             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT KNOXVILLE             FILED
                                 JANUARY 1997 SESSION
                                                                 July 30, 1997

                                                             Cecil Crowson, Jr.
                                                             Appellate C ourt Clerk

RONALD RICHARD HARRIES,                 )    No.03C01-9607-CR-00276
                                        )
      Appellant                         )
                                        )    SULLIVAN COUNTY
V.                                      )
                                        )    HON. LYNN W. BROWN,
STATE OF TENNESSEE,                     )    JUDGE
                                        )
      Appellee                          )    (Post-Conviction - Death Penalty)
                                        )
                                        )


For the Appellant:                           For the Appellee:

Michael J. Passino                           John Knox Walkup
Lassiter, Tidwell & Hildebrand               Attorney General and Reporter
213 Fifth Avenue, North
Nashville, TN 37219                          Amy Tarkington
                                             Assistant Attorney General
Peter Alliman                                450 James Robertson Parkway
Lee & Alliman                                Nashville, TN 37243-0493
Highway 411 North                            (On appeal)
P.O. Box 425
Madisonville, TN 37354                       Glenn R. Pruden
                                             Assistant Attorney General
                                             450 James Robertson Parkway
                                             Nashville, TN 37243-0493
                                             (At hearing)

                                             H. Greeley Wells, Jr.
                                             District Attorney General
                                             P.O. Box 526
                                             Blountville, TN 37617




OPINION FILED: ___________________


AFFIRMED


William M. Barker, Judge
                                                 OPINION


        In this capital case, appellant, Ronald Richard Harries, appeals as of right the

denial by the Sullivan County Criminal Court of his second petition for post-conviction

relief. He argues that the trial court erred in finding that the jury’s application of the

felony-murder aggravating circumstance in violation of the rule announced in State v.

Middlebrooks, 840 S.W.2d 317 (Tenn. 1992), was harmless beyond a reasonable

doubt. In that respect, he also contends the trial court erred by concluding that

evidence of his alcohol and drug intoxication at the time of the offense was not a

mitigating factor within the statute and that appellant’s history of drug addiction was

not sufficient mitigating evidence which would have resulted in a lesser punishment

absent the application of the invalid aggravating circumstance.

        After a thorough review of the record, including the trial transcript and the

transcript from the hearing on appellant’s first post-conviction petition, we are of the

opinion that the use of the invalid felony-murder aggravating circumstance was

harmless beyond a reasonable doubt. The trial court’s denial of appellant’s petition is

affirmed.

                                      PROCEDURAL HISTORY

        Appellant was convicted in 1981 of the felony murder of Rhonda Greene, an

eighteen-year-old cashier at a convenience store in Kingsport.1 At the sentencing

phase of the trial, the jury imposed a sentence of death, finding the presence of two

statutory aggravating circumstances which were not outweighed by the mitigating

evidence. Specifically, the jury found that the defendant had been previously

convicted of one or more felonies, other than the present charge, which involved the

use or threat of violence to the person, and the murder was committed while the

defendant was engaged in committing a robbery. See Tenn. Code Ann. §39-


        1
         A full recitation of the factual circumstances surrounding the offense is contained in the
sup rem e co urt’s opinion in app ellant’s c ase on direct appe al. State v. Harries, 657 S.W .2d 414 (Tenn.
1983).

                                                      2
2404(i)(2), (7) (Supp. 1981). On direct appeal to the supreme court, appellant’s

conviction and death sentence were affirmed. State v. Harries, 657 S.W.2d 414

(Tenn. 1983). No permission was sought for a writ of certiorari to the United States

Supreme Court.

       Appellant’s first post-conviction petition was filed in March of 1986. That

petition raised thirty-five (35) issues, including claims of ineffective assistance of

counsel at trial and on appeal; unconstitutionality of the Tennessee death penalty

statute; numerous errors in voir dire and the selection of grand and petit juries in

Sullivan County; inadequate evaluation of appellant’s mental condition; and incorrect

application of the felony-murder aggravating circumstance. Following a three-day

evidentiary hearing, the trial court denied relief on the petition. On appeal, that

judgment was affirmed by this Court. Ronald Richard Harries v. State, No. 833 (Tenn.

Crim. App. at Knoxville, August 29, 1990), perm. to appeal denied (Tenn. 1991).

       The current petition was filed September 9, 1993, alleging constitutional error in

the application of the felony-murder aggravating circumstance to appellant’s conviction

for felony murder. See State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992). No

other grounds for relief were raised. After conducting an evidentiary hearing, the trial

court issued a thorough statement of its findings of fact and conclusions of law.

