IN THE SUPREME COURT OF TENNESSEE AT JACKSON (Heard at Memphis)
STATE OF TENNESSEE ) FOR PUBLICATION ) Appellee ) FILED: September 14, 1998 ) v. ) SHELBY COUNTY ) DEWAYNE B. BUTLER, ) Hon. Joseph B. Dailey, Judge FREDRICK D. BUTLER, and ) ERIC D. ALEXANDER ) NO. 02S01-9711-CR-00094 ) Appellants. ) (Interlocutory Appeal) )
For the Appellants: For the Appellee:
A.C. Wharton John Knox Walkup Shelby County Public Defender Attorney General & Reporter
W. Mark Ward & Sherrye Brown Michael E. Moore Assistant Public Defenders Solicitor General Memphis (Attorneys for Dewayne Butler) Kathy Morante Deputy Attorney General Leslie I. Ballin & Mark A. Mesler Memphis (Attorneys for Fredrick Butler) FILED William Massey Memphis September 14, 1998 (Attorney for Eric Alexander) Cecil Crowson, Jr. Appellate C ourt Clerk
OPINION
COURT OF CRIMINAL APPEALS BARKER, J. AFFIRMED OPINION The sole issue in this interlocutory appeal is whether the State may rely upon
the felony murder aggravating circumstance when seeking a sentence of life without
the possibility of parole for defendants charged with felony murder.1 We hold that
there are no constitutional or statutory prohibitions and accordingly affirm the
judgment of the Court of Criminal Appeals.
BACKGROUND
In 1994, indictments were returned charging the appellants with especially
aggravated robbery, first degree premeditated murder, and felony murder. During pre-
trial proceedings, the State filed a notice of intent to seek life imprisonment without the
possibility of parole, for each appellant, based upon the felony murder aggravating
circumstance. Tenn. Code Ann. § 39-13-204(i)(7) (Supp. 1994). The appellants filed
motions to strike the felony murder aggravator.
The trial court denied the motion in Frederick Butler’s case 2, but granted
Dewayne Butler and Eric Alexander’s motions to strike upon finding that “the [felony
murder] aggravating circumstance is merely a duplication of the essential elements of
the underlying offense.” The trial court’s rationale was based upon Tennessee Code
Annotated section 40-35-114 (Supp. 1994), and this Court’s decision in State v.
Middlebrooks, 840 S.W.2d 317 (Tenn. 1992).
On interlocutory appeal by the State, the Court of Criminal Appeals reversed
the trial court’s ruling with respect to Dewayne Butler and Eric Alexander and affirmed
1 Oral arg ume nt was h eard in this c ase on May 13, 1 988, in M emp his, Shelb y County Tennessee, as part of this Court’s S.C.A.L.E.S (Supreme Court Advancing Lega l Education for Students ) project.
2 The trial court’s ruling on Frederick Butler’s motion to strike was not mad e a part of the record on app eal.
2 the ruling as to Frederick Butler. The court determined that our holding in State v.
Middlebrooks, 840 S.W.2d 317 (Tenn. 1992), does not bar the use of aggravator (i)(7)
to enhance a life sentence to life without the possibility of parole following a conviction
of felony murder.
ANALYSIS
In Middlebrooks, a majority of this Court held that when a defendant is
convicted of felony murder, the use of the felony murder aggravating circumstance to
support a death sentence violates the cruel and unusual punishment provisions of
both the federal and state constitutions3 because the aggravator does not sufficiently
narrow the class of death-eligible offenders. See 840 S.W.2d at 346.4 Finding,
however, no statutory or constitutional counterpart to Middlebrooks requiring the
narrowing of the class of defendants eligible for life sentences without the possibility of
parole, the intermediate appellate court concluded that the felony murder aggravator
can be used to enhance appellants’ sentences to life without the possibility of parole if
they are convicted of felony murder.
