# State v. Middlebrooks

> Tennessee Supreme Court · September 8, 1992 · 840 S.W.2d 317

URL: https://www.frixlaw.com/law-library/cases/9665417

## Case

- **Full name:** STATE of Tennessee, Plaintiff/Appellee, v. Donald Ray MIDDLEBROOKS, Defendant/Appellant
- **Court:** Tennessee Supreme Court
- **Decided:** September 8, 1992
- **Citations:** 840 S.W.2d 317; 1992 Tenn. LEXIS 563
- **Precedential status:** Published
- **Opinion:** Concurring in part by Reid
- **Judges:** Anderson, Drowota, O'Brien, See, Reid, Daughtrey
- **Cited by:** 436 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by State v. Stout, 2001 Tenn. LEXIS 461 (2001).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9665417

## How later opinions describe it (automated extraction)

- holding that the defendant made a plausible case that records from a psychiatric hospital might be relevant in determining the veracity of a witness’s testimony because the records "pertained to the mental instability of a witness that existed within a reasonable time before t…
- stating that trial court erred in denying defendant access to confidential medical records without first conducting an in camera review “to determine what, if any, probative information they contained.”
- stating defendant “who is a willing and active participant in a robbery becomes accountable for all the consequences flowing from the robbery and may be convicted of first- degree murder where a co-perpetrator of the felony is the actual killer”
- holding that the trial court correctly admitted “testimony about the defendant’s statement evidencing his dislike for blacks under the state of mind exception to the hearsay rule”
- holding the district court’s refusal to order production of privileged records was harmless because the records “had little relevance to [the witness’s] credibility or the probative value of his testimony”

## Opinion text

REID, Chief Justice,
concurring and dissenting.
I concur in Part I of the majority Opinion affirming the conviction of first degree murder.
My position with regard to Part II is that even if the death penalty is not per se cruel and unusual punishment prohibited by Article I, Section 16 of the Tennessee Constitution, the imposition of death upon a conviction of felony murder is not a single constitutional issue that can be resolved “in the abstract”; Article I, Section 16 imposes a standard of proof higher than the federal standard of reckless indifference; and, therefore, T.C.A. § 39-2-203 (1982), as construed in the majority Opinion violates Article I, Section 16.
I concur in Part III of the majority Opinion’s holding that the use of felony murder as an aggravating circumstance when the offense of which the defendant is convicted is felony murder does not accomplish the constitutional objective of narrowing the class of death-eligible murderers, and therefore T.C.A. § 39 — 13—204(i)(7) is constitutionally invalid.
This holding based on Article I, Section 16 of the Tennessee Constitution is a step toward limiting the jury’s discretion in imposing capital punishment to a “demonstrably smaller and more blameworthy” class of murderers. Maynard v. Cartwright, 486 U.S. 356 , 108 S.Ct. 1853 , 100 L.Ed.2d 372 (1988). However, even with the felony murder aggravating circumstance eliminated, the Tennessee sentencing statute still includes in the class of death-eligible defendants accidental and unintentional murderers whose culpability is minimal. It still allows convictions for first degree felony murder of persons who killed accidentally or unintentionally and those who did not kill, did not intend to kill and did not intend that any person suffer any physical harm. The statute still does not effectively limit the class of death-eligible defendants (which is a group different from those actually executed) to those most deserving of death as punishment and, therefore, it violates the Tennessee constitutional prohibition against cruel and unusual punishment. Consequently, the statute falls short of the constitutional mandate that the death penalty be imposed upon only those murderers who are the “worst of the bad.”
The evil identified by the United States Supreme Court cases construing and implementing the Eighth Amendment prohibition against cruel and unusual punishment is not the death penalty itself but, as discussed in the majority Opinion, the random, arbitrary, capricious, and discriminatory *351 application of the death penalty. So long as a state under its law elects to impose the death penalty, the United States Constitution mandates fairness and proportionality in the imposition. The procedure followed by a state must, as stated in Lowenfield v. Phelps, 484 U.S. 231 , 108 S.Ct. 546, 554 (quoting Zant v. Stephens, 462 U.S. 862 , 103 S.Ct. 2733 , 77 L.Ed.2d 235 (1983)), “genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” The constitutional objective is that the sentence imposed “reflect a reasoned moral response to the defendant’s background, character, and crime.” Penry v. Lynaugh, 492 U.S. 302, 318 , 109 S.Ct. 2934, 2947 , 106 L.Ed.2d 256 (quoting California v. Brown, 479 U.S. 538, 545 , 107 S.Ct. 837, 841 , 93 L.Ed.2d 934 (1987)) (concurring opinion) (emphasis in original).
