Strouth v. State

Wayne STROUTH, Appellant, Donald Tennessee, Appellee.

STATE of Tennessee,

Supreme Court

at Knoxville. 28, 1999.

June

Rehearing Sept. Denied Olive, Tallahassee, FL,

Mark E. for Ap- pellant. Summers,

Paul Attorney G. General & Moore, Reporter, E. Michael Solicitor Gen- eral, Smith, Gordon W. Associate Solicitor General, Nashville, Tennessee, Greeley H. Wells, Jr., Attorney District General Sec- District, Wilson, ond Judicial Edward E. Blountville, Attorney, Assistant District TN, Appellee. for OPINION DROWOTA, J. post capital appeal, conviction we jury’s

must determine whether the reli- ance aggra- the invalid vating support imposi- circumstance as for tion of penalty the death is harmless error beyond a reasonable doubt under the anal- ysis adopted State v. Both the trial court and Appeals

the Court of Criminal concluded harmless and the error was dismissed post conviction relief. Af- record, fully reviewing ter we conclude the sentence would have been jury given weight same had circum- affirm stance and therefore the lower petition. courts’ dismissal of the Testimony indicated that FACTUAL heater. BACKGROUND and had them did not use electric heaters 15, 1978, February Keegan, James On Dicks only as store resale items. proprietor clothing of a store the sole used Merrit, Betty in an girlfriend, and his lived Tennessee, Kingsport, in downtown near the Kee- apartment store owned Keegan’s body on murdered. was found by often their gan, and were visited pockets floor of his had store. His friends, Bar- girlfriend, and Strouth his large emptied of his and a roll been billfold mur- About a before the carried, bara Davis. week money habitually he and several of der, Keegan’s to missing Kee- Dicks and Merrit went items were from the store. to the him Accord- gan had sustained a severe blow store and sold some clothes. Merrit, object deep a blunt and lacera- from a Keegan paid head with them ing to scalp Keegan’s and death pants tions on his ear. he front large kept roll of cash his deep murder, from a which ex- day resulted laceration an pocket. before the On the entire width his neck. Kee- nearby tended of employee dry of a cleaners testified literally throat had been from ear gan’s slit that had seen Strouth and Dicks stand- he approximately cleaners, to ear. The laceration was talking near ing and beside the deep completely inches three and severed eyewitnesses Two Keegan’s store. other large Keegan’s both the muscle of neck both and Dicks in the area of saw Strouth jugular According and his vein. mur- Keegan’s morning store on examiner, un- Keegan medical had been der. conscious from the to his head when blow by police and Evidence accumulated cut, his throat had been had and at trial tended to introduced Strouth’s from bled to death the neck wound within person that had show Strouth been fifteen minutes. actually Keegan’s cut throat. Wit- who Wayne Jeffrey Donald Strouth and seeing blood on nesses testified Stuart Dicks had been in the area of seen shortly hands and after Strouth’s clothes murder,

