# FILED

July 30, 1997 Cecil Crowson, Jr

. App ellate C ou rt Clerk IN THE COURT OF CRIMIN AL APPEALS OF TENN ESSEE

AT KNOXVILLE JANUARY

1997 SESSION

RONALD RIC HARD HAR RIES, ) No.03C01-9607- CR-00276 ) Appellant ) ) SULLIV

AN CO UNTY V. ) ) HON. LYNN W. BROW N, STATE OF TENNESSEE, ) JUDGE ) Appellee ) (Pos t-Con victio n - Dea th Pe nalt y) ) )

For the Appell ant: For the Appell ee: Michael J. Passino John Knox Walkup Lassiter, Tidw

ell & Hil debrand Attorney Gen eral and Repor ter 213 Fifth Avenue, North Nashvil le, TN 37219 Amy Tarking ton Assistant Att orney Gener al Peter Alliman 450 James Roberts on Parkway Lee & Alliman Nashvil le, TN 37243-0493 Highway 411 Nort h (On appeal) P.O. Box 425 Madisonvi lle, TN 37354 Glenn R. Prude n Assistant Att orney Gener al 450 James Roberts on Parkway Nashvil le, TN 37243-0493 (At hear ing) H. Greeley We lls, Jr. Distric t Attorney General P.O. Box 526 Blountvil le, TN 37617

OPINION FILE D: ___________________

AFFIRMED

W illiam M. B arker, Ju dge1 A ful l r ecit ati on of t he fact ual ci rcumstances surro unding the of fense i s contai ned in the sup rem e co urt’s o pinion in app ellant’s c ase on d irect a ppe al. Stat e v. Harri es , 657 S. W .2d 414 ( Tenn. 1983). 2 OPINION

In this capit al case, appell ant, Ronald Ri chard Harr ies, appeals as of right the denial by t he Sullivan County C riminal Cour t of his second peti tion for post-conviction relief. He ar

gues that the t rial court erred in findi ng that the ju ry’s appl ication of the felony-murder

aggrav ating circumstance in v iolation of the r ule announced in Stat e v. Middlebrooks , 840 S.W .2d 317 (Tenn. 199 2), was harmless beyond a reasonable doubt. In that respect, he also contends the tri al court err ed by concl uding that evidence of his

alcohol and dr ug intox ication at the time of the offense was n ot a mitigating factor wit hin the statute an d that appellant’ s history of drug addict ion was not sufficient miti gating ev idence whi ch would hav e resulted in a lesser puni shment absent the application of the invalid agg ravating circumstanc e. After a thorough review of the record, i ncluding thetrial tr anscript and t he transcript

from the hearing on appellant’s first post-conviction petition, we are of the opinion that the u se of the inval id felony-mur der aggr avating circumstance was harmless beyond a reasonable doubt. The trial court’s denial of appellant’s petition is affirmed. PROCEDURAL HISTORY Appellant was convic

ted in 1981 of the felony murder of Rhonda Greene, an eighteen-year-old cash ier at a convenience store i n Kingsport

. 1 At the sentenci ng pha se of the t rial, the j ury im pose d a se nten ce of deat h, f indi ng the pres ence of t wo statutory aggravating cir cumstances w hich were not outwei ghed by the mitigating evidence. Specifically, the jury found that the defendan t had been previously convicted of one or more felonies , other than the pr esent charge, which i nvolved the use or threat of violence to the person, and t he murder was committed w hile the defendant was eng aged in committ ing a robber y. SeeTenn. Code Ann. §39-3

2404(i)(2), (7) (Supp. 1981). On direct appea l to the supreme court, appe llant’s convicti on and death sentence were affirmed. State v. Ha rries , 657 S.W.2d 414 (Tenn. 1983). No

permission w

as sought for a writ of cer tiorari to the United Stat es Supreme Court. Appellant’s fir

st post-conv iction petit ion was fil ed in March of 1986. That petition rai sed thirty -five (35) issues, inc luding cl aims of ineffective a ssistance of counsel at tr ial and on appeal; unconstitutio nality of the Tennessee death penalty statute; numerous e rrors in voir dire and the selection of grand and petit juries in Sullivan County; inadequate evaluation of a ppellant’s mental conditio n; and incorrect application of the felony-murder aggrav ating circumstance. Fol lowing a three-day evidentiar

y hearing , the trial court denied relief on the petiti on. On appeal, that judgment was affirmed by thi s Court. Ronald Richa rd Harri es v. State , No. 833 (Tenn. Crim. App. at Knoxvil le, August 29 , 1990), perm. to appeal denied (Tenn. 1991). The current petition was filed Sep tember 9, 1993, alleging constitutio nal error in the applicatio n of the felony-mur der aggr avating circumstance to appellant’s convicti on for felony murder

. See State v. Middlebrooks , 840 S.W .2d 317 (Tenn. 199 2). No other grounds

for relief w ere raised. After conducting an evidenti ary heari ng, the tri al court issued a thorough st atement of its finding s of fact and conclusi ons of law. The trial court found : (1) that the evidence supporting the rema ining valid aggravating factor w

as uncontradic

ted and overw helming; (2) that the prosec utor placed littl e emphasis on the i nvalid ag gravator during hi s closing argument; and ( 3) that no additional evidence s upporting theinvalid aggrav ating circumstance was introduced at t he sentencing phase. In eva luating the evidence offered i n mitigatio n, the trial court found that any mitigation from appellant’s drug addict ion was neg ated by proof that appe llant committed num erous crimes to support his habit. Th e trial court further found that ev idence that appell ant was under the influence of drug s and alcohol at the t ime of the crime was insufficient to demonstrate that he was substantiall y impaired

