State v. Harris

Tennessee, Appellant, STATE of

Timothy Craig D. HARRIS and

Thompson, Appellees. Tennessee,

Supreme Court of

at Jackson.

April

Rehearing Denied June seeking from pur- for that

upon resentencing, remand Accordingly, the Court pose appropriate. modifying Appeals’ judgments of Criminal re- to life the sentences to the re- the cases remanded versed and resentencing. for spective trial courts

BACKGROUND County Shelby separate in the In trials Court, defendants, D. Timothy the Criminal Craig each con- Thompson, Harris were and during felony murder first-degree of victed robbery, a and the sentenced course death. Harris, by the proof introduced

As to the May evening on the State established that as shot to death Jack Thomas was Joseph McCartie, Shelby County; B. Hon. in Mem- he in his car outside his home sat Judge. began young four phis. when The incident Burson, Attorney General Charles W. & approached placing as was men Thomas he Amy Reporter, Tarkington, L. Christina S. At two of the some items in his car. least General, Shevalier, Attorneys Assistant Thomas realized men were armed. When Harris, Nashville, Wright, Glenn I. Gerald him, jumpеd he that the men intended to rob Goodman, F. District Attor- Paul Assistant the door. Thomas his car and closed neys, Memphis, appellant. for attack, gunshot in the eight wounds suffered Harry Scruggs, Memphis, U. David C. his car was during which the rear window of Stebbins, Columbus, Ohio, Har- appellee for gunfire. girlfriend, Thomas’s shattered ris. time, identi- who was inside the house young four the defendant as one fied Nashville, Oliva, John G. David C. Steb- approach. did not see men she saw She bins, Ohio, Watkins, Columbus, Carolyn Ed- a gun, but saw another of defendant with Thompson, ward G. Assistant Public Defend- four While she men shoot Thomas times. ers, Memphis, appellee Thompson. for house, ran- hid inside the three the men time, During this sacked the bedroom. OPINION at close Thomas was shot several times ANDERSON, Chief Justice. gold range. phone A cellular necklace Although robbery. Harris were taken single1 The in this issue consolidated burglary and in participation admitted in the appeal purely question a law and is re planning robbery, that he was he claimed quires determination of whether remand unarmed and did shoot Thomas. While appropriate ap when an for identity person who shot Thomas pellate in a concludes the court case established, definitively never Harris’s found sole circumstance passenger fingerprint was lifted from the sentencing jury legally invalid and convicted door of the victim’s car. sets aside the sentence of death. Because evidence, Harris, precludes on that legal there no based light Bigbee, pursue application permission that issue in of State v. In its (Tenn.1994), requested which reaffirmed Court reconsider S.W.2d 797 State event, Middlebrooks, majori holding holding in Middlebrooks. in State v. 840 S.W.2d 317 1992). However, presently (Tenn. also ty as constituted the State in its brief to of this Court longer holding in expressed reaffirms the Middlebrooks. the Court has its intention no record, during murder committed the course of a criminal had been a well- robbery.2 family honor behaved student from stable joined until came he to Tennessee sentencing hearing, At the relied age Navy at seventeen. during on evidence testi- mony from the victim’s mother. Harris testi- proof, jury imposed Based on the behalf, admitting fied his own that he had finding the State had instigated robbery, claiming that he proven, beyond doubt, a reasonable that the had never intended that Thomas be shot. during murder had been com- committed expressed regret He remorse and for what robbery, aggrava- mission and that the happened. The defense also on testi- relied outweighed mitigating circumstance mony from the defendant’s At aunt. the factors. Wiling, of twenty years time the Harris was old, a high graduate school with no Accordingly, during sentencing phase the criminal record. case, presented proof of each the State to the establish circumstance that proof, jury imposed Bаsed on the the the killing during the occurred the of a course finding after that the State had 13—204(i)(7) robbery. § Tenn.Code Ann. proven, beyond a reasonable doubt that the 39— (1991 Repl.).3 during murder had occurred the commission robbery of a and that the cir- separately appealed Each defendant the to outweighed mitigating cumstance the factors. Appeals raising of Criminal numerous Thompson, to Craig proof As the intro- court, issues for review. The in intermediate guilt phase duced at the of the trial estab- case, conviction, each affirmed but re- 16,1990, Thompson lished that on December versed the of concluding sentence Express Memphis entered a Delta Market jury’s felony ag- reliance murder clerk, and shot to death the Carrie Lee gravating circumstance at A Walker. second clerk who fled to had hearing contrary was to In Middlebrooks. of back the store identified Thompson as a сase, that, this held when a defen- person matching description killer, of the murder, felony dant of convicted Thompson while customer identified as the felony aggrava- State’s use of murder as an out gun man who came of store sentencing hearing circumstance at the addition, his hand. In the homicide was I, 16, of violates Article the Tennes- Section videotaped camera, by a security and the see cir- Constitution because the jury tape saw photographs and made duplication cumstance is a of the itself crime Thompson it. shooting from also admitted and does narrow the class of death- get-away the clerk to the driver of car eligible constitutionally defendants as is re- friend, to a and but claimed that the clerk quired. Reasoning pre- trying was to shoot him. The