The United States Supreme Court has recognized that this “reasoned moral response” is determined by “the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 99 , 78 S.Ct. 590, 597 , 2 L.Ed.2d 630 (1958). See State v. Black, 815 S.W.2d 166, 188 (Tenn.1991). The standards of decency are reflections of the essential character of the people of the state, their virtues, their faults. To be constitutional, the process must insure the effective application of society’s present standards of decency. Implicit in death penalty jurisprudence is the recognition that the standards of decency are not static but evolving, that society is not stale but maturing, and that the level of community morality will continue to rise until the reasoned moral response of the people of Tennessee will be, if it is not already, that the death penalty is cruel and unusual punishment. Until that standard is recognized, the focus must be on fairness and proportionality among those that the process allows to be executed.
The process whereby the death penalty may be imposed in Tennessee consists of three stages — the determination that the defendant is not in a category of murderers upon whom the death penalty may not be imposed regardless of the other circumstances of the case; the minimum proof regarding the defendant and the crime that will support a jury’s imposition of the death penalty; and the comparative proportionality review on appeal mandated by statute.
Certain categories of defendants are not subject to the death penalty regardless of the circumstances of the murder. T.C.A. § 39-13-204 limits the imposition of the death penalty to the offense of first degree murder. T.C.A. § 39-13-203 prohibits the imposition of a sentence of death upon any mentally retarded defendant. T.C.A. § 37-l-134-(a)(l)(A) protects juveniles from the sentence of death. This decision adds to those categories in which the defendant is not death-eligible: those charged only with felony murder with felony murder as the only aggravating circumstance.
The second stage is the jury trial. Juries may impose the death penalty only upon those defendants who are members of the class of death eligibles. In cases in which the defendant is not in a category exempt from the sentence of death, the minimum standards for determining whether a sentence of death may be constitutionally imposed for felony murder under the federal constitution are those set by the United States Supreme Court in Enmund v. Florida, 458 U.S. 782 , 102 S.Ct. 3368 , 73 L.Ed.2d 1140 (1982), and Tison v. Arizona, 481 U.S. 137 , 107 S.Ct. 1676 , 95 L.Ed.2d 127 (1987). Those cases dealt with the problem of imposing the death penalty in cases of vicarious liability for felony murder, i.e., where an accomplice in the felony, one who did not actually kill the victim, is convicted of murder under the felony murder doctrine and receives the death penalty. Under the rules of those cases the death penalty is only permissible under the Eighth and Fourteenth Amendments for one who himself kills, attempts to kill, or intends that a killing take place or that lethal force will be imposed (Enmund), or for one whose personal involvement in the underlying felony is substantial and who exhibits a reckless disregard or indifference to the value of human life (Tison).
*352 As discussed in the majority Opinion, Tennessee does not narrow the death-eligible class by the statutory definition of first-degree felony murder. Under the Tennessee felony statute, proof of malice, deliberation, and premeditation, or that the defendant intended to kill the victim, is not necessary to support a death sentence. State v. Johnson, 661 S.W.2d 854, 861 (Tenn.1983); Farmer v. State, 201 Tenn. 107 , 296 S.W.2d 879 (1956); State v. Hopper, 695 S.W.2d 530, 535 (Tenn.Crim.App.1985); Tosh v. State, 527 S.W.2d 146, 147-48 (Tenn.Crim.App.1975). Consequently, there are included in the class of death-eligible felony murderers those who killed accidentally or unintentionally and those who did not kill, did not intend to kill, and did not intend that any person suffer physical harm. Since the felony murder statute by definition does not narrow the class of death-eligible defendants, narrowing must be accomplished, if at all, at the sentencing phase of the trial when the jury, pursuant to T.C.A. § 39 — 13—204(i), (j), considers the relevant aggravating and mitigating circumstances.
