             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE            FILED
                            AUGUST 1997 SESSION
                                                           March 17, 1998

                                                       Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk

JEFFREY STUART DICKS,              )   No. 03C01-9606-CC-00231
                                   )
      Appellant                    )
                                   )   GREENE COUNTY
V.                                 )
                                   )   HON. WILLIAM H. INMAN,
STATE OF TENNESSEE,                )   JUDGE
                                   )
      Appellee.                    )   (Post-Conviction - Death Penalty)
                                   )
                                   )


For the Appellant:                     For the Appellee:

Greg W. Eichelman                      John Knox Walkup
District Public Defender               Attorney General and Reporter

D. Clifton Barnes                      Amy L. Tarkington
Assistant Public Defender              Assistant Attorney General
1609 College Park Drive                450 James Robertson Parkway
Box 11                                 Nashville, TN 37243-0493
Morristown, TN 37813
                                       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, the appellant, Jeffrey Stuart Dicks, appeals as of right the

Greene County Criminal Court’s dismissal of his fourth and fifth petitions for post-

conviction relief. The issues on appeal may be summarized as follows:

         (1) Whether the case should be remanded to the trial court for a new
         evidentiary hearing;

         (2) Whether the application of the felony-murder aggravating
         circumstance was harmless beyond a reasonable doubt; and

         (3) Whether the jury instructions on mitigating circumstances violated
         appellant’s federal constitutional rights under the Eighth and Fourteenth
         Amendments.

         After a thorough review of the record, we find no error requiring a reversal of

appellant’s death sentence. Accordingly, we affirm the trial court’s denial of post-

conviction relief.

                                        I. PROCEDURAL HISTORY

         The appellant was convicted in 1979 of the felony murder of James Keegan,

the elderly shopkeeper of the Budget Shop in Sullivan County, Tennessee.1 The jury

sentenced appellant to death upon finding two aggravating circumstances: (1) the

murder was especially heinous, atrocious, or cruel; and (2) the murder was committed

during the perpetration of a felony. See Tenn. Code Ann. §§ 39-2404(I)(5), (7) (Supp.

1978).2 Appellant’s conviction and sentence were affirmed on direct appeal to our

supreme court. State v. Dicks, 615 S.W.2d 126 (Tenn. 1981), cert. denied 454 U.S.

933, 102 S.Ct. 431, 70 L.Ed.2d 240 (1981).

         Appellant filed his first petition for post-conviction relief in 1982 alleging

ineffective assistance of counsel. The trial court denied relief and that ruling was

affirmed by this Court. See Jeffrey Stuart Dicks v. State, No. 201 (Tenn. Crim. App. at

         1
           Before appellant’s trial, a change of venue was granted by the trial court to Greene County. As
a res ult, ap pellan t’s co nvictio n orig inate d in G reen e Co unty, w hich is the prop er ve nue for ap pellan t’s
post-co nviction pro ceeding s. See Tenn. Code A nn. §40-30-103(a)(1) (repealed 199 5).

         2
         Appellant’s co-defendant, Donald Wayne Strouth, was convicted of felony murder and
senten ced to de ath in an ea rlier trial. See State v. Stro uth, 620 S.W .2d 467 ( Tenn . 1981), cert. denied
455 U.S. 983, 102 S.Ct. 1491, 71 L .Ed.2d 692 (1982).

                                                          2
Knoxville, January 20, 1984), perm. app. denied (Tenn. April 30, 1984). Similarly,

appellant’s second post-conviction petition, filed in 1986, was denied by the trial court,

and that ruling was upheld on appeal. See Jeffrey Stuart Dicks v. State, No. 275

(Tenn. Crim. App. at Knoxville, April 15, 1988), perm. app. denied (Tenn. July 5,

1988). In an order denying permission to appeal that decision, the supreme court

granted appellant a delayed appeal on his third post-conviction petition. Upon

addressing the issues raised in appellant’s third petition, this Court again affirmed the

trial court’s denial of post-conviction relief. See Jeffrey Stuart Dicks v. State, No. 275

(Tenn. Crim. App. at Knoxville, March 17, 1989), perm. app. denied (Tenn. July 3,

1989) (supplemental opinion).

