# FILED
June 28, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE SUPREME COUR T OF TENNESSEE AT KNOXVILLE

FOR PUBLICA

TION DONALD WAYNE STROUTH, ) ) Filed: June 28, 1999 Appellant, ) ) SULLIVAN CO UNTY V. ) ) Hon. Frank L. Slaughter, STATE OF TENNESSEE, ) Judge ) Appellee. ) ) Supreme Court ) No. 03S01-9707-CC-00079
For the Appellant: For the Appellee: Mark E. Oli ve Paul G. Summers 321 W. Jefferson St. Attorney General & Repor ter Tallahassee, FL 32301 Michael E. Moore Solicitor General Gordon W. Smith Associate Solicitor Gener al Nashville, Tennessee H. Greeley Wells, Jr. District Attorney General Second Judicial District Edward E. Wilson Assistant District A

ttorney P.O. Box 526 Blountville, TN 37617



## O P I N I O N

AFFIRMED. DROWOTA, J.-2- In this post conviction capital appeal, we must determine whether the jury’s reliance upon the invali d felony murder aggrav ating circumstance as su pport for imposition of the death penalty i s harmless error beyo nd a reasonable doubt under the analysis adopted i n State v. Howell , 868 S.W.2d 238 (Tenn. 1993). Both the trial court and the C ourt of Criminal Appeals concluded that the error was harmless and dismissed the peti tion for post conviction r elief. After fully revi ewing the record, we conclude that the sentence would have been the same ha d the jury given no weight to the invalid felony mur der aggravating circumstance and therefore affirm the lower court s’ dismissal of the petition.

FACTUAL BA

CKGROUND On February 15, 1978, James K eegan, the sole proprietor of a used clothing store in dow

ntown Kingsport, Tennessee, was murdered. Keegan’s body was found on the floor of his store. His pockets had been em ptied of his billfold and a large roll of money h e habitually carried, and several items w ere missing from the store. Keegan had sustai ned a severe blow to th e head with a blunt object and deep lacerati ons on his sc alp and ear. Keegan’s de ath resulted from a deep laceration which ex tended the entire width of his neck. Keegan’s throat had been slit literally

from ear to ear. The laceration was approximately

three inches deep and completely severed both the large muscle of Keegan’s neck an d his jugular vein. Acc

ording to the medical ex aminer, Keegan had been unconscious from the blow to his head w hen his throat had been cut, and Keeg an had bled to death from the neck wound within fifteen minutes.-3- Donald Wayne Strouth and Jeffrey Stuart Dic ks had been seen in the area of the store around the time of the murder , and they were event ually arrested and charged with the robbi ng and killing of Keegan.The State sought the death penalty with respec

t to both Strouth and Dicks. Each made a pre-trial statement to police acknowledgi ng his presence at the scen e of the crime, but accusing t he other of killing Keegan. For this reason, Strouth and Dicks were tried separately to avoid the poss ibility of violating Bruton v. United States , 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
The proof introduced at Strouth’s t rial demonstrated that Keegan’ s body was discovered by

his wife around noon. Poli ce were called to the s cene of the crime and discovered tw o sets of footprints outside the back entrance of the store. Police also discovered that an electric heater had been turned on inside th e store and a fuel-soaked towel had been pl aced across the heater. Testimony indicated that Keegan did not use electric heaters and had them in the store only as resale items. Dicks and his girlfriend, Betty Merrit, lived in an apartment near the store owned by Keegan, and were often visited by their friends, Strouth and his girlfriend, Barbara Dav is. About a week before the mur der, Dicks and Merrit went to Keegan’s store and sold him some clothes. According to Merrit, Keegan paid them from a large roll of cash he kept in his front pants pocke t. On the day before the murder, an employee of a nearby dry cleaners testified that he had seen Strouth and Dicks standing and talking beside the cl eaners, near Keegan’s stor e. Two other eyewitnesses saw both Strouth and Dicks in the area of Keegan’s store on the morning of the murder.1 A more complete recitation of the facts is contained in this Cour t’s opinion on direct appeal. See State v. Strouth , 620 S.W.2d 467 (Te nn. 1981). -4- Evidence accumulated by the police and introduced at Str outh’s trial tended to show that Strouth had been th e person who actually cut Keegan’s throat. Witnesses testified to seeing blood on Strouth’s hands and clothes shortl y after the murder. Stro uth’s girlfriend told the jury that s he had given Strou th a large hawkbill knife as a pres ent sometime before the murder, and she s aid that Strouth had admitted to the robbery, and stated, “Jeff froze on me.” The medical examiner testified that the haw k-bill knife owned by

