             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT KNOXVILLE                  FILED
                               AUGUST 1997 SESSION
                                                                   March 17, 1998

                                                                 Cecil Crowson, Jr.
                                                                  Appellate C ourt Clerk
JEFFREY STUART DICKS,                      )      No. 03C01-9606-CC-00231

       Appellant,                          )      Greene County

V.                                         )      Hon. William H. Inman, Judge

STATE OF TENNESSEE,                        )      (Post-Conviction--Death Penalty)

       Appellee.                           )




             OPINION CONCURRING IN PART; DISSENTING IN PART

              I agree with the majority's determination that the issues concerning

jury instructions on mitigating circumstances have been waived. In my view,

however, the state has not carried the burden of establishing, beyond a reasonable

doubt, that the Middlebrooks error was harmless. In consequence, I believe that the

petitioner is entitled to a new hearing in the penalty phase of the trial.



              In 1979, the petitioner and Donald Wayne Strouth robbed a store. The

theory of the state was that Dicks disabled the victim by striking him on the head

with a rock. Strouth then slit his throat from ear to ear. Although tried separately,

Strouth also received the death penalty when the jury determined there were two

aggravating circumstances: (1) that the murder was heinous, atrocious, and cruel;

and (2) that the murder was committed during the perpetration of a felony. See

Tenn. Code Ann. § 39-2404(i)(5), (7) (Supp. 1978). Strouth filed a post-conviction

petition claiming Middlebrooks error. This court ruled that the error was harmless.

Donald Wayne Strouth v. State, No. 03C01-9507-CC-00195 (Tenn. Crim. App., at

Knoxville, Mar. 4, 1997), app. granted, (Tenn., July 7, 1997). While the supreme
court has granted review, no opinion has been released as of yet.



              The state, in this case, acknowledges that the trial court erred by

allowing the jury to consider the felony murder aggravator, Tenn. Code Ann. § 39-

2404(i)(7) (Supp. 1978), as an aggravating circumstance. In State v. Howell, 868

S.W.2d 238, 261 (Tenn. 1993), our supreme court ruled that reviewing courts should

consider the following factors to determine whether the error, as recognized in State

v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992), is harmless in the context of the

trial:

              (1) the number and strength of remaining valid
              aggravating circumstances;

              (2) the prosecutor's argument at sentencing;

              (3) the evidence admitted to establish the invalid
              aggravator; and

              (4) the nature, quality and strength of mitigating
              evidence.

In my view, these factors suggest the Middlebrooks error contributed to the jury's

conclusion that the death sentence was warranted in this case.



                                           (1)

              Absent the felony murder aggravating circumstance, the only valid

remaining aggravating circumstance is that the murder was heinous, atrocious and

cruel. Tenn. Code Ann. § 39-2404(i)(5) (Supp. 1978). The proof shows that the

victim suffered three injuries: a cut over the skull about one-half to three-quarters of

an inch deep; a laceration on the right ear extending completely through the

cartilage; and a slash over the neck from ear to ear about two inches deep. Thus,

the evidence is sufficient, as indicated by the majority, to establish the heinousness

of the offense.



                                            2
                 Of particular importance, however, is that the jury was not given

instructions that adequately defined the statutory terms. See Tenn. Code Ann. § 39-

2404(i)(5) (Supp. 1978). The jury was charged as follows:

                 "Heinous" means extremely wicked or shockingly evil.
                 "Atrocious" means outrageously wicked and vile. "Cruel"
                 means designed to inflict a high degree of pain, either
                 indifference to or enjoyment of, the suffering of others,
                 pitiless.
                                              ***
                 [You may impose the death penalty if you find the murder
                 was] especially heinous, atrocious, or cruel in that it
                 involved torture or depravity of mind.

