# FILED

January 5, 1998 Cecil Crowson, Jr. Appellate Court C lerk FOR PUBLICATION 1
IN THE SUPREME COURT OF TENNESSEE 2
AT JACKSON 3 4 STATE OF TENNESSEE, ( 5 ( 6 Appellee, ( 7 ( Shelby Criminal 8 ( 9 v . ( Hon. Joseph B. McCartie, 10 ( Judge 11 ( 12 MICHAEL JOE BOYD, ( No. 02S01-9611-CR-00102 13 ( 14 Appellant. ( 15 16 17 18 DISSENTING OPINION 19 20 21 I dissent from the majority’s holding that the jury’s 22 consideration of the invalid aggravating circumstance was 23 harmless error. Though “not every imperfection in the 24 deliberative process is sufficient, even in a capital case, to 25 set aside a . . . judgment, the severity of the sentence mandates 26 careful scrutiny in the review of any colorable claim of error.” 27 Zant v. Stephens , 462 U.S. 862, 886, 103 S. Ct. 2733, 2747 28 (1983). 29 30 The facts of this case show that the victim was on his 31 way to a motel room with the defendant’s girlfriend when he was 32 shot by the defendant. The evidence specifically showed that the 33 victim and David Hippen drove in a van into downtown Memphis to 34 find a motel room and solicit female companionship. At Raiford’s 35 Lounge, two women, Barbara Lee and Renita Tate, agreed to 36 accompany them and got into the van. Lee had been at the lounge 37-2-

with the defendant who was her boyfriend, and with two other men, 1 Bruce Wright and Terry Yarber. The two women, the victim and 2 Hippen then drove to the parking lot of the Lorraine Motel where 3 the victim “started to give one of the women a $100 bill to rent 4

two rooms.” State v. Boyd, 797 S.W.2d 589, 592 (Tenn. 1990), 5

cert. denied, 498 U.S. 1074, 111 S. Ct. 800 (1991). While it was 6 being discussed who would go in to rent the rooms, Wright, 7 Yarber, and the defendant drove up and parked next to the van. 8 The circumstances of the murder are described in the opinion on 9 the direct appeal of this case as follows: 10 11 Defendant stepped into the van on the 12 passenger side behind the driver’s and 13 passenger’s seats. He then pointed a pistol 14 toward Hippen’s face and said, “I want your 15 money or I’m going to kill you.” He snatched 16 the $100 bill from [the victim’s] hand. 17 Hippen gave defendant his wallet, which 18 contained $30. 19 20 As defendant leaned over Hippen, [the 21 victim] grabbed his arm and shoved it onto 22 the console. Defendant fired a shot and the 23 three men began to struggle over the gun. As 24 the victim started the van and tried to drive 25 away, the defendant “emptied” his gun at him. 26 Injured, [the victim] fell from the van ... 27 [and died]. 28 29 30 31 I d. The defendant was charged with felony murder, and a sentence 32 of death was sought based on the aggravating factors of creating 33 a risk of death to persons other than the victim, killing during 34 the perpetration of a felony, and having a prior conviction for a 35 violent felony. The jury rejected the danger of risking death to 36 others as an aggravating factor and based the sentence of death 37 on felony murder and the conviction of a prior violent felony. 38-3- In State v. Middlebrooks , 840 S.W.2d 317 (Tenn. 1992), 1

