IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED January 22, 1998
Cecil Crowson, Jr. ROBERT GLEN COE, ) Appellate C ourt Clerk ) NO. 02C01-9606-CR-00200 Appellant, ) ) SHELBY COUNTY VS. ) ) HON. JOHN P. COLTON, STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post Conviction-Death Penalty)
ON REMAND FROM THE SUPREME COURT OF TENNESSEE
FOR THE APPELLANT: FOR THE APPELLEE:
ROBERT C. IRBY JOHN KNOX WALKUP 4345 Mallory Avenue East Attorney General and Reporter Memphis, TN 38111-7836 JOHN P. CAULEY Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493
WILLIAM L. GIBBONS District Attorney General
JOHN W. CAMPBELL Assistant District Attorney General 201 Poplar Avenue, 3rd Floor Memphis, TN 38103-1947
OPINION FILED:
AFFIRMED
JOE G. RILEY, JUDGE OPINION
In this death penalty post-conviction matter this Court on March 4, 1997,
entered a Rule 20 Order affirming the trial court’s dismissal of Coe’s third petition
for post-conviction relief.1 The Supreme Court of Tennessee subsequently
remanded the case back to this Court in light of James David Carter v. State, ___
S.W.2d ___ (Tenn. 1997), and State v. Middlebrooks, 840 S.W.2d 317 (Tenn.
1992). We again affirm the trial court’s dismissal of the petition.
PROCEDURAL HISTORY
Coe was found guilty of first degree murder, aggravated rape and aggravated
kidnapping in 1981. The Tennessee Supreme Court affirmed the convictions and
sentences in 1983.2 A petition for writ of certiorari to the United States Supreme
Court was denied in 1984.3
His first petition for post-conviction relief was filed in 1984. The dismissal of
that petition was affirmed by this Court in 1986. Robert Glen Coe v. State, C.C.A.
No. 15, Shelby County (Tenn. Crim. App. filed December 23, 1986, at Jackson).
In 1987 Coe filed a petition for writ of habeas corpus in the United States District
Court for the Middle District of Tennessee. That petition was dismissed without
prejudice in March 1989 for failure to exhaust state remedies.
In May 1989 Coe filed a second petition for post-conviction relief which was
denied by the trial court in November 1989. The denial was affirmed by this Court
in January 1991. Robert Glen Coe v. State, C.C.A. No. 138, Shelby County (Tenn.
Crim. App. filed January 16, 1991, at Jackson). The Tennessee Supreme Court
denied permission to appeal in November 1991.
In February 1992 Coe filed his second federal petition for writ of habeas
1 Robert Glen Coe v. State, C.C.A. No. 02C01-9606-CR-00200, Shelby County (Tenn. Crim. App. filed March 4, 1997, at Jackson). 2 State v. Coe, 655 S.W.2d 903 (Tenn. 1983). 3 Coe v. Tennessee, 464 U. S. 1063, 104 S.Ct. 745, 79 L.Ed.2d 203 (1984).
2 corpus in the United States District Court for the Middle District of Tennessee.
While the federal writ of habeas corpus was pending, Coe filed this, his third petition
for post-conviction relief, on February 21, 1995. On January 2, 1996, the trial court
dismissed the subject petition for post-conviction relief finding that all claims were
time-barred or waived. It is this dismissal that is the subject of the current appeal.
On November 27, 1996, the United States District Court vacated all of Coe’s
convictions and sentences.4 The matter is presently on appeal in the Sixth Circuit
of the United States Court of Appeals.
By order issued pursuant to Tennessee Court of Criminal Appeals Rule 20
and entered on March 4, 1997, this Court affirmed the trial court’s dismissal of
Coe’s third petition for post-conviction relief. Seventeen (17) issues were presented
for our review, and we found all issues either to have been untimely raised,
“previously determined,” “waived,” and/or to be without merit. One of the issues was
whether the use of the felony murder aggravating circumstance rendered Coe’s
death penalty unconstitutional. This Court concluded that issue had been
“previously determined” by the United States District Court for the Middle District of
Tennessee. Furthermore, the Court found the felony murder aggravating
circumstance was constitutionally applied since there “was adequate proof of
premeditation beyond a reasonable doubt to sustain a conviction for common law
murder.” Robert Glen Coe v. State, slip op. at 4.