Strouth was consistent with and could have been used to slit Keegan’s throat. The medical examin er also testified that the blood spots on th e pants that Strouth had worn at the time of the murder were consistent with the theory that S trouth had stood over the v ictim and cut his throat. 1
Upon hearing the proof, the jur y found Strouth guilty

of murder in the perpetration of a robbery and robbery with a deadl y weapon. In the subseq uent sentencing hearing, the S tate relied upon the followi ng six aggrav ating circumstances: (1) the defendant was previously convicted of one or more felonies, other than the present c harge, which inv

olved the use or threat of violence to the person; ( 2) the defendant knowingly created a great risk of death to two or more persons, other than the victim murdered, during his act of murder; (3) the defendant committed murder for r emuneration or the promise of remuneration; (4) the murder was especially heinous, atrocious, or cruel in that it involved torture or

depravity of mind; (5)

the murder was committed for the purpose of avoiding, inter fering with, or prev

enting a lawful arrest

or prosecution of2 Tenn. Code Ann. § 39-2404(i)(5) & (i)(7) (Supp. 1978). -5- the defendant or another; and (6) the mur der was committed whi le the defendant was engaged in committi ng or was an accomplic e in the commission of, or wa s attempting to commit . . . robbe ry. Tenn. Code Ann. § 39-2404( i)(2) - (i)(7) (Supp. 1978).
Little proof was offered by either the State or the defendant at the sentencing hearing. The St ate offered proof to establish that the defendant ha d been previously conv

icted of a felony crime agai nst nature in North Carol ina. The defense called Officer Jim Keesling , who had taken two stat ements from Strouth on March 8 and 9, 1978. Officer Keesl ing read the statements into the record for the jury’s consideration. In the first statement Strouth denied th at he had been in Kingsport on the day of the mur der, and in the second statement, St routh claimed that Dicks and a third per son had committed the robbery an d murder while he waited in the car. The defense at tempted to call a minister and sociology teacher to testify about the Christ ian philosophy on the death penal ty and about the deterrent effect of the death penalty, but , the trial court disal lowed the testimony after a jury-out hearing

.
The jury delibera ted for appro ximately seven hours before return ing a verdict. Finding that the State had proven tw o aggravating ci rcumstances beyond a reasonable doubt, (1) the murder was especially heinous, atrocious or cruel in that it involved tor

ture or depravity o

f mind; and (2) the murder was committed while the d efenda nt was enga ged in com mitting a robbery, 2 and also finding that3 In his separate trial, c o-defendant Dicks was als o convicted of first degree felony murder and sentenced to death by electrocution. Di cks’ conviction and death sentence were also affirmed by this Court on direct appeal

. State v. Dicks , 615 S.W.2d 126 (Tenn . 1981).

4 This Court later held in State v. Blackburn , 694 S.W.2d 934 (Tenn. 1985), that dual convictions for both felony murder and the underlying felony do not violate do uble jeopardy principles. -6- there were no mitigati ng circumstances sufficientl y substantial to outw

