         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                           AUGUST SESSION, 1997                FILED
                                                         December 4, 1998
MICHAEL ANGELO COLEMAN, )          C.C.A. NO. 02C01-9611-CR-00395
                        )                                Cecil Crowson, Jr.
                                                               Appellate C ourt Clerk
     Appe llant,        )
                        )
                        )          SHELBY COUNTY
VS.                     )
                        )          HON. JOE B. BROWN, JR.
STATE OF TENNESSEE,     )          JUDGE
                        )
     Appellee.          )          (Post-Conviction - First Degree
                        )          Felony Murde r)




FOR THE APPELLANT:                 FOR THE APPELLEE:

MICHAEL J. PASSINO                 JOHN KNOX WALKUP
213 Fifth Avenu e, North           Attorney General and Reporter
Nashville, TN 37219
                                   JOHN P. CAULEY
APRIL FERGUSON                     Assistant Attorney General
Assistant Federal Defender         425 Fifth Avenu e, North
100 North Main Bldg.               Nashville, TN. 37243
Suite 410
Memphis, TN 38103                  WILLIAM L. GIBBONS
                                   District Attorney General

                                   JOHN W . CAMPBELL
                                   District Attorney General
                                   201 Poplar Street
                                   Memphis, TN 38103


OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                     OPINION



       The appellant, Micha el Angelo C oleman, a ppeals the S helby County

Criminal Cour t’s order de nying his s econd petition for p ost-con viction relief. In

1980, Appellant received a death sentence after he was convicted of first degree

felony murd er. On appe al, he c laims that he is entitled to a new sentencing

hearing due to th e jury’s erroneous reliance on the felony murder aggravating

circumstance to support the imposition of the death pe nalty.              See State v.

Middlebro oks, 840 S.W .2d 317 (Tenn . 1992). A fter a thoro ugh revie w of the

record, w e find no re versible err or and a ffirm the jud gmen t of the trial cou rt.



                                   BACKGROUND




       The proof at trial, as set out by our Supreme Court on direct appeal, was

as follows:

             Appellant and his codefendant were convicted of the killing of
       Leon Watson during a robbery, which occurred in Memphis,
       Tennessee, on May 2, 19 79. Th at mo rning, M r. W atson left his
       home to go to a nearby grocery store. He did not return. At about
       10:00 p. m. Mrs. Watson was contacted by a representative of the
       Mem phis Police Department and was taken to view a white 1964
       Buick automobile, which she identified as being that of her
       husband's. Blood was found on the seat and floor o f the
       automo bile, and a bullet was found in the left door.


               Appellant and codefendant Bell were arrested about one hour
       later on another charge. The next mo rning, at ab out 5:15 a. m.,
       both appellant and Bell were advis ed of their Miranda rights.
       Appellant then told the officers of finding a body of a black man in a
       field near Third Street in Memphis. He directed officers to the scene
       where they found the body of Mr. Watson. Mr. Watson's empty
       billfold was on the ground near his bod y. Items from M r. W atson 's



                                           -2-
           autom obile were strewn a round the bo dy, indica ting the autom obile
           had been ransacked before it was driven from the scene.

                   Appellant was advised again of his Miranda rights.
           Thereafter, he confessed to shooting an d killing Mr. Wa tson in Mr.
           Watson's automobile. He also admitted going through the victim 's
           billfold after the shooting, and stated he had re move d the C .B. rad io
           from the autom obile, but h ad dec ided no t to keep it.

                  Codefendant Bell, in his sta teme nt to the police and in his
           testimony at the trial, named appellant as the man who shot and
           killed Mr. Watson. He also testified that a pistol belonging to Mr.
           Watson was taken after the shooting and that appellant had taken
           the gun to his grandmother's house.


State v. Coleman, 619 S.W.2d 112, 113-14 (Tenn. 1981). At the sentencing

hearing followin g App ellant’s conviction, the jury found two (2) aggravating

circums tances to be a pplica ble, na mely: (1 ) that the appe llant wa s previo usly

convicted of one or more fe lonies invo lving violenc e, Tenn. Code Ann. § 39-

2404(I)(2) (Supp. 1977); and (2) the murder was committed while the appellant

was enga ged in committing a robbery, Tenn. Code Ann. § 39-2404(I)(7) (Supp.

1977). 1         After finding no mitigating circumstances that would outweigh the

aggravating ones, the jury imposed a sentence of death. Appellant’s conviction

and death se ntence were affirmed b y the Te nness ee Sup reme C ourt. State v.

Coleman, 619 S.W.2d at 116.

