# FILED
January 5, 1998 Cecil Crowson, Jr. Appe llate Court C lerk IN THE SUPREME COUR T OF TENNESSEE AT JACKSON

FOR PUBLICATION STATE OF TENNESSEE, ) Filed: January 5, 1998 ) Appellee, ) ) SHELBY CRIMINAL ) Vs. ) ) HON. JOSEPH B. McCAR TIE, ) 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-Convic tion 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 Gener al Terry Harris Assistant District A

ttorney Memphis, Tennessee



## O P I N I O N

AFFIRMED. ANDERSON, C.J.1 Although t he appeal was also granted on th e issue of who pr operly repr

esents the defendant, i.e. , his appoi nted counsel or the Post-Convi ction Defender , the i ssue 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 Middlebrooksholding also applied t o the fel ony murder aggravati ng circumstance as sub seque ntly codified in Tenn. C ode An n. § 39-1 3-204(i)(7 )(1990)

. -2- The issue in this post-conviction death penalty appeal is whether the jury’s reliance on an invalid aggr avating 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 jur y relied on a valid aggrav ating factor, that the defendant had a prior convicti on for a violent felony offens e (second-degree murder), and an invalid aggravating circumstance,that the victim was ki lled during the commission of a felony. 1
A majority of this Cour

t held in State v. Middlebrooks , 840 S.W.2d 317 (Tenn. 1992), that the felony m urder aggravating factor fou nd in Tenn. Code Ann. § 39-2-203(i)(7) dupl icates and mirrors the elements of the offense of fel ony murder and therefore, when ap plied as an aggravating factor to a felony murder conviction, it fails t

o narrow the class of death eligible defendants as is r equired by article I, § 16 of the Te nnessee 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 cas e the sentence would have been the same had the jury given no weigh t to the invalid aggravating factor. Both cour ts denied the post-convicti on petition. We agree and affirm the Court of C riminal Appeals’ judgm ent.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)]. -3- BACKGROUND The defendant, Michael Joe Boyd,was convicted of felony m urder 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 M emphis motel. Upon their arrival at the Lorraine Motel, Price gave one of the women a $100 bill to rent two rooms. Mi chael Boyd, who was Lee’s boy friend, drove up to the scene with two other men and approached Price’s van. Bo yd pointed his pistol at Hippen and demanded money. Pr ice grabbed Boyd’s arm, Boy d 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 circums tances to seek the death penalty in the sentencing phas e 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 m ore persons other than the vi ctim murdered, and (3) that the killing occurred in the perpetration of a felony. 3
A judgment showing that the defend ant 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 f or 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 so rry the victim had been k illed but that he did not intend to rob or shoot the victim.4 At the t ime of thi s offense, felony murder i ncluded “[e ]very murder committ ed in the perpetrat ion of, or attempt to perpetr ate, any murder i n the fi rst 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 aggravatin g circumstance pro vided “the murder was committed whil e the defendant was engaged in committ ing. . . any fi rst degree murder , arson, rape, robber

y, burglar

y, larceny, kidnapping,aircraf t piracy, or unlawful

throwing, placing or dischargi ng of a destr uctive devi ce or bomb.” Tenn. Code Ann. § 39-2-203(i )(7)(1982) [now Tenn. Code Ann. § 39 -13-204 (i)(7)(199 7)]. -4- The jury returned the sentence of death based on two ag gravating factors, prior conviction of a vi olent 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 defen dant filed a petition for post-conviction rel ief that alleged numerous cons titutional errors, inc

luding the violation of article I, § 16 of the Tennessee Constitution und er State v. Middlebrooks . Following an evidentiar y hearing, the trial cour t denied the petition. The Court of Criminal Appeals affirmed the denial. We granted this appeal and now affirm the Cour t of Criminal Appeals’

judgment.

ANALYSIS In Middlebrooks , we determined that the felon y murder aggravating circumstance set forth in Tenn. Code Ann. § 39-2-203(i )(7) duplicated and mirrored the elements o f the offense of felony murder and, when applied to a felony murder, failed to narrow the class of death el igible murderers as r equired by article I, § 16 of the Te nnessee Constitution and the Ei ghth 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 c ase in an objective, even-hande d, 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 insure s that, even though some defendants w ho fall within the restri cted class of death-eligi ble defendants manage to avoid the death penalty, those w ho receive it will be among the worst murderers--

those whose crimes are particularly serious , or for which the death penalty i s particularly appropr iate.-5- We concluded that it violates article I, § 16 of the Tennessee Constitution to use the felony murder aggravati ng 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 s upport imposition of the death penalty if a defendant is c onvicted of premeditated mur der, or if the felony used for the aggravating cir cumstance is different fr om and in addition to the felony used for the felony m urder 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 s ince applied the rule retr oactively. 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 pr