the store around the time of the told the girlfriend the murder. Strouth’s they eventually and were arrested and large jury given that she had Strouth charged killing with the robbing and of present knife as sometime be- hawkbill Keegan. sought pen- The State the death murder, and that fore the she said Strouth alty respect with and to both Strouth stated, robbery, had admitted to Each made a pre-trial Dicks. statement froze on me.” medical examiner “Jeff The acknowledging police presence at the by that the knife owned testified hawk-bill crime, accusing scene of the but the other have was consistent and could Strouth with reason, Keegan. killing of For Keegan’s to slit throat. The been used and Dicks separately Strouth were tried medical examiner also testified Bruton possibility violating avoid the had spots pants on the that Strouth blood States, United U.S. 88 S.Ct. con- at the time the murder were worn (1968). 20 L.Ed.2d 476 had theory with the that Strouth sistent proof trial The introduced the victim cut his throat.1 stood over body dis- Keegan’s demonstrated proof, jury found Upon hearing the covered his wife around noon. Police perpetra- guilty of murder called to the the crime and scene of robbery robbery with a dead- tion of a sets outside footprints discovered two sentencing ly weapon. subsequent In the also the back entrance the store. Police the follow- hearing, had the State relied electric heater been discovered (1) the ing and a fuel- six circumstances: turned on inside the store one previously had convicted of placed towel across defendant soaked been Strouth, complete appeal. of the facts is See State 1. A more recitation 1981). opinion on direct contained in this Court’s felonies, or present approximately more other than the deliberated for charge, which involved the use or threat of returning seven hours before a verdict. (2) person; violence to the the defendant Finding proven had the State two knowingly great created a risk of death to beyond circumstances a rea- persons, two or more other than the victim (1) doubt, espe- sonable the murder was (3) murdered, murder; during his act of heinous, cially in that it atrocious or cruel the defendant committed murder for re- mind; depravity involved torture promise muneration or the of remunera- (2) the murder was committed while the tion; (4) especially the murder was hei- committing engaged defendant was nous, atrocious, or cruel that it involved robbery,2 finding and also that there were (5) mind; depravity torture or mur- sufficiently mitigating circumstances purpose der was committed for the outweigh substantial to the with, avoiding, interfering preventing circumstances, the sentenced Strouth prosecution lawful arrest or of the defen- by to death electrocution. (6) another; dant or the murder was Court, appeal On direct to this Strouth’s committed while the defendant was en- degree felony first murder conviction and gaged in committing accomplice or was an death sentence were affirmed. State of, in attempting the commission or was to Strouth, (Tenn.1981), 620 S.W.2d 467 cert. ... robbery. commit Tenn.Code Ann. denied, 455 U.S. 102 S.Ct. 39-2404(i)(2) (i)(7) § (Supp.1978). — (1982).3 However, L.Ed.2d 692 this Court proof by Little was offered either the robbery vacated Strouth’s armed convic sentencing State or the defendant at the holding tion that dual convictions for felo hearing. proof The State offered estab- ny underlying felony murder and the vio that the previous- lish defendant had been jeopardy.4 principles lated of double ly against convicted of a crime na- in ture North Carolina. The defense post-conviction pe- filed his first Strouth Keesling, called who had taken Officer Jim 1982, alleging tition in numerous constitu- two statements from on March 8 Strouth lengthy tional violations. After a eviden- Keesling 1978. Officer read the tiary hearing, trial court denied relief. the jury’s statements into the record affirmed, Appeals The Court Criminal consideration. In the first statement the case. and this Court declined review Kings- Strouth denied that he had been in (Tenn. State, Strouth v. 755 S.W.2d 819 murder, port day in on the of the Crim.App.1986), perm. app. denied statement, second Strouth claimed 1987). person Dicks and a third had