### IN THE SUPREME COURT OF TENNESSEE AT JACKSON November 15, 2000 S ession

ERSKINE LEROY JOHNSON v. STATE OF TENNESSEE
Appeal by Permission

from the Court of

Criminal Appeals Criminal Court for Shelby County No. P-9404 Hon. William H. Williams, Sr. Judge

No. W1997-00024-SC-R11-PD - Filed January 19, 2001

The sole issue in this ca pital po st-conviction app eal is whether the

State improperly w

ithheld material, exculpatory evid ence at the appe

llee’s capital sentencing hearing. The appellee was convicted of felony murder and sentenced to death in 1985, and in 1991, he filed a post-conviction petition alleging, among other things, that the State i mproperly w ithheld a police report that was discoverable

under Brady v. Maryland , 373 U.S. 83 (1963). The post-conviction court denied relief, butthe Courtof Criminal Appeals reversed and vacated the capital sentence. Finding that the police report was exculpatory

and material, the intermediate court held that a new sentencing hearing was constitutionally required. The State then appealed to this Court. For the reasons given herein, we hold that the State improperly withheld the police report, which was both “evidence favorable to the accused” and material as to the issue of sentencing. Accordingly, we affirm the judgment o f the Courtof Criminal Appeals vacating the appellee’s sentence, and we remand this case to the Shelby County Criminal Court for a new capital sentencing hearing.
Tenn. R. App. P. 11 Application for Permission to Appeal; Judgment of the Court of

Criminal Appeals Af

firmed; Case Re

manded for Re-Sent

encing

W ILLIAM M. B ARKER , J., delivered the opinion of the court, in which E. R ILEY ANDERSON , C.J., and F RANK F. D ROWOTA , III, A DOLPHO A. B IRCH , J R ., and J ANICE M. H OLDER , JJ., joined.

Paul G. Summers, Attorne y General and Re

porter; Mi ch ael E. Moore, Solicitor General; Amy L. Tarkington, Senior Counse l Criminal Division, Nashville, Tennessee, for the appellant, State of Tennessee. Joseph S. Ozment, M emphis, Tennessee; Jonathan I. Blackman, New York, New York; David E. Brodsky, New York, New York, for the appellee, Erskine Leroy Johnson.

OPINION1 The reason for the lengthy delay between the time of the original petition and the hearing in the trial court

was that the pet

ition lay dormant on the t

rial cour t’s cal endar while t

he appellee

served a se

ntence in Cal

ifornia for various offenses. O nce the ap pellee com pleted serv ing the C alifornia sen tence, he w as transferre d to th is s tate and proceedings on the post- conviction petiti on were resumed.

-2- This case comes before this Court on an appeal from a post-conviction petition filed by the appellee, Erskine Leroy Johnson, who was convicted of felony murder and sentenced

to death by a jury in Shelby County in 1985. The e vents giving rise to

this case occurred in early October of 1983 when the appellee and

two other persons

robbed a Food Ri

te Grocery S tore in Memphis. Upon entering the store, the appellee approached the manager, who was working at the checkout

counter, and the other two persons headed for the office where the safe

was located. The

appellee place

d his pistol to the manager’s head, and the manager turned aroun d and thr ew up his hands. Witnesses testified that the manager hit or bumped into the appellee’s pistol, causing it to fire a bullet into the ceiling of the store. Afte r this shot was fired, the a ppellee shot the st

ore manager twic

e, mortally wounding him. The appellee then went to the next open register, where he put his pistol close to the face of the manager’s wife and demanded money. Meanwhile, the other two co-felons apprehended the security guard on the other side of the store, and one of them placed a pistol to his head. At some point d uring this episode, someone fired a b

ullet, known as the

“Pac-Man” bulle

t, whic h wen t through a Pac-Ma

n video-game mac

hine and grazed

a sixteen-year

-old girl across h

er chest.

The appellee was tried and convicted of felony murder in Dece mber of 1985, and a jury sentenced him to die by electrocution. The jury f ound that the following three aggravating circumstances outweighed any mitigating ci rc umstances: (1) tha t the defendant w

as previously convicted of one or more felonies that involved the u se or threat of violence to the person, Tenn. Code Ann. § 39-2-203(i)(2) (1982); (2) that the defendant knowingly created a great risk of dea

th to two or more perso

ns, other than the v

ictim murdered, during his act of murder, Tenn. Code Ann. § 39-2-203(i)(3) (1982); and (3) that the murder was committed

while the defendant was engaged in the co mmission of a robbery, Tenn. Code Ann. § 39-2-203(i)(7) (1982). The appellee ’ s convictionand sentence were later affirmed by this Court in State v. John son , 762 S.W.2d 110 (Tenn. 1988).