cert. dismissed, 510 U.S. 124, 114 S. Ct. 48 (1993), the Court 2 found the use of felony murder as an aggravator when the 3 conviction is based on felony murder, unconstitutional: 4 5 We have determined that in light of the 6 broad definition of felony murder and the 7 duplicating language of the felony murder 8 aggravating circumstance, no narrowing occurs 9 under Tennessee’s first-degree murder 10 statute. We hold that, when the defendant is 11 convicted of first-degree murder solely on 12 the basis of felony murder, the aggravating 13 circumstance set out in Tenn. Code Ann. §§ 14 39-2-203(i)(7) (1982) and 39-13-204(i)(7) 15 (1991), does not narrow the class of death16 eligible murderers sufficiently under the 17 Eighth Amendment to the U.S. Constitution, 18 and Article I, § 16 of the Tennessee 19 Constitution because it duplicates the 20 elements of the offense. As a result, we 21 conclude that Tenn. Code Ann. § 39-2- 22 203(i)(7) is unconstitutionally applied under 23 the Eighth Amendment to the U.S. Constitution 24 and Article I, § 16 of the Tennessee 25 Constitution where the death penalty is 26 imposed for felony murder. 27 28 29 Id.at 346. All agree that in this case, the jury’s use of 30 felony murder as an aggravating factor was a violation of the 31 Eighth Amendment to the United States Constitution and Article I, 32 Section 16 of the Tennessee Constitution. Nonetheless, the 33 majority affirms the sentence of death on the finding that 34 “beyond a reasonable doubt that the verdict would have been the 35 same had the jury given no weight to the invalid aggravating 36 factor.” Majority Opinion at ___. [Slip op. at 9.] 37 38 The United States Supreme Court has held that “in a 39-4-

weighing State infection of the process with an invalid 1 aggravating factor might require invalidation of the death 2

sentence.” Stringer v. Black, 503 U.S. 222, 231, 112 S. Ct. 3 1130, 1136 (1992). It has also held that “under such 4 circumstances a state appellate court could reweigh the 5 aggravating and mitigating circumstances or undertake harmless6 error analysis” as long as the death sentence is not affirmed 7 “without a thorough analysis of the role an invalid aggravating 8 factor played in the sentencing process.” I d

. 9 10 This Court properly applied a harmless error analysis 11 in State v. Howell , 868 S.W.2d 238 (Tenn. 1993), cert. denied, 12 510 U.S. 1215, 114 S. Ct. 1339 (1994). In Howell , the victim was 13 a convenience store clerk who was shot once in the forehead at 14 close range. The jury sentenced the defendant to death based on 15 the aggravators of felony murder and three prior violent felony 16 convictions (armed robbery, first-degree murder, and armed 17 robbery and attempted first-degree murder). The mitigating 18 evidence was that the defendant was brain damaged from four head 19 injuries and grew up in a violent home environment. The Court 20 stated: 21 22 In order to guarantee the precision that 23 individualized sentencing considerations 24 demand and provide a principled explanation 25 for our conclusion in each case, it is 26 important, when conducting harmless error 27 review, to completely examine the record for 28 the presence of factors which potentially 29 influence the sentence ultimately imposed. 30 These include, but are not limited to, the 31 number and strength of remaining valid 32 aggravating circumstances, the prosecutor’s 33 argument at sentencing, the evidence admitted 34-5- to establish the invalid aggravator, and the 1 nature, quality and strength of mitigating 2 evidence. 3 4 5 Id.at 260-61. The Court found that because this was not the 6 defendant’s first “cold-blooded execution-style murder”, the 7 prosecutor did not emphasize the felony murder aggravator, no 8 additional evidence was introduced for the invalid aggravator, 9 and no mitigating evidence of good character, it could conclude 10 the sentence would have been the same had the jury given no 11 weight to the invalid felony murder aggravating factor. The 12 sentence of death was affirmed. 13 14 The constitutionally mandated purpose of the harmless 15 error analysis set forth in Howell , is to insure that “beyond a 16 reasonable doubt . . . the error complained of did not contribute 17 to the verdict obtained.” Chapman v. California, 386 U.S. 18, 18 24, 87 S. Ct. 824, 828 (1967) (Scalia, J., concurring). The 19 Court is “obliged to determine whether there [is] reasonable 20 doubt as to whether the constitutional error contributed to the 21 jury’s decision to impose the sentence of death.” Tuggle v. 22 Netherland, 516 U.S. 10, ___, 116 S. Ct. 283, 286 (1995) (Scalia, 23 J., concurring). 24 25 My concurrence in Howellwas based on the conclusion, 26 after considering the factors, that it was beyond a reasonable 27 doubt that charging the invalid aggravating circumstance did not 28 affect the jury’s decision to impose the sentence of death. 29 State v. Howell , 868 S.W.2d at 270-71 (Reid, C.J., concurring). 301See also State v. Branam , 855 S.W.2d 563 (Tenn. 1993)(there were no

