FILED

January 5, 1998

Cecil Crowson, Jr.

Appe llate Court C lerk

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

 FOR PUBLICATION

STATE OF TENNESSEE, ) Filed: January 5, 1998

)

Appellee, )

) SHELBY CRIMINAL

)

Vs. )

) HON. JOSEPH B. McCARTIE,

) JUDGE

MICHAEL JOE BOYD, )

)

Appellant. ) No. 02-S-01-9611-CR-00102

For Appellant: For Appellee:

Paul J. Morrow, Jr. John Knox Walkup

Office of the Post-Conviction Attorney General & Reporter 

 Defender

Nashville, Tennessee Michael E. Moore

Solicitor General

Daniel A. Seward

Memphis, Tennessee Kathy Morante

Deputy Attorney General

Nashville, Tennessee

At Trial:

John W. Pierotti

District Attorney General

Terry Harris

Assistant District Attorney

Memphis, Tennessee

O P I N I O N

AFFIRMED. ANDERSON, C.J.
1

 Although the appeal was also granted on the issue of who properly represents the

defendant, i.e., his appointed counsel or the Post-Conviction Defender, the issue was rendered

moot w hen ap pointed c ounse l requeste d and re ceived a n order fro m this C ourt allowin g him to

withdraw . 

2

 The Middlebrooks holding also applied to the felony murder aggravating circumstance

as sub seque ntly codified in Tenn. C ode An n. § 39-1 3-204(i)(7 )(1990). 

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The issue in this post-conviction death penalty appeal is whether the jury’s

reliance on an invalid aggravating circumstance was harmless error, or whether

resentencing is required because there is reasonable doubt that the sentence

would have been the same had the jury given no weight to the invalid

aggravating factor. The jury relied on a valid aggravating factor, that the

defendant had a prior conviction for a violent felony offense (second-degree

murder), and an invalid aggravating circumstance, that the victim was killed

during the commission of a felony.1

A majority of this Court held in State v. Middlebrooks, 840 S.W.2d 317

(Tenn. 1992), that the felony murder aggravating factor found in Tenn. Code

Ann. § 39-2-203(i)(7) duplicates and mirrors the elements of the offense of felony

murder and therefore, when applied as an aggravating factor to a felony murder

conviction, it fails to narrow the class of death eligible defendants as is required

by article I, § 16 of the Tennessee Constitution.2 After conducting a harmless

error analysis, however, both the trial court and the Court of Criminal Appeals

concluded beyond a reasonable doubt that under the facts of this case the

sentence would have been the same had the jury given no weight to the invalid

aggravating factor. Both courts denied the post-conviction petition. We agree

and affirm the Court of Criminal Appeals’ judgment.
3

 Tenn. Code Ann. § 39-2-203(I)(2), (3), and (7)(1982)[now Tenn. Code Ann. § 39-13-204

(i)(2), (3), and (7)(199 7)].

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BACKGROUND

The defendant, Michael Joe Boyd, was convicted of felony murder

stemming from the shooting death of William Price during an armed robbery in

November of 1986. Price and a companion, David Hippen, had solicited two

women, Barbara Lee and Renita Tate, to accompany them to a Memphis motel. 

Upon their arrival at the Lorraine Motel, Price gave one of the women a $100 bill

to rent two rooms. Michael Boyd, who was Lee’s boyfriend, drove up to the

scene with two other men and approached Price’s van. Boyd pointed his pistol

at Hippen and demanded money. Price grabbed Boyd’s arm, Boyd fired the gun,

and a struggle ensued. When Price tried to drive away from the scene, Boyd

“emptied” the gun at him, striking him with five or six shots which caused his

death.

The prosecution relied on three aggravating circumstances to seek the

death penalty in the sentencing phase of the trial: (1) that the defendant had a

prior conviction for a violent felony, (2) that the defendant knowingly created a

risk of death to two or more persons other than the victim murdered, and (3) that

the killing occurred in the perpetration of a felony.3 

A judgment showing that the defendant had been convicted in 1983 for

second-degree murder was introduced by the prosecution to support the prior

conviction for a violent felony aggravating circumstance. In mitigation, Boyd

testified that someone asked for change for a $100 bill and he was going to

make change when Hippen pulled a gun. He said a struggle took place, during

which Price was shot. Boyd testified that he was sorry the victim had been killed

but that he did not intend to rob or shoot the victim. 
4

 At the time of this offense, felony murder included “[e]very murder committed in the

perpetration of, or attempt to perpetrate, any murder in the first degree, arson, rape, robbery,

burglary , larceny, k idnappin g, aircraft pira cy, or the unlawfu l throwing, p lacing or d ischarg ing of a

destructive device or bomb....” Tenn. Code Ann. § 39-2-202(a)(1982)[now Tenn. Code Ann. § 39-

13-202(a)(2)(1997)]. The felony murder aggravating circumstance provided “the murder was

committed while the defendant was engaged in committing. . . any first degree murder, arson,

rape, robbery, burglary, larceny, kidnapping, aircraft piracy, or unlawful throwing, placing or

discharging of a destructive device or bomb.” Tenn. Code Ann. § 39-2-203(i)(7)(1982)[now Tenn.

