had been killed shooting. addition, but the man survived the Because and in show introduced Cribbs, defendant, relay she feared twenty-three-years-old Cannon did not her at knowledge trial, police about the murder to the the time of had been convict- later, time. Some four to six weeks attempted ed of two counts of second however, angry robbery Cribbs became with Cannon aggravated murder and one count of suspected neighbor testimony because he she had told Also 1990. introduced was attempt- about his role in the murder. Cribbs as- had been convicted of Cannon, hospi- degree burglary saulted beat she ed second days, among suffering, talized three other behalf, Testifying on his own said Cribbs punctured things, lung.. Fearing for her Alabama, been born in but had he had life, Cannon related to her brother what years. Shelby County lived in nine about Cribbs had told her about the murder. Her *6 mother, grandfather, and The defendant’s Stoppers, brother notified Crime and as a brothers, seventeen, twenty-six re- two and result, police interviewed located and Armory, Mississippi of sided in at the time eventually Cannon. Cannon received $900 ill- grandfather’s Because of trial. his Stoppers, from Crime and her brother re- school, obligations none ness and at work or ceived $100. family trial. of his were able to attend his Upon learning gold-faced Mickey family that his Cribbs said had visited him Cannon, trial, police watch from asked had Sunday Mouse Sid- and that visit in ney Harris if his wife such a first time he had owned been the had seen his mother Memphis hospitalized years. Harris had for four Cribbs had a cousin in watch. been twenty-two by days following shooting employed his had been missing. company, of his not discovered the watch When uncle’s construction but none had testi- by police, family attended the trial or questioned Harris confirmed members he had had and that it fied behalf. Cribbs said that his wife owned such a watch on his missing among the items from the told his aunt the trial was a matter had been death, point, pressed but he had not his after the murder. At hav- life or house this may the trial because she had to believe that the mother to attend ing reason ill, worry her. he did not want to been involved in the murder Linda have Harris, lineup that he had attended school police compiled photographic Cribbs said defendant, dropped men, grade seventh but had including through who eight expelled truancy. he was for Of description given Harris. out when matched emotional, twelve-year identi- sentence he received on the Visibly Harris shaken and attempted “the for second photograph as mother convictions Cribbs fied the robbery, Cribbs had been incar- previously had murder and -that shot me!” Harris years prison three and one-half in lineups, but cerated for photographic two other viewed prison during that person had not violated rules anyone who identified as the not had trial, he said that had visited Harris time. Cribbs killed his wife. At him and shot child, eight daughter, seven or as man his identified Cribbs positively also being arrested for murder of times since him. shot who Appeals of Criminal Court court and committing the trial Linda Harris. Cribbs denied of first conviction him, upholding defendant’s jury had convicted crime which of death plead and sentence he refused to and he said that had guilty exchange sentence because life electrocution. crime. Cribbs
he had committed the explained falsely implicated that Cannon had INSTRUCTION- I. JURY angry. him she was in the murder because IDENTIFICATION EYEWITNESS argued he had with Cannon Cribbs said that instruction asserts The defendant money me. I because “she stole some eyewit- regarding jury in this case given the her I and told whooped had her real bad sup- In inadequate. identification ness no more.... going wasn’t to come around claim, upon this Court’s his relies port of said on me.” Cribbs So she came in and Dyle, State decision having any knowledge gold-faced of a denied (Tenn.1995), of this the trial after rendered Lastly, Cribbs asked Mickey Mouse watch. jury adopted newa Dyle, this Court case. life, saying that he spare his instruction, given whenever must which himself a decent individual would conduct issue.6 Id. a material identification is prison given imprison- if a sentence of life instruction, requires parole. possibility ment without the ex- of several the evidence evaluate upon proof, Based found factors, out plicit is set below. of two proven the existence the identi- this case is One of issues beyond a reason- circumstances person defendant as the who fication (1) previ- able “[t]he doubt: has the The state committed the crime. felonies, ously convicted of one or more other identity beyond rea- proving burden present statutory charge, than the whose testimony is Identification sonable doubt. involve the of violence to the elements use impression expression of belief (2) person;” and murder was commit- “[t]he witness, depend may and its value engaged ted in com- while defendant was your factors. consideration several commit, attempting mitting or was bur- you may consid- of the factors which Some 39-13-204(i)(2) glary.” Tenn.Code Ann. er are: (1991 Repl.). Finding that the two opportuni- capacity witness’ *7 outweighed miti- circumstances This ty to offender. in- observe the gating beyond circumstances a reasonable cludes, things, length among the other doubt, the the sentenced defendant to observation, time available dis- by electrocution. observed, tance from which the witness Following hearing on the motion for person lighting, and whether the trial, jury’s new the trial court set aside the who committed the crime was findings guilt and of death on sentences witness; acquaintance of the charges premeditated degree first (2) degree certainty expressed The during murder and first murder regarding the witness the identifica- perpetration aggravated robbery. The tri- and tion the circumstances under which judgment al court entered a of conviction made, including it was it is the whether jury’s guilt charge verdict of on the recollection; product of the witness’ own perpetra- occasions, any, if on which the aggravated burglary tion of an and the sen- witness failed to make an identification tence of death electrocution. The Court defendant, of the or made an identifica- Appeals judgment of Criminal affirmed the tion that was inconsistent iden- of the trial court. For reasons that trial; tification at and follow, carefully reviewing after the record occasions, considering assigned by any, the errors if on defendant, judgment we affirm the of the witness made identification that was Dyle, "[(Identity we eyewitness stated will testimony be a or the is uncorroborated puts material issue when the defendant it at issue circumstantial evidence.” Id. at 612. trial, identify anyone provide description
consistent with identification nor be- surrounding wearing such cause the circumstances assailants had been ski masks. identifications. The State concedes that the failure error, give argues to the instruction was but Again, prov- has the burden of state Appeals correctly the Court of Criminal held ing every charged, element of the crime give the error to harmless since the failure specifically and this burden includes the Dyle affirmatively does not instruction identity person of the defendant as the appear to have affected the outcome of this who committed the crime for which he trial. or If considering she is on trial. after testimony light the identification of all respect identity, With the trial court in proof you have a reasonable doubt charged this case as follows: person is who charges you identity The Court crime, you committed the must find the defendant, Cribbs, Perry A. must be guilty. defendant not proven part in the ease on the of the State