       The trial court found: (1) that the evidence supporting the remaining valid

aggravating factor was uncontradicted and overwhelming; (2) that the prosecutor

placed little emphasis on the invalid aggravator during his closing argument; and (3)

that no additional evidence supporting the invalid aggravating circumstance was

introduced at the sentencing phase. In evaluating the evidence offered in mitigation,

the trial court found that any mitigation from appellant’s drug addiction was negated by

proof that appellant committed numerous crimes to support his habit. The trial court

further found that evidence that appellant was under the influence of drugs and

alcohol at the time of the crime was insufficient to demonstrate that he was

substantially impaired. See Tenn. Code Ann. §39-2404(j)(8) (Supp. 1981). It also

                                             3
found that appellant’s claims of remorse for the crime were belated and lacked

sincerity and were not supported by the factual record. However, the trial court did

accord some weight to that claim and also to appellant’s claim that the shooting was

accidental. The trial court also considered a list of ten additional mitigating factors

submitted after the filing of the petition. Considering all the above, the trial court

concluded that the Middlebrooks error was harmless beyond a reasonable doubt. See

State v. Howell, 868 S.W.2d 238 (Tenn. 1993), cert. denied 510 U.S. 1215, 114 S.Ct.

1339, 127 L.Ed.2d 687 (1994). Appellant’s petition for relief was denied.

                                STANDARD OF REVIEW

       The parties have raised the question of the proper standard of review for this

Court to apply in reviewing the Howell harmless error analysis performed by the trial

court. A review of Tennessee case law reveals that this question has not been

squarely addressed. Our supreme court has had eight opportunities to consider

whether application of the felony-murder aggravator in violation of Middlebrooks was

harmless beyond a reasonable doubt. See State v. Hines, 919 S.W.2d 573 (Tenn.

1995), cert. denied ___ U.S. ___, 117 S.Ct. 133, 136 L.Ed.2d 82 (1996); State v.

Walker, 910 S.W.2d 381 (Tenn. 1995), cert. denied ___ U.S. ___, 117 S.Ct. 88, 136

L.Ed.2d 45 (1996); State v. Hartman, 896 S.W.2d 94 (Tenn. 1995); State v. Smith,

893 S.W.2d 908 (Tenn. 1994), cert. denied ___ U.S. ___, 116 S.Ct. 99, 133 L.Ed.2d

53 (1995); Barber v. State, 889 S.W.2d 185 (Tenn. 1994), cert. denied ___ U.S. ___,

115 S.Ct. 1177, 130 L.Ed.2d 1129 (1995); State v. Nichols, 877 S.W.2d 722 (Tenn.

1994), cert. denied, 513 U.S. 1114, 115 S.Ct. 909, 130 L.Ed.2d 791 (1995); State v.

Cazes, 875 S.W.2d 253 (Tenn. 1994), cert. denied 513 U.S. 1086, 115 S.Ct. 743, 130

L.Ed.2d 644 (1995); State v. Howell, 868 S.W.2d 238 (Tenn. 1993), cert. denied 510

U.S. 1215, 114 S.Ct. 1339, 127 L.Ed.2d 687 (1994). Procedurally, however, it has not

had the opportunity to review findings of fact and conclusions of law following a trial

court’s Howell harmless error analysis. In fact, the supreme court has reviewed the



                                             4
issue in the context of post-conviction only twice and both times without the benefit of

a post-conviction court’s findings on the issue. See Hartman, 896 S.W.2d at 96;

Barber, 889 S.W.2d at 186.

       This Court has rendered decisions in capital cases in this procedural posture at

least twice. See Tommy L. King v. State, No. 01C01-9512-CC-00415 (Tenn. Crim.

App. at Nashville, February 12, 1997), appeal granted (Tenn. July 7, 1997); Michael J.

Boyd v. State, No. 02C01-9406-CR-00131 (Tenn. Crim. App. at Jackson, February 21,

1996), appeal granted (Tenn. November 25, 1996). In Boyd, a panel of this Court

discussed the trial court’s analysis of the Howell issue, but did not explicitly rely upon

the trial court’s findings or discuss the standard of review. The trial court’s findings

were not addressed in King.

       We are mindful of the well-established standard of review generally applicable

to denials of post-conviction petitions. The trial court’s findings of fact and conclusions

of law are given the weight of a jury verdict and accorded a presumption of

correctness. This Court is bound by those factual findings unless the evidence within

the record preponderates against the judgment. See, e.g., Davis v. State, 912 S.W.2d

689, 697 (Tenn. 1995); Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993); Adkins v.

State, 911 S.W.2d 334, 354 (Tenn. Crim. App. 1994); Alley v. State, 882 S.W.2d 810,

817 (Tenn. Crim. App. 1994); Rhoden v. State, 816 S.W.2d 56, 59-60 (Tenn. Crim.

App. 1991); Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991); Black

v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990); Teague v. State, 772 S.W.2d

932, 933-34 (Tenn. Crim. App. 1988); Brooks v. State, 756 S.W.2d 288, 289 (Tenn.

Crim. App. 1988); Vermilye v. State, 754 S.W.2d 82, 84 (Tenn. Crim. App. 1987);

Buford v. State, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983); Clenny v. State, 576

S.W.2d 12, 14 (Tenn. Crim. App. 1978), cert. denied 441 U.S. 947, 99 S.Ct. 2170, 60

L.Ed.2d 1050 (1979); Long v. State, 510 S.W.2d 83, 86 (Tenn. Crim. App. 1974). The

supreme court recently applied this standard of review in a capital case when



                                             5
reviewing a lower court’s determination on the ineffective assistance of counsel. Goad

v. State, 938 S.W.2d 363, 368-69 (Tenn. 1996).

