# FILED

March 17, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE AUGUST 1997 SESSION

JEFFREY STUART DICKS, ) No. 03C01-9606-CC-00231 ) Appellant ) ) GREENE COU NTY V. ) ) HON. WILLIAM H. INMAN, STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Co nviction - Death Pen alty) ) )

For the Appellant: For the Appellee: Greg W. Eichelman John Knox Walkup District Public Defender Attorney General and Repor ter D. Clifton Barnes Amy L. Tarkington Assistant Public Defender Assistant Attorney Gener al 1609 Coll ege Park Dr ive 450 James Robertson Parkwa y Box 11 Nashville, TN 37243-0493 Morristown, TN 37813 H. Greeley Wells, Jr. District Attorney General P.O. Box 526 Blountville, TN 37617

OPINION FILED: ___________________ AFFIRMED WILLIAM M. BARKER, JUDGE1 Before app ella nt’s t rial , a change of venue wa s grante d by t he tri al cour t to Gree ne County . As a res ult, ap pellan t’s co nvictio n orig inate d in G reen e Co unty, w hich is the prop er ve nue for ap pellan t’s post-co nviction pro ceeding s. See Tenn. Code A nn. §40-30-103(a)(1) (repealed 199 5).

2 Appellant ’s co-defendant , Donald Wayne Strouth,was convicted o f felony murder and senten ced to de ath in an ea rlier trial. See State v. Stro uth , 620 S.W .2d 467 ( Tenn . 1981), cert. denied 455 U.S. 983, 102 S.Ct. 1491, 71 L .Ed.2d 692 (1982). 2 OPINION In this capital case, the appe llant, Jeffrey Stuart Dicks, appeals as of right the Greene County Criminal Court’s dismissal of hisfourth and fifth petitions for postconviction relief. The issues on appeal may be summarized as follows: (1) Whether the case should be remanded to the tr ial court for a new evidentiary hearin g; (2) Whether the application of the felony-murder aggravating circumstance was harml ess beyond a reasonable doubt; and (3) Whether the jury instructions on mitigating circumstances violated appellant’s federal constituti onal rights under the Eig hth and Fourteenth Amendments. After a thorough review of the record, we find no err or requiring a rev

ersal of appellant’s death sentence. Acc ordingly, we affirm the trial court’s denialof postconvic tion re lief. I. PROCEDURAL HISTORY The appellant was convic ted in 1979 of the felony murder of James K eegan, the elderly shopkeeper of the Budget Shop in Sullivan County, Tennessee. 1 The jury sentenced appellant to death upon finding two aggravati ng circumstances: (1) the murder was especially

heinous, atrocious, or cr uel; and (2) the murder w as committed during the perpetration of a felony

. See Tenn. Code Ann. §§ 39-2404(I)(5) , (7) (Supp. 1978). 2 Appellant’s conviction and sentence were affirmed on di rect appeal to our supreme court. State v. Dicks , 615 S.W.2d 126 (Tenn. 1981), cert. denied 454 U.S. 933, 102 S.Ct. 431, 70 L.Ed.2d 240 (1981)

. Appellant filed his first petition for post-conviction relief in 1982 alleging ineffective assistance of counsel . The trial court denied re lief and that ruling wa s affirmed by this Court. See Jeffrey Stuart Dicks v . State , No. 201 (Tenn. Crim. App. at3 The fourth and fi fth petitions were assi gned separate docket numbers in the trial cour t, but u sed interc han gea bly on d ocu me nts w ithin th e tec hnic al rec ord. T he tria l cour t’s ord er of dism issa l refer s only to the four

th peti tion. However, appel lant’ s brief r efers to t his proceedi ng as “an appeal f rom the denial of the post- convicti ons four and five, which wer e combined . . . ” The State’ s brief r elies upon that assertio n and c onsider s this proc eeding d ispositive of both petition s. W e note tha t during ora l argum ent, appellant’s counsel st ated that

the fourt h and fift h petit ions had been consol idated, although no f ormal order was contai ned in the t echnical r

ecord.