In State v. Williams, 690 S.W.2d 517, 529 (Tenn. 1985), several years after the trial

in this case, the supreme court adopted the following definitions:

                 Heinous--"Grossly wicked or reprehensible; abominable;
                 odious; vile."
                 Atrocious--"Extremely evil or cruel; monstrous;
                 exceptionally bad; abominable."
                 Cruel--"Disposed to inflict pain or suffering; causing
                 suffering; painful."
                 Torture--"The infliction of severe physical pain as a
                 means of punishment or coercion; the experience of this;
                 mental anguish; any method or thing that causes such
                 pain or anguish; to inflict with great physical or mental
                 pain."
                 Depravity--"Moral corruption; wicked or perverse act."

While the trial court did instruct the jury on the meaning of heinous, atrocious, and

cruel, there were no definitions provided for either torture or depravity. 1



                 In Hartman v. State, 896 S.W.2d 94, 106 n.7 (Tenn. 1995), a case in

which the supreme court determined that the Middlebrooks error required reversal

and remand for resentencing, the supreme court reasoned as follows:

                 While the trial court's failure to instruct the jury in accord
                 with Williams does not by itself require relief be granted
                 the petitioner under the circumstances of this case, the
                 omission of the Williams definition has been a factor in


        1
         The federal courts have so far rejected the pre-Williams "hein ous , atroc ious , and crue l"
aggrav ating circu msta nce as a legitima te factor in im position of the death penalty. See Houston v.
Dutton, 50 F.3d 381, 387 (6th Cir. 19 95), cert. denied, 116 S. Ct. 272 (1995).

                                                    3
              our determination that the Middlebrooks error was not
              harmless.

The court also observed that the heinous, atrocious, and cruel aggravator "is less

objective in nature [and that the court] has sought to make it more objective by

defining its terms [in Williams] and by requiring ... the jury be instructed as to these

definitions." Id. at 104. Because the jury was not given the complete set of the

Williams instructions, I would have found that this factor, the relative weakness of

the remaining valid aggravating circumstance, weighs against a finding of

harmlessness.



                                           (2)

              The majority concludes that the second factor, the nature of the

prosecutor's argument at sentencing, weighs favorably for the state. It has

determined the felony murder aggravator received little attention because, "in

rebuttal argument, the prosecutor ... argued for ... application of [the] aggravator,

that the murder was committed to avoid arrest or prosecution." Majority opinion, slip

op. at 13. The final argument of the state included the following:

              Who is responsible for the killing of Jimmy Keegan?
              Well, when two (2) people set out together on a joint
              venture to rob and to kill, they are guilty of murder in the
              first degree. ... Who planned this thing out? Who from
              the very beginning was the primary moving factor in this
              case? Well, and then the robbery went down, the
              robbery was planned. Folks, let's face it, there's no
              questions about that. You've hashed all this over in the
              jury room when you decided the first phase. This was a
              planned out thing, it wasn't an accident, it wasn't ... spur
              of the moment.... [Dicks] pointed out this is the [victim]
              we're going to rob. He had seen that money. He's the
              one that had to have [the victim] killed because [the
              victim] had done business with him, not Strouth. [Dicks]
              was the beneficiary of this killing. ... If Dicks was to
              participate in the robbery of this man, then this man
              would have to die. There was no other logical way that
              this robbery could have been done with any hope of
              success in not being apprehended unless it was planned
              that they were going to kill him in cold blood. ... Death
              was always the only alternative that [Dicks] ever had for

                                            4
             [the victim], from the moment that the wheels of this
             deadly thing w[ere] put into motion, death was the only
             alternative that this man had in order to make that
             endeavor successful. ... Jeffrey Dicks knew what the
             punishment for armed robbery was. He said, I'm not
             going to serve life for a sum of money. ... Armed robbery
             does carry life in this State, so what was there to lose ...
             the only reason they had not to kill the victim would be
             that there is something else [additional punishment] if
             you kill the victim. ... If you say life in your verdict, you're
             going to say it makes good sense ... to kill the victims of
             rape and robbery because you don't have anything else
             to fear. If you say by your verdict death, you're saying
             that's stupid to kill your victim, that makes bad sense,
             and I'm asking you to say that it makes bad sense to kill
             your victim in a rape, armed robbery, the cases that are
             enumerated right here in this book that will be in His
             Honor's charge. "If the murder was committed while the
             defendant was engaged in committing, or was an
             accomplice in the commission of ... robbery." ... Without
             the use of this punishment, we are extending an open
             invitation to every potential robber and rapist to go ahead
             and kill their victim .... Well, I think that ... [another]
             factor[] in this case ... was this murder committed for the
             purpose of avoiding or interfering with or preventing the
             lawful arrest or prosecution of the Defendant. ... That
             aggravating circumstance is there without any doubt.

