                     IN THE SUPREME COURT OF TENNESSEE

                                  AT JACKSON

                                                              FILED
                                                            April 13, 1998
STATE OF TENNESSEE                  )       FOR PUBLICATION
                                    )                     Cecil Crowson, Jr.
       Appellee                     )       Filed:        Appellate C ourt Clerk
                                    )
v.                                  )       Shelby County
                                    )
PERRY A. CRIBBS                     )       Hon. W. Fred Axley, Judge
                                    )
       Appellant                    )       S. Ct. No. 02-S-01-9703-CR-00014




                     CONCURRING AND DISSENTING OPINION



              I fully concur in the majority holding that Cribbs’

conviction for first-degree murder should be affirmed.                 I concur

also     in    the   conclusion   reached     by    Justice   Reid    that    the

Middlebrooks error in this case more probably than not affected the

sentence.       I write, however, to express my separate view as to

punishment in this case and, at the same time, to summarize the

manner in which I have addressed Middlebrooks errors in previous

cases.



              In State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992),

cert. dismissed, 510 U.S. 124, 114 S. Ct. 651, 126 L. Ed.2d 555

(1993),       this   Court   determined     that    it   is   constitutionally

permissible to impose the death penalty for felony-murder under

Tennessee’s death penalty provisions.              However, the Court further

held that the aggravating circumstance set forth in Tenn. Code Ann.
§   39-2-203(i)(7)(1982),1       that     the     defendant     was      engaged       in

committing a felony, cannot be used as the sole support for

imposition of the death penalty when the defendant’s conviction for

felony-murder is based on the same felony.                The reasoning is that

the (i)(7) aggravating circumstance does not sufficiently narrow

the population of death-eligible felony-murder defendants under the

Eighth Amendment to the U.S. Constitution and Art. I, § 16 of the

Tennessee Constitution, because (i)(7) essentially duplicates the

elements of the offense of felony- murder.                Id. at 323.         After the

application      of   the   (i)(7)   aggravating      circumstance        was       found

unconstitutional in that case, the sole aggravating circumstance

remaining to support imposition of the death penalty was                       that the

murder   was     heinous,   atrocious,       or   cruel   in   that      it    involved

torture, under Tenn. Code Ann. § 39-2-203(i)(5)(1982).                         Although

the (i)(5) aggravating circumstance was amply supported by the

evidence, the Court was unable to conclude that the constitutional

error    was    harmless    beyond   a   reasonable       doubt,   and        the   Court

accordingly remanded for a resentencing hearing.                   Id.



               In the case under review, the Middlebrooks error occurred

because the jury relied on the aggravating circumstance found in

Tenn. Code Ann. § 39-13-204(i)(7)(1991):             the murder was committed

while the defendant was engaged in committing a burglary.                             The

circumstances of the burglary had already been utilized to convict

Cribbs of felony-murder, and the other two first-degree murder

verdicts had been stricken by the trial court.                  As a result, the




     1
      The death penalty provisions at Tenn. Code Ann. § 39-2-203
have been repealed; the aggravating circumstances are now codified
at Tenn. Code Ann. § 39-13-204 (1991).

                                         2
class of death-eligible defendants was not sufficiently narrowed,

as is required by the United States and Tennessee Constitutions.



             With the now invalidated (i)(7) aggravating circumstance,

only one other aggravating circumstance is left to support Cribbs’

death sentence:       the defendant was previously convicted of one or

more felonies, the statutory elements of which involve the use of

violence to the person.        Tenn. Code Ann. § 39-13-204(i)(2) (1991).

In support of this aggravating circumstance, the State adduced

proof regarding four prior convictions--two attempted second-degree

murder convictions, one aggravated robbery conviction, and one

second-degree burglary conviction.               The State concedes that it

mistakenly admitted evidence of the prior burglary conviction,

which does not involve violence.             Standing alone, this error is a

minor one.    In addition, however, it is important to note that each

of the remaining three prior convictions arose from the same

incident.    Consequently, the number of prior convictions submitted

to the jury--four--is extremely misleading.



             Because    the     Middlebrooks      error    is   combined   with

misleading    evidence       regarding     the   only   remaining    aggravating

circumstance, I am unable to find that the jury would have reached

the same conclusion had the improper evidence not been submitted.

Although     Cribbs    may    not   have     offered    persuasive   mitigating

evidence, and the prosecution may not have emphasized or adduced

additional proof of the invalid aggravating circumstance, I cannot

conclude that the cumulative effect of these errors was harmless

beyond a reasonable doubt.          Particularly in light of my previous




                                         3
decisions on this issue, I am convinced that this case must be

remanded for a new sentencing hearing.



              In previous death penalty cases involving similar errors,

I have consistently expressed that the cause should be remanded for

a new sentencing hearing.          In State v. Walker, 910 S.W.2d 381, 398

(Tenn. 1995) cert. denied. ___ U.S. ___, 117 S. Ct. 88, 136 L.

Ed.2d    45   (1996),    I   joined      in       the   Court’s    unanimous    holding

remanding the case for a new sentencing hearing. The defendant had

been convicted of felony-murder, in the shooting death of a woman

in the course of a robbery.           The jury based its imposition of the

death sentence on two aggravating circumstances: (1) the defendant

had previously been convicted of a violent felony, voluntary

manslaughter; and (2) the murder was committed in the course of a

robbery.      Tenn. Code Ann. § 39-2-203(i)(2) and (i)(7)(1982).                      The

second aggravating circumstance was invalid under Middlebrooks, and

the Court concluded that there was no way of knowing whether the

jury    would   have    imposed    the    death         penalty,   had   it    not   been

permitted to consider the improper evidence.                      Id.