Dyle,
respect
dant committed him, satisfied, you features, charged against height, are perpetrator’s facial doubt, beyond a has reasonable that he At tri- weight matched the defendant. person as al, been identified the who commit- explained that he had seri- Harris charged, ted the crime it would be then ously injured receiving treatment and your duty to convict him. the other On sedatives, either in the ambulance or at the hand, you if are not the satisfied with hospital, given he had the initial de- when identity proof, you the from have a obviously scriptions. accepted this doubt has reasonable whether he discrepancies. explanation of the body from the been identified the whole factor, proof respect With to the fourth the ease, proof you a the then should return positively the shows that Harris identified guilty. verdict of not photographic lineup. from valid Considering totality of in the the positively the defen- Harris also identified actually given, proof in struction the at trial. dant later Dyle, light of the factors we delineated given jury in Because the instructions the give Dyle the conclude that failure closely this case resembled instructions affirmatively appear not instruction does by Dyle, proof with required and because have affected the outcome of case. The this regard to each of the factors delineated jury was instructed to consider the means established, Dyle plainly agree was identification, opportunity including Appeals the Court of Criminal conclusion distance, lighting, and whether give Failure to error was harmless. eyewitness. perpetrator was known to the Dyle affirmatively instruction does not verbatim, Though sufficiently not this encom appear to have affected the verdict. passed respect instruction with Dyle prejudicial factor so error II. CIRCUMSTANCE AGGRAVATING Moreover, clearly does not result. am the perpe established that Harris observed seconds, approximately thirty trator aggravating circumstances One of the two feet, of less than five with a support distance jury in case to found this carport illuminating perpetra from the imposition is that perpetrator tor’s features. wore of a been convicted mask, stranger stocking to Mr. statutory felony elements in- offense “whose Harris. person.” the use of violence volve 39-13-204(i)(2)(1991). §Ann. To Tenn.Code factor, respect Dyle to the second With circumstance, establish this expressed certainty proof is clear that Harris Principal testimony of the State offered the during photo- of his identification Cribbs Clerk’s office in of the Criminal Court Clerk lineup within six graphic which occurred County during penalty phase Shelby crime. McWilliams said weeks Officer stated, according to her trial. She visibly Harris shaken and emotional records, prior felony defendant had four photograph when first observed attempted two convictions convictions: Moreover, photographic line- defendant. one conviction for second suggestive. up appear to have been does robbery, and for sec- aggravated a conviction factor, the respect Dyle to the third With degree burglary. The defendant chal- ond *9 only the proof that Harris selected shows lenges of this two re- admission though he even photograph of spects. oth- presented been with two previously had However, Harris lineups. photographic er Degree Burglary A. Second any de- give police to been unable First, trial claims that the immediately after scription of the assailant admitting his evidence about court erred police reports reflected shooting, and burgla- degree for previous conviction second perpetrators had said the Harris had statutory However, elements of that ry because wearing black ski masks. (1) offense do Intentionally engages not involve the use of violence to in action or person, and it is not therefore admissible causes a result that would constitute an prove statutory aggravating to circum- surrounding if the offense circumstances 39-13-204(i)(2) § stance. Tenn.Code Ann. person the conduct were as the believes (1991 Repl.). be; them to The State concedes that evidence about (2) Acts with intent a result cause the defendant’s 1989 conviction for second offense, that is an element of the degree burglary should not have been admit- believes the conduct cause the result will ted because it was immaterial and ineffective person’s without further conduct on the prove aggravating circumstance—that part; or Cribbs had been convicted of one (3) complete a course Acts with intent to statutory or more felonies whose elements of action or cause a result that would person. involve the use of violence offense, constitute the under the circum- However, in this the State asserts the surrounding stances the conduct as the agree. error was harmless. We be, person believes them to and the con- rely upon State did the con step to- duct constitutes a substantial degree burglary prove viction for second ward the commission of the offense. aggravating Apparently, circumstance. 39-12-101(a) (1997 Repl.). § Tenn.Code Ann. admission of the evidence about the convic points The defendant that criminal at- out through testimony tion of the Criminal princi- tempt separate is a offense from the Indeed, Court Clerk was inadvertent. pal attempted, argues that the offense and he conviction was never the State asserted as statutory attempt elements of criminal do not support aggravating valid basis circ person. involve the use of violence to the Following umstance.7 the Clerk’s testimo responds second de- that because ny, again the conviction was not mentioned gree murder involves the use of violence to presence jury. It was neither person, prior of the defendant’s evidence State, argued by the nor submitted to the degree attempted for second mur- convictions part of the trial court’s instructions. properly der was admitted to establish the Moreover, jury’s finding aggrava existence of circumstance. ting supported by circumstance was three felony According other violent convictions. Appeals not the Court Criminal As ly, testimony the erroneous admission of the ed, attempt requires perpe statute regarding prior the defendant’s conviction of culpability kind of trator to act “with the degree burglary does not affirmative second required [principal of otherwise ly appear to have and is affected verdict 39-12-101(a) Ann. fense].” Tenn.Code harmless. (1997 Repl.) prin Second cipal underlying con offense the defendant’s Degree Attempted B. Second Murder attempt, victions for criminar is defined as The defendant next insists that his two another; killing or knowing [a] attempted second de- convictions killing of another which results [a] gree qualify as felonies murder do not any from the unlawful distribution of statutory involve use of “whose elements drug II when such Schedule I Schedule argu- person.” violence to the He bases his drug proximate is the cause of the death of statutory ment on the definition of the of- the user. out, attempt, of criminal which is set fense pertinent part, 39-13-210(a) (1997 hereafter. Repl.). §Ann. Tenn.Code
(a)
person
attempt
agree
Appeals
A
commits criminal
We
with the Court Criminal
who,
culpability
language supports the
acting with the kind of
that this
classification
attempted
second
required
otherwise
for the offense:
of the crime
*10
Adkins,
708,
Compare
upon
v.