valid aggravators and consequently, the sentence was set at life imprisonment); State v. Bigbee , 885 S.W.2d 797 (Tenn. 1994)(The Court did not consider whether the error was harmless because the case was remanded for resentencing on an unrelated error); State v. Keen , 926 S.W.2d 727 (Tenn. 1994)(though error under Middlebrookswas found, it was not necessary to conduct a harmless error analysis because remand for resentencing was required on other grounds).

-6-

Based on the Middlebrooksdecision, the Court has 1 required a remand for sentencing in 6 subsequent cases involving 2 the invalid use of the felony murder aggravator. 1In 3 Middlebrooks , where a 14 year old boy was beaten while his 4 hands were tied behind his back with a knife, brass knuckles and 5 a stick, was urinated on and in his mouth, burned with a lighter, 6 and among other brutal acts, had an “X” cut into his chest while 7 he was alive, the Court found that even though the other 8 aggravating circumstance of torture was amply proved, it could 9 not conclude that the elimination of the aggravating circumstance 10 of felony murder was harmless error beyond a reasonable doubt. 11 State v. Middlebrooks , 840 S.W.2d at 317. In State v. Evans , 838 12 S.W.2d 185 (Tenn. 1992), cert. denied, 510 U.S. 1064, 114 S. Ct. 13 740 (1994), where the defendant was convicted of killing a 14 grocery store clerk who he knew with a single gun shot to the 15 back of the head, the opinion notes only that the jury found 16 “aggravating circumstances” and that under Middlebrooksthe 17 sentence is set aside and the case is remanded. In Sparks v. 18
State , 1993 Tenn. Lexis 187, No. 03S01-9212-CR-00105 (Tenn. May 19 10, 1993)(not published), where the defendant was convicted of 20 armed robbery of a liquor store during which he shot and killed a 21 delivery man, the Court remanded the case for resentencing, 22 stating, 23 24-7- In prior cases, however, we have found 1 harmless error analysis difficult to sustain 2 in the absence of written findings by the 3 jury concerning mitigating circumstances. 4 See , e.g. , State v. Terry, 813 S.W.2d 420, 5 424-25 (Tenn. 1991). Considering the 6 "heightened need for reliability in death 7 cases," we refused in Terry to predict what 8 the outcome of the case would have been in 9 the absence of one of the aggravating 10 circumstances. Similarly, in State v. 11 Pritchett , 621 S.W.2d 127, 129 (Tenn. 1981), 12 we declined to "speculate" on what the jury's 13 sentence would be when one of two aggravating 14 circumstances was removed from consideration. 15 16 The current sentencing statute, T.C.A. § 17 39-13-204(g), like its predecessor, T.C.A. § 18 39-2-203(g), requires the jury to engage in a 19 careful weighing process, balancing specified 20 aggravating circumstances against any 21 mitigating circumstances in the record. But, 22 also like its predecessor, it does not 23 require the jury to report in its verdict 24 what mitigating factors were considered. 25 Without a sufficient basis for reweighing the 26 evidence in the record, we are disinclined to 27 speculate in this instance about what verdict 28 the jury might have returned based on proof 29 of a single aggravating circumstance. 30 Certainly, we cannot say that in the absence 31 of the felony-murder aggravating 32 circumstance, there is proof beyond a 33 reasonable doubt that the defendant should be 34 sentenced to execution. 35 36 37 Id.at 3-4. In State v. Bane , 853 S.W.2d 483 (Tenn. 1993), the 38 defendant was found guilty of premeditated murder and felony 39 murder. The evidence showed a premeditated murder and robbery in 40 which the victim was beaten, cut, strangled, gagged, and placed 41 in a tub with a plastic bag over his head. The jury sentenced 42 the defendant to death finding the aggravators of torture and 43 felony murder. The Court held that Middlebrooksrequired that a 44 jury reconsider the evidence “even though the evidence amply 45 supports the aggravating circumstance of the murder to be 46-8-

