# FILED

April 13, 1998 Cecil Crowson, Jr. Appellate Court Clerk IN THE SUPREME COURT OF TENNESSEE 1 2 AT JACKSON 3 4 5 6 7 STATE OF TENNESSEE, ) 8 ) 9 Appellee, ) 10 ) Shelby County 11 ) 12 v . ) Hon. W. Fred Axley, 13 ) Judge 14 ) 15 PERRY A. CRIBBS, ) No. 02S01-9703-CR-00014 16 ) 17 Appellant. ) 18 19 20 21 22 CONCURRING AND DISSENTING OPINION 23 24 25 I concur with the majority’s decision that the conviction 26 of first degree murder be affirmed. However, I dissent from the 27 majority's finding that the jury's improper consideration of the 28 felony-murder aggravating circumstance, Tenn. Code Ann. § 39-13- 29 204(i)(7), was harmless error beyond a reasonable doubt. Also, the 30 sentence of death in this case is, in my view, disproportionate. 31 32 The majority again excuses constitutional deficiency with 33 its ubiquitous use of harmless error. As stated in dissent in 34 State v. Boyd, ____ S.W.2d ____ (Tenn. 1998), dissenting slip 35 opinionat 9, the high standard for harmless error analysis 36 announced in State v. Howell , 868 S.W.2d 238 (Tenn. 1993), cert. 37 denied410 U.S. 1215, 114 S. Ct. 1339 (1994), has been 38 significantly compromised in a number of cases decided since 39-2-

Howell

. See State v. Smith, 893 S.W.2d 908 (Tenn. 1994), cert. 1 denied , ____ U.S. ____, 116 S. Ct. 99 (1995); State v. Nichols , 877 2 S.W.2d 722 (Tenn. 1994), cert. denied, 513 U.S. 1114, 115 S. Ct. 3 909 (1995); State v. Cazes , 875 S.W.2d 253 (Tenn. 1994), cert. 4 denied , 513 U.S. 1086, 115 S. Ct. 743 (1995). 5 6 All members of the Court agree that consideration of the 7 felony-murder circumstance was error under State v. Middlebrooks , 8 840 S.W.2d 317 (Tenn. 1992), cert. dismissed510 U.S. 124, 114 S. 9 Ct. 48 (1993). Consequently, the only valid aggravating 10 circumstance is the defendant's previous convictions of felonies 11 involving the use of or threat of violence to the person, under 12 Tenn. Code Ann. § 39-13-204(i)(2). In support of this aggravating 13 circumstance, the State presented evidence of four previous 14 convictions: two attempted second degree murders, one aggravated 15 robbery, and one second degree burglary. Despite the number of 16 offenses, this is not a strong circumstance because the attempted 17 second degree murder convictions and the aggravated robbery 18 conviction all arose from a single incident occurring on the same 19 date. This aggravating circumstance is further tainted because the 20 State improperly relied upon the second degree burglary conviction, 21 which did not involve the use or threat of violence as required by 22 the statute, and thus, as acknowledged by the majority, was not 23 admissible. The State has not carried the burden of showing that, 24 beyond a reasonable doubt, the Middlebrookserror did not affect 25 the jury’s decision to impose a sentence death. 26 27-3- In my view, the sentence of death is disproportionate. 1 The victim in this case surprised two burglars in her home. She 2 was killed instantly with a single gunshot wound to the head. Any 3 murder is tragic and destructive in its own right. Nevertheless, 4 under state and federal law the death penalty is reserved for the 5 most culpable offenders. Considering the character of the 6 defendant and the circumstances of the crime, this crime was not 7 “among the worst of the bad” for whom the death penalty is 8 reserved. State v. Nichols , 877 S.W.2d 722, 744 (Tenn. 1994), 9 Reid, J., dissenting. I would hold that the sentence of death 10 under the facts of this case is excessive and disproportionate and 11 reduce the sentence to life imprisonment. 12 13

____________________________ 14 Reid, J. 15 16