FILED

January 5, 1998

Cecil Crowson, Jr.

Appe llate Court C lerk

1 FOR PUBLICATION

2 IN THE SUPREME COURT OF TENNESSEE

3 AT JACKSON

4

5 STATE OF TENNESSEE, (

6 (

7 Appellee, (

8 ( Shelby Criminal

9 (

10 v . ( Hon. Joseph B. McCartie,

11 ( Judge

12 (

13 MICHAEL JOE BOYD, ( No. 02S01-9611-CR-00102

14 (

15 Appellant. (

16

17

18

19 DISSENTING OPINION

20

21

22 I dissent from the majority’s holding that the jury’s

23 consideration of the invalid aggravating circumstance was

24 harmless error. Though “not every imperfection in the

25 deliberative process is sufficient, even in a capital case, to

26 set aside a . . . judgment, the severity of the sentence mandates

27 careful scrutiny in the review of any colorable claim of error.” 

28 Zant v. Stephens , 462 U.S. 862, 886, 103 S. Ct. 2733, 2747

29 (1983).

30

31 The facts of this case show that the victim was on his

32 way to a motel room with the defendant’s girlfriend when he was

33 shot by the defendant. The evidence specifically showed that the

34 victim and David Hippen drove in a van into downtown Memphis to

35 find a motel room and solicit female companionship. At Raiford’s

36 Lounge, two women, Barbara Lee and Renita Tate, agreed to

37 accompany them and got into the van. Lee had been at the lounge
-2-

1 with the defendant who was her boyfriend, and with two other men,

2 Bruce Wright and Terry Yarber. The two women, the victim and

3 Hippen then drove to the parking lot of the Lorraine Motel where

4 the victim “started to give one of the women a $100 bill to rent

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

6 cert. denied , 498 U.S. 1074, 111 S. Ct. 800 (1991). While it was

7 being discussed who would go in to rent the rooms, Wright,

8 Yarber, and the defendant drove up and parked next to the van. 

9 The circumstances of the murder are described in the opinion on

10 the direct appeal of this case as follows:

11

12 Defendant stepped into the van on the

13 passenger side behind the driver’s and

14 passenger’s seats. He then pointed a pistol

15 toward Hippen’s face and said, “I want your

16 money or I’m going to kill you.” He snatched

17 the $100 bill from [the victim’s] hand. 

18 Hippen gave defendant his wallet, which

19 contained $30.

20

21 As defendant leaned over Hippen, [the

22 victim] grabbed his arm and shoved it onto

23 the console. Defendant fired a shot and the

24 three men began to struggle over the gun. As

25 the victim started the van and tried to drive

26 away, the defendant “emptied” his gun at him. 

27 Injured, [the victim] fell from the van ...

28 [and died].

29

30

31

I d 32 . The defendant was charged with felony murder, and a sentence

33 of death was sought based on the aggravating factors of creating

34 a risk of death to persons other than the victim, killing during

35 the perpetration of a felony, and having a prior conviction for a

36 violent felony. The jury rejected the danger of risking death to

37 others as an aggravating factor and based the sentence of death

38 on felony murder and the conviction of a prior violent felony. 
-3-

1 In State v. Middlebrooks , 840 S.W.2d 317 (Tenn. 1992),

2 cert. dismissed , 510 U.S. 124, 114 S. Ct. 48 (1993), the Court

3 found the use of felony murder as an aggravator when the

4 conviction is based on felony murder, unconstitutional:

5

6 We have determined that in light of the

7 broad definition of felony murder and the

8 duplicating language of the felony murder

9 aggravating circumstance, no narrowing occurs

10 under Tennessee’s first-degree murder

11 statute. We hold that, when the defendant is

12 convicted of first-degree murder solely on

13 the basis of felony murder, the aggravating

14 circumstance set out in Tenn. Code Ann. §§

15 39-2-203(i)(7) (1982) and 39-13-204(i)(7)

16 (1991), does not narrow the class of death17 eligible murderers sufficiently under the

18 Eighth Amendment to the U.S. Constitution,

19 and Article I, § 16 of the Tennessee

20 Constitution because it duplicates the

21 elements of the offense. As a result, we

22 conclude that Tenn. Code Ann. § 39-2-

23 203(i)(7) is unconstitutionally applied under

24 the Eighth Amendment to the U.S. Constitution

25 and Article I, § 16 of the Tennessee

26 Constitution where the death penalty is

27 imposed for felony murder.