especially heinous, atrocious, or cruel in that it involved 1 torture or depravity of mind.” I d. at 490. In State v. Smith, 2 857 S.W.2d 1 (Tenn. 1993), the defendant and an accomplice during 3 the robbery of a store operated by an elderly couple, knocked 4 down the man and fatally shot the woman when she resisted the 5 robbery. Though other error also required resentencing, the 6 Court stated, “The Middlebrooksrule establishes that elimination 7 of the [felony murder aggravator] requires the jury to reconsider 8 the evidence to determine if the sentence of death is appropriate 9 in this case.” I d. at 25. In Hartman v. State, 896 S.W.2d 94 10 (Tenn. 1995), the victim was sixteen years old when she was 11 kidnapped, raped, killed by four blows to the head, and raped 12 again. In doing the harmless error analysis, the Court stated 13 that though no additional evidence was introduced in support of 14 the invalid aggravator, the prosecutor did not emphasize the 15 invalid aggravator, and there was only minimal proof of 16 mitigating circumstances, because the remaining aggravator of the 17 heinous, atrocious or cruel nature of the offense was supported 18 by testimony which was contested, the Court was “unable to 19 conclude that the sentence would have been the same had the jury 20 given no weight to the invalid aggravator.” I d. at 104. In 21 State v. Walker, 910 S.W.2d 381 (Tenn. 1995), cert. denied, ____ 22 U.S. ____, 117 S. Ct. 88 (1996), the victim was shot several 23 times while sitting in her car in her driveway; she bled to death 24 at the hospital. The defendant thought the victim would be 25 carrying a lot of money. The jury found the defendant not guilty 26 of premeditated murder, but guilty of felony murder and sentenced 27 the defendant to death based on the aggravators of felony murder, 28-9-

and the existence of a previous conviction of a violent felony 1 (voluntary manslaughter). The Court found that the mitigating 2 evidence was “inadequate” to overturn the sentence, but that the 3 “prior violent felony aggravator was not nearly as positive” as 4 that of armed robbery, first degree murder, and attempted first 5 degree murder, found in Howell

. Id.at 398. The Court remanded 6 the case for resentencing. 7 8 On the other hand, the high standard for harmless error 9 analysis set forth in Howellhas been significantly compromised 10 in some cases. For instance, in State v. Cazes , 875 S.W.2d 253 11 (Tenn. 1994), cert. denied, 513 U.S. 1086, 115 S. Ct. 743 (1995), 12 the victim, a sixty-eight year old woman, was killed by blows to 13 the head, raped and bitten. The evidence was inconclusive as to 14 whether the victim lost consciousness immediately or not. The 15 victim and the defendant knew each other, though the relationship 16 between the defendant and the victim was not shown in the record. 17 The jury sentenced the defendant to death based on the 18 aggravators of felony murder, previous convictions of violent 19 felonies (assault and aggravated rape), and an especially 20 heinous, atrocious, or cruel murder in that it involved torture 21 or depravity of mind. The Court affirmed the sentence stating 22 that the other two aggravators were strongly supported by the 23 evidence, no additional evidence was introduced in support of the 24 invalid aggravator, the prosecutor did not emphasize the invalid 25 aggravator, and the mitigation evidence of the defendant’s 26 childhood and work history did not outweigh the valid aggravating 27 circumstances. In State v. Nichols , 877 S.W.2d 722 (Tenn. 1994), 28-10-