4 There is no expl anation i n the record f or this f ive year

delay. We note that the fi rst appearance of counsel, by way of a motion for di scovery, was December 19, 1989. However, the post-conv icti on petition was not am ended with the as sistance of coun sel until Feb ruary 8, 199 4. 3 Knoxville, January

20, 1984), perm. app. denied (Tenn. A pril 30, 1 984). Sim ilarly, appellant’s second post-conv iction petition, filed in 1986 , was denied by the tr ial court, and that ruling was uph eld on appeal. See Jeffrey Stuart Dicks v . State , No. 275 (Tenn. Crim. App. at Knoxv ille, April 15, 1988), perm. app. denied (Tenn. July 5, 1988). In an order denying permission to appeal that decision, the suprem e court granted appellant a delay ed appeal on his third post-c onviction petition. U pon addressing the issues r aised in appellant’s thir d petition, this Court ag ain affirmed the trial court’s denial o

f post-conviction reli ef. See Jeffrey Stuart Dicks v . State , No. 275 (Tenn. Crim. App. at Knoxv ille, March 17, 1989), perm. app. denied (Tenn. July 3, 1989) (supplemental opinion). The petitions at issue in this appeal were filed in 1989. Appellant f iled his fourth petition, pro se , on June 1, 1989. He then filed a fifth peti tion, pro se , on June 29, 1989, the same date as his amended fourth petition. The State moved for consolidation of the petitions. Although no formal order of consol idation by the trial court appears in the recor d, our review indi cates that the petitions w ere considered jointly. 3 On November 7, 1994, the trial court held an evidentiary hearing on appellant’s petitions. 4 By agreement of the appellant and the State, the issues at the hear ing were limited to the appli cation of the felony-murder ag gravating circumstance and the validi ty of the heinous , atroc ious, or

cruel a ggrav ating circums

tance. I n denyi ng reli ef, the trial court reaffirmed our supreme court’s findin g that the murder was especially heinous, atrocious, or cr uel and ruled that the jury ’s consideration of the felony- murder5 Appellant also request

s a remand for a new evid entiary hearing because he did not r eceive a full a nd fair hearing on November 7, 1994. Appellant apparentl y overl ooks the fact t hat a second hearing was hel d on March 22, 1996 i n which the same issues wer e lit igated. A review of that tr anscript fails t o demonstrate that

the tri al court l imited the presentati on of any evi dence. Moreover, we note that appellan t’s couns el and the State agr eed to lim it the issues to be con sidered in the Nov emb er hearin g. The substance of appel lant’ s allegat ions rel ate more to his di ssatisfact ion wit h the tri al court’ s rulin g than an actual def iciency

at the hear ing. Appel lant i s not enti tled t o a remand. 4 aggravating ci rcumstance was harmless beyond a reasonable doubt. Upon motion of the appellant to reconsider the issues, the trial cour t held another evidentiary hearing on March 22, 199 6, and ag ain deni ed reli ef.

II. REMAND FOR EVIDENTIARY HEA RING While the record was being prepar ed for submission to this Cour t, it was discovered that a transc ript from the November 7, 1994 ev identiary hearing w

as not available. An affidavit from the court reporter for the Cr iminal Court of Greene County reflects that she was unabl e to locate any record of the proceeding and, therefore, could not prepare a written transcript. Appellant maintains that the transcri pt of that hearing is necessary

for this Court to perform an adeq uate review. As a r esult, he contends that the matter should be remand ed to the trial court for a new evidentiary hearing. In a previous ruling , we held that the appellant was not entitled to a remand on this issue. Prior to filing his brief, appellant mad e a motion in thi s Court requesting a remand based upon the missing tr anscript. We denied the motion upon finding that no new evidence was

introduced at the November hearing. Moreover,we found that the issues raised in the N ovember hearing wer e readdressed in the later he aring on March 22, 1996. We, therefore, concluded that any omissions from the November hearing were completel y covered by the tr

anscripts from the hearing i n March. The appellant has failed to explai n why the transcri pt from the March hearing i s not adequate. W e continue to a bide by our earlier ru ling. 5
III. MIDDLEBROOKSERROR Appellant next challeng es his death sentence argui ng that the felony-murder aggravating circumstance was found by the jury in violation of the rule announced in6 Because appellant ’s peti tions were f iled pr ior to the expirati on of the statute of li mitations on July 1, 1989 , his claim s mu st be co nsidere d timely. Te nn. Cod e Ann. § 40-30-1 02 (repe aled 199 5); State v. Masucci , 754 S.W .2d 9 0, 91 (Te nn. C rim . App . 198 8). Alth oug h pre ced ing th e dec ision in Middl ebrooks , we n ote th at the use o f the f elony- mu rder aggr avatin g circ um stan ce w as fa irly raise d in appellan t’s fifth petition an d fully addres sed in the petition am ended by couns el. 5 State v. Middlebrooks , 840 S.W.2d 317 (Tenn. 1992). He further contends that the error cannot be demonstrated to be harmless beyond a reasonabl e doubt and that he is entitled to a new sent encing hearing. This issue is without merit. It is now a well-known principle that when a defendant is convicted of first degree murder solely on the basis of felony murder, then use of the aggravating circumstance that the murder was committed during the perpetration of a felony fails to sufficiently narrow

