IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
AUGUST SESSION, 1997 FILED December 4, 1998
MICHAEL ANGELO COLEMAN, ) C.C.A. NO. 02C01-9611-CR-00395 ) Cecil Crowson, Jr.
Appellate C ourt Clerk
Appe llant, )
)
) SHELBY COUNTY
VS. )
) HON. JOE B. BROWN, JR.
STATE OF TENNESSEE, ) JUDGE )
Appellee. ) (Post-Conviction - First Degree ) Felony Murde r)
FOR THE APPELLANT: FOR THE APPELLEE:
MICHAEL J. PASSINO JOHN KNOX WALKUP 213 Fifth Avenu e, North Attorney General and Reporter Nashville, TN 37219 JOHN P. CAULEY
APRIL FERGUSON Assistant Attorney General Assistant Federal Defender 425 Fifth Avenu e, North 100 North Main Bldg. Nashville, TN. 37243 Suite 410 Memphis, TN 38103 WILLIAM L. GIBBONS District Attorney General
JOHN W . CAMPBELL
District Attorney General 201 Poplar Street
Memphis, TN 38103
OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE
OPINION
The appellant, Micha el Angelo C oleman, a ppeals the S helby County Criminal Cour t’s order de nying his s econd petition for p ost-con viction relief. In 1980, Appellant received a death sentence after he was convicted of first degree felony murd er. On appe al, he c laims that he is entitled to a new sentencing hearing due to th e jury’s erroneous reliance on the felony murder aggravating circumstance to support the imposition of the death pe nalty. See State v. Middlebro oks, 840 S.W .2d 317 (Tenn . 1992). A fter a thoro ugh revie w of the record, w e find no re versible err or and a ffirm the jud gmen t of the trial cou rt.
BACKGROUND
The proof at trial, as set out by our Supreme Court on direct appeal, was as follows:
Appellant and his codefendant were convicted of the killing of Leon Watson during a robbery, which occurred in Memphis, Tennessee, on May 2, 19 79. Th at mo rning, M r. W atson left his home to go to a nearby grocery store. He did not return. At about 10:00 p. m. Mrs. Watson was contacted by a representative of the Mem phis Police Department and was taken to view a white 1964 Buick automobile, which she identified as being that of her husband's. Blood was found on the seat and floor o f the automo bile, and a bullet was found in the left door.
Appellant and codefendant Bell were arrested about one hour later on another charge. The next mo rning, at ab out 5:15 a. m., both appellant and Bell were advis ed of their Miranda rights.
Appellant then told the officers of finding a body of a black man in a field near Third Street in Memphis. He directed officers to the scene where they found the body of Mr. Watson. Mr. Watson's empty billfold was on the ground near his bod y. Items from M r. W atson 's
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autom obile were strewn a round the bo dy, indica ting the autom obile had been ransacked before it was driven from the scene.
Appellant was advised again of his Miranda rights.
Thereafter, he confessed to shooting an d killing Mr. Wa tson in Mr.
Watson's automobile. He also admitted going through the victim 's billfold after the shooting, and stated he had re move d the C .B. rad io from the autom obile, but h ad dec ided no t to keep it.
Codefendant Bell, in his sta teme nt to the police and in his testimony at the trial, named appellant as the man who shot and killed Mr. Watson. He also testified that a pistol belonging to Mr.
Watson was taken after the shooting and that appellant had taken the gun to his grandmother's house.
State v. Coleman, 619 S.W.2d 112, 113-14 (Tenn. 1981). At the sentencing hearing followin g App ellant’s conviction, the jury found two (2) aggravating circums tances to be a pplica ble, na mely: (1 ) that the appe llant wa s previo usly convicted of one or more fe lonies invo lving violenc e, Tenn. Code Ann. § 39- 2404(I)(2) (Supp. 1977); and (2) the murder was committed while the appellant was enga ged in committing a robbery, Tenn. Code Ann. § 39-2404(I)(7) (Supp. 1977). 1 After finding no mitigating circumstances that would outweigh the aggravating ones, the jury imposed a sentence of death. Appellant’s conviction and death se ntence were affirmed b y the Te nness ee Sup reme C ourt. State v. Coleman, 619 S.W.2d at 116.