             Aren't the people who ... run the little stores ... aren't they
             entitled to the best protection that you can give them
             from armed robbers who will kill them. ... By telling
             others if they kill their victims in a robbery, that there's
             another reason besides the fear of going to the
             penitentiary that ought to keep them from doing this, and
             that fear is [getting] the death penalty. By your verdict,
             ladies and gentlemen, you will let the potential
             committers of robbery, rape and the other enumerated
             crimes know that if they do that, the death penalty awaits
             because not to give the death penalty is to tell them that
             it doesn't wait.

(Emphasis added).



             While portions of this argument do, in fact, relate to the killing to avoid

arrest or prosecution aggravating circumstance, parts may also be construed to

support the felony murder aggravator. The prosecutor specifically referred to the

enumerated crimes listed in the felony murder statute. At one point, he quoted a

substantial part of the felony murder statute. His final argument covers several

                                            5
pages of transcript. There was substantially more emphasis on the prohibited

perpetration of a felony circumstance than the heinous, atrocious, or cruel

circumstance, which was hardly mentioned. Because the jury determined the

existence of the felony murder aggravator and rejected the avoiding prosecution

aggravator, I think it is reasonable to infer that the jury interpreted the argument of

the state as in support of the felony murder aggravating circumstance.



                                           (3)

              The third factor, the consideration of the amount of evidence admitted

to establish the invalid aggravator, weighs in favor of the state. There was no

additional evidence admitted at the penalty phase of the trial to establish the felony

murder aggravating circumstance. So, this factor should be considered as an

indication that the Middlebrooks error was, in fact, harmless.



                                           (4)

              In my view, the fourth factor, the strength and quality of the mitigating

evidence, should be given neutral application. The nature, quality, and strength of

the mitigating evidence neither supports nor militates against a finding of

harmlessness. The defendant argued the following mitigating circumstances:

              (1) no significant criminal history;

              (2) the murder was committed while under the influence
              of extreme mental disturbance;

              (3) the defendant played a minor role;

              (4) the defendant acted under the domination of another
              person;

              (5) the defendant was young at the time; and

              (6) the defendant had a mental defect which impaired
              his ability to conform his conduct to the requirements of
              the law.


                                            6
              A psychologist offered testimony that the defendant, who was twenty

years old when he committed the crime, was passive, dependent, and weak. He

concluded that the defendant used repression and denial as defense mechanisms.

There was evidence that the defendant was a passive follower who usually sought

out dominating people. While he had no convictions for violent behavior, other proof

established that he was "wanted" at the time of the murder for writing bad checks

totaling over $14,000.



              In my opinion, the mitigating evidence is entitled to some weight.

Because the defendant was young and did not have a prior record of committing

violent crimes, there was a credible basis for the argument that a life sentence, as

opposed to the death penalty, would have been a reasonable alternative. But the

mitigating evidence was not overwhelming. The jury could have reasonably rejected

the defense argument for leniency.



              In assessing whether the Middlebrooks error qualified as harmless, I

would have concluded that two factors weigh for the defendant, one weighs for the

state, and one is neutral. While a close case, I believe that the trial court should

have granted a new sentencing hearing based upon the supreme court rulings in

Middlebrooks and Howell. My primary concern relates to the weakness of the

charge relating to the heinous atrocious and cruel aggravating circumstance. It is

worth pointing out that the state, under our existing law, bears the burden of

demonstrating that the error was harmless beyond a doubt. In my opinion, the state

has been unable to meet that standard.



                                          __________________________________
                                          Gary R. Wade, Judge


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