         The petitions at issue in this appeal were filed in 1989. Appellant filed his

fourth petition, pro se, on June 1, 1989. He then filed a fifth petition, pro se, on June

29, 1989, the same date as his amended fourth petition. The State moved for

consolidation of the petitions. Although no formal order of consolidation by the trial

court appears in the record, our review indicates that the petitions were considered

jointly. 3

         On November 7, 1994, the trial court held an evidentiary hearing on appellant’s

petitions.4 By agreement of the appellant and the State, the issues at the hearing

were limited to the application of the felony-murder aggravating circumstance and the

validity of the heinous, atrocious, or cruel aggravating circumstance. In denying relief,

the trial court reaffirmed our supreme court’s finding that the murder was especially

heinous, atrocious, or cruel and ruled that the jury’s consideration of the felony-murder


         3
          The fourth and fifth petitions were assigned separate docket numbers in the trial court, but used
interc han gea bly on d ocu me nts w ithin th e tec hnic al rec ord. T he tria l cour t’s ord er of dism issa l refer s only
to the fourth petition. However, appellant’s brief refers to this proceeding as “an appeal from the denial
of the post-convictions four and five, which were combined . . .” The State’s brief relies upon that
assertio n and c onsider s this proc eeding d ispositive of both petition s. W e note tha t during ora l argum ent,
appellant’s counsel stated that the fourth and fifth petitions had been consolidated, although no formal
order was contained in the technical record.

         4
          There is no explanation in the record for this five year delay. We note that the first appearance
of counsel, by way of a motion for discovery, was December 19, 1989. However, the post-conviction
petition was not am ended with the as sistance of coun sel until Feb ruary 8, 199 4.

                                                             3
aggravating circumstance was harmless beyond a reasonable doubt. Upon motion of

the appellant to reconsider the issues, the trial court held another evidentiary hearing

on March 22, 1996, and again denied relief.

                          II. REMAND FOR EVIDENTIARY HEARING

         While the record was being prepared for submission to this Court, it was

discovered that a transcript from the November 7, 1994 evidentiary hearing was not

available. An affidavit from the court reporter for the Criminal Court of Greene County

reflects that she was unable to locate any record of the proceeding and, therefore,

could not prepare a written transcript. Appellant maintains that the transcript of that

hearing is necessary for this Court to perform an adequate review. As a result, he

contends that the matter should be remanded to the trial court for a new evidentiary

hearing.

        In a previous ruling, we held that the appellant was not entitled to a remand on

this issue. Prior to filing his brief, appellant made a motion in this Court requesting a

remand based upon the missing transcript. We denied the motion upon finding that

no new evidence was introduced at the November hearing. Moreover, we found that

the issues raised in the November hearing were readdressed in the later hearing on

March 22, 1996. We, therefore, concluded that any omissions from the November

hearing were completely covered by the transcripts from the hearing in March. The

appellant has failed to explain why the transcript from the March hearing is not

adequate. W e continue to abide by our earlier ruling.5

                                  III. MIDDLEBROOKS ERROR

        Appellant next challenges his death sentence arguing that the felony-murder

aggravating circumstance was found by the jury in violation of the rule announced in


        5
          Appellant also requests a remand for a new evidentiary hearing because he did not receive a
full and fair hearing on November 7, 1994. Appellant apparently overlooks the fact that a second
hearing was held on March 22, 1996 in which the same issues were litigated. A review of that transcript
fails to demonstrate that the trial court limited the presentation of any evidence. Moreover, we note that
appellan t’s couns el and the State agr eed to lim it the issues to be con sidered in the Nov emb er hearin g.
The substance of appellant’s allegations relate more to his dissatisfaction with the trial court’s ruling than
an actual deficiency at the hearing. Appellant is not entitled to a remand.

                                                      4
State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992). He further contends that the

error cannot be demonstrated to be harmless beyond a reasonable doubt and that he

is entitled to a new sentencing hearing.

         This issue is without merit.

         It is now a well-known principle that when a defendant is convicted of first

degree murder solely on the basis of felony murder, then 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 offenders. See State v. Middlebrooks,

840 S.W.2d 317, 346 (Tenn. 1992). In order to satisfy the protections provided in the

Tennessee Constitution, a finding of at least one other statutory aggravating

circumstance is necessary. See id at 346-47. Because Middlebrooks announced a

new constitutional rule which “materially enhances the integrity and reliability of the

fact-finding process of the trial,” that ruling has been held to apply retroactively.

