# FILED

April 12, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE SUPREME COUR T OF TENNESSEE AT JA CKSON

FOR PUBLICA

TION STATE OF TENN ESSEE, ) ) Filed: Appellee, ) ) Hon. Julian P. Guinn vs. ) Judge ) ) HENRY COUNTY TERESA DEION SMITH HARR IS, ) ) Supreme Court Appellant. ) No. 02-S01-9806-CC-00053 )

SEPARA

TE CONCURRING OPIN ION

The majority concludes that the jury’s finding of an i ncomplete aggravating circumstance permits Tenn. R. Crim. P. 52(a), harmless error review, holding the error statutory rather than constitutional. I a gree that the error is

statutory and that harmless error analysis applies. Accordingly, I join with the majority in affirm ing the jud gment of the Court of Crimin al Appea ls. I write se parately, however, because I find tha t, in conducting harmless error review, the majority fails to perform a sufficient analysis to support its f inding that the invalid aggravating circumstance did not “affirmatively appear to have affected the result of the trial on the merits.” See Tenn. R. Crim. P. 52(a).

The test for determining whether error is harmless is whether the court can say with fair ass urance after pondering all that happened, without strippi ng the erroneous action from the whole, that the judgment was not substantially swayed by the err

or. See Sullivan v. Louisi ana , 508 U.S. 275, 279, 113 S.Ct. 2078, 2081 (1993); Kotteakos v. United States , 328 U.S. 750, 764, 66 S.Ct. 1239, 1248 (1946). In conducting a harmless error review, the appellate court “must identify

and evaluate all of

the evidence considered by the j ury in addition to ascertaining the probable effect of the alleged error itself;” the court must then consider the error in relation to all els

e that happened. See Yates v. Evatt , 500 U.S. 391, 405, 111 S.Ct. 1884, 1894 (1991) (emphasis added). I f the2

reviewing cour

t can conclude that the error was unimportant in rel ation to everything else the jury considered in reaching its ultimate r esult, the error can be deemed harmless. Thus, the quest ion is not whether the r esult reached by the jury is correc

t absent the error, but rather, whether the error co ntributed to the jury’s result.

In finding that the jury’s error was harmless, the majority summarily concludes that “one vali d aggravating ci rcumstance remains to support the defendant’s sentence . . . [and] that [ t]he defendant offers no specific argument which demonstrates that the jury grossly abused its discretion . . . .” I find this harmless error analys is deficient in that the majori ty, regardless of any

argument by the defendant, has failed to undertak e any examination of whethe r the sentence constitutes a “gross abuse of the jury’s discretion” as statutorily required by Tenn. Code Ann. §39-13-207(g). For this reason, the majority has failed to conduct a true harmless error analysis. R

ather, the majority, as n oted above, in effect, perfunctorily finds the sentence appropriate bas ed solely upon the existence of one valid aggravating ci rcumstance. This finding sug gests that as long as o ne valid ag gravating c ircumsta nce exists , harmles s error will a lways be found and no further review is necessary. This pos ition ignores the fact that our legislature req uires the jury to “w eigh and consider” agg ravating and mitigating circumstances and “in their considered discretion impose a sentence of either life or life without parole.” Tenn. Code Ann. § 39 -13-204(f). Because the jury is giv

en such discretion in impos ing the appropriate sentence , an appellate court which r elies solely on the basi s of a remaining valid ag gravating circumstance resorts to unguided speculation in deter mining the propriety of the sentence imposed. A sentence of imprisonment for life without po ssibility of parole shall be considered appropr iate if the state proved bey ond a reasonable doubt at least one (1) statutory aggrav

ating circumstance contained in § 39 -13-204(I), and the sentence w as not otherwise imposed arbitrarily, so as to constitute a gr oss abuse of the jury’s discretion. Tenn. Code Ann. § 39-13-207(g) (emphasis added). As mandated by statute, our obligation under harmless error review, after finding the existence of at least3

one valid aggrav

ating circumstance, is

to determine, in the final analy sis, whether viewing the record as a whole, the jury would have imposed the same sentence in the absence of the improper or i ncomplete aggravating circumstance. In other words, the question i s whether the jury’ s sentence constitutes a “g ross abuse of discretion” absent consideration of the invalid aggravating circumstance. This analysis would neces

sarily require consideration of (1) the sour ce and nature of the invalid aggrav

ating circumstance(s) , (2) the number and strength of the remaining valid ag gravating circumstance(s), and (3) the natur e, quality, and strength of the mitigating evidence. The performance of any review short of this analysis would re

quire conjecture as to w hich of the two sentencing options the jury would have chosen absent the invalid ag gravating circumstance.

In the present case, I agree with the majority’ s conclusion that the proof supports the jury’s find ing that “[t]he murder w as committed for the purpose of evading, interfering

with, or preventi ng a lawful arrest or prosecution of the defendant or another[.]” Tenn. Code Ann. § 39-13-204(i)(6). Ho wever, in order to complete harmless error review, I additionally find from a review of the record that, notwithstanding the nature and circumstances establishing the invalid aggravator, the jur

y would have nev

ertheless returned a ver dict of life without the possibility of parole c

onsidering the overw

helming proof supporting the remaining valid aggravat ing circumstance and the unper suasive argument by the appellant of mitigating circumstanc es, i.e. , that she was a vic tim of drug addiction, sex ual and physical abuse and male dominance. I conclude tha t the sentence ultimately imposed was not the result of a gross abu se of the jury’s discr etion and that, under the circumstances of the present case, a sentence of life without the possibility of parol e was appropriate. Acc ordingly, the jury

’s consideration of the invalid aggravating circumstance amounts to harmless error.

____________________________________ DAVID G. HAYES, Special Justice