the class of death-eligibl e offenders. See State v. Middlebrooks , 840 S.W.2d 317, 346 (Tenn. 1992). In order to satis fy the protections provi ded in the Tennessee Constitution, a finding of at least one other statutory aggravating circumstance is necessar y. See id at 346-47. Because Middlebrooks announced a new constitutional rul e which “materially enhances the integrity and reliability of the fact-finding process of the tri al,” that ruling has bee n held to apply retroacti vely. Barber v. State , 889 S.W.2d 185, 186 (Tenn. 1994), cert. denied 513 U.S. 1184, 115 S.Ct. 1177, 130 L.Ed.2d 1129 (1995). Therefore, the Middlebrooks rule applies in the appellant’s case. 6 The felony-murder aggravating circumstance was utilized in appellant’s case in
contrav ention o f Middlebrooks . At the penalty phase of appell ant’s trial, the jury found two aggravating

circumstances to justify the imposition of the death penalty : (1) the murder w

as committed wh ile the defendant was engaged in

the commi ssion of

a felony, and (2) the murder w as especially heinous, atrocious, or cruel in that it involved torture or depravity

of mind. See Tenn. Code Ann. §§ 39-2404(I)(5) , (7) (Supp. 1978). In light of appellant’s conv iction of felony murder, the felony -murder aggravator

cannot be used to support the appellant’ s death sentence. See Middlebrooks , 840 S.W.2d at 346.7 Appellant makes numerous references to co-defendant Strouth’ s trial

transcri pt and rel ies on certain pr

oof intr oduced at that

trial . He also urges this Court to take judi cial not ice of Str outh’s t rial reco rd. H owe ver, u nde r harm less error analys is, the only re levan t infor ma tion is that w hich the ju ry in appellan t’s case c onsider ed in han ding dow n the dea th senten ce. See How ell , 868 S.W .2d at 260 -61. There fore, evide nce from his co-de fendan t’s trial, if not put befo re appe llant’s jury, is irrelevan t. 6 Nevertheless, this er

ror does not automatically mandate a reversal of appellant’s death sentence or r equire a new sentencing hearing. In consideri ng the error, it is the duty

of the reviewing c

ourt to examine the record of the evidence at trial and evaluate whether the er ror is harmless beyond a reasonable doubt. See State v. Howell , 868 S.W.2d 238, 259 (Tenn. 1993), cert. denied 510 U.S. 1215, 114 S.Ct. 1339, 127 L.Ed.2d 687 (1994). In perfor ming that analysis, w

e must consider the following relevant factors: (1) the number and strength of the remaining valid aggravating ci rcumstances; (2) the ext ent to which the prosecutor emphasized the invalid aggrav

ating circumstance duri ng closing argument; (3) the evidence admitted to establish the invali d aggravator; and ( 4) the nature, quality , and strength of the mitigating evidence

. See id at 260-61 . If we det ermine th at the jur y would have imposed the same sentence had it g iven no weight to the invalid aggrav ating circumstance, then the error is harmless and the sentence may be affirmed. See id at 262. We conclude that the error in this case was harmless be yond a reasonable doubt. 7 In conducting the harmless e rror analysis, w e must first consider the str ength and validity of the remaining aggravating circumstance. In this case we must address two fundamental issues: (1) whether the appellant’s i nvolvement in the cri me was sufficient to warrant the appl ication of the remaining heinous , atrocious, or cruel aggravator ; and if s o, (2) whet her unde r a harmle ss error an alysis, th e jury would have imposed the death sentence using the heinous, atrocious, or c ruel aggravator, without consideration of the invalid felony-murder aggravator. The jury found the murder of James Keegan to b e especially heinous, atrocious, or cruel in that it involved tor ture or depravity o

f mind. Tenn. Code Ann.8 After several attempts to pronounc e the words “atrocious” and “discharging,” the trial court directed th e forem an to spe ll the words for the rec ord. 7 §39-2404(I)(5) (Supp. 1978). However, the appellant first contends that th e jury misunderstood the nature and meaning of the heinous, atrocious, or c ruel aggravating circumstance. He specifically refers to the jury foreman’s inability to pronounce certain words in the v