653 S.W.2d
State relied
evidence of nonviolent felonies
State
716
Johnson,
(Tenn.1983);
circumstance).
State v.
783 Reference in- A. Biblical statutory one elements murder as whose person. This volve the use violence use argues that the State’s The defendant issue has no merit. justify imposition of reference to of a biblical rights penalty his to due the death violated III. MISCONDUCT PROSECUTORIAL trial, separation church process, fair and a prose- The next contends that state, freedom from cruel and unusual and argument during penalty phase cutorial First, guaranteed by punishment as arbitrary in an sen- resulted and unreliable Fifth, Sixth, Eighth and Fourteenth Amend- his tence and violated state federal I, Constitution, and Article ments of the U.S. In rights. particular, constitutional the de- 8, 3, 4, 6, 16 of the Tennessee 9 and Sections says fendant that his sentence should be quot- that concedes Constitution. State prosecutorial argument: reversed because of impermissible, but con- ing from Bible is 1) justifying imposition penalty of the death prosecutor’s argument in this tends that 2) law; religious implying reference sows, he a man so shall “whatever eligible pa- would that the defendant be for merely metaphor individual reap” was imposed; was role unless the death justification accountability, rather than 3) referring mur- impact to the penalty. Considered imposition of family. on the victim’s der whole, contends and as State context prosecutor’s argument erro- recog This Court has alternative, Assuming, in the neous. closing argument nized that is valuable erroneous, argument the State contends privilege for both the State and the defense is error harmless. afforded to counsel in has wide latitude jury. challenged portion prosecutor’s presenting argument final State (Tenn.1994); out 797, closing argument to is set below: Bigbee, v. 885 S.W.2d 809 (Tenn.1984). Cone, 87, v. State 665 S.W.2d 94 liked, I quite frankly, never And I never However, prosecutor’s argument when a really using biblical refer- comfortable feel afforded, beyond veers latitude wide ences_ I to do—and the What want is determining required test for if is reversal I only I that is because reason mentioned impropriety “affected the verdict whether frankly, I you quite don’t feel comfort- tell Harring the prejudice of the defendant.” mentioning the biblical refer- able even State, 758, 338, ton v. Tenn. 385 S.W.2d I do And the reference want ences. (1965). relevant to that Factors determi Koran, whether it is to make is it is written nation include: is Old Testament there New Testament or (1) complained of the conduct viewed thing, that is: Whatever one consistent sows, reaped the facts and circumstances of What [sic]. man so shall case; accountability. It means that means conduct. It are standards of there (2) the curative measures undertaken sow, you you accountability what means prosecution; the court thing only religious reap. And that is the (3) making prosecutor in the intent of the interject get I in there and I don’t want improper arguments; myself. just I that. I didn’t want said improper cumulative effect of know, offended, if I get you anybody record; any in the conduct and other error very that is a make a reference but biblical law, law important part in our in the our a man Whatever strength and weakness of Tennessee. the relative State sows, reap. so shall the case. say 809; Buck, Perry [sic]? did Cribbs Well what
Bigbee, State, suffering. Pain and crime. (Tenn.1984); Judge Violence pain he—the havoc and Think what (Tenn.Crim.App.1976). claims, family of reaped ap- that he has evaluating the defendant’s Linda Harris. guiding principles. ply these *11 given by judge.
