# 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 County V. ) Hon. Will iam H. Inman, Ju dge STATE OF TENNESSEE, ) (Post-Co nviction- -Death Pe nalty) Appellee. )

OPINION CONCURRING IN PART; DISSENTING IN PART I agree with the major

ity's determination that the issues concerning jury instru ctions on mitigatin g circumst ances ha ve been wai ved. In my vie w, however, the state has not carried the burden of establishing, beyond a reasona ble doubt, that the Middlebrooks error was harmless . In consequence, I believ e that the petitioner is entitled to a new hearing in the penalty phase of the trial.

In 1979, the petitioner and Donal d Wayne Strouth robbed a store. The theory of the state was tha t Dicks disabled the v

ictim by striking

him on the head with a rock. Strouth t hen slit h is throat from ear to ear. Alt hough tri ed separ ately, Strouth also rece ived the d eath pen alty when th e jury dete rmined th ere were two aggravating circumstances: (1) that the murder was heinous, atrocious, and cruel; and (2) that the murder was committed during the perpetr ation of a felony. See Tenn. Code Ann. § 39-2404(i)(5) , (7) (Supp. 1978). Strouth filed a post-conviction petition claim ing Middlebrooks error. This court rul ed that the error was har mless. Donald Wayne Strouth v. State , No. 03C01-9507-CC-00195 ( Tenn. Crim. App., at Knoxville, Mar. 4, 1997), app. granted , (Tenn., Jul y 7, 1997).While the supreme2 court has granted rev

iew, no opinion has been re leased as of yet.

The state, in this case, acknow ledges that the trial cou rt erred by allowing the jury

to consider the felony murder aggravator, Tenn. Code Ann. § 39- 2404(i)(7) (Supp. 1978), as an aggravating circumstance. In State v. Howell , 868 S.W.2d 238, 261 (T enn. 1993), our supreme court ruled that reviewing courts should consider the following

factors to determine whether the error, as recogni zed in State v. Middlebrooks , 840 S.W.2d 317 (Tenn. 1992), is harmless in the context of the trial: (1) the number and strength of remaining valid

aggravating circumstances; (2) the prosecut or's argument at sentencing; (3) the evidence admitted to establish the invalid aggravator; and (4) the nature, quality

and strength of mitigating evidence. In my view, these fact

ors suggest the Middlebrooks error contributed to the jury's conclusion that the death sentence was warranted in this case.

(1) Absent the felony murder aggravating circumstance, the only valid remaining aggrav

ating circumstance is that the murder was heinous,atrocious and cruel. Tenn. Code Ann. § 39-2404( i)(5) (Supp. 1978). The pr oof shows that the victim suffered three injur ies: a cut over the skul l about one-half to three-quar ters of an inch deep; a laceration on the right ear extending

completely through the cartilage; and a slash over the neck from ear to ear about two inches deep. Thus, the evidence is sufficient, as indicated by the majority, to establish the hein ousness of the offense.1 The federal court s have so far rej ected the pre- Williams "hein ous , atroc ious , and crue l" aggrav ating circu msta nce as a legitima te factor in im position of the death penalty. See Houston v. Dutton , 50 F.3d 381, 387 (6th Cir. 19 95), cert. deni ed , 116 S. Ct. 272 (1995). 3 Of particular importance, how ever, is that the jury

was not given instructions that adequatel y defined the statutory ter ms. See Tenn. Code Ann. § 39- 2404(i)(5) (Supp. 1978). The jury was charged as follows:

"Heinous" means extremely wicked or shocking ly evil. "Atrocious" means outrageously wicked and vile. "Cruel" means designed to inflict a hi gh degree of pain, either indifference to or enjoyment of, the suf fering of others, pitiless.