. See Tenn. Code Ann. §3 9-2404(j)(8) (Supp. 1981). It also4

found that appellant’s

claims of remor

se for the cri me were belated and lacked sincerity and were not supported by the factual record. However, the trial court did accord some weight to that claim and also to appellant’s claim that the shooting was accidental. The trial court also conside red a list of ten additional m itigating factors submitted afte r the filing of the petition. Consid ering all the above, the trial court concluded that the Middlebrooks error was harmless bey ond a reasonable do ubt. See State v. Howell , 868 S.W.2d 238 (Tenn. 1993), cert. denied 510 U.S. 1215, 114 S.Ct. 1339, 127 L.Ed.2d 687 ( 1994). Appellan t’s petition for relief was denied. STA NDA RD OF REVI EW The parties have raised the question of the proper standard of review for this Court to apply

in revi ewing t he Howell harmless err or analys is performed by the trial court. A rev iew of Tennessee case law reveals that this questi on has not been squarely addressed. Our

supreme court has had eight opportunities to consider whe ther appl ica tion of th e fel ony -mur der agg ravator

in v iol atio n of Middlebrooks was harmless beyond a reasonable do ubt. See State v. Hi nes , 919 S.W.2d 573 (Tenn. 1995), cert. denied ___ U.S. ___, 117 S.Ct. 133, 136 L.E d.2d 82 (1996); Stat e v. Walker , 910 S.W.2d 381 (Tenn. 1995), cert. denied ___ U.S. ___ , 117 S.Ct. 88, 1 36 L.Ed.2d 45 (1996); State v. Ha rtman , 896 S.W.2d 94 (Tenn. 1995); State v. Smit h , 893 S.W.2d 908 (Tenn. 1994), cert. denied ___ U.S. ___, 116 S.Ct. 99, 133 L.Ed .2d 53 (1995); Barber v. State , 889 S.W.2d 185 (Tenn. 1994), cert. denied ___ U.S. ___, 115 S.Ct. 1177, 130 L.Ed.2d 1129 (1995) ; State v. Nichols , 877 S.W.2d 722 (Tenn. 1994), cert. denied , 513 U.S. 1114, 11 5 S.Ct. 909, 130 L. Ed.2d 791 (1995); Stat e v. Cazes , 875 S.W.2d 253 (Tenn. 1994), cert. denied 513 U.S. 1086, 115 S.Ct. 743, 130 L.Ed.2d 644 (1995); State v. Howell , 868 S.W.2d 238 (Tenn. 1993), cert. denied 510 U.S. 1215, 114 S.C t. 1339, 127 L.Ed.2d 68 7 (1994). Pr ocedurally , howeve r, it has not had the opportunity

to revie w findings

of fact and conclusi ons of law foll owing a trial court’s Howell harmless err or analys is. In fact, the supreme court has reviewed the5

issue in the context of post- convicti on only tw ice and both times without t he benefit of a post-conv iction cour

t’s findings

on the issue. See Hartman , 896 S.W.2d at 96; Barber , 889 S.W.2d at 186. This Court has

rendered deci sions in capi tal cases in this procedur al posture at least twi ce. See Tommy L. King v. State , No. 0 1C01- 9512-C C-004 15 (Tenn . Cri m. App. at Nashv ille, Febr uary 12, 1997) , appeal granted (Tenn. July 7, 1997); Michael J. Boyd v. State , No. 02C01-940 6-CR-00131 (Tenn. Crim. App. at Jackson, Fe bruary 21, 1996), appeal granted (Tenn. November 25, 1996). In Boyd , a panel of this Court discussed the trial cour t’s analysis of the Howell issue, but di d not expli citly r ely upon the tria l court’s f indings o r discuss t he stan dard of review. The t rial court ’s find ings were not addr

essed in King

. W e are mindful of the well-established standard of review generally applicable to denials of post- convicti on petitions. The trial cour t’s findings

of fact and conclusi ons of law are g iven the weight of a jur y ver dict and accor

ded a presumption of correctness. This Court is bound by those f actual findings unless the evidence within the record preponderates agai nst the judgment

. See, e.g., Davis v . State , 912 S.W.2d 689, 697 (Tenn. 1995); Cooper v. State , 849 S.W.2d 744, 746 (Tenn. 1993); Adki ns v. State , 911 S.W.2d 334, 354 (Tenn. Crim. App . 1994); Alley v . State , 882 S.W.2d 810, 817 (Tenn. Crim. App. 1994); Rhoden v. State , 816 S. W.2d 56, 59-60(Tenn. Crim

. App. 1991); Bankston v. State , 815 S.W.2d 213, 215 (Tenn. Crim. App . 1991); Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App . 1990); Teague v. Stat e , 772 S.W.2d 932, 933-34 (Tenn. C rim. App. 1988); Brooks v. State , 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988) ; Vermilye v. State , 754 S.W .2d 82, 84 (Tenn. Crim. Ap p. 1987); Buford v. State , 666 S.W.2d 473, 475 (Tenn. Crim. App . 1983); Clenny v . State , 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978) , cert. denied 441 U.S. 947, 99 S .Ct. 2170, 60 L.Ed.2d 1050 (1979) ; Long v. St ate , 510 S.W.2d 83, 86 (Tenn. Crim. App. 1974). The supreme court r

