IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

November 15, 2000 Session

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 capital post-conviction appeal is whether the State improperly withheld

material, exculpatory evidence at the appellee’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 improperly withheld a police report that was

discoverable under Brady v. Maryland, 373 U.S. 83 (1963). The post-conviction court denied relief,

but the Court of 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 of the

Court of 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 Affirmed; Case Remanded for Re-Sentencing

WILLIAM M.BARKER,J., delivered the opinion of the court, in which E.RILEY ANDERSON,C.J., and

FRANK F. DROWOTA, III, ADOLPHO A. BIRCH, JR., and JANICE M. HOLDER, JJ., joined.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Amy L.

Tarkington, Senior Counsel Criminal Division, Nashville, Tennessee, for the appellant, State of

Tennessee.

Joseph S. Ozment, Memphis, Tennessee; Jonathan I. Blackman, New York, New York; David E.

Brodsky, New York, New York, for the appellee, Erskine Leroy Johnson.

OPINION
1

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

was that the petition lay dormant on the trial court’s calendar while the appellee served a sentence in California for

various offenses. O nce the ap pellee com pleted serv ing the California sen tence, he w as transferre d to this state and

proceedings on the post-conviction petition were resumed.

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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 events giving rise to this case occurred in early October of 1983

when the appellee and two other persons robbed a Food Rite Grocery Store 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 placed his

pistol to the manager’s head, and the manager turned around and threw 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. After this shot was fired, the appellee shot the store manager twice, 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 during this episode, someone fired a bullet, known as the “Pac-Man” bullet, which went

through a Pac-Man video-game machine and grazed a sixteen-year-old girl across her chest.

The appellee was tried and convicted of felony murder in December of 1985, and a jury

sentenced him to die by electrocution. The jury found that the following three aggravating

circumstances outweighed any mitigating circumstances: (1) that the defendant was previously

convicted of one or more felonies that involved the use 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 death

to two or more persons, other than the victim 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 commission of a robbery, Tenn. Code Ann. § 39-2-203(i)(7) (1982). The appellee’s

conviction and sentence were later affirmed by this Court in State v. Johnson, 762 S.W.2d 110

(Tenn. 1988). 

On October 3, 1991, the appellee filed a pro se petition for post-conviction relief, and his

appointed counsel later filed an amended petition in December of 1991. Eventually, additional

attorneys were appointed to represent the appellee, and these attorneys filed a second amended

petition in August of 1996.1 The trial court held a hearing lasting seven days between December

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

Brady v. Maryland, 373 U.S. 82 (1963). This police report, which was 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 attached to the report showed that solid obstructions were between the cash

register area and the Pac-Man machine. The appellee then argued that because he did not fire the
2

 At the time of the appellee’s offense, the (i)(3) aggravating circumstance read as follows: “The defendant

know ingly created a g reat risk of d eath to two (2) or more persons, other than the victim murdered, during his act of

murder. ” Tenn. Code Ann. § 39-2-203 (i)(3) (1982 & Supp. 1986).

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bullet that grazed the sixteen-year-old girl, the proof was 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 petition for post conviction relief as amended is without merit.” Although

the trial court found the felony murder aggravating circumstance inapplicable after this Court’s

decision in 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 circumstances found by the

jury . . . .” The trial court made no specific written findings with respect to the alleged Brady

violation concerning the withheld police report.

The Court of Criminal Appeals reversed the dismissal 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, resulted in an arguable misapplication of the (i)(3) aggravating

circumstance. Viewing the withheld report in combination with the unconstitutional application of

the felony murder aggravating circumstance, the court stated that it was “unable to conclude that the

jury would have sentenced the Defendant to death based solely on the prior violent felonies

aggravator.” Accordingly, while the Court of Criminal 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 to 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 favorable to the accused” and “material” within the meaning of

Brady v. Maryland. We therefore hold that the report should have been disclosed to the appellee

prior to his sentencing hearing, and because the State’s failure to disclose this police report severely

undermines our confidence in the jury’s sentence of death, we remand 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 defendant is guaranteed the right to a fair trial under the Due Process Clause

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

of Article I, section 8 of the Tennessee Constitution. See, e.g., State ex rel. Anglin 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 fundamental
3

 This disclosure obligation applies specifically to materials in mitigation of sentence . See Brady, 373 U.S.

at 87-88 (“A prosecution that withholds evidence on demand of an accused which, if made available, would tend to

exculpate him or reduce th e penalty helps shape a trial that bears heavily on the defendant.”) (emphasis added).