oceeding.
The critical inquiry , therefore, is whether the error was harmless

and whether a resentencing heari ng is required. To assi st in this inquiry, w e review the analytical framewor k 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 bee n the same had the jury given no w eight to the invalid felony murder aggravating factor.” Id . at 262. Our holding was based on United States Supreme Court precedent in which that Cour t had said that if a jury c onsiders an invalid or improper aggravating circumstance, either “constitutional harmless error analysis or reweighing at the tria l or appellate level suffices to guarantee that the defendant received an individualized sentence.” Stringer v. Black , 503 U.S. 222,-6- 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 err or analysis that guarantees the precision that individual ized sentencing demands and prov ides a principled explanation for our conclus ion in each case. We also stressed the need “to completely examine the record for the presence of factors which potentially influence the sentence ultim ately imposed.” These fac tors include, but are not limited to, “the number and strength of remaining aggr avating circumstances, the prosecutor’s argument at s entencing, the evidence admitte d 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 fa ctors 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 dimension s was ‘harmless’ can not substitute for a principl ed explanation of how the court reached that conclusion.”).
We have since applied the Howell harmless error analy sis on numerous occasions in which the jury considered an invalid aggravating circumstance in conjunction with one or mo re valid aggravating cir cumstances. 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) Sm ith , 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 constitutiona l error required res entencing in State v. Walker ,5 Though this Court and the Uni ted States Supreme Court pre viously had recognized that errors oc curring during the sentenci ng phase of a capital trial may be reviewed under the har mless error doctrin e by an appellate court, it w as not until 1992 that the United St ates Supreme Court comple tely delineated the proper analysis to be appli ed by an appellate court when an invalid aggravating circumstance has been rel ied upon by the initial senten cing 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., M ay 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 unwarrant ed. Mor eov er, in e ach of the cas es th at the disse nt co nten ds w ere “s ignific antly compromised,” the How ell analysis yi elded a concl usion that the Middlebrookserror was harmless beyond a reasonable d oubt. I n State v. Cazes , supra , there were two remaining aggravating factors, prior convi ctions f or a viol ent fel ony and heinous, atrocious or cruel. The prior convi ctions were aggravated rape and assault; no additi onal evidence or undue emphasis had been pl aced on the inval id fel ony murder aggravator during sentencing. I n State v. Nic hols , supra , five rape convicti ons supported t he remaining f actor of prior convi ctions f or a viol ent fel ony; no addit ional evidence or undue emphasi s was placed on the i nvalid f actor. I n State v. (S ylvester ) Smith , supra , there were two remaining aggravatingfactors, prior convi ctions f or a viol ent fel ony and heino us, a trocio us or crue l. The prior c onv iction s inclu ded robb ery w ith a de adly wea pon , ass ault with int ent to commit murder , and aggravated rape. Accordi ngly, our applicat ion of t hese factors, as well as t he mitigat ing evidence offered by the defendants, led to t he 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 diss ent’s assertion that “the hi gh standard for harmless error analys is set forth in Howell has been significantly compromised in some cases.” On the contr ary, the Howell analysis has been employed i n the same manner in each case-- the fact that some errors have been held to be harmless and others harm ful underscores that an indi vidualized 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 requir e resentencing. The remai ning aggravating factor relied upon by the jury wa s that the defendant had a prior c onviction for second degree murder--a viole nt felony. We said in Howell that “even more criti cal than-8- the sum of the remaining aggr avating circumstances i s the qualitative nature of each circumstance, its substance and persuasiveness, as well as the quantum of proof supporting it.” Although the statute assigns no rel ative importance or weight to the aggravating cir cumstances, we observed that a prior violent felony conviction “may be mor e qualitatively persuasi ve and objectively reli able” than other factors. 868 S.W.2d at 261.
Accordingly, the defendant’s prior conviction for second-degree murde r is a significant element to be considered in our analysi s; in fact, we have affir med the death sentence in all but one pr evious case in which a pr ior violent felony conviction supported the aggra vating factor in Tenn. Code Ann. § 39-2-203(i)(2). See State v. Hines , 919 S.W.2d at 584 (assault i n the first-degree); State v. Smith , 893 S.W.2d at 926 (robbery, assault with intent to mur der, 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 l esser grade of offense than second-degree murde r. 910 S.W.2d at 398.
Turning to the second Howell factor, the record reveal s that the prosecution did not emphasiz e the felony murder aggravating factor, Tenn. Code Ann. § 39-2-203 (i)(7), in the sentencing phase. No addi tional evidence was introduced in support of the factor, and relatively little reliance was placed on it during the prosecutor’s ar gument. Instead, the prosecuti on stressed the defendant’s prior convicti on throughout its argument as d emonstrated by the following passage: The law also says if yo u kill once and then you kil l again, it’s okay for you to suffer the consequenc es 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 un til-9- he kills and kills and kills again? He’s ki lled twice. You would thi nk . . . 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 S tate’s argument was devoted t o arguing the aggravating factor in Tenn. C ode 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 credi bility of the defendant.
Similarly, applying the third Howell factor, we observe that no ad ditional evidence was admitted to supp ort the invalid felony m urder aggravating circumstance; the prosecution merely relied upon the evidence in the guilt phase. As we said in Howell , “an aggravating factor wh ich 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 s entencing jury to draw additional conclusions fr om the guilt phase evidence.” 868 S.W.2d at 261. Accordingly, the jury i n this case heard no more ev idence in support of the felony murder aggravating circ umstance than had already been pr esented to prove the offense of felony murder dur ing the guilt phase.
Finally, we consider the final Howell factor -- the nature, qual ity and strength of the mitigating e vidence. In this case, the m itigating evidence was limited to the defendant’s ow n testimony. Although the defenda nt argues on appeal that he showed remorse,it is significant that he did not accept responsibility for hi s 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 r elevant Howell analytical factors in our review of the record, and have considered and applied the requirement for individualized6 The defendant cites, among other provisions, Tenn. Code An n. § 39-2-203(a)(1982), the “jur y shall f ix punishment in a separate sentencing hear ing”, and Tenn. Code Ann. § 39-2- 203(k)(1982), “a new tri al on the i ssue of punishment shall be hel d by a new jury empanel ed for that purpose.” -10- sentencing and made a principl ed explanation for our concl usion. After doing so, we conclude beyond a reasonable d oubt that the verdict would hav e been the same had the jury given no w eight to the invalid aggravating factor.