convicted sentencing jury cluded because the relied Thompson during murder the com- only one circumstance robbery. missiоn legally support imposi- invalid which was to sentencing hearing, At the tion penalty, State relied of the death the Court of Crimi- proof at trial nal Appeals and addi- modified the sentence in each tion, testimony from imprisonment. introduced Walker’s sis- case to life The State filed defense, Testifying Thompson’s ter. for applications permission appeal, to which eighteen granted, thereafter, mother said that he was or nineteen were and the cases were years killing, old at the time had no consolidated for For and decision. especially aggra- mitting, accomplice 2. Harris was also or convicted was an in the commission robbery aggravated burglary. of, commit, vated The tri- attempting fleeing or was or was imposed twenty-five al court sentences six commit, committing attempting or convictions, years, respectively, on each murder, arson, degree burgla- rape, robbery, first appeal. not at issue in this theft, ry, kidnaping, piracy, aircraft or unlawful throwing, placing discharging of a destructive provides: 3. The statute “The murder com- device or bomb.” engaged mitted while the defendant was in com- Pearce, 395 follow, judgments same offense. North Carolina the reasons that 2072, 2076, 23 711, 716, L.Ed.2d Criminal 89 S.Ct. Appeals modifying each Court of Mounce, (1969); 859 S.W.2d to life are reversed sentence pro application, these respective remanded to the the cases who has tections forbid retrial of defendant resentencing. trial courts for and, acquitted when a conviction been insufficiency of the been aside because of set DOUBLE JEOPARDY evidence, giving jeopardy double forbids ap Resolution of the issue supply opportunity prosecution “another requires princi peal a review of well-settled the first which it failed muster evidence ples jeopardy jurisprudence. double States, 437 proceeding.” Burks v. United Con Fifth Amendment the United States 2141, 2147, L.Ed.2d through applicable states stitution Due the Fourteenth Amendment Process obtains a new When Clause,4 person provides that no shall through a successful on some subject “be to the same offense be twice evidence, insufficiency basis other than Similarly, put jeopardy of limb.” however, jeopardy preclude does double I, 10 the Article Section of Tennessee Consti Id.; Ball Unit a retrial of the defendant. v. shall, no for provides person “[t]hat tution States, 1192, 662, 41 ed 163 U.S. 16 S.Ct. offence, put of jeopardy be twice same (1896); Campbell, 641 300 v. L.Ed. jeopardy provi The or limb.” double (Tenn.1982). 890, The rationale S.W.2d 893 sions of state and federal constitutions allowing for in such circumstances was retrial eo-ex- interpreted heretofore been as Tateo, aptly explained in States v. 377 United jeopardy The double clauses were tensive.5 1587, 463, U.S. 84 S.Ct. 12 L.Ed.2d 448 designed protect an individual from be- (1964),as follows: subjected ing to the of trial and hazards ad- theories have been While different possible conviction more than once for an support permissibility of re- vanced idea, alleged underlying offense- trial, greater than con- importance of deeply ingrained one that is at least the explain employed to ceptual abstractions system jurisprudence, Anglo-American of implications of principle Ball is that the all its resources and State with for the sound administration power re- should be allowed make right justice. Corresponding to the peated attempts to convict an individual be a is given an accused to fair trial offense, thereby alleged subjecting for an punishing whose societal interest one embarrassment, expense him to ordeal guilt after has such a is clear he obtained compelling continuing him to in a live high for priсe It a indeed trial. would be anxiety insecurity, state of as well as every granted society pay accused were enhancing possibility though that even immunity punishment from because may guilty. innocent he be found er- sufficient to constitute reversible defect States, 184, 187-88, v. United 355 Green U.S. leading convic- proceedings ror in the 221, 223-24, (1957); 2 78 S.Ct. L.Ed.2d 199 defendant, standpoint a From the tion. 315; Maupin, 859 S.W.2d at State v. appellate courts it is at least doubtful (Tenn.1981). 593, Knight, 616 595 S.W.2d they as now are would be as zealous protecting improprie- jeopardy guarantee against af the effects The double stage they pretrial if separate protec three constitutional ties at the trial or fords 1) a would prosecution that reversal of conviction against, second knew tions 2) beyond put irrevocably acquittal; the accused offense after a second same reality, prosecution. of further prosecution for the same offense after convic reach ‍​‌​​‌‌‌​​​‌​​‌​‌​‌​‌​‌​‌​‌​​‌​‌‌​‌​‌‌‌‌‌​‌‌​​‌​‌‍therefore, tion; 3) practice multiple of retrial serves punishments for the 313, (Tenn. 784, Maupin, Maryland, v. 315 395 89 S.Ct. 5. State 859 4. Benton 112, State, 1993); 586 S.W.2d 2056, (1969). Lavon 23 L.Ed.2d rights society’s defendants’ as well as in- defendant to life sentenced terest. protected by rather than the Double Jeopardy against re-imposition Clause of the Id, 466, 377 U.S. at S.Ct. Ac when the defendant obtains a cordingly, provision pre no constitutional conviction, underlying reversal and is legal vents retrial after a reversal for error. holding, retried and In so reconvicted. Moreover, “upon appellate of a reversal con acknowledged rule, the “clean slate” viction the Government is not limited at a “inapplicable determined that rule is new trial to evidence at the first jury agrees whenever or an appellate court trial, but is strengthen free to in any its case prosecution proved decides that the has not way it can the introduction new evi Id., its at case.” S.Ct. State, dence.” Pickens v. 292 Ark. Although recognizing usually that it is (1987), quoting, United “impossible to that a conclude sentence less Co., Mfg. States Shotwell statutory than the maximum ‘constitute[s] a 245, 252, 2 L.Ed.2d 234 government decision to the effect that A corollary well-settled case,’” id., prove has failed to (quoting its power to retry a power, is the States, Burks v. United 437 at 98 S.Ct. at reconviction, upon a impose defendant’s 2149), Missouri, by found that authorized, legally whatever sentence “enacting sentencing procedure greater whether or not it than the sen resembles a trial on guilt the issue of imposed tence the first conviction. innocence, requires ... explicitly Pearce, North Carolina v. 395 U.S. at prosecution determine whether Imposition particular ” Id., ‘proved case.’ U.S. at usually not regarded sentence as an “ac (emphasis original). S.Ct. at 1861 There- quittal” оf more another severe sentence that fore, jury’s the Court determined that the Thus, imposed. could been the double Bullington impris- decision to sentence to life jeopardy protection imposes pro no absolute onment after his first conviction amounted to on imposition hibition the of a harsher sen an “acquittal” of the death under the tence at retrial after suc Jeopardy Double which Clause eliminated in having original ceeded the conviction set punishment options death from the available Pearce, aside. North Carolina 395 at U.S. resentencing. at 720, 2078; 89 S.Ct. at United State v. Di Likewise, in Francesco, Rumsey, 117, Arizona v. 467 U.S. 137-38, U.S. and 203, 2305, 426, (1984), 104 S.Ct. 81 L.Ed.2d 437-38, S.Ct. 435 and 66 L.Ed.2d 328 applied Bullington principle, the Court the generally This known as resentencing and held that is barred follow the “clean slate rule” ultimately and “rests ing imposition sentence, of a if life even premise on original the the conviction imposition has, of the life sentence is based on behest, the wholly at defendant’s been legal Rumsey, In an error. Arizona trial wiped nullified and the slate clean.” North judge erroneously statutory ag construed Pearce, 721, Carolina v. 395 U.S. at 89 S.Ct. circumstance, gravating concluded that Therefore, retrial, the the consti prove State had failed the existence of an guarantee against tutional jeopardy double circumstance, imposed and a life prohibit imposition does not legally au sentence. Concluding that the trial court sentence, it great thorized whether or not had misconstrued the circum imposed er than the sentence after the first stance, Supreme the Arizona Court set aside conviction. the life sentence and remanded for resen- exception One to the “clean slate rule” has tencing. recognized by been the United States Su- preme hearing, Court in the context of At bifurcatеd the the State capital prosecution time, sentencing proceed- again sought, and this obtained the Missouri, ings. In Bullington v. penalty, appeal, but U.S. the Arizona 430, 1852, (1981), Court, 101 S.Ct. Supreme light L.Ed.2d Bullingtcm, deter- Supreme that, the imposition United States held Court mined that of the death sentence factor, was gain pecuniary use of prohibition against the the violated constitutional again trial. While jeopardy. not found at double support insufficient finding evidence Supreme af- States Court The United factor, heinous, depraved cruel or firmed, concluding that the “initial sentence upheld pecuniary Supreme Arizona Court undoubtedly ac- an was and, weighing aggrava- gain factor quittal on the merits of central issue circumstances, mitigating concluded ting and ap- proceeding death was the —whether appropriate. was that the death Arizona punishment_” propriate Rumsey, at at granted The United States holding, emphasized that the so the Court rejected the conten- defendants’ review jeopardy judgment double effects failure to find capital that a sentencer’s tion acquittal was amounted an the merits alleged aggravating circumstance particular imposition of the life altered because acquittal of prosecution constitutes an inter- sentence resulted from an erroneous jeopardy pur- for double that circumstance Id. pretation legal principles. governing Arizona, poses. Poland Arizona, Poland 1755. The court reiter- 106 S.Ct. at Poland v. recently, in More Bulling- proper inquiry under ated that the 90 L.Ed.2d 123 106 S.Ct. reviewing ton is whether the sentencer or of the Bull- (1986), scope application prosecution ington concluded that In that court has rule was further delineated. case that death is case, argued prove failed penally phase the State at the Id. The rе- capital appropriate punishment. of the defendants’ murder trial Bullington of two circumstances: and view existence fused extend (1) pecuniary sentencing as a of mini proceeding the murder was committed for set (2) gain; especially hei- murder on the existence each trials id., nous, depraved. circumstance, cruel or 476 U.S. at judge imposed penalty, finding but instead concluded heinous, cruel, exist, depraved factor to sep- [ajggravating circumstances pecuniary gain rejecting factor be- offenses, penalties but are stan- arate Rumsey, cause, sentencing judge inas making guide the of the choice dards to interpreted only applying it as to contract of death between the alternative verdicts killings. limiting In the event that construc- Thus, Ari- imprisonment. under or inaccurate, however, sentencing tion was the scheme, the capital sentencing zona’s judge in Poland alternatively found the evi- finding any particular judge’s aggrava- pecuniary dence sufficient to establish the “con- ting circumstance does not itself Id., gain aggravating circumstance. (i.e., require death a the vict” 149,106 S.Ct. any partic- penalty), failure to find and the appeal, Supreme