ecently appl ied this stand ard of revie w in a cap ital case w hen6

review ing a lower court’s determination on the ineffective as sistance of counse l. Goad v. State , 938 S.W.2d 363, 368-69 (Tenn. 1996). Applying these principles, we conclude that the fa ctual findings of the trial court inherent in a h armless err or analys is are entit led to a presumpti on of correctness . For example, the emphas is that the pr osecutor plac ed on the inva lid aggr avating circumstance in closing argument, as well as the numbe r of remaining valid aggravating cir

cumstances, shoul d be considered factual findings. Determinati ons on the quality

of mitigating evidence ar e also entitl ed to the presumpti on. See Park er v. Dugger , 498 U.S. 308, 111 S.Ct. 731, 737- 38, 112 L.Ed.2d 812 ( 1991) (concl uding that a state appel late court’s determination t hat the trial judge found no miti gating circumstances

in a capital trial is

an issue of hist orical fact i n habeas corpus proceedings

and entitled to presumption of corr ectness if fairl y supported by the record). Howeve r, a trial court’s ul timate conclusi on of harmlessness is not entitl ed to a presumption of corr

ectness, but r

ather requi res a de novo review

. See Yates v. Evatt , 500 U.S. 391, 111 S. Ct. 1884, 1894, 114 L.Ed.2d 432 (1991) (evaluati ng the harmlessness o f a constitutional error req uires consi deration of the enti re record) (citations omitted); Arizona v . Fulminante , 499 U.S. 279, 111 S.Ct. 1246, 1257, 113 L.Ed.2d 302 (1991) (stating that the Supreme Co urt has pow er to rev iew the record de

novo to determine er ror’s har mlessness). This is due, i n part, because t he issue of harmlessness i s a mixed q uestion of law and fact. See Deputy v . Taylor , 19 F.3d 1485, 1496 (3d Ci r.), cert. denied 512 U.S. 1230, 114 S.Ct. 2730, 129 L.E d.2d 853 (1994) (findingthat state cour t’s conclus ion of harmlessnes s is a mixed question of law and fact, not entitled to a presumption of cor rectness); Suniga v. Bunnell , 998 F.2d 664, 667 (9th Cir. 1993) (determinati on by state ap pellate court that instruc

tional

error was harmless i s mixed q uestion of law and fact to be rev iewed de novo ). See also Cremeans v. Chapleau , 62 F.3d 167, 169 ( 6th Cir. 1995) , cert. denied ___ U.S.2 This Court has previ ously held thatpost- convi cti on revi ew is comparabl e in scope to f ederal hab eas corp us re view. Luttre ll v. State , 644 S.W .2d 408, 409 (T enn. Crim . App. 1982). 7 ___, 116 S.Ct. 822, 133 L.Ed.2d 765 (1996 ) (finding that mixed q uestion of law and fact is not entit led to deference). Furthermore, it is imposs ible to determi ne the impact of an er ror and evaluate its harmless ness wit hout evaluati ng it in t he context of the entire recor d. Our rule s of appellate procedure require as much : “A final judgment from which relief is available and otherwi se appropriateshall not be s et aside unless , considering the whole record , error inv olving a substantial right more probably than not affected the judg ment or would result in prejudice to the judicial process.” See Tenn. R. App. P. 36( b) (emphasis added) . Moreover, Howell directs the reviewing court to examine the entire record for factor

s which potentially

influenced the jur

y’s deci sion. 868 S.W.2d at 260. This is necess ary to sat isfy the constitutional demand of individual ized sentenc ing consideration s in capital cases. Stringer v. Black , 503 U.S. 222, 112 S.Ct. 1130, 1136, 117 L.Ed.2 d 367 (1992). In reaching these conclus ions, we a re guided by the approach used in federal courts for habeas corpus pro ceedings. 2 In such proc eedings, factual findings of the state courts are entitled t o a presumption of cor rectness, j ust as we grant deference to the post-conv iction cour t. See 28 U.S.C. §2254(e)(1) (Supp. 1997 ). This deference is equally applicable to

findings of a state appellate cour t. Sumner v. M ata , 449 U.S. 539, 101 S.Ct. 764, 769, 66 L.Ed.2d 722 ( 1981). How ever, w hen determining the harmlessness o f an error, review of the record shoul d be de novo with no pr

esumption of correctness. See Miller v . Fenton , 474 U.S. 104, 106S.Ct. 445, 450, 88 L.Ed.2d 405 (1985) (concluding th at ultimate q uestion of admissi bility of confession is not fac tual dete rmin atio n ent itle d to p resu mpt ion o f co rrect ness ). It i s withi n thi s con text that we rev iew appell ant’s assig ned errors.3 O rd ina rily, th e s tatu te o f lim itatio ns wo uld ha ve ex pir ed on Ju ly 1, 1 98 9, th er eb y pre ve ntin g th is late-filed pos t-con viction p etition. T enn . Co de A nn. § 40-3 0-10 2 (re pea led 19 95). See also State v. Masucci , 754 S. W .2d 90, 91 (Tenn. Crim. App. 1988). However, wit h regard to af fordi ng appel lantthe ri ght t o li ti gate t he Mid dl ebr ooks iss ue , his pre se nt p etitio n w as tim ely u nd er the rule an no un ce d in Bu rford v. State , 845 S.W .2d 204 (Te nn. 1992). 8 MIDDLEBROOKS ERROR Appellant argues that his death sentence is infirm as a result of the jury’s application of the f elony-murder aggravating circumstance to his conviction for first degree felony murder. He contend s that such error cannot be considere d harmless in light of the substantial mitigating evidence prese nted at trial and the presence of only one valid ag gravati ng circumstance. We disagree. When a defendant is convicted of firs t degree murder solely on the basis of felony murder, use of the aggr avating circumstance that the murder w as committed during the perpetration of a felony fails to suff iciently narrow the class of death-eligible murderers. State v. Middlebrooks , 840 S.W .2d 317, 346 (Tenn . 1992). Because use of this aggr