committed peti- post-conviction Strouth’s current robbery and murder while he waited tion was filed on December 1993. car. call a attempted The defense raised, Among the claims Strouth asserted sociology testify minister and teacher to that his death sentence should be set aside philosophy about the Christian on the Middlebrooks, under 840 S.W.2d State penalty death and about the deterrent ef- (Tenn.1992). but, The trial court held penalty, fect of the death the trial testimony evidentiary hearing and concluded that the court after a disallowed jury-out beyond harmless hearing. Middlebrooks error was Blackburn, 39-2404(i)(5) (i)(7) § 2. Tenn.Code Ann. & 4.This later held in State v. Court (Supp.1978). (Tenn.1985), that dual 694 S.W.2d 934 con- felony murder and the un- victions for both trial, separate 3. In his co-defendant Dicks derlying felony jeopardy do not violate double degree also convicted of first mur- principles. by der and sentenced to death electrocution. Dicks’ conviction and death sentence appeal. this Court on direct also affirmed Dicte, S.W.2d 126 State felony murder degree first analysis conviction of under a reasonable doubt at least one of upon based unless it is supra. by this Court adopted circumstances. statutory other remaining trial court held rule an- Because the Id. at 346-47. by the statute of claims were either barred the in- enhanced nounced in Middlebrooks or waived.5 The Court limitations sentencing reliability of the tegrity trial court’s Appeals affirmed the Criminal rule retroac- applied the process, we have finding petition, also of the dismissal Boyd, 959 S.W.2d tively. State v. beyond a error harmless Middlebrooks Barber, (Tenn.1998); doubt. reasonable case, guilt phase of at the Thereafter, appeal granted we first trial, of the was convicted of whether the lower limited to the issue Keegan. of James felony murder degree finding the Middlebrooks courts’ erred trial, sentencing phase In the beyond a reasonable error harmless two of death jury based the sentence follow, we doubt.6 For the reasons circumstances, of which one judgment of Crimi- affirm the of the Court while crime committed trial court’s Appeals upheld nal which committing engaged defendant was petition. post conviction dismissal Accordingly, the felony robbery. felony ag- murder jury’s upon the reliance HARMLESS ERROR ANALYSIS in contra- this case gravating circumstance Middlebrooks, majority7 of this In a in Middlebrooks. adopted the rule venes a is determined that when defendant Court solely on degree of first murder convicted However, error under Middle- murder, felony felony mur- the basis of result in automatic rever brooks does not may circumstance not be aggravating der sal; subject harmless er error is such support imposition of the analytical used as a basis to comprehensive A analysis. ror penalty aggravating cir- death because the error anal govern harmless framework merely duplicates the by cumstance elements in ysis announced this Court was first such, (Tenn. Howell, underlying As offense. 868 S.W.2d 238 State v. 1993). felony aggravating circumstance we held that a Middle- In that case if a sufficiently narrow the class of deemed harmless fails to brooks error will be “beyond a rea reviewing violates Arti- concludes death-eligible murderers and court I, would § doubt the sentence cle 16 of the Tennessee Constitution.8 sonable jury given no had the at 346. We held that a sen- have been the same 840 S.W.2d aggra- invalid imposed weight may of death not be for tence Strouth, by through for filed counsel post 5. of limitations on brief conviction statute was convinced that Strouth July the Court is now expired on 1989. Tenn.Code this case 1995); solely mur- on the basis of (repealed § v. convicted Abston Ann. 40-30-102 State, Therefore, unnecessary we deem it (Tenn.Crim.App.1988). der. 487 749 S.W.2d However, body opinion this the issues address in the a new Middlebrooks announced briefing upon supplemental was or- applied which to be ret constitutional rule which is State, dered. roactively. Barber v. 889 S.W.2d (Tenn.1994). Accordingly, regard to 186 with claim, af which arose opinion Strouth’s Middlebrooks Jus- and retired 7. The author of limitations, expiration holding ter the of the statute dissented from the tice O’Brien (Drowo- timely under the present filed at 347-50 840 S.W.2d Middlebrooks. State, ta, J., 845 dissenting). v. rule announced Burford (Tenn.1992); v. see also Sands S.W.2d 204 State, (Tenn.1995). 