State v. Howell

CourtSupreme Court of Tennessee
Writing for the CourtANDERSON; DAUGHTREY; REID; REID; The Court obviously has substituted for the proportionality review required at this third stage of the proceedings a finding that the proof shows the defendant to be a member of the death-eligible group which, under t
Citation868 S.W.2d 238
PartiesSTATE of Tennessee, Appellee, v. Michael Wayne HOWELL, Appellant.
Decision Date10 November 1993

Page 238

868 S.W.2d 238
STATE of Tennessee, Appellee,
Michael Wayne HOWELL, Appellant.
Supreme Court of Tennessee,
at Jackson.
Nov. 10, 1993.

W. Mark Ward, Asst. Shelby Co. Public Defender, A.C. Wharton, Shelby County Public Defender, Memphis, for appellant.

Charles W. Burson, Atty. Gen. & Reporter, Debra K. Inglis, Asst. Atty. Gen., Nashville, John W. Pierotti, Dist. Atty. Gen., James C. Beasley, Jr., Jerry R. Kitchen, Glenn I. Wright, Asst. Dist. Attys. Gen., Memphis, for appellee.


ANDERSON, Justice.

In this capital case, the defendant, Michael Wayne Howell, was found guilty of grand larceny and the first-degree felony murder of Alvin Kennedy, but found not guilty of premeditated first-degree murder. 1 In the sentencing hearing, the Memphis jury found two aggravating circumstances: (1) that the defendant was previously convicted of one or more felonies which involved the use or threat of violence to the person; and (2) that the murder was committed while the defendant was engaged in committing a felony. Tenn.Code Ann. § 39-2-203(i)(2) and (7)

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(1982). The jury rejected the aggravating circumstance that the murder was committed to prevent the lawful arrest or prosecution of the defendant, Tenn.Code Ann. § 39-2-203(i)(6) (1982), but found that there were no mitigating circumstances sufficiently substantial to outweigh the other two aggravating circumstances, and sentenced the defendant to death by electrocution. The court ordered the defendant's death sentence to run consecutively with a death sentence for murder in Oklahoma and a 25-year sentence for attempted murder in Florida, which convictions arose out of events that occurred shortly after the Memphis murder.

On appeal, the defendant raises numerous issues for our review, involving alleged errors occurring at trial in the guilt phase. We have carefully considered the defendant's contentions and have decided that none has merit. We, therefore, affirm the defendant's conviction in the guilt phase.

In State v. Middlebrooks, 840 S.W.2d 317 (Tenn.1992), a majority of this Court concluded that application of the aggravating circumstance set forth in Tenn.Code Ann. § 39-2-203(i)(7), that the murder occurred while the defendant was engaged in committing a felony, does not narrow the population of death-eligible felony murder defendants as required under the Tennessee and United States Constitutions, because it essentially duplicates the elements of the offense of first-degree felony murder. Applying the Middlebrooks holding to this case results in the invalidation of the felony murder aggravating circumstance and requires a determination of whether the jury's consideration of that aggravating circumstance was harmless beyond a reasonable doubt. Upon careful review of the record, we conclude that the submission of the felony murder aggravating circumstance for jury consideration, in this case, is harmless error beyond a reasonable doubt.

We, therefore, affirm the defendant's death sentence.


On Saturday, October 31, 1987, between 10:00 a.m. and 1:00 p.m., the defendant and his girlfriend, Mona Lisa Watson, walked to the house of his brother's girlfriend, Cheri Goff. After arriving, the defendant showed Goff a set of keys to the Lynn Whitsett Corporation property in Memphis where he had previously worked, and announced that "he was going to go get him a truck." The defendant also said "he was going down hard this time, and he was going to take some people with him." After making these statements, Goff said the defendant used her telephone to call someone about getting a gun for him. Goff also testified that she had previously seen the defendant carrying a silver handgun with a white, or bone, handle.

Later that same night, sometime after 8:00 p.m., Terry Lee Ellis drove Howell and Watson to Raines Road and left them at the Ryder Truck Terminal near the Lynn Whitsett property. Earlier, around 7:30 p.m., the defendant and Watson had stopped by the home of Robert Brink, the husband of one of Watson's friends. Brink said Howell asked to borrow some money and used the telephone, but did not stay long.

Around 2:30 a.m. on Sunday, November 1, 1987, the defendant and Watson purchased a candy bar at the Quick-Shop Food Store on Macon in Memphis. Cassandra Henderson, the clerk on duty testified that the defendant was driving a white pickup truck with writing on the door and a workman's rack on the back, which he had parked on the blind side of the store. Henderson also said that as Howell was leaving the store, he bumped into another customer, Rodney Graves, who was entering the store, and a fight broke out between the two men. After the fight, Henderson said she saw the defendant in the store parking lot with a silver pistol. Rodney Graves testified that after the fight, Howell went outside and returned to the front door of the store carrying a silver gun with bone handle, but nothing happened and the defendant left the premises.