The majority Opinion presents a compelling case for its conclusion that to be constitutional a sentencing process must insure that only those defendants “most deserving” will be executed. It states that in selecting those defendants to be executed the over-reaching goal is to insure that those chosen be in some way worse or materially more depraved than those other first degree murderers not executed. See majority Opinion at 343. The Opinion recognizes that in order to pass constitutional muster the procedure “first must narrow” the class of death-eligible defendants to insure that those executed “will be among the worst offenders,” and, further, acknowledges that the reckless indifference standard accomplishes no meaningful limitation on the class of defendants eligible for the death penalty. However, rather than stating the quantum of proof required by the constitution to genuinely narrow the class of death eligibles and thus support a jury verdict imposing the death sentence, it invalidates as unconstitutional only that section of the statute that allows felony murder as an aggravating circumstance for the conviction of felony murder. The rationale is that “T.C.A. §§ 39-2-203(i)(7) (1982) and 39-13-204(i)(7) (1991) do not narrow the class of death-eligible murderers sufficiently under the Eighth Amendment to the U.S. Constitution and Article I, Section 16 of the Tennessee Constitution because they duplicate the elements of the offense.” Id. at 346. It should be noted that the constitutional deficiency is that the aggravating circumstance does not narrow the class, not that it duplicates the elements of the offense. Justice Drowota’s dissent misses this essential point, stating, “There is no constitutional prohibition against using an element of the offense as an aggravating circumstance.” Drowota, J., dissenting at 348. The result then is illogical: an aggravating circumstance that fails to narrow the class because it duplicates the elements of the offense is unconstitutional, but aggravating circumstances that fail to narrow the class for other reasons are not unconstitutional. The logical conclusion from the majority Opinion’s analysis would be that any provision of the statute that fails to accomplish the constitutional imperative to narrow the class is invalid.
The Opinion acknowledges that the felony murder doctrine has been severely criticized as being harsh and unjust and that in most jurisdictions in which felony murder has not been abolished, the death penalty can be imposed only where killings perpetuated during felonies are intentional, deliberate, purposeful, or knowing. Id. at 337. The Opinion, however, finds that death as a penalty for felony murder conforms with contemporary standards of decency in Tennessee and, therefore, that “in the abstract” the sentence of death for felony murder is not per se cruel and unusual punishment. The standards of decency supporting this conclusion, the Opinion says, are evidenced by the act of the legislature enacting the statute and the acts of juries imposing that penalty in felony murder cases. At the appropriate time, this subject should be fully discussed. Perhaps sufficient for the present are the observations that the legislature is essentially a *353 political body and that citizens who refuse to consider the sentence of death as punishment are disqualified as jurors. In addition, the legislature enacted that portion of the statute, T.C.A. § 39 — 13—204(i)(7), found by the majority Opinion to be unconstitutional and the jury imposed the sentence of death on the defendant in this case based upon that statute. This evidence hardly supports the conclusion that imposing the death penalty upon a felony murder conviction does not per se violate Article I, Section 16. More importantly, that conclusion does not preclude consideration of those cases in which the imposition of the death penalty does constitute cruel and unusual punishment and it does not relieve the Court of the responsibility for determining the proof necessary to support a jury’s sentence of death. Without this standard, prosecutors can continue to seek the death penalty and juries can continue to impose the death penalty upon no greater proof than that of reckless indifference.
