State v. Harris

• Decision Date: 07 December 1992
• Citation: 844 S.W.2d 601
• Parties: STATE of Tennessee, Appellee, v. Billy Joe HARRIS, Appellant.
• Court: Tennessee Supreme Court

Page 601

844 S.W.2d 601

STATE of Tennessee, Appellee, v. Billy Joe HARRIS, Appellant.

Supreme Court of Tennessee,

at Jackson.

Dec. 7, 1992.

Mark W. Fowler, Union City, for defendant-appellant.

Charles W. Burson, Atty. Gen. & Reporter, Joel W. Perry, Asst. Atty. Gen., Nashville, for appellee.

OPINION

DROWOTA, Justice.

The sole issue presented by this appeal is whether Defendant Billy Joe Harris's 20-year sentence for aggravated sexual battery violates the Eighth Amendment of the United States Constitution or Article I, Section 16, of the Tennessee Constitution. We granted Defendant's application to appeal in order to address whether his sentence is unconstitutionally disproportionate to his crime. Finding the sentence violates neither the State nor Federal Constitution, we affirm.

The eight-year-old victim in this case attended a birthday party for a friend at Defendant's home. After the party, the victim spent the night, sleeping with two other girls on a sofa-bed. The next morning she awoke to find Defendant fondling her chest under her nightgown and touching her in the genital area over her shorts. The victim reported the crime to her mother, the police were notified, and Defendant was arrested.

In April 1989, Defendant was convicted of Aggravated Sexual Battery under T.C.A. § 39-2-606 (Supp.1988) ¹. Defendant was sentenced as a Range II Especially Aggravated Offender, T.C.A. § 40-35-107(5)(Supp.1988), to 20 years incarceration, the minimum sentence then mandated for commission of an aggravated sexual battery upon a child less than 13 years of age. Defendant's conviction and sentence were affirmed by the Court of Criminal Appeals. ²

At the outset we note that because reviewing courts should grant substantial deference to the broad authority legislatures possess in determining punishments for particular crimes, "[o]utside the context of capital punishment, successful challenges to the proportionality of particular sentences [will be] exceedingly rare." See Solem v. Helm, 463 U.S. 277, 289-90, 103 S.Ct. 3001, 3009, 77 L.Ed.2d 637, 649 (1983) (emphasis in original) (quoting Rummel v. Estelle, 445 U.S. 263, 272, 100 S.Ct. 1133, 1138, 63 L.Ed.2d 382, 390 (1980)). Further, we announce no new constitutional rule today, but undertake only to clarify the reach of Article I, Section 16 of the Tennessee Constitution. Review of Defendant's sentence was granted only because the matter was properly raised before the intermediate court and that court's opinion did not address this particular contention.

Pursuant to the Eighth Amendment to the United States Constitution, "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." While this provision has historically been interpreted to require "that punishment for crime should be graduated and proportioned to [the] offense," Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 549, 54 L.Ed. 793, 798 (1910), the precise contours of the federal proportionality guarantee are unclear. See Harmelin v. Michigan, --- U.S. ----, 111 S.Ct. 2680, 2703, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring in part). Nevertheless, recent federal jurisprudence convinces us that Defendant's sentence passes federal constitutional muster. C.f., e.g., id. (sentence of life without parole for possession of 650 grams of cocaine); McQueary v. Blodgett, 924 F.2d 829 (9th Cir.1991) (23-year sentence for first degree assault); United States v. Williams, 923 F.2d 76 (8th Cir.) (life sentence for being a felon in possession of a firearm), cert. denied, --- U.S. ----, 112 S.Ct. 131, 116 L.Ed.2d 98 (1991).

Although the language of Article I, Section 16, of the Tennessee Constitution is virtually identical to that of the Eighth Amendment, this does not foreclose a more expansive interpretation of the Tennessee constitutional provision. See State v. Black, 815 S.W.2d 166, 188 (Tenn.1991). ³ We therefore examine the scope of the Tennessee provision before turning to Defendant's State constitutional challenge.

We hold that the proper means by which to evaluate a defendant's proportionality challenge under the Tennessee Constitution is that set forth by Justice Kennedy in Harmelin, --- U.S. at ---- - ----, 111 S.Ct. at 2702-09, 115 L.Ed.2d at 866-74 (Kennedy, J., concurring in part). Under this methodology, the sentence imposed is initially compared with the crime committed. Unless this threshold comparison leads to an inference of gross disproportionality, the inquiry ends--the sentence is constitutional. In those rare cases where this inference does arise, the analysis proceeds by comparing (1) the sentences imposed on other criminals in the same jurisdiction, and (2) the sentences imposed for commission of the same crime in other jurisdictions.