On the Arizona Court ular circumstance does lie.,- reversed the convictions because trial er- preclude the “acquit” a defendant ror a trial. and remanded for new With penalty). death regard penalty phase, to court found must find It is true that the sentencer support the hei- evidence insufficient some before circumstance cruel, circumstance, nous, depraved but may imposed, and be gain pecuniary that factor was not held finding, albeit erro- that the sentencer’s killings and determined limited contract neous, no circumstance that at resentenc- that factor could considered seс- present “acquittal” barring an a is is ing. proceeding. This is ond death sentence sig- retried, particular the law attaches reconvicted because

The defendants were acquittal. permit To a to an again to death. The trial nificance sentenced heinous, acquittal, an however cru- second trial after judge especially found both been, may acquittal pecuniary gain ag- mistaken the depraved, el and the high risk present unacceptably an present. On would gravating circumstances to be Government, vastly its su- with challenged the appeal, the defendants State’s resources, perior might death, down acquitted wear and have not been of the penalty. death fail though defendant so that even The State did not innocent prove its case that is appropriate guilty. he be found This concern punishment. present legal a The error protecting finality acquittals error, a not matter of insufficient evidence. when, implicated cases, as in these death, i.e., a defendant is sentenced to acquittal, there been Because has no “convicted.” There is no cause to shield resentencing precluded. remand for is not litigation; such defendant from further Supreme recog- As the United States litigation only hope nized, further is the he has. corresponding the fair interest may argue right society’s The defendant of an accused is interest punishing guilty one who has been sentencing the evidence at his found Toteo, at trial. v. United States 377 U.S. at aas matter of law insuffi- 466, 84 at 1589. Both S.Ct. these defendants support cient circum- have been convicted of crimes for which soci- stances on which his death sentence was ety, officials, through its elected has seen fit based, Jeopardy the Double Clause provide punishment option. as a court, require reviеwing does not if it Both defendants did in fact receive the death claim, ignore sustains that evidence penalty. Accordingly, significance soci- supporting aggrava- the record another ety acquittal attributes to an is not involved ting circumstance the sentencer appeal, resentencing pre- is not rejected. erroneously Such rule cluded. unacceptable would have odd re- requiring sult of a reviewing court to en- join majority holding, In so we ter a death “acquittal” jurisdictions even analysis adopted which have though Poland, court of the view that proved State has case. concluded that the sentencing trial is trials, not a of mini series and there is no Arizona, 166-57, v. Poland U.S. at thing acquittal aggrava such as an from an (inter- (emphasis original) at 1755-56 State, e.g. circumstance. v. See Pickens omitted). quotations nal and citations (1987); 292 Ark. Preston reasoning, Based Court in Po State, (Fla.1992); v. 607 So.2d 404 Zant v. land concluded that the trial court’s Redd, (1982); 249 Ga. 290 S.E.2d 36 rejection of pecuniary gain factor ‍​‌​​‌‌‌​​​‌​​‌​‌​‌​‌​‌​‌​‌​​‌​‌‌​‌​‌‌‌‌‌​‌‌​​‌​‌‍did not David, (La.1985); 468 So.2d 1133 bar since neither the Zook, 532 Pa. Commonwealth 615 A.2d judge reviewing nor the court found the evi (1992); Johnson, 306 S.C. legally justify imposition dence insufficient to (1991); State, Hopkinson S.E.2d Therefore, penalty. of the death the Double (Wyo.1983); Silhan, P.2d contra State v. Jeopardy Clause “did not foreclose a second 223, (1981); 302 N.C. 275 450 State S.E.2d v. sentencing hearing at which the ‘clean slate’ 521, Biegenwald, 110 542 442 N.J. A.2d Arizona, applied.” rule v. 476 Poland free, Accordingly, the State is at 157, 106 at S.Ct. at 1756. resentencing proof any aggra to introduce vating foregoing legal After circumstance which is consideration au- otherwise thorities, ly valid. we conclude that in prohibited by these consolidated cases is not adopt prohibiting The dissent would a rule pro- either the state or federal constitutional the use of new circumstances at against jeopardy. hibition doublе The deter- resentencing in except all cases the rare case inquiry Bullington, Rumsey,