eigh the aggravating ci rcumstances, the jury s entenced Strouth to death by electrocution.
On direct appeal to this Co urt, Strouth’s first deg ree felony murder conviction and death sentence were affirmed. State v. Strouth , 620 S.W.2d 467 (Tenn. 1981), cert. denied , 455 U.S. 983, 102 S.Ct. 1491, 71 L.Ed.2d 692 (1982). 3 However, this Cou rt vacated Strouth’s ar med robbery convicti on holding that dual convictions for felony mur der and the underlying fel ony violated princi ples of double je opardy. 4
Strouth filed his first post-conviction petition in 1982, alleging numerous constitutional violati ons. After a lengthy ev identiary hearing, the trial court denied relief. The Court of Criminal Appeals affirmed, and this Court declined to review the case. Strouth v. State , 755 S.W.2d 819 (Tenn. Crim. App. 1986), perm. app. denied (Tenn. 1987).
Strouth’s current post-c onviction petition w

as filed on December 30, 1993. Among the claims raised, St routh asserted that his death s entence should be set aside under State v. Middlebrooks , 840 S.W.2d 317 (Tenn. 1992). The trial court held an evidentiary hea ring and concluded that the Middlebrooks error was5 The post conviction statute o f limitations on this case ex pired on July 1, 1989. Tenn. Code Ann. § 40-30-102 (repeal ed 1995); Abston v. State , 749 S.W.2d 487 (Tenn. Crim. App. 1988). How ever, Middlebrooks announced a new constitutional rule which is to be applied r etroactively. Barber v. State , 889 S.W.2d 185, 186 (Tenn. 1994). Accordingly, with regard to Strouth’s Middlebrooks claim, which arose after the expiration of the statute of li mitations, the present petiti on was timely filed under the rule announced in Burford v. State , 845 S.W.2d 204 (Tenn. 1992); see also Sands v. State , 903 S.W.2d 297 (Te nn. 1995).

6 Following oral ar

gument, this Court ordered supplemental briefing on three additional issues. Upon c onsideration of the supplemental br iefs, particularly the thorough brief filed by and th rough counsel for Strouth, the Court is now conv

inced that Strouth was convi cted solely on the basis of felony murder. Therefore, we deem it unnecessary to address in the body of this opinion the issues upon which supplemental briefing was ordered.
-7- harmless beyond a reasonable doubt under the analysis adopt ed by this Court in Howell , supra . The trial court held that t he remaining claims w ere either barred by the statute of limitations or w aived. 5 The Court of Criminal Appeals affirmed the trial court’s dismis

sal of the petition, also finding the Middlebrooks error harmless beyond a reasonable doubt.
Thereafter, we granted Strouth’s appeal limited to the is sue of whether the lower courts’ err

ed in finding the Middlebrooks error harmless beyond a reasonable doubt. 6 For the reasons that follow , we affirm the judgment of the Court of Criminal Appeals which upheld the trial court’s dismissal of the post conviction petition.

HARMLESS ERROR ANALYSIS7 The author of this opinion and retir ed Justice O’Brien diss ented from the holding in Middlebrooks . 840 S.W.2d at 347-50 (Drowota, J., dissenting).

8 Though the decision in Middlebrooks discussed federal law, this Court has emphasized in subsequent ca ses that Middlebrooks was based independently upon Article I, § 16 of the Tennessee Cons titution. State v. Bigbee , 885 S.W.2d 797, 816 (Tenn. 1994). -8- In Middlebrooks , a majority 7 of this Court determined that w hen a defendant is convicted of first deg ree murder solely on the basis of felony murder, the felony murder aggravating circumstance may not be used as a basis to support imposition of the death penalty because the aggravating circumstance m erely duplicates the elements of the underl ying offense. As such, the felony murder aggravating circumstance fails to sufficiently narrow the class of death-eligible murderers and violates A rticle I, § 16 of the Tennessee Cons titution. 8 840 S.W.2d at 346. We held that a sentence of death may not be imposed for a conviction of first degree felony murder unless it is based upon at l east one of the other statutory aggrav

ating circumstances. Id. at 346-47. Because the rule annou nced in Middlebrooks enhanced the integrity and reliability of the sentencing process, we have applied the rul e retroactively. Boyd v. State , 959 S.W.2d 557, 560 (Tenn. 1998); Barber , 889 S.W.2d at 186.
In this case, at the guilt phase of the trial, Strouth was convicted of the first degree felony murder of James Keegan. In the sentencing phase of the t rial, the jury based the sentence of death up on two aggravati ng circumstances, one of which was that the crime was committed while the defendant was engaged in committing the felony of robbery. Accordingly, the jury’s reliance upon the felony murder aggravating circumstance in this case contravenes the rule adopted in Middlebrooks