Barber v. State, 889 S.W.2d 185, 186 (Tenn. 1994), cert. denied 513 U.S. 1184, 115

S.Ct. 1177, 130 L.Ed.2d 1129 (1995). Therefore, the Middlebrooks rule applies in the

appellant’s case.6

         The felony-murder aggravating circumstance was utilized in appellant’s case in

contravention of Middlebrooks. At the penalty phase of appellant’s trial, the jury found

two aggravating circumstances to justify the imposition of the death penalty: (1) the

murder was committed while the defendant was engaged in the commission of a

felony, and (2) the murder was especially heinous, atrocious, or cruel in that it involved

torture or depravity of mind. See Tenn. Code Ann. §§ 39-2404(I)(5), (7) (Supp. 1978).

In light of appellant’s conviction of felony murder, the felony-murder aggravator cannot

be used to support the appellant’s death sentence. See Middlebrooks, 840 S.W.2d at

346.

         6
          Because appellant’s petitions were filed prior to the expiration of the statute of limitations on
July 1, 1989 , his claim s mu st be co nsidere d timely. Te nn. Cod e Ann. § 40-30-1 02 (repe aled 199 5); State
v. Masucci, 754 S.W .2d 9 0, 91 (Te nn. C rim . App . 198 8). Alth oug h pre ced ing th e dec ision in
Middlebrooks, we n ote th at the use o f the f elony- mu rder aggr avatin g circ um stan ce w as fa irly raise d in
appellan t’s fifth petition an d fully addres sed in the petition am ended by couns el.

                                                        5
         Nevertheless, this error does not automatically mandate a reversal of

appellant’s death sentence or require a new sentencing hearing. In considering the

error, it is the duty of the reviewing court to examine the 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). In performing that analysis, we must consider the

following relevant factors: (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. See id at 260-61. If we determine that the jury would have

imposed the same sentence had it given no weight to the invalid aggravating

circumstance, then the error is harmless and the sentence may be affirmed. See id at

262.

         We conclude that the error in this case was harmless beyond a reasonable

doubt.7

         In conducting the harmless error analysis, we must first consider the strength

and validity of the remaining aggravating circumstance. In this case we must address

two fundamental issues: (1) whether the appellant’s involvement in the crime was

sufficient to warrant the application of the remaining heinous, atrocious, or cruel

aggravator; and if so, (2) whether under a harmless error analysis, the jury would have

imposed the death sentence using the heinous, atrocious, or cruel aggravator, without

consideration of the invalid felony-murder aggravator.

         The jury found the murder of James Keegan to be especially heinous,

atrocious, or cruel in that it involved torture or depravity of mind. Tenn. Code Ann.

         7
          Appellant makes numerous references to co-defendant Strouth’s trial transcript and relies on
certain proof introduced at that trial. He also urges this Court to take judicial notice of Strouth’s trial
reco rd. H owe ver, u nde r harm less error analys is, the only re levan t infor ma tion is that w hich the ju ry in
appellan t’s case c onsider ed in han ding dow n the dea th senten ce. See How ell, 868 S.W .2d at 260 -61.
There fore, evide nce from his co-de fendan t’s trial, if not put befo re appe llant’s jury, is irrelevan t.

                                                          6
§39-2404(I)(5) (Supp. 1978). However, the appellant first contends that the jury

misunderstood the nature and meaning of the heinous, atrocious, or cruel aggravating

circumstance. He specifically refers to the jury foreman’s inability to pronounce

certain words in the verdict form when the verdict was announced to the trial court.8

According to appellant, the foreman’s difficulty illustrates that the jury did not

understand the meaning of the heinous, atrocious, or cruel aggravator and, hence,

could not properly apply it to the facts. We disagree.

          Initially, we find that the appellant has waived this issue by failing to raise it in

an earlier proceeding. Tenn. Code Ann. § 40-30-112(b)(1) (repealed 1995).

However, even if addressed on the merits, this issue would not entitle the appellant to

relief.

          Although the record reflects that the foreman had trouble pronouncing the word

“atrocious,” that proof alone does not demonstrate that the jury misunderstood the

nature and meaning of the aggravator. To the contrary, the trial court carefully

instructed the jury on the definitions of the words “heinous,” “atrocious,” and “cruel” in

accordance with the law at that time. In reading its verdict to the court, the jury

foreman simply indicated that he could not pronounce a few of the words on the form.