The dissent concludes that a finding of harmless err or cannot be based on objective facts and is ther efore inappropriate. Notwithstanding evidence of a “se t up” robbery and that the defendant “ emptied” his gun while the victim tried to flee from the scene, the dissent contends that the killing oc curred as a result of an altercation based on jealousy and that the defendant testified he d id 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 v erdict would have been the same even had it not consider ed the invalid factor. In particular, the dissent does not address the quality and strength of the remaining aggr avator factor that was supported by the defendant’s prior conviction for second-deg ree murder, nor, apparently, does the diss ent 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 conten ds that our appellate review is improper for several reasons, all of which w e have implicitly re

jected in our formulation and continued appl ication of Howell . First, he argues that he has a federal and state due process l iberty 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 ar gument, Rickman v. Dutton , 854 F. Supp. 1305 (M.D. Tenn. 1994), however, recognizes that even if a d ue process liberty7 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 specif ically predicatedon an inter pretati on of state law that is not cont rolli ng on this Cou rt. -11- interest exists on the basis of these statutory provisions, constitutiona l harmless error analysis is not precluded. We, therefore, disagree with the defendant ’s assertion that these statutor y provisions preclude appe llate review of the sentence. Moreover, the Uni ted States Supreme Court has repeatedly held that constitutional harmless error analysis is ap propriate in this context,provided that it preserves the constitutional requirement of indi vidualized sentencing. See , e.g. , Stringer v. Black , 503 U.S. at 232 (1992); Clemons v. Mississ ippi , 494 U.S. at 753. 7
The defendant also argues that Howell conflicts with the cons titutional harmless error test s

et forth in Chapman v. California , 386 U.S. 18 (1967), and that, applying Chapman , the State cannot prove beyond a r easonable doubt that the error “did not contribute to the verdict obtained” because this jury did in fact rely on factors set out i n 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 ev ery verdict based partly on an unconstitutional or invalid aggravating cir

cumstance requires resentencing, and that an error m ay be deemed harmless if it may be concluded beyond a reasonab le doubt that the verdict would have been the same had the jury given no weight to the inva lid factor. See Stringer v. Black , 503 U.S. at 232; Clemons v. Mississ ippi , 494 U.S. at 753. We view these deci sions, and the test set forth in Howell , as the appropriate analysis and con sistent with the Chapman harmless error test.
Finally, the defendant insi sts that application of Howell violates ex post facto, due process, and equal pr otection provisions of the Tennessee and United States Constitutions because it had not been decided at the tim e of this offense,-12- 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 of fense, had upheld death penalty sentenc es where the jury had relied on an invalid aggravating ci rcumstance. 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 pri ncipled means of review in a manner that preserves individualized sentencing, does not violate ex post fact o, due process, or equal protection provisions.

CONCLUSION Our review of the recor d leads us to conclude beyond a r easonable doubt that the jury’s verdict

would have been the same had no w eight been given to the invalid aggravating ci rcumstance, and that the jur y’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 con stitutional error, does not require resentencing. A ccordingly, we affirm

the judgment of the Court of Criminal Appeals denyi ng 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.-13- 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 - s

ee separate dissent