                   IN THE SUPREME COURT OF TENNESSEE
                              AT NASHVILLE


       FILED
                                        FOR PUBLICATION
          June 7, 1999
                                        Filed:     June 7, 1999
       Cecil Crowson, Jr.
      Appellate Court Clerk


TOMMY L. KING,                     )    MAURY CRIMINAL
                                   )
        Defendant/Appellant,       )
                                   )
                                   )
vs.                                )    HON. JAMES WEATHERFORD,
                                   )            JUDGE
                                   )
STATE OF TENNESSEE,                )
                                   )
        Plaintiff/Appellee.        )    No. 01S01-9707-CC-00146




FOR APPELLANT:                          FOR APPELLEE:

Daniel J. Runde                         John Knox Walkup
Assistant Public Defender               Attorney General & Reporter
Pulaski, Tennessee

Robert D. Massey                        John P. Cauley
Co-Counsel                              Assistant Attorney General
Pulaski, Tennessee                      Nashville, Tennessee




                               OPINION




COURT OF CRIMINAL APPEALS AFFIRMED                          HOLDER, J.
                                     OPINION



       In this post-conviction capital case, we granted this appeal to determine

whether the jury’s reliance on an invalid felony murder aggravating circumstance

was harmless error. Upon review, we hold that the jury's consideration of the

invalid felony murder aggravating circumstance was harmless beyond a

reasonable doubt due to the strength of the remaining valid aggravating

circumstances and the relative weakness or absence of any mitigating

circumstances. The Court of Criminal Appeals' decision affirming the trial court's

dismissal of the post-conviction petition is affirmed.



                                  BACKGROUND



       The defendant, Tommy Lee King, and his co-defendant, Ronald Davis,

entered a tavern in May of 1982. The defendant fired a shot into the air and

ordered the tavern's patrons and owner to lie down on the floor. The defendant

robbed the patrons, rifled through the tavern's cash register, and took the

owner's car keys. Apparently, the defendant then without provocation shot the

tavern owner, who was lying on the floor. The shot entered the victim's neck and

followed a downward trajectory through the victim's spinal cord. The tavern

owner died approximately one week later as the result of the gunshot wound.



       During the robbery, the defendant informed one of the tavern's patrons

that "we ought to kill you anyhow." He then stated, "Let's kill them all." The

defendant's co-defendant apparently dissuaded the defendant from killing

everyone inside the tavern. The patrons were then told, "Don't even raise your

head up an inch. If you do . . . I will just blow your brains out." When leaving the

tavern, the defendant encountered a woman who was ordered at gunpoint to lie

on the ground. The defendant fled in the tavern owner's car.


                                          2
       The record indicates that the defendant was approximately thirty years old

at the time of the robbery and fatal shooting. He had a substantial criminal

record that included five previous felony convictions. His felony convictions

included kidnapping and attempted robbery. The defendant had a history of

violating probation, and the present offenses were committed while the

defendant was on probation. The defendant never accepted responsibility for his

actions and attempted to justify killing the victim by stating that the victim refused

to pay him for blue jeans and other merchandise. He also alleged the shooting

was accidental. Witnesses testified contrary to the defendant's assertions, and

character testimony indicated that the defendant's reputation for truth and

veracity was poor.



       The State submitted three aggravating circumstances for the jury's

consideration: (1) the defendant had a prior conviction for a violent felony; (2)

the defendant knowingly created a great risk of death to two or more persons

other than the victim murdered; and (3) the murder occurred during the

commission of a felony. 1 The jury found the presence of all three aggravating

circumstances and sentenced the defendant to death. Both the defendant's

conviction and the defendant's sentence of death were affirmed by this Court on

direct appeal. State v. King, 694 S.W.2d 941 (Tenn. 1985). His prior petition for

post-conviction relief was also denied, and that decision was affirmed on appeal.

King v. State, No. 88-221-III (Tenn. Crim. App., Mar. 31, 1989, Nashville), perm.

to appeal denied (Tenn., Aug. 7, 1989).



       Following this Court's decision in State v. Middlebrooks, 840 S.W.2d 317

(Tenn. 1991) (Drowota and O’Brien, JJ. dissenting), cert. dismissed, 510 U.S.

124, 114 S.Ct. 651, 126 L.Ed.2d 555 (1993), the defendant again petitioned for



       1
          See Tenn. Code Ann. § 39-2-203(i)(2), (3), and (7)(1982)[now Tenn. Code Ann.
§ 39-13 -204(i)(2) , (3), and (7 )(1997) ].