28

29

Id. 30 at 346. All agree that in this case, the jury’s use of

31 felony murder as an aggravating factor was a violation of the

32 Eighth Amendment to the United States Constitution and Article I,

33 Section 16 of the Tennessee Constitution. Nonetheless, the

34 majority affirms the sentence of death on the finding that

35 “beyond a reasonable doubt that the verdict would have been the

36 same had the jury given no weight to the invalid aggravating

37 factor.” Majority Opinion at ___. [Slip op. at 9.]

38

39 The United States Supreme Court has held that “in a
-4-

1 weighing State infection of the process with an invalid

2 aggravating factor might require invalidation of the death

3 sentence.” Stringer v. Black , 503 U.S. 222, 231, 112 S. Ct.

4 1130, 1136 (1992). It has also held that “under such

5 circumstances a state appellate court could reweigh the

6 aggravating and mitigating circumstances or undertake harmless7 error analysis” as long as the death sentence is not affirmed

8 “without a thorough analysis of the role an invalid aggravating

9 factor played in the sentencing process.” I d . 

10

11 This Court properly applied a harmless error analysis

12 in State v. Howell , 868 S.W.2d 238 (Tenn. 1993), cert. denied ,

13 510 U.S. 1215, 114 S. Ct. 1339 (1994). In Howell , the victim was

14 a convenience store clerk who was shot once in the forehead at

15 close range. The jury sentenced the defendant to death based on

16 the aggravators of felony murder and three prior violent felony

17 convictions (armed robbery, first-degree murder, and armed

18 robbery and attempted first-degree murder). The mitigating

19 evidence was that the defendant was brain damaged from four head

20 injuries and grew up in a violent home environment. The Court

21 stated:

22

23 In order to guarantee the precision that

24 individualized sentencing considerations

25 demand and provide a principled explanation

26 for our conclusion in each case, it is

27 important, when conducting harmless error

28 review, to completely examine the record for

29 the presence of factors which potentially

30 influence the sentence ultimately imposed. 

31 These include, but are not limited to, the

32 number and strength of remaining valid

33 aggravating circumstances, the prosecutor’s

34 argument at sentencing, the evidence admitted
-5-

1 to establish the invalid aggravator, and the

2 nature, quality and strength of mitigating

3 evidence.

4

5

6 Id. at 260-61. The Court found that because this was not the

7 defendant’s first “cold-blooded execution-style murder”, the

8 prosecutor did not emphasize the felony murder aggravator, no

9 additional evidence was introduced for the invalid aggravator,

10 and no mitigating evidence of good character, it could conclude

11 the sentence would have been the same had the jury given no

12 weight to the invalid felony murder aggravating factor. The

13 sentence of death was affirmed.

14

15 The constitutionally mandated purpose of the harmless

16 error analysis set forth in Howell , is to insure that “beyond a

17 reasonable doubt . . . the error complained of did not contribute

18 to the verdict obtained.” Chapman v. California , 386 U.S. 18,

19 24, 87 S. Ct. 824, 828 (1967) (Scalia, J., concurring). The

20 Court is “obliged to determine whether there [is] reasonable

21 doubt as to whether the constitutional error contributed to the

22 jury’s decision to impose the sentence of death.” Tuggle v.

23 Netherland , 516 U.S. 10, ___, 116 S. Ct. 283, 286 (1995) (Scalia,

24 J., concurring).

25

26 My concurrence in Howell was based on the conclusion,

27 after considering the factors, that it was beyond a reasonable

28 doubt that charging the invalid aggravating circumstance did not

29 affect the jury’s decision to impose the sentence of death. 

