Petition for Writ of Certiorari — Tennessee v. Sparks

f j Bupreme Court, ULL

\ if 7 | 7 ‘7

No.

In The

Supreme Court of the United States

October Term, 1993

*

STATE OF TENNESSEE,

Petitioner,

VS.

WILLIE SPARKS,

Respondent.

¢

On Petition For Writ Of Certiorari

To The Supreme Court Of Tennessee

¢

PETITION FOR WRIT OF CERTIORARI

*

CHARLES W. Burson

Attorney General & Reporter

Counsel of Record

MERRILYN FEIRMAN

Assistant Attorney General

450 James Robertson Parkway

Nashville, TN 37243-0485

(615) 741-2216

Counsel for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether, in a capital felony murder prosecution, the

Eighth Amendment prohibits the sentencer from consid-

ming as an aggravating circumstance that the murder

was committed in the perpetration of a felony?

ii

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES.................0.ec005. iii

VINTON DLW 5 os oo ih 0seccaseersieee ee I

et | re re een N nT hale Wate 2

CONSTITUTIONAL PROVISION INVOLVED....... 2

STATEMENT OF THE CASE....................... 2

REASONS FOR GRANTING THE WRIT ........... 4

A. THIS COURT SHOULD GRANT CERTIORARI

BECAUSE THE STATE COURT DECIDED A

FEDERAL QUESTION OF SUBSTANCE NOT

IN ACCORD WITH APPLICABLE DECISIONS

OF 1H CAA. nse ee 4

1. The decisions of the Supreme Court of Ten-

nessee are not in accord with the applica-

ble decisions of this Court............... 4

2. The state court decided a federal question

in holding that an aggravating circum-

stance cannot duplicate an element of the

B. IN ANY EVENT, THIS COURT SHOULD

HOLD THIS CASE PENDING THIS COURT’S

DECISION IN TENNESSEE V. MIDDLE-

PRGAMRD <4 4<i scraudsean ene 9

CONCLIBION 5 icicle 10

ill

TABLE OF AUTHORITIES

Page

Cases CITED

Enmund v. Florida, 458 U.S. 782 (1982)........... 6, 7, 8

Furman v. Georgia, 408 U.S. 238 5 eee 5. 7,8

Lowenfield v. Phelps, 484 U.S. 231 (1988)............ 6, 8

Michigan v. Long, 463 U.S. 1032 (1983)................ 9

Proffitt v. Florida, 428 U.S. 242 (1976)............... 5, 8

State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992),

cert. granted, _-:; U.S. __, 113 S. Ct. 1840 (April

19, 1993) (No. 92-969) .......... cc cece eee 4, 5, 6, 8, 9

Tennessee v. Middlebrooks, No. 92-989............... 9, 10

Tison v. Arizona, 481 U.S. 137 (1987)............. 6, 7, 8

Zant v. Stephens, 462 U.S. 862 (1983) -................ 5

CONSTITUTIONS

wm Comet. amend. Vill.................. a i oe

ee I, Ms OG, no sn os ve ke oko eksccee 4,5, 8

CopeEs

I os eo alos ace wie nlecaerne 2

Tenn. Code Ann. § 39-2-203(i)(2) Se is yoo uae 3

Tenn. Code Ann. § 39-2-203(i)(7) (1982) ............

Tenn. Code Ann. § 39-13-205(a) (1982) ............... 3

an The

Supreme Court of the United States

October Term, 1993

+

STATE OF TENNESSEE,

Petitioner,

vs.

WILLIE SPARKS,

Respondent.

+

On Petition For Writ Of Certiorari

To The Supreme Court Of Tennessee

+

PETITION FOR WRIT OF CERTIORARI

7

The petitioner, State of Tennessee, respectfully prays

that a writ of certiorari issue to review the judgments and

opinions of the Supreme Court of Tennessee entered on

May 10, 1993.

OPINIONS BELOW

The opinion of the Supreme Court of Tennessee in

State v. Willie Sparks filed on May 10, 1993, is designated

as not for publication. The opinion appears as Appendix

a! gall

JURISDICTION

The judgments of the Supreme Court of Tennessee in

State v. Sparks were entered on May 10, 1993. This petition

was filed within ninety (90) days of that date.