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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 evidence favorable

to an accused upon request violates due process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the prosecution,” id. at 87.

3

 Evidence

“favorable to an accused” 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. App. 1998); see also United States v.

Bagley, 473 U.S. 667, 676 (1985). 

While the “prosecution 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 ‘competent evidence’ or ‘admissible

evidence,’” id. at 232; see also State v. Brooks, 386 So. 2d 1348, 1351 (La. 1980) (“The Brady rules

of disclosure apply not just to information favorable to the accused which the state itself believes to

be credible, but to any material information that is favorable to the accused.”). As the United States

Supreme Court has recognized, “the prosecutor is responsible for ‘any favorable evidence known

to the others acting on the government’s behalf in the case, including the police.’” Strickler v.

Greene, 527 U.S. 263, 275 n.12 (1999) (citing Kyles v. Whitley, 514 U.S. 419, 437 (1995)). Despite

this obligation, however, there is “‘no constitutional requirement that the prosecution make a

complete and detailed accounting to the defense of all police investigatory work on a case.’”

Walker, 910 S.W.2d at 389 (quoting Moore v. Illinois, 408 U.S. 786, 795 (1972)).

This Court has held on several occasions that in order to establish a Brady violation, four

elements must be shown by the defendant:

1) that the defendant requested the information (unless the evidence is obviously

exculpatory, in which case the State is bound to release the information whether

requested or not);

2) that the State suppressed the information;

3) that the information was favorable to the accused; and

4) that the information was material.

See State v. Edgin, 902 S.W.2d 387, 390 (Tenn. 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 whole

or in part support the innocence of the accused and/or is exculpatory in nature . . . .” Moreover, it
4

 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 referred to as Melinda Scott and Melinda Jordan, she having been married between the time

of the murder and the time of the trial. For sake of consistency, we refer to this witness as Ms. Jordan.

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is clear that the State has suppressed this police report given that it has had this report in its

possession since its completion on October 8, 1983.4 

We also conclude that the police report is information favorable to the accused. Information

that is favorable to the accused may consist of evidence that “could exonerate the accused,

corroborate[] the accused’s position in asserting his innocence, or possess[] favorable information

that would have enabled defense counsel 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 Massachusetts Supreme Court has articulated the standard, “[t]he Brady obligation

comprehends evidence which provides some significant aid to the defendant’s case, whether it

furnishes corroboration of the defendant’s story, calls into question a material, although not

indispensable, element of the prosecution’s version of the events, or challenges the credibility 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 investigation, to impeach the credibility of the state’s witnesses, or to bolster the

defense case against prosecutorial attacks”). As we view the police report in the context of the

State’s theory supporting the death penalty at the sentencing hearing, we conclude that this third

factor is easily met.

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 shots 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 appellee’s guilt for the murder. In response, 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 appellee could have fired the bullets, counsel for the State responded: 

Well, I think you have to be pretty speculative to think that though. . . . Let me

submit to Your Honor 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 area]. So I certainly think that we have shown that all—if all of the
6

 Indeed, all of the State’s witnesses, including 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. 

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shots came from the same area and 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

from the cash register area, was solely responsible for firing the “Pac-Man” bullet that grazed Ms.

Jordan.6 The State then later argued during the sentencing phase that because the appellee alone

placed Ms. Jordan’s life in danger, the “great-risk-of-death” aggravator applied to warrant the death

sentence. 

