King v. State
| Decision Date | 07 June 1999 |
| Citation | 992 S.W.2d 946 |
| Parties | Tommy L. KING, Defendant/Appellant, v. STATE of Tennessee, Plaintiff/Appellee. |
| Court | Tennessee Supreme Court |
Daniel J. Runde, Assistant Public Defender, Pulaski, Robert D. Massey, Co-Counsel, Pulaski, for Appellant.
John Knox Walkup, Attorney General and Reporter, John P. Cauley, Assistant Attorney General, Nashville, for Appellee.
O P I N I O N
In this post-conviction capital case, we granted this appeal to determine whether the jury's reliance on an invalid felony murder aggravating circumstance was harmless error. Upon review, we hold that the jury's consideration of the invalid felony murder aggravating circumstance was harmless beyond a reasonable doubt due to the strength of the remaining valid aggravating circumstances and the relative weakness or absence of any mitigating circumstances. The Court of Criminal Appeals' decision affirming the trial court's dismissal of the post-conviction petition is affirmed.
The defendant, Tommy Lee King, and his co-defendant, Ronald Davis, entered a tavern in May of 1982. The defendant fired a shot into the air and ordered the tavern's patrons and owner to lie down on the floor. The defendant robbed the patrons, rifled through the tavern's cash register, and took the owner's car keys. Apparently, the defendant then without provocation shot the tavern owner, who was lying on the floor. The shot entered the victim's neck and followed a downward trajectory through the victim's spinal cord. The tavern owner died approximately one week later as the result of the gunshot wound.
During the robbery, the defendant informed one of the tavern's patrons that "we ought to kill you anyhow." He then stated, "Let's kill them all." The defendant's co-defendant apparently dissuaded the defendant from killing everyone inside the tavern. The patrons were then told, When leaving the tavern, the defendant encountered a woman who was ordered at gunpoint to lie on the ground. The defendant fled in the tavern owner's car.
The record indicates that the defendant was approximately thirty years old at the time of the robbery and fatal shooting. He had a substantial criminal record that included five previous felony convictions. His felony convictions included kidnapping and attempted robbery. The defendant had a history of violating probation, and the present offenses were committed while the defendant was on probation. The defendant never accepted responsibility for his actions and attempted to justify killing the victim by stating that the victim refused to pay him for blue jeans and other merchandise. He also alleged the shooting was accidental. Witnesses testified contrary to the defendant's assertions, and character testimony indicated that the defendant's reputation for truth and veracity was poor.
The State submitted three aggravating circumstances for the jury's consideration: (1) the defendant had a prior conviction for a violent felony; (2) the defendant knowingly created a great risk of death to two or more persons other than the victim murdered; and (3) the murder occurred during the commission of a felony. 1 The jury found the presence of all three aggravating circumstances and sentenced the defendant to death. Both the defendant's conviction and the defendant's sentence of death were affirmed by this Court on direct appeal. State v. King, 694 S.W.2d 941 (Tenn.1985). His prior petition for post-conviction relief was also denied, and that decision was affirmed on appeal. King v. State, No. 88-221-III, 1989 WL 28912 (Tenn.Crim.App., Mar. 31, 1989, Nashville), perm. to appeal denied (Tenn., Aug. 7, 1989).
Following this Court's decision in State v. Middlebrooks, 840 S.W.2d 317 (Tenn.1992) (Drowota and O'Brien, JJ. dissenting), cert. dismissed, 510 U.S. 124, 114 S.Ct. 651, 126 L.Ed.2d 555 (1993), the defendant again petitioned for post-conviction relief. The trial court held that the jury's use of the felony murder aggravating circumstance was error under Middlebrooks. The trial court, however, held that the jury's reliance on the invalid aggravating circumstance was harmless error under the framework provided by this Court in 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). The trial court dismissed the defendant's petition for relief, and a majority of the appellate court affirmed finding:
In the present case two valid aggravating factors were clearly established. [King] had two prior felony convictions involving the use of or threat of personal violence. Also, the state presented proof that the appellant created great risk of death to two or more persons other than the victim during the course of the homicide. The proof supporting these two aggravating factors is overwhelming. Very little evidence of mitigation was offered. During the prosecutor's closing argument at sentencing, little emphasis was placed on the invalid aggravator. Furthermore, no additional evidence was introduced to support the invalid aggravating circumstance.... We conclude that the sentence would have been the same had the jury given no weight to the invalid felony murder aggravating factor.