avating circumstance in a felony-mur der convi ction to asses s the death penalty dupl icates the ele ments of the offense, it v iolates the Tenness ee Constituti on. Id. Thus, in order

to support death as a penalty for the crime of felony

murder, a finding of at leas t one of the other st atutory ag gravati ng circumstances is nece ssary. Id at 346-47. This rule has been hel d to apply r etroactively. Barber v. State , 889 S.W.2d 185, 186 (Tenn. 1994), cert. denied ___ U.S. ___, 115 S.Ct. 1177, 130 L.Ed.2d 1129 (199 5). 3 It is apparent on the face of the recor d that a Middlebrooks error occurred in appe lla nt’s

cas e. A ppel lant

shot and k ill ed R hond a Greenedur ing the cours e of a robbery of the Jiffy Market where she worked. As a result, the jury found him guilty

of first degreefelony murder. The jury’ s applicatio n of the felony-mur der aggr avating circumstance was duplicative of the elem ents of the crime. As a result, this circumstance cannot be used to s upport appellant’ s death sentence. Such error, however, does not automatically mand ate a reversal of appellant’s death sentence or require a new sentenci ng hearing . This Court must revie w the4 At trial, ap pellan t con ced ed th e pre sen ce o f thes e two agg rava tors in his clo sing argu m ent.

5 Appell ant t esti fi ed about his pr evi ous convi cti ons duri ng his dir ect t esti mony at t he gui ltphase of the trial. 9 record of the ev idence at tri al and evalu ate whether the error i s harmless bey ond a reasonable doubt. See State v. Howell , 868 S.W.2d 238, 259 (Tenn. 1993), cert. denied 510 U.S. 1215, 114 S.Ct. 1339, 127 L.E d.2d 687 (1994). To perform that analysis , our supreme court delineated certain factors which pot entially

influence the sentence imposed at

trial. Id at 260. These rel evant factors include: (1) the number and strength of the rema ining valid aggravating circumstances; (2) the extent to which the prosecutor

emphasized theinvalid aggrav ating circumstance duringclosing argument; (3) the evidenc e admitted to establ ish the invalid agg ravator; and (4) the nature, quali ty, and strength of the mitig ating ev idence. Id at 260-61. If the r eviewi ng court determine s that the jur y woul d have imposed the same sentence had it given no weight to the invalid aggravating circumstance, the error is harmless and the sentence may be affirmed. Id at 262. HOWELL AN ALYSIS A. Remaining A

ggravat ors At appellant’s trial, the jury found on e other aggravating circumstance in addition to the felo ny-murder aggravator: appellant had previo us convic

tions of felonies involving the use or threat of violenc e to the person. 4 Tenn. Code Ann. §39- 2404(i)(2) (Supp. 1981). In support of this aggrav ating circumstance at the s entencing phase, the State i ntroduced testi mony and certi fied copies of conv ictions to substantiate thr

ee previous

violent fel onies from the stateof Ohio: robbery , armed robbery an d kidnap ping. 5 Although the n umber of valid aggravators is relevant, the crucial i nquiry is the qualitative nature of the aggravating circumstance, its substan ce and persuasiveness, and the quantum of proof s upporting i t. Howell , 868 S.W.2d at 261. In this res pect, our supreme court has dete rmined that the prior violent felon y aggravator is more6 The character iz ati on of t his cr ime as a vi olent fel ony used to support t he aggrava ti ng cir cumstance was chall enged on di rect appeal. The vict im’s t esti mony was that she was pl aced in fear because appel lant ’s hand was in his pocketin a manner indi cati ng thathe had a weapon. Consider ing that fa ct, ou r sup rem e co urt fou nd th at it was not e rror to adm it the co nviction

. Harri es , 657 S. W .2d at 421

. 7 Up on re leas e, ap pellan t was im m edia tely incarc erate d in fe dera l prison for m ail fraud

. Appell ant comm it ted t he inst ant of fense l ess than t wo months after his December 12, 1980, r elease from con finem ent. 10 qualitativ ely persu asive and obj ectively reliable t han others. Id. Moreover , the influence of this ag gravati ng circumstance increas es if there is proof of multiple felony convicti ons. Id. See also State v. Nichols , 877 S.W.2d 722, 738 (Tenn. 1994), cert. denied 513 U.S. 1114, 115 S.Ct. 909, 130 L.E d.2d 791 (1995). Appellant’s previous robbery conviction arose from the hold-up of a dairy store in Cuyahog a Falls, Ohi o. The victi m, an eighteen- year-old clerk at t he store, testi fied that appellant ent ered the store and demanded money. H e had his hand in his pocket and she was unsure if he was armed. 6 The armed robbery convicti on and kidnapping arose in Cant on, Ohio. Appell ant was ar med and entered a restaurant. As he was robbing a waitress, a po lice crui ser drove into the rest aurant parkinglot. Appell ant took the wai tress hostag e to make his escape. He and his accomplice hel d her for ten hours and then released her. The v ictim testi fied at trial, stating that appellant threatened her l ife more than once w hile she was being hel d, but that she was not physically harmed. She added that app ellant did not want to release her and his accomplice eventually convinced hi m to do so. Appell ant pled guil ty to all three crimes and served ap proximatel y seven and one half year s in an Ohio state prison. 7 The record suppor

