# FILED
September 14, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE SUPREME COURT OF TENNESSEE

AT JACKS ON (Heard at Memphis)

STATE OF TENNESSEE ) FOR PUBLICA TION ) Appellee ) FILED: September 14, 1998 ) v. ) SHELBY COU NTY ) DEWAYNE B. BUTLER, ) Hon. Joseph B. Da iley, Judge FREDRICK D. BUTLER, and ) ERIC D. ALEXANDER ) NO. 02S01-9711-CR-00094 ) Appellants. ) (Interlocutory Appeal) )

For the Appellants : For the Appellee : A.C. Wharton John Knox Walkup Shelby County Public

Defender Attorney General & Repor ter W. Ma rk Wa rd & Sherrye Brown Michael E. Moore Assistant Public Defenders Solicitor General Memphis (Attorneys for Dewayne Butler) Kathy Morante Deputy Attorney General Leslie I. Ballin & Mar

k A. Mesler Memphis (Attorneys for Fredrick Butler) William Massey Memphis (Attorney for Eric Alexander)



## OPINION

COURT OF CRIMINAL APPE ALS BARKER, J. AFFIRMED OPINION1 Oral arg ume nt was h eard in this c ase on May 13, 1 988, in M emp his, Shelb y County Tennessee, as

part of this Court’ s S.C.A. L.E.S ( S upreme C ourt A dvancing L ega l E ducation fo r S tudents ) project.

2 The trial court’s ruling on Frederick Butler’s motion to strike was not mad e a part of the record on app eal. 2 The sole issue in this inter locutory appeal is w

hether the State may rely upon the felony murder aggrav ating circumstance w

hen seeking a sentence of life w ithout the possibility of parole for defendants charged with felon y murder. 1 We hold that there are no constitutional or statutory prohibitions and accordingly affirm the judgment of the Court of Criminal Appeals.

BACKGROUND
In 1994, indictments were returned charging the appellants with especially aggravated robbery, first degree premeditated mur der, and felony murder. During pretrial proceedings, the State filed a notice of intent to seek life imprisonment without the possibility of parole, for each appellant, based upon the felony murder aggravating circumstance. Tenn. Code Ann. § 39- 13-204(i)(7) (Supp. 1994) . The appellants filed motions to strike the felony murder aggravator.

The trial court denied the motion in Frederick Butler’s case 2 , but granted Dewayne Butler and Er ic Alexander’s motions to strike upon finding that “ the [felony murder] aggravating

circumstance is merely a duplication of the essential elements of the underlying offense.” The tr ial court’s rationale was based upon Tennessee Code Annotated section 40-35-114 (Supp.1994), and this Court’s dec ision in State v. Middlebrooks , 840 S.W.2d 317 (Te nn. 1992).
On interlocutory appeal by the State, the Court of Cr iminal Appeals reverse d the trial court’s rul ing with respect to Dewayne Butler and Er ic Alexander and affirmed3 A majority of this Cour

t has held that the Middl ebrooks decision was based independentl y on Article I, sec tion 16 of th e Ten nesse e Con stitution. State v. Bigbee , 885 S.W .2d 797, 816 (Tenn. 1994 ); State v. Ho well , 868 S.W .2d 238, 2 59 n.7 (T enn. 199 3).

4 Justice D rowota a nd form er Justice O’Brien d issented as to this ho lding. Middl ebrooks , 840 S.W .2d at 347 -350 (D rowota, J ., dissenting ). 3 the ruling as to Freder

ick Butler. The court deter mined that our holding in State v. Middlebrooks , 840 S.W.2d 317 (Tenn. 1992), does not bar the use of agg ravator (i)(7) to enhance a life sentence to life w ithout the possibility

of parole following a conv iction of felony murder.

ANAL YSIS

In Middlebrooks , a majority of this Court held that when a defendant is convicted of felony murder, the use of the felony murder agg ravating circumstan ce to support a death sentence viol ates the cruel and unusual punis hment provisions of both the federal and state constituti ons 3 because the aggravator does not sufficiently narrow the class of death-eligible offenders. See 840 S.W.2d at 346. 4 Finding, however, no statutory

or constitutional counter part to Middlebrooks requiring the narrowing of the class

of defendants eligible for life senten ces without the possibi lity of parole, the intermediate appell ate court concluded that the felony murder aggravator can be used to enhance appellants’ sentences to life without the possibility of parole if they are convicted of felony murder.
At the time of the killing i n this case, the felony murder aggravator read as follows: (7) The murder was committed while the defendant was engaged in committing, or was an a ccomplice in the commission o f, or was attempting to commit, or w as fleeing after committing or attempting to commit, any first degree mur der, arson, rape, robbery, burglary, theft, kidnaping, aircraft pir

