FILED

April 13, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

STATE OF TENNESSEE ) FOR PUBLICATION

)

Appellee ) Filed:

)

v. ) Shelby County

)

PERRY A. CRIBBS ) Hon. W. Fred Axley, Judge

)

Appellant ) S. Ct. No. 02-S-01-9703-CR-00014

CONCURRING AND DISSENTING OPINION

I fully concur in the majority holding that Cribbs’

conviction for first-degree murder should be affirmed. I concur

also in the conclusion reached by Justice Reid that the

Middlebrooks error in this case more probably than not affected the

sentence. I write, however, to express my separate view as to

punishment in this case and, at the same time, to summarize the

manner in which I have addressed Middlebrooks errors in previous

cases.

In State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992),

cert. dismissed, 510 U.S. 124, 114 S. Ct. 651, 126 L. Ed.2d 555

(1993), this Court determined that it is constitutionally

permissible to impose the death penalty for felony-murder under

Tennessee’s death penalty provisions. However, the Court further

held that the aggravating circumstance set forth in Tenn. Code Ann.
1The death penalty provisions at Tenn. Code Ann. § 39-2-203

have been repealed; the aggravating circumstances are now codified

at Tenn. Code Ann. § 39-13-204 (1991).

2

§ 39-2-203(i)(7)(1982),1 that the defendant was engaged in

committing a felony, cannot be used as the sole support for

imposition of the death penalty when the defendant’s conviction for

felony-murder is based on the same felony. The reasoning is that

the (i)(7) aggravating circumstance does not sufficiently narrow

the population of death-eligible felony-murder defendants under the

Eighth Amendment to the U.S. Constitution and Art. I, § 16 of the

Tennessee Constitution, because (i)(7) essentially duplicates the

elements of the offense of felony- murder. Id. at 323. After the

application of the (i)(7) aggravating circumstance was found

unconstitutional in that case, the sole aggravating circumstance

remaining to support imposition of the death penalty was that the

murder was heinous, atrocious, or cruel in that it involved

torture, under Tenn. Code Ann. § 39-2-203(i)(5)(1982). Although

the (i)(5) aggravating circumstance was amply supported by the

evidence, the Court was unable to conclude that the constitutional

error was harmless beyond a reasonable doubt, and the Court

accordingly remanded for a resentencing hearing. Id.

In the case under review, the Middlebrooks error occurred

because the jury relied on the aggravating circumstance found in

Tenn. Code Ann. § 39-13-204(i)(7)(1991): the murder was committed

while the defendant was engaged in committing a burglary. The

circumstances of the burglary had already been utilized to convict

Cribbs of felony-murder, and the other two first-degree murder

verdicts had been stricken by the trial court. As a result, the
3

class of death-eligible defendants was not sufficiently narrowed,

as is required by the United States and Tennessee Constitutions. 

With the now invalidated (i)(7) aggravating circumstance,

only one other aggravating circumstance is left to support Cribbs’

death sentence: the defendant was previously convicted of one or

more felonies, the statutory elements of which involve the use of

violence to the person. Tenn. Code Ann. § 39-13-204(i)(2) (1991).

In support of this aggravating circumstance, the State adduced

proof regarding four prior convictions--two attempted second-degree

murder convictions, one aggravated robbery conviction, and one

second-degree burglary conviction. The State concedes that it

mistakenly admitted evidence of the prior burglary conviction,

which does not involve violence. Standing alone, this error is a

minor one. In addition, however, it is important to note that each

of the remaining three prior convictions arose from the same

incident. Consequently, the number of prior convictions submitted

to the jury--four--is extremely misleading. 

Because the Middlebrooks error is combined with

misleading evidence regarding the only remaining aggravating

circumstance, I am unable to find that the jury would have reached

the same conclusion had the improper evidence not been submitted.

Although Cribbs may not have offered persuasive mitigating

evidence, and the prosecution may not have emphasized or adduced

additional proof of the invalid aggravating circumstance, I cannot

conclude that the cumulative effect of these errors was harmless

beyond a reasonable doubt. Particularly in light of my previous
4

decisions on this issue, I am convinced that this case must be

remanded for a new sentencing hearing. 

In previous death penalty cases involving similar errors,

I have consistently expressed that the cause should be remanded for

a new sentencing hearing. In State v. Walker, 910 S.W.2d 381, 398

(Tenn. 1995) cert. denied. ___ U.S. ___, 117 S. Ct. 88, 136 L.

Ed.2d 45 (1996), I joined in the Court’s unanimous holding

remanding the case for a new sentencing hearing. The defendant had

been convicted of felony-murder, in the shooting death of a woman

in the course of a robbery. The jury based its imposition of the

death sentence on two aggravating circumstances: (1) the defendant

had previously been convicted of a violent felony, voluntary

manslaughter; and (2) the murder was committed in the course of a

robbery. Tenn. Code Ann. § 39-2-203(i)(2) and (i)(7)(1982). The

second aggravating circumstance was invalid under Middlebrooks, and

the Court concluded that there was no way of knowing whether the

jury would have imposed the death penalty, had it not been

permitted to consider the improper evidence. Id. 