OnOctober 3, 1991 , the app ellee filed a pro se petition for post-c

onviction relief,

and his appointed counsel later filed an amended petition in

December of 1991. Eventually, additional attorneys were appointed t o represent the a

ppellee, and the

se atto rney s filed a second amended petition in August of 1996. 1 The trial court held a hearing lasting seven days betwee n D ecember 1996 and February 1997. During this hearing, the appellee introduced, among other things, proof showing that the State improperly withheld a police report at the sentencing hearing in violation of Bradyv. Maryland , 373 U.S. 82 (1963) . This police repo rt, whichwas completed within days of the armed robbery, concluded that the “Pac-Man” bullet could not have been fired from the cash

register
area where the appellant was standing, due to the angle of the bullet entry into the machine

. Moreover, photographs attac hed to the report showe

d that solid

obstructions were

between the cas

h register area and the Pac-Man machine. The appellee then argued that because he did not fire the2 At the ti me of the appell

ee’s offe nse, the (i)(3) aggravati ng circumsta

nce read as f

ollows: “ The defendant know ingly created a g reat risk of d eath to two (2) or more persons, other than the vict

im murdered, duri

ng his act

of murder. ” Tenn. Code Ann. § 39-2-203 (i)(3) (1982 & Supp. 1986).
-3- bulletthat grazed the sixteen-year-old girl, the proof wa s insufficient to establish the (i)(3) “great risk of death” aggravating circumstance. 2 On April 22, 1997, the trial judge dismissed the appellee’s petition, finding that “the p etition for post con

viction relief as

amended is

withoutmerit.” Although the trial cour

t foun d the felony murder aggravating circumstance inapplicable after this Court’s decisionin State v. Middlebrooks , 840 S.W.2d 317 (Tenn. 1992), the court found that the error was harmless given “the strong case supporting the other two aggravating circumstance s found by the jury . . . .” The trial court made no specifi c written findings with respect to the alleged Brady violation concer

ning the withheld po

lice report.

The Court of

Criminal Appeals r

eversed the dismi

ssal of the petition

and remanded the

case for a new capital sentencing hearing. The intermediate court found that the withheld police report
was material exculpatory evidence within the meaning of Brady v. Maryland , 373 U.S. 83 (1963), and therefore, the report should have been disclosed to the appellee. This failure to disclose the police report, the court stated, resultedin an arguable misapplication of the (i)(3) aggravating circumstance. Viewing the withheld report in combination with the unconstitutional application of the felony murder ag

gravating circu

mstance, the cour

t stated that it

was “unable

to conclude that the jury would have sente

nced the Defe ndant to death based solely on the prior violent felonies aggravator.” Accordingly, whi le the Court of Crimi

nal Appeals

affirmed the judgment of the trial court in all other respects, it remanded the case for a new capital sentencing hearing.

The State then requested, and this Court granted, permission to appeal on the sole issue of whether the withheld police report was “material” as applied t o the ( i)(3) “great risk of death” aggravating circumstance. After reviewing the extensive record in this case, we conclude that the police report was both “

evidence favor

able to the accus

e d” and “ma

terial” within the meaning of Bradyv. Maryland . We therefore hold that the report should have been disclosed to the appellee prior to his sentencing hearing, and because the State’sfailure to disclos e this police repor

t severely undermines our confidence in the jury’s sentence of death, we rem and this case to the

Shelby County Criminal Court for a new capital sentencing hearing.

ALLEGED BRADY

VIOLATION DURING THE APPELLEE’S CAPITAL SENTENCING HEARING
Every criminal defend

ant is guaranteed the right to a fair trial under the Due Process Cla

use of the Fourteenth Amendment to the United States Constitution and the “Law of the Land” Claus

e of Article I, section 8 of the Tennessee Constitution. See, e.g. , State ex rel. Angl in v. Mitchell , 596 S.W.2d 779, 786 (Tenn. 1980). “To facilitate this right, a defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence that is either material to guilt or relevant to punishment.” State v. Ferguson , 2 S.W.3d 912, 915 (Tenn. 1999). This fundamental3 This disc losure obl igation a pplies s pecific ally to material s in miti gation of sentence

. See Brady , 373 U.S. at 87-88 (“A prosecution that wit hholds evidence on demand of an accused which, if made avai lable , would tend to exculpate him or reduce th e penalty helps shape a trial that bears heavily on the defendant.”) (emphasis added).
-4- principle of law is derived from the landmark case, Brady v. Maryland , 373 U.S. 83 (1963), in which the United States Supreme Court held that “suppression by the prosecution of eviden ce favorable to an accused upon

request violates

due process whe

re the evidence

is material either

to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution,” i d. at 87

. 3 Evidence “favorable

to anaccused” includes evidence deemed to be exculpatory in nature and evidence that could be used to impeach the state’s witnesses. See State v. Walker , 910 S.W.2d 381, 389 (Tenn. 1995); State v. Copeland , 983 S.W.2d 703, 706 (Tenn. Crim. Ap p. 1998); see also United States v. Bagley , 473 U.S. 667, 676 (1985).