ts the trial court’s findi ng that the remaining ag gravati ng circumstance in appellant’s case was supported by uncontradicted and overw helming proof. The appellant t estified to the su bstance of these cr imes during the guilt phase, the State introd uced certified copies of the conv ictions, and t he victi ms of the crimes testified at the sente ncing phase of appellan t’s trial. Due to the objective nature of this aggravating circumstance and the quantum of proof supporting it, we believe it significantl y influenced t he jury’ s verdic t.8 As a corol lary, the t ri al court fu rthe r i nstru cted t he jury t hat al l ofappel lant ’s pr evi ous convi cti ons coul d be consi dered t o rebut any cl aim or pot enti al cl aim in mit igat ion t hat appel lanthad no sign ificant h istory of p rior crim inal ac tivity. See Tenn . Code A nn. §39-240 4(c) (Supp. 198 1). 11 Appellant arg ues that the admiss ion of non-vi olent crimin al acts duri ng the penalty phase of the trial under mines confidence in the jury ’s determinati on on the previous violent felony

aggrav ating circumstance. At thesentencing phase, the State introduced pro of of convictions for malicious breaking and mail fraud. The circu msta nces surro und ing th ose o ff ense s dem onst rate that they d id no t invo lve violence o r the threat of v iolence. A panel of this Court recently held that the admission of non-v iolent felonies at the penalty stage of a capi tal trial does not necessarily

require a new sentenc ing hearing , but may be co nsidered harml ess error. State v. Per ry A. Cr ibbs , No. 02C01-950 8-CR-00211 (Tenn. Crim. App. at Jackson, February 14, 1997). See also State v. Campbell , 664 S.W .2d 281, 284 (Tenn . 1984), cert. denied 469 U.S. 920, 105 S.Ct. 302, 83 L.Ed .2d 236 (1984). But see Stat e v. Johnson , 661 S.W.2d 854 (Tenn. 1983) (determi ning that admis sion of non-vi olent felonies in suppor

t of the aggravating circumstance was so prejudicial t hat it requ ired a new sentencing hearing). In holding that any error at appellant’s trial in this respect

was har mles s, we con cur

in t he co ncl usi on of Cribbsthat the r atio naleof Johnson is inapplicable in light of subsequent Uni ted States Supreme C ourt holding s. See Clemons v. Mississ ippi , 494 U.S. 738, 110S.Ct. 1441, 108 L. Ed.2d 725 (1990) (permitting harmless err or revi ew when jury has relied on inv alid agg ravating circumstance in imposing death penalty). We are confident in the jury ’s finding on this agg ravating circumstanc e in light of the substantial proof offered to support i t. Moreover, the tria l court instructed the jury to o nly consi der the robbery , armed robbery and kidnapping convicti ons when evaluating the aggravating circumstance. It specifical ly dire cted that no other previous convictions could be considered on the aggravator. 8 In light of these attendant facts and the overw helming proof su bmitted on the pri or viol ent felonies, we do not find that9 Introduction of the ma il fraud conviction was ch allenged on direct appeal. The s uprem e court fou nd th at its ad m ission was harm less erro r. Harri es , 657 S. W .2d at421-22. 12 the introduction of th ese two non-violent crimes affecte d the jury’s verdict. Any error in their admission was harmless. 9 B. Prosecution’s Closing Argument W e next consider the prosecutor’s closing argument and the extent to which it emphasized the invalid felony-murder aggrav ating circumstance. Our review of the record does not indicate that the district attorney placed any undue emp hasis on this aggravating cir

cumstance. The State sought to prove six statutory

aggrav ating circumstances . The prosecutor ’s argument walked the jury thr ough each of the aggravators and also addressed the mit igating circumstances . The prosecutor referred to the felon y-murder aggravator only twice. If any emphasis can be detected in t he argument, i t was dev oted to the “witnes s killin g” agg ravator. Tenn. Code Ann. §39- 2404(i)(6) (Supp. 1981) ( “the murder was commi tted f or the pu rpose of avoiding, in terfe ring with, or p reventin g a lawful arrest or prosecution of the d efendant or ano ther”). This theory was a substantial component to the State’ s proof, beginni ng at the gu ilt phase of the tr ial. In response to q uestions by the prosecuti on, appellant ack nowledged that the vic tims of his previ ous violen t crimes ide ntified him as the perpetrator. In light of that, the State implied that appel lant intended to l eave no w itnesses to th e robbery of the Jiffy Market to reduce the pos sibility of identification. That theory w as additionall y supported by proof that the appell ant fired upon the othe r cashier at the market and c ircumstantial proof that appellant believed Gr eene was the o nly cler k in the store at the time of the robbery. See State v. Ha rries , 657 S.W.2d 414, 417 (Tenn. 1983). Appellant acknow ledges that on ly a small portion of the Stat e’s argument focused on the felony- murder agg ravating circumstanc e, but argues that a substanti al portion of the arg ument was dev oted to the “w itness elimi nation policy of the felony murder agg ravator.”