cert. denied, 513 U.S. 1114, 115 S. Ct. 909 (1995), this Court 1 found a Middlebrookserror to be harmless stating that the 2 defendant had committed five similar rapes in the months before 3 the murder, no inadmissible evidence was introduced to establish 4 the invalid felony-murder aggravator, the State did not put a 5 great emphasis on the fact of the felony, and the mitigating 6 proof was contested by the State. In Nichols , the defendant 7 confessed and testified to raping the victim. The death resulted 8 from the defendant’s hitting the victim with a two-by-four during 9 the struggle; the victim died two days later. The defendant 10 expressed remorse. I dissented from the Court’s conclusion that 11 the allowance of the jury to use the felony murder aggravator was 12 harmless error because the State failed to prove beyond a 13 reasonable doubt that the jury was not influenced by the invalid 14 aggravating circumstance. Indeed, the record suggested the 15 opposite conclusion: 16 17 The State relied on two aggravating 18 circumstances to support the death penalty - 19 previous convictions for aggravated rape, and 20 the fact that the murder occurred during the 21 commission of a violent felony. The jury was 22 instructed to decide whether the aggravating 23 circumstances were supported by the evidence, 24 and whether they outweighed the mitigating 25 evidence. At the sentencing hearing, 26 evidence of the aggravating circumstances was 27 offered, which included substantial emphasis 28 on the circumstances of the crime itself. 29 Evidence of mitigating circumstances was 30 offered from the defendant, his family, co31 workers, and friends as to his character, 32 work background and attitude, and family 33 history. He also submitted the testimony of 34 a clinical psychologist who had diagnosed the 35 defendant as having intermittent explosive 36 disorder. The State’s closing argument 37 emphasized the felony murder aggravating 38 circumstance at least as much as the 39-11- aggravating circumstance of prior 1 convictions. . . . [The] initial return of 2 the juror death penalty verdict form . . . 3 [did not cite] aggravating circumstances 4 concerning the defendant’s record of 5 convictions. 6 7 . . . There is at the very least a 8 reasonable possibility that the injection of 9 the invalid felony murder aggravating 10 circumstance into the weighing process by the 11 jury contributed to the death sentence 12

. . . . 13 14 15 16 I d. at 743-44 (Reid, C.J., dissenting). In State v. Smith, 893 17 S.W.2d 908 (Tenn. 1994), cert. denied, ____ U.S. ____, 116 S. Ct. 18 99 (1995), the victim was an elderly woman who had been beaten, 19 raped, her throat had been cut, and she had been drowned in the 20 bathtub. The jury sentenced the defendant to death based on the 21 aggravators of felony murder, previous convictions of violent 22 felonies (robbery with a deadly weapon, assault with intent to 23 commit first-degree murder, and aggravated rape), and the nature 24 of the murder as especially heinous, atrocious, or cruel. The 25 mitigating evidence was that the Defendant was mentally retarded. 26 Because the evidence supported the remaining aggravators, no 27 additional evidence was introduced in support of the invalid 28 aggravator, and little emphasis was placed on the robbery by the 29 prosecutor, the Court affirmed the sentence of death. In Smith, 30 I dissented, stating, 31 32 In this case, although the two remaining 33 aggravating circumstances were proven, and no 34 additional evidence was admitted in support 35 of the invalid aggravating circumstance, the 36 evidence of mental retardation is a strong 37 mitigating factor whose weight could well be 38 more persuasive against two aggravating 39 circumstances than three. Because the 40-12- existence of substantial mitigating evidence 1 forces the jury in this case to make a very 2 subjective decision as to weight, the State, 3 which has the burden of proof, cannot show 4 beyond a reasonable doubt that the ultimate 5 decision to execute the defendant was not 6 influencedby the submission of the invalid 7 aggravating circumstance; therefore, the 8 submission of this circumstance was not 9 harmless error, and resentencing is required. 10 11 12 I d. at 932 (Reid, J. concurring in part & dissenting in part). 13 14 Sometimes, like in Howell , the finding of harmless 15 error is justified. For instance, in Barber v. State, 889 S.W.2d 16 185 (Tenn. 1994), cert. denied, 513 U.S. 1184, 115 S. Ct. 1177 17 (1995), the victim who was seventy-five years old and in bad 18 health, was killed by multiple blows to the head. She had 19 bruises on her hands which were caused when the victim attempted 20 to protect herself from the blows, and the evidence showed that 21 the victim was alive and conscious during the beating. The 22 defendant also made comments to others regarding the killing 23 indicating the willfulness of his actions. The jury based it’s 24 sentence of death on the felony murder aggravator and on the fact 25 that the murder was especially heinous, atrocious or cruel in 26 that it involved torture or depravity of mind. Because the 27 prosecutor mentioned the felony murder aggravator only once, no 28 additional evidence was introduced to support the invalid 29 aggravator, and no strong mitigating evidence was introduced, the 30 Court found the error harmless. Though noting my disagreement 31 with the analysis of the majority opinion, I concurred in the 32 judgment that the sentence be affirmed. And in State v. Hines , 33-13-