.-9- However, error under Middlebrooks does not result in automatic reversal; such error is subject to harmless error analy sis. A comprehensive anal ytical framework to govern harmless error analysis was first announced by this Court in State v. Howell , 868 S.W.2d 238 (Tenn. 1993). In that case we hel d that a Middlebrooks error will be deemed harmless if a review ing court concludes “beyond a reasonable doubt that the sentence would have been the same had the jury given no weight to the invalid felony murder aggravating factor.” Id. at 262. Our holding was premised upon decisions of the United States Suprem e Court which had directed that i f a jury considers an in valid or improper ag gravating circumstance, either “co nstitutional harmless err or analysis or rew

eighing at the trial or appellate lev

el suffices to guarantee that the defendant received an individualized sentence.” Stringer v. Black , 503 U.S. 222, 232, 112 S.Ct. 1130, 1137, 117 L.Ed.2d 367 (1992); see also Richmond v. Lewis , 506 U.S. 40, 113 S.Ct. 528, 121 L.Ed.2d 411 (1992); Clemons v. Mississ ippi , 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990).

In Howell , we stressed the importance of applying a harmless error analysis which guarantees the precision that individualized sentencing demands and which also provides a principled explanation for our dec ision in each case. Id. at 260-61; Boyd , 959 S.W.2d at 560. T o aid reviewing courts in achieving these twin objectives, we enumera ted several nonexclus ive factors which s hould guide the harmless error an alysis. The fact ors include, but are not limited t o, the following: (1) the number and strength o f the remaining valid ag gravating circumstances; (2) the extent to which the prosecutor emphasizes the i nvalid aggravating circumstance during cl osing argument; (3) the evidence admitted to establi sh the-10-

invalid aggrav

ating circumstance; and ( 4) the nature, quality , and strength of the mitigating evidence

. Howell , 868 S.W.2d at 260-61 . If a reviewing court is convinced beyond a rea sonable doubt

that the jur

y would h ave imposed

the same sentence had it given no w eight to the invalid a

ggravating ci rcumstance, the error is harmless and the sentence may be affirmed. Id. at 262. Applying the analysis in this cases leads us to conclude that the error is harmless and does not require resentencing.
We first consider the strength of the sing le remaining valid a ggravating circumstance -- the murder was especially heinous, atrocious or cruel in that it involved torture or

depravity of mind. Tenn. Co de Ann. § 39-2404(i)(5) (Supp. 1978). Strouth asserts that this aggravating circumstance is weak and lacks objective reliabili

ty. In support of his arg ument, Strouth points out that Keeg an was unconscious when his throat was cut and th erefore did not experience pai n. Strouth also emphasizes that the jury instructi ons included only the lang uage of the statutory aggrav

ating circumstance and did not include the definitions announced later by this C ourt in State v. Willia ms , 690 S.W.2d 517, 529-532 (Tenn. 1985). The State responds that this Court has repeatedly upheld the constitutionality of the ( i)(5) aggravating circumstance, and has never held that the Williamsdefinitions are constitution ally required. The St ate emphasizes that a victim need not be consciou s to support a finding of deprav ity of mind and contends that the proof in this r ecord overwhelming ly establishes the appli cability and strength of the aggrav ating circumstance. We agree.9 As support for his contention that the (i)(5) aggravating circumstance is

unconstitutionally vague without further definition Strouth relies upon the Sixth Circuit’s decision in Houston v. Dutton , 50 F.3d 381 (6th Cir. 1995) . In our view, the Houston decision on this issue i s not particularly persuasive considerin g that the State conceded the “instruction to be erroneous in this case.” Id. at 387. In any event, this Court is not bound by deci sions of the federal district and circuit courts. We are bound only by decisions of the United States Supreme Court. State v. McKay , 680 S.W.2d 447, 450 (Tenn.1984). This i ssue has been asserted in