He attempts to equate the felony -murder agg ravator w ith the10 Alt hough argued by t he Stat e, t he jury di d not f ind t he wit ness-el iminat ion ag gravat ing cir cumstance. 13 witness-elimination aggravator. 10 Compare Tenn. Code Ann. §39- 2404(i)(7) (Supp. 1981) and Tenn. Code Ann. §3 9-2404(i)(6) (Supp. 1981). This Court ha s previously rejected such a contention. State v. Leroy Hall, Jr. , No. 03C01-930 3-CR-00065 (Tenn. Crim. Ap p. at Knoxv ille, Dece mber 30, 1996). S imilarly , claims that use of these two ag gravator

s constitute d ouble weig hing have also been rejec ted. Stat e v. James Blanton , No. 01C01-930 7-CC-00218 (Tenn. Crim. App. at Nashvi lle, April 30, 1997). The legislat ure’s delin eation of these two separate agg ravators is sufficient to rebut appellant’ s claim. A find ing of either can be used to suppo rt the imposit ion of the death penalty

. See Tenn. Code Ann. §39- 2404(g) ( Supp. 1981). In add ition, the plai n lan guage of t hese aggrava ting c ircum stan ces si gnif y that they s eek t o tar get two different groups o f murderers. The w itness-eli mination agg ravating circumstanc e, Tennessee Code An notated section 39-24 04(i)(6), enhances the punishm ent when it can be proven that at least one m otive for the killing was the threat of defe ndant’s apprehension. State v. Smit h , 868 S.W.2d 561, 580 (Tenn. 1993), cert. denied , ___ U.S. ___, 115 S.C t. 417, 130 L.Ed.2d 333 (1994). In contrast, the felony-murder aggravator is used to target those murderers who cause the death of the victim while committing, at

tempting to commi t or fleeing from certain enumerated felonies. Tenn. Code Ann. §39-2404( i)(7) ( Supp. 1981). As such, different proof i s necessary to support the impos ition of each. Al though it may be argued that

in many felony murders the pur pose is to eli minate witn esses, State v. Terry , 813 S.W.2d 420, 423 (Tenn. 1991), suc h a blanket asse rtion does not apply to every felony murder. It cannot be said that every murder committed during the course of a felony i s for the purpose of eliminat ing wi tnesses. State v. Teresa Deion Smith Harris , No. 02C01- 9412-CC-00265 (Tenn. Crim. App. at Jackson, November 12, 199 6). Each case must stand on its individual factual circumsta nces. Appellant’s argument on th is issue fails.11 Appell ant t esti fi ed thatwhen he was neari ng rel ease from pri son, he sou ght methadone trea tment fr om the pri son doctor . Thi s clai m was not corrobor ated by any o therevi dence i n the r ecord. 14 C. Evidence Supportin g Inval id Circumstance Also relev

ant to our deter mination is theevidence w hich was admitted to establish the invalid aggravating circumstance. W e must consider whether an invalid aggravator was established by evidence that was materially inaccurate or admissible only to support the invalid aggravator, or whether the evidence was otherwise admissible i n the guilt or sentencing phases. Howell , 868 S.W .2d at 261. Evidence that the murder w

as committed duri ng the commiss ion of a felony came during the State’s case- in-chief at the g uilt phase and r esulted in appel lant’s conv iction of felony murder. No additional evidence to supp ort the invalid aggravator was introduced in the sentencing phase of the trial . An aggr avating factor whic h duplicates t he elements of the underlyi ng crime, as in appellant’ s case, has l ess relativ e tendency to prejudicial ly affect the sent ence imposed. Id. Appellant conc eded this point at the post-co nviction h earing. D. Mitigatio n Evide nce Finally , we must consider all the relevant mitigati ng evidenc e, including its nature, streng th, and quali ty. Howell , 868 S.W.2d at 262. Appellant’s case is repl ete with informat ion offered as mitig ation, primar ily per taining to h is history

of drug and alcohol abuse and add iction. Indeed, at trial, drug and alcoho l abuse was the primary theory of appell ant’s defense. Appel lant contended that he was hig h on drugs at the time of the offense and unawa re of his actio ns. Appellant testi fied during theguilt phas e of the trial. In addition to t estimony of his previou s crimes a nd perio ds of co nfine ment, appella nt deta iled his u se of d rugs and alcohol during his teenage years that continu ed throughout his adult life. He stated that he unsuc cessfully tried to overcome his dr ug habit w hile incarc erated. 11 In addition to alcohol, appellant provided det ailed descri ptions of the amount and t ypes of drugs he was using in the days before and the day of the shooting. Appellant’s12 The State co ntended t hat t his was i n exchange for favor able t esti mony appell ant had a lr eady giv en on be ha lf of Sta ple ton at h is tr ial. 15 convicted accomplice and al leged drug supplier, C harles Wade Stapleton, attested to appellant’s us e of drugs and al cohol before the cr ime. 12 Furthermore, appellant testi fied that he did not i ntend to kill Greene and that th e shooting was accidental. He expla ined that the g un was coc ked when he ent ered the store. As he pointed the gun at Green e, he claimed that anot her patron in the store startled and jostled him, causin g the gun to discharge. Another aspect of appellant’s testimony i ntended to be mitig ating was that the gun did not belong to him. Appell ant claimed that he obt ained the gun from R alph Page, a mutua l friend of appellant and Stapleton, and that Page was the moving force behind the r obbery. Appel lant concluded his testimony by expressi ng remorse for the crime. Appellant did not testif y at the sentencing portion of the trial, relying on his earlier testimony as mitigation. Instead he intro duced document ary evidence in mitigation at the sentencing phase . A report from Dr. Herbert Bockian, a psychiatrist who eval uated appellant’s competency to stand trial and screened him for drug use, was read i nto the record. That drug sc reen, performed the week of the trial, revealed a trace amount of barbiturates in appellant’s blood . The test was performed in response to appel lant’s clai ms that he was obtaining and taking dr ugs whi le confined. Apparently, the report was intended to cor roborate appell ant’s testimony of his drug addiction. A report from the S outhern Ohio Co rrectional Facility was als o introduced. The 1977 report reflected that appellant possessed a syringe and one pill of Creptodigin while i n jail. Pr ison guards also observed fresh needle mark s on appellant’ s arms at that time. Again, this was intended to corrobo rate appellant’s testimon y of drug abuse and addiction, specif ically his claims that it continued throughout his conf inement in penal institutions.16 W e view such evidence as having little, if any, value in lessening appellant’s culpability in the eyes of the jury. Most of the evidence depicte d an undesirable lifestyle, painting a picture of a man w ho “caroused” at night, s lept during the day, and failed to maintain e mployment. In contrast, there was absolutely no evidence introduced in support of appellant ’s good char acter. State v. Howell , 868 S.W.2d 238, 262 (Tenn. 1993), cert. denied 510 U.S. 1215, 114 S.Ct. 1339, 127 L.E d.2d 687 (1994). The jury obv iously g ave littl e weight to appellant’s