However, as the withheld police report demonstrates, not all of the shots fired during the

offense came from the cash register area. In fact, with respect to the “Pac-Man” bullet itself, the

withheld report concludes that 

it was determined that the bullet struck and penetrated the cabinet side [of the “PacMan” machine] at an angle of 15.5° from the front, this angle[,] projected in an

imaginary line 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 along this “imaginary line” extending from the “Pac-Man” machine to the front doors of the

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

theory concerning 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 State’s theory, the withheld police report clearly tends to

“corroborate the accused’s position in asserting his innocence [in firing the “Pac-Man” bullet].” Cf.

Marshall, 845 S.W.2d at 233. Moreover, because the report calls into question a key “element of

the prosecution’s version of events,” i.e., that the appellee fired the “Pac-Man” bullet, cf. Ellison,

379 N.E.2d at 571, this report constitutes “evidence favorable to the accused” within the meaning

ofBrady, 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 violation 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 deemed to be material when “there is a

reasonable probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different.” State v. Edgin, 902 S.W.2d 387, 390 (Tenn. 1995); 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, however, it must be
7

 In particular, Justice Souter’s concurring opinion in Strickler underscores the misleading nature of the term

“probability” in Brady jurisprudence:

[T]he continued use of the term “probab ility” raises an unjustifiable risk of mislea ding courts in to

treating it as akin to the more demanding standard, “more likely than not.” While any short phrases

for what 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 the undisclosed evidence would place the actual result in

question, sufficient to warrant overturning a conviction or sentence.

527 U.S. at 298 (Souter, J., concurring). Even substituting the phrase “reasonable probability” with “significant

possibility,” though, Justice Souter emphasized that “the touchstone of the enquiry must remain whether the evidentiary

suppression ‘undermines our confidence’ that the factfinder would have reached the same result.” Id. at 300-01.

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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 remaining evidence 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 Brady cases has

ever suggested that sufficiency of evidence (or insufficiency) is the touchstone [of materiality].”).

Instead, a reviewing court must determine whether the defendant has shown that “the favorable

evidence could reasonably be taken to put the whole case in such a different light 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, because of its absence, 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, including the record of the

original trial, we believe that the withheld police report “could reasonably be taken to put the whole

case in such 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 report 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 brief before this Court, “the prosecutor did rely heavily upon the Pac-Man bullet

in closing argument to establish the great risk aggravator,” and the emphasis placed upon this critical

factor by the State can first be seen from its opening statement to the jury at the sentencing phase:

And I think that all three of these statutory aggravating circumstance, there’s no

question that they’ve been proven, especially the one where two or more people. I

think that the testimony was different as to the number of people that were in the

store at the time Mr. Belenchia was killed. We do know that one of the other

witnesses was 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 who’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-

(emphasis 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, the full statement of the district attorney is as follows:

 Number Three, 

“The defendant knowingly created a great risk of

death to two or more persons other than the victim

murdered during his act of murder.”

Melinda Scott was shot. Melinda Scott came very near death, well, not death. She

was shot. If the bullet had gone to a different area of the body close by, it could’ve

caused death. She was shot. We all know the consequences of being shot, the

potential consequences of that.

From these statements, it is clear that the State 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, outweighed any mitigating circumstances. Indeed, in its rebuttal

argument, the State summarized its proof before the jury solely in terms of the harm suffered by Ms.

Jordan, thereby ignoring any great risk of death faced by others in the store. As is seen from its

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 devoted 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 remove the possibility that Johnson fired the PacMan bullet,” the withheld

report substantially undermines that conclusion, especially in the absence 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 jury, after considering the withheld report,

would have applied this aggravating circumstance or that every member of the jury would have

assigned it the same weight in relation to the other aggravating and mitigating circumstances.

Accordingly, we hold that the withheld police report is “material” within the meaning of Brady.