After examining Defendant's 20-year sentence in light of the gravity of his offense, we hold that no inference of gross disproportionality arises. Defendant's unlawful touching of the small child was a deliberate attempt to gratify his perverted desires which, the trial court specifically found, caused the victim mental suffering. Indeed, the traumatic memory of this battery may remain with the victim for life, perhaps to fester and manifest itself in as yet unknown manners. A 20-year sentence is not an unconstitutional punishment for this crime.

There being no inference of gross disproportionality, we need not proceed to intra- and inter-jurisdictional analyses.

Defendant's 20-year sentence is not grossly disproportionate to his crime of aggravated sexual battery on an eight-year-old victim so as to constitute cruel and unusual punishment under the Eighth Amendment of the United States Constitution or Article I, Section 16, of the Tennessee Constitution. Accordingly, the judgment of the Court of Criminal Appeals is affirmed.

O'BRIEN and ANDERSON, JJ., concur.

DAUGHTREY, J., dissents.

REID, C.J., not participating.

DAUGHTREY, Justice, dissenting.

There are several propositions set out in the majority opinion with which I agree. There can be no legitimate question, for example, that "the fixing of prison terms for specific crimes involves a substantive penological judgment that, as a general matter, is properly within the province of legislatures, not courts." Harmelin v. Michigan, 501 U.S. ----, ----, 111 S.Ct. 2680, 2703, 115 L.Ed.2d 836 (1991) (quoting Rummel v. Estelle, 445 U.S. 263, 275-276, 100 S.Ct. 1133, 1139-1140, 63 L.Ed.2d 382 (1980)). It is for this reason that when faced with an allegation that a particular sentence amounts to cruel and unusual punishment, "[r]eviewing courts ... should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes...." Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 3009, 77 L.Ed.2d 637 (1983). At the same time, there can also be no question that reviewing courts, in Tennessee at least, must on rare occasions take action with regard to penalty statutes that do not comport with constitutional guarantees. As noted in an early case:

This court has never declared void an act of the Legislature under the sixteenth section of the [Tennessee] Bill of Rights, forbidding excessive bail, excessive fines and cruel and unusual punishments, in any reported case known to us.... However, we think that the [legal] profession generally understands, and the clear weight of modern authority is, that the courts have such power under Section 16 of the Bill of Rights, and in a proper case presenting the question, it would be their undoubted duty to do so.

Brinkley v. State, 125 Tenn. 371, 382-83, 143 S.W. 1120, 1122 (1911). Accord State v. Black, 815 S.W.2d 166, 188-189 (Tenn.1991).

In addition, I applaud the majority's decision to subject the sentence in this case to scrutiny under the state as well as the federal constitution, and in so doing, to flesh out the standards to be applied under state law. I differ with the majority only as to the test to be applied under Article I, Section 16 of the Tennessee Constitution and as to the result in this case.

1. Determination of Gross Disproportionality Under Article I, Section 16

Judicial recognition of Tennessee's constitutional protection against cruel and unusual punishment in Brinkley predates extension of the Eighth Amendment's cruel and unusual punishment clause to the states ¹. Unfortunately, when the Brinkley court concluded that the penalty statute in question there did not "fall within the prohibition ... of the Constitution," it did so without identifying a rationale for its conclusion. Brinkley v. State, 125 Tenn. at 383, 143 S.W. at 1122.

In the 80-odd years since Brinkley, Tennessee decisions have tended to follow suit, either referencing but omitting discussion of the state constitutional provision, see, e.g., Pearson v. State, 521 S.W.2d 225, 229 (Tenn.1975), or assuming without analysis that the state constitutional prohibition against cruel and unusual punishment "places no greater restriction on the punishments that may be imposed by this state than does the federal constitution." Cozzolino v. State, 584 S.W.2d 765, 767 (Tenn.1979); accord State v. McKee, 803 S.W.2d 705, 706 (Tenn.Crim.App.1990).

Just last year, however, we recognized that "although the Eighth Amendment to the Federal Constitution and Article I, § 16, are textually parallel, this does not foreclose an interpretation of the language of Article I, § 16, more expansive than that of the similar federal provision." State v. Black, 815 S.W.2d at 188. We further noted in Black that "[t]he very generality of the terms 'cruel and unusual' indicates that, like the framers of the Federal Constitution, the authors of Tennessee's fundamental law delegated the task of defining these terms to the courts," while at the same time recognizing that "[t]he exact standards to be used to determine whether a legislatively approved punishment is cruel and...