           Subseq uently, Appellant filed his first petition for post-conviction relief

alleging numerous constitutional errors, including an ineffective assistance of

counsel claim. T he trial cou rt denied relie f, and th is Cou rt affirm ed on appe al.

State v. Michael Angelo Coleman, C.C.A. No. 31, Shelby County (Tenn. Crim.

App. filed June 28, 198 4, at Jack son). Permission to appeal was denied by the

Tennessee Supreme Court on October 29, 1984.



           1
               These aggravating circumstances are presently codified at Tenn. Code Ann. §39-13-204(I)(2)
and (7).

                                                     -3-
        Thereafter, the Tenn essee Su preme Court issued its opinion in State v.

Middlebrooks, which held th at whe n a de fenda nt is convicted of first degree

murder “solely on the basis of felony murder, ” the felony murder aggravating

circumstance “does not narrow the cla ss of d eath-e ligible m urder ers su fficiently

under the Eighth Amendment to the U.S. Constitution, and Article I, § 16 of the

Tennessee Constitution,” and as a result, that ag grava ting circ ums tance is

unco nstitutio nally applied where the death penalty is imposed for first degree

felony murder. 840 S.W.2d at 346.

        In Ma y 1993 , Appe llant filed his second petition for post-con viction relief,

claiming that his death sente nce s hould be overturned due to the Middlebrooks

error at his sentencing hearing. Appellant raised various other issues and also

requested the opportu nity to prese nt addition al mitigation proof. The trial court

found that the Middlebrooks error was harmless and denied relief. The court also

noted that the other issues, including that regarding ineffective assistance of

counsel at trial, were b arred by th e statute o f limitations. From the trial c ourt’s

ruling, A ppella nt bring s this ap peal.



                                  MIDDLEBROOKS ERROR2




        Appellant contends that he is entitled to a new sentencing hearing because

of the unconstitutional reliance on the felony murder aggravating circumstance

pursuant to State v. Middlebrooks, supra.                     He claims that a harmless error

analys is is inappropriate in this case and further argues that he has an interest

in having a jury, no t this Co urt, dete rmine his sen tence . Additionally, he urges



        2
          This issue is properly before this Court under Tenn. Code Ann. § 40-30-105 (1990), in that the
holding in Middlebrooks is to be app lied retroac tively. Barbe r v. State , 889 S.W .2d 185, 187 (Tenn. 1994 ).

                                                    -4-
this Court to a llow him to presen t additional m itigation eviden ce to s uppo rt his

claim that the Middlebrooks error was not harmless.

                                         A.

      It is undisputed in this case that a Middlebrooks error occurred at

Appe llant’s sentencing hearin g. Bec ause Appe llant wa s con victed “s olely on the

basis of felony murder,” the jury’s consideration of the felony murder aggravating

circum stance in senten cing wa s constitu tionally invalid. State v. Middlebrooks,

840 S.W.2d at 346.

      Howeve r, this does not end this Court’s analysis. In State v. How ell, 868

S.W.2d 238 (Tenn. 1993), the Supreme Court held that a harmless error a nalysis

is appro priate in determ ining wheth er resen tencing is required as a resu lt of a

Middlebrooks error.     A capital senten cing jury’s considera tion of an invalid

aggravating circumstance may be considered harmless only if the appellate cou rt

concludes, beyond a reasonable doubt, “that the sentence would have been the

same had the sentencing authority given no weight to the invalid aggravating

factor.” State v. How ell, 868 S.W.2d at 260 (citing Stringer v. Black, 503 U.S.

222, 230, 11 2 S.Ct. 1 130, 11 37, 117 L.Ed.2d 367 (19 92)).          In mak ing this

determination, the appellate court should consider “the number and strength of

remaining valid aggra vating circu mstan ces, the p rosecu tor's argum ent at

sentencing, the evid ence adm itted to e stablis h the in valid aggra vator, and the

nature, quality and s trength of mitigating e vidence.” Id. at 261.

      Apply ing a How ell analysis to the case sub judice, we begin with the

number and strength of the remaining valid aggravating circums tances . The sole

remaining aggravating circumstance upon which the jury relied was that Appellant

had previous convictions of felonies involving the use of violence. Tenn. Code

Ann. § 39-2404(I)(2) (Supp. 1977) (c urrently T enn. C ode An n. § 39-13-204 (I)(2)).