30 State v. Howell , 868 S.W.2d at 270-71 (Reid, C.J., concurring).
1

See 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 Middlebrooks was found, it was not necessary to

conduct a harmless error analysis because remand for resentencing was required

on other grounds). 

-6-

1 Based on the Middlebrooks decision, the Court has

2 required a remand for sentencing in 6 subsequent cases involving

the invalid use of the felony murder aggravator. 13 In

4 Middlebrooks , where a 14 year old boy was beaten while his

5 hands were tied behind his back with a knife, brass knuckles and

6 a stick, was urinated on and in his mouth, burned with a lighter, 

7 and among other brutal acts, had an “X” cut into his chest while

8 he was alive, the Court found that even though the other

9 aggravating circumstance of torture was amply proved, it could

10 not conclude that the elimination of the aggravating circumstance

11 of felony murder was harmless error beyond a reasonable doubt. 

12 State v. Middlebrooks , 840 S.W.2d at 317. In State v. Evans , 838

13 S.W.2d 185 (Tenn. 1992), cert. denied , 510 U.S. 1064, 114 S. Ct.

14 740 (1994), where the defendant was convicted of killing a

15 grocery store clerk who he knew with a single gun shot to the

16 back of the head, the opinion notes only that the jury found

17 “aggravating circumstances” and that under Middlebrooks the

18 sentence is set aside and the case is remanded. In Sparks v.

19 State , 1993 Tenn. Lexis 187, No. 03S01-9212-CR-00105 (Tenn. May

20 10, 1993)(not published), where the defendant was convicted of

21 armed robbery of a liquor store during which he shot and killed a

22 delivery man, the Court remanded the case for resentencing,

23 stating,

24
-7-

1 In prior cases, however, we have found

2 harmless error analysis difficult to sustain

3 in the absence of written findings by the

4 jury concerning mitigating circumstances.

5 See , e.g. , State v. Terry , 813 S.W.2d 420,

6 424-25 (Tenn. 1991). Considering the

7 "heightened need for reliability in death

8 cases," we refused in Terry to predict what

9 the outcome of the case would have been in

10 the absence of one of the aggravating

11 circumstances. Similarly, in State v.

12 Pritchett , 621 S.W.2d 127, 129 (Tenn. 1981),

13 we declined to "speculate" on what the jury's

14 sentence would be when one of two aggravating

15 circumstances was removed from consideration.

16

17 The current sentencing statute, T.C.A. §

18 39-13-204(g), like its predecessor, T.C.A. §

19 39-2-203(g), requires the jury to engage in a

20 careful weighing process, balancing specified

21 aggravating circumstances against any

22 mitigating circumstances in the record. But,

23 also like its predecessor, it does not

24 require the jury to report in its verdict

25 what mitigating factors were considered.

26 Without a sufficient basis for reweighing the

27 evidence in the record, we are disinclined to

28 speculate in this instance about what verdict

29 the jury might have returned based on proof

30 of a single aggravating circumstance.

31 Certainly, we cannot say that in the absence

32 of the felony-murder aggravating

33 circumstance, there is proof beyond a

34 reasonable doubt that the defendant should be

35 sentenced to execution.