At the time of the killing in this case, the felony murder aggravator read as
follows:
(7) The murder was committed while the defendant was engaged in committing, or was an accomplice in the commission of, or was attempting to commit, or was fleeing after committing or attempting to commit, any first degree murder, arson, rape, robbery, burglary, theft, kidnaping, aircraft piracy, or unlawful throwing, placing or discharging of a destructive device or bomb.
3 A majority of this Court has held that the Middlebrooks decision was based independently on Article I, sec tion 16 of th e Ten nesse e Con stitution. State v. Bigbee, 885 S.W .2d 797, 816 (Tenn. 1994 ); State v. Ho well, 868 S.W .2d 238, 2 59 n.7 (T enn. 199 3).
4 Justice D rowota a nd form er Justice O’Brien d issented as to this ho lding. Middlebrooks, 840 S.W .2d at 347 -350 (D rowota, J ., dissenting ).
3 Tenn. Code Ann. § 39-13-204(i)(7) (Supp. 1994). 5
In comparison, the indictment charging felony murder in this case states that
the appellants “on August 12, 1994, in Shelby County, Tennessee ... did unlawfully
and recklessly kill CHARLES CANTRELL during the perpetration of Especially
Aggravated Robbery, in violation of T.C.A. 39-13-202.”
As in Middlebrooks, the felony murder aggravator contains language that is
virtually identical to the language in the indictment charging felony murder. Both the
State and the appellants agree, however, that the constitutional mandates from
Middlebrooks are not implicated in this case since the State is not seeking the death
penalty.
The decision in Middlebrooks involved this Court’s review of capital murder
sentencing in Tennessee and the provisions against cruel and unusual punishment in
both the Eighth Amendment to the United States Constitution and Article I, section 16
of the Tennessee Constitution. Particular attention was given to the United States
Supreme Court progeny of cases addressing the need to narrow the class of death-
eligible offenders in line with the constitutional protection against cruel and unusual
punishment. See e.g. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 83 L.Ed.2d
346 (1972).
The United States Supreme Court has refused to extend the constitutional
requirements in Furman to cases not involving the death penalty. See Harmelin v.
Michigan, 501 U.S. 957, 995, 111 S.Ct. 2680, 2701, 2702, 115 L.Ed.2d 836 (1991).
5 The felony murder aggravator has since been amended to provide that, “[t]he murder was knowingly committed, solicited, directed, or aided by the defendant, while the defendant had a sub stan tial role in com mittin g or a ttem pting to co mm it, or wa s flee ing af ter ha ving a subs tantia l role in committing or attempting to commit, any” of the enumerated felonies. Tenn. Code Ann. § 39-13- 204(i)(7) (Supp. 1995).
4 Justice Scalia writing for a majority of the Court in Harmelin stated that, “[the Supreme
Court] cases creating and clarifying the ‘individualized capital sentencing doctrine’
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE SUPREME COURT OF TENNESSEE AT JACKSON (Heard at Memphis)
STATE OF TENNESSEE ) FOR PUBLICATION ) Appellee ) FILED: September 14, 1998 ) v. ) SHELBY COUNTY ) DEWAYNE B. BUTLER, ) Hon. Joseph B. Dailey, Judge FREDRICK D. BUTLER, and ) ERIC D. ALEXANDER ) NO. 02S01-9711-CR-00094 ) Appellants. ) (Interlocutory Appeal) )
For the Appellants: For the Appellee:
A.C. Wharton John Knox Walkup Shelby County Public Defender Attorney General & Reporter
W. Mark Ward & Sherrye Brown Michael E. Moore Assistant Public Defenders Solicitor General Memphis (Attorneys for Dewayne Butler) Kathy Morante Deputy Attorney General Leslie I. Ballin & Mark A. Mesler Memphis (Attorneys for Fredrick Butler) FILED William Massey Memphis September 14, 1998 (Attorney for Eric Alexander) Cecil Crowson, Jr. Appellate C ourt Clerk
OPINION
COURT OF CRIMINAL APPEALS BARKER, J. AFFIRMED OPINION The sole issue in this interlocutory appeal is whether the State may rely upon
the felony murder aggravating circumstance when seeking a sentence of life without
the possibility of parole for defendants charged with felony murder.1 We hold that
there are no constitutional or statutory prohibitions and accordingly affirm the
judgment of the Court of Criminal Appeals.