We find no evidence that the jury misunderstood the heinous, atrocious, or cruel

aggravator.

          The appellant next contends that his level of personal involvement in the crime

was not sufficient to warrant the application of the heinous, atrocious, or cruel

aggravating circumstance. To support his argument, he relies on the Florida Supreme

Court’s decision in Omelus v. State, 584 So.2d 563 (Fla. 1991).

          The appellant cites Omelus for the proposition that a convicted murderer who

did not actually kill the victim cannot be held responsible under the heinous, atrocious,

or cruel aggravator. In Omelus, the defendant hired another person to kill the victim


          8
          After several attempts to pronounc e the words “atrocious” and “discharging,” the trial court
directed th e forem an to spe ll the words for the rec ord.

                                                     7
and did not provide any instruction as to how the murder should be accomplished.

See id. at 566. In finding that the jury impermissibly considered the especially

heinous, atrocious or cruel aggravator, the court stated that, “where there is no

evidence of knowledge of how the murder would be accomplished, we find that the

heinous, atrocious, or cruel aggravating factor cannot be applied vicariously.” See id.

In reaching that conclusion, the court specifically noted that the defendant did not

know how the victim would be killed, nor was there evidence that the defendant had

directed the perpetrator to kill the victim in a particular manner. See id.9

           The issue of vicarious application as presented in Omelus has been addressed

by a panel of this Court on one prior occasion. See William Groseclose v. State, No.

02C01-9407-CR-00145 (Tenn. Crim. App. at Jackson, August 23, 1995), perm. to

app. denied (Tenn. 1996). The defendant in Groseclose was convicted of

premeditated murder for hiring two men to kill his wife. Slip op. at 2. On collateral

review, he challenged the vicarious application of the heinous, atrocious, or cruel

aggravating factor. Slip op. at 6. The Court first acknowledged that, under certain

circumstances, Tison permits the death penalty for accomplices who do not participate

in the killing. 10 The Court then distinguished the Omelus case by observing that:

           Contrary to the facts in Omelus, the evidence introduced and established
           at trial in the instant case revealed that the appellant took an active part
           in the planning of the murder and in the preparatory steps to the murder
           itself. The planning was begun three weeks prior to the death of the
           victim. The appellant repeatedly told the hired killers to make the murder
           look like a “rape-robbery” and to leave the victim’s body in her
           automobile. On the morning of the planned murder, the appellant
           allowed [the killers] to enter a tool shed adjacent to the house. At the
           appropriate time, the appellant then motioned for them to enter the
           house. The victim at this time was asleep in her bedroom. Based upon

           9
           The Florid a sup rem e cou rt has reac hed the s am e con clus ion in a t leas t two o ther f actu ally
similar c ases. W illiams v. Sta te, 622 So .2d 456, 4 63 (Fla. 19 93), cert. denied 510 U.S . 1000, 11 4 S.Ct.
570 , 126 L.Ed .2d 4 70 (1 993 ) (find ing he inous , atroc ious , or cr uel ag grav ating circu ms tanc e inap plicab le
in murder-for-hire case where State failed to prove beyond reasonable doubt that defendant knew or
ordered the particu lar ma nner in wh ich the victim s were k illed); Arche r v. State , 613 So.2d 446, 448 (Fla.
1993) (holding that the heinous, atrocious or cruel aggravating circumstance cannot be applied
vicariously to a defendant who arranges for a killing, but is not present and who does not know how the
murder will be accom plished).

           10
                See slip op. at 6 (citing Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed. 2d 127
(1987)).

                                                           8
       the appellant’s active participation in the crime, it was proper for the jury
       to sentence the appellant to death in view of the heinous, atrocious and
       cruel nature of the killing.

Slip op. at 7.

       The holding in Omelus is applicable in most murder-for-hire scenarios because,

in those circumstances, the person paying to have the murder committed may have no

involvement in the planning or in the method of the killing. Therefore, imposition of an

aggravating factor which directly relates to the manner of killing may infringe the

principles of individualized sentencing. See Tison v. Arizona, 481 U.S. 137, 160 n.3,

107 S.Ct. 1676, 95 L.Ed.2d 127 (1987) (Brennan, J. dissenting).

       However, those concerns are not present in this case. The appellant

was prosecuted and convicted for his active role in the robbery and felony murder of a

seventy-year-old storekeeper. The facts and circumstances in this case are vastly

different from both Omelus and Groseclose. Although appellant has maintained that

he was not present in the store during the crime, which is arguably more akin to the

culpability of the contractor in the murder-for-hire cases, we find that the facts support

a finding that the appellant was personally involved in Mr. Keegan’s actual murder.