36

37

Id. 38 at 3-4. In State v. Bane , 853 S.W.2d 483 (Tenn. 1993), the

39 defendant was found guilty of premeditated murder and felony

40 murder. The evidence showed a premeditated murder and robbery in

41 which the victim was beaten, cut, strangled, gagged, and placed

42 in a tub with a plastic bag over his head. The jury sentenced

43 the defendant to death finding the aggravators of torture and

44 felony murder. The Court held that Middlebrooks required that a

45 jury reconsider the evidence “even though the evidence amply

46 supports the aggravating circumstance of the murder to be
-8-

1 especially heinous, atrocious, or cruel in that it involved

2 torture or depravity of mind.” I d . at 490. In State v. Smith ,

3 857 S.W.2d 1 (Tenn. 1993), the defendant and an accomplice during

4 the robbery of a store operated by an elderly couple, knocked

5 down the man and fatally shot the woman when she resisted the

6 robbery. Though other error also required resentencing, the

7 Court stated, “The Middlebrooks rule establishes that elimination

8 of the [felony murder aggravator] requires the jury to reconsider

9 the evidence to determine if the sentence of death is appropriate

10 in this case.” I d . at 25. In Hartman v. State , 896 S.W.2d 94

11 (Tenn. 1995), the victim was sixteen years old when she was

12 kidnapped, raped, killed by four blows to the head, and raped

13 again. In doing the harmless error analysis, the Court stated

14 that though no additional evidence was introduced in support of

15 the invalid aggravator, the prosecutor did not emphasize the

16 invalid aggravator, and there was only minimal proof of

17 mitigating circumstances, because the remaining aggravator of the

18 heinous, atrocious or cruel nature of the offense was supported

19 by testimony which was contested, the Court was “unable to

20 conclude that the sentence would have been the same had the jury

21 given no weight to the invalid aggravator.” I d . at 104. In

22 State v. Walker , 910 S.W.2d 381 (Tenn. 1995), cert. denied , ____

23 U.S. ____, 117 S. Ct. 88 (1996), the victim was shot several

24 times while sitting in her car in her driveway; she bled to death

25 at the hospital. The defendant thought the victim would be

26 carrying a lot of money. The jury found the defendant not guilty

27 of premeditated murder, but guilty of felony murder and sentenced

28 the defendant to death based on the aggravators of felony murder,
-9-

1 and the existence of a previous conviction of a violent felony

2 (voluntary manslaughter). The Court found that the mitigating

3 evidence was “inadequate” to overturn the sentence, but that the

4 “prior violent felony aggravator was not nearly as positive” as

5 that of armed robbery, first degree murder, and attempted first

6 degree murder, found in Howell . Id. at 398. The Court remanded

7 the case for resentencing.

8

9 On the other hand, the high standard for harmless error

10 analysis set forth in Howell has been significantly compromised

11 in some cases. For instance, in State v. Cazes , 875 S.W.2d 253

12 (Tenn. 1994), cert. denied , 513 U.S. 1086, 115 S. Ct. 743 (1995),

13 the victim, a sixty-eight year old woman, was killed by blows to

14 the head, raped and bitten. The evidence was inconclusive as to

15 whether the victim lost consciousness immediately or not. The

16 victim and the defendant knew each other, though the relationship

17 between the defendant and the victim was not shown in the record. 

18 The jury sentenced the defendant to death based on the

19 aggravators of felony murder, previous convictions of violent

20 felonies (assault and aggravated rape), and an especially

21 heinous, atrocious, or cruel murder in that it involved torture

22 or depravity of mind. The Court affirmed the sentence stating

23 that the other two aggravators were strongly supported by the

24 evidence, no additional evidence was introduced in support of the

25 invalid aggravator, the prosecutor did not emphasize the invalid

26 aggravator, and the mitigation evidence of the defendant’s

27 childhood and work history did not outweigh the valid aggravating

28 circumstances. In State v. Nichols , 877 S.W.2d 722 (Tenn. 1994),
-10-

1 cert. denied , 513 U.S. 1114, 115 S. Ct. 909 (1995), this Court

2 found a Middlebrooks error to be harmless stating that the

3 defendant had committed five similar rapes in the months before

4 the murder, no inadmissible evidence was introduced to establish

5 the invalid felony-murder aggravator, the State did not put a

6 great emphasis on the fact of the felony, and the mitigating

7 proof was contested by the State. In Nichols , the defendant

8 confessed and testified to raping the victim. The death resulted

9 from the defendant’s hitting the victim with a two-by-four during

10 the struggle; the victim died two days later. The defendant

11 expressed remorse. I dissented from the Court’s conclusion that

12 the allowance of the jury to use the felony murder aggravator was

13 harmless error because the State failed to prove beyond a

14 reasonable doubt that the jury was not influenced by the invalid

15 aggravating circumstance. Indeed, the record suggested the

16 opposite conclusion:

17

18 The State relied on two aggravating

19 circumstances to support the death penalty -

20 previous convictions for aggravated rape, and

21 the fact that the murder occurred during the

22 commission of a violent felony. The jury was

23 instructed to decide whether the aggravating

24 circumstances were supported by the evidence,

25 and whether they outweighed the mitigating

26 evidence. At the sentencing hearing,

27 evidence of the aggravating circumstances was

28 offered, which included substantial emphasis

29 on the circumstances of the crime itself. 

30 Evidence of mitigating circumstances was

31 offered from the defendant, his family, co32 workers, and friends as to his character,

33 work background and attitude, and family

34 history. He also submitted the testimony of

35 a clinical psychologist who had diagnosed the

36 defendant as having intermittent explosive

37 disorder. The State’s closing argument

38 emphasized the felony murder aggravating

39 circumstance at least as much as the
-11-

1 aggravating circumstance of prior

2 convictions. . . . [The] initial return of

3 the juror death penalty verdict form . . .

4 [did not cite] aggravating circumstances

5 concerning the defendant’s record of

6 convictions.

7

8 . . . There is at the very least a

9 reasonable possibility that the injection of

10 the invalid felony murder aggravating

11 circumstance into the weighing process by the

12 jury contributed to the death sentence

13 . . . .

14

15

16

I d 17 . at 743-44 (Reid, C.J., dissenting). In State v. Smith , 893

18 S.W.2d 908 (Tenn. 1994), cert. denied , ____ U.S. ____, 116 S. Ct.

19 99 (1995), the victim was an elderly woman who had been beaten,

20 raped, her throat had been cut, and she had been drowned in the

21 bathtub. The jury sentenced the defendant to death based on the

22 aggravators of felony murder, previous convictions of violent

23 felonies (robbery with a deadly weapon, assault with intent to

24 commit first-degree murder, and aggravated rape), and the nature

25 of the murder as especially heinous, atrocious, or cruel. The

26 mitigating evidence was that the Defendant was mentally retarded. 

27 Because the evidence supported the remaining aggravators, no

28 additional evidence was introduced in support of the invalid

29 aggravator, and little emphasis was placed on the robbery by the

30 prosecutor, the Court affirmed the sentence of death. In Smith ,

31 I dissented, stating,

32

33 In this case, although the two remaining

34 aggravating circumstances were proven, and no

35 additional evidence was admitted in support

36 of the invalid aggravating circumstance, the

37 evidence of mental retardation is a strong

38 mitigating factor whose weight could well be

39 more persuasive against two aggravating

40 circumstances than three. Because the
-12-

1 existence of substantial mitigating evidence

2 forces the jury in this case to make a very

3 subjective decision as to weight, the State,

4 which has the burden of proof, cannot show

5 beyond a reasonable doubt that the ultimate

6 decision to execute the defendant was not

7 influenced by the submission of the invalid

8 aggravating circumstance; therefore, the

9 submission of this circumstance was not

10 harmless error, and resentencing is required.