In response, the State argues that the withheld police report is not material 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 by the appellee 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 not
8

 The appellee vigorously objects to the State changing its theory of the case on appeal with respect to the

(i)(3) aggrav ating circumstanc e. While th e genera l rule is that a party “may not litigate an issue on one ground, abandon

that ground p ost-trial, and assert a new basis or ground for his contention in this Court,” State v. Matthews, 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 Supreme Court once

articulated these excep tions,

If a question of law on ly is presented on the facts appearing in the record the change in theory may

be permitted. But if the new theory contemplates a factual situation the consequences of which are

open to controversy and were not put in issue or presented at the trial the opposing party 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 State argues that other evidence introduced

at the trial may be used to establish the (i)(3) aggravating circumstance. To the extent that the State argues new legal

theories based on the facts already contained in the record, we are perm itted, thoug h certainly not required, to consider

them in this case. 

9

 The (i)(3) aggravating circumstance has not been changed since 1982, except for a slight modification by

the 198 9 Criminal 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

dentist’s office wh ere others were pre sent); Burns, 979 S.W.2d at 281 (Tenn. 1998) (defenda nts fired pistol at three

(continu ed...)

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fire the “Pac-Man” bullet. We disagree that either of these arguments renders the withheld police

report immaterial for purposes of Brady.

Upon examination 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 circumstance on other grounds without the police report, the police report is not

material to the appellee’s case. The State misconstrues the nature of a Brady materiality inquiry,

because, as we stated earlier, 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 favorable evidence

could reasonably be taken to put the whole case in such a different light as to undermine confidence

in the verdict,” Kyles, 514 U.S. at 435, and the appellee has made this showing to our satisfaction.

Nevertheless, because the proper application of the (i)(3) aggravating circumstance is an issue

infrequently discussed in our opinions, we take the opportunity 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 either multiple murders 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 circumstance “has been applied where a

defendant fires multiple gunshots in the course of a robbery or other incident at which persons other

than the 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 engaged
10 (...continued)

people in a car and then, while escaping, fired rand om shots at bystanders 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) (defendant engaged in shoot-out with police,

killing 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 two other people in the parking lot as the defendant fled).

13 From our examination of the trial transcript, it appears that the closest person to the appellee at the time of

the manager’s shooting was about fifteen feet away, and it is undispu ted that this person was not in the direct line of fire.

14 From all accounts contained in the record of the original trial, including the State’s closing argument at the

guilt phase of trial, the bullet that was fired accidentally into the ceiling was fired when the store manager hit the

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 evidence show then? I think the evidence showed that Mr. Belenchia kind of went up.

I think Mr. Perkins said he might’ve hit his hand. Well, where do we know for sure that one bullet

went? It went into the ceilin g. And I submit to you that that’s consistent with the fact that Mr.

Belenchia came up and probably hit his gun and that’s when the bullet was fired up in the ceiling.

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in a shoot-out with other parties,11 or the defendant actually shot people in addition to the murder

victim.12 In 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 and a second into the victim,

when the defendants also held others at gun point and the surrounding 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 appellee fired three known shots: two into the store manager and one into the

ceiling. The shots fired at the store manager were fired at point-blank range, and no other person

was within the immediate vicinity or within the line of fire.13 Moreover, the stray bullet fired into

the ceiling was not an intentional shot fired by the appellee 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 the 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 transcript, 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 aggravator requires that two or more people, other than the victim
15 Indeed, the testimony from the other persons present demonstrated that as soon as the first bullet was fired

into the ceiling, the customers all ran to 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 if they “even raised their heads

an inch.” 

16 Our conclusion that the police report is material, in part, because there is little or no proof in this record

other than the “Pac-Man” bullet to support application of the (i)(3) aggravating circumstance does not preclude the State

from relying upon and attempting to establish the aggravator at a n ew sente ncing h earing. See State v. Ha rris, 919

S.W.2d 323 (Ten n. 1996).