       Our supreme court has previously held that there was sufficient evidence to

support a finding that the appellant was an active participant in the robbery and felony

murder of James Keegan.11 On the morning of February 16, 1978, Donald Wayne

Strouth arrived at appellant’s apartment and suggested that the two of them rob the

“old man” at the Budget Shop. Thereafter, the appellant and Strouth “cased” the

several blocks surrounding the shop. They examined the store location, the front

entrances, and also searched the back alley for an escape exit. During that entire

time, the appellant knew Strouth was armed with a hawkbill knife.

       The evidence showed that appellant had done business in the Budget Shop

some two weeks earlier and was acquainted with the owner, James Keegan. The



       11
            See State v. Dicks, 615 S.W .2d 126, 130-32 (Tenn . 1981).

                                                     9
appellant was aware that Mr. Keegan carried a roll of money in his front pocket. While

“casing” the store area before the murder, appellant and Strouth passed Mr. Keegan

walking on the street. Appellant pointed him out to Strouth and identified him as the

owner of the store. The two even asked Mr. Keegan if he had closed the store for the

day. During those fateful hours before the murder, Strouth repeatedly told the

appellant they should commit the robbery that day. Strouth even suggested that

appellant could hold the victim while Strouth took the money from his pocket. With

that forewarning, the appellant continued to accompany and assist Strouth.

       Later that same day, Mr. Keegan was found dead on the floor in the Budget

Shop. Evidence from the police investigation revealed that money had been taken

from Mr. Keegan’s person and from his business. Additionally, there was evidence

that Mr. Keegan had suffered fatal injuries to his head, face, and neck. An autopsy

report revealed that Mr. Keegan suffered a skull fracture so severe that his skull was

pushed in toward the brain. That particular injury caused bruising on the right side of

Mr. Keegan’s face and extensive hemorrhaging deep within his brain. According to

testimony from the medical examiner, a blunt instrument caused the skull injury and

rendered Mr. Keegan unconscious.

       The autopsy also revealed that Mr. Keegan suffered multiple lacerations on his

face, head, and neck. The first laceration was a jagged cut over Mr. Keegan’s

posterior right skull which penetrated the full thickness of the scalp at a depth of one-

half to three-quarters of an inch. The second laceration was located across Mr.

Keegan’s right ear extending completely through the cartilage. The third and fatal

laceration was an incision in Mr. Keegan’s throat extending from ear to ear at a depth

of nearly two inches. The medical examiner stated that Mr. Keegan could have lived




                                           10
for up to fifteen minutes after the infliction of the throat wound.12 The ultimate cause

of death was loss of blood.

        The graphic nature and extent of Mr. Keegan’s injuries, as described in the

record, evinces that the murder was especially heinous, atrocious, and cruel. Those

injuries went over and above that necessary to cause death and support a finding that

the perpetrators were grossly wicked, extremely evil, and clearly disposed to inflict

pain upon their victim. State v. Williams, 690 S.W.2d 517, 529 (Tenn. 1985) (defining

the terms heinous, atrocious, cruel, torture, and depravity of mind). Furthermore, the

cruelty with which the assailants attacked Mr. Keegan, showing no mercy toward him

after he was unconscious and helpless, further demonstrates depravity of mind.13

        There is no question that Strouth and the appellant were the sole perpetrators

of those heinous events. As previously determined by our supreme court, the

evidence demonstrates that the appellant was actively involved in the crime and was

not merely waiting for Strouth outside the store. On direct appeal, the supreme court

stated that:

        [T]he evidence indicates that appellant’s activities exceeded the mere
        accompanying of Strouth and driving of the get-away automobile. After
        the robbery and murder, two sets of footprints were found outside the
        rear entrance of the Budget Shop. Both sets of footprints were spaced
        so that they clearly indicated the persons making the prints “were
        running” as they left the shop. At the approximate time of the robbery
        and homicide, appellant and Strouth were observed on the roadway near
        the mouth of the alley leading from the Budget Shop running toward the
        home of appellant. Immediately on reaching his home, appellant
        collected his girlfriend and left Kingsport, taking no possessions with him.
        Further, appellant admits taking a “few” dollars from the robbery
        proceeds and used them in getting away from Kingsport. We think a jury
        reasonably could find from this evidence that appellant was an active
        participant in the robbery and murder of Mr. Keegan and was not, as
        appellant claimed, waiting for Strouth in an automobile.

