                   IN THE SUPREME COURT OF TENNESSEE
                                AT JACKSON
                              (Heard at Memphis)




STATE OF TENNESSEE                    )        FOR PUBLICATION
                                      )
             Appellee                 )        FILED: September 14, 1998
                                      )
v.                                    )        SHELBY COUNTY
                                      )
DEWAYNE B. BUTLER,                    )        Hon. Joseph B. Dailey, Judge
FREDRICK D. BUTLER, and               )
ERIC D. ALEXANDER                     )        NO. 02S01-9711-CR-00094
                                      )
             Appellants.              )        (Interlocutory Appeal)
                                      )




For the Appellants:                            For the Appellee:

A.C. Wharton                                   John Knox Walkup
Shelby County Public Defender                  Attorney General & Reporter

W. Mark Ward & Sherrye Brown                   Michael E. Moore
Assistant Public Defenders                     Solicitor General
Memphis
(Attorneys for Dewayne Butler)                 Kathy Morante
                                               Deputy Attorney General
Leslie I. Ballin & Mark A. Mesler
Memphis
(Attorneys for Fredrick Butler)
                                                           FILED
William Massey
Memphis                                                   September 14, 1998
(Attorney for Eric Alexander)
                                                          Cecil Crowson, Jr.
                                                           Appellate C ourt Clerk




                                    OPINION


COURT OF CRIMINAL APPEALS                                           BARKER, J.
AFFIRMED
                                     OPINION
        The sole issue in this interlocutory appeal is whether the State may rely upon

the felony murder aggravating circumstance when seeking a sentence of life without

the possibility of parole for defendants charged with felony murder.1 We hold that

there are no constitutional or statutory prohibitions and accordingly affirm the

judgment of the Court of Criminal Appeals.



                                            BACKGROUND



        In 1994, indictments were returned charging the appellants with especially

aggravated robbery, first degree premeditated murder, and felony murder. During pre-

trial proceedings, the State filed a notice of intent to seek life imprisonment without the

possibility of parole, for each appellant, based upon the felony murder aggravating

circumstance. Tenn. Code Ann. § 39-13-204(i)(7) (Supp. 1994). The appellants filed

motions to strike the felony murder aggravator.



        The trial court denied the motion in Frederick Butler’s case 2, but granted

Dewayne Butler and Eric Alexander’s motions to strike upon finding that “the [felony

murder] aggravating circumstance is merely a duplication of the essential elements of

the underlying offense.” The trial court’s rationale was based upon Tennessee Code

Annotated section 40-35-114 (Supp. 1994), and this Court’s decision in State v.

Middlebrooks, 840 S.W.2d 317 (Tenn. 1992).



        On interlocutory appeal by the State, the Court of Criminal Appeals reversed

the trial court’s ruling with respect to Dewayne Butler and Eric Alexander and affirmed


        1
         Oral arg ume nt was h eard in this c ase on May 13, 1 988, in M emp his, Shelb y County
Tennessee, as part of this Court’s S.C.A.L.E.S (Supreme Court Advancing Lega l Education for
Students ) project.

        2
         The trial court’s ruling on Frederick Butler’s motion to strike was not mad e a part of the record
on app eal.

                                                     2
the ruling as to Frederick Butler. The court determined that our holding in State v.

Middlebrooks, 840 S.W.2d 317 (Tenn. 1992), does not bar the use of aggravator (i)(7)

to enhance a life sentence to life without the possibility of parole following a conviction

of felony murder.



                                                ANALYSIS



        In Middlebrooks, a majority of this Court held that when a defendant is

convicted of felony murder, the use of the felony murder aggravating circumstance to

support a death sentence violates the cruel and unusual punishment provisions of

both the federal and state constitutions3 because the aggravator does not sufficiently

narrow the class of death-eligible offenders. See 840 S.W.2d at 346.4 Finding,

however, no statutory or constitutional counterpart to Middlebrooks requiring the

narrowing of the class of defendants eligible for life sentences without the possibility of

parole, the intermediate appellate court concluded that the felony murder aggravator

can be used to enhance appellants’ sentences to life without the possibility of parole if

they are convicted of felony murder.



        At the time of the killing in this case, the felony murder aggravator read as

follows:

        (7) The murder was committed while the defendant was engaged in
        committing, or was an accomplice in the commission of, or was
        attempting to commit, or was fleeing after committing or attempting to
        commit, any first degree murder, arson, rape, robbery, burglary, theft,
        kidnaping, aircraft piracy, or unlawful throwing, placing or discharging of
        a destructive device or bomb.