While the “prosec u tion is not required to disclose information that the accused already possesses or is able to

obtain,” State v. Marshall , 845 S.W.2d 228, 233 (Tenn. Crim. App. 1992), the “prosecution’s duty to disclose is not limited in scope to ‘competen t ev idence’ or ‘adm issible evidence,’” id. at 232; see also State v. Brooks , 386 So. 2d 1348, 1351 (La. 1980) (“The Bradyrules of disclosure apply not just to information favorable to the accused which the state itself

believes to be credible, but to a

ny material infor

mation that is

favorable to the accused.”). As the United States Supreme Court has recognized, “the prosecutor is responsible for ‘any favorabl e evid ence known to the others acting on the government’s behalf in the case, including th e police.’” Strickler v. Greene , 527 U.S. 263, 275 n.12 (1999) (citing Kyles v. Whitley , 514 U.S. 419, 437 (1 995)). Despite this obligation, however, there is “‘no constitutional requirement that the pr osecution make a complete and detailed accounting to the defens e of a ll police investigatory work on a case.’” Walker , 910 S.W. 2d at 389 (q uoting Moore v. Illino is , 408 U.S. 786, 795 (1972)).

This Court has held o n several occasions that in order to establish a Brady violation, four elements must be sho

wn by the def

endant: 1) that the defenda

nt r equested t he information (u nless the evidenc

e is obviously
exc ulp ato ry, in which case the State is bound to release the infor mation wh ether requested or not); 2) that the State suppressed the information; 3) that the information was favorable to the accused; and 4) that the informa

tion was material.

See State v. Edgin

, 902 S.W.2d 387, 390 (T

enn. 1995); see also Walker , 910 S.W.2d at 389. In this case, there is no question that the first two requirements have been met. Before the appellee’s trial in 1985, defense counsel made a general Brady request seeking “copies of and the right to inspect any written statements given to the prosecution and/or any investigatory agencies which in w

hol e or in part support the innocence of the accused

and/or is exculpato

ry in nature

. . . .” Moreover,

it4 As we stated prev iously, “the prosec utor is responsible for ‘any favorable evidence known to the others acting

on the government’s behalf in the case, including the police.’ ” Strickler , 527 U.S. at

275 n.12 (citing Kyles , 514 U.S. at 437). As su ch, even if the State was no t actually aware o f the police rep ort within its posse ssion, it is charged w ith knowledg e of the repo rt for purpo ses of Brady

. See id.

5 This witness was refe rred to a s Mel ind a Sc ott and Meli nda Jor dan, she hav ing been mar

ri ed b etw een

the ti me of the murder and t

he time of t

he trial . For sake of

consist ency, we refe

r to thi s witness

as Ms. Jordan.
-5- is clear that the St

ate has suppressed this pol ice report give

n that it has had this r

eport in its possession since its completion on October 8, 1983. 4

We also conclude that the police report is information fav

orable to the accused. Information that is f avo rabl e to the accu sed may consist of e vidence that “could exonerate the accused, corrobor ate[] the accused’s position in asserting his innocence, or possess[] favorable information that would have enabled defe nse counse l to conduct further and possibly fruitful investigation regarding the fact that someone other than the appellant killed the victim.” Marshall , 845 S.W.2d at 233. As the Massac

husetts Supreme

Court has articulated the standard, “[t]he Brady obligation comprehends evidence which provides some significant aid to the de fe ndant’s case, wh ether it furnishes corroboration of the defendant ’s story , calls into question a material, although not indispensable, element

of the prosecutio

n’s version of the

events, or challe

nges the credi

bility of a key prosecution

witness.” Commonwealth v. Ellison , 379 N.E.2d 560, 571 (Mass. 1978); see also Mazzan v. Warden, Ely State Prison , 993 P.2d 25, 37 (Nev. 2000) (stating that evidence is favorable under Brady

if “it provides grounds for the defense to attack the reliability, thoroughness, and good faith of the police inve

stigation, to impeac

h the credibility of

the state’s witne

sses, or to bolster the defense case against prosecutorial attacks”). As we view the police report in the con text o f the State’s theory supporting the death penalty at the sentencing hearing, we co nc lude that this third factor is easily m

et.

The State’s principal theory as to the application of the (i)(3) aggravating circumstance was that the appellee fired the “Pac-Man” bullet that grazed a sixteen-year-old girl, Melinda Jordan, 5 and the State made clear that it believed that the appellee

alone fired the s

hots from the cash

register area during the robbery. During the guilt phase of the trial, the State’s attorney questioned Ms. Jordan about her wound, to which defense counsel objected on the ground that her testimony was irrelevant to the issue of the ap

pellee’s guilt for

the murder. In re

sponse, the State

argued that

the evidence was relevant to establish

the res gestae of the offense, and when asked by the Court as to whether anyone other than the app

ellee could have

fired the bullets,

counsel for the Sta

te responded:
Well, I think you hav e to be pretty speculativ e to think that though

. . . . Let me subm it to Your Hon or what I thought that I had shown. All of the shots that everybody, all the witnesses who have testified from the store were asked if all the shots came from the same area. . . . And [Ms. Jordan] said that [the shots had come from the same are

a]. So I certainl

y think that we have shown that all—if all of the6 Indeed, all of t he State’s witnes ses, includi ng Ms. Jordan, confirmed that they thou ght that all of the shots fired that m orning c ame fro m the ca sh register ar ea of the sto re wher e the app ellee was sta nding.
-6- shots came from

the same area a

nd if there was only one gunman in that area, then that gun fired the

shots.

