         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON
                                                          FILED
                                                           January 22, 1998

                                                          Cecil Crowson, Jr.
ROBERT GLEN COE,               )                          Appellate C ourt Clerk
                               )    NO. 02C01-9606-CR-00200
      Appellant,               )
                               )    SHELBY COUNTY
VS.                            )
                               )    HON. JOHN P. COLTON,
STATE OF TENNESSEE,            )    JUDGE
                               )
      Appellee.                )    (Post Conviction-Death Penalty)



  ON REMAND FROM THE SUPREME COURT OF TENNESSEE



FOR THE APPELLANT:                  FOR THE APPELLEE:

ROBERT C. IRBY                      JOHN KNOX WALKUP
4345 Mallory Avenue East            Attorney General and Reporter
Memphis, TN 38111-7836
                                    JOHN P. CAULEY
                                    Assistant Attorney General
                                    Cordell Hull Building, 2nd Floor
                                    425 Fifth Avenue North
                                    Nashville, TN 37243-0493

                                    WILLIAM L. GIBBONS
                                    District Attorney General

                                    JOHN W. CAMPBELL
                                    Assistant District Attorney General
                                    201 Poplar Avenue, 3rd Floor
                                    Memphis, TN 38103-1947




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                       OPINION


       In this death penalty post-conviction matter this Court on March 4, 1997,

entered a Rule 20 Order affirming the trial court’s dismissal of Coe’s third petition

for post-conviction relief.1      The Supreme Court of Tennessee subsequently

remanded the case back to this Court in light of James David Carter v. State, ___

S.W.2d ___ (Tenn. 1997), and State v. Middlebrooks, 840 S.W.2d 317 (Tenn.

1992). We again affirm the trial court’s dismissal of the petition.



                                PROCEDURAL HISTORY



       Coe was found guilty of first degree murder, aggravated rape and aggravated

kidnapping in 1981. The Tennessee Supreme Court affirmed the convictions and

sentences in 1983.2 A petition for writ of certiorari to the United States Supreme

Court was denied in 1984.3

       His first petition for post-conviction relief was filed in 1984. The dismissal of

that petition was affirmed by this Court in 1986. Robert Glen Coe v. State, C.C.A.

No. 15, Shelby County (Tenn. Crim. App. filed December 23, 1986, at Jackson).

In 1987 Coe filed a petition for writ of habeas corpus in the United States District

Court for the Middle District of Tennessee. That petition was dismissed without

prejudice in March 1989 for failure to exhaust state remedies.

       In May 1989 Coe filed a second petition for post-conviction relief which was

denied by the trial court in November 1989. The denial was affirmed by this Court

in January 1991. Robert Glen Coe v. State, C.C.A. No. 138, Shelby County (Tenn.

Crim. App. filed January 16, 1991, at Jackson). The Tennessee Supreme Court

denied permission to appeal in November 1991.

       In February 1992 Coe filed his second federal petition for writ of habeas


       1
       Robert Glen Coe v. State, C.C.A. No. 02C01-9606-CR-00200, Shelby County (Tenn.
Crim. App. filed March 4, 1997, at Jackson).
       2
           State v. Coe, 655 S.W.2d 903 (Tenn. 1983).
       3
           Coe v. Tennessee, 464 U. S. 1063, 104 S.Ct. 745, 79 L.Ed.2d 203 (1984).

                                             2
corpus in the United States District Court for the Middle District of Tennessee.

While the federal writ of habeas corpus was pending, Coe filed this, his third petition

for post-conviction relief, on February 21, 1995. On January 2, 1996, the trial court

dismissed the subject petition for post-conviction relief finding that all claims were

time-barred or waived. It is this dismissal that is the subject of the current appeal.

       On November 27, 1996, the United States District Court vacated all of Coe’s

convictions and sentences.4 The matter is presently on appeal in the Sixth Circuit

of the United States Court of Appeals.

       By order issued pursuant to Tennessee Court of Criminal Appeals Rule 20

and entered on March 4, 1997, this Court affirmed the trial court’s dismissal of

Coe’s third petition for post-conviction relief. Seventeen (17) issues were presented

for our review, and we found all issues either to have been untimely raised,

“previously determined,” “waived,” and/or to be without merit. One of the issues was

whether the use of the felony murder aggravating circumstance rendered Coe’s

death penalty unconstitutional.      This Court concluded that issue had been

“previously determined” by the United States District Court for the Middle District of

Tennessee.       Furthermore, the Court found the felony murder aggravating

circumstance was constitutionally applied since there “was adequate proof of

premeditation beyond a reasonable doubt to sustain a conviction for common law

murder.” Robert Glen Coe v. State, slip op. at 4.

       Coe applied for permission to appeal to the Supreme Court of Tennessee.

By order entered December 15, 1997, the Supreme Court granted permission to

appeal “for the purpose of remanding the case to the Court of Criminal Appeals for

consideration in light of our opinion in James David Carter v. State, ___ S.W.2d ___

(Tenn. 1997) (filed October 20, 1997), and State v. Middlebrooks, 840 S.W.2d 317

(Tenn. 1992).”