       Applying these principles, we conclude that the factual findings of the trial court

inherent in a harmless error analysis are entitled to a presumption of correctness. For

example, the emphasis that the prosecutor placed on the invalid aggravating

circumstance in closing argument, as well as the number of remaining valid

aggravating circumstances, should be considered factual findings. Determinations on

the quality of mitigating evidence are also entitled to the presumption. See Parker v.

Dugger, 498 U.S. 308, 111 S.Ct. 731, 737-38, 112 L.Ed.2d 812 (1991) (concluding

that a state appellate court’s determination that the trial judge found no mitigating

circumstances in a capital trial is an issue of historical fact in habeas corpus

proceedings and entitled to presumption of correctness if fairly supported by the

record).

       However, a trial court’s ultimate conclusion of harmlessness is not entitled to a

presumption of correctness, but rather requires a de novo review. See Yates v. Evatt,

500 U.S. 391, 111 S.Ct. 1884, 1894, 114 L.Ed.2d 432 (1991) (evaluating the

harmlessness of a constitutional error requires consideration of the entire record)

(citations omitted); Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 1257, 113

L.Ed.2d 302 (1991) (stating that the Supreme Court has power to review the record de

novo to determine error’s harmlessness). This is due, in part, because the issue of

harmlessness is a mixed question of law and fact. See Deputy v. Taylor, 19 F.3d

1485, 1496 (3d Cir.), cert. denied 512 U.S. 1230, 114 S.Ct. 2730, 129 L.Ed.2d 853

(1994) (finding that state court’s conclusion of harmlessness is a mixed question of

law and fact, not entitled to a presumption of correctness); Suniga v. Bunnell, 998

F.2d 664, 667 (9th Cir. 1993) (determination by state appellate court that instructional

error was harmless is mixed question of law and fact to be reviewed de novo). See

also Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir. 1995), cert. denied ___ U.S.



                                             6
___, 116 S.Ct. 822, 133 L.Ed.2d 765 (1996) (finding that mixed question of law and

fact is not entitled to deference).

        Furthermore, it is impossible to determine the impact of an error and evaluate

its harmlessness without evaluating it in the context of the entire record. Our rules of

appellate procedure require as much: “A final judgment from which relief is available

and otherwise appropriate shall not be set aside unless, considering the whole record,

error involving a substantial right more probably than not affected the judgment or

would result in prejudice to the judicial process.” See Tenn. R. App. P. 36(b)

(emphasis added). Moreover, Howell directs the reviewing court to examine the entire

record for factors which potentially influenced the jury’s decision. 868 S.W.2d at 260.

This is necessary to satisfy the constitutional demand of individualized sentencing

considerations in capital cases. Stringer v. Black, 503 U.S. 222, 112 S.Ct. 1130,

1136, 117 L.Ed.2d 367 (1992).

        In reaching these conclusions, we are guided by the approach used in federal

courts for habeas corpus proceedings.2 In such proceedings, factual findings of the

state courts are entitled to a presumption of correctness, just as we grant deference to

the post-conviction court. See 28 U.S.C. §2254(e)(1) (Supp. 1997). This deference is

equally applicable to findings of a state appellate court. Sumner v. Mata, 449 U.S.

539, 101 S.Ct. 764, 769, 66 L.Ed.2d 722 (1981). However, when determining the

harmlessness of an error, review of the record should be de novo with no presumption

of correctness. See Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 450, 88 L.Ed.2d

405 (1985) (concluding that ultimate question of admissibility of confession is not

factual determination entitled to presumption of correctness). It is within this context

that we review appellant’s assigned errors.




        2
         This Court has previously held that post-conviction review is comparable in scope to federal
hab eas corp us re view. Luttre ll v. State, 644 S.W .2d 408, 409 (T enn. Crim . App. 1982).

                                                   7
                                        MIDDLEBROOKS ERROR

         Appellant argues that his death sentence is infirm as a result of the jury’s

application of the felony-murder aggravating circumstance to his conviction for first

degree felony murder. He contends that such error cannot be considered harmless in

light of the substantial mitigating evidence presented at trial and the presence of only

one valid aggravating circumstance. We disagree.

         When a defendant is convicted of first degree murder solely on the basis of

felony murder, use of the aggravating circumstance that the murder was committed

during the perpetration of a felony fails to sufficiently narrow the class of death-eligible

murderers. State v. Middlebrooks, 840 S.W.2d 317, 346 (Tenn. 1992). Because use

of this aggravating circumstance in a felony-murder conviction to assess the death

penalty duplicates the elements of the offense, it violates the Tennessee Constitution.

Id. Thus, in order to support death as a penalty for the crime of felony murder, a

finding of at least one of the other statutory aggravating circumstances is necessary.

