Strouth v. State
| Decision Date | 28 June 1999 |
| Docket Number | 01-9707 |
| Citation | 999 S.W.2d 759 |
| Parties | DONALD WAYNE STROUTH, APPELLANT, V. STATE OF TENNESSEE, APPELLEE. Supreme Court,Tennessee Supreme Court |
| Court | Tennessee Supreme Court |
For the Appellant: Mark E. Olive 321 W. Jefferson St. Tallahassee, FL 32301
For the Appellee: Paul G. Summers Attorney General & Reporter Michael E. Moore Solicitor General Gordon W. Smith Associate Solicitor General Nashville, Tennessee H. Greeley Wells, Jr. District Attorney General Second Judicial District Edward E. Wilson Assistant District Attorney P.O. Box 526 Blountville, TN 37617
FOR PUBLICATION
SULLIVAN COUNTY Hon. Frank L. Slaughter, Judge
AFFIRMED.
In this post conviction capital appeal, we must determine whether the jury's reliance upon the invalid felony murder aggravating circumstance as support for imposition of the death penalty is harmless error beyond a reasonable doubt under the analysis adopted in State v. Howell, 868 S.W.2d 238 (Tenn. 1993). Both the trial court and the Court of Criminal Appeals concluded that the error was harmless and dismissed the petition for post conviction relief. After fully reviewing the record, we conclude that the sentence would have been the same had the jury given no weight to the invalid felony murder aggravating circumstance and therefore affirm the lower courts' dismissal of the petition.
On February 15, 1978, James Keegan, the sole proprietor of a used clothing store in downtown Kingsport, Tennessee, was murdered. Keegan's body was found on the floor of his store. His pockets had been emptied of his billfold and a large roll of money he habitually carried, and several items were missing from the store. Keegan had sustained a severe blow to the head with a blunt object and deep lacerations on his scalp and ear. Keegan's death resulted from a deep laceration which extended the entire width of his neck. Keegan's throat had been slit literally from ear to ear. The laceration was approximately three inches deep and completely severed both the large muscle of Keegan's neck and his jugular vein. According to the medical examiner, Keegan had been unconscious from the blow to his head when his throat had been cut, and Keegan had bled to death from the neck wound within fifteen minutes.
Donald Wayne Strouth and Jeffrey Stuart Dicks had been seen in the area of the store around the time of the murder, and they were eventually arrested and charged with the robbing and killing of Keegan. The State sought the death penalty with respect to both Strouth and Dicks. Each made a pre-trial statement to police acknowledging his presence at the scene of the crime, but accusing the other of killing Keegan. For this reason, Strouth and Dicks were tried separately to avoid the possibility of violating Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
The proof introduced at Strouth's trial demonstrated that Keegan's body was discovered by his wife around noon. Police were called to the scene of the crime and discovered two sets of footprints outside the back entrance of the store. Police also discovered that an electric heater had been turned on inside the store and a fuel-soaked towel had been placed across the heater. Testimony indicated that Keegan did not use electric heaters and had them in the store only as resale items. Dicks and his girlfriend, Betty Merrit, lived in an apartment near the store owned by Keegan, and were often visited by their friends, Strouth and his girlfriend, Barbara Davis. About a week before the murder, Dicks and Merrit went to Keegan's store and sold him some clothes. According to Merrit, Keegan paid them from a large roll of cash he kept in his front pants pocket. On the day before the murder, an employee of a nearby dry cleaners testified that he had seen Strouth and Dicks standing and talking beside the cleaners, near Keegan's store. Two other eyewitnesses saw both Strouth and Dicks in the area of Keegan's store on the morning of the murder.