919 S.W.2d 573 (Tenn. 1995), cert. denied, ____ U.S. ____, 117 1 S. Ct. 133 (1996), the victim was stabbed multiple times and at 2 the time of death the victim was sexually brutalized. The jury 3 sentenced the defendant to death based on the aggravators of 4 felony murder, prior convictions (assault in the first degree) 5 and the murder was especially heinous, atrocious, or cruel. In 6 mitigation, the defendant introduced evidence of a bad childhood 7 home environment, psychological problems, and his good behavior 8 while in prison. The Court noted that the defendant was “found 9 guilty of felony murder solely on the basis of armed robbery” and 10 that “two felonies, larceny and rape, in addition to robbery, 11 were used to support the felony murder circumstance.” I d . at 12 583. The Court concluded that the felony murder aggravators, 13 therefore, did perform the narrowing function required under the 14 constitution. Doing a harmless error analysis for the portion of 15 the felony murder aggravator attributable to the robbery, the 16 Court found the error harmless because the remaining aggravating 17 circumstances were strongly supported, the prosecutor did not 18 emphasize the invalid aggravator and the evidence of mitigation 19 did not outweigh the aggravators. Though I dissented on the 20 basis of other significant errors, including the trial court’s 21 rejection of the plea agreement reached between the defendant and 22 the District Attorney General’s office, I would agree that the 23 use of the invalid aggravator was harmless error under the record 24 in that case. 25 26 However, comparison of the facts and circumstances of 27 Howelland those in this case indicate a further lessening of the 28-14-

standard. The murder in this case resulted from an altercation 1 based on jealousy. There was an argument followed by a fight and 2 then a shooting. The only valid aggravator relied on by the jury 3 is the prior conviction for second degree murder. The mitigating 4 circumstances offered by the defendant are that he was sorry the 5 victim had been killed, he did not intend to rob or shoot the 6 victim, and the killing had happened because the victim pulled a 7 gun on him. The evidence in the record is simply not persuasive 8 enough to assume that without the consideration of the felony 9 murder aggravator, the jury would have reached the same 10 conclusion. In my view, the admission of the invalid 11 circumstance was not harmless error under the Howellanalysis. 12 13 14 The issue is not the extent to which the 15 aggravating and mitigating circumstances were 16 supported by the evidence or whether the 17 aggravating circumstances outweighed the 18 mitigating circumstances. A finding that the 19 evidence in support of the valid aggravating 20 circumstance was overwhelming and the 21 evidence in mitigation was meager may, . . . 22 support the jury’s finding that beyond a 23 reasonable doubt the aggravating circumstance 24 outweighed the mitigating circumstances, but 25 it does not necessarily follow that the jury 26 was not influenced by the invalid aggravating 27 circumstance. 28 29 30 31 State v. Howell , 868 S.W.2d 238, 269 (Tenn. 1993) (Reid, C.J. 32 concurring). “[I]n all cases where the Court must make a 33 subjective decision regarding the effect of the aggravating 34 circumstance,” a finding of harmless error is inappropriate. I d

. 35 at 268. In my view, the finding of harmless error cannot be 36 based on objective facts in this case and, therefore, must be a 37 subjective conclusion. 38-15- I would remand the case for resentencing. 1 2

__________________________ 3 Reid, J. 4