Coe applied for permission to appeal to the Supreme Court of Tennessee.
By order entered December 15, 1997, the Supreme Court granted permission to
appeal “for the purpose of remanding the case to the Court of Criminal Appeals for
consideration in light of our opinion in James David Carter v. State, ___ S.W.2d ___
(Tenn. 1997) (filed October 20, 1997), and State v. Middlebrooks, 840 S.W.2d 317
(Tenn. 1992).”
It is the December 15, 1997, order of remand that prompts this opinion.
4 Robert Glen Coe v. Ricky Bell, No. 3:92-0180 (M. D. Tenn. filed November 27, 1996, at Nashville).
3 ANALYSIS OF CARTER V. STATE
The issue in Carter v. State relevant to this appeal is whether a Middlebrooks
claim can be “previously determined” by a federal district court since it revolves
solely around a state law issue. ___ S.W.2d at ___. Carter held that a federal
district court is not a “court of competent jurisdiction” to resolve this issue; therefore,
the federal district court’s disposition of this issue may not be considered by our
state court as having been “previously determined.” Id. at ___. Since we concluded
that Coe’s Middlebrooks issue had been previously determined by the federal
district court, this issue must be re-visited.
APPLICATION OF CARTER TO THIS CASE
Even though Carter found that the federal district court was not a court of
competent jurisdiction to consider a Middlebrooks claim, the Court ultimately ruled
that the felony murder aggravating circumstance could properly serve as a basis to
support the death penalty when the jury returns a general verdict of guilty of first
degree murder. ___ S.W.2d at ___. In Carter the defendant was tried on a one
count indictment charging both premeditated and felony first degree murder. The
Court found that the jury’s verdict finding the defendant guilty of the offense charged
constituted a finding of both premeditated and felony first degree murder. Id. at
___. The court concluded that the lack of narrowing resulting from duplication is not
present when a jury convicts a defendant of first degree murder upon a single count
indictment charging both premeditated murder and felony murder. Id.
Coe’s indictment and conviction were comparable to the indictment and
conviction in Carter. As was noted by the Tennessee Supreme Court in Coe’s
direct appeal of his original conviction, the first count of the indictment charged Coe
with both common-law premeditated murder and felony murder, and the jury
returned a general verdict of guilty. State v. Coe, 655 S.W.2d at 911-912. In fact,
the Carter opinion cited the Coe opinion in finding no constitutional or statutory
4 prohibition against a jury rendering a general verdict of guilty of first degree murder
where both premeditated murder and felony murder are charged and submitted to
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED January 22, 1998
Cecil Crowson, Jr. ROBERT GLEN COE, ) Appellate C ourt Clerk ) NO. 02C01-9606-CR-00200 Appellant, ) ) SHELBY COUNTY VS. ) ) HON. JOHN P. COLTON, STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post Conviction-Death Penalty)
ON REMAND FROM THE SUPREME COURT OF TENNESSEE
FOR THE APPELLANT: FOR THE APPELLEE:
ROBERT C. IRBY JOHN KNOX WALKUP 4345 Mallory Avenue East Attorney General and Reporter Memphis, TN 38111-7836 JOHN P. CAULEY Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493
WILLIAM L. GIBBONS District Attorney General
JOHN W. CAMPBELL Assistant District Attorney General 201 Poplar Avenue, 3rd Floor Memphis, TN 38103-1947
OPINION FILED:
AFFIRMED
JOE G. RILEY, JUDGE OPINION
In this death penalty post-conviction matter this Court on March 4, 1997,
entered a Rule 20 Order affirming the trial court’s dismissal of Coe’s third petition
for post-conviction relief.1 The Supreme Court of Tennessee subsequently
remanded the case back to this Court in light of James David Carter v. State, ___
S.W.2d ___ (Tenn. 1997), and State v. Middlebrooks, 840 S.W.2d 317 (Tenn.
1992). We again affirm the trial court’s dismissal of the petition.