Code Ann. § 39 -13-204 (i)(7)(199 7)].

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The jury returned the sentence of death based on two aggravating factors,

prior conviction of a violent felony and felony murder, and the conviction and

sentence were affirmed by this Court on appeal. State v. Boyd, 797 S.W.2d 589

(Tenn. 1990), cert. denied, 498 U.S. 1074 (1991). The defendant filed a petition

for post-conviction relief that alleged numerous constitutional errors, including

the violation of article I, § 16 of the Tennessee Constitution under State v.

Middlebrooks. Following an evidentiary hearing, the trial court denied the

petition. The Court of Criminal Appeals affirmed the denial. We granted this

appeal and now affirm the Court of Criminal Appeals’ judgment.

ANALYSIS

In Middlebrooks, we determined that the felony murder aggravating

circumstance set forth in Tenn. Code Ann. § 39-2-203(i)(7) duplicated and

mirrored the elements of the offense of felony murder and, when applied to a

felony murder, failed to narrow the class of death eligible murderers as required

by article I, § 16 of the Tennessee Constitution and the Eighth Amendment to the

United States Constitution.4 We stressed that a proper narrowing device must

provide 

a principled way to distinguish the case in which the death penalty

was imposed from the many cases in which it was not . . . and must

differentiate a death penalty case in an objective, even-handed,

and substantially rational way from the many murder cases in

which the death penalty may not be imposed. As a result, a proper

narrowing device insures that, even though some defendants who

fall within the restricted class of death-eligible defendants manage

to avoid the death penalty, those who receive it will be among the

worst murderers-- those whose crimes are particularly serious, or

for which the death penalty is particularly appropriate.
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We concluded that it violates article I, § 16 of the Tennessee Constitution to use

the felony murder aggravating circumstance to support imposition of the death

penalty for a conviction of felony murder. 840 S.W.2d at 343-346. The felony

murder aggravating factor may, of course, be used to support imposition of the

death penalty if a defendant is convicted of premeditated murder, or if the felony

used for the aggravating circumstance is different from and in addition to the

felony used for the felony murder offense. State v. Hines, 919 S.W.2d 573, 583

(Tenn. 1995), cert. denied, U.S. , 117 S.Ct. 133, 136 L.Ed.2d 82 (1996).

Because the Middlebrooks rule enhanced the integrity and reliability of the

sentencing process, we have since applied the rule retroactively. See Barber v.

State, 889 S.W.2d 185, 187 (Tenn. 1994), cert. denied, 513 U.S. 1184 (1995). 

Accordingly, as both parties here recognize, the jury’s reliance on the invalid

felony murder aggravating factor was constitutional error properly recognized in

this post-conviction proceeding. 

The critical inquiry, therefore, is whether the error was harmless and

whether a resentencing hearing is required. To assist in this inquiry, we review

the analytical framework first announced in State v. Howell, 868 S.W.2d 238

(Tenn. 1993), cert. denied, 510 U.S. 1215 (1994). There, we held that a

Middlebrooks error does not require a resentencing hearing if the reviewing 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 based on United States Supreme Court

precedent in which that Court had said that if a jury considers an invalid or

improper aggravating circumstance, either “constitutional harmless error analysis

or reweighing at the trial or appellate level suffices to guarantee that the

defendant received an individualized sentence.” Stringer v. Black, 503 U.S. 222,
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232 (1992); see also Richmond v. Lewis, 506 U.S. 40 (1992); Clemons v.

Mississippi, 494 U.S. 738 (1990).

In Howell, we adopted a harmless error analysis that guarantees the

precision that individualized sentencing demands and provides a principled

explanation for our conclusion in each case. We also stressed the need “to

completely examine the record for the presence of factors which potentially

influence the sentence ultimately imposed.” These factors include, but are not

limited to, “the number and strength of remaining aggravating circumstances, the

prosecutor’s argument at sentencing, the evidence admitted to establish the

invalid aggravator, and the nature, quality, and strength of mitigating evidence.” 