Id at 346-47. This rule has been held to apply retroactively. Barber v. State, 889

S.W.2d 185, 186 (Tenn. 1994), cert. denied ___ U.S. ___, 115 S.Ct. 1177, 130

L.Ed.2d 1129 (1995).3

         It is apparent on the face of the record that a Middlebrooks error occurred in

appellant’s case. Appellant shot and killed Rhonda Greene during the course of a

robbery of the Jiffy Market where she worked. As a result, the jury found him guilty of

first degree felony murder. The jury’s application of the felony-murder aggravating

circumstance was duplicative of the elements of the crime. As a result, this

circumstance cannot be used to support appellant’s death sentence.

         Such error, however, does not automatically mandate a reversal of appellant’s

death sentence or require a new sentencing hearing. This Court must review the

         3
            Ordinarily, the statu te of lim itatio ns would have expired on July 1, 1989, th ereby pre ventin g this
late-filed pos t-con viction petition. T enn . Code A nn. §40-3 0-10 2 (repea led 19 95). See also State v.
Masucci, 754 S.W .2d 90, 91 (Tenn. Crim. App. 1988). However, with regard to affording appellant the
right to litigate the Middlebrooks issue, his pre sent petitio n was tim ely under the rule announced in
Burford v. State , 845 S.W .2d 204 (Te nn. 1992).

                                                         8
record of the evidence at trial and evaluate whether the error is harmless beyond a

reasonable doubt. See State v. Howell, 868 S.W.2d 238, 259 (Tenn. 1993), cert.

denied 510 U.S. 1215, 114 S.Ct. 1339, 127 L.Ed.2d 687 (1994). To perform that

analysis, our supreme court delineated certain factors which potentially influence the

sentence imposed at trial. Id at 260. These relevant factors include: (1) the number

and strength of the remaining valid aggravating circumstances; (2) the extent to which

the prosecutor emphasized the invalid aggravating circumstance during closing

argument; (3) the evidence admitted to establish the invalid aggravator; and (4) the

nature, quality, and strength of the mitigating evidence. Id at 260-61. If the reviewing

court determines that the jury would have imposed the same sentence had it given no

weight to the invalid aggravating circumstance, the error is harmless and the sentence

may be affirmed. Id at 262.

                                             HOWELL ANALYSIS

A.      Remaining Aggravators

        At appellant’s trial, the jury found one other aggravating circumstance in

addition to the felony-murder aggravator: appellant had previous convictions of

felonies involving the use or threat of violence to the person.4 Tenn. Code Ann. §39-

2404(i)(2) (Supp. 1981). In support of this aggravating circumstance at the sentencing

phase, the State introduced testimony and certified copies of convictions to

substantiate three previous violent felonies from the state of Ohio: robbery, armed

robbery and kidnapping.5

         Although the number of valid aggravators is relevant, the crucial inquiry is the

qualitative nature of the aggravating circumstance, its substance and persuasiveness,

and the quantum of proof supporting it. Howell, 868 S.W.2d at 261. In this respect,

our supreme court has determined that the prior violent felony aggravator is more


        4
            At trial, appellant conced ed the pre sen ce o f thes e two agg rava tors in his closing argu m ent.

        5
           Appellant testified about his previous convictions during his direct testimony at the guilt phase
of the trial.

                                                          9
qualitatively persuasive and objectively reliable than others. Id. Moreover, the

influence of this aggravating circumstance increases if there is proof of multiple felony

convictions. Id. See also State v. Nichols, 877 S.W.2d 722, 738 (Tenn. 1994), cert.

denied 513 U.S. 1114, 115 S.Ct. 909, 130 L.Ed.2d 791 (1995).

        Appellant’s previous robbery conviction arose from the hold-up of a dairy store

in Cuyahoga Falls, Ohio. The victim, an eighteen-year-old clerk at the store, testified

that appellant entered the store and demanded money. He had his hand in his pocket

and she was unsure if he was armed.6 The armed robbery conviction and kidnapping

arose in Canton, Ohio. Appellant was armed and entered a restaurant. As he was

robbing a waitress, a police cruiser drove into the restaurant parking lot. Appellant

took the waitress hostage to make his escape. He and his accomplice held her for ten

hours and then released her. The victim testified at trial, stating that appellant

threatened her life more than once while she was being held, but that she was not

physically harmed. She added that appellant did not want to release her and his

accomplice eventually convinced him to do so. Appellant pled guilty to all three crimes

and served approximately seven and one half years in an Ohio state prison.7

        The record supports the trial court’s finding that the remaining aggravating

circumstance in appellant’s case was supported by uncontradicted and overwhelming

proof. The appellant testified to the substance of these crimes during the guilt phase,

the State introduced certified copies of the convictions, and the victims of the crimes

testified at the sentencing phase of appellant’s trial. Due to the objective nature of this

aggravating circumstance and the quantum of proof supporting it, we believe it

significantly influenced the jury’s verdict.