903 S.W.2d 297 dis- in Middlebrooks Though 8. the decision law, emphasized has federal this Court cussed subsequent that Middlebrooks Following argument, this Court or- cases oral I, § 16 of independently Article briefing three addi- supplemental on based dered Bigbee, v. sup- Constitution. State Upon the Tennessee consideration of tional issues. briefs, thorough 885 S.W.2d particularly the plemental 39-2404(i)(5) § Strouth holding (Supp.1978). Ann. at 262. Our vating factor.” Id. aggravating that this circumstance upon decisions of the United asserts premised objective reliability. In had directed lacks Supreme Court which is weak and States argument, points or im support that if a considers of his Strouth circumstance, either was unconscious when proper out that analysis expe- “constitutional harmless error cut and therefore did not throat was reweighing appellate emphasizes at the trial or level pain. also rience guarantee that the defendant only suffices to the lan- jury instructions included an individualized sentence.” statutory aggravating received circum- guage of the Black, 222, 232, 112 Stringer v. 503 U.S. did not include the definitions stance and (1992); 1130, 1137, 117 L.Ed.2d 367 S.Ct. by later this Court State announced Lewis, 506 U.S. see also Richmond Williams, 517, 529-532 (1992); 528, 121 L.Ed.2d 1985). S.Ct. responds that this Court The State Mississippi, 494 U.S. Clemons constitutionality upheld the repeatedly has (1990). 1441, 108L.Ed.2d 725 S.Ct. (i)(5) circumstance, and defini- never held that the Williams has impor we stressed the constitutionally required. The are tions analysis a harmless error applying tance of not be emphasizes that a victim need State precision that indi guarantees which finding depravity support conscious to sentencing and which vidualized demands proof in this mind and contends that the principled explanation provides also ap- overwhelmingly establishes record 260-61; in each case. Id. at our decision strength plicability and To aid review Boyd, 959 S.W.2d at 560. agree. circumstance. We objec achieving twin ing courts in these tives, several nonexclusive we enumerated State, this Court noted As harmless guide factors which should the the constitutional repeatedly upheld has include, analysis. The factors but error (i)(5) circum validity aggravating (1) to, following: the the are not limited Blanton, v. 975 e.g. State stance. See remaining the val strength number and (Tenn.1998); 269, v. Hartman SW.2d 280 (2) circumstances; the ex aggravating id (Tenn.1995); 94, State, 105 896 S.W.2d emphasizes prosecutor the tent to which 166, Black, 181 815 S.W.2d State dur aggravating invalid circumstance the 239, 1991); 768 S.W.2d Thompson, State v. (3) the evidence ad ing closing argument; Barber, (Tenn.1989); 753 State 252 aggravating invalid mitted to establish the addition, 659, In S.W.2d 670 (4) circumstance; nature, quality, the out, specifical we have points as the State mitigating evidence. strength re instruction ly held that the Williams If a re at 260-61. retroactively ap quirement is not to be a beyond is convinced rea viewing court O’Guinn, 709 S.W.2d State v. plied. jury would have sonable doubt that (Tenn.1986). Finally, we have never 568 given it no the same sentence had imposed are con definitions held that Williams circum aggravating invalid weight to the Hartman, required. 896 stitutionally stance, is harmless and the sen the error fact, Thompson, in we In at 105. S.W.2d Ap at 262. may be affirmed. Id. tence language of Tennessee’s distinguished the us to analysis in this cases leads plying the (i)(5) from the aggravating circumstance harmless and the error is conclude unconstitutionally to be language held resentencing. require not does Supreme States vague the United 446 Godfrey Georgia, in U.S. strength of Court first consider the We (1980), 64 L.Ed.2d cir 100 S.Ct. remaining aggravating valid single Cartwright, 486 U.S. Maynard v. especially murder was hei cumstance^—the (1988). We L.Ed.2d 372 nous, in it involved or cruel S.Ct. atrocious cases, that, those