# FILED
July 28, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF CRIMIN AL APPEALS OF TENN ESSEE

AT JACKSON APRIL 1997 SESSI ON

RONALD RICKMAN, ) ) Appellant, ) No. 02C01-9608- CR-00252

) ) Shelby Cou nty v. ) ) Honorable Ca rolyn Wade Blackett, Judg e ) STATE OF TENNESSEE, ) (Post-Conv iction - C apital Case) ) Appellee. )

CONCURR ING OPINION

I concur in t he majority

opinion’s results and most of its reasoning

. Howeve r, I disag ree with its assessment of the record relative to the potential involvement

of State v. Middlebrooks , 840 S.W.2d 317 (Tenn. 1992), for consi deration of theappe lla nt’s

cla ims rai sed r

ega rdi ng j ury

unan imi ty a nd us e of t he co mmis sio n of a felony agg ravating circumstanc e in a felony mur der case.
The majority opinion states that there is no Middlebrooks issue to cons ider because only

one offense, premeditated and deliberate mur der, was included in th e indictment and presented to the jur y for consi deration. Sli p op. at 11-13, nn. 10 & 12. In suppor t, it cite s to the t rial court ’s instruc tions in the con victing trial , statin g that alt hough they contain ed a complete statu tory definit ion of first degr ee murder, incl uding felony murder, the full context of the i nstructions show “that the trial court did not i ntend to have the jur

y apply the felony murder

doctrine to t his case.” Slip op. at 13, n.12.

Howeve r, I believe that the recor d reflects that t he issue of felony murder was placed before the jury in the guil t phase of the tria l. As a star ting point, I note that2

as a matter of law

and pleading practice before the wholesal e changes in our criminal code in 1989, pro of of a killing in the perpetr ation of a statutor ily enumerated felony (felony murder

) supported and sustained a conv iction for first degree murder even though the all egations of the i ndictment wer e in terms of a premeditated and deli berate murder (know n as the common law form of murder). See State v. John son , 661 S.W.2d 854, 860-61 (Tenn. 1983); Tosh v. State , 527 S. W.2d 146, 148 (Tenn. C rim. App. 1975); Sullivan v. State , 173 Tenn. 475, 121 S.W.2d 535, 537 (1938). Thus, the allegations

legally encompassed more tha n just a premedi tated and deliber ate murder.
Also, the complete f irst degree murder instruction in the appellan t’s case carries a different context than that presented by the major ity opini on in that it pl aced before the jury the option of finding first degree murder based upon the appellant’s killi ng the victim durin g the p erpe trat ion o f, o r the atte mpt to pe rpet rate , rap e, ro bbe ry, or kidnapping , three felonies also raised by the ev idence. The rel evant instr uction is as follows: MURDER I N THE FIRST D EGREE

Section 39-2402 of Ten ness ee C ode Annotated provides as follows: (a) Every murder perpetrated by

means of poison, ly ing in wait, or

by any other kind of w illful, deli berate, malici ous, and premeditated killing , or committed i n the per petration of, or attempt to perpetrate, any mu rder in the fir st degree, r

ape, robbery, o r kidnapping , is murder i n the first deg ree. Rape is t he un law

ful c arna l kn owl edg e of a woman, forcibly and against her will. Carnal knowledge is accomplished by the commencement of a sexual co nnection, and proof of emission i s not requi red. Carnal know ledge is t he insertion of the male organ of the male, to some extent, however slightly, into the female organ or p riv

ate p art s of a

female, and if it is done forcibly and against the w ill of the female, i t is rape. Robberyis the felon io us and forcible t aking from the person of another goodsor money of any v