the United S

tates Supreme Court by many inmates of Tenness ee’s death row, yet the Supreme Court has never gr an te d r ev iew a nd he ld th e ( i) (5 ) a gg ra va ti ngci rc um st an ce

un co nsti tu ti on al . We realize that the United States Supreme Court’s denial of certiorari is not a r

uling on the merits. Teague v. Lane , 489 U.S. 288, 296, 109 S.Ct. 1060, 1067, 103 L.Ed.2d 334 (1989). However, until the United States Supre me Court renders an opinion hol ding the aggravating c

ircumstance unconstitutional , we will conti nue to adhere to the prior decisions of this Court w hich have upheld the constit utional validity o f the aggravating -11- As noted by the State, this C ourt has repeatedly upheld the constitutional validity of the (i) (5) aggravating circumstance. See e.g. State v. Blanton , 975 S.W.2d 269, 280 (Tenn. 1998); Hartman v. State , 896 S.W.2d 94, 105 (Tenn. 1995); State v. Black , 815 S.W.2d 166, 181 (Tenn. 1991); State v. Thompson , 768 S.W.2d 239, 252 (Tenn. 1989); State v. Barber , 753 S.W.2d 659, 670 (Tenn. 1988). In addition, as the State points out, we have spec ifically held that the Williams instruction requir ement is not to be retroactiv ely applied. State v. O’Guinn , 709 S.W.2d 561, 568 (Tenn. 1986). Finally, w e have never held that the Williams definitions are constitution ally required. Hartman , 896 S.W.2d at 105. In fact, in Thompson , we distinguished the language of Tennessee’s (i) (5) aggravating ci rcumstance from the language hel d to be unconstitutionally vague by the United States Supreme C ourt in Godfrey v. Georgia , 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), a nd Maynard v. Cartwright , 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). We pointed out that, unlike those cases, the “heinous, atrocious, or c ruel” language in the Tennessee statute does not stand alone, but, instead, is modified and limited by the phrase, “ in that it involved torture or depravity of mind.” Thompson , 768 S.W.2d at 252. 9 In conductingcircumstance.
10 In Hartman , 896 S.W.2d at 103-104, this Court considered the fact that the jury was not gi

ven the Williams definitions as part of its Howell analysis. Also considered significant i n that case was the fact that th e (i)(5) aggrav ating circumstance was based almost entirely upon the testimony of a witness whose credibility had been “

seriously contested.”

Though the Williams definitions were not given in this case, unlike Hartman , the (i)(5) aggr avating circumstance is based upon objective physical

evidence and testimonial ev idence which is not ser iously disputed. -12- Howell harmless error rev iew, we have cons idered whether the Williams instruct ions were p rovided to the jury. 10 We necessarily must consider the evidence and instructions remaining after elimination of the invalid aggrav

ating circumst ance in or der to ans wer the inqu iry posed b y Howell --whether beyond a reasonable doubt the sentence w ould have been the same had the jur y given no weight to the inval id aggravating circumstance. The absence of the Williams definitions has never been hel d to limit the significanc e of the (i)(5) aggra

vating circumstance in a Howell analysis.
Though the (i)(5) agg ravating circumstan ce is more subjective than other aggravating ci rcumstances in the sense that i t requires careful consi deration of the facts of each murder, this subjecti vity does not negate i

ts strength in a Howell analysis if, as in this case, the evidence in the record presented to the jury overwhelmingly

established the applicabil ity of the aggravat ing circumstance.

