FILED

August 12, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

JUNE SESSION, 1999

ERSKINE LEROY JOHNSON,) C.C.A. NO. 02C01-9707-CR-00292

)

Appellant, )

)

) SHELBY COUNTY

VS. )

) HON. WILLIAM H. WILLIAMS,,

STATE OF TENNESSEE, ) JUDGE

)

Appellee. ) (Post-Conviction, Death Penalty)

DISSENTING OPINION

I respectfully dissent from that portion of the opinion which concludes that

a remand for resentencing is necessary.

I agree that the crime scene report suppressed by the State was favorable

to the Defendant and therefore should have been provided to the defense. I

cannot agree, however, that had this report been disclosed to the defense, there

is a reasonable probability that the jury would not have sentenced the Defendant

to death.

The Defendant and another armed gunman entered a grocery store for the

purpose of robbery. Several customers were in the store. The Defendant fired

more than one shot, killing the store owner as he stood behind the counter. The

withheld crime scene report tends to establish that a shot which grazed a

customer was not fired from the same spot where the Defendant stood when he

shot and killed the store owner. Although this evidence suggests that perhaps
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the Defendant did not fire the shot which grazed the customer, I cannot conclude

that had this report been furnished to the defense, there is a reasonable

probability that the jury would not have found that the Defendant created a great

risk of death to two or more persons other than the victim, during this felonymurder. I also agree with the State’s argum ent that this Defendant, based on his

participation in this armed robbery and felony-murder, is responsible for the acts

of his co-defendant such that this aggravating circumstance would apply even if

the co-defendant fired the shot which grazed the customer. The Defendant

knowingly created the great risk to others during his act of felony-murder when

he entered the store with his armed cohort. Thus, even though this is not the

precise issue before us, I cannot conclude that had the crime scene report been

disclosed, it is reasonably probable that the jury would not have found the

existence of the great-risk aggravating circumstance.

The issue before this Court is whether there is a reasonable probability

that, had the crime scene report been furnished to the defense, the jury would not

have imposed the death penalty on the Defendant for killing the store owner

during this robbery. As the majority notes, a resolution of this issue also involves

the harmless error analysis established by the supreme court in State v. Howell,

868 S.W .2d 238 (Tenn. 1993).

Even if we totally discount the great-risk aggravating circumstance, the

remaining aggravator—that the Defendant was previously convicted of felonies

involving violence to the person—was very strong. The jury heard proof of seven

such prior convictions, including one count of robbery, three counts of assault

with a firearm, and two counts of attempted murder.
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As the majority notes, our supreme court has stated that the effect and

qualitative persuasiveness of the prior violent felony aggravator increases when

there is more than one prior violent felony conviction. State v. Nichols, 877

S.W.2d 722, 738 (Tenn. 1994). The supreme court has on several occasions

found a Middlebrooks error to be harmless when the only remaining aggravating

circumstance was prior violent felony convictions. See State v. Boyd, 959

S.W.2d 557 (Tenn. 1998); State v. Cribbs, 967 S.W .2d 773 (Tenn. 1998); State

v. Howell, 868 S.W .2d 238 (Tenn. 1993); see also Harris v. State, 958 S.W.2d

799 (Tenn. Crim. App. 1997).

The majority concludes that because “the felony murder aggravator is

clearly erroneous and the great risk aggravator was arguably misapplied, we are

unable to conclude that the jury would have sentenced the Defendant to death

based solely on the prior violent felonies aggravator.” Because I do not find that

the suppressed crime scene report puts this case in such a different light as to

undermine confidence in the jury’s verdict, I cannot agree.

I would affirm the sentence of death.

__________________________

DAVID H. WELLES, JUDGE