erdict form when the ver dict was announced to the tr ial court. 8 According to appellant, th e foreman’s difficulty illus trates that the jury di d not understand the meaning of the heinous, atrocious, or cruel ag gravator and, hence, could not properly apply it to the facts. We disagree. Initially, we find that the appellant has waived this issue by failing to raise it in an earlier proceeding. Tenn. Code Ann. § 40-30-112(b)(1 ) (repealed 1995). However, even if addressed on the merits, this i ssue would not entitle the appellant to relief. Although the record reflects that the foreman ha d trouble pronouncing the word “atrocious,” that proof alone does not demonstrate that the jury misunderstood the nature and meaning of the aggravator. To the contrary, the trial court carefully instructed the jury on the definitions of the words “heinous,” “atrocious,” and “cruel” in accordance with the law at that time. In reading its verdict to the court, the jury foreman simply indicated that h e could not pronounce a few of the w ords on the form. We find no evidence that the jury misunders tood the heinous, atrocious, or cruel aggravator. The appellant

next conten ds that his l evel of pers onal invol

vement in th e crime was not sufficient to war rant the application of the heinous , atrocious, or cruel aggravating circu mstance. To su pport his ar gument, he r

elies on the

Florida Su preme Court’s decision in Omelus v. State , 584 So.2d 563 (Fla. 1991). The appellant cites Omelus for the proposition that a conv icted murderer who did not actually kill the victim cannot be held responsible under the heinous, atrociou s, or cruel aggrav

ator. In Omelus , the defendant hired another person to kill the victim9 The Florid a sup rem e cou rt has reac hed the s am e con clus ion in a t leas t two o ther f actu ally similar c ases. W illiams v. Sta te , 622 So .2d 456, 4 63 (Fla. 19 93), cert. denied 510 U.S . 1000, 11 4 S.Ct. 570 , 126 L.Ed .2d 4 70 (1 993 ) (find ing he inous , atroc ious , or cr uel ag grav ating circu ms tanc e inap plicab le in murder-for- hire case where St ate fail ed to prove bey ond reasonable doubt that defenda nt knew or ordered the particu lar ma nner in wh ich the victim s were k illed); Arche r v. State , 613 So.2d 446, 448 (Fla. 1993) (holdi ng that t he heinous, at rocious or cruel aggravat ing cir cumstance cannot be appli ed vicari ously t

o a defendant who ar ranges for a ki lli ng, but i s not present and who does not know how the murder will be accom plished).

10 See slip op. at 6 (ci ting Tison v. Ari zona , 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed. 2d 127 (1987)). 8 and did not provide any i nstruction as to how the murder should be accomplished. See id. at 566. In finding that the jury impermissibly considered the especially heinous, atrocious or cru el aggravator, the court stated that, “wher e there is no evidence of knowledge of how the murder would be accompl ished, we find that the heinous, atrocious, or cruel aggravating factor cannot be applied vicariously.” See id. In reaching that conclusi on, the court specifically noted that the defendant did not know how the vic

tim would be killed, nor was there evidence that the defendant had directed the perpetrator to kill the victim in a particular manner. See id

. 9 The issue of vicarious appli cation as presented in Omelus has been addressed by a panel of this Court on one prior occasion. See William Groseclose v. State , No. 02C01-9407-CR-00145 (Tenn. Cr im. App. at Jackson, August 23, 1995), perm. to
app. denied (Tenn. 1996). The defendant in Groseclose was convicted of premeditated murder for hiring two men to kill his w

ife. Slip op. at 2. On collat eral review, he challenged the vicarious applic ation of the heinous, atrocious, or cruel aggravating factor. Slip op. at 6. The Court first acknowledged that, under certain circumstances, Tison permits the death penalty for accomplices who do not par ticipate in the killing. 10 The Court then distinguis hed the Omelus case by observing that: Contrary to the facts in Omelus , the evidence introduced and established at trial in the instant case revealed that the appellant took an active part in the planning of the murder and i n the preparatory steps t o the murder itself. The planning was begun three weeks prio r to the death of the victim. The appellant repeat edly told the hired kil lers to make the murder look like a “rape-robber y” and to leave the v

ictim’s body in her automobile. On the morning of the pl anned murder, the appellant allowed [the killer

s] to enter a tool shed adjacent to the house. At the appropriate time, the appellant then motioned for them to enter the house. The victim at this time was asleep in her bedr oom. Based upon11 See Stat e v. Di cks , 615 S.W .2d 126, 130-32 (Tenn . 1981). 9 the appellant’s active participation in the crime, it was proper for the jury to sentence the appellant to death i n view of the heinous, atr ocious and cruel nature of the killing. Slip op. at 7. The holding in Omelus is applicable in most murder -for-hire scenarios becau se, in those circumstances, the person paying to have the murder committed may hav e no involvement in the planni ng or in the method of the kill ing. Therefore, imposition of an aggravating factor

which directly

relates to the manner of killi ng may infringe the principles of individua lized sentencing. See Tison v. Arizona , 481 U.S. 137, 160 n.3, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987) (Brennan, J. dissenting)