acy, or unlawful throw

ing, placing or dis

charging of a destructive devic

e or bomb.5 The felony murder aggr avator has si nce been amended to provi de that, “[t] he murder was knowingly

committed, soli cited, directed,or aided by the defendant , whil e the defendant had a sub stan tial role in com mittin g or a ttem pting to co mm it, or wa s flee ing af ter ha ving a subs tantia l role in committing or at

tempting to commit, a ny” of t he enumerated feloni es. Tenn. Code Ann. § 39- 13- 204(i)(7) (Supp. 1995). 4 Tenn. Code Ann. § 39-13-204(i)(7) (Supp. 1994). 5
In comparison, the indictment c harging felony murder in this case states that the appellants “on August 12, 1994, in Shelby County, Tennessee ... did unlawfully and recklessly kill CHARLES CANTRELL during the perpetration of Especially Aggravated Robbery, in violation of T.C.A. 39-13-202.”

As in Middlebrooks , the felony murder aggravator contains language that is virtually identi cal to the language in the indictment charging felon y murder. Both the State and the appellants agree, however, that the constitutional mandates from Middlebrooks are not implicated in this case since the State is not seeking the death penalty.

The decision in Middlebrooks involved this Cour t’s review of capit

al murder sentencing in Tennessee and the provisions against cruel and unusua l punishment in both the Eighth Amendment to the United States Constitution and Ar ticle I, section 16 of the Tennessee Constitution. Parti cular attention was g iven to the United States Supreme Court progeny of cas es addressing the need to narrow the class of deatheligible offenders in line w ith the constitutional prot ection against cruel and unusual punishment. See e.g. Furman v. Georgia , 408 U.S. 238, 92 S.Ct. 2726, 83 L. Ed.2d 346 (1972).
The United States Supreme Court has refused to extend the constitutional requirements in Furman to cases not involv ing the death penalty. See Harmelin v. Michigan , 501 U.S. 957, 995, 111 S.Ct. 2680, 2701, 2702, 115 L.Ed.2d 836 (1991).6 Id. (citi ng Eddings v. Oklahoma , 455 U.S . 104, 102 S.Ct. 869 , 71 L.Ed.2 d 1 (198 2); Rumm el v. Este lle , 445 U.S . 263, 100 S.Ct. 113 3, 63 L.Ed .2d 382 ( 1980); Loc kett v . Ohio , 438 U.S . 586, 98 S .Ct. 2954, 57 L.Ed.2d 973 (19 78); Woodson v. North Carolina , 428 U.S. 280,96 S.Ct. 2978,49 L.Ed.2d 944 (1976))

. 5 Justice Scalia wri

ting for a majority of the C ourt in Harmelin stated that,“[the Supre me Court] cases creating and clarifying the ‘i ndividualized capit al sentencing doctrine’ have repeatedly suggested that there is no comparabl e requirement outside the capital context, because of the qualitative difference betw een death and all other penalties.” 6
Justice Scalia disting uished capital punishment by noting that “the penalty of death differs from all other forms of cri minal punishment, not in degree but in kind. It is unique in its total

irrevocability. It is unique in its rejection of rehabilitati on of the convict as a basic pur

pose of criminal justice. A nd it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.” Harmelin , 501 U.S. at 995-96, 111 S. Ct. at 2702 (quot ing Furman v. Georgia , 408 U.S. 238, 306, 92 S.Ct. 2726, 2760, 83 L.Ed.2d 346 (Stewar t, J., concurring))

.
We agree that the penalty of death is unique to all other forms of punishment and should be distinguished accordingly under both the federal and state constitutions. With that in mind, we not e that the appellants in this case are not on trial for their liv

es. If convicted of premeditated mur der or felony murder, they will be sentenced to either life impri sonment or life without the pos sibility of parole. We, therefore, conclude that the consti tutional concerns invol

ving the death penalty

are not at issue here. Our focus, ins tead, is upon the statutory construction of the sentencing provisions gover

ning life imprisonment and li fe without the possibilit y of parole.

