FILED

April 13, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

1 IN THE SUPREME COURT OF TENNESSEE 

2

3 AT JACKSON

4

5

6

7

8 STATE OF TENNESSEE, )

9 )

10 Appellee, )

11 ) Shelby County

12 )

13 v . ) Hon. W. Fred Axley,

14 ) Judge

15 )

16 PERRY A. CRIBBS, ) No. 02S01-9703-CR-00014

17 )

18 Appellant. )

19

20

21

22

23 CONCURRING AND DISSENTING OPINION

24

25

26 I concur with the majority’s decision that the conviction

27 of first degree murder be affirmed. However, I dissent from the

28 majority's finding that the jury's improper consideration of the

29 felony-murder aggravating circumstance, Tenn. Code Ann. § 39-13-

30 204(i)(7), was harmless error beyond a reasonable doubt. Also, the

31 sentence of death in this case is, in my view, disproportionate. 

32

33 The majority again excuses constitutional deficiency with

34 its ubiquitous use of harmless error. As stated in dissent in

35 State v. Boyd , ____ S.W.2d ____ (Tenn. 1998), dissenting slip

36 opinion at 9, the high standard for harmless error analysis

37 announced in State v. Howell , 868 S.W.2d 238 (Tenn. 1993), cert.

38 denied 410 U.S. 1215, 114 S. Ct. 1339 (1994), has been

39 significantly compromised in a number of cases decided since
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1 Howell . See State v. Smith , 893 S.W.2d 908 (Tenn. 1994), cert.

2 denied , ____ U.S. ____, 116 S. Ct. 99 (1995); State v. Nichols , 877

3 S.W.2d 722 (Tenn. 1994), cert. denied , 513 U.S. 1114, 115 S. Ct.

4 909 (1995); State v. Cazes , 875 S.W.2d 253 (Tenn. 1994), cert.

5 denied , 513 U.S. 1086, 115 S. Ct. 743 (1995).

6

7 All members of the Court agree that consideration of the

8 felony-murder circumstance was error under State v. Middlebrooks ,

9 840 S.W.2d 317 (Tenn. 1992), cert. dismissed 510 U.S. 124, 114 S.

10 Ct. 48 (1993). Consequently, the only valid aggravating

11 circumstance is the defendant's previous convictions of felonies

12 involving the use of or threat of violence to the person, under

13 Tenn. Code Ann. § 39-13-204(i)(2). In support of this aggravating

14 circumstance, the State presented evidence of four previous

15 convictions: two attempted second degree murders, one aggravated

16 robbery, and one second degree burglary. Despite the number of

17 offenses, this is not a strong circumstance because the attempted

18 second degree murder convictions and the aggravated robbery

19 conviction all arose from a single incident occurring on the same

20 date. This aggravating circumstance is further tainted because the

21 State improperly relied upon the second degree burglary conviction,

22 which did not involve the use or threat of violence as required by

23 the statute, and thus, as acknowledged by the majority, was not

24 admissible. The State has not carried the burden of showing that,

beyond a reasonable doubt, the Middlebrooks 25 error did not affect

26 the jury’s decision to impose a sentence death.

27
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1 In my view, the sentence of death is disproportionate. 

2 The victim in this case surprised two burglars in her home. She

3 was killed instantly with a single gunshot wound to the head. Any

4 murder is tragic and destructive in its own right. Nevertheless,

5 under state and federal law the death penalty is reserved for the

6 most culpable offenders. Considering the character of the

7 defendant and the circumstances of the crime, this crime was not

8 “among the worst of the bad” for whom the death penalty is

reserved. State v. Nichols 9 , 877 S.W.2d 722, 744 (Tenn. 1994),

10 Reid, J., dissenting. I would hold that the sentence of death

11 under the facts of this case is excessive and disproportionate and

12 reduce the sentence to life imprisonment. 

13

14 ____________________________

15 Reid, J.

16