Later that day, sometime in the evening of November 1, 1987, the defendant and Watson drove the Whitsett truck to Stanley Johnson's house. Johnson testified that Howell was waving around a nickel-plated .38 caliber pistol with a bone handle, which the defendant referred to as "Jesus Christ." In addition,

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Johnson said Howell told him that "anybody messes with us, I'll introduce them to Jesus Christ." Thereafter, between 9:00 and 10:00 p.m., Cheri Goff said she was returning home from a movie with some friends when she saw the defendant driving a white truck with a Lynn Whitsett logo on the side and red sideboards on the back.

At 11:05 p.m. on November 1, 1987, Tennessee Highway Patrol Officer Aaron Chism said he stopped by Loeb's 7-Eleven Market on Whitten Road off Interstate 40 in Shelby County, and saw the victim, Alvin Kennedy, working at his job on the midnight shift. Between 12:20 and 12:40 a.m. that same night, Brian Moser said he came into the Loeb's store to purchase a six-pack of beer, but there was no clerk in the store. As a result, after waiting a few minutes, Moser said he decided to go across the street to the Southland 7-Eleven and purchase his beer.

At 12:45 a.m., Charles Allen stopped at Loeb's 7-Eleven to purchase some gasoline. When he went to pay for his gas, Allen found Kennedy's body lying behind the counter in a pool of blood, the cash register drawer open, and all of the paper money missing. As a result, Allen said he ran across the street to the Southland 7-Eleven and asked the clerk to call the police.

Upon investigation, it was discovered that Kennedy had been shot once from close range in the upper right forehead. The wound had immediately rendered him unconscious, and he had died within a short time. It was also discovered that $111.16 was missing from the store. The tape from the cash register indicated that the last transaction had occurred at 12:24 a.m.

Susan Bauer, the clerk at the Southland 7-Eleven across the street from the Loeb's store, testified that she remembered Watson and the defendant purchasing beer and a candy bar at her store around 12:20 a.m., approximately 20 minutes before Allen came in asking her to call the police. She said she remembered when they came in because they parked the Whitsett truck on the blind side of the store, which she thought was suspicious for that time of night.

Later that day, Monday, November 2, 1987, at approximately 9:00 p.m., Charlene Calhoun was shot in the parking lot of her apartment complex near Interstate 40 in Dell City, Oklahoma, and her 1987 Toyota Tercel was stolen. A witness who heard the shooting said he saw a man and a woman get into a light-colored Toyota hatchback and drive away after the shots were fired. The Lynn Whitsett truck was found only 125 feet from the scene of the shooting, with its interior on fire, and the defendant's left palm prints on the truck's fenders.

On the morning of Tuesday, November 3, 1987, Stanley Johnson said he saw Howell and Watson in Memphis, and they were driving a small compact car. The defendant asked Johnson for money and said that "he had a little heat on him [and] had to get out of town." Johnson said he gave Howell $20, and promised to try to raise a couple of hundred dollars more by that evening.

That night, the defendant and Watson came to Johnson's house. After Johnson told the defendant he had not been able to raise any money, Howell asked Johnson to sell his gun for him. When Johnson said he couldn't get $5 for the gun, the defendant decided to keep it. Johnson also told the defendant that the story of the killing was being broadcast, that his picture was being shown on TV, and it was reported that he killed a man for $17. Johnson testified that he asked the defendant "Why $17?," and Howell replied, "Yeah, he wouldn't open the safe, so I told him I'd introduce him to Jesus Christ if he wouldn't open the safe. You know how I am, Stan. If they're old enough to talk, I wasn't going to leave a witness. They're old enough to die." After giving the defendant $30 and promising to try to find $200 for him by the next night, Johnson said Howell and Watson left, and he never saw them again.

Almost a month later, on November 29, 1987, the defendant and Watson were arrested in Panama City, Florida, after a shoot-out with police and a high-speed chase. They were driving the stolen Toyota from Oklahoma, but had replaced the Oklahoma tags with Tennessee plates from another vehicle. Florida police found a nickel-plated Smith & Wesson .38 revolver with a bone handle on

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the floorboard of the passenger's side where the defendant had been seated. Ballistics tests indicated that the bullet that had killed Alvin Kennedy had been fired from this gun, as had the bullet taken from the body of Charlene Calhoun in Oklahoma.

The last evidence introduced by the State was the redacted testimony of co-defendant Mona Lisa Watson given in April of 1988 at the...

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