This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1257(a).

CONSTITUTIONAL PROVISION INVOLVED

U.S. Const. Amend. VIII:

Excessive bail shall not be required, nor exces-

Sive fines imposed, nor cruel and unusual pun-

ishments inflicted.

STATEMENT OF THE CASE

A. Respondent Willie Sparks

Willie Sparks was convicted of first degree murder

and armed robbery by a jury in Hamilton County, Tennes-

see, on May 11, 1984. Following the sentencing hearing,

the jury returned a verdict finding that the respondent

Should receive the death penalty. The jury found that two |

aggravating circumstances were present: (1) that it was |

committed while the defendant was engaged in commit-

ting a felony. Tenn. Code Ann. § 39-2-203(i)(7) (1982); and

(2) that the respondent was previously convicted of one

or more felonies, other than the present charge, which

involved the use of threat or violence to the person. Tenn.

3

Code Ann. § 39-2-203(i)(2) (1982). The jury further found

as is required by Tennessee statute, that the aggravating

circumstances sufficiently outweighed the mitigating cir-

cumstances and sentenced respondent to death by elec-

trocution.

On March 2, 1987, upon automatic direct review

under Tenn. Code Ann. § 39-13-205(a), the Supreme Court

of Tennessee affirmed the respondent’s conviction. On

October 5, 1987, this Court denied the respondent's Peti-

tion for Writ of Certiorari.

On November 16, 1987, the respondent filed a Peti-

tion for Post-Conviction Relief alleging that his constitu-

tional rights were violated and further alleging that he

was deprived of his Sixth Amendment right to effective

assistance of counsel at the guilt/innocence phase and

the sentencing phase of his trial. His Petition for Post-

Conviction Relief was subsequently amended on June 30,

1989, and September 8, 1989. Following an evidentiary

hearing, on March 20, 1991, the respondent’s petition was

denied and on April 5, 1991, an order was entered dis-

missing the respondent’s Petition for Post-Conviction

Relief. On June 11, 1992, the Court of Criminal Appeals of

Tennessee affirmed the trial court’s denial of the respon-

dent’s Petition for Post-Conviction Relief. The respondent

filed an application for permission to appeal to the Ten-

nessee Supreme Court which was granted in an order

filed on December 1, 1992. This grant was limited to the

question of whether the improper use of the felony mur-

der aggravating circumstance, Tenn. Code Ann.

§ 39-2-203(i)(7) (1982), can be considered harmless error.

In an opinion filed on May 10, 1993, the Supreme Court of

Tennessee remanded the case for resentencing. In revers-

ing the respondent’s death sentence the majority of the

Supreme Court of Tennessee relied on its Opinion in the

case of State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992),

cert. granted, _ _ U.S. __, 113 S. Ct. 1840 (April 19, 1993)

(No. 92-989), in which the same majority held that the use

of the felony murder aggravating circumstance to impose

a death sentence in the case of felony murder violates the

Eighth Amendment to the United States Constitution and

Article I, Section 16 of the Tennessee Constitution. The

Court held that the use of this aggravating circumstance

cannot be considered harmless error.

¢

REASONS FOR GRANTING THE WRIT

A. THIS COURT SHOULD GRANT CERTIORARI

BECAUSE THE STATE COURT DECIDED A

FEDERAL QUESTION OF SUBSTANCE NOT

IN ACCORD WITH APPLICABLE DECISIONS

OF THIS COURT.

1. The decisions of the Supreme Court of Ten-

nessee are not in accord with applicable

decisions of this Court.

The decision of the Supreme Court of Tennessee in

this case erroneously concluded that Tennessee’s death

penalty statute fails to narrow the class of death-eligible

defendants adequately where a defendant is convicted of

felony murder, and one of the aggravating circumstances

found by the jury in the sentencing phase is the felony

murder aggravating circumstance. In this Opinion the

court did not engage in any independent analysis; rather

the court relied solely on its opinion in State v. Middle-

brooks, 840 S.W.2d 317 (Tenn. 1992), cert. granted, __ US.

