State v. Butler
| Decision Date | 12 October 1998 |
| Citation | 980 S.W.2d 359 |
| Parties | STATE of Tennessee, Appellee, v. Dewayne B. BUTLER, Fredrick D. Butler, and Eric D. Alexander, Appellants. |
| Court | Tennessee Supreme Court |
A.C. Wharton, Shelby County Public Defender, W. Mark Ward, Sherrye Brown, Assistant Public Defenders, Memphis, for Appellant Dewayne Butler.
Leslie I. Ballin, Mark A. Mesler, Memphis, for Appellant Fredrick Butler.
William Massey, Memphis, for Appellant Eric Alexander.
John Knox Walkup, Attorney General and Reporter, Michael E. Moore, Solicitor General, Kathy Morante, Deputy Attorney General, for Appellee.
The sole issue in this interlocutory appeal is whether the State may rely upon the felony murder aggravating circumstance when seeking a sentence of life without the possibility of parole for defendants charged with felony murder. 1 We hold that there are no constitutional or statutory prohibitions and accordingly affirm the judgment of the Court of Criminal Appeals.
In 1994, indictments were returned charging the appellants with especially aggravated robbery, first degree premeditated murder, and felony murder. During pre-trial proceedings, the State filed a notice of intent to seek life imprisonment without the possibility of parole, for each appellant, based upon the felony murder aggravating circumstance. Tenn.Code Ann. § 39-13-204(i)(7) (Supp.1994). The appellants filed motions to strike the felony murder aggravator.
The trial court denied the motion in Frederick Butler's case 2, but granted Dewayne Butler and Eric Alexander's motions to strike upon finding that "the [felony murder] aggravating circumstance is merely a duplication of the essential elements of the underlying offense." The trial court's rationale was based upon Tennessee Code Annotated section 40-35-114 (Supp.1994), and this Court's decision in State v. Middlebrooks, 840 S.W.2d 317 (Tenn.1992).
On interlocutory appeal by the State, the Court of Criminal Appeals reversed the trial court's ruling with respect to Dewayne Butler and Eric Alexander and affirmed the ruling as to Frederick Butler. The court determined that our holding in State v. Middlebrooks, 840 S.W.2d 317 (Tenn.1992), does not bar the use of aggravator (i)(7) to enhance a life sentence to life without the possibility of parole following a conviction of felony murder.
In Middlebrooks, a majority of this Court held that when a defendant is convicted of felony murder, the use of the felony murder aggravating circumstance to support a death sentence violates the cruel and unusual punishment provisions of both the federal and state constitutions 3 because the aggravator does not sufficiently narrow the class of death-eligible offenders. See 840 S.W.2d at 346. 4 Finding, however, no statutory or constitutional counterpart to Middlebrooks requiring the narrowing of the class of defendants eligible for life sentences without the possibility of parole, the intermediate appellate court concluded that the felony murder aggravator can be used to enhance appellants' sentences to life without the possibility of parole if they are convicted of felony murder.
At the time of the killing in this case, the felony murder aggravator read as follows:
(7) The murder was committed while the defendant was engaged in committing, or was an accomplice in the commission of, or was attempting to commit, or was fleeing after committing or attempting to commit, any first degree murder, arson, rape, robbery, burglary, theft, kidnaping, aircraft piracy, or unlawful throwing, placing or discharging of a destructive device or bomb.
Tenn.Code Ann. § 39-13-204(i)(7) (Supp.1994). 5
In comparison, the indictment charging felony murder in this case states that the appellants "on August 12, 1994, in Shelby County, Tennessee ... did unlawfully and recklessly kill CHARLES CANTRELL during the perpetration of Especially Aggravated Robbery, in violation of T.C.A. 39-13-202."
As in Middlebrooks, the felony murder aggravator contains language that is virtually identical to the language in the indictment charging felony murder. Both the State and the appellants agree, however, that the constitutional mandates from Middlebrooks are not implicated in this case since the State is not seeking the death penalty.
The decision in Middlebrooks involved this Court's review of capital murder sentencing in Tennessee and the provisions against cruel and unusual punishment in both the Eighth Amendment to the United States Constitution and Article I, section 16 of the Tennessee Constitution. Particular attention was given to the United States Supreme Court progeny of cases addressing the need to narrow the class of death-eligible offenders in line with the constitutional protection against cruel and unusual punishment. See e.g. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).
