                   IN THE SUPREME COURT OF TENNESSEE
                               AT JACKSON
                                                               FILED
                                            FOR PUBLICATION
                                                          April 12, 1999
STATE OF TENNESSEE,                         )                 Cecil Crowson, Jr.
                                            )      Filed:
                                                             Appellate Court Clerk
       Appellee,                            )
                                            )      Hon. Julian P. Guinn
vs.                                         )      Judge
                                            )
                                            )      HENRY COUNTY
TERESA DEION SMITH HARRIS,                  )
                                            )      Supreme Court
       Appellant.                           )      No. 02-S01-9806-CC-00053
                                            )



                       SEPARATE CONCURRING OPINION



       The majority concludes that the jury’s finding of an incomplete aggravating

circumstance permits Tenn. R. Crim. P. 52(a), harmless error review, holding the

error statutory rather than constitutional. I agree that the error is statutory and

that harmless error analysis applies. Accordingly, I join with the majority in

affirming the judgment of the Court of Criminal Appeals. I write separately,

however, because I find that, in conducting harmless error review, the majority

fails to perform a sufficient analysis to support its finding that the invalid

aggravating circumstance did not “affirmatively appear to have affected the result

of the trial on the merits.” See Tenn. R. Crim. P. 52(a).



       The test for determining whether error is harmless is whether the court

can say with fair assurance after pondering all that happened, without stripping

the erroneous action from the whole, that the judgment was not substantially

swayed by the error. See Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct.

2078, 2081 (1993); Kotteakos v. United States, 328 U.S. 750, 764, 66 S.Ct.

1239, 1248 (1946). In conducting a harmless error review, the appellate court

“must identify and evaluate all of the evidence considered by the jury in

addition to ascertaining the probable effect of the alleged error itself;” the court

must then consider the error in relation to all else that happened. See Yates v.

Evatt, 500 U.S. 391, 405, 111 S.Ct. 1884, 1894 (1991) (emphasis added). If the
reviewing court can conclude that the error was unimportant in relation to

everything else the jury considered in reaching its ultimate result, the error can

be deemed harmless. Thus, the question is not whether the result reached by

the jury is correct absent the error, but rather, whether the error contributed to

the jury’s result.



         In finding that the jury’s error was harmless, the majority summarily

concludes that “one valid aggravating circumstance remains to support the

defendant’s sentence . . . [and] that [t]he defendant offers no specific argument

which demonstrates that the jury grossly abused its discretion . . . .” I find this

harmless error analysis deficient in that the majority, regardless of any argument

by the defendant, has failed to undertake any examination of whether the

sentence constitutes a “gross abuse of the jury’s discretion” as statutorily

required by Tenn. Code Ann. §39-13-207(g). For this reason, the majority has

failed to conduct a true harmless error analysis. Rather, the majority, as noted

above, in effect, perfunctorily finds the sentence appropriate based solely upon

the existence of one valid aggravating circumstance. This finding suggests that

as long as one valid aggravating circumstance exists, harmless error will always

be found and no further review is necessary. This position ignores the fact that

our legislature requires the jury to “weigh and consider” aggravating and

mitigating circumstances and “in their considered discretion impose a sentence

of either life or life without parole.” Tenn. Code Ann. § 39-13-204(f). Because

the jury is given such discretion in imposing the appropriate sentence, an

appellate court which relies solely on the basis of a remaining valid aggravating

circumstance resorts to unguided speculation in determining the propriety of the

sentence imposed.

       A sentence of imprisonment for life without possibility of parole
       shall be considered appropriate if the state proved beyond a
       reasonable doubt at least one (1) statutory aggravating
       circumstance contained in § 39-13-204(I), and the sentence was
       not otherwise imposed arbitrarily, so as to constitute a gross
       abuse of the jury’s discretion.

Tenn. Code Ann. § 39-13-207(g) (emphasis added). As mandated by statute,

our obligation under harmless error review, after finding the existence of at least


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one valid aggravating circumstance, is to determine, in the final analysis, whether

viewing the record as a whole, the jury would have imposed the same sentence

in the absence of the improper or incomplete aggravating circumstance. In other

words, the question is whether the jury’s sentence constitutes a “gross abuse of

discretion” absent consideration of the invalid aggravating circumstance. This

analysis would necessarily require consideration of (1) the source and nature of

the invalid aggravating circumstance(s), (2) the number and strength of the

remaining valid aggravating circumstance(s), and (3) the nature, quality, and

strength of the mitigating evidence. The performance of any review short of this

analysis would require conjecture as to which of the two sentencing options the

jury would have chosen absent the invalid aggravating circumstance.



       In the present case, I agree with the majority’s conclusion that the proof

supports the jury’s finding that “[t]he murder was committed for the purpose of

evading, interfering with, or preventing a lawful arrest or prosecution of the

defendant or another[.]” Tenn. Code Ann. § 39-13-204(i)(6). However, in order

to complete harmless error review, I additionally find from a review of the record

that, notwithstanding the nature and circumstances establishing the invalid

aggravator, the jury would have nevertheless returned a verdict of life without the

possibility of parole considering the overwhelming proof supporting the remaining

valid aggravating circumstance and the unpersuasive argument by the appellant

of mitigating circumstances, i.e., that she was a victim of drug addiction, sexual

and physical abuse and male dominance. I conclude that the sentence

ultimately imposed was not the result of a gross abuse of the jury’s discretion

and that, under the circumstances of the present case, a sentence of life without

the possibility of parole was appropriate. Accordingly, the jury’s consideration of

the invalid aggravating circumstance amounts to harmless error.




                                   ____________________________________
                                   DAVID G. HAYES, Special Justice




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