11

12

13 I d . at 932 (Reid, J. concurring in part & dissenting in part). 

14

15 Sometimes, like in Howell , the finding of harmless

16 error is justified. For instance, in Barber v. State , 889 S.W.2d

17 185 (Tenn. 1994), cert. denied , 513 U.S. 1184, 115 S. Ct. 1177

18 (1995), the victim who was seventy-five years old and in bad

19 health, was killed by multiple blows to the head. She had

20 bruises on her hands which were caused when the victim attempted

21 to protect herself from the blows, and the evidence showed that

22 the victim was alive and conscious during the beating. The

23 defendant also made comments to others regarding the killing

24 indicating the willfulness of his actions. The jury based it’s

25 sentence of death on the felony murder aggravator and on the fact

26 that the murder was especially heinous, atrocious or cruel in

27 that it involved torture or depravity of mind. Because the

28 prosecutor mentioned the felony murder aggravator only once, no

29 additional evidence was introduced to support the invalid

30 aggravator, and no strong mitigating evidence was introduced, the

31 Court found the error harmless. Though noting my disagreement

32 with the analysis of the majority opinion, I concurred in the

33 judgment that the sentence be affirmed. And in State v. Hines ,
-13-

1 919 S.W.2d 573 (Tenn. 1995), cert. denied , ____ U.S. ____, 117

2 S. Ct. 133 (1996), the victim was stabbed multiple times and at

3 the time of death the victim was sexually brutalized. The jury

4 sentenced the defendant to death based on the aggravators of

5 felony murder, prior convictions (assault in the first degree)

6 and the murder was especially heinous, atrocious, or cruel. In

7 mitigation, the defendant introduced evidence of a bad childhood

8 home environment, psychological problems, and his good behavior

9 while in prison. The Court noted that the defendant was “found

10 guilty of felony murder solely on the basis of armed robbery” and

11 that “two felonies, larceny and rape, in addition to robbery,

were used to support the felony murder circumstance.” I d 12 . at

13 583. The Court concluded that the felony murder aggravators,

14 therefore, did perform the narrowing function required under the

15 constitution. Doing a harmless error analysis for the portion of

16 the felony murder aggravator attributable to the robbery, the

17 Court found the error harmless because the remaining aggravating

18 circumstances were strongly supported, the prosecutor did not

19 emphasize the invalid aggravator and the evidence of mitigation

20 did not outweigh the aggravators. Though I dissented on the

21 basis of other significant errors, including the trial court’s

22 rejection of the plea agreement reached between the defendant and

23 the District Attorney General’s office, I would agree that the

24 use of the invalid aggravator was harmless error under the record

25 in that case.

26

27 However, comparison of the facts and circumstances of

28 Howell and those in this case indicate a further lessening of the
-14-

1 standard. The murder in this case resulted from an altercation

2 based on jealousy. There was an argument followed by a fight and

3 then a shooting. The only valid aggravator relied on by the jury

4 is the prior conviction for second degree murder. The mitigating

5 circumstances offered by the defendant are that he was sorry the

6 victim had been killed, he did not intend to rob or shoot the

7 victim, and the killing had happened because the victim pulled a

8 gun on him. The evidence in the record is simply not persuasive

9 enough to assume that without the consideration of the felony

10 murder aggravator, the jury would have reached the same

11 conclusion. In my view, the admission of the invalid

circumstance was not harmless error under the Howell 12 analysis.

13

14

15 The issue is not the extent to which the

16 aggravating and mitigating circumstances were

17 supported by the evidence or whether the

18 aggravating circumstances outweighed the

19 mitigating circumstances. A finding that the

20 evidence in support of the valid aggravating

21 circumstance was overwhelming and the

22 evidence in mitigation was meager may, . . .

23 support the jury’s finding that beyond a

24 reasonable doubt the aggravating circumstance

25 outweighed the mitigating circumstances, but

26 it does not necessarily follow that the jury

27 was not influenced by the invalid aggravating

28 circumstance.

29

30

31

32 State v. Howell , 868 S.W.2d 238, 269 (Tenn. 1993) (Reid, C.J.

33 concurring). “[I]n all cases where the Court must make a

34 subjective decision regarding the effect of the aggravating

35 circumstance,” a finding of harmless error is inappropriate. I d .

36 at 268. In my view, the finding of harmless error cannot be

37 based on objective facts in this case and, therefore, must be a

38 subjective conclusion.
-15-

1 I would remand the case for resentencing.

2

3 __________________________

4 Reid, J.