Subseq uently, Appellant filed his first petition for post-conviction relief alleging numerous constitutional errors, including an ineffective assistance of counsel claim. T he trial cou rt denied relie f, and th is Cou rt affirm ed on appe al. State v. Michael Angelo Coleman, C.C.A. No. 31, Shelby County (Tenn. Crim. App. filed June 28, 198 4, at Jack son). Permission to appeal was denied by the Tennessee Supreme Court on October 29, 1984.
1
These aggravating circumstances are presently codified at Tenn. Code Ann. §39-13-204(I)(2)
and (7).
4
Thereafter, the Tenn essee Su preme Court issued its opinion in State v.
Middlebrooks, which held th at whe n a de fenda nt is convicted of first degree murder “solely on the basis of felony murder, ” the felony murder aggravating circumstance “does not narrow the cla ss of d eath-e ligible m urder ers su fficiently under the Eighth Amendment to the U.S. Constitution, and Article I, § 16 of the Tennessee Constitution,” and as a result, that ag grava ting circ ums tance is unco nstitutio nally applied where the death penalty is imposed for first degree felony murder. 840 S.W.2d at 346.
In Ma y 1993 , Appe llant filed his second petition for post-con viction relief, claiming that his death sente nce s hould be overturned due to the Middlebrooks error at his sentencing hearing. Appellant raised various other issues and also requested the opportu nity to prese nt addition al mitigation proof. The trial court found that the Middlebrooks error was harmless and denied relief. The court also noted that the other issues, including that regarding ineffective assistance of counsel at trial, were b arred by th e statute o f limitations. From the trial c ourt’s ruling, A ppella nt bring s this ap peal.
MIDDLEBROOKS ERROR2
Appellant contends that he is entitled to a new sentencing hearing because of the unconstitutional reliance on the felony murder aggravating circumstance pursuant to State v. Middlebrooks, supra. He claims that a harmless error analys is is inappropriate in this case and further argues that he has an interest in having a jury, no t this Co urt, dete rmine his sen tence . Additionally, he urges
2 This issue is properly before this Court under Tenn. Code Ann. § 40-30-105 (1990), in that the holding in Middlebrooks is to be app lied retroac tively. Barbe r v. State , 889 S.W .2d 185, 187 (Tenn. 1994 ).
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this Court to a llow him to presen t additional m itigation eviden ce to s uppo rt his claim that the Middlebrooks error was not harmless.
A.
It is undisputed in this case that a Middlebrooks error occurred at Appe llant’s sentencing hearin g. Bec ause Appe llant wa s con victed “s olely on the basis of felony murder,” the jury’s consideration of the felony murder aggravating circum stance in senten cing wa s constitu tionally invalid. State v. Middlebrooks, 840 S.W.2d at 346.
Howeve r, this does not end this Court’s analysis. In State v. How ell, 868 S.W.2d 238 (Tenn. 1993), the Supreme Court held that a harmless error a nalysis is appro priate in determ ining wheth er resen tencing is required as a resu lt of a Middlebrooks error. A capital senten cing jury’s considera tion of an invalid aggravating circumstance may be considered harmless only if the appellate cou rt concludes, beyond a reasonable doubt, “that the sentence would have been the same had the sentencing authority given no weight to the invalid aggravating factor.” State v. How ell, 868 S.W.2d at 260 (citing Stringer v. Black, 503 U.S. 222, 230, 11 2 S.Ct. 1 130, 11 37, 117 L.Ed.2d 367 (19 92)). In mak ing this determination, the appellate court should consider “the number and strength of remaining valid aggra vating circu mstan ces, the p rosecu tor's argum ent at sentencing, the evid ence adm itted to e stablis h the in valid aggra vator, and the nature, quality and s trength of mitigating e vidence.” Id. at 261.
Apply ing a How ell analysis to the case sub judice, we begin with the number and strength of the remaining valid aggravating circums tances . The sole remaining aggravating circumstance upon which the jury relied was that Appellant had previous convictions of felonies involving the use of violence. Tenn. Code Ann. § 39-2404(I)(2) (Supp. 1977) (c urrently T enn. C ode An n. § 39-13-204 (I)(2)).