structions the trial State v. 383, (Tenn.1983); Laney, 654 S.W.2d Mr. Cribbs needs to be held accountable Blackmon, 228, State v. sows, person for his life. Whatever a so addition, (Tenn.Crim.App.1985). In we are reap. Unfortunately shall he a lot of other convinced, record, reading from our of the people paying have to bear with the conse- prosecutor that the did not intend to mislead quences of this. jury by employing metaphor to ex- It is well-established Tennessee Indeed, plain accountability. individual passages law that references to biblical prosecutor expressed using discomfort about religious law the course of a criminal effective, metaphor, it as an but viewed inappropriate. trial are See State v. Ste explaining understandable device for the con- (Tenn. 530, phenson, 878 S.W.2d cept. in the context of the Viewed entire 1994)(judge’s passage reference to Bible dur proceeding, agree we with the Court Crim- dire); State, ing voir Kirkendoll v. 198 Tenn. Appeals inal that the error did not affect the (prosecutor’s prejudice. verdict to the defendant’s religious during closing reference to law ar gument). long the face of this clear and Eligibility B. Parole standing precedent, repeated introduc by prosecutors tion of such references into prose- The defendant next asserts that the inexplica trials of serious criminal offenses is argument improperly implied cutor’s to the ble. In this the trial court overruled jury parole that he would be released on objection improper to the reference. We jury unless the sentenced him to death. The note that the trial court should have sus points following excerpt objection given tained the a curative prosecutor’s argument support from the instruction, judges and we caution trial his assertion. guard against interjection inap of such just There are no winners. This is However, propriate evaluating references. goes The horrible situation. inappropriate prosecutor remarks of the custody into ... in 1990 and he is convict- this case men ed. In 1993 is he out. He’s told [sic] us it factors, they tioned five we conclude that did twelve-year peniten- was a sentence. The prejudice not affect the verdict to the system tiary doesn’t work. defendant. He’s been convicted three violent Contrary to the defendant’s conten ... [H]e crimes.... did less than three tion, argument, in the context of the entire years. Penitentiary and half or four prosecutor did not ask the system base doesn’t work. imposition religious of the death Instead, prosecutor urged
law. individually to hold the defendant accounta question There is no he’s been convicted ble for the crime he had committed. We question got these cases. No that he agree with Appeals the Court of Criminal early. out You heard from him. It wasn’t that, ease, prosecu in the context of this proof. happened the State’s What using “reap you tor argu what sow” why happened something may it metaphor ment as a for individual accounta happen. never know. But it does result, bility. As a we view the comments view, prosecutor implied prosecutor’s argument that Tennessee In our principle “reap you parole possibility, law embraced the what was not a reference to but merely sow” as extension of that meta was instead a comment the failure of phor. correctly prior positively in this case was incarceration to effect the behavior, beginning instructed response deliberations defendant’s and a valid argument of counsel is not evidence and the defendant’s claim that he could conduct judge provides the relevant if instruc himself as a decent individual sentenced tions as to imprisonment possibility the law. It is well-established life without the jurors presumed parole. are to follow the in- *12 she won’t be
However, from her. And assuming get letters even that to be her. She won’t argument interpreted able to write letters prosecutor’s could be get phone or phone to call her on parole review able referring possibilities, as to to her be able tell for her. She won’t calls of the reveals that the error record her boyfriends in life. Tell her about prop trial in this harmless. The court ease her about her problems. her Tell erly jury about instructed that accomplishments. A who receives sentence No, jury, not gentlemen of the eligible ladies and imprisonment for not life shall be you that life is do believe parole for one second for consideration until the defen- is a difference death. There twenty the same as dant has served at least five hap- is that whatever and the difference years of A defen- calendar such sentence. system that we pens penitentiary in our imprison- dant receives who a sentence about, is we do know may what parole know possibility ment life without for girl year old little is that four pa- on dead certain eligible shall never be for release again. to her mother going ... is never see role. Therefore, assuming miscon- even mean prosecutor’s
strued the comment to pa- be on that the defendant would released in this case. It It is hard to be involved death, role to the instruc- unless sentenced pleasant. easy anybody. It is not is not for given by the trial court were tions sufficient something that is whole you Let me tell Accordingly, clarify misconception. to you pleasant than Let me tell lot less this. clearly in this case was and accu- something is a whole lot harder than that rately sentencing apprised options of its anything going today to do we are accordance with current law. See Tenn.Code couple of anything done in the last we’ve (1997 39-13-204(e)(2) Repl.) Ann. is- This months, explain to having is and that is merit. sue without mother is. And girl that little where her going is never to come where her mother Impact Argument C. Victim back. The defendant next contends Linda Harris floor where same argument during closing prosecutor im three-year-old toys played with with her impact kill properly argued about floor that is daughter that is the same she ing family, particularly victim’s about her laid all sitting brains out there daughter. surviving on the effect victim’s reality. That the sad over the table. is responds argument in this unduly inflammatory it case because was not facts could addressed itself you the role of [the defense] When told presented have inferred the evidence justice, is to is prosecutor seek com guilt stage. The defendant bring you I can’t we do. can’t and what portion
plains following about mother, her Harris her back Linda closing prosecutor’s argument. husband, daughter. We can’t do for her says defense] [a] life without [The give true. We can’t Michael that. That is I parole same death. sentence is the give But we can Harris back her mother. respectfully disagree. justice. you I her And that is what ask sorry strong. I too And I’m if sound do. sorry my I’m if I mouth. But there raise Be-
is a amount of difference. substantial four little Harris who is cause Michael is same as visit A life sentence not the death. years going is never to be able to old There is no let- hold There is not visitations. her She never be [sic] mother. will girl cry no radio. All that little ters. There is her mother. She will never able very going vague is memories able to to have to her mother. She will never be year all being a old child. And phone. won’t three call her mother on the She somebody else in family her going proof that’s relating the circumstances of the of- years have for years is memories of fense. argument Much of the was a re- trying explain that. sponse to argument. defense
Wide latitude is to be afforded counsel to present closing argument jury, to the but we again prosecutors caution arguments to avoid give [W]e cannot Michael Harris back appeal jurors. which to the of emotions her give mother. We Sidney can’t Harris However, case, agree in this with the back- his wife. give We [can’t] Mrs. Har Appeals prosecu- Court of Criminal that the ris’ mother back daughter. her But we tor’s prejudicial remarks do not constitute give can justice. them That is what I ask error requiring a reversal. you to do. argument
The
in this case referred to facts
jury
regard
learned from
IV. AGGRAVATINGCIRCUMSTANCE
am
ing the circumstances of the crime.