_, 113 S. Ct. 1840 (April 19, 1993) (No. 92-989). In

Middlebrooks, the court concluded that such duplication

violates the Eighth Amendment to the United States Con-

stitution and Article I, Section 16 of the Tennessee Consti-

tution because there is insufficient narrowing of those

eligible to be sentenced to death. The majority of the

Supreme Court of Tennessee opined that the result is a

violation of Furman v. Georgia, 408 U.S. 238 (1972),

because the jury is given unfettered discretion to deter-

mine who would receive the death penalty and who

would not. Quite clearly, this is an erroneous interpreta-

tion of Furman. Furman requires that the sentencer’s dis-

cretion be directed, limited and exercised in an informed

manner so as to avoid the arbitrary and capricious impo-

sition of the death penalty. Indeed, “the requirements of

Furman are satisfied when the sentencing authority’s dis-

cretion is guided and channeled by requiring the exam-

ination of specific factors that argue in favor of or against

imposition of the death penalty, thus eliminating total

arbitrariness and capriciousness in its imposition.” Prof-

fitt v. Florida, 428 U.S. 242, 258 (1976).

The concept of “narrowing” contained in the majority

opinion of the Supreme Court of Tennessee in Middle-

brooks is not found in Furman nor in any other opinion of

this Court. Rather, where the statutory scheme includes

aggravating circumstances which are not unconstitu-

tionally vague so as to adequately channel the jury’s

sentencing decision, capital punishment may be imposed

without violating the Eighth Amendment. Zant v. Step-

hens, 462 U.S. 862, 877 (1983). This Court has explicitly

held that there is no Eighth Amendment prohibition

against using an element necessary for conviction as an

aggravating circumstance to support the imposition of

the death penalty. Lowenfield v. Phelps, 484 U.S. 231 (1988).

The Supreme Court of Tennessee in Middlebrooks also

grossly misinterpreted this Court's Opinions in Tison v.

Arizona, 481 U.S. 137 (1987), and Enmund v. Florida, 458

U.S. 782 (1982). The Supreme Court of Tennessee essen-

tially held that Tison/Enmund provides a base line from

which the statutory scheme must aarrow all felony mur-

derers to those felony murderers eligible for the death

penalty. In so doing, the Tennessee Supreme Court erro-

neously distorted the relationship between the Eighth

Amendment concepts of “narrowing” and “propor-

tionality”. The issue in Tison and Enmund was whether

the death penalty was a proportional punishment under

the Eighth Amendment for certain types of felony mur-

der. This Court in Tison concluded that imposition of

capital punishment in 2 felony murder case does not

violate the Eighth Amendment if the defendant killed,

intended to kill or acted with reckless indifference to the

possibility that his victim would in fact die. Tison did not

involve, and in fact did not even mention, the concept of

“narrowing” relied upon by the Tennessee Supreme

Court. The Tennessee Supreme Court did not find that the

death penalty was disproporticnate in these cases.

In Middlebrooks, the Supreme Court of Tennessee con-

cluded that the state statutory scheme is coextensive with

the proportionality standard for felony murder set out in

Tison. From that conclusion, the court erroneously extrap-

olated that the class of persons eligible for the death

penalty had not been sufficiently narrowed. This conclu-

sion is erroneous since, if the Tison standard is met, death

is a proportional punishment for felony murder as

defined by Tennessee’s statute, and Tennessee’s statute

therefore necessarily narrows the class of all murders into

a subset of those who truly deserve the punishment of

death. The Supreme Court of Tennessee seriously misin-

terpreted Tison and Enmund as holding that the Eighth

Amendment required a statutory definition of capital

murder which would narrow the set of all felony murders

who meet the Eighth Amendment standard as set out in

Tison into yet another subset of felony murders. This is

not required by the Constitution or any opinion of this

Court. Rather, the Constitution simply requires that a

Statutory scheme define capital murder in a way that

narrows the set of all murders into a subset of those that

truly deserve the imposition of the death penalty.

The Supreme Court of Tennessee also erred in look-

ing only at the single aggravating circumstance in deter-

mining whether there was sufficient narrowing to satisfy

the Constitution. Aggravating factors are but one portion

of the sentencing scheme. Furman requires that the Sys-

tem as a whole provide a narrowing function. The system

must be examined as a whole. In Tennessee, the jury s

discretion is channeled by virtue of the requirement of a

bifurcated proceeding, consideration of mitigating fac-

tors, and the direction which the jury receives with

regard to how to weigh the various sentencing factors. In

addition, Tennessee’s statute requires that the appellate

court review all cases in which the death penalty is

sought to ensure that the death penalty is not imposed in

an arbitrary and capricious manner. All of these statutory

safeguards work together to ensure that the jury is not

given unfettered discretion to determine who lives and

who dies.