        6
            The characterization of this crime as a violent felony used to support the aggravating
circumstance was challenged on direct appeal. The victim’s testimony was that she was placed in fear
because appellant’s hand was in his pocket in a manner indicating that he had a weapon. Considering
that fa ct, our sup rem e co urt fou nd that it was not error to adm it the conviction . Harries, 657 S.W .2d at
421 .

        7
         Up on re lease, appellant was imm ediately incarc erate d in federa l prison for m ail fraud .
Appellant comm itted the instant offense less than two months after his December 12, 1980, release from
con finem ent.

                                                       10
        Appellant argues that the admission of non-violent criminal acts during the

penalty phase of the trial undermines confidence in the jury’s determination on the

previous violent felony aggravating circumstance. At the sentencing phase, the State

introduced proof of convictions for malicious breaking and mail fraud. The

circumstances surrounding those offenses demonstrate that they did not involve

violence or the threat of violence. A panel of this Court recently held that the

admission of non-violent felonies at the penalty stage of a capital trial does not

necessarily require a new sentencing hearing, but may be considered harmless error.

State v. Perry A. Cribbs, No. 02C01-9508-CR-00211 (Tenn. Crim. App. at Jackson,

February 14, 1997). See also State v. Campbell, 664 S.W.2d 281, 284 (Tenn. 1984),

cert. denied 469 U.S. 920, 105 S.Ct. 302, 83 L.Ed.2d 236 (1984). But see State v.

Johnson, 661 S.W.2d 854 (Tenn. 1983) (determining that admission of non-violent

felonies in support of the aggravating circumstance was so prejudicial that it required a

new sentencing hearing). In holding that any error at appellant’s trial in this respect

was harmless, we concur in the conclusion of Cribbs that the rationale of Johnson is

inapplicable in light of subsequent United States Supreme Court holdings. See

Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990)

(permitting harmless error review when jury has relied on invalid aggravating

circumstance in imposing death penalty).

        We are confident in the jury’s finding on this aggravating circumstance in light

of the substantial proof offered to support it. Moreover, the trial court instructed the

jury to only consider the robbery, armed robbery and kidnapping convictions when

evaluating the aggravating circumstance. It specifically directed that no other previous

convictions could be considered on the aggravator.8 In light of these attendant facts

and the overwhelming proof submitted on the prior violent felonies, we do not find that



        8
          As a corollary, the trial court further instructed the jury that all of appellant’s previous
convictions could be considered to rebut any claim or potential claim in mitigation that appellant had no
significant h istory of p rior crim inal activity. See Tenn . Code A nn. §39-240 4(c) (Supp. 198 1).

                                                    11
the introduction of these two non-violent crimes affected the jury’s verdict. Any error in

their admission was harmless.9

B.      Prosecution’s Closing Argument

        We next consider the prosecutor’s closing argument and the extent to which it

emphasized the invalid felony-murder aggravating circumstance. Our review of the

record does not indicate that the district attorney placed any undue emphasis on this

aggravating circumstance. The State sought to prove six statutory aggravating

circumstances. The prosecutor’s argument walked the jury through each of the

aggravators and also addressed the mitigating circumstances. The prosecutor

referred to the felony-murder aggravator only twice.

        If any emphasis can be detected in the argument, it was devoted to the

“witness killing” aggravator. Tenn. Code Ann. §39-2404(i)(6) (Supp. 1981) (“the

murder was committed for the purpose of avoiding, interfering with, or preventing a

lawful arrest or prosecution of the defendant or another”). This theory was a

substantial component to the State’s proof, beginning at the guilt phase of the trial. In

response to questions by the prosecution, appellant acknowledged that the victims of

his previous violent crimes identified him as the perpetrator. In light of that, the State

implied that appellant intended to leave no witnesses to the robbery of the Jiffy Market

to reduce the possibility of identification. That theory was additionally supported by

proof that the appellant fired upon the other cashier at the market and circumstantial

proof that appellant believed Greene was the only clerk in the store at the time of the

robbery. See State v. Harries, 657 S.W.2d 414, 417 (Tenn. 1983).

        Appellant acknowledges that only a small portion of the State’s argument

focused on the felony-murder aggravating circumstance, but argues that a substantial

portion of the argument was devoted to the “witness elimination policy of the felony

murder aggravator.” He attempts to equate the felony-murder aggravator with the


        9
         Introduction of the ma il fraud conviction was ch allenged on direct appeal. The s uprem e court
found that its adm ission was harm less error. Harries, 657 S.W .2d at 421-22.

                                                    12
witness-elimination aggravator.10 Compare Tenn. Code Ann. §39-2404(i)(7) (Supp.

1981) and Tenn. Code Ann. §39-2404(i)(6) (Supp. 1981). This Court has previously

rejected such a contention. State v. Leroy Hall, Jr., No. 03C01-9303-CR-00065

(Tenn. Crim. App. at Knoxville, December 30, 1996). Similarly, claims that use of

these two aggravators constitute double weighing have also been rejected. State v.

James Blanton, No. 01C01-9307-CC-00218 (Tenn. Crim. App. at Nashville, April 30,

1997).