alue, by v iolence or putting the person in fear. Kidnapping is defined in T.C .A. Sec. 39-26 01 as fo llows:3 Any pers on wh o fo rcibly or unlawfully confines, inveigles, or entices away anot her, wit h the intent tocause him to be secretly confined, or imprisoned a gainst his wi ll, or to be sent out of the state ag ainst his w ill must, on convicti on, be impr ison ed in the p enit enti ary. Under this definition of Murder in th e First D egree t h e killing must be done w illfully , that is of purpos e, with th e intent that the a ct by wh ich th e lif e of the p arty is take n sho uld h ave that effect; Deliberate ly, that i s, with a cool purpose; Malicious ly, that i s, with malice aforethoug ht. When th e act of killing is not done dur ing the commission of a rape, robbery , or kidnappi ng, in order to make it murde r in the first deg ree not only must the kill ing be done willf ully, deliberately and maliciously, but it must also be done with premeditation, that i s a design to kill must be formed coollyand deliberatel y and before the a ct is performed by whi ch d eath is produce d and the kill ing must be thecool and deliberate act of the slayer. This is the distinctive feature of mu rder in the first degree, as charged in the indict ment. Itis not necessary that the cool and deli berate des ign to kil l should have been conceived or pre-ex isted for any period of time anterior to the killing. It is sufficie nt if it precede the killin g, however short the interval of time may be; for th e le ngth of time is not the essence of this element of thi s offense. The purpose to kill is no less premedit ated, in the leg al sense ofthe t erm, if it was deliberately formed but a momentbef ore the killing, than if it had bee n formed an hour before. The mental state of the slayer at the time of t he kil ling , rath er tha n the l ength of time the act may have been premeditated, is the materia l point to be considered. The question of im portance is, was the mind of the s lay er, at t he ti me of t he ki lling, s o far free from excitement

or passion as

to b e capable of premeditation, as before explained, and was th e death of the party slain the object sought to be accomplishe d by the slayer?

These instructions show that the trial court did not give the full statutory definition of f irst degree murder to the jury, but only the part that related to the facts in the case. Moreover, the t rial court ’s defining t he particular felonies rais ed by the evidence that

would lea d to a first deg ree murder conv iction throug h felony murder leads me to believe that it intende d to give the jury the option of felony murder, certain ly not to preclude it.4 I also note that based only upo n the guilt phase evidenc e, the jury found beyond a reas onable doubt at the s entencing phas e that the defendant committ ed the murder during the commission of or the attempt to commit rape, robber y, and kidnapping. Thus, the recor d shows that

the jury found that the factual el ements of felony murder e xisted bey ond a reasonable do ubt from the guil t phase proof.

In Schad v. Ar izona , 501 U.S. 624, 111 S. Ct. 2491 ( 1991), a plural ity of four justices considered premeditated murder an d felony murder , as provi ded by an Arizona statute, to constitute alte rnative, equivalent means of comm itting the single crime of first deg ree murder. Id. at 642-44, 111 S. Ct. at 2502 -03. Thus, in their view, it
was no t con stit utio nall y nece ssary f or a ju ry to be unan imou s as to which o f th e two methods was us ed. A fifth justic e considered th e two means of fir st degree mur

der and the use of a genera l verdi ct thereon to hav e been so deeply

established i n American jurisprudence that the practice con forms with the requirements of th e Due Process Clause. “Su bmitting ki lling i n the course of a r obbery and premeditated kill ing to the jury under

a single charge is

not some novel composite that can be subjected to the indignity of ‘fundamental fairness’ review . It was a norm when th is country was founded, was the nor m when the Four teenth Amendment was adopted in 1868, and remains the nor m today.” 501 U.S. at 651, 111 S. Ct. at 2507 ( Scalia, J., concurring ). Thus, jury unanimity as to whether

the murder was committed duri ng the perpetr ation of a felony or premeditatedly

is not of federa l cons titut ional sign ifican ce, at least in ter ms of the historical definitions of those two forms of murder.

Howeve r, there is

a significant difference under our state constit ution. That is, the is sue of whether the jury was unanimous in its deci sion that the appel lant in the present case committed, i n fact, a wil lful, malicious , premeditated and d eliberate murder becomes i mportant because Middlebrooks forecloses the u se of the commission of a f elony aggravator for capital sentencing purposes when a def endant is5

found guilty of only felony murder. Th us, to the extent that any juror in a capital case bases his or her decision on the fact that the ac cused committed, i n fact, a felony murder -- not

a premeditated and deliberate one - - one must reck on with Middlebrooks

.
My analy sis, though, does not avai l the appellant any reli ef in this case. As fo r th e is sue o f wh ethe r al l ju rors fou nd th e app ell ant g uil ty, in fa ct, of a premeditated and del iberate murder , I believe that the answer is y es. Simply put, the evidence of the mur

der being a contract kil ling and of the w ay the v ictim was

killed forecloses any

reasonable doubt about the fact that the appellant committe d a premeditated and del iberate murder and that the jur

ors so found. This would mean that Middlebrooks would be of no consequence even if a juror al so found that the appell ant committed a felony

murder. Thus, I concur that the dismissal of the post-convi ction petition shoul d be affirmed.

_______________________________ Joseph M. Tipto n, Judge