In Proffitt, 428 U.S. at 258, this Court held that the

Furman requirements are “satisfied when the sentencing

authority’s discretion is guided and channeled by requir-

ing examination of specific factors that argue in favor of

or against imposition of the death penalty, thus eliminat-

ing total arbitrariness and capriciousness in its imposi-

tion.” In Proffitt, this Court implicitly approved the

application of the death penalty where the defendant was

found guilty of felony murder, and felony murder was

also used as an aggravating circumstance. This Court

further held that Florida’s capital sentencing scheme sat-

isfied the constitutional requirements set out in Furman.

Tennessee’s statute is based largely upon the Florida stat-

ute and is almost identical to it. Clearly, the Tennessee

Supreme Court's decisions conflicts with Proffitt and mis-

interprets this Court’s opinions in Tison, Enmund and

Lowenfield.

2. The state court decided a federal question

in holding that an aggravating circumstance

cannot duplicate an element of the crime.

In Middlebrooks the Tennessee Supreme Court inter-

mingled its reliance upon the Eighth Amendment to the

United States Constitution and Article I, Section 16 of the

Tennessee Constitution. By granting the State of Tennes- |

see’s Petition for the Writ of Certiorari in Middlebrooks, this

Court has determined that the Tennessee Supreme

Te |

Court’s decision did not rest on adequate and indepen-

dent state grounds. See Michigan v. Long, 463 U.S. 1032

(1983). Accordingly, this Court has jurisdiction to enter-

tain this matter since in this case the Tennessee Supreme

Court relied solely on Middlebrooks.

B. IN ANY EVENT, THIS COURT SHOULD

HOLD THIS CASE PENDING THIS COURT'S

DECISION IN TENNESSEE V. MIDDLE-

BROOKS.

The central issue in this case, namely, whether the

Eigiitth Amendment is violated by the State’s use of an

aggravating circumstance of “commission of murder dur-

ing a felony” in a case where the defendant was con-

victed of felony murder, is identical to the issue presented

in Tennessee v. Middlebrooks, No. 92-989. As was previ-

ously noted, in this case the Tennessee Supreme Court

did not engage in any independent analysis but relied

solely on its opinion in Middlebrooks. Accordingly, this

Court’s ruling in Tennessee v. Middlebrooks will be disposi-

tive of these matters. Thus, a hold pending this Court's

decision in Tennessee v. Middlebrooks is appropriate and

warranted.

10

CONCLUSION

For the reasons stated, the petitioner urges this Court

to hold this case pending this Court’s decision in Tennes-

see v. Middlebrooks.

Respectfully submitted,

CHARLES W. Burson

Attorney General & Reporter

Counsel of Record

MERRILYN FEIRMAN

Assistant Attorney General

450 James Robertson Parkway

Nashville, Tennessee 37243-0485

(615) 741-2216

Counsel for the Petitioner

Al

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

WILLIE SPARKS, ) Not for Publication

) Filed: May 10, 1993

) No. 03S01-9212-CR-00105

STATE OF TENNESSEE, Hamilton County

)

)

Petitioner/ Appellant,

VS.

Respondent/ Appellee. Hon. Douglas A. Meyer,

Judge

(Filed May 10, 1993)

For the Appellant: For the Appellee:

WILLIAM R. HECK CHARLES W. BURSON

Chattanooga, Tennessee Attorney General &

Reporter

REBECCA L. GUNDT

Assistant Attorney General

Nashville, Tennessee

KATHY PRINCIPE

Senior Counsel

Office of the Attorney

General

Nashville, Tennessee

REMANDED FOR RESENTENCING

Martha Craig Daughtrey, Justice

OPINION

We granted permission to appeal in this post-convic-

tion action in order to determine whether the use of the

felony-murder aggravating circumstance, T.C.A.