Tennessee Code Annotated section 39-13 -207 governs sentencing in first degree murder cases wh ere the State does not seek the death penalty. Section 39-7 The penalty of li fe without

the possibi lit

y of parol e was establi shed by our l egislat ure in 1993, approximately one year after Middl ebrooks

. See 1993 Pub. Acts Ch. 473 , § 16. 6 13-207(a) provides that the jury shall determi ne in a separate sentencing h earing whether a defendant shall be sent enced to either life imprisonment or life without the possibility of parole. 7 The bifurcated hearing must be c onducted in accordance with Tennessee Code Annotated section 39-13- 204, excluding references to the death penalty. Tenn. Code Ann. § 39-13-207(a) (Supp. 1994 ).
Section 39-13-204 prescri bes the manner in which ev idence is to be presented and cons idered du ring the se ntencin g phase of a first de gree murd er trial. A ttorneys for both the State and the defen se are given an opportunity to present evidence relevant to the issue of puni shment. Such evidence may i nclude, but is not limited to , “the nature and circumstances of the crime; the defendant’s characte r, background history, and physic

al condition; any evi dence tending to establish or rebut the aggravating ci rcumstances enumerated in subsec tion (i); and any ev

idence tending to establish or rebut any mi tigating factors.” Tenn. Code Ann. § 39-13-204(c) (S upp. 1994).

Sections 39-13-207 and 39-13-204 combine to set forth the jury ’s role in fixing the appropriate life sentence. The jury must first determ ine if any statutory aggravating ci rcumstances or mitigati ng circumstances have been proven beyond a reasonable doubt. SeeTenn. Code Ann. §§ 39-13-204(e)( 1) and 39-13-207(d). If the jury unanimously finds the existence of at least one s tatutory aggrav

ating circumstance beyond a reasonable doubt, then in its considere d discretion, the jury may sentence the defendant either to l ife imprisonment or life without the possibility of parole. Tenn. Code Ann. §§ 39-13-207 (c) and 39-13-204(f)(2). In exercising it s discretion, the jury

is required to we igh and consider the statut ory aggravati ng7

circumstance or circums tances proven beyond a r easonable doubt and any mitigating circumstances. Tenn. Code Ann. §§ 39-13-207(d) and 39-13-204(e)(1) (Supp. 1994).
Nothing in the text of either section 39-13-207 or 39-13-204 prohibits the jury from considering an aggr avating circumstance when the aggravator duplicates an element of t he underlying of fense. The a ppellants, ho wever, argue that the language and context of section 39-13-207 reveal an inherent leg islative intent to appl y the Middlebrooks ’ rationale to sentences of li fe imprisonment without the poss ibility of parole.
The appellants contend that by enacting section 39-13-20 7 after the decision in Middlebrooks and by referring to sec tion 39-13-204 in the text of section 39-13-207, the legislature intended for the Middlebrooks rationale to apply in no n-capital felony murder cases. Otherwi se, according to the appell ants, every defendant conv icted of felony murder would be sent enced to life imprisonment wi thout the possibility of parole. We disagree.
The appellants’ reading of secti ons 39-13-207 and 39-13-204 ov erlooks the language in both statutes s tating that a sentence of life impr isonment or life without the possibility of parole shall be determined by a jury in its considered discreti on. See Tenn. Code Ann. §§ 39-13-207(c) and 39-13-204(f)(2). The jury is not required to per
se impose a sentence of life without the possibility of parol e even if it finds an aggravating circumstance proven beyond a reasonable doubt. The statutes require the jury to consider mitigating circumstances and other evidence from trial before determining the appropriate life sentence. A def endant convicted of felony murder, therefore, will not neces sarily be sentenced to l ife imprisonment without the po ssibility of parole even when the felony murder aggravator is applicable to the case.8 Both sections 39-13-207 and 39-1 3-204 are silent as to the us e of an aggravating ci rcumstance when the agg ravator duplicates an el ement of the offense. We must therefore rely upon well-know n principles of statutory construction to determine the proper reading of those statutes.

The cons truction of a stat ute is a que stion of law which we re view de novo , without a presumption of corr ectness. Roseman v. Roseman , 890 S.W.2d 27, 29 (Tenn. 1994). Our role in th at regard is to determine and to “give effect to the legislative intent

without unduly rest ricting or expandi ng a statute’s coverage beyond its intended scope.” Carter v. State , 952 S.W.2d 417, 419 (Tenn. 1997); Owens v. State , 908 S.W.2d 923, 926 (Tenn. 1995). Legislativ e intent must be ascertained from the natural and ordinary meaning of the statutory lang uage, “read in context of the entire statute, without any forced or subtle constr uction which would extend or limit its meaning.” State v. Davis , 940 S.W.2d 558, 561 (Tenn. 1997).
Keeping those caveats in mind, we address the specific language of section 39- 13-207 and its reference to secti on 39-13-204. Section 39-13-207( d) provides that “[t]he jury shall be instructed that, in imposing sentence, it shall wei gh and consider the statutory aggrav