BACKGROUND
In 1994, indictments were returned charging the appellants with especially
aggravated robbery, first degree premeditated murder, and felony murder. During pre-
trial proceedings, the State filed a notice of intent to seek life imprisonment without the
possibility of parole, for each appellant, based upon the felony murder aggravating
circumstance. Tenn. Code Ann. § 39-13-204(i)(7) (Supp. 1994). The appellants filed
motions to strike the felony murder aggravator.
The trial court denied the motion in Frederick Butler’s case 2, but granted
Dewayne Butler and Eric Alexander’s motions to strike upon finding that “the [felony
murder] aggravating circumstance is merely a duplication of the essential elements of
the underlying offense.” The trial court’s rationale was based upon Tennessee Code
Annotated section 40-35-114 (Supp. 1994), and this Court’s decision in State v.
Middlebrooks, 840 S.W.2d 317 (Tenn. 1992).
On interlocutory appeal by the State, the Court of Criminal Appeals reversed
the trial court’s ruling with respect to Dewayne Butler and Eric Alexander and affirmed
1 Oral arg ume nt was h eard in this c ase on May 13, 1 988, in M emp his, Shelb y County Tennessee, as part of this Court’s S.C.A.L.E.S (Supreme Court Advancing Lega l Education for Students ) project.
2 The trial court’s ruling on Frederick Butler’s motion to strike was not mad e a part of the record on app eal.
2 the ruling as to Frederick Butler. The court determined that our holding in State v.
Middlebrooks, 840 S.W.2d 317 (Tenn. 1992), does not bar the use of aggravator (i)(7)
to enhance a life sentence to life without the possibility of parole following a conviction
of felony murder.
ANALYSIS
In Middlebrooks, a majority of this Court held that when a defendant is
convicted of felony murder, the use of the felony murder aggravating circumstance to
support a death sentence violates the cruel and unusual punishment provisions of
both the federal and state constitutions3 because the aggravator does not sufficiently
narrow the class of death-eligible offenders. See 840 S.W.2d at 346.4 Finding,
however, no statutory or constitutional counterpart to Middlebrooks requiring the
narrowing of the class of defendants eligible for life sentences without the possibility of
parole, the intermediate appellate court concluded that the felony murder aggravator
can be used to enhance appellants’ sentences to life without the possibility of parole if
they are convicted of felony murder.
At the time of the killing in this case, the felony murder aggravator read as
follows:
(7) The murder was committed while the defendant was engaged in committing, or was an accomplice in the commission of, or was attempting to commit, or was fleeing after committing or attempting to commit, any first degree murder, arson, rape, robbery, burglary, theft, kidnaping, aircraft piracy, or unlawful throwing, placing or discharging of a destructive device or bomb.
3 A majority of this Court has held that the Middlebrooks decision was based independently on Article I, sec tion 16 of th e Ten nesse e Con stitution. State v. Bigbee, 885 S.W .2d 797, 816 (Tenn. 1994 ); State v. Ho well, 868 S.W .2d 238, 2 59 n.7 (T enn. 199 3).
4 Justice D rowota a nd form er Justice O’Brien d issented as to this ho lding. Middlebrooks, 840 S.W .2d at 347 -350 (D rowota, J ., dissenting ).
3 Tenn. Code Ann. § 39-13-204(i)(7) (Supp. 1994). 5
In comparison, the indictment charging felony murder in this case states that
the appellants “on August 12, 1994, in Shelby County, Tennessee ... did unlawfully
and recklessly kill CHARLES CANTRELL during the perpetration of Especially
Aggravated Robbery, in violation of T.C.A. 39-13-202.”