In determining that standard, the Court need look no further than its reported decisions. Without independently examining the requirements of the state constitution, this Court has, by its decisions, recognized a higher standard of culpability than that of reckless indifference set by the United States Supreme Court. Analysis of our cases indicates that this Court, while not specifically adopting a bright-line rule, has found that a felony murderer is death eligible only where the killing is deliberate or intentional or accompanied by a conscious purpose of producing death or a conscious realization that death will likely occur. Since 1979, this Court has reviewed and released opinions in approximately 84 cases in which the jury imposed a sentence of death. Review of these opinions shows that the sentence was clearly based only on a conviction of felony murder in 28 cases. 1 The proof in 16 of those 28 cases shows an intent to kill. 2 In six of the cases proof of the method of killing or other evidence would support a finding of intent to kill, 3 even though the issue was disputed. Two cases involved struggles in which the intent to kill was not clearly shown, 4 in one case the defendant confessed to the killing, 5 and one case is on remand. 6 In only two of the 28 felony murder convictions is the intent to kill seriously in doubt. 7
The conclusion to be gathered from a review of these cases is that the jury verdicts imposing the death penalty upon convictions of felony murder were supported by proof that the killings were the proximate result of acts accompanied by an intent to kill, a conscious purpose to produce death, or a conscious realization that death likely would occur. This standard requires an intent with respect to the killing, not just the underlying felony, and reflects a moral culpability greater than reckless indifference. I would hold that Article I, *354 Section 16 requires proof of at least this standard.
At the third stage of the process, sentences of death, based upon sufficient proof as discussed above, are then subject to a case-specific proportionality analysis in which this Court reviews evidence of the defendant’s participation in the homicide and his mens rea in regard to the homicidal act. Lockett v. Ohio, 438 U.S. 586, 612-17 , 98 S.Ct. 2954, 2969-71 , 57 L.Ed.2d 973 (1978), (Blackmun, J., dissenting). The review focuses on the defendant’s character and the circumstances of the crime and thus accomplishes the statutory mandate that this Court determine whether the sentence of death imposed in each case “is excessive or disproportionate to the penalty imposed in similar cases, considering both the nature of the crime and the defendant.” T.C.A. § 39-13-206(c)(1)(D). In accomplishing the comparative proportionality review, the Court makes three inquiries: (1) whether the punishment for the crime conforms with contemporary standards of decency, (2) whether the punishment is grossly disproportionate to the offense, and (3) whether the imposition of the death penalty accomplishes any legitimate penological objective. State v. Black, 815 S.W.2d 166 (Tenn.1991).
The majority Opinion, despite having found that the constitution requires genuine narrowing of the class of death-eligible defendants and, further, that narrowing may not occur at the sentencing stage, nevertheless states, “We, therefore, reaffirm the rejection of a per se proportionality approach in favor of the required statutory proportionality review.” Main Opinion at 340. The effect of this decision is that prosecutors may indict and juries may convict on proof of reckless indifference, leaving the constitutional requirement for narrowing to appellate review. Both the majority Opinion and Justice Drowota’s dissent agree that the only constitutional safeguard is review by this Court. Main Opinion at 340; Drowota, J., dissenting at 349. It is at the appellate review stage that the process in Tennessee is the most deficient.
The Court is required to perform two distinct functions, in addition to the consideration of the assignments of error. It must determine, upon consideration of the evidence regarding aggravating and mitigating circumstances, whether the proof supports the sentence of death; and it must determine, upon consideration of the nature of the crime and the defendant, whether the sentence is excessive or disproportionate in comparison with the penalty imposed in similar cases. T.C.A. § 39-13-206(c)(1)(A), (B), (C), (D). Essential to the performance of the first function is the determination of the quantum of proof required by the constitution or the statute to impose the death penalty. As previously discussed, the majority Opinion concludes, erroneously in my view, that proof of reckless indifference is sufficient.
Performance of the second function, comparative proportionality review, requires a determination different from that of ascertaining the parameters of the death-eligible class. It requires a consideration not only of the case before the Court but the spectrum of sentences in similar cases throughout the state. See State v. Harris, 839 S.W.2d 54 (Tenn.1992), Reid, C.J., dissenting. Unfortunately, the reported decisions do not reflect strict performance of this function because they do not include a disciplined proportionality review. What passes for a comparative proportionality review is essentially a reiteration of the facts surrounding the commission of the offense, followed by a conclusory statement that the death penalty is not disproportionate in that particular case. Only rarely has the Court even reviewed the facts of other cases in which the death penalty has been affirmed. See e.g., State v. Barber, 753 S.W.2d 659 (Tenn.1988).