unlike pointed out depravity of mind. TenmCode torture or atrocious, ease, “heinous, approxi- language or cruel” this the victim (70) mately seventy years old at the time not the Tennessee statute does stand but, instead, medical examiner alone, of the murder. The is modified and limited Keegan had suffered a skull found by the “in that it involved torture phrase, that the skull had been fracture so severe depravity Thompson, of mind.” brain, pushed causing in toward the a lac- In conducting S.W.2d at 252.9 Howell the frontal lobe of the brain. review, eration on harmless error we have considered injury This bruised the outer surface whether instructions Williams and was two inches in diameter. the skin jury.10 necessarily provided to the We instrument, rock, likely possibly A blunt must consider the evidence and instruc- caused this wound and rendered the victim remaining after tions elimination of the jagged had a unconscious. also aggravating circumstance in order right portion of his laceration over the inquiry posed by to answer the Howell— penetrated skull which the full thickness of beyond a whether reasonable doubt the scalp through injury to the bone. This sentence would have had been the same three-quarters of an inch was one-half jury given weight to the invalid deep. Keegan also had a laceration across aggravating circumstance. The absence of right which transected and cut ear the Williams definitions has never been (i)(5) through cartilage. Both of these held to limit significance by very sharp wounds were made instru- in a circumstance Howell injury fatal analysis. ment. The laceration of the throat which extended from ear to ear (i)(5) Though cir and which was two and one-half to three subjective depth. cumstance is more than other inches in As one law enforcement wound, circumstances the sense official described this the “victim’s requires cut; that it careful decapitated.” consideration throat was head almost murder, facts of subjectivity each this does The medical examiner testified that this negate strength not analy its a Howell fatal wound inflicted when victim if, case, sis inas lying evidence the was unconscious on the floor. The presented cruelty record perpetrators overwhelm with which the at- ingly established applicability elderly the of the tacked this man no and showed aggravating mercy already circumstance. him toward after he was (i)(5) (1989). However, support 9. As for his contention that the L.Ed.2d 334 until the Unit- aggravating circumstance is unconstitutional- Supreme opinion ed States Court renders an ly vague without further definition Strouth holding aggravating the circumstance uncon- upon relies the Sixth Circuit’s decision in stitutional, we will continue to adhere to the Dutton, (6th Houston v. 50 F.3d 381 Cir. up- prior decisions of this Court which have view, 1995). In our the Houston decision on validity aggrava- held the constitutional particularly persuasive this issue is not con- ting circumstance. sidering that the State conceded the "instruc- tion to be erroneous in this case.” Id. at 387. Hartman, 103-104, 10. In 896 S.W.2d at this event, any by In this Court is not bound Court considered the fact that the decisions of the federal district and circuit given part not the Williams definitions as of only by courts. We are bound of decisions analysis. signifi- its Howell Also considered Supreme the United States Court. v. State (i)(5) cant in that case was the fact that the 447, (Tenn.1984). McKay, 680 S.W.2d 450 aggravating circumstance was based almost This issue has been asserted in the United entirely testimony upon the of a witness Supreme by many States Court inmates of credibility "seriously row, had been contest- whose yet Supreme Tennessee's death the Though ed.” the Williams definitions granted Court has never review and held the case, Hartman, (i)(5) aggravating given unconstitu- not in this unlike the circumstance (i)(5) We realize aggravating upon tional. that the United States Su- circumstance is based preme Court's denial of certiorari is not a objective physical evidence and testimonial Lane, ruling Teague on the merits. v. 489 not»seriouslydisputed. evidence which is 288, 296, U.S. 109 S.Ct. 103 766 penalty, mitigating no circum- helpless de- the death