Cf.
Nichols,
(Tenn.1994).
v.
tive Middlebrooks
murder, there is no constitu
of first
decision
under this Court’s
doubt
reasonable
use
felo
against prohibition
tional
(Tenn.
Howell,
in
sup
circumstance to
ny
aggravating
murder
1993).
penalty. State
of the death
port imposition
(Tenn.1995).
Hines,
919 S.W.2d
Court,
argues that
In this
principle announced
application
Howell and Since
not harmless under
the error was
findings of
upon the
turns
resentencing. The
Middlebrooks
requires
remand
indict-
multiple count
jury in each
State,
contrast,
argues
this case does
during the
the murder was committed
jury findings on that
require specific
ments which
burglary.
aggravated
Since
perpetration
felony murder should
premeditated
circumstance
felony
murder
instruct
should
utilized. Trial courts
jury’s
upon the
count of
in this case also is based
a verdict as to each
jury to render
only
Obviously,
finding
committed while
when
that the murder was
an indictment.
such
murdered,
committing
engaged
ver-
person
the defendant was
has been
one
Appeals
of an
cor-
burglary,
than one count
of Criminal
guilt
on more
the Court
dict
of com-
charging
means
action in
rectly
different
the trial court’s
indictment
held
only
support
degree murder will
mitting
striking
counts one and three
the verdicts on
for first
judgment of conviction
in an error under
one
the indictment resulted
6.;
Carter,
at
n.
murder.
Middlebrooks.
However, find-
Hurley,
at 70.
says this Court
The State
the trial court
ings
to each count will aid
jury’s verdicts on
need
reinstate
whether,
determining
and counsel
of the indictment
counts one and three
Middlebrooks,
felony
aggrava-
We are
the Middlebrooks error.
alleviate
may
be relied
ting circumstance
Had the trial court
disagree.
constrained
imposi-
penalty phase
support
of the trial to
*15
respect
jury’s
upheld the
verdicts with
penalty.
tion of the death
indictment, reli
counts one and three of the
Applying
principles to the
these
aggravating
upon
felony
the
ance
trial
in this case it is clear that
the
facts
precluded
not be
circumstance would
correctly required
jury
the
to return
court
However, we are unable to
Middlebrooks.
multiple count
verdict as to each count of the
verdicts, because, as the
reinstate those
charged alternative meth
indictment which
found,
Appeals
once vacat
of
Court Criminal
degree
committing
of
offense of first
ods
ed,
respect
jury’s findings
to those
addition,
In
the trial court also
murder.
void. See Black’s
two counts were rendered
correctly concluded that the defendant could
(6th ed.1990) (defining
Dictionary
Law
only
Only
receive
one sentence of death.
annul;
aside;
to set
“[t]o
“vacate” as
occurred,
killing
one
had
and while the
void; as
or rescind. To render an act
cancel
guilt
returned a verdict of
on each of the
record,
judg
or a
entry
of
to vacate
indictment,
three
the three
counts
Davis,
ment.”);
State v.
merely charged distinct modes of
counts
(Tenn.1981). Moreover,
striking
jury’s
committing
degree
the same offense—first
verdicts on those two counts of the indict
murder.8 Since the
found the defendant ment,
upon
authority
the trial court relied
his
offense,
guilty
only
of
one criminal
one
juror.
as the thirteenth
It is well-established
appropriate.
penalty
sentence was
At the
verdict,
judge
when a trial
sets aside a
phase,
responsibility
of
approved it as the thirteenth
he has not
fix a sentence for the defendant’s conviction juror,
approves
court
and unless the trial
degree
of the offense
first
murder. Rath
juror,
verdict as the thirteenth
the verdict is
remedying
jury’s
than
impos
er
error of
Accordingly, we are unable to
invalid.
Id.
ing multiple sentences for the same offense
jury’s
respect to
verdicts with
reinstate
by entering
judgment
one
of conviction for
counts
three of the indictment.
one and
striking
murder and
two of the However,
agree
with the State
jury,
sentences entered
the trial court
Appeals
that the Middle-
Court
Criminal
jury’s
guilt
this case struck the
verdicts of
in this case.
brooks error is harmless
indictment,
on two
stating,
counts
“the
simply surplusage.
jury’s
upon
ag
other verdicts are
It is
A
an invalid
reliance
discretionary
gravating
with the court as a finder of
is harmless
beyond
circumstance
fact,
juror,
verdicts,
thirteenth
appellate
to strike the
reasonable
if an
court can
doubt
result,
and I will do that.” As a
the defen
conclude that the sentence would have been
dant’s
sentencing authority given
conviction of first
murder is
the same had the
grounded solely
jury’s
weight
aggravating
now
no
to the invalid
circum-
finding
(1997 Repl.);
Hurley,
8. Tenn.Code Ann.
39-13-202
stance.
tor’s at the evidence sentencing hearing cumulative because aggrava- admitted establish the invalid occurring in the errors prejudicial effect of tor, nature, quality strength phase is of his trial. mitigating evidence. multiple er correct the combination may of a death
rors
necessitate
reversal
if
not re
penalty even
individual errors do
than
more crucial
the sum of
[E]ven
812;
Bigbee,
see
quire relief.
remaining aggravating
circumstances
(Tenn.