              In Hartman v. State, 896 S.W.2d 94, 104 (Tenn. 1995), a

post-conviction case, the defendant had been convicted of murder in

the perpetration of a kidnaping.                    An inmate testified that the

defendant had bragged to him about raping the victim before and

after he killed her.           I wrote for the majority of the Court,

retroactively applying Middlebrooks and remanding the case for

resentencing      because    the    Middlebrooks           error    invalidated      the

aggravating circumstance that the murder was committed during the

commission of a kidnaping.         In addition, the jury had relied on two


                                              4
valid aggravating circumstances:                   (1) the murder was especially

heinous,    atrocious,       or    cruel     in    that    it   involved      torture    or

depravity    of     mind;    and    (2)    the     murder    was   committed      by    the

defendant during his escape from lawful confinement.                          Tenn. Code

Ann. § 39-2-203(i)(5) and (i)(8)(1982).



            We noted in Hartman that several facts supported a

finding of harmless error.                 First, no additional evidence was

introduced in support of the invalid aggravating circumstance that

the murder was committed during a kidnaping.                          Additionally, the

prosecutor did not emphasize the invalid aggravating circumstance

in   his   argument,        and    there     was    little      mitigating      evidence.

Moreover,     the     Court       found    that      the     “escapee”        aggravating

circumstance was both objective and uncontradicted.                       Nevertheless,

because the “heinous, atrocious or cruel” aggravating circumstance

was less objective and the credibility of the testimony supporting

it was highly contested, the Court could not conclude that the

sentence would have been the same had the jury accorded no weight

to the invalid aggravator.            Id. at 103-05.



            Finally, in State v. Bigbee, 885 S.W.2d 797, 800 (Tenn.

1994), I joined the majority’s conclusion that the case be remanded

for a new sentencing hearing.              The defendant had been convicted of

felony-murder in the beating and shooting death of a convenience

store   clerk     during     a     robbery       attempt.       The    jury    found    two

aggravating       circumstances       to   support        imposition     of    the   death

sentence:     (1) the defendant was previously convicted of one or

more violent felonies; and (2) the murder was committed while the

defendant was attempting to commit a robbery.                          Tenn. Code Ann.


                                             5
§   39-13-203(i)(2)      and     (i)(7)(1982).            The   second     aggravating

circumstance     was    invalid       under      Middlebrooks.        Additionally,

irrelevant evidence was admitted regarding the defendant’s prior

conviction of felony-murder.           The jury heard evidence concerning:

the life sentence the defendant had received when he was previously

convicted, the facts surrounding the previous murder, the character

of the previous victim, and the impact the murder had on the

previous victim’s family. Further, the State improperly emphasized

the facts of the prior murder and made an appeal to vengeance in

its argument. The Court held that these cumulative errors were not

harmless beyond a reasonable doubt and remanded for resentencing.

Id. at 809-16.



           In   two     cases,    I    joined       the   majority    in    finding   a

Middlebrooks error harmless.             In the first, State v. Boyd, 959

S.W.2d 557 (Tenn. 1998), a post-conviction case, the defendant was

convicted of felony-murder stemming from the shooting death of a

person   during    a    robbery.            After    we    retroactively       applied

Middlebrooks and invalidated the (i)(7) aggravating circumstance,

only one other aggravating circumstance, a prior conviction for

second-degree murder, supported the death sentence.                        Tenn. Code

Ann. § 39-2-203(i)(2)(1982).                Because the prosecutor did not

emphasize or bring additional evidence of the invalid aggravating

circumstance,     and    because      the       mitigating      evidence    was   weak,

consisting only of the defendant’s testimony, the majority found

the error harmless beyond a reasonable doubt.



           In the second, State v. Hines, 919 S.W.2d 573 (Tenn.

1995) cert. denied, ___ U.S. ___, 117 S. Ct. 133, 136 L. Ed.2d 82


                                            6
(1996), I joined in the conclusion that the Middlebrooks error was

harmless because the (i)(7) aggravating circumstance was supported

by three different felonies:          larceny, robbery, and rape.             Thus,

there   was     only   a   partial   duplication      with   the    felony-murder

conviction, which was based solely on the robbery.                  Additionally,

two other aggravating circumstances supported the death sentence.

Id. at 583-84.



               In the case under review, I conclude that a remand is

appropriate.      With the exception of Boyd, when error leaves only a

single aggravating circumstance remaining, I have been unwilling to

hold    that    the    jury’s   decision    was    unaffected      by   the   error.

Moreover, when the Middlebrooks error is combined with at least one

additional error, I have also been unwilling to hold the jury’s

decision was unaffected. I distinguish Boyd from the instant case:

in Boyd the Middlebrooks error was the sole sentencing problem.

Here, not only was the Middlebrooks error misleading to the jury,

but also the number of prior convictions submitted to the jury was

misleading.



               In sum, I agree with the majority that the first-degree

murder conviction must be affirmed.               However, because I find that

the submission to the jury of an invalid aggravating circumstance

and an invalid prior conviction is not harmless beyond a reasonable

doubt, I respectfully dissent.             I would remand this cause to the

trial court for a new sentencing hearing.




                                      _________________________________
                                      ADOLPHO A. BIRCH, JR., Justice

                                        7
