Harries v. State

• Decision Date: 30 July 1997
• Citation: 958 S.W.2d 799
• Court: Tennessee Court of Criminal Appeals
• Parties: Ronald Richard HARRIES, Appellant v. STATE of Tennessee, Appellee

Page 799

958 S.W.2d 799

Ronald Richard HARRIES, Appellant v. STATE of Tennessee, Appellee

Court of Criminal Appeals of Tennessee,

at Knoxville.

July 30, 1997.

Permission to Appeal Denied by

Supreme Court Nov. 24, 1997.

Michael J. Passino, Lassiter, Tidwell & Hildebrand, Nashville, Peter Alliman, Lee & Alliman, Madisonville, for Appellant.

John Knox Walkup, Attorney General and Reporter, Amy Tarkington, Assistant Attorney General, (On Appeal), Glenn R. Pruden, Assistant Attorney General (At Hearing), Nashville, H. Greeley Wells, Jr., District Attorney General, Blountville, for Appellee.

OPINION

BARKER, Judge.

In this capital case, appellant, Ronald Richard Harries, appeals as of right the denial by the Sullivan County Criminal Court of his second petition for post-conviction relief. He argues that the trial court erred in finding that the jury's application of the felony-murder aggravating circumstance in violation of the rule announced in State v. Middlebrooks, 840 S.W.2d 317 (Tenn.1992), was harmless beyond a reasonable doubt. In that respect, he also contends the trial court erred by concluding that evidence of his alcohol and drug intoxication at the time of the offense was not a mitigating factor within the statute and that appellant's history of drug addiction was not sufficient mitigating evidence which would have resulted in a lesser punishment absent the application of the invalid aggravating circumstance.

After a thorough review of the record, including the trial transcript and the transcript from the hearing on appellant's first post-conviction petition, we are of the opinion that the use of the invalid felony-murder aggravating circumstance was harmless beyond a reasonable doubt. The trial court's denial of appellant's petition is affirmed.

PROCEDURAL HISTORY

Appellant was convicted in 1981 of the felony murder of Rhonda Greene, an eighteen-year-old cashier at a convenience store in Kingsport. ¹ At the sentencing phase of the trial, the jury imposed a sentence of death, finding the presence of two statutory aggravating circumstances which were not outweighed by the mitigating evidence. Specifically, the jury found that the defendant had been previously convicted of one or more felonies, other than the present charge, which involved the use or threat of violence to the person, and the murder was committed while the defendant was engaged in committing a robbery. See Tenn.Code Ann. § 39-2404(i)(2), (7) (Supp.1981). On direct appeal to the supreme court, appellant's conviction and death sentence were affirmed. State v. Harries, 657 S.W.2d 414 (Tenn.1983). No permission was sought for a writ of certiorari to the United States Supreme Court.

Appellant's first post-conviction petition was filed in March of 1986. That petition raised thirty-five (35) issues, including claims of ineffective assistance of counsel at trial and on appeal; unconstitutionality of the Tennessee death penalty statute; numerous errors in voir dire and the selection of grand and petit juries in Sullivan County; inadequate evaluation of appellant's mental condition; and incorrect application of the felony-murder aggravating circumstance. Following a three-day evidentiary hearing, the trial court denied relief on the petition. On appeal, that judgment was affirmed by this Court. Ronald Richard Harries v. State, No. 833, 1990 WL 125023 (Tenn.Crim.App. at Knoxville, August 29, 1990), perm. to appeal denied (Tenn.1991).

The current petition was filed September 9, 1993, alleging constitutional error in the application of the felony-murder aggravating circumstance to appellant's conviction for felony murder. See State v. Middlebrooks, 840 S.W.2d 317 (Tenn.1992). No other grounds for relief were raised. After conducting an evidentiary hearing, the trial court issued a thorough statement of its findings of fact and conclusions of law.

The trial court found: (1) that the evidence supporting the remaining valid aggravating factor was uncontradicted and overwhelming; (2) that the prosecutor placed little emphasis on the invalid aggravator during his closing argument; and (3) that no additional evidence supporting the invalid aggravating circumstance was introduced at the sentencing phase. In evaluating the evidence offered in mitigation, the trial court found that any mitigation from appellant's drug addiction was negated by proof that appellant committed numerous crimes to support his habit. The trial court further found that evidence that appellant was under the influence of drugs and alcohol at the time of the crime was insufficient to demonstrate that he was substantially impaired. See Tenn.Code Ann. § 39-2404(j)(8) (Supp.1981). It also found that appellant's claims of remorse for the crime were belated and lacked sincerity and were not supported by the factual record. However, the trial court did accord some weight to that claim and also to appellant's claim that the shooting was accidental. The trial court also considered a list of ten additional mitigating factors submitted after the filing of the petition. Considering all the above, the trial court concluded that the Middlebrooks error was harmless beyond a reasonable doubt. See 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). Appellant's petition for relief was denied.