Brewer,
two cases C.J, HOLDER, J., ANDERSON, many similarities with the facts of have concur. cases, caused case. In all five death was gunshot he head or neck of the wound to REID, J., eoncurring/dissenting Separate unprovoked and victim. The murders were opinion. only apparent motive for each was BIRCH, J., eoncurring/dissenting Separate accomplish another defendants’ desire to opinion. Cribbs, in four criminal act. Like
cases, the defendants had been involving use felony offenses convicted of APPENDIX Cribbs, like person. Also of violence (Excerpts from the Court Criminal offered little many of the defendants Decision) Appeals’ offense, cooper- and did not mitigation of the reviewing the police. After ate with IN THE COURT OF CRIMINAL many other cases cases discussed above TENNESSEE APPEALS OF detailed, opinion we are of the not herein AT in this JACKSON penalty imposed disproportionate to the case is MARCH 1996 SESSION imposed crimes. for similar Tennessee, Appellee, State of *19 vs. Cribbs, Perry Appellant. A. CONCLUSION # 02C01-9508-CR-00211 C.C.A. of Tenn. the mandate In accordance with SHELBY COUNTY (1997 39-13-206(c)(l) Repl.), § Code Ann. Axley, Judge Fred Hon. W. (Death Penalty) adopted decisions principles 39-2-203(0(3) Tenn.Code Ann. know- murder. jury also found that the defendant 10. The (1982). more ingly great risk of death to two or created a victim, during act of people other than
793
Appellant:
For
set aside
conviction
when
“evi-
support
finding by
dence is insufficient to
Wharton
A.C.
guilt beyond
trier of
fact
a reasonable
District Public Defender
13(e).
R.App. P.
doubt.” Tenn.
Poplar
201
Avenue
201
Suite
Here,
victims,
Harris,
Sidney
one of the
Memphis, TN 38103-1947
positive
made
emotional
identification
person
as the
“that shot
Mark Ward
W.
trial,
photographic lineup.
At
me” from
Assistant Public Defender
again identified the defendant as
second
Jefferson,
Suite 900
Memphis, TN 38103
assailant. There was corroborative evidence.
Jacqueline
Cannon observed
Appellee:
For
night
on the
of the
covered
blood
description
a watch
met the
described
Burson
Charles W.
residence,
taken
the Harris
one
from
Attorney
Reporter
&
General
say that he “had
overheard the defendant
lady
the man.”
shot
Cauley
P.
John
Attorney
Assistant
General
Here,
chose to
accredit
testi-
Parkway
450 James Robertson
mony
That
of the state’s witnesses.
Nashville, TN 37243-0493
prerogative.
sufficient evi-
their
There is
Shapiro
James Wax and David
defendant,
identity
in our
of the
of the
dence
Attorneys General
Assistant District
view,
support
each of the convictions. See
Avenue,
Poplar
Third Floor
307, 99
Virginia,
v.
S.Ct.
Jackson
U.S.
Memphis, TN 38103
(1979).
2781,
The defendant next contends
for the state
eotape introduced as evidence
OPINION
unfairly
defendant as-
prejudicial. The
WADE, Judge.
no valid reason to dis-
that there was
serts
pool
lying
victim
play the deceased
jury. The
to inflame the
blood other than
I.
suppress
portions of the
court
those
trial
did
Initially,
the defendant claims that
For
gruesome.
tape which were
most
evidence was insufficient
identification
segment
example, the
deleted
showed
support any
convictions. On
three
separated
brain matter
portion of the victim’s
however, the
appeal,
state is entitled
across
kitch-
her skull and scattered
strongest legitimate
view
evidence
floor;
segment displayed the
en
second
might
inferences which
be
all reasonable
skull of the victim.
shattered face and
credibility of the wit-
drawn therefrom. The
nesses,
weight
given
their testimo-
Rules of Evi
403 of the Tennessee
Rule
in the
ny, and the reconciliation
conflicts
discretion to
trial courts the
permits
dence
exclusively
probative
if the
are matters entrusted
evidence
evidence
exclude relevant
State,
Byrge
substantially out
triers
fact.
as the
of that evidence
value
prejudice.
dangers
unfair
(Tenn.Crim.App.1978). weighed
(Tenn.
Banks,
verdict,
judge,
approved by the trial
guilty
A
See
1978).
its discre
conflicting testimony in
The trial court must abuse
favor
resolves
*20
Hatchett,
may con
authority
court
tionary
before this
v.
560
theory of the state. State
(Tenn.1978).
may
627,
a reversal.
This court
sider
630
S.W.2d
instance,
clearly
In this
proce-
the trial court
determining
The factors
whether the
suggestive
accept
exercised
as reliable
by admitting
discretion
dure was too
following:
gruesome
least
of
to be the
were determined
what is otherwise relevant
Banks,
(1)
evidence.