§ 39-2-203(i)(7) (1982), to support the death penalty for

felony-murder was harmless error in this case. We hold

that it was not and remand the case for resentencing. In

A2

addition, we direct that evidence introduced at the first

trial, allegedly in violation of Massiah v. United States, 377

U.S. 201 (1964), be excluded from the jury’s consideration

upon retrial.

The petitioner, Willie Sparks, was convicted by a jury

of armed robbery and felony-murder and was sentenced

to death. As summarized in State v. Sparks, 787 S.W.2d 480

(Tenn. 1987), the state’s evidence indicated that Sparks, in

association with three other men, was involved in an

armed robbery at an East Chattanooga liquor store, dur-

ing which the petitioner shot and killed a delivery man.

At the sentencing hearing, the prosecutor used two

aggravating circumstances to support the death penalty.

First, the state relied on evidence from the guilt phase of

the trial to prove that the murder was committed in the

course of a violent felony, an aggravating circumstance

under T.C.A. § 39-2-203(i)(7)(1982). The state also pre-

sented evidence of the petitioner’s three prior robbery

convictions, an aggravating circumstance under T.C.A.

§ 39-2-203(i)(2). The petitioner’s counsel presented no

evidence on his client’s behalf, and the jury sentenced

Sparks to death.

Although the petitioner seeks post-conviction relief

on several grounds, the dispositive issue at this point in

the litigation is whether the improper use of the felony-

murder aggravating circumstance, T.C.A. § 39-2-203(i)(7)

(1982), can be considered harmless error.

In State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992),

this Court held that it is unconstitutional to use the

felony-murder aggravating circumstance, ¢ Y

§§ 39-2-203(i)(7)(1982) or 39-13-204(i)(7) (1991 ), to support

a

A3

the death penalty upon conviction of felony-murder. We

reasoned that the use of an aggravating circumstance that

mirrors the underlying crime fails to narrow the class of

death-eligible murderers as required by the Eighth

Amendment to the United States Constitution and Article

I, Section 16 of the Tennessee Constitution. See Zant v.

Stephens, 462 U.S. 862, 877 (1983): Middlebrooks, 840

S.W.2d at 346.

Having prohibited the use of the felony-murder

aggravating circumstance in felony-murder cases, we

must determine whether the Middlebrooks error in this

case is harmless, given uncontested evidence of Sparks’s

three prior violent felony convictions, which were intro-

duced collectively as-an additional aggravating circum-

stance at trial. The federal constitution permits harmless

error analysis after the invalidation of one aggravating

circumstance. Clemons v. Mississippi, 494 U.S. 738, 754

(1990). In prior cases, however, we have found harmless

error analysis difficult to sustain in the absence of written

findings by the jury concerning mitigating circumstances.

See, e.g., State v. Terry, 813 S.W.2d 420, 424-5 (Tenn. 1991).

Considering the “heightened need for reliability in death

cases,” we refused in Terry to predict what the outcome of

the case would have been in the absence of one of the

aggravating circumstances. Similarly, in State v. Pritchett,

621 S.W.2d 127, 129 (Tenn. 1981), we declined to “specu-

late” on what the jury’s sentence would be when one of

two aggravating circumstances was removed from con-

sideration.

The current sentencing statute, T.C.A. § 39-13-204(g),

like its predecessor, T.C.A. § 39-2-203(g), requires the jury

A4

to engage in a careful weighing process, balancing speci-

fied aggravating circumstances against any mitigating

circumstances in the record. But, also like its predecessor,

it does not require the jury to report in its verdict what

mitigating factors were considered. Without a sufficient

basis for reweighing the evidence in the record, we are

disinclined to speculate in this instance about what ver-

dict the jury might have returned based on proof of a

single aggravating circumstance. Certainly, we cannot say

that in the absence of the felony-murder aggravating

circumstance, there is proof beyond a reasonable doubt

that the defendant should be sentenced to execution.

In remanding the case for resentencing, we add one

note of caution. On direct appeal, petitioner Sparks

alleged error by the trial judge in failing to suppress

evidence concerning a conversation that Sparks had with

one of his accomplices while he, Sparks, was being held

pending trial in the Chattanooga jail. The petitioner con-

tended that this evidence was introduced in violation of

United States v. Massiah, 377 U.S. 201, in which the United

States Supreme Court held that the Sixth Amendment

right to counsel is violated when police deliberately elicit

incriminating statements from a defendant after indict-

ment! and in the absence of the defendant’s counsel.