         The legislature’s delineation of these two separate aggravators is sufficient to

rebut appellant’s claim. A finding of either can be used to support the imposition of

the death penalty. See Tenn. Code Ann. §39-2404(g) (Supp. 1981). In addition, the

plain language of these aggravating circumstances signify that they seek to target two

different groups of murderers. The witness-elimination aggravating circumstance,

Tennessee Code Annotated section 39-2404(i)(6), enhances the punishment when it

can be proven that at least one motive for the killing was the threat of defendant’s

apprehension. State v. Smith, 868 S.W.2d 561, 580 (Tenn. 1993), cert. denied, ___

U.S. ___, 115 S.Ct. 417, 130 L.Ed.2d 333 (1994). In contrast, the felony-murder

aggravator is used to target those murderers who cause the death of the victim while

committing, attempting to commit or fleeing from certain enumerated felonies. Tenn.

Code Ann. §39-2404(i)(7) (Supp. 1981). As such, different proof is necessary to

support the imposition of each. Although it may be argued that in many felony

murders the purpose is to eliminate witnesses, State v. Terry, 813 S.W.2d 420, 423

(Tenn. 1991), such a blanket assertion does not apply to every felony murder. It

cannot be said that every murder committed during the course of a felony is for the

purpose of eliminating witnesses. State v. Teresa Deion Smith Harris, No. 02C01-

9412-CC-00265 (Tenn. Crim. App. at Jackson, November 12, 1996). Each case must

stand on its individual factual circumstances. Appellant’s argument on this issue fails.


         10
         Although argued by the State, the jury did not find the witness-elimination aggravating
circumstance.

                                                   13
C.      Evidence Supporting Invalid Circumstance

        Also relevant to our determination is the evidence which was admitted to

establish the invalid aggravating circumstance. We must consider whether an invalid

aggravator was established by evidence that was materially inaccurate or admissible

only to support the invalid aggravator, or whether the evidence was otherwise

admissible in the guilt or sentencing phases. Howell, 868 S.W.2d at 261. Evidence

that the murder was committed during the commission of a felony came during the

State’s case-in-chief at the guilt phase and resulted in appellant’s conviction of felony

murder. No additional evidence to support the invalid aggravator was introduced in

the sentencing phase of the trial. An aggravating factor which duplicates the elements

of the underlying crime, as in appellant’s case, has less relative tendency to

prejudicially affect the sentence imposed. Id. Appellant conceded this point at the

post-conviction hearing.

D.      Mitigation Evidence

        Finally, we must consider all the relevant mitigating evidence, including its

nature, strength, and quality. Howell, 868 S.W.2d at 262. Appellant’s case is replete

with information offered as mitigation, primarily pertaining to his history of drug and

alcohol abuse and addiction. Indeed, at trial, drug and alcohol abuse was the primary

theory of appellant’s defense. Appellant contended that he was high on drugs at the

time of the offense and unaware of his actions.

        Appellant testified during the guilt phase of the trial. In addition to testimony of

his previous crimes and periods of confinement, appellant detailed his use of drugs

and alcohol during his teenage years that continued throughout his adult life. He

stated that he unsuccessfully tried to overcome his drug habit while incarcerated.11 In

addition to alcohol, appellant provided detailed descriptions of the amount and types

of drugs he was using in the days before and the day of the shooting. Appellant’s


        11
          Appellant testified that when he was nearing release from prison, he sought methadone
treatment from the prison doctor. This claim was not corroborated by any other evidence in the record.

                                                  14
convicted accomplice and alleged drug supplier, Charles Wade Stapleton, attested to

appellant’s use of drugs and alcohol before the crime.12

        Furthermore, appellant testified that he did not intend to kill Greene and that the

shooting was accidental. He explained that the gun was cocked when he entered the

store. As he pointed the gun at Greene, he claimed that another patron in the store

startled and jostled him, causing the gun to discharge. Another aspect of appellant’s

testimony intended to be mitigating was that the gun did not belong to him. Appellant

claimed that he obtained the gun from Ralph Page, a mutual friend of appellant and

Stapleton, and that Page was the moving force behind the robbery. Appellant

concluded his testimony by expressing remorse for the crime.

        Appellant did not testify at the sentencing portion of the trial, relying on his

earlier testimony as mitigation. Instead he introduced documentary evidence in

mitigation at the sentencing phase. A report from Dr. Herbert Bockian, a psychiatrist

who evaluated appellant’s competency to stand trial and screened him for drug use,

was read into the record. That drug screen, performed the week of the trial, revealed

a trace amount of barbiturates in appellant’s blood. The test was performed in

response to appellant’s claims that he was obtaining and taking drugs while confined.

Apparently, the report was intended to corroborate appellant’s testimony of his drug

addiction.

        A report from the Southern Ohio Correctional Facility was also introduced. The

1977 report reflected that appellant possessed a syringe and one pill of Creptodigin

while in jail. Prison guards also observed fresh needle marks on appellant’s arms at

that time. Again, this was intended to corroborate appellant’s testimony of drug abuse

and addiction, specifically his claims that it continued throughout his confinement in

penal institutions.