As demonstrated by the State’s answer, it believed that the appellee, as the only person firing shots fromthe cash registe

r area, was sole

lyresponsible for firing the “Pac-Man” bullet that graze

d Ms. Jordan. 6 The State then late r argued durin

g the senten cing phase that because the appellee alone placed Ms. Jordan’s life

indanger, the “great-risk-o f-death” aggra

vator applied to w

arrant the deat

h sentence.
However, as the withheld p olice report demonstrates, not all of the shots fired during the offense came from the cash register area. In fact, with respe ct to t he “Pac-Man” bullet itself, the withheld report c

oncludes that

it was determined that the bulletstruck and penetrated the cabinet side [of the “PacMan” machine] at an angle of 15.5° from the front, this angle[,] p ro jected in an imaginaryline westward[,] would extend to the front door of the store and

the bullet was fired from some point along this line. (emphasis

added). It is undisputed that the cash register area where the defendant was standing was not a long this “imaginar

y line” extending f

rom the “Pac-Man

” machine to the f

ront doors of th e store, and the State introduced no proof whatsoever that the appellee fired any shots from near the front door of the store. As such, the report directly contradicts the principal portion of the State’s theoryconcerning the application of the (i)(3) aggravating circumstance: that the appellee fired the “Pac-Man” bullet that grazed Ms. Jordan, putting her in great risk of death.

When viewed in light of

the Stat e’s theory, the w ithheld police re

port clearly ten

ds to “corroborate

the accused’s position in asserting his innocence [in firing the “Pac-Man” bullet].” Cf. Marshall , 845 S.W.2d a t 23 3. Moreover, because the report calls into question a key “element of the prosecution’s version of events,” i.e. , that the appellee fi re d the “Pac-Man” bullet, cf. Ellison , 379 N.E.2d at 571, this

report constitutes “evidence favorable to the accused” within the meaning of Brady , and it should have been disclosed by the State. Accordingly, we conclude that the appellee has successfully established the third element needed to assert a constitutional viola tion under Brady

. The only remaining issue, then, is whether the failure of the State to disclose the police report
was “material” as to the sentence of death. Evidence is deem e d to be material when

“there is a reasonable

probability that, had the evidence been disclos ed to the defense, the result of the proceeding

would have been

different.” State v. Edgin , 902 S.W.2d 387, 390 (Tenn. 199 5); see also State v. Walker , 910 S.W.2d 381, 389 (Tenn. 1995); State v. Copeland , 983 S.W.2d 703, 706 (Tenn. Crim. App. 1998). Despite the language of probabilities used in our cases, h owever, it must be7 In parti cular, J ustice S outer’s c oncurring opi nion in Strickler

underscores

the misle ading nature of the term “probabili

ty” in Brady jurisprudence: [T]he continued use of the term “probab ility” raises an unjus tifiable risk of mislea ding courts in to treating it as akin to the more demandin

g standar

d, “more likely

than not.” While any short phrases forwhat the cases

are getting at will be “inev itably imprec ise,” I think “significan t possibility” wo uld do better at capturing the degree to which t he undisclosed evi

dence would place the actual result in question, s

ufficient to warrant

overturning a conviction or sentence. 527 U.S. at 298 (Souter, J., concurring). Even substit uting the phrase “reasonable probability” wi th “sig nifican t possibility,” though, Justice Sout er emphasized that “the touchstone of the enquiry must remain whether the evidentiary suppression ‘ undermines our conf idence’ that

the factf inder would have rea

ched the same resul

t.” Id. at 300-01.
-7- emphasized

that the test of materiality is not whether the defendant would more likely than not have received a different verdict had the evidence been disclosed. See Strickler v. Greene , 527 U.S. 263, 275 (1999). 7 Nor is the test of materiality equivalent to that of evidentiary sufficiency, such that we may affirm a conviction or sentence when, “after discounting the inculpatory evidence in light of the undisclosed

evidence, the r

emaining evidenc

e is sufficient to

support the jury’s conclusions.” Id. ; Kyles v. Whitley , 514 U.S. 419, 435 n.8 (1995) (“This rule is clear, and none of the Bradycases has
ever suggested that

sufficiency of evidence (or insufficiency) is the touchstone [of materiality].”). Instead, a reviewing cour t must de termine whether the defendant has shown that “the favora ble evidence could

reasonably

be taken to put the w

hole case in such

a different lig

ht as to undermine the confidence of the verdict.” Irick v. State , 973 S.W.2d 643, 657 (Tenn. Crim. App. 1998) (citing Edgin , 902 S.W.2d at 390); see also Strickler , 527 U.S. at 290. In other words, evidence is material when, becaus e of its absenc e, the defendant failed to receive a fair trial, “ understood as a trial resulting in a verdict worthy of confidence. ” Kyles , 514 U.S. at 434.