See State v. Dicks, 615 S.W.2d 126, 130 (Tenn. 1981).


        12
          Dr. James Wilford, the autopsy examiner, testified that Mr. Keegan was unconscious or
restrained at the time he received the knife wound across his neck. He based that opinion upon
evidence that the throat laceration was smooth and that no blood was found on the victim’s hands.

        13
           See State v. Zagorski, 701 S.W .2d 808, 8 14 (Te nn. 1985 ), cert. denied 478 U.S. 1010, 106
S.Ct. 3309, 92 L.Ed.2d 722 (1986) (holding that infliction of gratuitous violence and needless mutilation
of victims who were already helpless evinced dep ravity of mind).

                                                    11
         Based upon that finding, the supreme court concluded that the appellant’s

personal involvement in the crime supported the imposition of the death penalty. 14 We

adhere to that ruling and further conclude that the heinous, atrocious, or cruel

aggravator was properly applied to the appellant.

         Although the proof regarding the events inside the store was circumstantial, the

physical evidence of two sets of footprints leaving the rear of the store demonstrated

that appellant was inside the store during the crime. Also, there was evidence from

eyewitness testimony that the appellant and Strouth were seen running through the

back alley away from the store near the time of the murder. 15

         The State’s theory was that appellant participated in the crime by striking Mr.

Keegan on the head with a rock, rendering him unconscious. Based upon proof that

Strouth was armed with the hawkbill knife, the State theorized that the appellant

attacked Mr. Keegan with a rock before Strouth cut Mr. Keegan’s throat. The medical

examiner, Dr. James Wilford, testified that Mr. Keegan did not struggle when the fatal

neck wound was inflicted. Therefore, according to Dr. Wilford, Mr. Keegan was either

disabled by the skull injury or restrained by one of the assailants when his throat was

cut.

         That evidence reasonably supports a finding that the appellant had a direct role

in the robbery and felony murder of Mr. Keegan. Even without a finding that the

appellant personally committed the brutal killing, the evidence shows that the

appellant actively planned and carried out the robbery, he benefited from the proceeds

of the robbery, and he was present in the store as an aider and abettor when Mr.

Keegan was attacked and left to die. Moreover, the appellant made no attempt to

prevent the robbery or the felony murder. Instead, he participated in the planning and


        14
          The supreme court upheld the appellant’s death sentence upon determining that the sentence
was pro portional to th e appe llant’s role in the c rime. See 615 S.W .2d at 130 .

        15
           The State also introduced evidence that the appellant was wearing a green overcoat on the
day of the m urde r. Th e Sta te alle ged that th e coa t had blood on th e hem , sign ifying a ppe llant’s
pres enc e and partic ipatio n in the mu rder . The coat was mys teriou sly bur ned at the hom e of a ppe llant’s
moth er befor e the app ellant was arrested .

                                                       12
execution of the robbery and thereafter ran away from the scene while Mr. Keegan

was unconscious and bleeding on the floor.

        We, therefore, uphold the application of the heinous, atrocious, or cruel

aggravator. The strength and validity of that remaining aggravator is supported by

proof that the appellant was directly involved and personally culpable for the robbery

and felony murder of James Keegan.16

        Under the second prong of the harmless error analysis, Howell directs us to

consider the extent to which the prosecutor emphasized the invalid felony-murder

aggravator in the closing argument. See 868 S.W.2d at 261. Our review of the record

reveals that the district attorney did not place any undue emphasis on the invalid

aggravating circumstance.

        During the closing argument, the State argued that four aggravating

circumstances applied in appellant’s case. In the initial argument, the prosecutor

referred to the felony-murder aggravator only once. The prosecutor simply stated that

it was the fourth aggravating circumstance applicable to the appellant and that it had

been proven by the jury’s verdict of guilt. Thereafter, in the rebuttal argument, the

prosecutor vehemently argued for the application of another aggravator, that the

murder was committed to avoid arrest or prosecution. We conclude that the

prosecutor’s references to the felony-murder aggravator were minimal and had no

undue influence on the jury.

