               IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT JACKSON

                                 APRIL 1997 SESSION
                                                                FILED
                                                                   July 28, 1997

RONALD RICKMAN,                      )                          Cecil Crowson, Jr.
                                                                Appellate C ourt Clerk
                                     )
               Appellant,            )       No. 02C01-9608-CR-00252
                                     )
                                     )        Shelby County
v.                                   )
                                     )        Honorable Carolyn Wade Blackett, Judge
                                     )
STATE OF TENNESSEE,                  )        (Post-Conviction - Capital Case)
                                     )
               Appellee.             )



                                  CONCURRING OPINION



               I concur in the majority opinion’s results and most of its reasoning.

However, I disagree with its assessment of the record relative to the potential

involvement of State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992), for consideration

of the appellant’s claims raised regarding jury unanimity and use of the commission of a

felony aggravating circumstance in a felony murder case.



               The majority opinion states that there is no Middlebrooks issue to consider

because only one offense, premeditated and deliberate murder, was included in the

indictment and presented to the jury for consideration. Slip op. at 11-13, nn.10 & 12. In

support, it cites to the trial court’s instructions in the convicting trial, stating that although

they contained a complete statutory definition of first degree murder, including felony

murder, the full context of the instructions show “that the trial court did not intend to

have the jury apply the felony murder doctrine to this case.” Slip op. at 13, n.12.



               However, I believe that the record reflects that the issue of felony murder

was placed before the jury in the guilt phase of the trial. As a starting point, I note that
as a matter of law and pleading practice before the wholesale changes in our criminal

code in 1989, proof of a killing in the perpetration of a statutorily enumerated felony

(felony murder) supported and sustained a conviction for first degree murder even

though the allegations of the indictment were in terms of a premeditated and deliberate

murder (known as the common law form of murder). See State v. Johnson, 661

S.W.2d 854, 860-61 (Tenn. 1983); Tosh v. State, 527 S.W.2d 146, 148 (Tenn. Crim.

App. 1975); Sullivan v. State, 173 Tenn. 475, 121 S.W.2d 535, 537 (1938). Thus, the

allegations legally encompassed more than just a premeditated and deliberate murder.



              Also, the complete first degree murder instruction in the appellant’s case

carries a different context than that presented by the majority opinion in that it placed

before the jury the option of finding first degree murder based upon the appellant’s

killing the victim during the perpetration of, or the attempt to perpetrate, rape, robbery,

or kidnapping, three felonies also raised by the evidence. The relevant instruction is as

follows:

                            MURDER IN THE FIRST DEGREE

                    Section 39-2402 of Tennessee Code Annotated
              provides as follows:

                      (a) Every murder perpetrated by means of poison, lying
              in wait, or by any other kind of willful, deliberate, malicious, and
              premeditated killing, or committed in the perpetration of, or
              attempt to perpetrate, any murder in the first degree, rape,
              robbery, or kidnapping, is murder in the first degree.

                      Rape is the unlawful carnal knowledge of a woman,
              forcibly and against her will.         Carnal knowledge is
              accomplished by the commencement of a sexual connection,
              and proof of emission is not required.

                    Carnal knowledge is the insertion of the male organ of
              the male, to some extent, however slightly, into the female
              organ or private parts of a female, and if it is done forcibly and
              against the will of the female, it is rape.

                     Robbery is the felonious and forcible taking from the
              person of another goods or money of any value, by violence or
              putting the person in fear.

                     Kidnapping is defined in T.C.A. Sec. 39-2601 as follows:


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                     Any person who forcibly or unlawfully confines,
              inveigles, or entices away another, with the intent to cause him
              to be secretly confined, or imprisoned against his will, or to be
              sent out of the state against his will must, on conviction, be
              imprisoned in the penitentiary.

                      Under this definition of Murder in the First Degree the
              killing must be done willfully, that is of purpose, with the intent
              that the act by which the life of the party is taken should have
              that effect; Deliberately, that is, with a cool purpose;
              Maliciously, that is, with malice aforethought.