minative under in which the defendant is of a convicted Poland, acquit- is: Were the defendants original sentencing violent ted on the merits of the central issue in the dissent, hearing. According to the the rule proceeding appropri- death is the process is based due on fundamental —whether punishment? inquiry ate The answer however, to approach, fairness. The dissent’s is recognize is clear. The fails to patterned dissent Jersey on a of the decision New Bullington Rumsey, Court, Supreme supra. unlike the defendants Biegenwald, State v. in initially language this were sentenced to The fundamental in that fairness rely only upon dicta, binding intends to tag on if the State and as such is not case was noticed be any aggravating circumstances precedent other court. that court or trial). Court, fact, Jersey Supreme fore the first the New Koedatich, 513, 572 A.2d. State v. N.J. previously ob As this Court (1990), Biegenwald its retreated from served, resentencing hearing, the rule “[o]n may, language and held that the State at only regard to the issue evidence resentencing, rely upon aggravating circum- the same —both the jury remains before by jury in the initial not found stances any introduce and the defendant State hearing. sentencing relating to circumstances evidence importantly, Finally, perhaps most crime, aggravating circumstances relevant by deci- principles announced dicta in that circumstances, so mitigating sion, by and embraced the dissent this complete relevant information will court, case, adopted by no have been other Bigbee, punishment. to minority represent an isolated view (Tenn.1994). stated, 797, Simply if the law adopted not be as the which should it punishment, is evidence bears on offered justice The administration of Tennessee. Teaguе, v. 897 S.W.2d admissible.” State by allowing is resen- better served State (Tenn.1994). 248, 250 analysis tencing in accordance with the con- resentencing, tained within the United States At the defendant previously mitigating circum proof Court decisions discussed. See not limited to Miller, also presented State 771 S.W.2d the initial stances (Tenn.1989) (discussing limited, the Poland deci- hearing. Id. Neither is the State sion).6 restrictions, by or Tenn. constitutional 12.3, to evidence R.Crim.P. Moreover, pre the State is not trial, strengthen to its case first but is free relying cluded Tenn.R.Crim.P. 12.3 from any way it the introduction of new can at resen- new circumstances State, 730 Pickens v. S.W.2d at evidence. tencing. requires such as that rule Notice Mfg. (quoting, States v. Shotwell United mandated, constitutionally it though 252.) Co., Any 355 U.S. at practice. Berry, better premise defeat the basic other rule would purpose capital sentencing proceedings which the- the rule is ensure that the defense re oretically designed allow sentencer timely adequate ceives notice enable regarding all evidence consider relevant preparation. In the context re- and the character nature of crime sentencing hearing wherein State intends pun- appropriate determine the rely differ circumstances Gregg Georgia, ishment. upon ent from those relied at the (1976); see also L.Ed.2d 859 trial, purpose by requiring is fulfilled State, 607 Preston v. So.2d State to file a new notice under Tenn. 12.3, R.Grim.P. which informs the defense of CONCLUSION penalty, including intent seek herein, For stated the Court of circumstances the reasons Appeals’ judgments modifying the rely, thirty days prior the State intends to to Criminal Hines, case resentencing hearing. v. sentences each State Cf. — S.W.2d - (Tenn.1995) each cause is remanded to (Holding that a are reversed and resentencing required courts for a respective is before new notice not resentenc- simply Contrary We held Aat under state and tions. the dissent's characterization Branam, penalty Asproportionate a law v. federal "deaA Court’s decision State (Tenn. 1993), imposed against previ a defendant ... where it is we have never participation robbery in which precluded solely A a ously held that life, proof wiAout Aat in this anoAer robber takes circumstances such as those attempted appeal. granted solely Ae himself or Atended in Branam Relief Id., disproportion that leAal force be used." kill or Atended because the death sentence was at ate and federal constitu under both the state hearing in which jury will be free to that convince again warranted, penalty. “acquitted” seek the death of this Costs defendant has been defendants, retrial, equally punishment. taxed to the may On the state Timothy Craig Thompson. D. Harris and penalty. not seek the death Arizona v. 203, Rumsey, 211, 2305, S.Ct. DROWOTA, J., LEWIS, Special 2310, 81 jury L.Ed.2d 164 Onсe Justice, concur. refused has the state’s demand for the death penalty, retrial on that issue is even if barred WHITE, JJ., REID and dissent. legal error, the conviction is aside due to set Justice, WHITE, dissenting. notwithstanding legal may that the error af- accuracy fect of the determination. agree majority’s IWhile with the conclu- acquittal fact “[T]he that ‘the from [resulted] sion that the Fifth Amendment to United evidentiary rulings erroneous or erroneous necessarily may States not Constitution bar interpretations governing principles, legal aggravating the use of new at circumstances ... does not alter [the] essential characteris- 1, resentencing, I Sec- conclude Article ” acquittal].’ (quoting tic Id. [of United tion 8 of the our Tennessee Constitution and Scott, States 437 U.S. 98 S.Ct. state’s jurisprudence fundamental fairness (1978)). Thus, 57 L.Ed.2d 65 if the that, demand in those instances in which the rejects jury aggravating the sole circum- appeal, has been set aside on by stance relied at the state the first may rely upon prove only the state trial, may only on retrial the state seek a life aggravating pre- which circumstances were allege aggrava- sentence. The state not by origi- sented to and found at the which circumstances were asserted sentencing.1 Accordingly, nal I dissent. originally. I. Nonetheless, originally if the state assert- Arizona, Relying on Poland v. more than aggravating ed one circumstance (1986), 106 S.Ct. 90 L.Ed.2d 123 less than all those asserted were majority “resentencing concludes that in rejected by jury, the fifth amendment [presumably these consolidated cases based to allow been construed the assertion of new is not circumstances] different circumstances retri- prohibited by or either the state federal con- Arizona, 156-57, al. Poland at 476 U.S. provision against jeopar- stitutional double Why? high 1755-56. court dy.” I acknowledge While the federal inter- finding rejecting aggrа- has reasoned that pretation jeopardy double clause that vating circumstances does not constitute con- accordingly leads to such conclusion and victing acquitting. While that distinction my base dissent on more fundamental certainly delineates between the case in process, I constitutional of due do all circumstances are re- wholeheartedly accept analysis be- jected at the first trial the one which by majority. hind the cases relied on rejected, only some are it not distin- does Missouri, Bullington 430, guish In between the ease which the sole (1981), rejected L.Ed.2d circumstance is and the Supreme United States Court held in which case one two circumstances is context, sentencing proceedings guilt rejected. is, akin respectfully, that are it protection determinations “the afforded distinction without difference. Nonethe- less, Jeopardy acquitted the Double wе Clause one are bound Court’s by jury ... respect interpretation provi- also is available of federal constitutional State, at ... penalty, retrial.” 451 U.S. sions. Miller v. 446,101 If S.Ct. at 1862. the state fails to conviction(s) felony 1. On rare those occasions which defendant violent as a new origi- of a convicted violent after the circumstance under Tennessee Code Annotated prior resentencing, nal but to 39-13-204(i)(2). Section I would could hold the state assert