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Appellant had six (6) prior violent felony conv ictions, including three (3 ) jury convictions for assault with intent to commit murder in the first degree, one (1) jury convic tion for assault with intent to commit robbery with a deadly weapon, one (1) jury conviction for robbery with a deadly we apon and one (1) jury conviction for kidnapping. The How ell court recognized that the number of remaining aggravating factors was not as impo rtant as “the qualitative nature of each circum stanc e, its su bstan ce an d pers uasive ness , as we ll as the quantum of proof suppo rting it.” How ell at 261. Fu rthermo re, the Co urt noted tha t the remaining valid ag grava ting circ ums tance in this ca se, prio r felony convic tions involving violence, is by its very nature “more qualitatively persuasive and objec tively reliable than others.” Id. Moreo ver, the qualitative nature of the aggravating circumstance increases with the number of prior violent felony convic tions. Id. Six prior violent felony convictions makes this remaining aggravating factor strong indeed.
Secondly, with regard to the prosecution’s argument at sentencing, the record revea ls that th e pros ecuto r did no t overly e mph asize the inva lid felony murder aggra vating c ircum stanc e in his closing argum ent at sen tencing. In fact, out of approximately thirteen (13) pages of the prosecution’s argument at closing, this aggravating circumstance was men tioned only once. The remainder of the state’s argument focused primarily on Appellant’s prior violent felony convictions.
Additionally, the state produced no additional evid ence a t sentenc ing to support the invalid felony m urder aggra vating c ircum stanc e. The state m erely relied upon the evidence produced during the guilt ph ase of the trial. In How ell, the Court observed:
[e]ven though the jury cannot weigh the invalid aggravating factor against any m itigating factors, the jury can properly consider evidence of the circumstances of the crime and the character of the
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defendant in making an individualized determination of whether the death sentence is justified. . . In that respect, an aggravating factor which duplicates the elements of the underlying crime has less relative tendency to prejudicially affect the sentence imposed than invalid aggravating factors which interject inadmissible evidence into the sentencing calculus, or which require the sen tencing jury to draw additional conclusions from the guilt phase evidence.
Id. at 261 (citations om itted).
Finally, there was very little mitigating evidence presented on Ap pellan t’s beha lf at sentencing . There was testimony indicating that Appellant had an unsta ble family life and difficulties in school. However, the psychological testimony merely showed that Appellant was competent to stand trial and was not legally insa ne.
W e find this case to be closely an alogou s with the re cent cas e of State v.
Boyd, 959 S.W.2d 557 (Tenn. 1998), wherein the Supreme Court upheld the defen dant’s death sentence after finding a Middlebrooks error. In that case, the jury found the same two (2) aggravating circumstances to support the imposition of the death penalty as the jury did in this case. After finding a Middlebrooks error, the Boyd court con ducted a harm less error a nalysis pu rsuant to How ell. 959 S.W .2d at 560 -62. Th e Cou rt noted that the defendant in Boyd had one previous conviction for seco nd degree murder, a violen t felony. Id. at 561. In the present case, the appellant had six (6) prior violent felony convictions. Furthermore, as in this case, the pro secu tion’s a rgum ent on the inva lid aggravating factor was limited, and the state presented no additional evidence in support of that factor at the senten cing hea ring. Id. at 561-62. Mo reover, there was little mitigating e vidence presen ted on b ehalf of the defend ant in the Boyd case. Id. at 562.
After cons idering all of the How ell factors in con junctio n with th e ana lysis in Boyd, we conclude b eyond a rea sonable do ubt that the sente nce would h ave
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been the same had the jury not cons idered the inva lid agg ravatin g facto r. This issue is w ithout me rit.
B.
In conn ection with his argument that harm less error re view is inap propriate in this case, Appellant further asserts that he has a state-created liberty interest in havin g a jury de termine whethe r he sho uld receive the dea th pena lty. In support of this argum ent, he cite s the cas e of Rickman v. Dutton, 854 F.Supp. 1305 (M.D. Ten n. 1994). Howe ver, in State v. Boyd , the defendant made the identical argument as that raised by Appellant. The Supreme Court rejected the defendant’s argument, stating:
[t]he case cited by the defendant in support of his argument, Rickman v. Dutton, 854 F.Supp. 1305 (M.D. Tenn. 1994), how ever, recognizes that even if a due process liberty interest exists on the basis of these statutory provisions, constitutional harmless error analys is is not precluded. We , therefore, disagree with the defen dant's assertion that these statutory provisions preclude appellate review of th e sente nce. Moreover, the United States Supreme Court has re peatedly held that constitutional harmless error analysis is appropriate in this context, provided that it preserves the constitutional requirement of individualized sentencing. See, e.g., Stringer v. Black, 503 U.S . at 232, 11 2 S.Ct.
at 1137-3 8 (1992 ); Clemons v. Mississippi, [494 U.S. 738, 753, 110 S.Ct. 14 41, 145 0-51, 10 8 L.Ed.2 d 725 (1 990)].