        Also relevant to our analysis under Howell is the evidence that the State offered

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

invalid aggravator was established by evidence that was materially inaccurate or


        16
            We acknowledge the appellant’s further contention that the heinous, atrocious, or cruel
aggravator is unconstitutional and should not be considered in the harmless error analysis. However, we
find that this iss ue was previous ly address ed and rejected by our sup rem e court o n direct ap peal. See
State v. Dicks, 615 S.W.2d at 131-32. Furthermore, in his second post-conviction petition, the appellant
specifically challenged the applicability of that aggravator in light of State v. Williams, 690 S.W.2d 517
(Tenn. 1985). In denying relief on that issue, we noted that the issue had been considered in the direct
appea l and that Williams did not app ly retroactively. See Jeffrey S tuart Dick s v. State , No. 275 (Tenn.
Crim . App. At K noxville, Ap ril 15, 1988) , per. app. denied (Tenn. July 5, 1988). We reaffirm our previous
determination and decline to further address this issue.

                                                    13
admissible only to support the invalid aggravator, or whether the evidence was

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

261. Evidence that the murder was committed during the commission of a felony was

admitted during the guilt phase and resulted in appellant’s conviction of felony murder.

At the sentencing hearing, no additional evidence was introduced to support the

felony-murder circumstance. We find that the evidence supporting the felony-murder

aggravator was accurate and admissible both in the guilt phase and penalty phase of

appellant’s trial. However, although the evidence was introduced and used in the guilt

phase, it was not emphasized at sentencing. We find no reversible error in the use of

that evidence.

      Lastly, under Howell, we must consider the nature, strength, and quality of the

relevant mitigating evidence. See 868 S.W.2d at 262. At the sentencing hearing, the

appellant addressed six mitigating factors in his closing argument: (1) the defendant

had no significant criminal history; (2) the murder was committed while under the

influence of extreme emotional or mental disturbance; (5) the defendant was an

accomplice in a murder committed by another person, and his participation was

relatively minor; (6) the defendant acted under extreme duress or substantial

domination of another person; (7) the defendant was young at the time of the crime;

and (8) the defendant was acting under a mental defect which substantially impaired

his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to

the requirements of the law. Tenn. Code Ann. §39-2404(j) (Supp. 1978).

       The appellant offered the testimony of Doctor David McMillan, a clinical

psychologist who evaluated the appellant before trial. Dr. McMillan described the

appellant as a passive, dependent, and weak person who used repression and denial

as defense mechanisms. He stated that although the appellant had a normal IQ of

ninety (90), he had poor common sense and suffered from a basic character disorder.

In describing that disorder, Dr. McMillan testified that the appellant was a passive

follower who usually sought out dominating people. According to Dr. McMillan, the

                                           14
appellant would have been unable to initiate and carry out the definitive act of robbery

by himself, but instead would have participated as a follower. He further indicated that

the appellant had a “desert personality,” meaning that the appellant had nothing

“inside” to process events which happen to him.

             On cross examination, Dr. McMillan admitted that by projecting a passive and

helpless personality, the appellant had developed a manipulative behavior in which he

encouraged other people to accomplish his goals. 17 In the context of criminal activity,

Dr. McMillan testified that the appellant’s involvement in a robbery would probably

have been to suggest a place to rob, show the leader the location, and participate in

the planning and surveying for the robbery. Lastly, Dr. McMillan stated that, although

difficult, the appellant recognized the difference between right and wrong and could

have controlled his conduct.

             Based upon the above evidence, and other proof in the record, we find that

there was no mitigating evidence sufficient to reduce the appellant’s culpability for the

crimes. First, we find that the appellant had a history of criminal activity. Appellant

testified at trial that he was “wanted” in North Carolina for writing worthless checks in

the amount of $14,000. At the time of the felony murder, he was fleeing from that

charge and living under an assumed name. Although appellant’s criminal history was

non-violent, it was nevertheless significant and it diminished the strength of any

mitigating factors.