Id. at 260-61. Only after a thorough and critical consideration of these factors

can a determination be made as to harmless error. See, e.g., Sochor v. Florida,

504 U.S. 527, 541 (1992)(O’Connor, J., concurring)(“appellate court’s bald

assertion that an error of constitutional dimensions was ‘harmless’ cannot

substitute for a principled explanation of how the court reached that

conclusion.”).

We have since applied the Howell harmless error analysis on numerous

occasions in which the jury considered an invalid aggravating circumstance in

conjunction with one or more valid aggravating circumstances. In the following

cases, the error was found to be harmless and the sentence was affirmed. State

v. Hines, 919 S.W.2d at 583; State v. (Sylvester) Smith, 893 S.W.2d 908 (Tenn.

1994), ___ U.S. ___, 116 S.Ct. 99, 133 L.Ed.2d 53 (1995); Barber v. State, 889

S.W.2d at 187; State v. Nichols, 877 S.W.2d 722 (Tenn. 1994), cert. denied, 513

U.S. 1114 (1995); State v. Cazes, 875 S.W.2d 253 (Tenn. 1994), cert. denied,

513 U.S. 1086 (1995); State v. Howell, 868 S.W.2d at 262. Conversely, we

concluded that the constitutional error required resentencing in State v. Walker,
5

 Though this Court and the United States Supreme Court previously had

recognized that errors occurring during the sentencing phase of a capital trial

may be reviewed under the harmless error doctrine by an appellate court, it was

not until 1992 that the United States Supreme Court completely delineated the

proper analysis to be applied by an appellate court when an invalid aggravating

circumstance has been relied upon by the initial sentencing authority. See

Stringer v. Black, 503 U.S. at 232; Sochor v. Florida, 504 U.S. at 540-541. This

Court’s decision in Howell delineating the proper harmless error analysis for a

Middlebrooks error was not rendered until after our decisions in State v. Evans,

838 S.W.2d 185 (Tenn. 1992); State v. Sparks, 1993 Tenn. Lexis 187; No.

03S01-9212-CR-00105 (Tenn., May 10, 1993); State v. Bane, 853 S.W.2d 483

(Tenn. 1993); State v. Smith, 857 S.W.2d 1 (Tenn. 1993); and State v.

Middlebrooks, 840 S.W.2d 317 (Tenn. 1992). Therefore, since all these

decisions predated Howell, the dissent’s reliance upon these cases as examples

of the proper application of the Howell analysis is unwarranted.

Mor eover, in e ach of the cases that the disse nt conten ds w ere “s ignificantly

compromised,” the How ell analysis yielded a conclusion that the Middlebrooks error was harmless

beyond a reasonable doubt. In State v. Cazes, supra, there were two remaining aggravating

factors, prior convictions for a violent felony and heinous, atrocious or cruel. The prior convictions

were aggravated rape and assault; no additional evidence or undue emphasis had been placed

on the invalid felony murder aggravator during sentencing. In State v. Nic hols , supra, five rape

convictions supported the remaining factor of prior convictions for a violent felony; no additional

evidence or undue emphasis was placed on the invalid factor. In State v. (Sylvester) Smith,

supra, there were two remaining aggravating factors, prior convictions for a violent felony and

heino us, atrocio us or crue l. The prior c onv iction s inclu ded robb ery w ith a de adly wea pon, ass ault

with intent to commit murder, and aggravated rape. Accordingly, our application of these factors,

as well as the mitigating evidence offered by the defendants, led to the same conclusion -- that

the error w as harm less bey ond a re asona ble doub t.

-7-

910 S.W.2d 381 (Tenn. 1995), ___ U.S. ___, 117 S.Ct. 88, 136 L.Ed.2d 45

(1996), and Hartman v. State, 896 S.W.2d 94 (Tenn. 1995). 

We disagree with the dissent’s assertion that “the high standard for

harmless error analysis set forth in Howell has been significantly compromised in

some cases.” On the contrary, the Howell analysis has been employed in the

same manner in each case-- the fact that some errors have been held to be

harmless and others harmful underscores that an individualized determination

must be made in each case.5

Applying the analysis in this case leads us to conclude that the error is

harmless and does not require resentencing. The remaining aggravating factor

relied upon by the jury was that the defendant had a prior conviction for second

degree murder--a violent felony. We said in Howell that “even more critical than
-8-

the sum of the remaining aggravating circumstances is the qualitative nature of

each circumstance, its substance and persuasiveness, as well as the quantum of

proof supporting it.” Although the statute assigns no relative importance or

weight to the aggravating circumstances, we observed that a prior violent felony

conviction “may be more qualitatively persuasive and objectively reliable” than

other factors. 868 S.W.2d at 261. 