. However, those concer ns are not present in this c ase. The appellant
was pr osecuted and convicted for his active

role in the robbery and

felony murder o

f a seventy-year-old storekeeper. The facts and circumstances in this case are vastly different from both Omelus and Groseclose . Although appellant has maint ained that he was not present in the s tore during the crime, w hich is arguably mor

e akin to the culpability of the contractor in the murder-for-hire cases, we find that the facts support a finding that the appellant was personally involved in Mr. Keegan’s actual murder. Our supreme court has prev iously held that there w as sufficient evidence to support a finding that the appell ant was an active par ticipant in the robbery

and felony murder of James Keegan. 11 On the morning of February 16, 1978, Donald Wayne Strouth arrived at appel lant’s apartment and sugges ted that the two of them rob the “old man” at the Budget Shop. Ther eafter, the appellant and Strouth “c ased” the several blocks surr

ounding the shop. They exa mined the store location, the front entrances, and also searched the back alley for an escape exit. During that entire time, the appellant knew Str outh was armed with a ha wkbill knife. The evidence showed that appel lant had done business in the Budg et Shop some two weeks earli er and was acquainted w ith the owner, James Keeg an. The10

appellant was aware that Mr. Keegan carried a roll of money in his front pocket. W hile “casing” the store ar

ea before the murder, appellant and Str outh passed Mr. Keegan walking on the street . Appellant pointed him out to Str outh and identified him as the owner of the store. The tw o even asked Mr. Keegan i f he had closed the store for the day. During those fateful hour s before the murder, Strouth repeat edly told the appellant they should commit the robbery that day. St routh even suggested th at appellant could hold the vi ctim while Strouth took the money from his pocket. With that forewarning, the appel lant continued to accompany and a ssist Strouth. Later that same day, Mr. Keegan was found dead on the floor in the Budget Shop. Evidence from the police investigation rev ealed that money had been taken from Mr. Keegan’s person and from his business. Additiona lly, there was evidence that Mr. Keegan had suffered fatal injuries to his hea d, face, and neck. An autopsy report revealed that Mr. Keegan suffered a skull fracture so severe that his sku ll was pushed in toward the brain . That particular injury caused bruising on the r ight side of Mr. Keegan’s face and exten sive hemorrhaging d eep within his brain. According to testimony from the medical ex aminer, a blunt instrument caus ed the skull injury a nd rendered Mr. Keegan unconsc ious. The autopsy also revealed that Mr. Keegan suffered multiple lacerations on his face, head, and neck. The first laceration was a jagged cut over Mr. Keegan’s posterior right skul l which penetrated the full thickness of the scalp at a depthof onehalf to three-quarters of an inch. The second laceration was located across Mr. Keegan’s right ear ex

tending completely throu gh the cartilage. The thi rd and fatal laceration was an inci sion in Mr. Keegan’s throat extending from ear to ear at a depth of nearly two inches. The medical examiner stated that Mr. Keegan could have lived12 Dr. James Wilford, the aut opsy examiner, t

estifi ed that Mr. Keegan was unconscious or restrai ned at the t ime he received t he knife wound across his neck. He based that opinion upon evidence that

the throat

lacerati on was smooth and that no bl ood was found on the v icti m’s hands.

13 See Stat e v. Za gorski , 701 S.W .2d 808, 8 14 (Te nn. 1985 ), cert. denied 478 U.S. 1010, 10 6 S.Ct. 3309, 92 L.Ed.2d 722 ( 1986) (holdi ng that i nflict ion of grat uitous vi olence and needl ess mutilati on of victims who were already helpless evinced dep ravity of mind). 11 for up to fifteen minutes after the inflicti on of the throat wound. 12 The ultimate cause of death was loss of blood. The graphic nature and extent of Mr. Keegan’s injuri es, as described in the record, evinces that the murder was especially heinous, atrocious, and cruel. Those injuries went over