        3
           A majority of this Court has held that the Middlebrooks decision was based independently on
Article I, sec tion 16 of th e Ten nesse e Con stitution. State v. Bigbee, 885 S.W .2d 797, 816 (Tenn. 1994 );
State v. Ho well, 868 S.W .2d 238, 2 59 n.7 (T enn. 199 3).

        4
         Justice D rowota a nd form er Justice O’Brien d issented as to this ho lding. Middlebrooks, 840
S.W .2d at 347 -350 (D rowota, J ., dissenting ).

                                                      3
Tenn. Code Ann. § 39-13-204(i)(7) (Supp. 1994). 5



         In comparison, the indictment charging felony murder in this case states that

the appellants “on August 12, 1994, in Shelby County, Tennessee ... did unlawfully

and recklessly kill CHARLES CANTRELL during the perpetration of Especially

Aggravated Robbery, in violation of T.C.A. 39-13-202.”



         As in Middlebrooks, the felony murder aggravator contains language that is

virtually identical to the language in the indictment charging felony murder. Both the

State and the appellants agree, however, that the constitutional mandates from

Middlebrooks are not implicated in this case since the State is not seeking the death

penalty.



         The decision in Middlebrooks involved this Court’s review of capital murder

sentencing in Tennessee and the provisions against cruel and unusual punishment in

both the Eighth Amendment to the United States Constitution and Article I, section 16

of the Tennessee Constitution. Particular attention was given to the United States

Supreme Court progeny of cases addressing the need to narrow the class of death-

eligible offenders in line with the constitutional protection against cruel and unusual

punishment. See e.g. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 83 L.Ed.2d

346 (1972).



         The United States Supreme Court has refused to extend the constitutional

requirements in Furman to cases not involving the death penalty. See Harmelin v.

Michigan, 501 U.S. 957, 995, 111 S.Ct. 2680, 2701, 2702, 115 L.Ed.2d 836 (1991).

         5
           The felony murder aggravator has since been amended to provide that, “[t]he murder was
knowingly committed, solicited, directed, or aided by the defendant, while the defendant had a
sub stan tial role in com mittin g or a ttem pting to co mm it, or wa s flee ing af ter ha ving a subs tantia l role in
committing or attempting to commit, any” of the enumerated felonies. Tenn. Code Ann. § 39-13-
204(i)(7) (Supp. 1995).

                                                            4
Justice Scalia writing for a majority of the Court in Harmelin stated that, “[the Supreme

Court] cases creating and clarifying the ‘individualized capital sentencing doctrine’

have repeatedly suggested that there is no comparable requirement outside the

capital context, because of the qualitative difference between death and all other

penalties.”6



        Justice Scalia distinguished capital punishment by noting that “the penalty of

death differs from all other forms of criminal punishment, not in degree but in kind. It

is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the

convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute

renunciation of all that is embodied in our concept of humanity.” Harmelin, 501 U.S. at

995-96, 111 S.Ct. at 2702 (quoting Furman v. Georgia, 408 U.S. 238, 306, 92 S.Ct.

2726, 2760, 83 L.Ed.2d 346 (Stewart, J., concurring)).



        We agree that the penalty of death is unique to all other forms of punishment

and should be distinguished accordingly under both the federal and state

constitutions. With that in mind, we note that the appellants in this case are not on

trial for their lives. If convicted of premeditated murder or felony murder, they will be

sentenced to either life imprisonment or life without the possibility of parole. We,

therefore, conclude that the constitutional concerns involving the death penalty are not

at issue here. Our focus, instead, is upon the statutory construction of the sentencing

provisions governing life imprisonment and life without the possibility of parole.



        Tennessee Code Annotated section 39-13-207 governs sentencing in first

degree murder cases where the State does not seek the death penalty. Section 39-


        6
           Id. (citing Eddings v. Oklahoma, 455 U.S . 104, 102 S.Ct. 869 , 71 L.Ed.2 d 1 (198 2); Rumm el v.
Este lle, 445 U.S . 263, 100 S.Ct. 113 3, 63 L.Ed .2d 382 ( 1980); Loc kett v . Ohio , 438 U.S . 586, 98 S .Ct.
2954, 57 L.Ed.2d 973 (19 78); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944
(1976)) .