333 e.g. constitution. See II. ed under our state (Tenn. Jacumin, 430 v. 778 S.W.2d State not, however, so restricted view We are 1989) (test sufficiency of warrant for search We, ing our as the Su own Constitution. State, affidavits); 758 Miller v. 584 S.W.2d Tennessee, preme of have the foil and Court (Tenn.1979) (five step post analysis). facto ex power interpret final to our state constitu Harris, v. 839 S.W.2d 54 also State See Hass, 714, Oregon tion. v. 420 95 S.Ct. (Tenn.1992) ‍​‌​​‌‌‌​​​‌​​‌​‌​‌​‌​‌​‌​‌​​‌​‌‌​‌​‌‌‌‌‌​‌‌​​‌​‌‍(self-incrimination); v. State (1975). 1215, Tennessee, 43 L.Ed.2d 570 (Tenn.1991) Black, (Eighth 166 state, 815 S.W.2d every right adopt “sovereign has the to Norris, issues); 751 Amendment Doe v. in its liberties own Constitution individual (due (Tenn.1988) process). 834 by the S.W.2d expansive more than conferred Shop Prune Yard Federal Constitution.” concluding In that our Constitution disal Robins, v. 447 100 ping Center aggrava upon new lows the state’s reliance 2040, 2035, (1980); Mil 64 L.Ed.2d 741 circumstances State, “It v. 584 is ele ler S.W.2d hearings, the use we do not conclude mentary provide that States are free jeopardy under the Tennes violates double ... greater protections than Federal Rather, focus on the see Constitution. we requires.” v. Ra Constitution California land” clause2 of our state Consti “law the mos, 992, 3446, 1013-14, 103 S.Ct. which, process tution while similar the due (1983). 3460, 77 L.Ed.2d 1171 Constitution, provisions of United States sovereignty of the individual states “quality independent has a of the United institutional constraints of the Unit- Constitution_” State, v. Sneed States Supreme oblige ed each state to States 930, (Tenn.Crim.App.1993). See independent define those distinctive and fun- (Tenn. Middlеbrooks, v. 840 S.W.2d 317 rights own damental found within its consti- Jacumin, 1992); State v. 778 S.W.2d 430 tution. The function the United States (Tenn.1989). is to define limits of what do, states not to can dictate what a state recognizes of the land” clause Our “law Ramseur, 123, should do. State v. 106 N.J. fairness and substantial fundamental (1987) 188, (J. O’Hem, con- A.2d 195-95 justice components process.3 are of due See curring). As has been noted: “The real 187, State, Zandt v. 218 Tenn. Van question supreme [state courts] is State, 130, (1966); Vaughn v. do, what the State can but rather what [the 883, 879, Tenn.Cr.App. 456 S.W.2d cert. just do in the state] [the] should exercise of (Tenn.1970). denied, The bedrock supervisory power common criminal law over in our law that “fundamental fairness [is] jurisdiction.” practice within Id. at 295. [the] justice.” very concept essential State, 216 Tenn. 392 S.W.2d constitution, Scott interpreting state our we applied concept have authority We frequently acknowledged throughout years to fundamental fairness provide beyond protections that of the identity as as the confi comparable guarantees. issues diverse federal constitutional informant,4 Black, (Tenn. of adminis dential the fairness 815 S.W.2d 1991). proceedings,5 of limita obligation trative the statute We have not shunned our actions,6 protections products liability the use of recognize independent afford- tions all, clause, justice' pro- which after 2. The found in Article Section fairness’ and ‘substantial by process what 'due of law’ ... are vides: man but law. is meant “No disturbed State, present.” imprisoned, Van Zandt v. or absent or That no man shall be taken or freehold, privileges, S.W.2d at 135. disseized of his liberties or outlawed, exiled, or or or in manner de- life, liberty State, (Tenn.1978). stroyed deprived proper- or of his Goines 572 S.W.2d 644 4. ty, judgment peers his the law 1, § Atkins, Tenn. Const. Art. 8. Line, land.” Freight Inc. v. 5. McMinnville 1974). (Tenn. S.W.2d 725 Zandt, Court, considering the In Van while Co., al., confession, Conditioning admissibility McCroskey Bryant et "The true Air stated: test, us, 'fundamental S.W.2d 487 it seems is whether 334

nоn-attorney juvenile fendant, here, judges proceedings,7 appellants in as was convicted of and of uncharged the evidence crime admit- felony during perpe- murder committed penalty Branam, ted in death sentencing.8 Nowhere robbery. tration 855 is the more crucial than in issues sentencing, at 565. At S.W.2d found relating capital sentencings. proven aggravating the state had two circumstances: murder in the commission of