*** [You may impose the death penalt y if you find the murder was] especially heinous, atrocious, or cruel in that it involved torture or

depravity of mind. In State v. Williams , 690 S.W.2d 517, 529 (Tenn. 1985), several y ears after the trial in this case, the supreme court adopted the following defin itions:

Heinous--"Grossly wicked or reprehensi ble; abominable; odious; vile." Atrocious--"Extremely evil or cruel; monstrous; exceptionally bad; abomi nable." Cruel--"Disposed to i nflict pain or suffering; causi ng suffering; painful." Torture--"The infliction of severe physical pain as a means of punishment or coercion; the experience of this; mental anguish; any method or thing that causes such pain or anguish; to inflic t with great phys ical or mental pain." Depravity--"Mor

al corruption; wick

ed or perverse act." While the trial court did instruct the jury on the meaning of hei nous, atrocious, and cruel, th ere were no definit ions provi ded for e ither tor ture or de pravity. 1

In Hartman v. State , 896 S.W.2d 94, 106 n.7 (Tenn. 1995), a case in which the supreme court det ermined that the Middlebrooks error required rev ersal and remand for resentencing, the supreme court reaso ned as follows:

While the trial court's failure to instruct the jury in accord with Williams does not by itself requi re relief be granted the petitioner under the cir cumstances of this case, the omission of the Williamsdefinition has been a factor in4 our determination that the Middlebrooks error was not harmless. The court also observed that the heinous, atrocious, and crue l aggravator "is less objective in nature [and that the court] has sought to mak e it more objective by defining its terms [in Williams ] and by requiring ... the jury be instructed as to these definitions." Id. at 104. Because the jury w as not given the complete s et of the Williamsinstructions, I woul d have found that this factor, the r elative weakness of the remaining valid aggravating circumstance, weighs agai nst a finding of harmlessness.

(2)

The majority concludes that the second factor, the nature of the prosecutor's argument at s entencing, weighs fav

orably for the state. It has determined the felony murder aggravator received little attention because, "in rebuttal argument, the prosecutor ... argued for ... application of [the] aggravator, that the murder was committed to avoid arrest or prosecution." Majority opinion, slip op. at 13. The final argument of the state included the following: Who is responsible for the killing of Ji mmy Keegan? Well, when two (2) people set out t ogether on a joint venture to rob and to kil l, they are guilty of murder in the first degree. ... Who planned this thing out? Who from the very beginning was the primary moving factor in this case? Well, and then the robbery went down, the robbery was planned. Folks, let's face it, ther e's no questions about that. You' ve hashed all this ov

er in the jury room when you decided the first phase. This was a planned out thing, it wa sn't an accident, it wa

sn't ... spur of the moment... . [Dicks] pointed out this is the [ victim] we're going to r

ob. He had seen that money. He's the one that had to have [the vi ctim] killed because [the victim] had done business with him, not Strouth. [Dicks] was the beneficiary of thi s killing. ... If Di cks was to participate in the robbery of this man, then this man would have to die. There was no other logical way that this robbery could hav

e been done with any hope of success in not being appr ehended unless it was planne d that they were goin g to kill him in cold blood. ... Death was always the o nly alternative that [Dicks] ever had for5 [the victim], from the moment that the wheels of th is deadly thing w[ere] put into motion, death was the only alternative that this man had in order to make that endeavor successful. ... J effrey Dicks knew w hat the punishment for armed robbery w as. He said, I'm not going to serve life for a sum of money. ... Armed robbery does carry life in thi s State, so what was there to lose ... the only reason they had not to kill the victi m would be that there is something else [additional punishment] if you kill the victim. ... If you say life in your verdict, you're going to say it makes

good sense ... to kill the victims of rape and robbery because you don't have anything else to fear. If you say by your verdict death, you'r

e saying that's stupid to kill y

our victim, that makes bad sense, and I'm asking you to say that it makes bad sense to kill your victim in a rape, armed robbery, the cases that are enumerated right here in this book that will be in His Honor's charge. "If the murde r was committed whil e the defendant was engaged in commit ting, or was an accomplice in the commission of ... robbery." ... Without the use of this punishment, we ar e extending an open invitation to every