             Moreover, the record fails to support the contention that appellant was

operating under an extreme mental disturbance or under substantial domination from

another person. Although there was evidence that the appellant was a follower who

acted under a basic character disorder, the appellant’s only witness at sentencing

admitted that the appellant could distinguish between right and wrong. Furthermore,

as previously determined, the appellant was an active participate in the planning and


             17
                  Dr. McMillan indicated that people with character disorders often become involved in criminal
activit y.

                                                          15
execution of the crime. We find no evidence that the appellant was forced into the

robbery by another person.

        Lastly, although we acknowledge that the appellant was only twenty (20) years

old on the date of the crime, we find that appellant’s age had little mitigating value in

this case. The appellant had chosen to live on his own in Kingsport, Tennessee after

moving from North Carolina under an assumed name. W hile criminal charges were

pending in North Carolina, the appellant accompanied his friend, Strouth, to the

Budget Shop where the two planned and eventually carried out the robbery and felony

murder of James Keegan. Thereafter, the appellant fled to South Carolina and to

Pennsylvania under a new alias. Based upon those acts, we conclude that the

appellant’s age was not a significant factor.

        In sum, after a careful review of the factors and evidence as mandated by our

supreme court in Howell, we conclude that the jury’s consideration of the invalid

aggravating circumstance was harmless beyond a reasonable doubt. The remaining

aggravating circumstance was supported by the proof; the prosecutor did not target

the invalid aggravator in his closing argument; no inadmissible evidence was

introduced to support the invalid aggravator; and the mitigating circumstances were

insignificant in light of the incriminating proof at trial. We are confident that the

appellant’s death sentence would have been the same had the jury given no weight to

the invalid felony-murder aggravator.18

             IV. JURY INSTRUCTIONS ON MITIGATING CIRCUMSTANCES

        Appellant next contends that the jury instruction prohibited the jury from

considering a mitigating factor unless the jury unanimously agreed upon it. Because

the appellant failed to pursue this issue in an earlier proceeding, we must consider it

waived. See Tenn. Code Ann. §40-30-112(b)(1) (repealed 1995). Nothing in the


        18
         See Barbe r v. State , 889 S.W .2d 185, 1 88-89 (T enn. 199 4), cert. denied 513 U.S. 1184, 115
S.Ct. 1177, 130 L.Ed.2d 1129 (1995) (holding the application of the felony-murder aggravator harmless
beyond a reasonable doubt where remaining aggravator - especially heinous, atrocious, or cruel - was
supported by proof that elderly victim was murdered b y repeated blows to the head).

                                                   16
record demonstrates why this issue was not raised in an earlier appeal, and we find

that it is no longer viable. Tenn. Code Ann. §40-30-112(b)(2) (repealed 1995).

Moreover, any attempt to pursue this claim on the merits is fruitless. Our supreme

court has continuously upheld identical jury instructions in the face of similar

challenges.19

                                             CONCLUSION

        After a review of the extensive record in this case, we conclude that the

appellant is not entitled to relief from his death sentence. Our examination of the

evidence and applicable law reveals that the jury’s consideration of the felony-murder

aggravator was harmless beyond a reasonable doubt. Despite appellant’s efforts to

re-litigate the facts concerning his role in the crime, we find that his arguments are

without merit. We, therefore, uphold the judgment of the trial court and affirm the

sentence of death. Unless stayed by a court of competent jurisdiction, the appellant’s

sentence of death by electrocution shall be carried out on June 9, 1998.



                                                            _____________________________
                                                            WILLIAM M. BARKER, JUDGE



CONCUR:


____________________________
GARY R. WADE, JUDGE


____________________________
PAUL G. SUMMERS, JUDGE




        19
          See State v. Bigbee, 885 S.W .2d 797, 8 14 (Te nn. 1994 ); State v. Nic hols , 877 S.W.2d 722,
735 (T enn. 199 4), cert. denied 513 U.S . 1114, 11 5 S.Ct. 90 9, 130 L.E d.2d 791 (1995); State v. Ha rris,
839 S.W .2d 54, 74 (Tenn . 1992), cert. denied 507 U.S. 954, 113 S.Ct. 1368, 122 L.Ed.2d 746 (1993);
and State v. Bates, 804 S.W .2d 868, 8 82 (Te nn. 1991 ), cert. denied 502 U.S. 841, 112 S.Ct. 131, 116
L.Ed.2d 98 (1991).

                                                      17