The United States Supreme Court has refused to extend the constitutional requirements in Furman to cases not involving the death penalty. See Harmelin v. Michigan, 501 U.S. 957, 995, 111 S.Ct. 2680, 2701, 2702, 115 L.Ed.2d 836 (1991). Justice Scalia writing for a majority of the Court in Harmelin stated that, "[the Supreme Court] cases creating and clarifying the 'individualized capital sentencing doctrine' have repeatedly suggested that there is no comparable requirement outside the capital context, because of the qualitative difference between death and all other penalties." 6
Justice Scalia distinguished capital punishment by noting that Harmelin, 501 U.S. at 995-96, 111 S.Ct. at 2702 (quoting Furman v. Georgia, 408 U.S. 238, 306, 92 S.Ct. 2726, 2760, 33 L.Ed.2d 346 (Stewart, J., concurring)).
We agree that the penalty of death is unique to all other forms of punishment and should be distinguished accordingly under both the federal and state constitutions. With that in mind, we note that the appellants in this case are not on trial for their lives. If convicted of premeditated murder or felony murder, they will be sentenced to either life imprisonment or life without the possibility of parole. We, therefore, conclude that the constitutional concerns involving the death penalty are not at issue here. Our focus, instead, is upon the statutory construction of the sentencing provisions governing life imprisonment and life without the possibility of parole.
Tennessee Code Annotated section 39-13-207 governs sentencing in first degree murder cases where the State does not seek the death penalty. Section 39-13-207(a) provides that the jury shall determine in a separate sentencing hearing whether a defendant shall be sentenced to either life imprisonment or life without the possibility of parole. 7 The bifurcated hearing must be conducted in accordance with Tennessee Code Annotated section 39-13-204, excluding references to the death penalty. Tenn.Code Ann. § 39-13-207(a) (Supp.1994).
Section 39-13-204 prescribes the manner in which evidence is to be presented and considered during the sentencing phase of a first degree murder trial. Attorneys for both the State and the defense are given an opportunity to present evidence relevant to the issue of punishment. Such evidence may include, but is not limited to, "the nature and circumstances of the crime; the defendant's character, background history, and physical condition; any evidence tending to establish or rebut the aggravating circumstances enumerated in subsection (i); and any evidence tending to establish or rebut any mitigating factors." Tenn.Code Ann. § 39-13-204(c) (Supp.1994).
Sections 39-13-207 and 39-13-204 combine to set forth the jury's role in fixing the appropriate life sentence. The jury must first determine if there are any statutory aggravating circumstances proven by the State beyond a reasonable doubt and any mitigating circumstances. See Tenn.Code Ann. §§ 39-13-204(e)(1) and 39-13-207(d). If the jury unanimously finds the existence of at least one statutory aggravating circumstance beyond a reasonable doubt, then in its considered discretion, the jury may sentence the defendant either to life imprisonment or life without the possibility of parole. Tenn.Code Ann. §§ 39-13-207(c) and 39-13-204(f)(2). In exercising its discretion, the jury is required to weigh and consider the statutory aggravating circumstance or circumstances proven beyond a reasonable doubt and any mitigating circumstances. Tenn.Code Ann. §§ 39-13-207(d) and 39-13-204(e)(1) (Supp.1994).
Nothing in the text of either section 39-13-207 or 39-13-204 prohibits the jury from considering an aggravating circumstance when the aggravator duplicates an element of the underlying offense. The appellants, however, argue that the language and context of section 39-13-207 reveal an inherent legislative intent to apply the Middlebrooks ' rationale to sentences of life imprisonment without the possibility of parole.
The appellants contend that by enacting section 39-13-207 after the decision in Middlebrooks and by referring to section 39-13-204 in the text of section 39-13-207, the legislature intended for the Middlebrooks rationale to apply in non-capital felony murder cases. Otherwise, according to the appellants, every defendant convicted of felony murder would be sentenced to life imprisonment without the possibility of parole. We disagree.
The appellants' reading of sections 39-13-207 and 39-13-204 overlooks the language in both statutes stating that a sentence of life imprisonment or life without the possibility of parole shall be determined by a jury in its considered discretion. See Tenn.Code Ann. §§ 39-13-207(c) ...
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