                                              3
post-conviction relief. The trial court held that the jury's use of the felony murder

aggravating circumstance was error under Middlebrooks. The trial court,

however, held that the jury's reliance on the invalid aggravating circumstance

was harmless error under the framework provided by this Court in State v.

Howell, 868 S.W.2d 238 (Tenn. 1993), cert. denied, 510 U.S. 1215, 114 S.Ct.

1339, 127 L.Ed.2d 687 (1994). The trial court dismissed the defendant's petition

for relief, and a majority of the appellate court affirmed finding:


       In the present case two valid aggravating factors were clearly
       established. [King] had two prior felony convictions involving the
       use of or threat of personal violence. Also, the state presented
       proof that the appellant created great risk of death to two or more
       persons other than the victim during the course of the homicide.
       The proof supporting these two aggravating factors is
       overwhelming. Very little evidence of mitigation was offered.
       During the prosecutor’s closing argument at sentencing, little
       emphasis was placed on the invalid aggravator. Furthermore, no
       additional evidence was introduced to support the invalid
       aggravating circumstance. . . . We conclude that the sentence
       would have been the same had the jury given no weight to the
       invalid felony murder aggravating factor.



We granted this appeal to determine whether the error was harmless.



                                     ANALYSIS



       At the time of the defendant’s trial, the offense of felony murder included

“[e]very murder committed in the perpetration of, or attempt to perpetrate, any

murder in the first degree, arson, rape, robbery, burglary, larceny, kidnapping,

aircraft piracy, or the unlawful throwing, placing or discharging of a destructive

device or bomb. . . .” Tenn. Code Ann. § 39-2-202(a) (1982)[now Tenn. Code

Ann. § 39-13-202(a)(2)(1997)]. The felony murder aggravating circumstance

contained virtually identical language: “the murder was committed while the

defendant was engaged in committing . . . any first degree murder, arson, rape,

robbery, burglary, larceny, kidnapping, aircraft piracy or unlawful throwing,



                                           4
placing or discharging of a destructive device or bomb.” Tenn. Code Ann.

§ 39-2-203 (i)(7)(1982)[now Tenn. Code Ann. § 39-13-204(i)(7)(1997)].



      In Middlebrooks, a majority of this Court found that Tenn. Code Ann.

§ 39-2-203(i)(7) mirrored the elements of Tenn. Code Ann. § 39-13-204(i)(7) and

failed to narrow the class of death-eligible defendants. We held that application

of the felony murder aggravating circumstance to impose the death penalty for

felony murder violated both the Eighth Amendment to the United States

Constitution and art. I, § 16 of the Tennessee Constitution. Middlebrooks, 840

S.W.2d at 346. In State v. Howell, this Court held that a Middlebrooks error is

subject to a harmless error analysis. When evaluating a Middlebrooks error

under a Howell analysis, we shall “completely examine the record for the

presence of factors which potentially influence the sentence ultimately imposed.”

Howell, 868 S.W.2d at 260-61. The factors include “the number and strength of

remaining aggravating circumstances, the prosecutor’s argument at sentencing,

the evidence admitted to establish the invalid aggravator, and the nature, quality,

and strength of mitigating evidence." Id.



      A Middlebrooks error may be deemed harmless if we find "beyond a

reasonable doubt that the sentence would have been the same had the jury

given no weight to the invalid felony murder aggravating factor.” Howell, 868

S.W.2d at 261. We have held Middlebrooks errors to be harmless and have

upheld the death sentence in the following cases. State v. Boyd, 959 S.W.2d

557 (Tenn. 1998); State v. Hines, 919 S.W.2d 573 (Tenn. 1995), cert. denied,

___ U.S. ___, 117 S.Ct. 133, 136 L.Ed.2d 82 (1996); State v. Smith, 893 S.W.2d

908 (Tenn. 1994), 516 U.S. 829, 116 S.Ct. 99, 133 L.Ed.2d 53 (1995); Barber v.

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

1177, 130 L.Ed.2d 1129 (1995); State v. Nichols, 877 S.W.2d 722 (Tenn. 1994),

cert. denied, 513 U.S. 1114, 115 S.Ct. 909, 130 L.Ed.2d 791 (1995); State v.