Accordingly, the defendant’s prior conviction for second-degree murder is

a significant element to be considered in our analysis; in fact, we have affirmed

the death sentence in all but one previous case in which a prior violent felony

conviction supported the aggravating factor in Tenn. Code Ann. § 39-2-203(i)(2). 

See State v. Hines, 919 S.W.2d at 584 (assault in the first-degree); State v.

Smith, 893 S.W.2d at 926 (robbery, assault with intent to murder, and

aggravated rape); State v. Nichols, 877 S.W.2d at 738 (rape); State v. Cazes,

875 S.W.2d at 270 (aggravated rape and assault with intent to murder); State v.

Howell, 868 S.W.2d at 261 (murder, aggravated robbery). In the remaining case,

State v. Walker, the conviction was for voluntary manslaughter, a lesser grade of

offense than second-degree murder. 910 S.W.2d at 398.

Turning to the second Howell factor, the record reveals that the

prosecution did not emphasize the felony murder aggravating factor, Tenn. Code

Ann. § 39-2-203 (i)(7), in the sentencing phase. No additional evidence was

introduced in support of the factor, and relatively little reliance was placed on it

during the prosecutor’s argument. Instead, the prosecution stressed the

defendant’s prior conviction throughout its argument as demonstrated by the

following passage:

The law also says if you kill once and then you kill again, it’s okay

for you to suffer the consequences of the death penalty. What

does it take, ladies and gentlemen? How many people have to die

before we put a stop to [the defendant]. Do we have to wait until
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he kills and kills and kills again? He’s killed twice. You would think

. . . after killing once that a man like that, if he’s got any conscience

at all, would want to get as far away from a pistol, an instrument of

death, as he could ever get. . . . It’s good for nothing other than to

kill other human beings. Twice [the defendant] used the same

instrument of death. It’s time . . . to put a stop to it.

Finally, the balance of the State’s argument was devoted to arguing the

aggravating factor in Tenn. Code Ann. § 39-2-203 (i)(3), that the defendant

knowingly created a risk of death to two or more persons during the victim’s

murder, and to discrediting the testimony and credibility of the defendant.

Similarly, applying the third Howell factor, we observe that no additional

evidence was admitted to support the invalid felony murder aggravating

circumstance; the prosecution merely relied upon the evidence in the guilt phase.

As we said in Howell, “an aggravating factor which duplicates the elements of the

underlying crime has less relative tendency to prejudicially affect the sentence

imposed than invalid aggravating factors which interject inadmissible evidence

into the sentencing calculus, or which require the sentencing jury to draw

additional conclusions from the guilt phase evidence.” 868 S.W.2d at 261. 

Accordingly, the jury in this case heard no more evidence in support of the felony

murder aggravating circumstance than had already been presented to prove the

offense of felony murder during the guilt phase.

Finally, we consider the final Howell factor -- the nature, quality and

strength of the mitigating evidence. In this case, the mitigating evidence was

limited to the defendant’s own testimony. Although the defendant argues on

appeal that he showed remorse, it is significant that he did not accept

responsibility for his part in the offense; instead he denied that he shot or robbed

the victim. No other mitigating evidence was presented before the jury. We

have considered all of the relevant Howell analytical factors in our review of the

record, and have considered and applied the requirement for individualized
6

 The defendant cites, among other provisions, Tenn. Code An n. § 39-2-203(a)(1982),

the “jury shall fix punishment in a separate sentencing hearing”, and Tenn. Code Ann. § 39-2-

203(k)(1982), “a new trial on the issue of punishment shall be held by a new jury empaneled for

that purpose.” 

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sentencing and made a principled explanation for our conclusion. After doing so,

we conclude beyond a reasonable doubt that the verdict would have been the

same had the jury given no weight to the invalid aggravating factor. 