                                         -5-
Appellant had six (6) prior violent felony conv ictions, including three (3 ) jury

convictions for assault with intent to commit murder in the first degree, one (1)

jury convic tion for assault with intent to commit robbery with a deadly weapon,

one (1) jury conviction for robbery with a deadly we apon and one (1) jury

conviction for kidnapping.     The How ell court recognized that the number of

remaining aggravating factors was not as impo rtant as “the qualitative nature of

each circum stanc e, its su bstan ce an d pers uasive ness , as we ll as the quantum

of proof suppo rting it.” How ell at 261. Fu rthermo re, the Co urt noted tha t the

remaining valid ag grava ting circ ums tance in this ca se, prio r felony convic tions

involving violence, is by its very nature “more qualitatively persuasive and

objec tively reliable than others.” Id. Moreo ver, the qualitative nature of the

aggravating circumstance increases with the number of prior violent felony

convic tions.   Id.   Six prior violent felony convictions makes this remaining

aggravating factor strong indeed.

      Secondly, with regard to the prosecution’s argument at sentencing, the

record revea ls that th e pros ecuto r did no t overly e mph asize the inva lid felony

murder aggra vating c ircum stanc e in his closing argum ent at sen tencing. In fact,

out of approximately thirteen (13) pages of the prosecution’s argument at closing,

this aggravating circumstance was men tioned only once. The remainder of the

state’s argument focused primarily on Appellant’s prior violent felony convictions.

      Additionally, the state produced no additional evid ence a t sentenc ing to

support the invalid felony m urder aggra vating c ircum stanc e. The state m erely

relied upon the evidence produced during the guilt ph ase of the trial. In How ell,

the Court observed:

      [e]ven though the jury cannot weigh the invalid aggravating factor
      against any m itigating factors, the jury can properly consider
      evidence of the circumstances of the crime and the character of the

                                         -6-
       defendant in making an individualized determination of whether the
       death sentence is justified. . . In that respect, an aggravating factor
       which duplicates the elements of the underlying crime has less
       relative tendency to prejudicially affect the sentence imposed than
       invalid aggravating factors which interject inadmissible evidence into
       the sentencing calculus, or which require the sen tencing jury to draw
       additional conclusions from the guilt phase evidence.

Id. at 261 (citations om itted).

       Finally, there was very little mitigating evidence presented on Ap pellan t’s

beha lf at sentencing . There was testimony indicating that Appellant had an

unsta ble family life and difficulties in school. However, the psychological

testimony merely showed that Appellant was competent to stand trial and was not

legally insa ne.

       W e find this case to be closely an alogou s with the re cent cas e of State v.

Boyd, 959 S.W.2d 557 (Tenn. 1998), wherein the Supreme Court upheld the

defen dant’s death sentence after finding a Middlebrooks error. In that case, the

jury found the same two (2) aggravating circumstances to support the imposition

of the death penalty as the jury did in this case. After finding a Middlebrooks

error, the Boyd court con ducted a harm less error a nalysis pu rsuant to How ell.

959 S.W .2d at 560 -62. Th e Cou rt noted that the defendant in Boyd had one

previous conviction for seco nd degree murder, a violen t felony. Id. at 561. In the

present case, the appellant had six (6) prior violent felony convictions.

Furthermore, as in this case, the pro secu tion’s a rgum ent on the inva lid

aggravating factor was limited, and the state presented no additional evidence

in support of that factor at the senten cing hea ring. Id. at 561-62. Mo reover, there

was little mitigating e vidence presen ted on b ehalf of the defend ant in the Boyd

case. Id. at 562.

       After cons idering all of the How ell factors in con junctio n with th e ana lysis

in Boyd, we conclude b eyond a rea sonable do ubt that the sente nce would h ave

                                           -7-
been the same had the jury not cons idered the inva lid agg ravatin g facto r. This

issue is w ithout me rit.

                                         B.

       In conn ection with his argument that harm less error re view is inap propriate

in this case, Appellant further asserts that he has a state-created liberty interest

in havin g a jury de termine whethe r he sho uld receive the dea th pena lty. In

support of this argum ent, he cite s the cas e of Rickman v. Dutton, 854 F.Supp.

1305 (M.D. Ten n. 1994). Howe ver, in State v. Boyd , the defendant made the

identical argument as that raised by Appellant. The Supreme Court rejected the

defendant’s argument, stating:

       [t]he case cited by the defendant in support of his argument,
       Rickman v. Dutton, 854 F.Supp. 1305 (M.D. Tenn. 1994), how ever,
       recognizes that even if a due process liberty interest exists on the
       basis of these statutory provisions, constitutional harmless error
       analys is is not precluded. We , therefore, disagree with the
       defen dant's assertion that these statutory provisions preclude
       appellate review of th e sente nce. Moreover, the United States
       Supreme Court has re peatedly held that constitutional harmless
       error analysis is appropriate in this context, provided that it
       preserves the constitutional requirement of individualized
       sentencing. See, e.g., Stringer v. Black, 503 U.S . at 232, 11 2 S.Ct.
       at 1137-3 8 (1992 ); Clemons v. Mississippi, [494 U.S. 738, 753, 110
       S.Ct. 14 41, 145 0-51, 10 8 L.Ed.2 d 725 (1 990)].

