         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON

                              JUNE SESSION, 1999                FILED
                                                            August 12, 1999
ERS KINE LERO Y JOH NSO N,)             C.C.A. NO. 02C01-9707-CR-00292
                           )                               Cecil Crowson, Jr.
     Appe llant,           )                              Appellate Court Clerk
                           )
                           )            SHELBY COUNTY
VS.                        )
                           )            HON. WILLIAM H. WILLIAMS,,
STATE OF TENNESSEE,        )            JUDGE
                           )
     Appellee.             )            (Post-Con viction, Death Pe nalty)


                             DISSENTING OPINION


      I respe ctfully dissent from that portion of the opinion which concludes that

a reman d for resentenc ing is necessa ry.



      I agree that the crime scene report suppressed by the Sta te was favora ble

to the Defen dant an d therefo re shou ld have b een pro vided to the defens e. I

cannot agree, howeve r, that had th is report be en disclo sed to the defense , there

is a reasonable probability that the jury wo uld not have sentenced the Defendant

to death.



      The Defendant and another armed gunman entered a grocery store for the

purpose of robbery. Several customers were in the store. The Defendant fired

more than one shot, killing the store owner as he stood behind the counter. The

withhe ld crime sc ene rep ort tends to establish that a shot which grazed a

customer was not fired from the same spot where the Defendant stood when he

shot and killed the store owner. Although this evidence sugge sts that perhaps
the Defendant did not fire the shot which grazed the customer, I cannot conclude

that had th is repo rt been furnish ed to th e defe nse, th ere is a reaso nable

probab ility that the jury would not ha ve found that the Defendant created a great

risk of death to two or more persons other than the victim , during this felony-

murder. I also agree with the State’s argum ent tha t this De fenda nt, bas ed on his

participation in this ar med robbe ry and felony- murd er, is responsible for the acts

of his co-defendant such that this ag grava ting circ ums tance would apply even if

the co-defendant fired the shot which grazed the customer. The Defendant

know ingly created the great risk to others during his act of felony-murder when

he entered the store w ith his arm ed coh ort. Thus , even tho ugh this is not the

precise issue before us, I cannot conclude that had the crime scene report been

disclosed, it is reasonably probable that the jury would not have found the

existence of the great-risk aggravating circumstance.



      The issue before this Court is whether there is a reasonable probability

that, had the crime scene report been furnished to the defen se, the jury wo uld not

have imposed the death penalty on the Defendant for killing the store owner

during this robbery. As the majo rity note s, a res olution of this issue also involves

the harmless error analysis established by the supreme court in State v. How ell,

868 S.W .2d 238 (Te nn. 1993).



      Even if we totally discount the great-risk aggravating circumstance, the

remaining aggravator—that the Defendant was previously convicted of felonies

involving violence to the person— was very strong . The jury heard proof of seven

such prior convictions, includ ing on e cou nt of rob bery, th ree co unts o f assa ult

with a firearm, and two counts of a ttempted m urder.

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      As the majority notes, our supreme court has stated that the effect and

qualitative persuasiveness of the prior violent felony aggravator increases when

there is more than one prior violent felony c onviction. State v. Nich ols, 877

S.W.2d 722, 738 (Tenn. 1994). The supreme court has on several occasions

found a Middlebrooks error to be harmless when the only remaining aggravating

circumstance was prior violent felony convictions.        See State v. Boyd , 959

S.W.2d 557 (T enn. 19 98); State v. Cribbs, 967 S.W .2d 773 (Tenn . 1998); State

v. How ell, 868 S.W .2d 238 (Tenn . 1993); see also Harris v. S tate, 958 S.W.2d

799 (Ten n. Crim. App . 1997).



      The majority concludes that because “the felony murder aggravator is

clearly erroneous and the great risk aggrava tor was argua bly misapplied, w e are

unab le to conclude that the jury w ould ha ve sente nced th e Defe ndant to death

based solely on th e prior violen t felonies a ggravato r.” Because I do not find that

the suppressed crime scene report puts this case in such a different light as to

undermine confidence in the jury’s verdict, I cannot agree.



      I would affirm the sentence of death.




                                         __________________________
                                         DAVID H. WELLES, JUDGE




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