In this case , the vict im was appr oximately

seventy (

70) years old at the ti me of the murder. The medical examiner foun d that Keegan had suffered a skull fracture so seve re that the skull had been push ed in toward the bra in, causing a laceration on the frontal lobe of the brain. This injury br uised the outer surface of the skin and was two inches in diameter. A blunt instrument, possibly a rock,-13-

likely caused this w

ound and rendered the victim unconscious. Keegan also had a jagged laceration over the right portion of his skull which penetrated the full thickness of the scalp throug h to the bone. This injury was one-half to threequarters of an inch deep. Keegan also had a laceration across his right ear which transect ed and cu t through the carti lage. Bot h of the se wounds were made by a very sharp instrument. The fatal injury was a laceration of the throat which extended from ear to ear and w hich was two and one- half to three inches in depth. As one law enforcement official des cribed this wound, the “ victim’s throat w

as cut; head almost decapitated.” The medical examiner testified that thi s fatal wound was inflicted when the victim was ly ing unconscious on the floor. The cruelty with which the perpetrators attacked this elderly man and showed no mercy toward him after he was already unc onscious and helpless demonstr ates depravity of mind. See State v. Zagorski , 701 S.W.2d 808, 814 (Tenn. 1985) (holding that i nfliction of gratuitous violence and needless mutilation of victims who were already helpless evinced depravity

of mind); State v. Van Tran , 864 S.W.2d 465 (Tenn. 1993) (holding that depravity of mind established by p roof that the defendant shot the seventy-four-year

-old victim as she l ay injured and helpless on the floor).
In specifically rejec

ting Strouth’s vag ueness challenge to the agg ravating circumstance in an opinion den ying his petition to

rehear this Court’s opi nion on direct appeal, we descr ibed the aggravating

circumstance and the proof supporting it as follows:

This Court has consistentl y held that this agg ravating circum stance i s direc

ted to th e consci enceles s or pit iless a

ct of a defendant which is unnecessarily torturous to the victim, or evinces a depraved state of mind; and that the d epraved state of mind or the torture inflicted must meet the te st of heinous, atrocious, or c ruel. See State v. Pritchett , 621 S.W.2d 127 (Tenn. 1981); State v.-14- Groseclose , et al., 615 S.W.2d 142 (Tenn. 1981); State v. Dicks , 615 S.W.2d 126 (Tenn. 1981). This holding or constr uction, in our opinion , meets t he test o f Godfrey v. Georgia , supra , and also that voiced in Proffitt v. Florida , 428 U.S. 242, 255-56, 96 S.Ct. 2960, 2968, 49 L.Ed.2d 913 (1976). [Strouth] and his companion-in-crime Jeffrey Dicks, struck James Keegan on the head with a rock, rendering him unc onscious. While Mr. Keegan was in an unconscious state, [Strou th] and his companion slit Mr. Keegan’s throat and left him to bleed to de ath - a cold-blooded, intentional, conscienceless and pitiless act. An act which can only be char acterized as heinous and at rocious, and one which evinces a depr

aved state of mind and justifies the imposition of the death penalty, no mitigat ing circumstances being shown.
Contrary to Strouth’s assertion, the remaining valid aggravating circumstance in this case is strong. It is supported by an abundanc e of proof which was prese nted to the jury. Given the qualitative nature of this aggravating circumstance and the high quantum of proof supporting , we conclude that it car ried substantial weig ht with the ju ry.

Next, we must conside r the extent to which the prosecutor emphasized the invalid felony murder a ggravating ci rcumstance in his closin g argument. Our review of the record does not indicate that the distr ict attorney placed any

unusual emphasis on this aggrav ating circumstance. The cl osing argument first focused upon the fact that little or no ev idence of mitigating cir

cumstances had been presented. Next the prosecutor argued each of the six aggravating ci rcumstances upon which the State was relying at the sentenc

ing hearing. The argument relating to the felony mur der aggravating circumstance was minimal . The prosecutor merely remi nded the jurors that by findi ng the defendant guilty of the offense, they had also found the felony murd er aggravating circumstance.-15- In his brief, Strouth quotes extensively from the district attorney’s argument in an attempt to demonstrate undue emphasi s. However, as the Court of Criminal Appeals held, an objective reading of these excerpts reveals that the prosecut ion was trying to emphasize an aggravating circumstance that the jury eventually rejected, that the murder w as committed to avoid arres t or prosecution, i.e. a witness killing. Therefore, the prosecutor did not unduly emphasize the invalid aggravating ci rcumstance in closing ar gument. In fact, the emphasis place d upon this aggravating circumstance was minimal.