        12
          The State contended that this was in exchange for favorable testimony appellant had already
given on behalf of Sta pleton at his trial.

                                                  15
       We view such evidence as having little, if any, value in lessening appellant’s

culpability in the eyes of the jury. Most of the evidence depicted an undesirable

lifestyle, painting a picture of a man who “caroused” at night, slept during the day, and

failed to maintain employment. In contrast, there was absolutely no evidence

introduced in support of appellant’s good character. State v. Howell, 868 S.W.2d 238,

262 (Tenn. 1993), cert. denied 510 U.S. 1215, 114 S.Ct. 1339, 127 L.Ed.2d 687

(1994).

       The jury obviously gave little weight to appellant’s testimony that he was

“spaced out” or high on drugs at the time of the crime. Appellant possessed a clear

recollection of the events of that evening. Proof reflected that appellant and his

accomplice drove around for some time before the crime to find a good place to rob.

Appellant entered the store and waited for another customer to leave before he

committed the crime. In addition, he had no difficulty fleeing from the crime scene,

meeting his accomplice at an appointed place, and later counting the money and

separating it from food stamps. After counting the money, he buried the money bags

behind Stapleton’s house and later that night gave the food stamps to Stapleton’s

niece. Those activities indicate a keen appreciation for the wrongfulness of his

conduct. Moreover, the day following the crime, appellant, Stapleton, and Page

traveled to North Carolina to dispose of the gun used in the murder. Following that

trip, they had planned an elaborate scheme for the three of them to rendezvous in

Florida.

       The appellant argues that the trial court erred by finding the proof insufficient to

sustain a determination that appellant was substantially impaired. Tenn. Code Ann.

§39-2404(j)(8) (Supp. 1981). As stated, we find the trial court’s conclusion on

substantial impairment supported by the record. However, he argues that even if the

proof did not satisfy that statutory mitigator, the information could still have been

considered in mitigation. See Tenn. Code Ann. §39-2404(j) (Supp. 1981) (mitigation



                                            16
evidence not limited to statutory mitigating circumstances).13 See also Lockett v. Ohio,

438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (holding that evidence at the

sentencing phase cannot be limited to statutory mitigating circumstances). Contrary to

appellant’s assertion, the trial court did not find that the evidence could not be

considered in mitigation. Rather, it gave it little weight in mitigation when considering it

in light of the quality of the proof supporting the valid aggravating circumstance.

Howell, 868 S.W.2d at 262. Even though the evidence may have been considered by

the jury, its questionable value was necessarily considered by the trial court in

weighing the harmlessness of the Middlebrooks error. Hartman v. State, 896 S.W.2d

94, 104 (Tenn. 1995) (concluding that credibility of witness is relevant when weighing

harmlessness of invalid aggravating factor).

        Moreover, the trial court found that evidence of appellant’s drug addiction was

not persuasive in mitigation; there was virtually no factual proof offered in support of

that claim. There was no medical evidence that appellant was addicted to drugs or

alcohol, nor did the psychological evaluations indicate that appellant was addicted.

His testimony on the issue, corroborated only by accomplice testimony and thin

documentary evidence from four years before the crime, is hardly convincing or

significant in light of the other proof.

        The trial court also found by the appellant committing violent crimes to support

a drug habit, any mitigation from which the appellant might benefit was negated.

Appellant characterizes this conclusion as rank conjecture. Again, it was the trial

court’s duty to consider the quality and persuasiveness of the mitigating evidence in

the weighing of harmless error. Howell, 868 S.W.2d at 262.




        13
           Ap pellant’s brief cites “Section 39-2404(j)(9 )” w hich allegedly “provided that th e ju ry could
consider ‘any other evidence you find to be mitigating circumstances.’” W e note that subsection (j)(9)
was no t a part of the 1981 statute. Howeve r, the trial court’s instructions to the jury advised that the jury
cou ld con sider any facts o r circu m stan ces in m itigation.

                                                      17
        Other mitigation evidence offered by appellant lacked credibility. Appellant

never disputed that he shot Rhonda Greene, but claimed that it was accidental.

However, this was contradicted by other witnesses. Appellant claimed that Scott

Fletcher, another store patron, startled him and jostled his arm causing the gun to fire.

In contrast, Fletcher’s statements to law enforcement and unequivocal testimony at

trial reflected that he was standing outside the store in the parking lot at his car when

he heard the gunshots. Additionally, the surviving store cashier testified that she saw

Fletcher exit the store and moments later heard the gunshot.

        Finally, appellant’s remorse for Greene’s death was of little value in mitigation.

As the post-conviction trial court noted, this sorrow developed well after the crime was

committed. After shooting Greene, appellant exhibited no remorse. He did not

attempt to aid the victim, but instead fired a shot at the other clerk. He then

repeatedly demanded the money from her and did not permit her to seek medical

assistance for Greene.