Massiah, 377 U.S. at 203-06.

1 In Kirby v. Illinois, 406 U.S. 682, 688-89 (1972), the court

further explained that this Sixth Amendment right applies after

the initiation of “adversary judicial proceedings,” such as a

formal charge, preliminary hearing, indictment, information or

arraignment. In Tennessee, “[i]nitiation [of adversary judicial

proceedings] is marked by formal charge, . . . construe[d] to be

an arrest warrant, ... preliminary hearing, or. . . indictment or

presentment. ...” State v. Mitchell, 593 S.W.2d 280, 286 (Tenn.

1980).

|

A5

The facts presented at the hearing on motion to sup-

press are set out in detail in this Court’s opinion on direct

appeal. Sparks, 727 S.W.2d at 482. In short, they show that

while Sparks was incarcerated, he telephoned one of his

accomplices, Michael Jones, and asked Jones to come to

the jail. Jones reported this invitation to police and

agreed to be wired with a microphone during his visit.

The conversation between Sparks and Jones was over-

heard and tape-recorded by a police detective, who was

called by the prosecution to testify about incriminating

statements that Sparks made to Jones during the jail visit.

Id.

By a vote of three-to-two, we affirmed the trial

court’s order denying Suppression. The two dissenting

members of the Court felt Strongly that the evidence in

question violated Massiah, and that its introduction at

trial constituted reversible error. Id. at 484-89. The other

three members did not decide whether or not error had

occurred, holding instead that if the introduction of this

evidence did constitute error, it was harmless beyond a

reasonable doubt. To support this conclusion, the major-

ity found that “the jail statements of [Sparks] testified to

at trial were cumulative and their contents had already

been proved by other evidence which was overwhelm-

ing.” Id. at 482.

This holding constitutes the law of the case with

regard to the petitioner’s conviction of first-degree mur-

der. It is not binding, however, on the question of his

sentence, which must be retried as a result of other error

in the record. The question, then, is whether evidence of

the conversation between Sparks and Jones can be admit-

ted at the new penalty hearing. We think not. Although a

A6

majority of the Court did not hold that admission of the

disputed evidence was reversible error on direct appeal,

it is equally true that a majority did not find to the

contrary.

What the majority did say was that the error, if any,

was not sufficiently prejudicial to require a new trial on

the issue of guilt or innocence. It is obvious, however,

that “harmless error” depends for its finding of harmless-

ness on a post hoc determination that measures the error

in the context of the proof as a whole. Certainly, we

cannot say in advance of the new penalty hearing that the

disputed evidence will be “cumulative” to the other evi-

dence, the extent of which cannot be foretold, or that the

other evidence to be presented will be “overwhelming,” a

matter which also cannot be predicted.

We therefore find it prudent to instruct the trial court

not to admit the evidence concerning the jail conversation

at the rehearing, given the apparent error that would be

injected into the record by its admission.

In conclusion, we cannot say that the Middlebrooks

error in this case was harmless beyond a reasonable

doubt. We therefore remand this matter to the trial court

for a new sentencing hearing in accordance with State v.

Middlebrooks, 840 S.W.2d 317. Similarly, we cannot

approve the use of evidence that may have been secured

in violation of the federal constitution, and we therefore

direct that testimony regarding Sparks’s conversation

with Jones in the Chattanooga jail cell be excluded from

the penalty hearing.

As for the other issues raised on appeal, we conclude

that they present no grounds for relief. The record fails to

ee |

A7

show that the two attorneys who represented Sparks at

the first trial rendered ineffective assistance of counsel at

the guilt phase of the trial. Because the petitioner will be

represented by different counsel at the new sentencing

hearing, we find it unnecessary to address the ineffective

assistance of counsel claims made in regard to the penalty

phase of the original trial.

Remanded with instructions.

/s/ M.C. Daughtrey

Martha Craig Daughtrey,

Justice

CONCUR:

Reid, C.J.

Anderson, J.