testimony t hat he was “spaced out” o r high on dr ugs at the ti me of the crime. Appel lant possessed a clear recollection of the events of that evening. Proof reflected that appellant and his accomplice dr

ove around for s ome time before the cr ime to find a good place to rob. Appellant entere d the store and w aited for another c ustomer to leave before he committed the cri me. In addition, he had no difficulty fleeing from the c rime scene, meeting his a ccomplice at an appointed place, and later counti ng the money and separa ting it fro m foo d stamp s. Afte r countin g the mon ey, he bur ied the money ba gs behind Stapleton’s ho use and later that night gave the food stamps to Stapleton’s niece. Those activities indicate a keen a ppreciation for the wrongfulne ss of his conduc t. Moreove r, the da y following th e crime, appella nt, Sta pleton , and Pa ge traveled t o North Car

olina to dispo se of the gun used i n the murder. F ollowingthat trip, they had planned an elabo rate scheme for the th ree of them to rende zvous in Florida. The appellant arg ues that the tri al court err ed by finding the proof insufficient to sustain a deter mination that appel lant was s ubstantially impaired. Tenn. C ode Ann. §39-2404(j)( 8) (Supp. 1981) . As stated, we find the trial court’s co nclusion on substantial i mpairment supporte d by the record. How ever, he argues that even if the proof did not sati sfy that statut ory miti gator, the i nformation could st ill havebeen considered in mitigation

. See Tenn. Code Ann. §39- 2404(j) (Sup p. 1981) (miti gation13 Ap pe llan t’s b rie f c ites “S ec tion 39 -2 40 4( j)(9 )” w hic h a lleg ed ly “pr ov ide d th at th e ju ry c ou ld consider

‘any other evi dence yo u fi nd to be miti gati ng cir cumstances.’ ” W e note t hat subsect ion (j)( 9) was no t a part of the 1981 statute. Howeve r, the tri al court’s i nstructions to the jury advi sed that the jury cou ld con side r any fa cts o r circu m stan ces in m itigation. 17 evidence not limited to statutory mitigating circumstance s). 13 See also Lockett v. Ohio , 438 U.S. 586, 98 S. Ct. 2954, 57 L.Ed.2 d 973 (1978) (h olding that evidence at the sentencing pha se cannot be li mited to statutor y mitig ating circumstances). Contrary to appellant’s as sertion, the t rial court did not find that t he evidence could not be considered in mitigation. Rather, it gave it little weight in mitigation when considering it in light of the quality

of the proof supporti ng the val id aggravating circumstance. Howell , 868 S.W.2d at 262. Even thoug h the evidenc e may have been considered b y the jury, its questionable value was necessarily considered by the trial court in weighi ng the harmles sness of the Middlebrooks error. Hartman v. State , 896 S.W.2d 94, 104 (Tenn. 1995) (concluding that credibi lity of w itness is r elevant w hen weig hing harmlessness of invalid aggravating factor). Moreover , the trial court found that ev idence of appellant’ s drug addi ction was not persuasive in mitigation; there was virt ually no factu al proof offered in suppor t of that claim. There was no medi cal eviden ce that appellant was addic

ted to drugs or alcohol, nor did the psyc hological evaluations indicate that appellant was addicted. His testimony on the issue, corroborated on ly by accomplice testimony and thin documentary ev idence from four y ears before the cr ime, is hardl y convi ncing or significant in light of the other proof. The trial court also found by the appellant committing violent crimes to supp ort a drug habit, any mitig ation from whi ch the appellant might benefit was negated. Appellant characterizes this conclu sion as rank conjecture. Again, it w as the trial court’s duty to consider the quality and persuasiveness of th e mitigating evidence in the weig hing of harmless error. Howell , 868 S.W.2d at 262.14 This eval uati on was the b asis ofa 1984 rul ing by a feder al di stri ct cour t t hat appel lantwas inco m pete nt to w aive h is pos t-con viction rig hts a nd p roc eed to ex ecu tion. See G ro se clo se ex rel. Harri es v. Dutton , 594 F.Supp . 949, 956 (M.D . Tenn. 1984 ). 18 Other mitig ation eviden ce offered by appell ant lacked credibility . Appellant never dis puted that he shot R honda Greene, but c laimed that it was acci dental. Howeve r, this was contradict ed by other w itnesses. Appe llant clai med that Scott Fletcher, anot her store patr on, startled hi m and jostled hi s arm causing the gun to fire. In contrast, F letcher’s statements to law enforcement and unequi vocal test imony at trial reflec

ted that he wa s standing o utside the store in the parki ng lot at hi s car w hen he heard the guns hots. Addition ally, the surviv ing store cashier test ified that she saw Fletcher ex it the store and moments later hea rd the gunshot