As in Middlebrooks, the felony murder aggravator contains language that is
virtually identical to the language in the indictment charging felony murder. Both the
State and the appellants agree, however, that the constitutional mandates from
Middlebrooks are not implicated in this case since the State is not seeking the death
penalty.
The decision in Middlebrooks involved this Court’s review of capital murder
sentencing in Tennessee and the provisions against cruel and unusual punishment in
both the Eighth Amendment to the United States Constitution and Article I, section 16
of the Tennessee Constitution. Particular attention was given to the United States
Supreme Court progeny of cases addressing the need to narrow the class of death-
eligible offenders in line with the constitutional protection against cruel and unusual
punishment. See e.g. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 83 L.Ed.2d
346 (1972).
The United States Supreme Court has refused to extend the constitutional
requirements in Furman to cases not involving the death penalty. See Harmelin v.
Michigan, 501 U.S. 957, 995, 111 S.Ct. 2680, 2701, 2702, 115 L.Ed.2d 836 (1991).
5 The felony murder aggravator has since been amended to provide that, “[t]he murder was knowingly committed, solicited, directed, or aided by the defendant, while the defendant had a sub stan tial role in com mittin g or a ttem pting to co mm it, or wa s flee ing af ter ha ving a subs tantia l role in committing or attempting to commit, any” of the enumerated felonies. Tenn. Code Ann. § 39-13- 204(i)(7) (Supp. 1995).
4 Justice Scalia writing for a majority of the Court in Harmelin stated that, “[the Supreme
Court] cases creating and clarifying the ‘individualized capital sentencing doctrine’
have repeatedly suggested that there is no comparable requirement outside the
capital context, because of the qualitative difference between death and all other
penalties.”6
Justice Scalia distinguished capital punishment by noting that “the penalty of
death differs from all other forms of criminal punishment, not in degree but in kind. It
is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the
convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute
renunciation of all that is embodied in our concept of humanity.” Harmelin, 501 U.S. at
995-96, 111 S.Ct. at 2702 (quoting Furman v. Georgia, 408 U.S. 238, 306, 92 S.Ct.
2726, 2760, 83 L.Ed.2d 346 (Stewart, J., concurring)).
We agree that the penalty of death is unique to all other forms of punishment
and should be distinguished accordingly under both the federal and state
constitutions. With that in mind, we note that the appellants in this case are not on
trial for their lives. If convicted of premeditated murder or felony murder, they will be
sentenced to either life imprisonment or life without the possibility of parole. We,
therefore, conclude that the constitutional concerns involving the death penalty are not
at issue here. Our focus, instead, is upon the statutory construction of the sentencing
provisions governing life imprisonment and life without the possibility of parole.
Tennessee Code Annotated section 39-13-207 governs sentencing in first
degree murder cases where the State does not seek the death penalty. Section 39-
6 Id. (citing Eddings v. Oklahoma, 455 U.S . 104, 102 S.Ct. 869 , 71 L.Ed.2 d 1 (198 2); Rumm el v. Este lle, 445 U.S . 263, 100 S.Ct. 113 3, 63 L.Ed .2d 382 ( 1980); Loc kett v . Ohio , 438 U.S . 586, 98 S .Ct. 2954, 57 L.Ed.2d 973 (19 78); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976)) .
5 13-207(a) provides that the jury shall determine in a separate sentencing hearing
whether a defendant shall be sentenced to either life imprisonment or life without the
possibility of parole.7 The bifurcated hearing must be conducted in accordance with
Tennessee Code Annotated section 39-13-204, excluding references to the death
penalty. Tenn. Code Ann. § 39-13-207(a) (Supp. 1994).
Section 39-13-204 prescribes the manner in which evidence is to be presented
and considered during the sentencing phase of a first degree murder trial. Attorneys
for both the State and the defense are given an opportunity to present evidence
relevant to the issue of punishment. Such evidence may include, but is not limited to,
“the nature and circumstances of the crime; the defendant’s character, background
history, and physical condition; any evidence tending to establish or rebut the
aggravating circumstances enumerated in subsection (i); and any evidence tending to
establish or rebut any mitigating factors.” Tenn. Code Ann. § 39-13-204(c) (Supp.