PROCEDURAL HISTORY
Coe was found guilty of first degree murder, aggravated rape and aggravated
kidnapping in 1981. The Tennessee Supreme Court affirmed the convictions and
sentences in 1983.2 A petition for writ of certiorari to the United States Supreme
Court was denied in 1984.3
His first petition for post-conviction relief was filed in 1984. The dismissal of
that petition was affirmed by this Court in 1986. Robert Glen Coe v. State, C.C.A.
No. 15, Shelby County (Tenn. Crim. App. filed December 23, 1986, at Jackson).
In 1987 Coe filed a petition for writ of habeas corpus in the United States District
Court for the Middle District of Tennessee. That petition was dismissed without
prejudice in March 1989 for failure to exhaust state remedies.
In May 1989 Coe filed a second petition for post-conviction relief which was
denied by the trial court in November 1989. The denial was affirmed by this Court
in January 1991. Robert Glen Coe v. State, C.C.A. No. 138, Shelby County (Tenn.
Crim. App. filed January 16, 1991, at Jackson). The Tennessee Supreme Court
denied permission to appeal in November 1991.
In February 1992 Coe filed his second federal petition for writ of habeas
1 Robert Glen Coe v. State, C.C.A. No. 02C01-9606-CR-00200, Shelby County (Tenn. Crim. App. filed March 4, 1997, at Jackson). 2 State v. Coe, 655 S.W.2d 903 (Tenn. 1983). 3 Coe v. Tennessee, 464 U. S. 1063, 104 S.Ct. 745, 79 L.Ed.2d 203 (1984).
2 corpus in the United States District Court for the Middle District of Tennessee.
While the federal writ of habeas corpus was pending, Coe filed this, his third petition
for post-conviction relief, on February 21, 1995. On January 2, 1996, the trial court
dismissed the subject petition for post-conviction relief finding that all claims were
time-barred or waived. It is this dismissal that is the subject of the current appeal.
On November 27, 1996, the United States District Court vacated all of Coe’s
convictions and sentences.4 The matter is presently on appeal in the Sixth Circuit
of the United States Court of Appeals.
By order issued pursuant to Tennessee Court of Criminal Appeals Rule 20
and entered on March 4, 1997, this Court affirmed the trial court’s dismissal of
Coe’s third petition for post-conviction relief. Seventeen (17) issues were presented
for our review, and we found all issues either to have been untimely raised,
“previously determined,” “waived,” and/or to be without merit. One of the issues was
whether the use of the felony murder aggravating circumstance rendered Coe’s
death penalty unconstitutional. This Court concluded that issue had been
“previously determined” by the United States District Court for the Middle District of
Tennessee. Furthermore, the Court found the felony murder aggravating
circumstance was constitutionally applied since there “was adequate proof of
premeditation beyond a reasonable doubt to sustain a conviction for common law
murder.” Robert Glen Coe v. State, slip op. at 4.
Coe applied for permission to appeal to the Supreme Court of Tennessee.
By order entered December 15, 1997, the Supreme Court granted permission to
appeal “for the purpose of remanding the case to the Court of Criminal Appeals for
consideration in light of our opinion in James David Carter v. State, ___ S.W.2d ___
(Tenn. 1997) (filed October 20, 1997), and State v. Middlebrooks, 840 S.W.2d 317
(Tenn. 1992).”
It is the December 15, 1997, order of remand that prompts this opinion.
4 Robert Glen Coe v. Ricky Bell, No. 3:92-0180 (M. D. Tenn. filed November 27, 1996, at Nashville).
3 ANALYSIS OF CARTER V. STATE
The issue in Carter v. State relevant to this appeal is whether a Middlebrooks
claim can be “previously determined” by a federal district court since it revolves
solely around a state law issue. ___ S.W.2d at ___. Carter held that a federal
district court is not a “court of competent jurisdiction” to resolve this issue; therefore,
the federal district court’s disposition of this issue may not be considered by our
state court as having been “previously determined.” Id. at ___. Since we concluded
that Coe’s Middlebrooks issue had been previously determined by the federal
district court, this issue must be re-visited.