potential robber and rapist to go ahead and kill their victim .... Well, I think that ... [another] factor[] in this case ... w as this murder committed for the purpose of avoiding or i nterfering with or pr eventing the lawful arrest or pros

ecution of the Defendant. ... That aggravating ci rcumstance is there wi thout any doubt. Aren't the people who ... r un the little stores ... ar en't they entitled to the best protecti on that you can give them from armed robbers who wi ll kill them. ... By telling others if they kill their victims in a robbery, that there's another reason besides the fear of going to the penitentiary that ought t o keep them from doing this, and that fear is [getting] the death penalty. By your verdic t, ladies and gentlemen, you w ill let the potential committers of robbery, rape and the other enumerated crimes know that if they do that, the death penalty aw aits because not to give the death penalty is to tell the m that it doesn't wait. (Emphasis added).

While portions of this argumen t do, in fact, relate to the killing to avoid arrest or prosecution aggravating circumstance, parts may also be c onstrued to support the felony murder ag gravator. The prosecuto r specifically referr ed to the enumerated crimes listed in the felony murder statute. At o ne point, he quoted a substantial part of the felony mur der statute. His final arg ument covers several6 pages of transcript. There w as substantially more emphas is on the prohibited perpetration of a felony circumstance than the heinous, atrocio us, or cruel circumstance, which w as hardly mentioned. Because the jury determined the existence of the felony murder aggravator and rej ected the avoiding pros ecution aggravator, I thin k it is reasonable to infer that the jury interpret ed the argument of the state as in support of the felony murder aggravating

circumstance.

(3) The third factor, the considerati on of the amount of evidence admitted to establish the invali d aggravator, w eighs in favor of the state. There was no additional evidence admitted at the penalty phase of the trial to establish the felony murder aggravating

circumstance. So, this factor should be considered as an indication that the Middlebrooks error was, in fact, har mless.

(4) In my view, the fourth

factor, the strength and qual ity of the mitigating evidence, should be giv en neutral application. The natur e, quality, and streng

th of the mitigating evid ence neither supports nor mil itates against a finding o f harmlessness. The defendant argued th e following mitigati ng circumstances:

(1) no significant cr

iminal history; (2) the murder was committed while under the influence of extreme mental disturbance; (3) the defendant played a minor role; (4) the defendant acted under the domination of another person; (5) the defendant was young at the time; and (6) the defendant had a mental defect w hich impaired his ability to conform hi s conduct to the requirements of the law.7 A psychologist offered testi mony that the defendant, who w as twenty years old when he committed the crime, was passive, dependent, and weak. He concluded that the defendant used repres sion and denial as defense mechanisms. There was evidence that the defendant was a passive foll ower who usually sought out dominating people. While he had no convi ctions for violent behav ior, other proof established that he was "wanted" at the time of the mu rder for writing bad checks totaling over $14,000.

In my opinion, the mitigating evidence is entitled to some weight. Because the defendant was young and did not have a prior r ecord of committing violent crimes, there was a credible basis for the argument that a life sentence , as opposed to the death penalty, w ould have been a reasonable alt ernative. But the mitigating evidence

was not overwhel ming. The jury could hav e reasonably rejected the def ense argu ment fo r lenienc y.

In assessing whether the Middlebrooks error qualified as harml ess, I would have concluded that two factors weigh for the defendant, one weighs for the state, and one is neutral. While a close case, I believe that the trial court should have granted a new sentencing hearing based upon the supreme court rulings in Middlebrooks and Howell . My primary conc ern relates to the weaknes s of the charge relating to the heinous atrocious and cruel aggravating circumstance. It is worth pointing out that

the state, under our exis ting law, bears the b urden of demonstrating that the error was harmless beyond a doubt. In my opinion, the stat e has been unable to meet that standard.

__________________________________ Gary R. Wad e, Judge