Collins v. State

• Decision Date: 24 January 1977
• Parties: Clarence L. COLLINS, Jr., Petitioner, v. STATE of Tennessee, Respondent. STATE of Tennessee, Petitioner, v. Frank Carl MORGAN, Respondent.
• Court: Tennessee Supreme Court

Page 643

550 S.W.2d 643

Clarence L. COLLINS, Jr., Petitioner, v. STATE of Tennessee, Respondent.

STATE of Tennessee, Petitioner, v. Frank Carl MORGAN, Respondent.

Supreme Court of Tennessee.

Jan. 24, 1977.

On Rehearing May 2, 1977.

Eric D. Christiansen, Larry W. Weems, Greeneville, for petitioner Collins; Jack Greenberg, James M. Nabrit, III, David Evan Kendall, Peggy C. Davis, New York City, Anthony G. Amsterdam, Stanford Cal., Don Donati (Student), Knoxville, of counsel.

David L. Raybin, Weldon B. White, Jr., Asst. Attys. Gen., Nashville, Stephen M. Bevil, Thomas J. Evans, Asst. Dist. Attys. Gen., Chattanooga, for petitioner State.

David L. Raybin, Weldon B. White, Jr., Asst. Attys. Gen., Nashville, H. H. Winstead, Dist. Atty. Gen., Rogersville, Ben K. Wexler, Asst. Dist. Atty. Gen., Greeneville, Richard C. Jessee, Asst. Dist. Atty. Gen., Morristown, for respondent State; R. A. Ashley, Jr., Atty. Gen., Nashville, of counsel.

H. H. Gearinger, Chattanooga, for respondent Morgan.

Lionel R. Barrett, Jr., Tenn. Assoc. of Crim. Lawyers, Nashville, amicus curiae.

OPINION

HARBISON, Justice.

Petitioner Clarence L. Collins, Jr., was convicted of murder in the first degree in connection with the death of Merchie Ford Bacon and sentenced to death by electrocution. He was also convicted of murder in the second degree in connection with the death of Sara Gilbert Bacon and sentenced to ninety-nine years in the state penitentiary. Both convictions, including the death penalty, were affirmed by the Court of Criminal Appeals.

Certiorari was granted upon the petition of Collins, primarily in order that this Court might consider the constitutionality of the death penalty under existing state statutes. Other assignments of error were made on behalf of Collins, and we have given consideration to these. All of them were dealt with properly and adequately, however, in the opinion of the Court of Criminal Appeals, and we do not find that any of them have sufficient merit to warrant reversal of the convictions. Accordingly the conviction and sentence of the petitioner Collins in connection with the death of Mrs. Bacon are affirmed, and all of his assignments of error, other than those involving the death penalty in this state, are overruled. His conviction of murder in the first degree of Mr. Bacon is also affirmed.

Respondent Frank Carl Morgan was convicted of murder in the first degree while in the perpetration of a burglary in Chattanooga, Tennessee on October 13, 1974. His conviction for this offense was affirmed by the Court of Criminal Appeals, but, in a divided decision, that Court held unconstitutional the Tennessee statutes imposing the death penalty. The sentence in that case was, therefore, set aside and the cause remanded for resentencing. We granted the petition of the State on the punishment issue, and the only questions before the Court in the Morgan case concern the death penalty and the proper disposition of the case if that penalty cannot validly be imposed under existing state law.

Following the decision of the United States Supreme Court in the case of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the General Assembly of Tennessee, like that of many other states, reconsidered and redrafted the state statutes providing for the death penalty. The first Tennessee statute following Furman was Chapter 192 of the Public Acts of 1973. This statute redefined the offense of first degree murder, and provided for a separate sentencing hearing following an adjudication of guilt. It permitted the jury to consider aggravating and mitigating circumstances, and provided for automatic review by the state Supreme Court of cases in which the death penalty was imposed.

In the case of State v. Hailey, 505 S.W.2d 712 (Tenn.1974), the 1973 statute was held unconstitutional under the provisions of Article II, Section 17, of the state constitution, upon the ground that its provisions embraced more than one subject, and not all of the subject matter was set forth in the title or caption.

Since the 1973 legislation was invalid, prior state law dealing with the subject of murder in the first degree was left unaffected. State v. Dixon, 530 S.W.2d 73 (Tenn.1975). This earlier law had been codified in Williams Tenn.Code Ann. §§ 10768 et seq., T.C.A. §§ 39-2402 et seq.