ating circumstance or c ircumstances proven by the state beyond a reasonable doubt and any mitigating circumstance or circumstances.” Subsectio n (c) further provides that: If the jury unanimously de termines that the state has prov en beyond a reasonable doubt one or more of the statutory aggravati ng circumstances set forth in [s ection] 39-13-204(i), the jury shall, in its considered discretion, s entence the defendant either to impris onment for life without possibili

ty of parole or imprisonment for life. Tenn. Code Ann. § 39-13-207(c) (Supp. 1994).9 Section 39-13-204(i) contai ns the exclusive l ist of aggravating circumstances for first degree murder cases . Subsection (i) states that “[n]o death penalty or sentence of imprisonment for life without the possibility of parole shall be imposed but upon a unanimous finding that the stat e has proven beyond a reas onable doubt the existence of one (1) or more of the statutory aggravating circumstances, which are limited to the following ... .”
The above provisions set forth the strictures for cons idering aggrav ating circum stances

in firs t degree murder

cases w here the State seeks the penalty of life imprisonment without the pos sibility of parole. The s tatutory text is unambi guous and contains no restriction upon the use of an aggravati ng circumstance when the aggravator duplic

ates an element of the offense. Accordingl y, we do not accept the argument that section 39-13- 207 was intended to incorpor ate the rationale from Middlebrooks . Such a holding would extend the meaning of the statute beyond its actual text.
If the legislature had intended for section 39-13-207 to prohi bit the use of an aggravatin g circumst ance when duplicat ive of an e lement o f the of fense, it could h ave so provided in the text of the statute. Such language, for example, was included in Tennessee Code Annotated section 40-35- 114 (1989). Section 40-35-114,part of the Sentencing Reform Act of 1989, gov erns the use of enhancement factors in criminal sentencing and contains a list of statutory enhancers w hich may be relied upon if the enhancers are not essential el ements of the underlying offenses. Tenn.Code Ann. § 40-35-114 (Supp. 1994). That statut e provides that “[i]f appr opriate for the offense, enhancement factors, if not themselves essential elements of the offense as char ged in the indictment, may incl ude [the following].”8 The Sentencing Commission Comments to Tennessee Code Annotated section 39-11-117 (1989) w ere ado pted bef ore the e nactm ent of the p enalty of life im prisonm ent withou t parole. 10 The appellants argue that section 40-35-114 reveals the legislature’s disapproval of using an aggravating circumstance when the aggrav ator duplicates an element of the offense. This contention, how ever, overlooks the unique sentencing scheme established for first degree murder cases. “Because first degree murder is punished by either life impr isonment 8 or death, first degree murder is not punished according to the sentencing structure provided i n section 40-35-105 et seq .” Tenn. Code Annotated section 39-11-117 ( Sentencing Commission Comments)

. Accordingly, the pr

ovisions in 40-35-114 ha ve no bearing on the sentenc ing procedures in first degr ee murder cases.

Moreover, in constru ing section 39-13-207, w e must presume that the legislature had knowledge of our decision in State v. Middlebrooks and the sentencing guidelines in Tennessee Code Annotated section 40-35-114, w hen it enacted section 39-13-207 in 1993. See Owens v. State , 908 S.W.2d 923, 926 (Tenn. 1995). The legislature, never

theless, established the sente ncing procedures in sec tion 39-13-207 without any reference to Middlebrooks or section 40-35-114, and w ithout any limitation upon the use of aggravating circumstances in cases w here the defendant is eligibl e for life imprisonment without the possibility of parole.

CONCLUSION

Tennessee Code Annotated sections 39- 13-207 and 39-13-204 provide the exclusive sentenci ng scheme for first degree mur der convictions. Hav

ing found nothing in those statutes to prohibit the use of an aggra vating circumstance when the aggravator duplicates an element of the offense , we conclude that the appellants’ contention is without mer it. The felony murder agg ravator (i)(7) c an be used to11

enhance a sentence to life without the possibility of parole when the de fendant is convicted of felony murder.
The judgment of the Court of Criminal Appeals is af firmed and the case is remanded to the trial court for further proceedings consis tent with this opinion.

_____________________________ WILLIAM M. BARKER, JUSTICE

CONCUR: Anderson, C.J. Drowota, Birch, Holder, JJ.