       It is the December 15, 1997, order of remand that prompts this opinion.




       4
        Robert Glen Coe v. Ricky Bell, No. 3:92-0180 (M. D. Tenn. filed November 27,
1996, at Nashville).

                                          3
                         ANALYSIS OF CARTER V. STATE



       The issue in Carter v. State relevant to this appeal is whether a Middlebrooks

claim can be “previously determined” by a federal district court since it revolves

solely around a state law issue. ___ S.W.2d at ___. Carter held that a federal

district court is not a “court of competent jurisdiction” to resolve this issue; therefore,

the federal district court’s disposition of this issue may not be considered by our

state court as having been “previously determined.” Id. at ___. Since we concluded

that Coe’s Middlebrooks issue had been previously determined by the federal

district court, this issue must be re-visited.



                    APPLICATION OF CARTER TO THIS CASE



       Even though Carter found that the federal district court was not a court of

competent jurisdiction to consider a Middlebrooks claim, the Court ultimately ruled

that the felony murder aggravating circumstance could properly serve as a basis to

support the death penalty when the jury returns a general verdict of guilty of first

degree murder. ___ S.W.2d at ___. In Carter the defendant was tried on a one

count indictment charging both premeditated and felony first degree murder. The

Court found that the jury’s verdict finding the defendant guilty of the offense charged

constituted a finding of both premeditated and felony first degree murder. Id. at

___. The court concluded that the lack of narrowing resulting from duplication is not

present when a jury convicts a defendant of first degree murder upon a single count

indictment charging both premeditated murder and felony murder. Id.

       Coe’s indictment and conviction were comparable to the indictment and

conviction in Carter. As was noted by the Tennessee Supreme Court in Coe’s

direct appeal of his original conviction, the first count of the indictment charged Coe

with both common-law premeditated murder and felony murder, and the jury

returned a general verdict of guilty. State v. Coe, 655 S.W.2d at 911-912. In fact,

the Carter opinion cited the Coe opinion in finding no constitutional or statutory



                                            4
prohibition against a jury rendering a general verdict of guilty of first degree murder

where both premeditated murder and felony murder are charged and submitted to

the jury. ___ S.W.2d at ___.

       We find the Carter holding to be directly controlling as to Coe’s Middlebrooks

issue. Therefore, the felony murder aggravating circumstance was properly applied

since Coe was convicted of first degree murder based upon a count in the

indictment charging both premeditated murder and felony murder.5



                          HARMLESS ERROR ANALYSIS



       Even if the felony murder aggravating circumstance was in violation of

Middlebrooks, it would still be subject to a harmless error analysis. A Middlebrooks

error does not require a resentencing hearing if the reviewing court concludes

“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.” State v.

Howell, 868 S.W.2d 238, 262 (Tenn. 1993), cert. denied, 510 U.S. 1215 (1994).

This harmless error analysis was recently applied by the Supreme Court of

Tennessee in State v. Boyd, ___ S.W.2d ___ (Tenn. 1998).

       In addition to the aggravating circumstance of felony murder, the jury found

in Coe’s original trial the following additional aggravating circumstances:

              (1) The murder was committed against a person less than
       twelve (12) years of age, and the defendant was over eighteen (18)
       years of age;

                (2) The murder was especially heinous, atrocious or cruel in
       that it involved torture or depravity of mind; and

             (3) The murder was committed for the purpose of avoiding
       prosecution of the defendant.

State v. Coe, 655 S.W.2d at 905.

       We need not reiterate the gruesome facts of this homicide. See State v.

Coe, 655 S.W.2d at 905-908. We have, however, conducted a harmless error


       5
        We also note, as we did in our original opinion, that the Tennessee Supreme Court
found adequate proof of premeditation beyond a reasonable doubt to sustain Coe’s
conviction for common-law premeditated murder. See State v. Coe, 655 S.W.2d at 912.

                                           5
analysis under the framework of Howell as amplified by Boyd. Unquestionably, we

are convinced the jury would have reached the same verdict as to the death penalty

if the felony murder aggravating circumstance had not been charged.               We,

therefore, conclude that even if the felony murder aggravating circumstance was

erroneously charged, it was harmless beyond a reasonable doubt.



                                    OTHER ISSUES



          We have again examined the other issues raised by Coe in this appeal. For

the same reasons cited in our original opinion, we find Coe is not entitled to any

relief.



                                     CONCLUSION



          The judgment of the trial court dismissing Coe’s third post-conviction relief

petition is AFFIRMED.

          The sentence of death by electrocution shall be carried out as provided by

law on May 15, 1998, unless the sentence has been or is stayed by an appropriate

order of a federal court or the Tennessee Supreme Court.



                                                    _____________________________
                                                    JOE G. RILEY, JUDGE




CONCUR:


_______________________________
JOE B. JONES, PRESIDING JUDGE



______________________________
JOHN H. PEAY, JUDGE



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