and above that necessary to cause death and support a finding that the perpetrators were grossly wicked, extremely evil, and clearly disposed to inflict pain upon their victim. State v. Willia ms , 690 S.W.2d 517, 529 (Tenn. 1985) (defining the terms heinous, atrocious, cruel, torture, and deprav ity of mind). Furthermor e, the cruelty with which the assailants attacked Mr. Keegan, showing no mercy toward him after he was unconscious and he lpless, further demonstrates dep ravity of mind. 13 There is no question that Strouth and the appellant were the sole pe rpetrators of those heinous events. As pr eviously determined by our supreme court, the evidence demonstrates that the appellant was active ly involved in the crime and was not merely waiting for Strouth outside the store. On direct appeal, the supreme court stated that: [T]he evidence indicates that appellant’s activities exceeded the mere accompanying of Strouth and dr iving of the get-aw

ay automobile. After the robbery and murder, tw o sets of footprints were found outs ide the rear entrance of the Budget Shop. Both sets of footprints were s paced so that they clearly indicated the persons making the prints “were running” as they left the shop. At the approximate time of the robb ery and homicide, appellant and Strouth were observed on the r oadway near the mouth of the alley leading from the Budget Shop running tow ard the home of appellant. Immediately on r eaching his home, appellant collected his girlfr

iend and left Kingsport, taki ng no possessions with him. Further, appellant admits taking a “few” dollars from the robbery proceeds and used them in getting away from Kingsport. W e think a jury reasona bly could f ind from this evide nce that appellan t was an act ive participant in the robbery and murder of Mr. Keegan and w as not, as appellant claimed, waiti ng for Strouth in an automobile. See State v. Dicks , 615 S.W.2d 126, 13 0 (Tenn. 1981).14 The supreme court upheld t he appellant ’s death sent

ence upon determini ng that t he sentence was pro portional to th e appe llant’s role in the c rime. See 615 S.W .2d at 130

.

15 The State also i ntroduced evi dence that t he appellant was wearing a gre en overcoat on t he day of the m urde r. Th e Sta te alle ged that th e coa t had blood on th e hem , sign ifying a ppe llant’s pres enc e and partic ipatio n in the mu rder . The coat was mys teriou sly bur ned at the hom e of a ppe llant’s moth er befor e the app ellant was arrested

. 12 Based upon that finding, the supreme court conclu ded that the appellant’s
persona l involveme nt in the c rime supp orted th e imposit ion of th e death p enalty. 14 We adhere to that ruling and furth er conclude that the heinous, atr ocious, or cruel aggravator was

properly applied to the appellant. Although the proof regarding the events inside the stor e was circumstantial,the physical evidence of tw o sets of footprints leaving the rear of the store demonstrated that appellant was insid e the store during the cr ime. Also, there was ev idence from eyewitness testimony

that the appellant and Strouth w ere seen running through the back alley away from the store near the time of the murder. 15 The State’s theory was that appellant participated in the crime by striking Mr. Keegan on the head with a ro ck, rendering him unconsc ious. Based upon proof that Strouth was armed with the hawkbill knife, the State theorized that the appel lant attacked Mr. Keegan wi th a rock before Strouth cut Mr. Keegan’s throat. The medical examiner, Dr. James Wilford, testified that Mr. Keegan did not strug gle when the fatal neck wound was inflic

ted. Therefore, according to D r. Wilford, Mr. Keegan was either disabled by the skull i njury or restrained by one of the assailants w hen his throat was
cut. That evidence reasonably supports a finding that the appellan t had a direct role in the robbery and felony murder of Mr. Keegan. Even without a finding that the appellant personally committed the brutal killing , the evidence shows that the appellant actively p lanned and carried out the robber y, he benefited from the proceeds of the robbery, and he was present in the store as an aider and abettor when Mr. Keegan was attacked and left t o die. Moreover, the appel lant made no attempt to prevent the robbery or

the felony murder. Instead, he participated in the planning and16 We acknowledge the appellant ’s furt her contenti on that t he heinous, at rocious, or cruel aggravat

or is un consti tuti onal and should no t be consi dered i n the har mless error analy sis. Howe

ver, we find that this iss ue was previous ly address ed and rejected by our sup rem e court o n direct ap peal. See Stat e v. Di cks , 615 S.W.2d at 131-32. Furthermore, i n his second post- convicti on petit ion, t he appellant specifically challenged the applicabili ty of that aggravator in li ght of State v. Williams , 690 S.W.2d 517 (Tenn. 1985). In denyi ng reli ef on that i ssue, we noted t hat the i ssue had been considere d in the di rect appea l and that Williams did not app ly retroactively. See Jeffrey S tuart Dick s v. State , No. 275 (Tenn. Crim . App. At K noxville, Ap ril 15, 1988) , per. app. den ied (Tenn. July