“shocking
As noted in
opportunity
and
to view
of the witness
offense;
horrifying
emotionally does not
at the
of the
as-
the criminal
time
sist them in making
(2)
a reasoned determina-
attention;
the witness’
is_”
tion of how serious the crime
Id. at
(3)
accuracy
prior de-
of the witness’
individual;
scription of the
certainty
the level of
demonstrated
In the context of the trial and the circum
confrontation;
the witness at the
and
crime,
stances of the
it is our view that the
the time between
crime and
trial court did not abuse its discretion. The
confrontation.
videotape probative.
the crime scene was
frightening,
videotape
While
not
199,
was
so Id. at
795 to be error recognized this consistently course, anyone unable, identify else. to showing prejudice. a clear absent harmless to paid he no attention victim stated 908, 921 Smith, 893 S.W.2d v. See State individuals underneath the the numbers 236, Teel, (Tenn.1994); 793 S.W.2d v. State identifi- making the photographs before the Carter, (Tenn.1990); S.W.2d 714 v. State 252 question objective eye, the To cation. the prejudice (Tenn.1986). claims 241, He 251 num- with the appears to be associated mark of statu- read the list prosecutor the because not the photograph the underneath ber by the defense tory mitigators submitted individual therein. any prove failed argued that the pretrial the In order determine whether appear prosecutor’s actions of them. The unnecessarily lineup photographic was so the attempt to evaluate than an be little more due suggestive as to violate constitutional classi- any could be accordingly, error proof; totality this must examine the process, court fied as harmless. the time of existing at of the circumstances Denno, 388 the identification. See Stovall VI. 293, 1967, L.Ed.2d 1199 87 S.Ct. 18 U.S. judge Next, the claims trial the defendant (1967). showing by Absent sen- jury that its instructed should have against the preponderates the evidence actually be carried out tence would court, judgment of trial this court must de- by Specifically, the provided extent law. ruling court. defer to the trial instruction, suggests that without fendant Davis, 950, (Tenn.Crim.App. 872 955 S.W.2d speculate pen- jury would 1993). By guidelines, our the use these alty be out and that might not carried process sug is that the not assessment years if might released in a few even be been, photo gestive. Even if it had parole. life without The defen- sentenced to graphic properly identification was ad still dant to an instance in the record where cites into mitted evidence use of Neil v. juror, on the prospective who did sit Biggers criteria. The victim saw the defen validity actually questioned the at a of less feet for dant distance than five that the The defendant reasons sentences. thirty Despite stocking, over seconds. juror prospective and those comments specifically facial the victim recalled the fea issuing charge may have of the court in its jurors panel. tures of the defendant. The victim described influenced moustache, having defendant as thick consistently supreme Our court has found large eyebrows, and a round nose. The special request made descriptions height weight were consis Tran, improper. See 864 Van S.W.2d appearance. tent with defendant’s actual 481; Caughron, 526, 543 State v. 855 S.W.2d that a The victim testified beam of 10, (Tenn.1993); Payne, 791 State v. carport allowed for clear view of his (Tenn.1990), aff'd, 808, 501 U.S. 111 S.Ct. assailant. 2597, (1991); L.Ed.2d State v. Mel son, (Tenn.1982). So, IV. comment, reject without further the con Having no error our tention of the defendant. found reversible trial, analysis judgments convic- The defendant also insists that the trial affirmed. turn to those tion are We now refusing court committed error by reversible alleged grounds propri- to have affected the to instruct that it could consider ety the sentence of death. sympathy deciding when on a sentence. He argues trial court should not have V. charged to render its on the verdict The defendant claims trial court under- any law facts sympathet- rather than by illustrating the defense mined ic By rejecting notions for defendant. statutory mitigating circumstances the those this argument, judge per- the trial acted in actually did not raise. The defen- defense fect precedent. accordance with established Smith, supreme court has concedes See State v. dant *22 796 Cazes, 797,
(Tenn.1994); In Bigbee, principles. v. 885 constitutional 875 State S.W.2d Cazes, 269, rejected (Tenn.1994); supreme at court S.W.2d our 814 State v. 875 S.W.2d Caughron, this also 855 253, (Tenn.1994); Harris, contention. See State v. 839 268 S.W.2d at (Tenn.1992). 542. 54, Thus, S.W.2d we hold 75 that merit. this claim is without Next, that the defendant submits the death qualification prospective jurors process for
VII. guilt-prone a “prosecution-prone, creates acknowledging supreme While that jury.” Noting contention has been also rejected consistently upheld pen- by Supreme court States has United Court, rejected attacks, similar our court con- alty supreme this statute under the defen- Teel, in 793 at tention meritless S.W.2d dant that our statute to mean- insists fails 246. ingfully eligible the class of death narrow that defendants. He contends the death alleges The that he unlaw- defendant imposed capriciously sentence is and arbi- addressing jurors’ fully prohibited from mis- trarily; that electrocution is cruel and un- conceptions sentencing. argu- This about punishment; appellate that usual routinely rejected by our ment has been constitutionally inadequate. process
review
is
Brimmer,
supreme
876
at
court. See
S.W.2d
268;
86-87; Cazes,
Black,
at
815
875 S.W.2d
long
authority,
upon a
line of
Based
at
S.W.2d
179.