[T]he death is in of different kind felony another and murder committed punishment from imposed other under avoid, with, interfere prevent or lawful system justice. our arrest of criminal Because of prosecution. appeal, or Id. at 569. On this uniqueness of penalty, the death [it Court affirmed the conviction but found that imposed pro- cannot] be under prove was not a “there shred of evidence” to create[] cedures that risk substantial avoid, the murder was committed to arbitrary that it would inflicted in bе an with, prevent interfere or the lawful capricious arrest or manner. prosecution defendant another. Id. at Gregg 158, 158, Georgia, 428 U.S. 96 S.Ct. 570. 2909, 2918, (1976). 49 L.Ed.2d 859 Because death is different all from other holding After the evidence insuffi- penalties beyond it because is severe prove aggravating cient to the first circum- rectification, capital sentencing procedures ‍​‌​​‌‌‌​​​‌​​‌​‌​‌​‌​‌​‌​‌​​‌​‌‌​‌​‌‌‌‌‌​‌‌​​‌​‌‍stance, remaining the Court addressed satisfy imperatives must process. of due remedy: circumstance Florida, 349, 358-59, Gardner v. 430 U.S. past, In the when this Court has set 1204-05, (1977). 51 L.Ed.2d 393 aside one of a number cir- qualitative from difference all submitted, as improperly cumstances we punishments requires other procedures that generally held that the case must be correspondingly greater degree withstand “a punish- remanded for a new scrutiny.” Ramos, 463 U.S. California 39-13-204(k) (1991) (cita- § ment. T.C.A 992, 998-99, 103 S.Ct. 77 L.Ed.2d omitted). case, however, tions In this (1983). Florida, also See Gardner v. only remaining circum- 1204-05; 97 S.Ct. State v. stance —murdеr committed in the course of (Tenn.1991). Terry, Thus, S.W.2d felony be another considered —cannot we consider circum- the use remand, recently under the rule announced heightened stances at with a Middlebrooks, the Court State v. regard imperatives for the of fundamental (Tenn.1992). 317, 319 It follows justice required fairness and substantial as law, that under state cannot by Tennessee’s Constitution. be sentenced to death his sentence imprisonment. must be set at life III. added). (emphasis Id. directly While we have never addressed eases, presented by argues the issue these two our The state that the modified Branam, decision in State v. 563 the it sentence Branam because found the (Tenn.1993), Branam, disproportionate.9 is instructive. de- death to be While Williams, (Tenn.1976). force, Eighth 547 S.W.2d violates the Amendment. This con- standard stitutional zona, was refined Tison v. Ari- Bobo, 8. State v. S.W.2d 945 481 U.S. 107 S.Ct. 95 L.Ed.2d imposition 127 which the Court allowed Although appeal, as not raised an issue in this penаlty against a defendant who was a Branam, authority under the sentence Harris’ participant major in a that resulted in disproportionate. of death Our decision There, murder. the Court concluded that death holding Branam reiterated of Enmund v. punishment disproportionate despite was not Florida, long kill the absence of an intent to so as defen- There, L.Ed.2d 1140 the United States dant's mental state is shown to be at least one of imposition held reckless indifference. penalty against “solely participation in a one life,” Branam, robbery in another robber takes As Justice Drowota noted proof attempted upheld only without that defendant or in- Court has death sentence on one kill, 573; deadly non-trigger person tended to intended the use of case. S.W.2d at proved any of the modification, has dis- whether the state perhaps a reason for the beyond clearly specified aggrаvating circumstances proportionality was not the sole rea- so, jury must If requirements, doubt. considering reasonable son. After federal which the circumstances that “the same result is determine whether the Court concluded outweigh mitigating circum- proved required by federal and that the death were law” would, sentence, Tenn. beyond “under in our stances a reasonable doubt. these facts (1991 39-13-204(f) Repl.). Eighth § of the judgment, constitute a violation Code Ann. acceptance or guarantee against represents and Amendment’s cruel Their verdict an Ac- cir- punishment.” rejection weighing Id. at 570-71. and a of all unusual of facts cordingly, proce- in presented. Implicit Court held: cumstances jury will be recognition dure is a that the capital on our that Based conclusion essential given all the relevant evidence precluded by in this