After carefully reviewing the extensive record in this appeal, inc luding the record of the original trial, we believe

that the withheld police report “could reasona

bly be taken to put the w

hole
caseinsuch a different light as to undermine confidence in the [ sentencing] verdict .” As in Kyles , 514 U.S. at 445, the “likely damage” from the State’s suppression of the police re port in this case “is best understood by taking the word of the prosecutor” during his arguments to the jury. As the State concedes in its br

ief before this

Court, “the prosecutor did rely heavily upon the Pac-Man bullet inclosing argument t

o establish the gre

at risk aggravator,” and

the emphasis placed upon this critical factor by the State can first beseen from its opening statement to the jury at the sentencing phase:

And I think that all three of these statut ory aggra vating circumstance, there’s no question that they’ve been proven, especially the one where two or more people. I think that the testi

mony was different as to the number of people that were in the store at the time Mr. Bele nchia w as killed. We do know that one of the other witnes ses w as wounded herself. Her name is Melinda Jordan, scraped across the chest by one of the bullets. . . . I mean, this is a frightening thing that happened out there. Melinda Jordan wh o’s sixteen years old then, now she’s eighteen. She’s married. How close did she come to dying? Maybe two inches, an inch?-8-

(emphas is added) . Later in rebuttal argument during closing, the district attorney read all of the aggravating

circumstances and the evidence supporting them. With

regard to the (i)(3) aggravating circumstance, t

he full statement o

f the district attor

ney is as fol

lows:
Number Three,

“The defendant knowingly created a gr eat risk of death to two or more p ersons other than the victim murdered during his act of murder.”

Melinda Scott was shot. Melin

da Scott came ver

y near dea

th, well, not death. She
was shot. If the bullet had gone to a different area of the body close by, it could’ve caused de ath. She was shot. We all know the consequences of being shot, the potential consequ

ences of that.

From these statements,

it is clear that the Sta te relied heavily

—if not almost exclusively—upon

the shooting of this one sixteen-year-old girl to justify finding the (i)(3) aggravating

circumstance, and also to support the finding that this aggravating circumstance, when considered

with the others, ou

tweighed any

mitigating circ

umstances. Ind eed, in its rebuttal argument, the State

summarized its proof before thejury solely in terms of the har

m suffered by Ms. Jo rdan, thereby ignoring any great risk of death faced by others in the store. As is seen fro m it s arguments

at trial, the attention of the State, and likely that of the jury as well, was focused almost exclusively upon the harm suffered by this one girl.

We conclude that the disproportionate amount of attention devot ed to showing that the appellee fired the infamous “Pac-Man” bullet, combined with the fact that the withheld police report
seems to indicate

that the appellee was never in a position to fire this bullet, certainly undermines confidence in the jury’s sentence of death, as it significantly weakens confidence in the jury’s finding and

weighing of this particular aggravating circumstance. While the State is correct that the withheld report “does not r

emove the possibilit

y that Johnson fired the PacMan bullet,” th e withheld report substantially unde

rmines that conclu

sion, especiall

y in the ab sence of any proof that the appellee fired any

bullets along the relevant line of fire. Under these circumstances, we cannot be reasonably

confident that every single member of the j ury , after consider ing the withheld re

port, would have applied this aggravating circumstance or that every mem ber of the jury would have assigned it the same weight in

relation to the othe

r aggravating an

d mitig at ing circumstance s. Accordingly, we hold that the withheld police report is “material” within the meaning of Brady

.
Inresponse, the State argues that the withheld police

report is not mater

ial because “it

is clear that any reasonable juror would have applied the [(i)(3)] aggravator to Johnson’s own actions even if the PacMan Bullet had never been fired.” More specifically, the State contends (1) that the other shots fired b y the app ellee were sufficient by themselves to establish the (i)(3) aggravating circumstance; and (2) that because the (i)(3) aggravating circumstance may be applied vicariously, the jury would have found and considered this aggravating circumstance even if the appellee did not8 The appellee vigorously objects t

o the Stat

e changing it

s theory of

t he case on appeal

with respe ct to t

he (i)(3) aggrav ating circu mstanc e. While th e genera l rule is that a party “ may not litigate an is sue on one ground, abandon that ground p ost-trial, and assert a new basis or ground f or his content

ion in thi s Court,” State v. Matthew s , 805 S.W.2d 776, 781 (T enn. Crim. A pp. 199 0), this rule is subje ct to some flex ibility. As the California Supre me Cour t o nce articulated these excep tions, If a question of law on ly is presented on the f acts appearing in t

he record the change in theory may be permitted. But i f the new theory conte mplates a f

actual s ituati

on the consequences of which are open to controversy and were not put in i ssue or pre sented at

the trial the opposing pa

rty should not be requ ired to defe nd again st it on appe al. Panopulos v. Made ris , 303 P.2d 738, 740-41 (Cal. 1956). In this case, the Stat

e argues that other

evidence introduced at thetrial may be used to es tablish the (

i)(3) aggravati

ng circumstance. To the extent thatthe State argues new legal theories base d on t

he fa cts alr eady c onta

ined in t he re cord,

we are perm itted, thoug h certainly not required, to consi der them in this case.