1994).
Sections 39-13-207 and 39-13-204 combine to set forth the jury’s role in fixing
the appropriate life sentence. The jury must first determine if any statutory
aggravating circumstances or mitigating circumstances have been proven beyond a
reasonable doubt. See Tenn. Code Ann. §§ 39-13-204(e)(1) and 39-13-207(d). If the
jury unanimously finds the existence of at least one statutory aggravating
circumstance beyond a reasonable doubt, then in its considered discretion, the jury
may sentence the defendant either to life imprisonment or life without the possibility of
parole. Tenn. Code Ann. §§ 39-13-207(c) and 39-13-204(f)(2). In exercising its
discretion, the jury is required to weigh and consider the statutory aggravating
7 The penalty of life without the possibility of parole was established by our legislature in 1993, approximately one year after Middlebrooks. See 1993 Pub. Acts Ch. 473, § 16.
6 circumstance or circumstances proven beyond a reasonable doubt and any mitigating
circumstances. Tenn. Code Ann. §§ 39-13-207(d) and 39-13-204(e)(1) (Supp. 1994).
Nothing in the text of either section 39-13-207 or 39-13-204 prohibits the jury
from considering an aggravating circumstance when the aggravator duplicates an
element of the underlying offense. The appellants, however, argue that the language
and context of section 39-13-207 reveal an inherent legislative intent to apply the
Middlebrooks’ rationale to sentences of life imprisonment without the possibility of
parole.
The appellants contend that by enacting section 39-13-207 after the decision in
Middlebrooks and by referring to section 39-13-204 in the text of section 39-13-207,
the legislature intended for the Middlebrooks rationale to apply in non-capital felony
murder cases. Otherwise, according to the appellants, every defendant convicted of
felony murder would be sentenced to life imprisonment without the possibility of
parole. We disagree.
The appellants’ reading of sections 39-13-207 and 39-13-204 overlooks the
language in both statutes stating that a sentence of life imprisonment or life without
the possibility of parole shall be determined by a jury in its considered discretion. See
Tenn. Code Ann. §§ 39-13-207(c) and 39-13-204(f)(2). The jury is not required to per
se impose a sentence of life without the possibility of parole even if it finds an
aggravating circumstance proven beyond a reasonable doubt. The statutes require
the jury to consider mitigating circumstances and other evidence from trial before
determining the appropriate life sentence. A defendant convicted of felony murder,
therefore, will not necessarily be sentenced to life imprisonment without the possibility
of parole even when the felony murder aggravator is applicable to the case.
7 Both sections 39-13-207 and 39-13-204 are silent as to the use of an
aggravating circumstance when the aggravator duplicates an element of the offense.
We must therefore rely upon well-known principles of statutory construction to
determine the proper reading of those statutes.
The construction of a statute is a question of law which we review de novo,
without a presumption of correctness. Roseman v. Roseman, 890 S.W.2d 27, 29
(Tenn. 1994). Our role in that regard is to determine and to “give effect to the
legislative intent without unduly restricting or expanding a statute’s coverage beyond
its intended scope.” Carter v. State, 952 S.W.2d 417, 419 (Tenn. 1997); Owens v.
State, 908 S.W.2d 923, 926 (Tenn. 1995). Legislative intent must be ascertained from
the natural and ordinary meaning of the statutory language, “read in context of the
entire statute, without any forced or subtle construction which would extend or limit its
meaning.” State v. Davis, 940 S.W.2d 558, 561 (Tenn. 1997).