5, 1988). We reaffirm our previous determinati on and decli ne to furt her address thi s issue. 13 execution of the robbery and thereafter ran away from the scene while Mr. Keegan was unconscious and bleedi ng on the floor. We, therefore, uphold the application of the heinous, atr ocious, or cruel aggravator. The str

ength and validity of that remaining aggrav ator is supported by proof that the appellant was directly involved and personally culpable for the robbery and felony murder of James Keegan. 16 Under the second prong of the har mless error analysi s, Howell directs us to consider the extent to w hich the prosecutor emphasiz ed the invalid felony-mur der aggravator in the c

losing argument. See 868 S.W.2d at 261. Our review of the rec ord reveals that the district attorney did not place any undue emphasis on the invalid aggravating ci rcumstance. During the closing argument, the State argued that four aggravating circumstances applied in appellant’s case. In the initial argument, the prosecut or referred to the felony-murder aggravator only once. The prosecutor simply stated that it was the fourth aggr

avating circumstance applicable to the appellant and that it had been proven by the jury ’s verdict of guilt . Thereafter, in the rebuttal ar gument, the prosecutor vehemently a rgued for the application of another aggravator, that th e murder was committed to av oid arrest or prosecuti on. We conclude that the prosecutor’s references to the felony-murder aggrav ator were minimal and had no undue influence on the jury. Also relevant to our analysis under Howell is the evidence that the St ate offered to establish the invali d aggravating ci rcumstance. We must consider whether the invalid aggrav

ator was established by evidence that was mater ially inaccurate or14

admissible only to suppor t the invalid aggr

avator, or whether the evidence was otherwise admissible i n the guilt or sentencing phases. See Howell , 868 S.W.2d at 261. Evidence that the murder was committed during the commission of a felony was admitted during the guilt phase and resulted in appella nt’s conviction of felony murder. At the sentencing hearing , no additional evidence w as introduced to support the felony-murder circumstanc e. We find that the evidence supporting the felo ny-murder aggravator was

accurate and admissible both i n the guilt phase and penalty phase of appellant’s trial. However, although the evidence was introduced and used in the guilt phase, it was not emphasiz ed at sentencing. We find no reversible error in the use of that evidence. Lastly, under Howell , we must consider the natur e, strength, and quality of the relevant mitigating

evidence. See 868 S.W.2d at 262. At the sentencing hearing , the appellant addressed six mi tigating factors in hi s closing argument: ( 1) the defendant had no significant criminal history; (2) the mur

der was committed whi le under the influence of extreme emotional or ment al disturbance; (5) the defendant was an accomplice in a murder committ ed by another person, and his participation was relatively minor;(6) the defendant acted under ext reme duress or substantial domination of another person; (7) the defendant was young at the time of the crime; and (8) the defendant was acting under a mental defect which sub stantially impaired his capacity to appreci ate the wrongfulness of his c onduct or to conform his conduct to the requirements of the law. Tenn. Code Ann. §39-2404 (j) (Supp. 1978). The appellant offered the testimony of Doct or David McMill an, a clinical psychologist who

evaluated the appellant before tr ial. Dr. McMill an described the appellant as a passive, depe ndent, and weak person wh o used repression and denial as defense mechanisms. He stated that although the appellant had a normal IQ of ninety (90), he had poor c ommon sense and suffered from a basic characte r disorder. In descri bing that disorder , Dr. McMilla n testif ied that the appe llant was a passive follower who usually

sought out dominating people.According to Dr. M cMillan, the17 Dr. McMilla n indicat ed that peopl e with charact er disorder

s often become involved in cri minal activit y. 15 appellant would have been unable to initiate and carry out the definitive act of robbery by himself, but instead w ould have participated as a follower. He further i ndicated that the appellant had a “desert per sonality,” meaning that the appellant had nothing “inside” t o process ev

ents which

happen to him. On cross examination, Dr. McMillan admitted that by projecting a passiv

e and helpless personality, the appellant had developed a mani pulative behavior i n which he encouraged other people to accomplish his goals. 17 In the con text of cr iminal ac tivity, Dr. McMillan testified that the appellant’s involvement in a robbery would probably have been to suggest a place to rob, show the leader the location, and participate in the planning an d surveying for the ro bbery. Lastly, Dr. McMill an stated that , although difficult, the appellant recognized the diffe rence between right and wrong and could have controlled his condu ct. Based upon the above evidence, and other proof in the record, w e find that there was no mitigati ng evidence sufficient to r educe the appellant’s culpabil ity for the crimes. First, w

e find that the appellant had a histor y of criminal activi

ty. Appellant testified at trial that he was “wanted” in North Carolina for writing worthless checks in the amount of $14,000. At the time of the felony murder, he was fleeing from that charge and living

