                  IN THE SUPREME COURT OF TENNESSEE
                             AT KNOXVILLE
                                                                   FILED
                                                                      June 28, 1999
DONALD WAYNE STROUTH,                     )
                                                              Cecil Crowson, Jr.
                                          )
                                                             Appellate Court Clerk
       APPELLANT,                         )      SULLIVAN CRIMINAL
                                          )
v.                                        )      Hon. Frank L. Slaughter, Judge
                                          )
STATE OF TENNESSEE,                       )      No. 03S01-9707-CC-00079
                                          )
       APPELLEE.                          )



                          CONCURRING OPINION


       I agree with the majority's conclusion that the defendant's petition for post-

conviction relief should be dismissed. I, however, write separately to voice my

disagreement with the majority's holding that a State v. Middlebrooks, 840

S.W.2d 317 (Tenn. 1992), error occurred in this case.



       The defendant was charged, in a fact-specific indictment, with "killing and

murdering [the victim] in the first degree." The trial judge charged the jury on

both premeditated murder and felony murder. The jury deliberated with the

judge's written instructions that included detailed instructions on both theories.

The jury returned with a single, or general, verdict and stated that: "We, the jury,

find the defendant guilty of murder in the first degree."



       Tennessee courts have consistently held that a single-count indictment

charging premeditated murder is sufficient to support a conviction of either

premeditated first degree murder or felony murder. "The perpetration of the

felony, during which a homicide occurs, is the legal equivalent of premeditation,

deliberation and malice." State v. Beasley, 699 S.W.2d 565 (Tenn. Crim. App.

1985) perm. to appeal denied (citing Sullivan v. State, 121 S.W.2d 535, 538
(Tenn. 1938) (stating theories were "legal equivalent")); see also Farmer v. State,

296 S.W.2d 879, 883 (Tenn. 1956) (holding premeditated intent to commit felony

is transferrable to the homicide to supply malice aforethought); see generally

Schad v. Arizona, 501 U.S. 624, 630, 111 S.Ct. 2491, 2496 (1991) ("the intent to

kill and the intent to commit a felony are alternative aspects of the single concept

of malice aforethought."). A defendant is not denied due process when charged

under one theory of first degree murder but convicted under a different theory.

Beasley, 699 S.W.2d at 566-67 (no due process violation or deprivation of the

opportunity to prepare a defense). Accordingly, first degree murder in 1978 was

but a single crime with various means of commission whether the killing was

premeditated or occurred during a felony.



       I agree with the majority's position that a Middlebrooks error occurs only

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

felony murder" and when the felony murder aggravating circumstance is utilized.

I would conclude, however, that a Middlebrooks error does not occur when a jury

returns a general verdict convicting a defendant of both felony murder and

premeditated murder. Carter v. State, 958 S.W.2d 620 (Tenn. 1997) (holding no

Middlebrooks error when jury renders a general verdict of first degree murder);

see generally Schad, 501 U.S. at 631, 111 S.Ct. at 2497 ("never suggested that

. . . jurors should be required to agree upon a single means of commission" for

first degree murder).



       The jury in this case was clearly charged that first degree murder can be

committed in one of two ways: with premeditation and deliberation or during the

perpetration of a felony. The jury returned a non-specific verdict finding the

defendant "guilty of murder in the first degree." I, therefore, would hold that a




                                         2
Middlebrooks error did not occur in this case because the defendant's conviction

for first degree murder was not based solely on felony murder.



       Finally, I would note that even assuming, as the majority concludes, that a

Middlebrooks error occurred in this case, I am in agreement with the majority's

finding that the Middlebrooks error was harmless beyond a reasonable doubt.

For both of these reasons, I agree with the majority's conclusion that the

dismissal of the defendant's petition for post-conviction relief should be affirmed.




                                          JANICE M. HOLDER, JUSTICE




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