Smith,
reject
must
each claim. See State v.
(Tenn.1994);
Next,
797
Middlebrooks, 840
under
contends that death
was error
also
(Tenn.1992),
punish-
cert.
electrocution
cruel and unusual
dismissed
supreme
repeatedly
court has
126 L.Ed.2d
ment. Our
S.Ct.
U.S.
Nichols,
(1993).
aggra
rejected
Consequently,
valid
notion. See
*23
737; Gazes,
268;
previ
vating
at
875
at
is the defendant’s
S.W.2d
S.W.2d
circumstance
Howell,
involving the use
the second
not
the use or threat
which did
involve
Justice,
REID,
concurring
dissenting.
statute,
by the
required
as
violence
thus,
by
majority,
acknowledged
was
as
majority’s
I concur with the
decision that
carried
not admissible. The State has not
be af-
the conviction
murder
that,
showing
beyond
a rea
the burden
However,
major-
firmed.
I dissent from the
doubt, the Middlebrooks error did
sonable
ity’s finding
jury’s improper
consid-
impose a
jury’s
not affect
decision
felony-murder aggravating
of the
eration
sentence death.
circumstance,
Ann.
39-13-
Tenn.Code
204(i)(7),
beyond
rea-
was harmless error
view,
my
is dis
In
the sentence
death
Also,
doubt.
death
sonable
the sentence of
in
The victim this case sur
proportionate.
is,
view,
my
disproportionate.
ease
in
this
prised
burglars in her
two
home. She
instantly
gunshot
single
wound
killed
majority again
excuses constitutional
tragic and de
Any
head.
murder is
deficiency
ubiquitous
with its
use of harmless
Nevertheless,
right.
un
in its own
structive
Boyd,
error. As stated in dissent
State v.
penalty
is
557,
and federal law
death
(Tenn.1998),
high
der state
959 S.W.2d
567
culpable
most
offenders.
reserved for the
analysis an
standard for harmless error
Considering the
of the defendant
Howell,
character
868
238
nounced in State v.
S.W.2d
crime,
of the
this
1215,
the circumstances
(Tenn.1993),
114
cert. denied 510 U.S.
“among
not
the worst of the bad”
(1994),
crime was
1339, 127
687
has been
L.Ed.2d
S.Ct.
is reserved.
for whom
death
compromised in a number
significantly
(Tenn.
Nichols,
722,
v.
744
State
v.
decided since Howell. See State
cases
J.,
Reid,
1994),
dissenting.
I
hold that
would
Smith,
(Tenn.1994),
de
908
cert.
under the facts of
99,
the sentence
nied,
829, 116
L.Ed.2d
516 U.S.
S.Ct.
133
disproportionate and
Nichols,
is excessive and
case
(1995);
722
877
53
State v.
imprisonment.
to life
the sentence
denied,
1114,
reduce
(Tenn.1994), cert.
115
U.S.
909,
(1995);
L.Ed.2d
majority holding that
fully concur in the
I
first-degree
agree
con-
conviction
members of the Court
Cribbs’
All
in the
affirmed.
I concur also
felony-murder
should be
circumstance
sideration
burglary
already
conclusion
Reid
reached
Justice
circumstances
proba-
felony-
Middlebrooks
in this case
to convict Cribbs of
error
more
utilized
write,
bly
first-degree
than not affected the sentence.
I
the other
mur-
two
however,
express my separate
as to
der
had been stricken
trial
view
verdicts
and,
result,
death-eligible
punishment
court.
this case
the same
As a
class of
narrowed,
time,
sufficiently
I
to summarize the manner
defendants
required
pre-
addressed
have
Middlebrooks errors
United States
Tennes-
cases.
see
vious
Constitutions.
Middlebrooks,
(i)(7)
aggravating
(Tenn.1992),
dismissed,
circumstance, only
cert.
one other
cir-
U.S.
*24
651,
(1993),
support
114 S.Ct.
sisting only of the defendant’s
A.
Howard
beyond a
harmless
majority found the error
reasonable doubt.
MANAGEMENT and Solomon
MTC
Hines,
second,
In the
Management, Appellees.
—
(Tenn.1995)
denied,
U.S.-,
cert.
(1996),
joined
I
circumstance was April robbery, rape. larceny, ent felonies: Thus, partial duplication there was conviction, felony-murder which was
with the Additionally, solely robbery. based sup aggravating circumstances two other Id. at 583-84. ported the death sentence. review, I conclude that In the case under exception appropriate. With remand single only a Boyd, when error leaves remaining, I have aggravating circumstance jury’s unwilling decision to hold Moreover, unaffected the error. error is combined when the Middlebrooks *26 error, I have also with at least one additional jury’s unwilling decision was to hold the in- distinguish Boyd I from the unaffected. Boyd error the Middlebrooks stant case: Here, sentencing problem. was the sole misleading the Middlebrooks error the number of jury, but also jury was mis- submitted to the convictions leading. sum, majority that the agree I must be af-
first-degree murder conviction However, I find that because firmed. aggrava- jury of an invalid submission to the prior convic- and an invalid ting circumstance beyond a reasonable not harmless tion is doubt, I would re- respectfully I dissent. new the trial court for a cause to mand this hearing. sentencing Woods, Memphis, pro se. A.
Howard GruMn, Memphis, Appel- J. Whitten lees.