. Finally , appellant’s remorse for Gre ene’s death was of little v alue in mitig ation. As the post-co nviction trial cour t noted, this s orrow dev eloped well after the crime was committed. After sh ooting Greene , appellant ex hibited no remor se. He did not attempt to aid the v ictim, but in stead fired a shot at the other cl erk. He then repeatedly demanded the money from her and did not permi t her to seek medi cal assistance for Greene. We are aware that appellant has offered evidenc e throughout hi s postconviction proceedings that he suff ers from brain damage. He argues that this should be considered i n mitigatio n of his crime. However, we notethat such ev idence was not before the jury

and could not have played a r ole in its d ecision. In addition, the evidence of bra in damage pri marily consists of a let ter from a New

York psychiatrist, 14 dated five y ears after the cr ime. Although appellant has bee n evaluated on numerous15 Ap pellan t’s com pete ncy to s tand trial was eva luated twice befo re the trial, as w ell as h is ability to appr eciat e the wr ongful ness of hi s conduct at the t ime of the offense. No personal it y di sorders or de fe cts we re dis co ve re d. W e a lso no te th at, a cc or din g to tes tim on y fro m ap pe llan t’s tr ial c ou ns el, app ellant w as v ehe m ently op pos ed to purs uing an ins anity de fen se a nd ins tructe d his a ttorne ys no t to consider

it . Moreove r, appell ant’ s competency t o proceed i n the i nstantproceedi ng was eval uated atthe trial cou rt level.

16 W e a ck no wle dg e th at a rep or t fro m a b oys ’ ho m e m ay h av e a llud ed to b ra in d am ag e. However, t his t esti ng was done i n 1962 and t esti mony at t he fi rst post- convi cti on heari ng att acked the cre dibility of this find ing. 19 occasions by both psychologists and psychiatrists, 15 the record before us does not indicate that ot her doctors ha ve reached a similar co nclusion. 16 Appellant broadl y attacks the Howell harmless error analysis because the jury is not req uired to speci fy the mitig ating circumstances it considered. H e contends that it is v irtually

impossible t o determine harml essness w ithout know ing whi ch facts the jury cons idered in miti gation. Our supreme court, acknowled ging that juries do not specify miti gating c ircumstances, has nevert heless found that a har mless error analysis c an be pe rformed . The co urt q uoted w ith app rova l from Clem ons v. Mississ ippi , 494 U.S. 738, 756, 110 S.Ct. 1441, 108 L.Ed.2 d 625 (1990): Nor are we im pressed with the cla im that without writt en jury fin dings concerning mitigating circumstances appellate courts cannot perform their proper

role. In Fonz

eo and Proffit, we upheld the Florida death penalty scheme permitting a trial judge to override a jury’s recommendation of life, even though t here were no writt en jury findi ngs. An appellate court also is able ade quately to evaluate any evidence relating to mitigating factors without the assistance of written jury findings. Howell , 868 S.W.2d at 260. Appellant’s argument is without mer it. Appellant arg ues that his deat h sentence cannot beupheld in li ght of the supreme court’ s ruling in State v. Walker , 910 S.W.2d 381 (Tenn. 1995). In Walker , a direct appeal of a death sentence, the court was unable to find the Middlebrooks error harmless w here the only valid remaining ag gravator was a previous v iolent felony convicti on. Id at 398. However, Walker is readily distinguishable from appellant’s case. At the Walker trial , the remaining aggrav ator was supported by only one voluntary

manslaughter convicti on. Cf. Stat e v. Mic hae l J. Bo yd , No. 02C01-9406-CR00131 (Tenn. Cri m. App. at Jacks on, February 21, 1996), appeal granted (Tenn.20

November 25, 1996) (finding in revi ew of post-co nviction proceeding t hat use of felony-murder aggravating circumstance harmless beyond a rea sonable doubt where remaining v

alid agg ravator, prior v iolent felonies, was suppor ted by one conv iction for second degree murder). He re, however, the agg ravator at appellant’s t rial was supported by proof of three prev ious viol ent felonies and a por tion of that proof was appellant’s ow n testimony. Therefore, the natureand the quantum of pr oof supporting the aggrav

ator was far more substanti al than in Walker

. In fulfilling our duty to evaluate the mi tigating evidence, we find that the evidence pr

offered was of litt le consequenc e in lower ing appellan t’s culpabil ity. Appellant admitted shooting the victim and his claims in mitigati on did littl e to ameliorate his liability for the crime. On two separate occa sions, the supreme court has considered similar mit igating evidence presented on behalf of defendants and found it insuff icient to require a new sentencing hearing in the context of harm less

error. See State v. Hi nes , 919 S.W.2d 573, 584 (Tenn. 1995); Howell , 868 S.W.2d at 262. Consider ing the subs tantial proof presented on the remai ning val id aggravator and the nature of that pr oof, coupled wi th the prosecutor’s argument and absence of inadmissible proof of the inval id aggravator, we find that the jur y woul d have imposed the death penalty

had it not cons idered the inv alid felony- murder agg ravating circumstance. CONCLUSI ON The trial cour

t’s findings

of fact on the indiv idual factors considered in Howell are fully supported by the record. Moreover, our de novo review indicates that the error in applying the felony-murder aggravator to appellant’s case was harmless beyond a reasonable doub t. The judgment of the trial court dismissing the appellant’s post-convi ction petiti on is affirmed. Unl ess stayed by a court of competent juris diction, the appellant’s

sentence of death by

electrocuti on shall be car ried out on Febr uary 10, 1998.21 _______________________________ W illiam M. B arker, Ju dge CONCUR:

____________________________ Gary R. W ade, Ju dge

____________________________ Curwood W itt, Jud ge