Subsequently, by Chapter 462 of the Public Acts of 1974, the General Assembly amended the definition of murder in the first degree as contained in T.C.A. § 39-2402, and provided a mandatory death penalty for all persons convicted of that offense or as accessory before the fact of that crime. This mandatory death penalty was the subject of the opinions of the Court of Criminal Appeals in the cases now under consideration.

The 1974 statute makes no provision for a separate sentencing hearing, apart from the trial in which guilt is determined, and makes no provision for consideration of aggravating or mitigating circumstances, other than such as may inhere in the definition of the offense itself. Presumably the General Assembly, by making the death penalty mandatory, sought to eliminate the imposition of that penalty in an arbitrary or capricious manner prohibited by the decision of the United States Supreme Court in Furman, supra.

On July 2, 1976 the Supreme Court of the United States rendered opinions in five cases, giving consideration to the death penalty statutes of the states of North Carolina, Florida, Louisiana, Georgia and Texas. See Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), and the opinions in its four companion cases.

In the cases of Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), and Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), statutes providing for mandatory sentence of death upon conviction of murder in the first degree were held to violate the Eighth and Fourteenth Amendments to the Constitution of the United States. Statutes giving to the sentencing authority "controlled discretion" in the other three states were sustained.

Subsequently, on July 6, 1976, a mandatory death penalty under the statutes of Oklahoma was also held invalid. Williams v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3218, 49 L.Ed.2d 1215 (1976).

We have carefully considered the texts of the various opinions of the Supreme Court of the United States, and we are of the opinion that the mandatory death penalty of the 1974 Tennessee statute here under consideration cannot be distinguished in any meaningful or significant way from the North Carolina, Louisiana and Oklahoma statutes invalidated in the cases above referred to. Accordingly, the death sentences in each of the cases under consideration must be set aside, and Section 3, Chapter 462 of the Public Acts of 1974, as codified in T.C.A. §§ 39-2405, 2406, is declared unconstitutional, for the reasons and upon the grounds stated by the United States Supreme Court in Woodson and Roberts, supra.

Setting aside the sentences in these cases, of course, does not have the effect of invalidating the provisions of T.C.A. § 39-2402, defining the offense of murder in the first degree, or of the convictions obtained thereunder. It does have the effect of reviving the law prior to 1973, insofar as punishment is concerned. Statutes in existence prior to the adoption of Chapter 192 of the Public Acts of 1973 and prior to the adoption of Section 3, Chapter 462, of the Public Acts of 1974, provided that persons convicted of murder in the first degree

". . . shall suffer death by electrocution, or be imprisoned for life or over twenty (20) years, as the jury may determine." Williams Tenn.Code Ann. § 10771, T.C.A. § 39-2405.

Prior law, originating in Chapter 5 of the Public Acts of 1919, provided that the convicting jury should fix punishment at death, but they might "if they are of opinion that there are mitigating circumstances," fix the punishment at imprisonment for life or for some period over twenty years. T.C.A. § 39-2406.

The "mitigating circumstances" in the prior law were not delineated by statute, although some of them were considered in reported cases construing the statute. Nevertheless, we are of the opinion that the pre-1973 statutes, like the 1974 Act, did not prescribe sufficiently detailed procedures to accomplish "controlled discretion" by the jury in the imposition of the death penalty, as required by the recent decisions of the United States Supreme Court above referred to. The death penalty provisions contained in them are invalid, in our opinion, under the principles announced in those cases and in Furman v. Georgia, supra. ¹ For this reason, we cannot approve the suggestion made by the State, in its supplemental brief, that the prisoners in these cases and others similarly situated be given resentencing hearings to include the possibility of death sentences under the earlier Tennessee statutes.

In similar cases in the past, this Court has held that the proper procedure to be followed, where the death penalty cannot validly be carried out, is for the cause to be remanded for a new sentencing hearing before a jury. The fact that punishment is fixed by a different jury from that which assessed guilt was held not to violate either constitutional or statutory rights of the accused in Hunter v. State, 496 S.W.2d 900 (Tenn.1972). See also Farris v. State, 535 S.W.2d 608 (Tenn.1976) and the analysis of the subject on petition to rehear, 535 S.W.2d at 620-621.

Accordingly these cases are remanded to the respective trial courts from which they originated for a resentencing hearing, with punishment to be fixed in each case from twenty years to life imprisonment. Costs in each case are taxed to the defendant.

COOPER, C. J., and FONES and BROCK, JJ., concur.

HENRY, J., dissents in part.

HENRY, Justice, concurring in part; dissenting in part.

I am in full accord with so much of the majority opinion as holds that the...