9 The (i)(3) aggravati

ng circumstance has not been changed since 1982, except f

or a sli ght modificat

ion by the 198 9 Crim inal Cod e Revision

. See Tenn. Code Ann. § 39-13-204(i)(3) (1997 & Sup p. 2000).

10 See, e .g. , Henderso n , 24 S.W.3d at 314 (defendan t fired random shots through “paper-thin” walls of a denti st’s office wh ere others were pre sent); Burns , 979 S.W.2d at 281 (Tenn. 1998) (defenda nts fired pis tol at thre e (continu ed...)
-9- fire the “Pac-M

an” bullet. We dis

agree that eithe

r of these argume

nts renders the withheld police report immaterial for purposes of Brady

. Uponexamination of

the substance of these arguments, it is clear that the State is attempting to make a sufficiency of the proof argument, i.e. , that because the proof is sufficient for a jury to find this aggravating cir

cums tance on other grounds without the police report, the police report is not material to the appellee’s c ase. The State misconstrues the nature of a Brady materiality inquiry, because, as we stated ear

lier, the measure

of materiality

is not that of evidentiary sufficiency. See Strickler , 527 U.S. at 275. Rather, materiality is established “by showing that the fa vorable evidence could reasonably be taken to put the whole case in such a differe nt light as to undermine confidence inthe verdict,” Kyles , 514 U.S. at 435, and the appellee has mad e this showing to

our satisfaction. Nevertheless,

because the pro

per application o

f the (i) (3 ) aggravating circumstance is an issue infrequently

discussed in our op

inions, we take the oppor

tunity to discuss

the State’s arguments on their merits. 8

The State first argues that the other shots fired by the appellee were sufficient by themselves to establish

the (i)(3) aggravating circumstance. This Court has previously held that this aggravating circumstance “contemplates e ither multiple murde

rs or threats

to several persons at

or shortly prior to or shortly after

an act of murder upon which the prosecution is based.” State v. Cone , 665 S.W.2d 87, 95 (Tenn. 1984). 9 Most commonly, this aggravating circumstanc e “has been applied where a defendant fires multiple gunshots in the course of a robbery or other incident at which persons other thanthe victim are present.” State v. Henderson , 24 S.W.3d 307, 314 (Tenn. 2000) (citing State v. Burns , 979 S.W.2d 276, 280 (Tenn. 1998)). In many of the cases upholding application of the (i)(3) aggravator, the defendant fired random shots with others present or nearby, 10 the defendant engaged10 (... continued)

people in a car and then, while escaping, fired rand om shots at byst anders playing basketball) ; State v. McKay , 680 S.W.2d 447 (Tenn. 1984) (defendant fired random shots in a store with other people near by).

11 See, e.g. , State v. Workman , 667 S.W.2d 44 (Tenn. 1984) (def en dant engaged in shoot-out with poli ce, killi ng one officer

, wounding a second,

and missing a third) ;

12 See, e.g. , State v. McKay , 680 S.W.2d 447 (Tenn. 1984) (defendants shot and killed

a second person and wounded a third with a shot to the b ack); State v. Johnson , 632 S.W.2d 542 (Tenn. 1982) ( defendan t shot three pe ople inside of store, immediately prior to shooting and killing t wo other people in the parking lot as the defendant fl ed).

13 From our examinati on of the tr

ial tr anscript , it appe ars that the clos est pers on to the appel lee at t he time of the manager’s shoot

ing was about f

ifteen f eet away, and

it is undispu ted that this person was not in the direct line of fi re.

14 From all acc ounts contai ned in the r

ecord of the original

trial , includi

ng the State’s

closing a

rgument at t

he guilt phase of trial , the bullet that was fired accidentally i nto the ceiling was fire d when the stor e manager hit t

he appellee’ s pistol as he tu rned aro und. A s the district attorn ey stated in closing arg umen ts during th e guilt pha se, What did the evi

dence show then? I think the evi dence showed that Mr. Belenchia ki nd of went up. I think Mr. Perkins said he might’ve hit his hand. Well, where do we know for sure that one bull et went? It went i

nt o the ceilin g. And I submit to you that that’s consistent with the fact that Mr. Belenchia c ame up and probably hit his gun and tha

t’s when the

bullet was fired up i

n the ceil

ing.
-10- in a sh oot-out with other p arties, 11 or the defendant actually shot people in addition to the murde r victim. 12 I n at least one case, this Court has affirmed application of the (i)(3) aggravating circumstance when the defendants fired two shots, one into the ceiling an d a second into the

victim, when the defendants also held others at gun point and thesurrounding circumstances of the offense indicated that “the threat to their lives was very real.” King v. State , 992 S.W.2d 946, 950-51 (Tenn. 1999)