STANDARD OF REVIEW

The parties have raised the question of the proper standard of review for this Court to apply in reviewing the Howell harmless error analysis performed by the trial court. A review of Tennessee case law reveals that this question has not been squarely addressed. Our supreme court has had eight opportunities to consider whether application of the felony-murder aggravator in violation of Middlebrooks was harmless beyond a reasonable doubt. See 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. Walker, 910 S.W.2d 381 (Tenn.1995), cert. denied --- U.S. ----, 117 S.Ct. 88, 136 L.Ed.2d 45 (1996); Hartman v. State, 896 S.W.2d 94 (Tenn.1995); State v. Smith, 893 S.W.2d 908 (Tenn.1994), cert. denied 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. Cazes, 875 S.W.2d 253 (Tenn.1994), cert. denied 513 U.S. 1086, 115 S.Ct. 743, 130 L.Ed.2d 644 (1995); 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). Procedurally, however, it has not had the opportunity to review findings of fact and conclusions of law following a trial court's Howell harmless error analysis. In fact, the supreme court has reviewed the issue in the context of post-conviction only twice and both times without the benefit of a post-conviction court's findings on the issue. See Hartman, 896 S.W.2d at 96; Barber, 889 S.W.2d at 186.

This Court has rendered decisions in capital cases in this procedural posture at least twice. See Tommy L. King v. State, No. 01C01-9512-CC-00415, 1997 WL 59464 (Tenn.Crim.App. at Nashville, February 12, 1997), appeal granted (Tenn. July 7, 1997); Michael J. Boyd v. State, No. 02C01-9406-CR-00131, 1996 WL 75351 (Tenn.Crim.App. at Jackson, February 21, 1996), appeal granted (Tenn. November 25, 1996). In Boyd, a panel of this Court discussed the trial court's analysis of the Howell issue, but did not explicitly rely upon the trial court's findings or discuss the standard of review. The trial court's findings were not addressed in King.

We are mindful of the well-established standard of review generally applicable to denials of post-conviction petitions. The trial court's findings of fact and conclusions of law are given the weight of a jury verdict and accorded a presumption of correctness. This Court is bound by those factual findings unless the evidence within the record preponderates against the judgment. See, e.g., Davis v. State, 912 S.W.2d 689, 697 (Tenn.1995); Cooper v. State, 849 S.W.2d 744, 746 (Tenn.1993); Adkins v. State, 911 S.W.2d 334, 354 (Tenn.Crim.App.1994); Alley v. State, 882 S.W.2d 810, 817 (Tenn.Crim.App.1994); Rhoden v. State, 816 S.W.2d 56, 59-60 (Tenn.Crim.App.1991); Bankston v. State, 815 S.W.2d 213, 215 (Tenn.Crim.App.1991); Black v. State, 794 S.W.2d 752, 755 (Tenn.Crim.App.1990); Teague v. State, 772 S.W.2d 932, 933-34 (Tenn.Crim.App.1988); Brooks v. State, 756 S.W.2d 288, 289 (Tenn.Crim.App.1988); Vermilye v. State, 754 S.W.2d 82, 84 (Tenn.Crim.App.1987); State v. Buford, 666 S.W.2d 473, 475 (Tenn.Crim.App.1983); Clenny v. State, 576 S.W.2d 12, 14 (Tenn.Crim.App.1978), cert. denied 441 U.S. 947, 99 S.Ct. 2170, 60 L.Ed.2d 1050 (1979); Long v. State, 510 S.W.2d 83, 86 (Tenn.Crim.App.1974). The supreme court recently applied this standard of review in a capital case when reviewing a lower court's determination on the ineffective assistance of counsel. Goad v. State, 938 S.W.2d 363, 368-69 (Tenn.1996).

Applying these principles, we conclude that the factual findings of the trial court inherent in a harmless error analysis are entitled to a presumption of correctness. For example, the emphasis that the prosecutor placed on the invalid aggravating circumstance in closing argument, as well as the number of remaining valid aggravating circumstances, should be considered factual findings. Determinations on the quality of mitigating evidence are also entitled to the presumption. See Parker v. Dugger, 498 U.S. 308, 316-19, 111 S.Ct. 731, 737-38, 112 L.Ed.2d 812 (1991) (concluding that a state appellate court's determination that the trial judge found no mitigating circumstances in a capital trial is an issue of historical fact in habeas corpus proceedings and entitled to presumption of correctness if fairly supported by the record).

However, a trial court's...