                                         5
Cazes, 875 S.W.2d 253 (Tenn. 1994), cert. denied, 513 U.S. 1086, 115 S.Ct.

743, 130 L.Ed.2d 644 (1995); Howell, 868 S.W.2d at 262. We have held that the

error required resentencing in the following cases: State v. Walker, 910 S.W.2d

381 (Tenn. 1995), cert. denied, ___ U.S. ___, 117 S.Ct. 88, 136 L.Ed.2d 45

(1996), and Hartman v. State, 896 S.W.2d 94 (Tenn. 1995).



                            STANDARD OF REVIEW



       Middlebrooks has been applied retroactively and may be properly raised

in a post-conviction case. See Barber v. State, 889 S.W.2d at 187.

Middlebrooks errors are premised upon the Tennessee Constitution. Decisions

addressing the harmful effect of a constitutional error that is a mixed question of

fact and law are generally not afforded a presumption of correctness. See, e.g.,

Yates v. Evatt, 500 U.S. 391, 405, 111 S.Ct. 1884, 1894, 114 L.Ed.2d 432

(1991). Accordingly, our review is de novo upon the record when assessing the

effect of a Middlebrooks error. See Harries v. State, 958 S.W.2d 799, 802-803

(Tenn. Crim. App. 1997), perm. to appeal denied (Tenn. 1997).



               REMAINING AGGRAVATING CIRCUMSTANCES



                        Prior Violent Felony Convictions



       King admits that he has been previously convicted of two violent felonies,

kidnapping and attempted robbery. He, however, argues that the substance and

persuasiveness of these convictions are weak because his conduct in

committing the offenses was not egregious. The defendant's argument is

premised on his assertions that: (1) the kidnapping conviction merely resulted

from a minor domestic dispute; and (2) his attempted robbery conviction

resulted from a criminal episode in which his involvement was minimal. The


                                         6
defendant further argues that the relatively light sentences he received on both

the kidnapping and the attempted robbery convictions show weakness of this

aggravating circumstance.2 Finally, the defendant states that his argument is

supported by this Court’s prior description of the proof supporting this

aggravating circumstance as “marginal.” See State v. King, 694 S.W.2d 941,

944 (Tenn. 1985) (stating "[e]ven if the proof as to this aggravating circumstance

were marginal . . . .").



       We disagree with the defendant’s analysis. The mere fact that the victim

of a kidnapping is either a spouse or a former spouse does not decrease the

magnitude or substance and persuasiveness of that crime. Domestic violence is

a serious problem plaguing our society that should not be minimized. Moreover,

the mere fact that King's attempted robbery conviction stemmed from an incident

involving three other individuals does not minimize the seriousness of the

conviction. While the sentences imposed for these convictions were not

extremely severe, we note that at least one of the sentences resulted from a

negotiated plea agreement.



       At the time of King’s sentencing hearing, aggravating circumstance (i)(2)

applied if the proof introduced by the State demonstrated beyond a reasonable

doubt that "[t]he defendant was previously convicted of one (1) or more felonies,

other than the present charge, which involved the use or threat of violence to the

person." Tenn. Code Ann. § 39-2-203 (i)(2) (1982 Repl.). The jury heard

evidence from both the State and the defendant regarding the circumstances of

these prior convictions. The jury found the proof sufficient to support this

aggravating circumstance beyond a reasonable doubt, and this Court affirmed

that finding in King’s direct appeal.


       2
        The defenda nt was sentenced to two years in the state penitentiary and ten years
probation on the kidnapping conviction. He received nine months probation on the attempted
robbery conviction.

                                              7
        Upon review, we have not reweighed the proof. We have, consistent with

Howell, considered the evidence that was before the jury at the time it imposed

the sentence of death. We have considered the proof supporting this

aggravating circumstance. We have also considered the defendant’s statements

directed at depreciating the seriousness of his prior kidnapping and prior

attempted robbery convictions. The defendant’s statements are best

categorized as mitigating proof that the jury could have used to weigh against its

findings of the valid aggravating circumstances. The conduct underlying the

defendant’s prior convictions may be less egregious than the conduct underlying

the prior convictions of other defendants who have appeared before this Court.3

We emphasize, however, that Howell does not require us to conduct a

comparative review in determining the substance and persuasiveness of the

remaining valid aggravating circumstances. Instead, we must consider the

record in this case -- the evidence actually presented to the jury -- in light of the

factors enumerated in Howell. We must then determine whether the sentence

would have been the same had the jury given no weight to the invalid

aggravating circumstance. We have followed the analysis delineated in Howell

and conclude that, in this case, the prior violent felony conviction aggravating

circumstance is both objectively reliable and amply supported by the proof.