Keeping those caveats in mind, we address the specific language of section 39-
13-207 and its reference to section 39-13-204. Section 39-13-207(d) provides that
“[t]he jury shall be instructed that, in imposing sentence, it shall weigh and consider
the statutory aggravating circumstance or circumstances proven by the state beyond a
reasonable doubt and any mitigating circumstance or circumstances.” Subsection (c)
further provides that:
If the jury unanimously determines that the state has proven beyond a reasonable doubt one or more of the statutory aggravating circumstances set forth in [section] 39-13-204(i), the jury shall, in its considered discretion, sentence the defendant either to imprisonment for life without possibility of parole or imprisonment for life.
Tenn. Code Ann. § 39-13-207(c) (Supp. 1994).
8 Section 39-13-204(i) contains the exclusive list of aggravating circumstances
for first degree murder cases. Subsection (i) states that “[n]o death penalty or
sentence of imprisonment for life without the possibility of parole shall be imposed but
upon a unanimous finding that the state has proven beyond a reasonable doubt the
existence of one (1) or more of the statutory aggravating circumstances, which are
limited to the following ... .”
The above provisions set forth the strictures for considering aggravating
circumstances in first degree murder cases where the State seeks the penalty of life
imprisonment without the possibility of parole. The statutory text is unambiguous and
contains no restriction upon the use of an aggravating circumstance when the
aggravator duplicates an element of the offense. Accordingly, we do not accept the
argument that section 39-13-207 was intended to incorporate the rationale from
Middlebrooks. Such a holding would extend the meaning of the statute beyond its
actual text.
If the legislature had intended for section 39-13-207 to prohibit the use of an
aggravating circumstance when duplicative of an element of the offense, it could have
so provided in the text of the statute. Such language, for example, was included in
Tennessee Code Annotated section 40-35-114 (1989). Section 40-35-114, part of the
Sentencing Reform Act of 1989, governs the use of enhancement factors in criminal
sentencing and contains a list of statutory enhancers which may be relied upon if the
enhancers are not essential elements of the underlying offenses. Tenn. Code Ann. §
40-35-114 (Supp. 1994). That statute provides that “[i]f appropriate for the offense,
enhancement factors, if not themselves essential elements of the offense as charged
in the indictment, may include [the following].”
9 The appellants argue that section 40-35-114 reveals the legislature’s
disapproval of using an aggravating circumstance when the aggravator duplicates an
element of the offense. This contention, however, overlooks the unique sentencing
scheme established for first degree murder cases. “Because first degree murder is
punished by either life imprisonment8 or death, first degree murder is not punished
according to the sentencing structure provided in section 40-35-105 et seq.” Tenn.
Code Annotated section 39-11-117 (Sentencing Commission Comments).
Accordingly, the provisions in 40-35-114 have no bearing on the sentencing
procedures in first degree murder cases.
Moreover, in construing section 39-13-207, we must presume that the
legislature had knowledge of our decision in State v. Middlebrooks and the sentencing
guidelines in Tennessee Code Annotated section 40-35-114, when it enacted section
39-13-207 in 1993. See Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995). The
legislature, nevertheless, established the sentencing procedures in section 39-13-207
without any reference to Middlebrooks or section 40-35-114, and without any limitation
upon the use of aggravating circumstances in cases where the defendant is eligible for
life imprisonment without the possibility of parole.
CONCLUSION
Tennessee Code Annotated sections 39-13-207 and 39-13-204 provide the
exclusive sentencing scheme for first degree murder convictions. Having found
nothing in those statutes to prohibit the use of an aggravating circumstance when the
aggravator duplicates an element of the offense, we conclude that the appellants’
contention is without merit. The felony murder aggravator (i)(7) can be used to
8 The Sentencing Commission Comments to Tennessee Code Annotated section 39-11-117 (1989) w ere ado pted bef ore the e nactm ent of the p enalty of life im prisonm ent withou t parole.
10 enhance a sentence to life without the possibility of parole when the defendant is
convicted of felony murder.
The judgment of the Court of Criminal Appeals is affirmed and the case is
remanded to the trial court for further proceedings consistent with this opinion.
_____________________________ WILLIAM M. BARKER, JUSTICE
CONCUR:
Anderson, C.J. Drowota, Birch, Holder, JJ.