                                                       5
13-207(a) provides that the jury shall determine in a separate sentencing hearing

whether a defendant shall be sentenced to either life imprisonment or life without the

possibility of parole.7 The bifurcated hearing must be conducted in accordance with

Tennessee Code Annotated section 39-13-204, excluding references to the death

penalty. Tenn. Code Ann. § 39-13-207(a) (Supp. 1994).



         Section 39-13-204 prescribes the manner in which evidence is to be presented

and considered during the sentencing phase of a first degree murder trial. Attorneys

for both the State and the defense are given an opportunity to present evidence

relevant to the issue of punishment. Such evidence may include, but is not limited to,

“the nature and circumstances of the crime; the defendant’s character, background

history, and physical condition; any evidence tending to establish or rebut the

aggravating circumstances enumerated in subsection (i); and any evidence tending to

establish or rebut any mitigating factors.” Tenn. Code Ann. § 39-13-204(c) (Supp.

1994).



         Sections 39-13-207 and 39-13-204 combine to set forth the jury’s role in fixing

the appropriate life sentence. The jury must first determine if any statutory

aggravating circumstances or mitigating circumstances have been proven beyond a

reasonable doubt. See Tenn. Code Ann. §§ 39-13-204(e)(1) and 39-13-207(d). If the

jury unanimously finds the existence of at least one statutory aggravating

circumstance beyond a reasonable doubt, then in its considered discretion, the jury

may sentence the defendant either to life imprisonment or life without the possibility of

parole. Tenn. Code Ann. §§ 39-13-207(c) and 39-13-204(f)(2). In exercising its

discretion, the jury is required to weigh and consider the statutory aggravating




         7
        The penalty of life without the possibility of parole was established by our legislature in 1993,
approximately one year after Middlebrooks. See 1993 Pub. Acts Ch. 473, § 16.

                                                     6
circumstance or circumstances proven beyond a reasonable doubt and any mitigating

circumstances. Tenn. Code Ann. §§ 39-13-207(d) and 39-13-204(e)(1) (Supp. 1994).



       Nothing in the text of either section 39-13-207 or 39-13-204 prohibits the jury

from considering an aggravating circumstance when the aggravator duplicates an

element of the underlying offense. The appellants, however, argue that the language

and context of section 39-13-207 reveal an inherent legislative intent to apply the

Middlebrooks’ rationale to sentences of life imprisonment without the possibility of

parole.



       The appellants contend that by enacting section 39-13-207 after the decision in

Middlebrooks and by referring to section 39-13-204 in the text of section 39-13-207,

the legislature intended for the Middlebrooks rationale to apply in non-capital felony

murder cases. Otherwise, according to the appellants, every defendant convicted of

felony murder would be sentenced to life imprisonment without the possibility of

parole. We disagree.



       The appellants’ reading of sections 39-13-207 and 39-13-204 overlooks the

language in both statutes stating that a sentence of life imprisonment or life without

the possibility of parole shall be determined by a jury in its considered discretion. See

Tenn. Code Ann. §§ 39-13-207(c) and 39-13-204(f)(2). The jury is not required to per

se impose a sentence of life without the possibility of parole even if it finds an

aggravating circumstance proven beyond a reasonable doubt. The statutes require

the jury to consider mitigating circumstances and other evidence from trial before

determining the appropriate life sentence. A defendant convicted of felony murder,

therefore, will not necessarily be sentenced to life imprisonment without the possibility

of parole even when the felony murder aggravator is applicable to the case.



                                             7
       Both sections 39-13-207 and 39-13-204 are silent as to the use of an

aggravating circumstance when the aggravator duplicates an element of the offense.

We must therefore rely upon well-known principles of statutory construction to

determine the proper reading of those statutes.



       The construction of a statute is a question of law which we review de novo,

without a presumption of correctness. Roseman v. Roseman, 890 S.W.2d 27, 29

(Tenn. 1994). Our role in that regard is to determine and to “give effect to the

legislative intent without unduly restricting or expanding a statute’s coverage beyond

its intended scope.” Carter v. State, 952 S.W.2d 417, 419 (Tenn. 1997); Owens v.

State, 908 S.W.2d 923, 926 (Tenn. 1995). Legislative intent must be ascertained from

the natural and ordinary meaning of the statutory language, “read in context of the

entire statute, without any forced or subtle construction which would extend or limit its

meaning.” State v. Davis, 940 S.W.2d 558, 561 (Tenn. 1997).



