# FILED August 12, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON JUNE SESSION, 1999
ERS KINE LERO Y JOH NSO N,) C.C.A. NO. 02C01-9707- CR-00292 ) Appe llant, ) ) ) SHELBY COUNTY VS. ) ) HON. WILLIA M H. WILLIA MS, , STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Con viction, Death Pe nalty)
DISSE NTING OP INI ON
I respe ctfully dissent f rom thatportion of the opini on which concludes that
a reman d for resentenc ing is necessa ry.

I agree that t he crime scene report suppr essed bythe Sta te was favora ble t o the Defen dant an d therefo re shou ld have b een pro vided to the defens e. I cannot agree, howeve r, that had th is report be en disclo sed to the defense , there is a reasonable pr

obabili ty that

the jury wo uld not have senten ced the Defendant to death.

The Defendantand another armed gunman entered a grocer y store for the purpose ofrobbery. Several customers were in the store. TheDefendant fi red
more than one shot, kill ing the store owner as he stood behind t he counter. The withhe ld crime sc ene rep ort tends to establi sh that a shot which grazed a customerwas not fi red from the same spot where t he Defendant stood when he shot and kill ed the store owner. Alt hough this evi dence sugge sts that perhaps-2-

the Defendantdid not fire the shot whi ch grazed the customer, I cannot conclude thathad th is repo rt been furnish ed to th e defe nse, th ere is a reaso nable probab ilitythat the jury would not ha ve found that the Defendant cr eated a great riskof death to

two o r mor e persons other than the victim , during this felonymurder. I also agr

ee with the State’s argum ent tha t this De fenda nt, bas ed on his partici pation in this ar med robbe ry and felony- murd er, is responsibl e forthe acts of his co-defendant such that this ag grava ting circ ums tance would apply even if the co-defendant f ired the sh ot which graz ed the customer. The Defe ndan t know ingly created the great ri sk to others during his actof felony-murderwhen he entered the store w ith his arm ed coh ort. Thus , even tho ugh th is i s not the precise issue before us, I cannot conclude t hat had the crime scene repor t been disclosed, it is

reasonably pr

obable that the jury

wou ld n ot have found t he existence of

the great- risk aggrav ating ci rcumstance.

The issue befor

e this Court

is whether t here is a reas ona ble pro bability that, had the cri me scene report been f urnished to the defen se, the jury wo uld not have imposed the de ath penalty on t he Defendant for kill ing the store owner during this robbe ry. As t he majo rity note s, a res olution of this issue also i nvolves the harmless error anal ysis established by the supreme court

in State v. How ell , 868 S.W .2d 238 (Te nn. 1993).

Even if we tot

ally di scount the great-ri sk aggravati ng circumstan c e, the remaining aggrav

ator—thatthe Defendant was pr eviously convicted of feloni es involv ing violence to the person— was very strong . The jury heard proof of sev en such prior convi ctions, includ ing on e cou nt of rob bery, th ree co unts o f assa ult with a firearm, and two counts of a ttempted m urder.-3- A s the majorit

y notes, our

supreme court has stated that t he effect and qualitative persuasiveness of the pri or viol ent felony aggravator

increases when there is more than one prior violent felony c onvicti on . State v. Nich ols , 877 S.W.2d 722, 738 (Tenn. 19 94). Th e supreme court has on several occasi ons found a Middlebrooks error to be harmless when the only remaining aggrav ating circumstance was prior v iolent f elonyco nvictions. See State v. Boyd , 959 S.W.2d 557 (T enn. 19 98); State v. Cribbs , 967 S.W .2d 773 (Tenn . 1998); State
v. How ell , 868 S.W .2d 238 (Tenn . 1993); see also Harris v. S tate , 958 S.W.2d 799 (Ten n. Crim. App . 1997).

The majority

concludes that

because “the felony murder ag gravator is clearly erroneous and the great risk aggrava tor was argua bly misapplied, w e are unab le to conclude that the jury w ould ha ve sente nced th e Defe ndant to death based solely on th e prior violen t felonies a ggravato r.” Because I do not f ind that the suppressed cri me scene report puts this case i n such a different li gh t as t o undermine confi dence in the j ury’s verdict, I cannot agree.

I would aff irm the sentence of death.

__________________________ DAVID H. WELLES , JUD GE