Next, we note that no mater ially inaccurate or

inadmissible evidence w as admitted to establish the agg ravating circumstan ce. The evidence relied upon to establish the aggravating circumstance had been properly admitted at the guilt phase of the trial to support the conviction for felony murde r. See Howell , 868 S.W.2d at 261. No addition al evidence was introduced to support the invalid aggravating circumstance at sentencing. An aggravating circumstance which duplicates the elements of the underl ying crime has less

relative tendency to prejudicially affect the se ntence imposed. Id.
Finally, we must c

onsider the nature, streng th, and quality of the miti gating evidence. We note that very litt le evidence was offered in mitigation. Officer Keesling read two st

atements Strouth had given t o law enforcement officials. Counsel for the defense sought to i ntroduce evidence on the Chr istian philosophy of death as a punishment, but the court ex cluded such evidence as i rrelevant. Strouth now argues that much weight should be g iven to the fact that he was young at the time this offense w as committed -- nineteen-y ears-old. He argues-16-

that youth is an intrinsically strong mitigating circumstance and that it lessens his degree of culpa bility for the crim e. The State m entioned the defendant ’s age when arguing to the j ury that little miti gation evidence had been pr esented. Defense counsel did not stress Strouth’s age in closi ng argument. Instead, defense counsel asked the jury to impose a life sentence because al l “killing,” including the de ath penalty as pu nishment fo r crime, is wrong.
We agree with the Court of Criminal Appeals that the quality of the mitigation offered was w eak. Strouth’s statements rea d by Officer Keesling to t he jury were con tradicto ry. Any posit ive effe ct the excu lpatory st atemen t may have had was virtually

eliminated when measured ag ainst testimony and phys ical evidence at trial that demonstrated Strouth’s primary role in the crime. The f act that Strouth was nineteen at the time of the killing car ries no great mitigation weight since the record reflects that Strouth had been living independent of his parents, traveling r

outinely between Tennessee an d North Carolina, and committing crimes as a juvenile. This is not the picture of a dependent teenager, nor does it demonstrate an innoce nt young man whose inex perience in criminal matters may have led him i nto an unlawful situation. Thoug h Strouth argues that he did not actually commit the murder, but was merely present when it occurr ed and submits that this lesser degree of culpability should be considered in mitigation, the evidenc

e submitted at trial belies these contentions. The evidenc e, as summarized previous ly, indicates that Str outh was actively

involved in the crime and actually infli cted the fatal wound. Over all, the quantity, natur

e and quality of the mitigating evidence is weak.-17- CONCLUSION After fully considering

the record in this case i n light of the analysis adopted in Howell , we are convinced, beyond a reasonable doubt, that the sentence would have been the same had the jury given no considerati on to the invalid felony murder aggravating circumstance. Therefore, we conclude that the jury’s consideration of the invali d aggravating ci rcumstance was harmless error. The remaining aggrav

ating circumstance w

as supported by an abundance of proof which was qualitatively persuasive. The prosecutor did not emphasize the invalid aggravating circumstance in his closing argument, and no inadmissible evidence was introduced to support the invalid felony murder aggravating ci rcumstance. Little mitigation proof w as offered, and the nature and quality of the mitigating proof which was offered is w eak. As a result, we c

onclude that the trial court and Court of Criminal Appeals c orrectly held the Middlebrooks error harmless beyond a reasonable doubt. The judgments of the lower courts which dismissed Strouth’s petition for post-conviction relief are affirmed. Unless sta yed by this Court or other proper authority, Strouth’s sentence of death by electr ocution shall be carried out on October 28, 1999.

_______________________________ FRANK F. DROWOTA, III JUSTICE

Concur : Anderson, C.J. Birch, J.-18-

Holder, J. - Separate Conc urring Opinion