                                  Risk of Death to Others



        The jury found that the defendant's conduct in murdering the victim

"created a great risk of death to two (2) or more persons, other than the victim

murdered, during the act of murder." Tenn. Code Ann. § 39-2-203(i)(3) (1982).

The defendant entered a tavern and fired a shot into the air. He ordered the

patrons at gunpoint to lie down on the floor. He shot and killed the tavern owner,

        3
         Indeed, the dissent cites examples of cases in which the number of prior convictions
supporting the aggravating circumstance was greater and the conduct resulting in the conviction
was m ore egre gious. See State v. Sm ith, 893 S.W .2d 908, 9 26 (Te nn. 1994 ); State v. Cazes, 875
S.W .2d 253, 270 (Tenn. 1994 ).

                                                 8
who was lying on the floor. Upon leaving, the defendant encountered another

woman outside the tavern. He ordered her at gunpoint to lie down on the

ground. It was fortunate that others were neither killed nor wounded during this

robbery as at least two shots were fired within the confines of a crowded tavern.



       Again, we are unpersuaded by the defendant’s argument that the

evidence supporting this aggravator is lacking in substance or persuasiveness

and should somehow be given less weight. Those persons ordered to lie on the

tavern floor heard the defendant threaten: "We ought to just kill you anyhow"

and "Let's kill them all" and were told, "[D]on't even raise your head up an inch.

If you do . . . I will just blow your brains out." At least two shots were discharged

by the defendant in a crowded tavern. While no additional victims were shot, the

threat to their lives was very real. We again conclude that this second remaining

valid aggravating circumstance is clearly supported by objectively reliable proof.



                          ARGUMENT AND EVIDENCE



       The defendant lists several instances in which the State mentioned the

robbery during argument at the sentencing phase of the trial. According to the

defendant, this shows that undue emphasis was placed on the invalid felony

murder aggravating circumstance. We disagree with the defendant's

assessment.



       We have carefully reviewed the State's argument. The State did not

introduce any additional evidence in support of the invalid felony murder

aggravating circumstance during the sentencing hearing. Taken as a whole, the

State's argument did not emphasize the felony murder aggravating

circumstance. The State's argument simply reminded the jury of the facts of the

case, the circumstances of the offense, the defendant's version of the events,


                                          9
and the evidence impeaching the veracity of the defendant's version. We hold

that the State did not place undue emphasis on the felony murder aggravating

circumstance.



                              MITIGATING EVIDENCE



       We find little or no mitigating proof upon careful examination of the record.

The defendant is an extremely poor candidate for rehabilitation. He has been

convicted of five prior felonies. He has a history of violating probation, and his

present crimes were committed while he was on probation. He showed little or

no remorse and refused to accept responsibility for his actions. Moreover, he

attempted to blame the victim for his actions. See King, 694 S.W.2d at 944

("Very little was offered by way of mitigating circumstances other than the

[defendant's] insistence that he was morally justified in his actions because [the

victim] had refused to pay him for merchandise and his insistence that the

shooting was accidental.").



       The record does indicate that the defendant was thirty-two years old at the

time of his trial, had previously been married, and had a three-year-old child.

The defendant had previously worked as an insurance salesman, a cook, and a

bricklayer. These, circumstances, however, offer little in mitigation.



                                  CONCLUSION



       We find two remaining valid aggravating circumstances and either no

mitigating circumstances or mitigating circumstances of nominal weight. We find

that the prosecutor's argument did not emphasize the invalid aggravating

circumstance and no additional evidence was introduced to support the invalid

circumstance. Accordingly, we affirm the Court of Criminal Appeals judgment


                                         10
and hold that beyond a reasonable doubt the jury would have imposed a

sentence of death absent consideration of the invalid felony murder aggravating

circumstance. It appearing that the defendant is indigent, the costs of this

appeal are taxed to the State, for which execution may issue if necessary.




                                         JANICE M. HOLDER, JUSTICE



Concurring:

Drowota and Barker, J.J.


Concurring and Dissenting:

Anderson, C.J. - See separate Concurring/Dissenting Opinion
Birch, J.




                                        11