The dissent concludes that a finding of harmless error cannot be based on

objective facts and is therefore inappropriate. Notwithstanding evidence of a “set

up” robbery and that the defendant “emptied” his gun while the victim tried to flee

from the scene, the dissent contends that the killing occurred as a result of an

altercation based on jealousy and that the defendant testified he did not intend to

rob or shoot the victim. The dissent, however, does not apply the Howell factors

that support an objective conclusion that the jury’s verdict would have been the

same even had it not considered the invalid factor. In particular, the dissent

does not address the quality and strength of the remaining aggravator factor that

was supported by the defendant’s prior conviction for second-degree murder,

nor, apparently, does the dissent place objective significance on the

Howell factors that no additional evidence or emphasis was placed on the invalid

felony murder aggravator during sentencing. Thus, the dissent takes issue

solely with the majority’s conclusion and not its methodology.

Rejecting precedent, the defendant contends that our appellate review is

improper for several reasons, all of which we have implicitly rejected in our

formulation and continued application of Howell. First, he argues that he has a

federal and state due process liberty interest to jury sentencing due to the

mandatory language found in Tenn. Code Ann. § 39-2-203.6 The case cited by

the defendant in support of his argument, Rickman v. Dutton, 854 F. Supp. 1305

(M.D. Tenn. 1994), however, recognizes that even if a due process liberty
7

 The M ississippi c ases re lied on by th e defend ant, e.g., Wilcher v. State, 635 So.2d 789

(Miss. 1993), are specifically predicated on an interpretation of state law that is not controlling on

this Cou rt.

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interest exists on the basis of these statutory provisions, constitutional harmless

error analysis is not precluded. We, therefore, disagree with the defendant’s

assertion that these statutory provisions preclude appellate review of the

sentence. Moreover, the United States Supreme Court has repeatedly held that

constitutional harmless error analysis is appropriate in this context, provided that

it preserves the constitutional requirement of individualized sentencing. See,

e.g., Stringer v. Black, 503 U.S. at 232 (1992); Clemons v. Mississippi, 494 U.S.

at 753.7

The defendant also argues that Howell conflicts with the constitutional

harmless error test set forth in Chapman v. California, 386 U.S. 18 (1967), and

that, applying Chapman, the State cannot prove beyond a reasonable doubt that

the error “did not contribute to the verdict obtained” because this jury did in fact

rely on factors set out in Tenn. Code Ann. § 39-2-203 (i)(7). Again we disagree. 

Our analysis in Howell is derived from relevant United States Supreme Court

precedent that indicates not every verdict based partly on an unconstitutional or

invalid aggravating circumstance requires resentencing, and that an error may

be deemed harmless if it may be concluded beyond a reasonable doubt that the

verdict would have been the same had the jury given no weight to the invalid

factor. See Stringer v. Black, 503 U.S. at 232; Clemons v. Mississippi, 494 U.S.

at 753. We view these decisions, and the test set forth in Howell, as the

appropriate analysis and consistent with the Chapman harmless error test.

Finally, the defendant insists that application of Howell violates ex post

facto, due process, and equal protection provisions of the Tennessee and United

States Constitutions because it had not been decided at the time of this offense,
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and because prior cases in which only one aggravating factor remained were

remanded for resentencing. It is clear, however, that pre-Howell cases, existing

at the time of the defendant’s offense, had upheld death penalty sentences

where the jury had relied on an invalid aggravating circumstance. See State v.

Bobo, 727 S.W.2d 945 (Tenn.), cert. denied, 484 U.S. 872 (1987); State v.

Workman, 667 S.W.2d 44 (Tenn.), cert. denied, 469 U.S. 873 (1984); State v.

Cone, 665 S.W.2d 87 (Tenn.), cert. denied, 467 U.S. 1210 (1984); State v.

Campbell, 664 S.W.2d 281 (Tenn.), cert. denied, 469 U.S. 920 (1984). 

Therefore, Howell, which sets forth a principled means of review in a manner that

preserves individualized sentencing, does not violate ex post facto, due process,

or equal protection provisions.

CONCLUSION

Our review of the record leads us to conclude beyond a reasonable doubt

that the jury’s verdict would have been the same had no weight been given to

the invalid aggravating circumstance, and that the jury’s consideration of the

invalid aggravating circumstance was harmless error. Therefore, the jury’s

reliance on Tenn. Code Ann. § 39-2-203(i)(7), although constitutional error, does

not require resentencing. Accordingly, we affirm the judgment of the Court of

Criminal Appeals denying the post-conviction petition. The sentence of death

will be carried out as provided by law on the 5th day of May, 1998, unless

otherwise ordered by this Court, or other proper authorities.
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The costs of this appeal are taxed to the defendant for which execution

may issue.

_______________________________

RILEY ANDERSON, CHIEF JUSTICE

CONCUR:

Drowota, Birch, and Holder, JJ.

Reid, J., dissenting - see separate dissent