Miller v. State

584 S.W.2d 758, 1979 Tenn. LEXIS 468

• Court: Tennessee Supreme Court
• Decided: April 2, 1979
• Status: Published

Opinions

OPINION

HENRY, Chief Justice.

In this criminal action the defendant was convicted of murder in the first degree and sentenced to death by electrocution. It comes before us on direct appeal pursuant to § 39-2406, T.C.A.

We affirm so much of the jury verdict and the judgment of the court thereon as found defendant guilty of murder in the first degree, but modify the sentence imposed and adjudged by reducing it to life imprisonment.

I.

Factual Background

This was a brutal and senseless murder. A full narration of the facts would serve no useful purpose. Suffice it to say that on April 7,1976, defendant, after participating in robbing Randall Ray West, a seventeen year-old boy, placed him in the trunk of his own vehicle, started the engine, drove the vehicle into Lake Chickamauga, and jumped clear leaving West to drown, while pleading for his life and pounding upon the trunk of the car in a frantic effort to escape. The automobile sank into twenty-five feet of water.

We have reviewed the record and find that defendant was convicted upon legally sufficient evidence in a fair and error-free trial. Without hesitation we affirm the conviction.

II.

Appellant’s primary contention is that he was tried under Chapter 51, Public Acts of 1977, which became effective April 11,1977, for a crime committed on April 7, 1976. Therefore, he contends that his conviction was ex post facto under Article 1, Section 10 of the Constitution of the United States.

The holding of the Supreme Court of the United States in Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), irrespective of our personal views as to its correctness, compels us to overrule this contention.

We are bound by the interpretation given to the United States Constitution by the Supreme Court of the United States. This is fundamental to our system of federalism. The full, final, and authoritative responsibility for the interpretation of the federal constitution rests upon the Supreme Court of the United States. This is what the Supremacy Clause means. However, as to Tennessee’s Constitution, we sit as a court of last resort, subject solely to the qualification that we may not impinge upon the minimum level of protection established by Supreme Court interpretations of the federal constitutional guarantees. But state supreme courts, interpreting state constitutional provisions, may impose higher standards and stronger protections than those set by the federal constitution. It is settled law that the Supreme Court of a state has full and final power to determine the constitutionality of a state statute, procedure, or course of conduct with regard to the state constitution, and this is true even where the state and federal constitutions contain similar or identical provisions. Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); Jankovich v. Indiana Toll Road Commission, 379 U.S. 487, 85 S.Ct. 493, 13 L.Ed.2d 439 (1965). Thus, although state courts cannot interpret their state constitution so as to restrict the protections afforded by the federal constitution, as interpreted by the United States Supreme Court, they may expand protections on the basis of a textually identical state constitutional provision.

If this were not true the frictions of federalism would be fierce and frustrating and state supreme courts would be reduced to mere conduits through which federal edicts would flow.

The Supreme Court of Hawaii, in State v. Kaluna, 520 P.2d 51 (1974) stated the principle eloquently and accurately:

In our interpretation of the United States Constitution, or course, we are bound to follow applicable pronouncements by the United States Supreme Court.

However, as the ultimate judicial tribunal in this state, this court has final, unre-viewable authority to interpret and enforce the Hawaii Constitution. We have not hesitated in the past to extend the protections of the Hawaii Bill of Rights beyond those of textually parallel provisions in the Federal Bill of Rights when logic and sound regard for the purposes of those protections have so warranted. 520 P.2d at 58.

We do not accept the holding of Dobbert as a matter of Tennessee constitutional law.

While appellant assigns no error based on Tennessee’s pertinent constitutional provisions, we do not think that this constitutional court of last resort can ignore them when exercising the awesome responsibility of de-términing whether a Tennessee citizen lives or dies.

We are solemnly enjoined by § 40-3409, T.C.A., that “[n]o assignment of error or joinder in error is necessary in criminal cases taken to the Supreme Court, but the court shall render such judgment on the record as the law demands.”

In Manning v. State, 500 S.W.2d 913 (Tenn.1973), this Court rejected as untenable the contention that Tennessee appellate courts could not consider an issue that was not raised during the trial or by assignment of error on appeal. Quoting from Silber v. United States, 370 U.S. 717, 82 S.Ct. 1287, 8 L.Ed.2d 798 (1962), the Court approved the following language:

In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise affect the fairness, integrity, or public reputation of judicial proceedings. 500 S.W.2d at 914

The Court went on to state that “the right to act on unassigned error exists where not ‘to do so would be nothing less than knowingly perpetrating a palpable injustice.’ ” Id. More recently, we unanimously held in Adams v. State, 547 S.W.2d 553, 557 (Tenn.1977), that this Court “is bound to consider any errors in the record, whether there has been an assignment or not.” (Emphasis supplied).

The gravity of this case compels us to consider Tennessee’s Constitution and statutes. Article I, Section 11 of our Constitution provides:

That laws made for the punishment of acts committed previous to the existence of such laws, and by them only declared criminal, are contrary to the principles of a free Government; wherefore no Ex post facto law shall be made.

This section denouncing prejudicial retrospective change, in our view, is sufficiently broad to proscribe the application of a statute fixing punishment in excess of that provided by a law in effect at the time of the commission of an offense.

In State v. Rowe, 116 N.J.L. 48, 181 A. 706 (1935), the Court lays down four broad and generally “accepted classifications of ex post facto laws,” as follows:

1. A law which provides for the infliction of punishment upon a person for an act done which, when it was committed, was innocent.

2. A law which aggravates a crime or makes it greater than when it was committed.

3. A law that changes punishment or inflicts a greater punishment than the law annexed to the crime when it was committed.