APPLICATION OF CARTER TO THIS CASE
Even though Carter found that the federal district court was not a court of
competent jurisdiction to consider a Middlebrooks claim, the Court ultimately ruled
that the felony murder aggravating circumstance could properly serve as a basis to
support the death penalty when the jury returns a general verdict of guilty of first
degree murder. ___ S.W.2d at ___. In Carter the defendant was tried on a one
count indictment charging both premeditated and felony first degree murder. The
Court found that the jury’s verdict finding the defendant guilty of the offense charged
constituted a finding of both premeditated and felony first degree murder. Id. at
___. The court concluded that the lack of narrowing resulting from duplication is not
present when a jury convicts a defendant of first degree murder upon a single count
indictment charging both premeditated murder and felony murder. Id.
Coe’s indictment and conviction were comparable to the indictment and
conviction in Carter. As was noted by the Tennessee Supreme Court in Coe’s
direct appeal of his original conviction, the first count of the indictment charged Coe
with both common-law premeditated murder and felony murder, and the jury
returned a general verdict of guilty. State v. Coe, 655 S.W.2d at 911-912. In fact,
the Carter opinion cited the Coe opinion in finding no constitutional or statutory
4 prohibition against a jury rendering a general verdict of guilty of first degree murder
where both premeditated murder and felony murder are charged and submitted to
the jury. ___ S.W.2d at ___.
We find the Carter holding to be directly controlling as to Coe’s Middlebrooks
issue. Therefore, the felony murder aggravating circumstance was properly applied
since Coe was convicted of first degree murder based upon a count in the
indictment charging both premeditated murder and felony murder.5
HARMLESS ERROR ANALYSIS
Even if the felony murder aggravating circumstance was in violation of
Middlebrooks, it would still be subject to a harmless error analysis. A Middlebrooks
error does not require a resentencing hearing if the reviewing court concludes
“beyond a reasonable doubt that the sentence would have been the same had the
jury given no weight to the invalid felony murder aggravating factor.” State v.
Howell, 868 S.W.2d 238, 262 (Tenn. 1993), cert. denied, 510 U.S. 1215 (1994).
This harmless error analysis was recently applied by the Supreme Court of
Tennessee in State v. Boyd, ___ S.W.2d ___ (Tenn. 1998).
In addition to the aggravating circumstance of felony murder, the jury found
in Coe’s original trial the following additional aggravating circumstances:
(1) The murder was committed against a person less than twelve (12) years of age, and the defendant was over eighteen (18) years of age;
(2) The murder was especially heinous, atrocious or cruel in that it involved torture or depravity of mind; and
(3) The murder was committed for the purpose of avoiding prosecution of the defendant.
State v. Coe, 655 S.W.2d at 905.
We need not reiterate the gruesome facts of this homicide. See State v.
Coe, 655 S.W.2d at 905-908. We have, however, conducted a harmless error
5 We also note, as we did in our original opinion, that the Tennessee Supreme Court found adequate proof of premeditation beyond a reasonable doubt to sustain Coe’s conviction for common-law premeditated murder. See State v. Coe, 655 S.W.2d at 912.
5 analysis under the framework of Howell as amplified by Boyd. Unquestionably, we
are convinced the jury would have reached the same verdict as to the death penalty
if the felony murder aggravating circumstance had not been charged. We,
therefore, conclude that even if the felony murder aggravating circumstance was
erroneously charged, it was harmless beyond a reasonable doubt.
OTHER ISSUES
We have again examined the other issues raised by Coe in this appeal. For
the same reasons cited in our original opinion, we find Coe is not entitled to any
relief.
CONCLUSION
The judgment of the trial court dismissing Coe’s third post-conviction relief
petition is AFFIRMED.
The sentence of death by electrocution shall be carried out as provided by
law on May 15, 1998, unless the sentence has been or is stayed by an appropriate
order of a federal court or the Tennessee Supreme Court.
_____________________________ JOE G. RILEY, JUDGE
CONCUR:
_______________________________ JOE B. JONES, PRESIDING JUDGE
______________________________ JOHN H. PEAY, JUDGE