Id. at 562-63.

       This issu e has n o merit.

                                         C.

       Appellant also makes a novel argument that this Co urt shou ld allow him to

present additional mitigation evidence to support his allegation that the

Middlebrooks error was not harmless. He claims that his trial attorney failed to

present adequate mitigating evidence during the sentencing hearing.                He

contends that if this Court were to consider all of the possible mitigation evidence




                                         -8-
that was not presented to the jury, then we could not conclude that the error was

harmless.

       It appears that Appella nt is attem pting to relitiga te his claim of ineffective

assistance of trial counsel. Appellant contended that trial counsel was ineffective

in his failure to prese nt ade quate mitiga tion evid ence in the first petition for post-

conviction relief, and this Court concluded that trial counsel was competent in that

respect. State v. Michael Angelo Coleman, C.C.A. N o. 31, slip op . at 23. As

such, this issue has been “previously determined” by a court of competent

jurisdiction and may not be presented again. See Tenn. Code Ann. § 40-30-

112(a) (199 0).

       Nonetheless, this Court conducts harmless error review on the record as

it is presented to us. We are not at liberty to consider extraneous information not

presented at trial to determine if the error was, in fact, harmless. We must review

cases as they are, not as they might have been.

       This issu e is withou t merit.



                                   OTHER ISSUES




       Finally, Appellant assigns as error the trial court’s dismissal of numerous

other issues on the basis th at they a re barr ed by th e statu te of lim itations.

Specifically, the app ellant claim s that trial cou nsel failed to prope rly investigate

and present mitigating evidence at trial.        He also contend s that the trial court

erred in refus ing his reque st for inve stigative assista nce a nd in refusing to allow

trial counsel to introduce relevant mitigation eviden ce. He further allege s that h is

right to seek expe rt and in vestiga tive ass istanc e was not rec ogniz ed un til 1995




                                           -9-
when the Supreme Court issued its opinion in Owens v. State, 908 S.W.2d 923

(Tenn. 1995); therefore, this claim cannot be barred by the statute of limitations.

        Initially, we note that Appellant’s claims regarding trial couns el’s failure to

investigate could have been presented in his prior petition for post-conviction

relief, but were not. As such, they are waived. Tenn. Code Ann. § 40-30-112(b)

(1990). The sam e is true with regard to th e alleged trial errors. Th ese issues a re

waived for failure to present them in a prior proceeding.3 Tenn . Code Ann. § 40-

30-112(b) (1990). More over, a s we h ave pr evious ly noted , Appe llant’s cla im that

trial couns el was ine ffective in failing to presen t mitigation evidence was

“previo usly determ ined” in his first petition for p ost-con viction relief. Tenn. Code

Ann. § 40-30-1 12(a) (19 90). Additionally, we agree with the trial court that these

issues are barred by the three (3) year statute of limitatio ns. Tenn. Code Ann.

§ 40-30-1 02; see Abston v. State, 749 S.W.2d 487, 488 (Tenn. Crim . App. 1988 ).

        Appellant also claims that his right to seek expert and investigative

assistance was not recognized until the Supreme Court issue d its op inion in

Owens v. State, supra. However, in Owens, the Court recognized that indigent

defendants have a statutory right to inves tigative and expert se rvices in a p ost-

conviction capital cas es.            908 S.W .2d at 9 29. Po st-con viction re lief is only

availab le when the conviction or sentence is void or voidable due to the

abridgement of a constitutional right. Tenn. Co de Ann. § 4 0-30-105 (1 990).

Therefore, the right recognized in Owens is not cognizable in a post-conviction

procee ding an d this issue is not prop erly before this Cou rt.




        3
           Trial counsel raised the issue of the trial court’s failure to allow investigative assistance in the
mo tion fo r new trial. H owe ver, th e issu e wa s not purs ued on ap pea l.

                                                     -10-
                                   CONCLUSION




       W e conclud e that the a ppellant w ould ha ve receive d the same sentence

had the jury not considered the invalid felony murder aggravating circumstance.

Furthermore, the remainder of Appellant’s issues have been either waived,

previo usly determ ined, bar red by the statute of limitatio ns or a re not c ogniz able

in a post-co nviction pe tition.   Acco rdingly, the ju dgme nt of the trial court is

affirmed.



                                   ____________________________________
                                   JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
DAVID G. HAYES, JUDGE


___________________________________
THOMAS T. WOODALL, JUDGE




                                          -11-