       Keeping those caveats in mind, we address the specific language of section 39-

13-207 and its reference to section 39-13-204. Section 39-13-207(d) provides that

“[t]he jury shall be instructed that, in imposing sentence, it shall weigh and consider

the statutory aggravating circumstance or circumstances proven by the state beyond a

reasonable doubt and any mitigating circumstance or circumstances.” Subsection (c)

further provides that:

       If the jury unanimously determines that the state has proven beyond a
       reasonable doubt one or more of the statutory aggravating
       circumstances set forth in [section] 39-13-204(i), the jury shall, in its
       considered discretion, sentence the defendant either to imprisonment for
       life without possibility of parole or imprisonment for life.

Tenn. Code Ann. § 39-13-207(c) (Supp. 1994).




                                            8
       Section 39-13-204(i) contains the exclusive list of aggravating circumstances

for first degree murder cases. Subsection (i) states that “[n]o death penalty or

sentence of imprisonment for life without the possibility of parole shall be imposed but

upon a unanimous finding that the state has proven beyond a reasonable doubt the

existence of one (1) or more of the statutory aggravating circumstances, which are

limited to the following ... .”



       The above provisions set forth the strictures for considering aggravating

circumstances in first degree murder cases where the State seeks the penalty of life

imprisonment without the possibility of parole. The statutory text is unambiguous and

contains no restriction upon the use of an aggravating circumstance when the

aggravator duplicates an element of the offense. Accordingly, we do not accept the

argument that section 39-13-207 was intended to incorporate the rationale from

Middlebrooks. Such a holding would extend the meaning of the statute beyond its

actual text.



       If the legislature had intended for section 39-13-207 to prohibit the use of an

aggravating circumstance when duplicative of an element of the offense, it could have

so provided in the text of the statute. Such language, for example, was included in

Tennessee Code Annotated section 40-35-114 (1989). Section 40-35-114, part of the

Sentencing Reform Act of 1989, governs the use of enhancement factors in criminal

sentencing and contains a list of statutory enhancers which may be relied upon if the

enhancers are not essential elements of the underlying offenses. Tenn. Code Ann. §

40-35-114 (Supp. 1994). That statute provides that “[i]f appropriate for the offense,

enhancement factors, if not themselves essential elements of the offense as charged

in the indictment, may include [the following].”




                                            9
        The appellants argue that section 40-35-114 reveals the legislature’s

disapproval of using an aggravating circumstance when the aggravator duplicates an

element of the offense. This contention, however, overlooks the unique sentencing

scheme established for first degree murder cases. “Because first degree murder is

punished by either life imprisonment8 or death, first degree murder is not punished

according to the sentencing structure provided in section 40-35-105 et seq.” Tenn.

Code Annotated section 39-11-117 (Sentencing Commission Comments).

Accordingly, the provisions in 40-35-114 have no bearing on the sentencing

procedures in first degree murder cases.



        Moreover, in construing section 39-13-207, we must presume that the

legislature had knowledge of our decision in State v. Middlebrooks and the sentencing

guidelines in Tennessee Code Annotated section 40-35-114, when it enacted section

39-13-207 in 1993. See Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995). The

legislature, nevertheless, established the sentencing procedures in section 39-13-207

without any reference to Middlebrooks or section 40-35-114, and without any limitation

upon the use of aggravating circumstances in cases where the defendant is eligible for

life imprisonment without the possibility of parole.



                                           CONCLUSION



        Tennessee Code Annotated sections 39-13-207 and 39-13-204 provide the

exclusive sentencing scheme for first degree murder convictions. Having found

nothing in those statutes to prohibit the use of an aggravating circumstance when the

aggravator duplicates an element of the offense, we conclude that the appellants’

contention is without merit. The felony murder aggravator (i)(7) can be used to


        8
         The Sentencing Commission Comments to Tennessee Code Annotated section 39-11-117
(1989) w ere ado pted bef ore the e nactm ent of the p enalty of life im prisonm ent withou t parole.

                                                   10
enhance a sentence to life without the possibility of parole when the defendant is

convicted of felony murder.



       The judgment of the Court of Criminal Appeals is affirmed and the case is

remanded to the trial court for further proceedings consistent with this opinion.




                                                 _____________________________
                                                 WILLIAM M. BARKER, JUSTICE



CONCUR:

Anderson, C.J.
Drowota, Birch, Holder, JJ.




                                           11