        We are aware that appellant has offered evidence throughout his post-

conviction proceedings that he suffers from brain damage. He argues that this should

be considered in mitigation of his crime. However, we note that such evidence was

not before the jury and could not have played a role in its decision. In addition, the

evidence of brain damage primarily consists of a letter from a New York psychiatrist,14

dated five years after the crime. Although appellant has been evaluated on numerous




        14
          This evaluation was the basis of a 1984 ruling by a federal district court that appellant was
incom pete nt to waive his pos t-con viction rights and p roceed to execu tion. See Groseclose ex rel.
Harries v. Dutton, 594 F.Supp . 949, 956 (M.D . Tenn. 1984 ).

                                                    18
occasions by both psychologists and psychiatrists,15 the record before us does not

indicate that other doctors have reached a similar conclusion.16

        Appellant broadly attacks the Howell harmless error analysis because the jury

is not required to specify the mitigating circumstances it considered. He contends that

it is virtually impossible to determine harmlessness without knowing which facts the

jury considered in mitigation. Our supreme court, acknowledging that juries do not

specify mitigating circumstances, has nevertheless found that a harmless error

analysis can be performed. The court quoted with approval from Clemons v.

Mississippi, 494 U.S. 738, 756, 110 S.Ct. 1441, 108 L.Ed.2d 625 (1990):

        Nor are we impressed with the claim that without written jury findings
        concerning mitigating circumstances appellate courts cannot perform
        their proper role. In Fonzeo and Proffit, we upheld the Florida death
        penalty scheme permitting a trial judge to override a jury’s
        recommendation of life, even though there were no written jury findings.
        An appellate court also is able adequately to evaluate any evidence
        relating to mitigating factors without the assistance of written jury
        findings.

Howell, 868 S.W.2d at 260. Appellant’s argument is without merit.

        Appellant argues that his death sentence cannot be upheld in light of the

supreme court’s ruling in State v. Walker, 910 S.W.2d 381 (Tenn. 1995). In Walker, a

direct appeal of a death sentence, the court was unable to find the Middlebrooks error

harmless where the only valid remaining aggravator was a previous violent felony

conviction. Id at 398. However, Walker is readily distinguishable from appellant’s

case. At the Walker trial, the remaining aggravator was supported by only one

voluntary manslaughter conviction. Cf. State v. Michael J. Boyd, No. 02C01-9406-CR-

00131 (Tenn. Crim. App. at Jackson, February 21, 1996), appeal granted (Tenn.


        15
            Appellant’s com pete ncy to s tand trial was evaluated twice befo re the trial, as well as his ability
to appreciate the wrongfulness of his conduct at the time of the offense. No personality disorders or
defects were discovered. W e also note th at, a ccording to tes tim ony from appellant’s trial counsel,
app ellant was vehe m ently oppos ed to purs uing an ins anity defense a nd ins tructe d his a ttorne ys not to
consider it. Moreover, appellant’s competency to proceed in the instant proceeding was evaluated at the
trial court level.

        16
            W e ack nowle dge that a rep ort fro m a boys’ hom e m ay have alluded to brain dam age.
However, this testing was done in 1962 and testimony at the first post-conviction hearing attacked the
credibility of this finding.

                                                       19
November 25, 1996) (finding in review of post-conviction proceeding that use of

felony-murder aggravating circumstance harmless beyond a reasonable doubt where

remaining valid aggravator, prior violent felonies, was supported by one conviction for

second degree murder). Here, however, the aggravator at appellant’s trial was

supported by proof of three previous violent felonies and a portion of that proof was

appellant’s own testimony. Therefore, the nature and the quantum of proof supporting

the aggravator was far more substantial than in Walker.

        In fulfilling our duty to evaluate the mitigating evidence, we find that the

evidence proffered was of little consequence in lowering appellant’s culpability.

Appellant admitted shooting the victim and his claims in mitigation did little to

ameliorate his liability for the crime. On two separate occasions, the supreme court

has considered similar mitigating evidence presented on behalf of defendants and

found it insufficient to require a new sentencing hearing in the context of harmless

error. See State v. Hines, 919 S.W.2d 573, 584 (Tenn. 1995); Howell, 868 S.W.2d at

262. Considering the substantial proof presented on the remaining valid aggravator

and the nature of that proof, coupled with the prosecutor’s argument and absence of

inadmissible proof of the invalid aggravator, we find that the jury would have imposed

the death penalty had it not considered the invalid felony-murder aggravating

circumstance.

                                      CONCLUSION

        The trial court’s findings of fact on the individual factors considered in Howell

are fully supported by the record. Moreover, our de novo review indicates that the

error in applying the felony-murder aggravator to appellant’s case was harmless

beyond a reasonable doubt. The judgment of the trial court dismissing the appellant’s

post-conviction petition is affirmed. Unless stayed by a court of competent jurisdiction,

the appellant’s sentence of death by electrocution shall be carried out on February 10,

1998.



                                             20
                                    _______________________________
                                    William M. Barker, Judge

CONCUR:



____________________________
Gary R. Wade, Judge



____________________________
Curwood Witt, Judge




                               21