We granted this appeal to determine whether the error was harmless.
At the time of the defendant's trial, the offense of felony murder included "[e]very murder committed in the perpetration of, or attempt to perpetrate, any murder in the first degree, arson, rape, robbery, burglary, larceny, kidnapping, aircraft piracy, or the unlawful throwing, placing or discharging of a destructive device or bomb...." Tenn.Code Ann. § 39-2-202(a) (1982)[now Tenn.Code Ann. § 39-13-202(a)(2)(1997) ]. The felony murder aggravating circumstance contained virtually identical language: "the murder was committed while the defendant was engaged in committing ... any first degree murder, arson, rape, robbery, burglary, larceny, kidnapping, aircraft piracy or unlawful throwing, placing or discharging of a destructive device or bomb." Tenn.Code Ann. § 39-2-203(i)(7)(1982)[now Tenn.Code Ann. § 39-13-204(i)(7)(1997) ].
In Middlebrooks, a majority of this Court found that Tenn.Code Ann. § 39-2-203(i)(7) mirrored the elements of Tenn.Code Ann. § 39-13-204(i)(7) and failed to narrow the class of death-eligible defendants. We held that application of the felony murder aggravating circumstance to impose the death penalty for felony murder violated both the Eighth Amendment to the United States Constitution and art. I, § 16 of the Tennessee Constitution. Middlebrooks, 840 S.W.2d at 346. In State v. Howell, this Court held that a Middlebrooks error is subject to a harmless error analysis. When evaluating a Middlebrooks error under a Howell analysis, we shall "completely examine the record for the presence of factors which potentially influence the sentence ultimately imposed." Howell, 868 S.W.2d at 260-61. The factors include "the number and strength of remaining aggravating circumstances, the prosecutor's argument at sentencing, the evidence admitted to establish the invalid aggravator, and the nature, quality, and strength of mitigating evidence." Id.
A Middlebrooks error may be deemed harmless if we find "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." Howell, 868 S.W.2d at 261. We have held Middlebrooks errors to be harmless and have upheld the death sentence in the following cases. State v. Boyd, 959 S.W.2d 557 (Tenn.1998); State v. Hines, 919 S.W.2d 573 (Tenn.1995), cert. denied, 519 U.S. 847, 117 S.Ct. 133, 136 L.Ed.2d 82 (1996); State v. Smith, 893 S.W.2d 908 (Tenn.1994), 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); Howell, 868 S.W.2d at 262. We have held that the error required resentencing in the following cases: State v. Walker, 910 S.W.2d 381 (Tenn.1995), cert. denied, 519 U.S. 826, 117 S.Ct. 88, 136 L.Ed.2d 45 (1996), and Hartman v. State, 896 S.W.2d 94 (Tenn.1995).
Middlebrooks has been applied retroactively and may be properly raised in a post-conviction case. See Barber v. State, 889 S.W.2d at 187. Middlebrooks errors are premised upon the Tennessee Constitution. Decisions addressing the harmful effect of a constitutional error that is a mixed question of fact and law are generally not afforded a presumption of correctness. See, e.g., Yates v. Evatt, 500 U.S. 391, 405, 111 S.Ct. 1884, 1894, 114 L.Ed.2d 432 (1991). Accordingly, our review is de novo upon the record when assessing the effect of a Middlebrooks error. See Harries v. State, 958 S.W.2d 799, 802-803 (Tenn.Crim.App.1997), perm. to appeal denied (Tenn.1997).
King admits that he has been previously convicted of two violent felonies, kidnapping and attempted robbery. He, however, argues that the substance and persuasiveness of these convictions are weak because his conduct in committing the offenses was not egregious. The defendant's argument is premised on his assertions that: (1) the kidnapping conviction merely resulted from a minor domestic dispute; and (2) his attempted robbery conviction resulted from a criminal episode in which his involvement was minimal. The defendant further argues that the relatively light sentences he received on both the kidnapping and the attempted robbery convictions show weakness of this aggravating circumstance. 2 Finally, the defendant states that his argument is supported...
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