under an assumed name. Although appel lant’s criminal histor y was non-violent, it was

nevertheless significant and it diminished the str ength of any mitigating factors. Moreover, the record fails to support the contention that appellant was operating under an extr eme mental disturbance or under s ubstantial domination from another person. Although ther e was evidence that the appellant was a follower who acted under a basic character disorder, the appellant’s only witness at s

entencing admitted that the appellant could di stinguish between ri ght and wrong. Fur thermore, as previously deter

mined, the appellant was an ac tive participate in the planning and18 See Barbe r v. State , 889 S.W .2d 185, 1 88-89 (T enn. 199 4), cert. denied 513 U.S. 1184, 11 5 S.Ct. 1177, 130 L.Ed.2d 1129 ( 1995) (holdi ng the appli cation of the felony -murder aggravator

harmless beyond a reasonabl e doubt where remaini ng aggravator - especial ly hei nous, atroci ous, or cruel - was supported by proof that elderly victim was murdered b y repeated blows to the head). 16 execution of the crime. We find no evidence tha t the appellant was forced i nto the robbery by another per son. Lastly, although we acknowledge that the appellant was only twenty (20) years old on the date of the crime, we find that appellan t’s age had little mitigating value in this case. The appellant had chos en to live on his ow

n in Kingsport, Tennessee after moving from North Carolina under an assumed name. W hile criminal charges were pending in North Carol ina, the appellant accompanied his friend, Strouth, to the Budget Shop where the tw o planned and eventually c arried out the robbery a nd felony murder of James Keegan. Thereafter, the appellant fled to South Carolina and to Pennsylvania under a new alias. Based upon those acts, we conclude that the appellant’s age was not a significant factor. In sum, after a careful review of the factors and evidence as mandated by our supreme court in Howell , we conclude that the jury’s consideration of the invalid aggravating ci rcumstance was harmless beyond a reasonable doubt. The remai ning aggravating ci rcumstance was supported by the proof; the prosecutor did not target the invalid aggrav

ator in his closing a rgument; no inadmissible ev idence was introduced to support the invalid aggravator; and the mitigating circumstances were insignificant in lig ht of the incriminating proof at trial. We are confident that the appellant’s death sentence w ould have been the same had the jur y given no wei ght to the invalid felony-murder aggravator. 18

IV. JURY INSTRUCT

IONS ON MITIGA

TING CIRCUMSTA

NCES Appellant next contends that the jury instruction prohibited the jury from considering a mitigating factor unless the jury unanimously agreed upon it. Because the appellant failed to pursue this issue in an earlier proceeding, we must consid er it waived. See Tenn. Code Ann. §40-30-112(b)(1) (repealed 1995). Nothing in the19 See State v. Bigbee , 885 S.W .2d 797, 8 14 (Te nn. 1994 ); State v. Nic hols , 877 S.W.2d 722, 735 (T enn. 199 4), cert. denied 513 U.S . 1114, 11 5 S.Ct. 90 9, 130 L.E d.2d 791 (1995); State v. Ha rris , 839 S.W .2d 54, 74 (Tenn . 1992), cert. denied 507 U.S. 954, 113 S.Ct. 1368, 122 L.Ed.2d 746 (1993); and State v. Bates , 804 S.W .2d 868, 8 82 (Te nn. 1991 ), cert. denied 502 U.S. 841, 112 S.Ct. 131, 116 L.Ed.2d 98 (1991). 17 record demonstrates why this issue was not r

aised in an earlier appeal,and we find that it is no longer v

iable. Tenn. Code Ann. §40-30-112( b)(2) (repealed 1995). Moreover,any attempt to pursue thi s claim on th e merits is fruitless. Our supreme court has continuously up held identical jury i nstructions in the face of simil ar challenges. 19 CONCLUSION After a review of the ex tensive record in thi s case, we conclude that the appellant is not entitled to r elief from his death sentence. Our e xamination of the evidence and applicable la w reveals that the j ury’s consideration of the felony-murder aggravator was

harmless beyond a reasonabl e doubt. Despite appellant’s efforts to re-litigate the facts concerning his role in the crime, we find that his arguments are without merit. We, therefore, uphold the judg ment of the trial court and affirm the sentence of death. Unless stayed by a court of competen t jurisdiction, the appellant’s sentence of death by electrocuti on shall be carried out on J une 9, 1998.

_____________________________ WILLIAM M. BARKER, JUDGE

CONCUR:

____________________________ GARY R. WADE, JUDGE

____________________________ PAUL G. SUMMERS, JUD GE