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murdered, be placed in great risk of death.15 See Tenn. Code Ann. § 39-2-203(i)(3). From our

examination of the record, we cannot conclude that the State proved beyond a reasonable doubt that

another person was placed 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 in

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 individualized sentencing, and it would unnecessarily

broaden the (i)(3) aggravating circumstance to a point that it would fail in its essential function of

narrowing the death-eligible class. Cf. State v. Keen, 31 S.W.3d __, __ (Tenn. 2000) (“The very

purpose of the consideration of aggravating circumstances within a scheme of capital punishment

is to provide some principled guidance for the sentencing authority to choose between death and a

lesser sentence.”) 

Even if the evidence did support a finding of this aggravating circumstance beyond a

reasonable doubt without the “Pac-Man” 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 his pistol to the head of the store manager’s wife.

Moreover, the State only briefly alluded to the fact at the sentencing hearing that others were present

in the store, and the State never mentioned these other persons during its summary of the proof

supporting the (i)(3) aggravator in rebuttal argument. Contrary to the State’s assertions before this

Court that the “Pac-Man” bullet was merely “gravy,” or additional proof not needed to establish 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 that 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 fired the shot that grazed Ms. Jordan. Under these circumstances, we conclude that

the withheld report is still material, even if other evidence supported application of the (i)(3)

aggravating circumstance, because the fact of its suppression 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 vicariously, such that the jury could have found and considered this aggravating

circumstance even if someone other than the appellee fired the “Pac-Man” bullet. Although no court

in this state has ever held that the (i)(3) aggravating circumstance may be applied vicariously, the

Court of Criminal Appeals has recently held that some statutory aggravating circumstances may be

applied vicariously, consistent with the federal and state constitutions, where the statutory language
17 That the (i)(3) aggravating circumstance is one that focuses on the defendant’s own actions an d intent is

the same conclusion reached, albeit in dicta, by the Owens Court. See 13 S.W.3d at 763 n.13. While we formally 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.

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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 vicarious application of the (i)(5) aggravating

circumstance—that the murderis “especially heinous, atrocious, or cruel.” In conducting its analysis

of the statutory language of this aggravator, the court first noted that “[c]ertain aggravators focus

clearly on the defendant’s own actions or intent and contemplate consideration of the defendant’s

individual actions in determining the most culpable capital defendants. Alternatively, other statutory

aggravators, by their plain language, clearly encompass consideration of the nature and

circumstances of the crime 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 defendant for conduct for which he or

she is criminally responsible. This aggravator, by its plain language, clearly

encompasses consideration of the nature and circumstances of the crime itself, which

would permit such a vicarious application. The emphasis in the (i)(5) aggravator 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 appellee’s offense, the (i)(3) aggravating circumstance read

as follows: “The defendant knowingly created a great risk of death to two (2) or more persons, other

than the victim murdered, during his act of murder.” Tenn. Code Ann. § 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 circumstance simply does not permit 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 criminal

episode. Because this aggravating circumstance focuses more upon the defendant’s actions and

intent rather than upon the actual circumstances surrounding the killing, we decline to accept the

State’s invitation to vicariously 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.
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Having found that all four elements necessary to establish a Brady violation are present,

including that the withheld police report reasonably undermines confidence in the jury’s verdict, we

must remand this case for a new capital sentencing hearing. The intermediate court in this case

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 court applying Bagley has found constitutional error 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 harmless, since “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 have had “substantial 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 that a Brady violation was established and that the violation was compounded

by the jury’s consideration of the felonymurder aggravating circumstance in violation of this Court’s

decision in State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992). The appellee’s sentence,

therefore, is vacated, and this case is remanded to the Shelby County Criminal Court for a new

capital sentencing hearing.

CONCLUSION

In summary, we hold that the police report withheld by the State in the appellee’s original

trial is “favorable information” that is material to the issue of sentencing within the meaning of

Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. Because a finding of materiality obviates

the need for further harmless error analysis, we affirm the judgment of the Court of Criminal

Appeals and remand this case to the 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