4. A law that changes the rules of evidence and receives (sic) less or different testimony than was required at the time of the commission of the offense in order to convict the offender. 181 A. at 709.

Among other classifications added by the Court was:

Every law which, in relation to the offense or its consequences, alters the situation of a person to his disadvantage, 181 A. at 710.

The Rowe Court relied upon Calder v. Bull, 3 U.S. (3 Dali.) 386, 1 L.Ed. 648 (1798) for the first four characteristics. There Justice Chase laid down the time-honored test. The application of these commonly accepted principles precludes a sentence of death by electrocution in this case.

III.

In State v. Dixon, 530 S.W.2d 73 (Tenn.1975), Mr. Justice Cooper, writing for the Court, recognized that “[a]n unconstitutional act designed to amend or supersede an existing law does not repeal or change the former valid act but leaves it in full force and effect.” 530 S.W.2d at 74. In Dixon the murder was committed and the defendant was tried and convicted under a statute that was subsequently found to be unconstitutional because of caption difficulties. The Court upheld the conviction because the former law proscribing first degree murder was left intact. Since the indictment conformed to the requirements of the prior valid statute the conviction was valid absent other prejudicial error.

In Dixon the trial court erroneously instructed the minimum sentence under the unconstitutional statute. Since the jury’s verdict indicated that it did not intend to impose the minimum sentence, this Court ruled that the error was harmless. In the instant case, however, Miller is prejudiced by the erroneous instruction since he is subjected to the death penalty, which could not have been applied under the statute in effect when the crime was committed.

Finally, we think that the holding of the Court in Collins v. State, 550 S.W.2d 643 (Tenn.1977), requires a reversal to the extent of the sentence of death by electrocution.

In Collins, responsive to various 1976 decisions ¹ of the Supreme Court of the United States, we declared Section 3, Chapter 462 of the Public Acts of 1974, as codified in Section 39-2405, 2406, T.C.A. to be unconstitutional.

We noted that prior law (specifically Section 10771, Williams Tennessee Code, and Section 39-2405, T.C.A.), provided that persons convicted of murder in the first degree “shall suffer death by electrocution, or be imprisoned for life or over twenty (20) years, as the jury may determine”, and that under then section 39-2406 the jury might fix the punishment at death, but “if they are of opinion that there are mitigating circumstances,” the punishment might be fixed at some period over twenty years. We then held that those pre-1973 statutes,² to the extent of the death penalty provisions, were invalid. 550 S.W.2d at 646, 647. This operated to leave prior valid acts in full force and effect. Dixon, supra.

Collins effectively operated to invalidate all death penalty provisions of acts going back to Chapter 181 of the Public Acts of 1915. Section 1 of that act provided, in pertinent part:

That the death penalty as punishment for crime be, and the same is hereby abolished, and in lieu thereof . . . shall be the punishment of life imprisonment [except for the crimes of rape and convicts serving life terms convicted of any capital crime.]

Thus the legally effective punishment for first degree murder on the date of the crime committed by appellant was life imprisonment, as there was no constitutional procedure for the infliction of the death penalty at the time of the crime. The statute enacted subsequent to the crime may not be applied retroactively to him.

IV.

We hold that so much of the verdict of the jury and judgment of the court thereon as imposed upon appellant a sentence of death by electrocution is invalid as being in contravention of Article I, Section 11 of the Constitution of the State of Tennessee.

We affirm the finding of guilt and reduce the sentence imposed to life imprisonment.

COOPER and BROCK, JJ., concurring. HARBISON, J., dissents with opinion. FONES, J., concurs in dissenting opinion.

APPENDIX

SEQUENCE OF EVENTS

6-22-72 Furman v. Georgia decided

5- 8-73 Chapter 192, Acts of 1973 became effective

2- 4-74 Chapter 192, Acts of 1973 declared unconstitutional in State v. Hailey, 505 S.W.2d 712 (Tenn.1974)

2-27-74 Chapter 462, Acts of 1974, providing a mandatory death penalty for murder I, became effective

4- 7-76 Miller murdered West (mandatory death penalty was in effect)

7- 2-76 Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859; Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913; Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929; Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944; and Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 decided by Supreme Court of the United States.

7- 6-76 Williams v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3218, 49 L.Ed.2d 1215 decided.

Note: These cases alerted the bench and bar that a mandatory death penalty violated the Fifth and Fourteenth Amendments to the Constitution of the United States.

8- 5-76 Miller arrested

9-22-76 Miller indicted (For all practical purposes, Tennessee’s mandatory death penalty had been obliterated)

1-24-77 Collins v. State, 550 S.W.2d 643 (Tenn.1977)' decided. This decision was predicated wholly on the Federal Constitution.

2- 8-77 Governor commuted all death row prisoners

4-11-77 Chapter 51, Public Acts of 1977, the present death penalty law, Sec. 39-2402, 2404 and 2406 became effective when passed over tne Governor’s veto.

5- 2-77 Petition to rehear in Collins was overruled

12- 8-77 Opening date of trial

12- 9-77 Miller Convicted of Murder I and given death penalty

This was:

1 year and 8 months after the crime 1 “ “4 “ “ “ arrest

1 “ “5 “ “ “ Gregg, etc.

1 “ "2 “ and 17 days after the indictment

10½ months after Collins

1 . Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859; Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978. 49 L.Ed.2d 944: Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974; Williams v. Oklahoma, 428 U.S. 907. 96 S.Ct. 3218. 49 L.Ed.2d 1215.

2 . Chapter 192, Public Acts of 1973, was declared unconstitutional in State v. Hailey, 505 S.W.2d 712 (Tenn.1974).