Barber v. State

889 S.W.2d 185, 1994 Tenn. LEXIS 276
Tennessee Supreme Court·Decided October 3, 1994·Published·Cited by 45 cases

Opinions

OPINION

DROWOTA, Justice.

In 1986, the Lake County Criminal Court convicted Terry Barber of first degree burglary, robbery by use of a deadly weapon, and first degree murder in perpetration of larceny. He was sentenced to fifteen years on the burglary, to life on the robbery by use of a deadly weapon, and to death on the murder in perpetration of larceny. The death penalty was predicated on the jury’s finding of two aggravating circumstances: (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 larceny. T.C.A. § 39 — 2—203(i)(5) and (7)(1982). This Court affirmed the conviction and sentence on direct appeal in State v. Barber, 753 S.W.2d 659 (Tenn.1988), cert. denied, 488 U.S. 900, 109 S.Ct. 248, 102 L.Ed.2d 236 (1988).

Barber then filed a pro se post-conviction petition. He was subsequently appointed counsel, and his amended post-conviction petition raised fifteen issues. The trial court denied relief and the Court of Criminal Appeals affirmed. An application for permission to appeal pursuant to Rule 11, T.R.A.P., was filed in this Court.

While the application was pending, State v. Middlebrooks, 840 S.W.2d 317 (Tenn.1992) (Justices Drowota and O’Brien dissenting), was released. In that case a majority of this Court held that “when the defendant is convicted of first-degree murder solely on the basis of felony murder the aggravating circumstance set out in Tenn. Code Ann. §§ 39 — 2—203(i)(7)(1982) and ' 39-13-204(i)(7)(1991) [the so-called felony murder circumstance], does not narrow the class of death-eligible murderers sufficiently under the Eighth Amendment to the U.S. Constitution, and Article I, § 16 of the Tennessee Constitution because it duplicates the elements of the offense.” Id. at 346. As a result, the majority concluded “that Tenn. Code Ann. § 39 — 2—203(i)(7) is unconstitutionally applied under the Eighth Amendment to the U.S. Constitution and Article I, § 16 of the Tennessee Constitution where the death penalty is imposed for felony murder.” Id. See also State v. Bigbee, 885 S.W.2d 797 (Tenn.1994) (Justices Drowota and O’Brien dissenting), which reaffirms Middlebrooks.

Because the decision in Middlebrooks called into question the constitutional validity of the sentence in this cause, we filed an order granting review for the limited purpose of considering two issues left open in Middle-brooks: (I) whether this Court’s holding in that case should be retroactively applied; and (II), if so, whether application of the felony murder aggravating circumstance in this case constitutes harmless error.1

I.

The State first argues that this Court’s decision in Middlebrooks should not be retroactively applied to a case where the conviction became final long before the rule in Middlebrooks was announced. In Meadows v. State, 849 S.W.2d 748 (Tenn.1993), authored by Justice Anderson, we departed from federal law on retroactivity and held that “a new state constitutional rule is to be retroactively applied to a claim for post-conviction relief if the new rule materially enhances the integrity and reliability of the fact finding process of the trial.” Id. at 755. We now hold that the rule in Middlebrooks materially enhances both the integrity and the reliability of the fact finding process in the sentencing phase of a capital trial and should therefore be applied retroactively.

[187] The constitutional concern in Middle-brooks was that the class of death-eligible murderers be narrowed so that only the worst offenders receive the death penalty. See Middlebrooks, 840 S.W.2d at 341-347. The Court observed that the felony murder aggravating circumstance duplicates the crime of felony murder and thereby makes all felony murderers susceptible to the death penalty. This Court found that such a result violates the Eighth Amendment to the United States Constitution, as well as Article I, Section 16 of the Tennessee Constitution. Id. at 346. When an aggravating circumstance is improperly injected into the process by which the jurors must weigh aggravating and mitigating circumstances to determine a sentence, the integrity and reliability of the sentencing process is jeopardized because the death penalty may not be reserved for only the most culpable defendants. For this reason, we apply Middlebrooks retroactively under the Meadows rule.

II.

The State next argues that the application of the felony murder aggravating circumstance in T.C.A. § 39-2-203(i)(7) constituted harmless error. The State correctly points out that this Court has previously conducted a harmless error analysis and upheld the imposition of the death penalty where an aggravating circumstance was invalidated. See State v. Bobo, 727 S.W.2d 945, 956 (Tenn.1987), cert. denied, 484 U.S. 872, 108 S.Ct. 204, 98 L.Ed.2d 155 (1987); State v. Workman, 667 S.W.2d 44, 49 (Tenn.1984), cert. denied, 469 U.S. 873, 105 S.Ct. 226, 83 L.Ed.2d 155 (1984); State v. Cone, 665 S.W.2d 87, 94 (Tenn.1984), cert. denied, 467 U.S. 1210, 104 S.Ct. 2400, 81 L.Ed.2d 357 (1984); and State v. Campbell, 664 S.W.2d 281, 284 (Tenn.1984), cert. denied, 469 U.S. 920, 105 S.Ct. 302, 83 L.Ed.2d 236 (1984). But see State v. Van Tran, 864 S.W.2d 465, 480 (Tenn.1993); State v. Terry, 813 S.W.2d 420, 425 (Tenn.1991); and Teague v. State, 772 S.W.2d 915, 931 (Tenn.Cr.App.1988). See also State v. Williams, 690 S.W.2d 517 (Tenn.1985); State v. Pritchett, 621 S.W.2d 127 (Tenn.1981); and State v. Moore, 614 S.W.2d 348 (Tenn.1981).

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Barber v. State, 889 S.W.2d 185, 1994 Tenn. LEXIS 276 (Tenn. 1994).

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