Evidence accumulated by the police and introduced at Strouth's trial tended to show that Strouth had been the person who actually cut Keegan's throat. Witnesses testified to seeing blood on Strouth's hands and clothes shortly after the murder. Strouth's girlfriend told the jury that she had given Strouth a large hawkbill knife as a present sometime before the murder, and she said that Strouth had admitted to the robbery, and stated, "Jeff froze on me." The medical examiner testified that the hawk-bill knife owned by Strouth was consistent with and could have been used to slit Keegan's throat. The medical examiner also testified that the blood spots on the pants that Strouth had worn at the time of the murder were consistent with the theory that Strouth had stood over the victim and cut his throat. 1
Upon hearing the proof, the jury found Strouth guilty of murder in the perpetration of a robbery and robbery with a deadly weapon. In the subsequent sentencing hearing, the State relied upon the following six aggravating circumstances: "(1) the defendant was previously convicted of one or more felonies, other than the present charge, which involved the use or threat of violence to the person; (2) the defendant knowingly created a great risk of death to two or more persons, other than the victim murdered, during his act of murder; (3) the defendant committed murder for remuneration or the promise of remuneration; (4) the murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind; (5) the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another; and (6) the murder was committed while the defendant was engaged in committing or was an accomplice in the commission of, or was attempting to commit . . . robbery." Tenn. Code Ann. §§ 39-2404(i)(2) - (i)(7) (Supp. 1978).
Little proof was offered by either the State or the defendant at the sentencing hearing. The State offered proof to establish that the defendant had been previously convicted of a felony crime against nature in North Carolina. The defense called Officer Jim Keesling, who had taken two statements from Strouth on March 8 and 9, 1978. Officer Keesling read the statements into the record for the jury's consideration. In the first statement Strouth denied that he had been in Kingsport on the day of the murder, and in the second statement, Strouth claimed that Dicks and a third person had committed the robbery and murder while he waited in the car. The defense attempted to call a minister and sociology teacher to testify about the Christian philosophy on the death penalty and about the deterrent effect of the death penalty, but, the trial court disallowed the testimony after a jury-out hearing.
The jury deliberated for approximately seven hours before returning a verdict. Finding that the State had proven two aggravating circumstances beyond a reasonable doubt, (1) the murder was especially heinous, atrocious or cruel in that it involved torture or depravity of mind; and (2) the murder was committed while the defendant was engaged in committing a robbery, 2 and also finding that there were no mitigating circumstances sufficiently substantial to outweigh the aggravating circumstances, the jury sentenced Strouth to death by electrocution.
On direct appeal to this Court, Strouth's first degree felony murder conviction and death sentence were affirmed. State v. Strouth, 620 S.W.2d 467 (Tenn. 1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1491, 71 L.Ed.2d 692 (1982). 3 However, this Court vacated Strouth's armed robbery conviction holding that dual convictions for felony murder and the underlying felony violated principles of double jeopardy. 4
Strouth filed his first post-conviction petition in 1982, alleging numerous constitutional violations. After a lengthy evidentiary hearing, the trial court denied relief. The Court of Criminal Appeals affirmed, and this Court declined to review the case. Strouth v. State, 755 S.W.2d 819 (Tenn. Crim. App. 1986), perm. app. denied (Tenn. 1987).
Strouth's current post-conviction petition was filed on December 30, 1993. Among the claims raised, Strouth asserted that his death sentence should be set aside under State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992). The trial court held an evidentiary hearing and concluded that the Middlebrooks error was harmless beyond a reasonable doubt under the analysis adopted by this Court in Howell, supra. The trial court held that the remaining claims were either barred by the statute of limitations or waived. 5 The Court of Criminal Appeals affirmed the trial court's dismissal of the petition, also finding the Middlebrooks error harmless beyond a reasonable doubt.
Thereafter, we granted Strouth's appeal limited to the issue of whether the lower courts' erred in finding the Middlebrooks error harmless beyond a reasonable doubt. 6 For the reasons that follow, we affirm the judgment of the Court of Criminal Appeals which upheld the trial court's dismissal of the post conviction petition.
In Middlebrooks, a majority 7 of this Court determined that when a defendant is convicted of first degree murder solely on the basis of felony murder, the felony murder aggravating circumstance may not be used as a basis to support imposition of the death penalty because the aggravating circumstance merely duplicates the elements of the underlying offense. As such, the felony murder aggravating circumstance fails to sufficiently narrow the class of death-eligible murderers and violates Article I, §§ 16 of the Tennessee Constitution. 8 840 S.W.2d at 346. We held that a sentence of death may not be imposed for a conviction of first degree felony murder unless it is based upon at least one of the other statutory aggravating circumstances. Id. at 346-47. Because the rule announced in Middlebrooks...
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