punishment case determination life or death. both the state and the constitu- federal tions, penalty portion reverse of the we Thus, precedent procedure established judgment that, upon order trial court’s guide fundamental consideration what in remand the defendant be resentenced requires fairness in circumstances. these opinion. accordance with this requirements process, The of due defini- added). (emphasis Id. at 571 tion, vary importance the nature and in have result Branam would been interest the interests involved. The state’s penalty pro- signifi- same had the imposing penalty even been in ultimate portionate only partial under federal constitutional law. mustering cant. interest Its required State law that the death sentence aggravating list of circumstances for which to a life imprison- be modified sentence of penalty seek is nonexistent. Converse- that light accused, society, system ment conclusion that both ly, and the aggravating circumstanсes were nullified. important assuring proce- that an interest given The state would a second chance cases are and consistent. capital dures fair prove aggravating ex- disrespect circumstances to a for the Anything less leads integrity system. process isted.10 Since due requirements heightened cases Furthermore, penalty procedure our death interest in with- since the state no explicit, mandatory. unambiguous, holding aggravators, fundamental notice of 12.3(b) of the Rules Rule Tennessee of Crimi- that the be limited in fairness dictates state requires nal Procedure state any capital aggravating to the (30) filed thirty written notice not less than first circumstances claimed before the trial. days trial: before specify that shall intends to seek by the That the decision reached was the death and the notice shall Appeals in cases. Court of Criminal these specify circumstances Uрon sole circum- striking the rely upon intends at a the State sentenc- upon, originally relied none remained stance ing hearing. penalty. justify imposition of the death 12.3(b) added). Therefore, (emphasis and Tennessee Tenn.R.Crim.P. based Branam 39-13-206(d)(2), capital jury guilt beyond After a finds a Code Annotated Section doubt, appel- Appeals they must Court of Criminal modified reasonable determine circumstances, (Tenn.1989). vatmg Taylor, A Court either remanded State v. S.W.2d 163 comparison weigh remaining aggravating of the facts of that case with those jury for the disproportionate suggests might be a here against any mitigating and to de- factors factors penalty in the case at bar. still an termine whether Bane, e.g. appropriate punishment, State v. see Branam, 10. It is true (Tenn.1993), or conducted applied either remanded for a new analysis. e.g. How- State v. a harmless error See every analysis case Mid- harmless error However, cases, ell, do These cases affected. in all those dlebrooks one found at least of new circum- not endorse the use ag- other circumstance gravator. than the murder sentencing. stances at a second aggra- In those cases with additional least, is, imprisonment. lants’ sentences to life trauma of an See such ordeal Harris, Timothy equivalent experienced by noncapi- D. No. 02C01- (Tenn. 9211-CR-00259, tal on no 1994 WL 123647 defendant retrial which addition Jackson, 13,1994); Crim.App., April charges al can be made. State v. See Tenn.R.Crim.P. Craig Thompson, D. If No. 02C01-9208-CR- 8. we are true to our commitment to recognize uniqueness (Tenn.Crim.App., penalty WL Jackson, 9, 1994). death, protect capital Mar. we must resentencing at least to the same extent challenged The state these sentence modi- noncapital we do the defendant on retrial. petitions fications in to rehear. While the appellate employ pro- intermediate court that Death is different. must held We Thompson, parties state had waived the issue cedures that assure that the mete out controversy playing court nonetheless concluded that the state the life-death on a level expense financially was not entitled “to another chance at the field. The time and — penalty aggravating emotionally penalty death on sentencing the basis a death —of factors it proceed- had withheld the initial demands that the state with all its resources, ing.” Craig Thompson, supra, investigate, develop, organize D. slip op. judicial policy, panel proof Having at 3. Sound before the initial trial. explained, required accomplish legally supported the court failed to death upon, sentence the circumstances relied guard against piecemeal litigation in the try again we cannot allow the statе with sentencing phase eases. The formerly non-claimed circumstances. To do

prosecution should not “hold back” but encourage prepa- so would less than devoted should, instead, apprise jury pos- of all by prosecutors. imply ration do not We aggravating sible oppor- factors at the first state, general practice, as a hold would tunity. economy Judicial demands adher- aggravating back evidence of circumstances policy. ence to this in case a death sentence were set aside on Craig Thompson, D. supra, slip op. appeal. attorney general As the assistant Harris, Timothy at 6. Deny- See also Order argument, noted at oral the state has little Rehear, ing supra,, slip op. Petition to aggravating reason not to all assert known Implicit holdings in all of these is the capital proceeding. in a circumstances recognition allowing the state to submit Therefore, requiring a rule the state aggravating new circumstances resentenc- give aggravating notice of all known circum- ing in death cases offends notions of original stances to the does fundamental fairness and undermines sound unduly prejudice the state or obstruct judicial policy. Fundamental is ob fairness state’s effort to seek the placed viated when the state is in a better appropriate cases.11 position appeal. after a successful defense Precepts justice are sacrificed when IV. Conclusion system state, encourages duty whose Accordingly, I would hold as follows: fairly indiscriminately, to act to withhold jury rejects If an cir- justice, evidence. Fairness and as well as appellate or an court cumstance finds efficiency economy, require the state to evidence, by unsupported it is upon all advance circumstancеs rely state on that circum- rely which it intends to in the resentencing. stance at Carter, penalty trial. See State (Tenn.Crim.App.1994). S.W.2d 449 Princi 2. At retrial, rely only

ples upon of fundamental fairness are inconsistent the state can allowing repeated, supplement the state those circumstances relied attempts get a death sentence. The the state and found to exist ed equally episode” appro- 11. Our conclusion consistent with Rule if the offenses "are known to the 8 of the Tennessee Rules of Criminal Procedure. priate prosecuting official” at the time the defen- provides That Rule that offenses that "are based charged. dant is upon the same conduct or arise from the same were original sentencing appeal. not otherwise eliminated

However, circum- 13—204(i)(2)may

stance Section B9— resentencing as a new asserted at

aggravating circumstance on

rare occasions in which new has been

conviction for violent crime against

entered prior to the

original sentencing but

second. aggrava- finds If the one or more

3. circumstances, all eliminated, the case

circumstances are court to

must be remanded to the trial should

determine whether the sentence life without

be life

parole. mistrial, In case the state

allege any aggravating circumstance included notice felony convic-

defendant unless a new en-

tion for a violent crime has been against date

tered defendant after the

of the mistrial to the com-

mencement of the trial. second would, therefore, judgments of

I affirm the Appeals

the Court of Criminal and remand ‍​‌​​‌‌‌​​​‌​​‌​‌​‌​‌​‌​‌​‌​​‌​‌‌​‌​‌‌‌‌‌​‌‌​​‌​‌‍imposition for the sentences.

the cases J.,

REID, concurs. JR., INC., HOBBS,

C.A.

Plaintiff/Appellee, BRAINARD, Reyes B.

David Susan Ham, Defendants/Appellants. B.

Carol Tennessee, Appeals

Middle Section.

Nov. Appeal Denied

Permission 25, 1996.

Supreme Court March

Case Details

Case Name: State v. Harris

Court Name: Tennessee Supreme Court

Date Published: Apr 15, 1996

Citation: 919 S.W.2d 323

Court Abbreviation: Tenn.