.
We disagree with the State’s assertion that the (i)(3) aggravating circumstance was present beyond a reasonable doubt

in this case based on the appellee’s actions without considering the “PacMan” bullet. The app ellee fired thre e known shots: two into the store manager and one into the ceiling. The shots fired at the store ma

nager were fired at point-blank range, and no other person was within

the immediate vicinity or within the line of fire. 13 Moreover, the str ay bullet fired int

o the ceiling was not an intentional s hot fired by the ap

pellee to intimidate

the other customers, as was the case in State v. King , nor was the bullet fired by the appellee as part of a random shooting spree,
as in State v. Henderson , State v. Burns , or State v. McKay

. 14 We see no indication that the appellee threatened

the lives of the other

customers as did th

e defendants

in King , nor did he actually shoot any other person, as was the case in State v. Johnson , McKay , or State v. Workman

.
From our review of the

original trial tra

nscript, we did find testimony that the appellee, after shooting the manager, held his pistol to the head of the store manager’s wife and demanded money. While this fact could help provide a basis for finding the (i)(3)aggravating circumstance, we note that the great-risk-of-death aggrava tor r equires that two or more people, other tha

n the victim15 Indeed, t he testi mony from the other

persons pre sent demonstr ated that as soon as t

he first bull

et was fired into the ceil

ing, the customers all ran t

o the back of the store. This is much different than the circumstances of King , wherein the defen dants forc ed every one to lie d own at g un poin t with threats of death i f they “even r aised the ir heads an inch.”

16 Our co nclus ion that the police report is material, i n part, because there is littl e or no proof in this record other than the “Pac-Man” bullet to support applicat ion of the (

i)(3) aggr

avating ci

rcumstance does

not preclude

the State from relying upon a

nd attempti

ng to esta

bl ish the aggra vator at a n ew sente ncing h earing. See State v. Ha rris , 919 S.W.2d 323 (Ten n. 1996).
-11- murdered, be placed in great risk of death. 15 See Tenn. Code Ann . § 39-2-203(i)(3). From our examinationof the record, we cannot conclude that the State proved beyond

a reasonable doubt that another person was place

d in great risk

of death by the appellee without the “Pac-Man” bullet, and
we decline to adopt a per se rule that would automatically allow this aggravating circumstance i n all felony murder

cases where the defendant is armed with a pistol and others are present. Such a per se rule would not adequately provide for individualize d sentencing, and

it would unnecessa

rily broaden the (i)(3) aggravating circumstance to a point that it would fail in its essential function of narrowing the dea th-eligible class. Cf. State v. Keen , 31 S.W.3d __, __ (Tenn. 2000) (“The very purpose of the consideration of aggravating cir

cumstances within

a scheme of capital punishment is to provide some pri

ncipled guidance

for the sentenci

ng authority to choose between death and a lesser sentence.”)

Even if the evidence d

id support a fin

d ing of this aggravating circumstance beyond a reasonable

doubt without the “Pac-Ma n” bullet, however, such a finding would not render the withheld police report

immaterial. Significantly, the State never argued that the (i)(3) aggravating circumstance applied because the appellee held h is pi stol to the head of the store manager’s wife. Moreover, the State only brie fly alluded to

the fact at the sentencing hearing that others were present i n the store, and the State never mentioned these other persons during its summary of the proof supporting the (i)(3) aggravator in re buttal argument. Co

ntrary to the State ’s assertions bef ore this Courtthat the “Pac-Ma

n” bullet was mere

ly “gravy,” or a

dditional proof not

needed to establi

sh this aggravator, the actions of the State at trial reveal that virtually its entire case for application of the (i)(3) aggravator was

built on the fact tha

t a sixteen-year-old girl was grazed by a random bullet. As such, it seems likely, even probable, that the jury gave considerable

weight to the State’s argument that the appellee fir

ed the shot that gra

zed Ms. Jordan. U

nder these circumstances, we conclude that the withh eld report is still material, even if other evidence supported application of the (i)(3 ) aggravating circumstance, because the fact of its suppre ssi on significantly undermines our confidence in the jury’s sentence of death. 16

The State also urges this Court to adopt the view that the (i)(3) aggravating circumstance may be applied vicariou

sly, such that the jur y could have found and considered this aggravating circumstance even if someone other than the appellee fired the “Pac-Man” b

ullet. Although no court inthis state has ever held that the (i)(3) aggravating circumstance may

be applied vicariously, the Courtof Criminal Appeals has recently held that some statutory aggravating circumstances may be applied vicariously, consistent

with the federal

and state constitu

tions, where the statutory language17 That the (i )(3) aggr avat ing c irc umsta nce i s one

that focu ses on th e def

endan t’s own actions an d intent is the same conclusi

on reached, albeit in di

cta, by the Owens Court. See 13 S.W.3d at 763 n.13. While we formall y adopt the method used by the Owens Court in a nalyzing this issue, we do not necessarily adopt the conclusions of that court in applying this analysis to any aggravating circumstance other than the (i)(3) aggravator.
-12- permits vicarious application. See Owens v. State , 13 S.W.3d 742, 760 (Tenn. Crim. App. 1999)