unconscious and demonstrates Zagorski, being v. stances shown. pravity of mind. See State (Tenn.1985) (holding 701 S.W.2d 814 assertion, Contrary to the re- Strouth’s gratuitous that infliction of violence maining aggravating valid circumstance of mutilation victims who were needless by an strong. supported is It is this case helpless already depravity evinced proof presented which abundance mind); Tran, 465 State v. Van 864 S.W.2d jury. qualitative the nature of Given the (Tenn.1993) (holding depravity of high and the aggravating circumstance this the by proof mind defen- established quantum proof supporting, we conclude the seventy-four-year-old dant shot victim weight with the that it carried substantial lay injured helpless as she on the jury. floor). Next, we must consider extent prosecutor emphasized to which rejecting specifically vague- aggravating felony murder circum challenge aggravating to the circum- ness argument. Our re closing stance in his opinion denying in an stance does indicate that view of record not opinion ap- this on direct rehear Court’s attorney placed any unusual the district peal, aggravating circum- we described aggravating on this circum emphasis it fol- proof supporting stance as closing argument The first fo stance. lows: upon fact that little or evi cused consistently has held that This Court mitigating circumstances had dence of is aggravating circumstance direct ar prosecutor Next presented. been pitiless or act ed to the conscienceless gued of the six circum each unnecessarily which is defendant relying the State was stances which victim, to the or evinces a de torturous hearing. argument sentencing The mind; de praved state of relating mind the torture in praved state of prosecu circumstance was minimal. heinous, flicted must meet test jurors merely tor reminded atrocious, v. or cruel. See State Pritch offense, guilty finding defendant (Tenn.l98i); ett, 621 127 State S.W.2d also they had found Groseclose, al., et v. circumstance. Dicks, (Tenn.1981); State S.W.2d brief, quotes extensively In his holding or con This attorney’s argument in an from the district struction, opinion, in our meets the test emphasis. to demonstrate undue attempt Godfrey Georgia, supra, and also However, Ap- as the Court of Criminal Florida, that voiced Proffitt held, objective reading of these peals 242, 255-56, 96 S.Ct. U.S. prosecution that the excerpts reveals (1976). L.Ed.2d 913 aggravating an cir- trying emphasize to companion-in-crime his [Strouth] and jury eventually reject- that the cumstance Dicks, Keegan on Jeffrey struck James ed, committed to that the murder was rock, him rendering the head with prosecution, arrest or i.e. witness avoid in unconscious. While Mr. Therefore, prosecutor the did not killing. state, and his an unconscious [Strouth] aggravating unduly emphasize the invalid Keegan’s Mr. throat and companion slit fact, closing argument. in circumstance him to to death —a cold-blood- left bleed aggravating upon this emphasis placed the intentional, ed, piti- and conscienceless minimal. circumstance was only can be act. An act which less materially atrocious, Next, no we note that characterized as heinous and or inadmissible evidence depraved inaccurate which evinces a state and one aggravating cir- to imposition of admitted establish justifies mind parents, traveling cumstance. living independent The evidence relied of his aggravating establish the circumstance routinely and North between Tennessee properly Carolina, had been guilt juve- admitted committing crimes as a phase support of the trial to the conviction picture depen- nile. is not the of a This felony for murder. See teenager, dent nor does it demonstrate an S.W.2d at 261. No additional evidence young inexperience innocent man whose in support ag- was introduced to may criminal him matters have led into an gravating sentencing. circumstance at An Though unlawful situation. Strouth ar- duplicates circumstance which gues actually that he did not commit the underlying elements crime has murder, merely present but was it when tendency less prejudicially relative af- occurred and submits that this de- lesser imposed. fect the sentence Id. gree culpability in should be considered mitigation, the evidence submitted at trial Finally, we na must consider the evidence, belies these contentions. The as ture, strength, quality mitigat of the previously, summarized indicates that ing very evidence. We note that little actively Strouth was involved the crime evidence was in mitigation. offered Offi actually inflicted the fatal wound. Keesling cer read two statements Strouth Overall, quantity, quality nature and given had to law enforcement officials. the mitigating evidence is weak. Counsel for the sought defense to intro duce evidence on philosophy the Christian punishment, death as a but the court CONCLUSION excluded such evidence as irrelevant. fully considering After the record argues weight now that much light analysis case in adopted given should be to the fact that he was Howell, convinced, beyond we are a rea- young at the time this offense was commit doubt, sonable the sentence would nineteen-years-old. argues He ted — youth jury given have had been same intrinsically is an strong mitigating consideration to the invalid degree circumstance and that it lessens his Therefore, aggravating circumstance. we of culpability for the crime. The State jury’s conclude that consideration of age argu mentioned the defendant’s when the invalid circumstance was