                       When the act of killing is not done during the
              commission of a rape, robbery, or kidnapping, in order to make
              it murder in the first degree not only must the killing be done
              willfully, deliberately and maliciously, but it must also be done
              with premeditation, that is a design to kill must be formed
              coolly and deliberately and before the act is performed by
              which death is produced and the killing must be the cool and
              deliberate act of the slayer.

                       This is the distinctive feature of murder in the first
              degree, as charged in the indictment. It is not necessary that
              the cool and deliberate design to kill should have been
              conceived or pre-existed for any period of time anterior to the
              killing. It is sufficient if it precede the killing, however short the
              interval of time may be; for the length of time is not the
              essence of this element of this offense. The purpose to kill is
              no less premeditated, in the legal sense of the term, if it was
              deliberately formed but a moment before the killing, than if it
              had been formed an hour before. The mental state of the
              slayer at the time of the killing, rather than the length of time
              the act may have been premeditated, is the material point to
              be considered. The question of importance is, was the mind
              of the slayer, at the time of the killing, so far free from
              excitement or passion as to be capable of premeditation, as
              before explained, and was the death of the party slain the
              object sought to be accomplished by the slayer?



              These instructions show that the trial court did not give the full statutory

definition of first degree murder to the jury, but only the part that related to the facts in

the case. Moreover, the trial court’s defining the particular felonies raised by the

evidence that would lead to a first degree murder conviction through felony murder

leads me to believe that it intended to give the jury the option of felony murder, certainly

not to preclude it.




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              I also note that based only upon the guilt phase evidence, the jury found

beyond a reasonable doubt at the sentencing phase that the defendant committed the

murder during the commission of or the attempt to commit rape, robbery, and

kidnapping. Thus, the record shows that the jury found that the factual elements of

felony murder existed beyond a reasonable doubt from the guilt phase proof.



              In Schad v. Arizona, 501 U.S. 624, 111 S. Ct. 2491 (1991), a plurality of

four justices considered premeditated murder and felony murder, as provided by an

Arizona statute, to constitute alternative, equivalent means of committing the single

crime of first degree murder. Id. at 642-44, 111 S. Ct. at 2502-03. Thus, in their view, it

was not constitutionally necessary for a jury to be unanimous as to which of the two

methods was used. A fifth justice considered the two means of first degree murder and

the use of a general verdict thereon to have been so deeply established in American

jurisprudence that the practice conforms with the requirements of the Due Process

Clause. “Submitting killing in the course of a robbery and premeditated killing to the

jury under a single charge is not some novel composite that can be subjected to the

indignity of ‘fundamental fairness’ review. It was a norm when this country was

founded, was the norm when the Fourteenth Amendment was adopted in 1868, and

remains the norm today.” 501 U.S. at 651, 111 S. Ct. at 2507 (Scalia, J., concurring).

Thus, jury unanimity as to whether the murder was committed during the perpetration of

a felony or premeditatedly is not of federal constitutional significance, at least in terms

of the historical definitions of those two forms of murder.



              However, there is a significant difference under our state constitution.

That is, the issue of whether the jury was unanimous in its decision that the appellant

in the present case committed, in fact, a willful, malicious, premeditated and deliberate

murder becomes important because Middlebrooks forecloses the use of the

commission of a felony aggravator for capital sentencing purposes when a defendant is



                                             4
found guilty of only felony murder. Thus, to the extent that any juror in a capital case

bases his or her decision on the fact that the accused committed, in fact, a felony

murder -- not a premeditated and deliberate one -- one must reckon with Middlebrooks.



              My analysis, though, does not avail the appellant any relief in this case.

As for the issue of whether all jurors found the appellant guilty, in fact, of a

premeditated and deliberate murder, I believe that the answer is yes. Simply put, the

evidence of the murder being a contract killing and of the way the victim was killed

forecloses any reasonable doubt about the fact that the appellant committed a

premeditated and deliberate murder and that the jurors so found. This would mean that

Middlebrooks would be of no consequence even if a juror also found that the appellant

committed a felony murder. Thus, I concur that the dismissal of the post-conviction

petition should be affirmed.



                                                   _______________________________
                                                   Joseph M. Tipton, Judge




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