The only way to judge the effectiveness of the death penalty process is to examine the results. If it “includes defendants who are not necessarily more deserving of the death penalty and excludes those who are not necessarily less deserving,” the process fails to genuinely narrow the class of death-eligible defendants. Rosen, Felony Murder and the Eight Amendment Jurisprudence of Death, 31 B.C.L. Review 1103, 1125 (1990). This determination can be *355 made only by comparing murderers sentenced to death with those given less severe sentences, a procedure not followed in past reported decisions. The Court obviously has substituted for the proportionality review required at this third stage of the proceedings a finding that the proof shows the defendant to be a member of the death-eligible group which, under the federal constitution and the Tennessee statute, includes all cases in which the proof meets the threshold standard of reckless indifference. This practice is acknowledged by the statement in Justice Drowota’s dissent that the death penalty is not disproportionate punishment so long as the reckless indifference standard of Enmund and Tison is met. Drowota, J., dissenting at 349. Consequently, the Court has not found the punishment disproportionate in any of the 84 cases in which the sentence of death has been imposed since 1977. This fact alone would suggest there has been no effective proportionality review on appeal. It also places in doubt Justice Drowota’s confident assertion that, “Our sentencing system, created to meet the mandates of Furman may be trusted to discern and remove those persons perpetrating these less egregious forms of felony murder from the list of those condemned to death.” Drowota, J., dissenting at 349.
The result is that the class of death-eligible defendants is not genuinely narrowed by the statutory definition of felony murder; the sentencing statute by its terms fails to narrow the class; Article I, Section 16, as interpreted by the majority in this decision, does not invalidate those provisions of the statute which do not effect narrowing; and the appellate review mandated by statute has been limited to a finding that the proof meets the threshold standard of reckless indifference.
I concur that the judgment of conviction be affirmed and that the case be remanded for sentencing.
I am authorized to state that Justice DAUGHTREY concurs in this Opinion.
.State v. Boyd, 797 S.W.2d 589 (Tenn.1990); State v. Cauthem, 778 S.W.2d 39 (Tenn.1989); State v. Taylor, 774 S.W.2d 163 (Tenn.1989); State v. Irick, 762 S.W.2d 121 (Tenn.1988); State v. Hines, 758 S.W.2d 515 (Tenn.1988); State v. Smith, 755 S.W.2d 757 (Tenn.1988); State v. Poe, 755 S.W.2d 41 (Tenn.1988); State v. Barber, 753 S.W.2d 659 (Tenn.1988); State v. Bobo, 727 S.W.2d 945 (Tenn.1987); State v. Sparks, 727 S.W.2d 480 (Tenn.1987); State v. King, 718 S.W.2d 241 (Tenn.1986); State v. Goad, 707 S.W.2d 846 (Tenn.1986); State v. Barnes, 703 S.W.2d 611 (Tenn.1985); State v. Hartman, 703 S.W.2d 106 (Tenn.1985); State v. Smith, 695 S.W.2d 954 (Tenn.1985); State v. King, 694 S.W.2d 941 (Tenn.1985); State v. McKay, 680 S.W.2d 447 (Tenn.1985); State v. Sample, 680 S.W.2d 447 (Tenn.1984); State v. Sheffield, 676 S.W.2d 542 (Tenn.1984); State v. Workman, 667 S.W.2d 44 (Tenn.1984); State v. Matson, 666 S.W.2d 41 (Tenn.1984); State v. Campbell, 664 S.W.2d 281 (Tenn.1984); State v. Laney, 654 S.W.2d 383 (Tenn.1983); State v. Simon, 635 S.W.2d 498 (Tenn.1982); State v. Strouth, 620 S.W.2d 467 (Tenn.1981); State v. Coleman, 619 S.W.2d 112 (Tenn.1981); State v. Dicks, 615 S.W.2d 126 (Tenn.1981); State v. Cozzolino, 584 S.W.2d 765 (Tenn.1979).
. Cauthern; Taylor; Hines; Barber; Sparks; King (1986); King (1985); McKay; Sample; Sheffield; Matson; Campbell; Simon; Strouth; Dicks; Cozzolino.
. Poe; Bobo; Goad; Laney; Hartman; Workman.
. Boyd; Smith (1985).
. Coleman .
. Smith (1988).
. Irick; Barnes.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9665417. Public record. Not legal advice.