In Hartman v. State, 896 S.W.2d 94, 104 (Tenn. 1995), a

post-conviction case, the defendant had been convicted of murder in

the perpetration of a kidnaping. An inmate testified that the

defendant had bragged to him about raping the victim before and

after he killed her. I wrote for the majority of the Court,

retroactively applying Middlebrooks and remanding the case for

resentencing because the Middlebrooks error invalidated the

aggravating circumstance that the murder was committed during the

commission of a kidnaping. In addition, the jury had relied on two
5

valid aggravating circumstances: (1) the murder was especially

heinous, atrocious, or cruel in that it involved torture or

depravity of mind; and (2) the murder was committed by the

defendant during his escape from lawful confinement. Tenn. Code

Ann. § 39-2-203(i)(5) and (i)(8)(1982).

We noted in Hartman that several facts supported a

finding of harmless error. First, no additional evidence was

introduced in support of the invalid aggravating circumstance that

the murder was committed during a kidnaping. Additionally, the

prosecutor did not emphasize the invalid aggravating circumstance

in his argument, and there was little mitigating evidence.

Moreover, the Court found that the “escapee” aggravating

circumstance was both objective and uncontradicted. Nevertheless,

because the “heinous, atrocious or cruel” aggravating circumstance

was less objective and the credibility of the testimony supporting

it was highly contested, the Court could not conclude that the

sentence would have been the same had the jury accorded no weight

to the invalid aggravator. Id. at 103-05. 

Finally, in State v. Bigbee, 885 S.W.2d 797, 800 (Tenn.

1994), I joined the majority’s conclusion that the case be remanded

for a new sentencing hearing. The defendant had been convicted of

felony-murder in the beating and shooting death of a convenience

store clerk during a robbery attempt. The jury found two

aggravating circumstances to support imposition of the death

sentence: (1) the defendant was previously convicted of one or

more violent felonies; and (2) the murder was committed while the

defendant was attempting to commit a robbery. Tenn. Code Ann.
6

§ 39-13-203(i)(2) and (i)(7)(1982). The second aggravating

circumstance was invalid under Middlebrooks. Additionally,

irrelevant evidence was admitted regarding the defendant’s prior

conviction of felony-murder. The jury heard evidence concerning:

the life sentence the defendant had received when he was previously

convicted, the facts surrounding the previous murder, the character

of the previous victim, and the impact the murder had on the

previous victim’s family. Further, the State improperly emphasized

the facts of the prior murder and made an appeal to vengeance in

its argument. The Court held that these cumulative errors were not

harmless beyond a reasonable doubt and remanded for resentencing.

Id. at 809-16. 

In two cases, I joined the majority in finding a

Middlebrooks error harmless. In the first, State v. Boyd, 959

S.W.2d 557 (Tenn. 1998), a post-conviction case, the defendant was

convicted of felony-murder stemming from the shooting death of a

person during a robbery. After we retroactively applied

Middlebrooks and invalidated the (i)(7) aggravating circumstance,

only one other aggravating circumstance, a prior conviction for

second-degree murder, supported the death sentence. Tenn. Code

Ann. § 39-2-203(i)(2)(1982). Because the prosecutor did not

emphasize or bring additional evidence of the invalid aggravating

circumstance, and because the mitigating evidence was weak,

consisting only of the defendant’s testimony, the majority found

the error harmless beyond a reasonable doubt.

In the second, State v. Hines, 919 S.W.2d 573 (Tenn.

1995) cert. denied, ___ U.S. ___, 117 S. Ct. 133, 136 L. Ed.2d 82
7

(1996), I joined in the conclusion that the Middlebrooks error was

harmless because the (i)(7) aggravating circumstance was supported

by three different felonies: larceny, robbery, and rape. Thus,

there was only a partial duplication with the felony-murder

conviction, which was based solely on the robbery. Additionally,

two other aggravating circumstances supported the death sentence.

Id. at 583-84. 

In the case under review, I conclude that a remand is

appropriate. With the exception of Boyd, when error leaves only a

single aggravating circumstance remaining, I have been unwilling to

hold that the jury’s decision was unaffected by the error.

Moreover, when the Middlebrooks error is combined with at least one

additional error, I have also been unwilling to hold the jury’s

decision was unaffected. I distinguish Boyd from the instant case:

in Boyd the Middlebrooks error was the sole sentencing problem.

Here, not only was the Middlebrooks error misleading to the jury,

but also the number of prior convictions submitted to the jury was

misleading.

In sum, I agree with the majority that the first-degree

murder conviction must be affirmed. However, because I find that

the submission to the jury of an invalid aggravating circumstance

and an invalid prior conviction is not harmless beyond a reasonable

doubt, I respectfully dissent. I would remand this cause to the

trial court for a new sentencing hearing. 

_________________________________

ADOLPHO A. BIRCH, JR., Justice