DISSENTING AND CONCURRING OPINION:

Frank F. Drowota, Justice

DISSENTING IN PART AND CONCURRING IN PART:

Samuel L. Lewis, Special Justice

A8

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

WILLIE SPARKS, HAMILTON CRIMINAL

)

Petitioner-Appellant, Hon. Douglas A. Meyer,

V. ) Judge

STATE OF TENNESSEE, ) N°: 03S01-9212-CR-00105

‘ y

)

Respondent-Appellee.

DISSENTING AND CONCURRING OPINION

In State v. Middlebrooks, 840 S.W.2d 317, 347 (Tenn.

1992), I dissented from that part of the majority opinion

which held that the use of the aggravating circumstance

in T.C.A. § 39-2-203(i)(7)(1982) [now § 39-13-204(i)(7)

(1991)] to impose a sentence of death in cases of felony

murder violates the Eighth Amendment to the United

States Constitution and Article I, § 16, of the Tennessee

Constitution. I continue to adhere to the views expressed

in my concurring and dissenting opinion in Middlebrooks

that allowing the underlying felony to act as an aggrava-

ting circumstance does not result in imposition of the

death penalty in a disproportionate manner. My disagree-

ment with the majority was not based solely on the

principle of stare decisis. My disagreement arises from my

conviction that the previous decisions of this Court! are

1 State v. Smith, 755 S.W.2d 757, 768 (Tenn. 1988); State v.

Barnes, 703 S.W.2d 611, 618 (Tenn. 1985); State v. Zagorski, 701

S.W.2d 808, 816 (Tenn. 1985); State v. Smith, 695 S.W.2d 954,

959-960 (Tenn. 1985); State v. King, 694 S.W.2d 941, 946 (Tenn.

1985); State v. Laney, 654 S.W.2d 383, 387 (Tenn. 1983); State v.

Pritchett, 621 S.W.2d 127, 139-141 (Tenn. 1981); Houston v. State,

not in error and that the statute does not contravene the

requirements of either the Eighth Amendment or Article

I, § 16. Accordingly, in this case I would find two valid

aggravators (T.C.A. § 39-2-203(i)(2) and (7)) and would

affirm the Defendant’s sentence of death.

However, a majority of this Court, in Middlebrooks,

held that it is unconstitutional to use the felony murder

aggravating circumstance to support the death penalty

upon conviction of felony murder. That presently being

the law in this state, I cannot say that the Middlebrooks

error was harmless beyond a reasonable doubt. There-

fore, I concur with the remand for resentencing as set out

in the majority opinion.

/s/ Frank F. Drowota, III

FRANK F. DROWOTA, III

JUSTICE

593 S.W.2d 267, 276 (Tenn. 1980). In State v. Pritchett, 621 S.W.2d

at 140-141, this Court rejected the rationale of State v. Cherry, 298

N.C. 86, 257 S.E.2d 551 (1979), adopted by this Court in Mid

dlebrooks; and in State v. Smith, 755 S.W.2d at 768, we held that

our statute complied with the constitutional requirement of

“narrowing” under Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct.

546, 98 L.Ed.2d 568 (1988).

A10

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

APP. NO. 03S01-9212-

CR-00105

HAMILTON CRIMINAL

Hon. Douglas A. Meyer,

Judge

WILLIE SPARKS )

Petitioner-Appellant

VS )

STATE OF TENNESSEE }

Respondent-Appellee )

DISSENTING IN PART AND CONCURRING IN PART

I concur in that part of the majority opinion that

remands for sententencing [sic] because the law at this

time in Tennessee is that felony murder may not be used

as an aggravating circumstance. State v. Middlebrooks,

840 S.W.2d 317, 346 (Tenn. 1992).

However, I agree with Justice Drowota’s Dissenting

and Concurring Opinion in State v. Middlebrooks, 840

S.W.2d at 347, that to impose a sentence of death in cases

of felony murder is not a violation of Article I, § 16 of the

Tennessee Constitution. I am also of the opinion that

allowing the underlying felony to act as an aggravating

circumstance does not result in imposition of the death

penalty in a disproportionate manner. | therefore dissent

from that portion of the majority opinion which disallows

the underlying felony to act as an aggravating circum-

stance.

/s/ Samuel L. Lewis

SAMUEL L. LEWIS,

Spec. Justice