. At issue before the Owens Court was the vica rious appli cati on of the (i)(5) aggravating circumstance—that

the murder is “espe cially heinous, at rocious, or crue

l.” In conducting

its analysis of the statutory lang

uage of this aggra

vator, the court f

irst n oted that “[c]ertain aggravators focus clearly on the de

fendant’s own actions or intent and contemplate

consideration of the defendant’s individual

actions in determi

ning the most culpab

le capit al defendants. Al ternatively, other statutory aggravators,

by their plain language, clearly encompas s consideration of the nature and circumstances of the cr im e itself , permitting vicarious application.” Id. at 763 n.13 (citations omitted) (emphasis in original). Concluding that the (i)(5) aggravating circumstance was one that fell within the latter category, the court stated,

After examination of this issue, we conclude that it was the legislature’s intent that the (i)(5) aggravator impute liability upon a defenda nt for conduct for which he or she is criminally

responsible. This agg ravator, by its plain languag

e, clearly encompasses consideration of the n ature and circumstan ces of the crime it

self , which would permit such a vica

rious application

. The emphasis in the

(i)(5) aggr

avator is on the manner of killing , not on the defendant’s actual participation.

Owens , 13 S.W.3d at 763 (citations omitted) (emphasis in original). Following the analysis set forward in Owens , and examining the statutory language of the (i)(3) aggravating circumstance, we must decline the State’s invitation to allow vicarious application of this aggravator. At the time of the appe llee’s offense, the (i)(3) aggravating circumstance read
as follows: “ The defendant knowingly created a great risk of de ath to two (2) or more persons, other thanthe victim murdered, during his act of murder.” Tenn. Code A nn. § 39-2-203(i)(3) (1982 & Supp

. 1986)

. Unlike other aggravating circumstances, such as the (i)(5) aggravator, the statutory language of the (i)(3) aggravating circumstan ce simply does not pe rmit application of

this aggravating circumstance unless the defendant “knowingly created” the “great risk of death,” either by his or her own actions or by directing, aiding, or soliciting another to do the act, i.e. , to shoot the gun, that creates the great risk of death. Without some proof that the defendant in some way “knowingly created” the “great risk of death,” this aggravating circumstance does not apply, even though a great risk of death may have been created by someone during the course of the c riminal episode. Because this aggravating circumstanc e focu ses more upon the defendant’s actions and intentrather than upon

the actual circ

umstances surrou

nding the killing, we

decli n e to accept the State’s invitation to vicar

iously apply the (i)(3) aggravating circumstance, 17 and we continue to hold that the withheld police report is still material to the issue of the appellee’s capital sentence.-13-

Having found that all four elements nece ssary to establish a Bradyviolation are pre sent, including that the withheld police report reasonably undermines confidence in the jury’s verdict, we must remand this case

for a new capita

l sentencing hear

ing. The intermedi

ate court in

this cas e conducted

further harmless error analysis to determine the effect that the Brady

error had upon the sentencing hearing. However, as the United States Supreme Court stated in Kyles v. Whitney ,

once a reviewing co urt applying Bagley has found constitutional erro r there is no need for further

harmless-error review. Assuming, arguendo, that a harmless-error enquiry were to apply, a Bagley error could not be

treated as harm

le ss, sin ce “a reasonable

probability

that, had the evidence

been disclosed to

the defense, the

result of the proceeding would have been different,” necessarily entails the conclusion that the suppression must ha ve had “substantia

l and injurious effect or influence in determining the jury’s verdict.”

514 U.S. at 435 (internal citations omitted) . Nevertheless, we agree with the conclusion of the Court of Criminal Appeals th

at a Brady violation was established and that the violationwas compounded by the jury’s consideration of the f elony murde r aggravating circumstance in violation of this Court’s decisionin State v. Midd lebrooks , 840 S.W.2d 317 (Tenn. 1992). The appellee’s sentence, therefore, is vacated, and th is case is remand

ed to th e She lby County Criminal Court for a new capital sentencing hearing.

CONCLUSION In summary, we hol

d that the police report withheld by the State in the appellee’s original trial is “favorable in

formation” that is

m aterial to t he issue of sentencing within the meaning of Bradyv. Maryland , 373 U.S. 83 (1963), and its progeny. Because a finding of materiality obviates the need for furthe

r harmle s s error analysis, we affirm the judgment of the Court of Criminal Appeals and remand this case t o t he Shelby County Criminal Court for further proceedings consistent with this opinion. Costs of this appeal shall be paid by the appellant, the State of Tennessee.

____________________________________ WILLIAM M. BARKER, JUSTICE