Id. at 562-63.
This issu e has n o merit.
C.
Appellant also makes a novel argument that this Co urt shou ld allow him to present additional mitigation evidence to support his allegation that the Middlebrooks error was not harmless. He claims that his trial attorney failed to present adequate mitigating evidence during the sentencing hearing. He contends that if this Court were to consider all of the possible mitigation evidence
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that was not presented to the jury, then we could not conclude that the error was harmless.
It appears that Appella nt is attem pting to relitiga te his claim of ineffective assistance of trial counsel. Appellant contended that trial counsel was ineffective in his failure to prese nt ade quate mitiga tion evid ence in the first petition for post- conviction relief, and this Court concluded that trial counsel was competent in that respect. State v. Michael Angelo Coleman, C.C.A. N o. 31, slip op . at 23. As such, this issue has been “previously determined” by a court of competent jurisdiction and may not be presented again. See Tenn. Code Ann. § 40-30- 112(a) (199 0).
Nonetheless, this Court conducts harmless error review on the record as it is presented to us. We are not at liberty to consider extraneous information not presented at trial to determine if the error was, in fact, harmless. We must review cases as they are, not as they might have been.
This issu e is withou t merit.
OTHER ISSUES
Finally, Appellant assigns as error the trial court’s dismissal of numerous other issues on the basis th at they a re barr ed by th e statu te of lim itations. Specifically, the app ellant claim s that trial cou nsel failed to prope rly investigate and present mitigating evidence at trial. He also contend s that the trial court erred in refus ing his reque st for inve stigative assista nce a nd in refusing to allow trial counsel to introduce relevant mitigation eviden ce. He further allege s that h is right to seek expe rt and in vestiga tive ass istanc e was not rec ogniz ed un til 1995
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when the Supreme Court issued its opinion in Owens v. State, 908 S.W.2d 923 (Tenn. 1995); therefore, this claim cannot be barred by the statute of limitations.
Initially, we note that Appellant’s claims regarding trial couns el’s failure to investigate could have been presented in his prior petition for post-conviction relief, but were not. As such, they are waived. Tenn. Code Ann. § 40-30-112(b) (1990). The sam e is true with regard to th e alleged trial errors. Th ese issues a re waived for failure to present them in a prior proceeding.3 Tenn . Code Ann. § 40- 30-112(b) (1990). More over, a s we h ave pr evious ly noted , Appe llant’s cla im that trial couns el was ine ffective in failing to presen t mitigation evidence was “previo usly determ ined” in his first petition for p ost-con viction relief. Tenn. Code Ann. § 40-30-1 12(a) (19 90). Additionally, we agree with the trial court that these issues are barred by the three (3) year statute of limitatio ns. Tenn. Code Ann. § 40-30-1 02; see Abston v. State, 749 S.W.2d 487, 488 (Tenn. Crim . App. 1988 ).
Appellant also claims that his right to seek expert and investigative assistance was not recognized until the Supreme Court issue d its op inion in Owens v. State, supra. However, in Owens, the Court recognized that indigent defendants have a statutory right to inves tigative and expert se rvices in a p ost- conviction capital cas es. 908 S.W .2d at 9 29. Po st-con viction re lief is only availab le when the conviction or sentence is void or voidable due to the abridgement of a constitutional right. Tenn. Co de Ann. § 4 0-30-105 (1 990). Therefore, the right recognized in Owens is not cognizable in a post-conviction procee ding an d this issue is not prop erly before this Cou rt.
3 Trial counsel raised the issue of the trial court’s failure to allow investigative assistance in the mo tion fo r new trial. H owe ver, th e issu e wa s not purs ued on ap pea l.
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CONCLUSION
W e conclud e that the a ppellant w ould ha ve receive d the same sentence had the jury not considered the invalid felony murder aggravating circumstance. Furthermore, the remainder of Appellant’s issues have been either waived, previo usly determ ined, bar red by the statute of limitatio ns or a re not c ogniz able in a post-co nviction pe tition. Acco rdingly, the ju dgme nt of the trial court is affirmed.
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JERRY L. SMITH, JUDGE
CONCUR:
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DAVID G. HAYES, JUDGE
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THOMAS T. WOODALL, JUDGE