ing jury to the mitigation little evi remaining aggrava- harmless error. The dence had presented. been Defense coun ting supported by circumstance was sel did not stress age in closing proof qualitatively abundance of which was Instead, argument. defense counsel asked persuasive. prosecutor did not em- jury impose a life sentence because phasize the invalid circum- all “killing,” including penalty the death as closing argument, stance and no punishment crime, wrong. is inadmissible evidence was introduced to agree support

We aggrava- with the Court of the invalid Crimi Appeals quality mitiga ting mitigation proof nal that the circumstance. Little offered, tion offered quality was weak. Strouth’s state was and the nature and ments read Keesling proof Officer mitigating which was offered is contradictory. result, Any positive effect weak. As we conclude exculpatory may statement have had Appeals trial court and Court of Criminal virtually correctly eliminated when measured held the Middlebrooks error against testimony physical beyond and evidence at harmless a reasonable doubt. The primary trial that demonstrated judgments of the lower courts which dis- role in the crime. fact that petition post-convic- The Strouth missed Strouth’s for was nineteen at the of killing stayed by time tion relief are affirmed. Unless great mitigation weight carries no since proper authority, this Court or other the record reflects that had been Strouth’s sentence of death electrocu-

768 28, single- concept aforethought.”). of tion be carried out on malice shall October not due process A defendant is denied theory first charged under one of when ANDERSON, BIRCH, J., and C.J. degree but a dif- murder convicted under concur. theory. Beasley, 699 at ferent S.W.2d (no depri- process due violation or 566-67 HOLDER, J., with Separate concurs a opportunity prepare vation Concurring Opinion. defense). degree first mur- Accordingly, HOLDER, Justice, JANICE M. single was but a crime with der 1978 concurring. of commission whether various means majority’s I conclusion agree with the killing premeditated or occurred dur- post-con- defendant’s for a ing felony. I, how- be viction relief should dismissed. majority’s position I agree with ever, dis- separately my to voice write only a error “when a Middlebrooks occurs agreement majority’s holding with degree first mur- defendant is convicted of Middlebrooks, a State v. 840 S.W.2d 317 solely felony on the basis of murder” der (Tenn.1992), occurred in this case. error felony when the murder charged, fact- in a The defendant conclude, I would circumstance is utilized. indictment, mur- specific “killing with however, does that a Middlebrooks error degree.” in the dering first [the victim] general a jury occur returns not when jury both judge charged The trial on convicting a of both felo- verdict defendant premeditated murder and murder. premeditated murder. ny writ- jury judge’s The with the deliberated State, 620 v. 958 Carter S.W.2d in- ten instructions that included detailed 1997) (holding no Middlebrooks error jury on The re- structions both theories. general verdict jury when renders a general, single, with a or verdict turned Schad, murder); degree generally first see “We, find jury, that: stated (“never 2497 U.S. at 501 S.Ct. guilty murder in the first defendant jurors ... re- suggested that should be degree.” agree upon single means quired to murder). consistently first degree courts have held Tennessee commission” single-count charging that a indictment clearly The case was jury sup- premeditated murder is sufficient murder can be charged degree that first port premeditated a conviction of either ways: pre- in one of two with committed or murder. degree first during meditation and deliberation felony, during perpetration “The re- felony. of a perpetration occurs, legal equiv- a homicide is the which finding the non-specific verdict turned premeditation, deliberation and alent of first “guilty of murder defendant Beasley, 699 S.W.2d 566 malice.” State therefore, I, that a degree.” would hold 1985) de- (Tenn.Crim.App. perm,, appeal occur in this error did not Middlebrooks State, (citing Sullivan S.W.2d nied conviction for the defendant’s case because (Tenn.1938) (stating theories solely degree murder was not based first “legal equivalent”)); see also Farmer felony murder. on (Tenn.1956) State, Finally, that even assum- I would note intent to commit fel- (holding premeditated concludes, a Mid- ing, majority as ony to the homicide to is transferrable case, I in this am occurred aforethought); generally see dlebrooks error supply malice majority’s finding 624, 630, Arizona, agreement with the 501 U.S. Schad v. (1991) was harmless that the Middlebrooks error 115 L.Ed.2d 555 S.Ct. For (“the both beyond a reasonable doubt. to com- intent to kill and intent reasons, majority’s agree I with these aspects mit are alternative conclusion that the dismissal the defen- post-conviction

dant’s relief

should be affirmed.

Dwayne Gossett, HAWKINS and Al

Plaintiffs/Appellees, MOTORS,

SUPERIOR INC. and Hart,

Patrick A. Defen

dants/Appellants,

Nelson Bowers II and Bowers

Transportation Group,

LLC, Defendants. Tennessee,

Supreme Court of

at Nashville.

June 1999.

Rehearing Aug. Denied

Case Details

Case Name: Strouth v. State

Court Name: Tennessee Supreme Court

Date Published: Jun 28, 1999

Citation: 999 S.W.2d 759

Docket Number: 03S01-9707-CC-00079

Court Abbreviation: Tenn.