Considering all the above, the trial court concluded that the Middlebrooks error was harmless beyond a reasonable doubt. See State v. Howell, 868 S.W.2d 238 (Tenn. 1993), cert. denied 510 U.S. 1215, 114 S.Ct. 1339, 127 L.Ed.2d 687 (1994). Appellant's petition for relief was denied.
The court compared the appellant's case to that of State v. Howell, 868 S.W.2d 238 (Tenn. 1993), and found that, pursuant to the test set forth in Howell, 868 S.W.2d at 260, the use of the felony murder aggravator in the appellant's case was harmless error. Since (1) the jury did not find any mitigating factors; (2) the appellant had a prior conviction for second degree murder; and (3) the invalidating aggravator did not "taint the jury because it was merely a consequence of the underlying felony, requiring no additional evidence above that used to convict the Petitioner of the murder," the post-conviction court found the death sentence to be valid. Neither the United States Constitution nor the Tennessee Constitution prohibit a reviewing court from upholding a death sentence that is based, in part, upon an invalid aggravating factor.
We hold, however, that the sentence must be vacated and the cause remanded for resentencing under this Court's decisions in State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992), State v. Howell, 868 S.W.2d 238 (Tenn. 1993), and State v. Bigbee, 885 S.W.2d 797 (Tenn. 1994). The issue of whether the Court of Criminal Appeals has authority to reduce a death sentence to life imprisonment has yet to be decided.
In State v. Howell, 868 S.W.2d 238 (Tenn. 1993), this Court conducted a harmless error analysis and found that the sentencing jury's consideration of the invalid felony-murder aggravating circumstance was harmless beyond a reasonable doubt because the evidence supporting the remaining aggravating factor of prior violent felony convictions was undisputed and overwhelming and the verdict would have been the same had the jury given no weight to the invalid felony murder aggravating factor. While the mitigating evidence in this case was comparable to that found to be inadequate in Howell, the prior violent felony aggravator was not nearly as positive.
Considering all the above, the trial court concluded that the Middlebrooks error was harmless beyond a reasonable doubt. See State v. Howell, 868 S.W.2d 238 (Tenn. 1993), cert. denied 510 U.S. 1215, 114 S.Ct. 1339, 127 L.Ed.2d 687 (1994). Appellant's petition for relief was denied.
In Tennessee, the trial court has wide discretion in examining prospective jurors and ruling on their qualifications.State v. Howell, 868 S.W.2d 238, 248 (Tenn. 1993), cert. denied, 510 U.S. 1215, 114 S.Ct. 1339, 127 L.Ed.2d 687 (1994). It is also within the discretion of the trial judge to seat an alternate who had been selected by the parties when a regular juror must be removed.
The critical inquiry, therefore, is whether the error was harmless and whether a resentencing hearing is required. To assist in this inquiry, we review the analytical framework first announced in State v. Howell, 868 S.W.2d 238 (Tenn. 1993), cert. denied, 510 U.S. 1215, 114 S.Ct. 1339, 127 L.Ed.2d 687 (1994). There, we held that 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."
1989). Specifically, the defendant argues that our statutory scheme fails to meaningfully narrow the class of death eligible defendants. Our supreme court reviewed and dismissed this argument in State v. Howell, 868 S.W.2d 238, 258 (Tenn. 1993). The defendant also contends that the statute is unconstitutional because district attorneys have unlimited discretion in whether to seek the death penalty or not. Our supreme court rejected this argument in Brimmer, 876 S.W.2d at 86.
However, such questions are not constitutionally compelled, and the trial court's failure to ask these questions is not reversible error unless it rendered the defendant's trial fundamentally unfair.Mu'Min v. Virginia, 500 U.S. 415, 425-26, 111 S.Ct. 1899, 1905 (1991); see State v. Howell, 868 S.W.2d 238, 247 (Tenn. 1993).
1991) (Drowota and O'Brien, JJ. dissenting),cert. dismissed, 510 U.S. 124, 114 S.Ct. 651, 126 L.Ed.2d 555 (1993), the defendant again petitioned for post-conviction relief. The trial court held that the jury's use of the felony murder aggravating circumstance was error under Middlebrooks. The trial court, however, held that the jury's reliance on the invalid aggravating circumstance was harmless error under the framework provided by this Court in State v. Howell, 868 S.W.2d 238 (Tenn. 1993), cert. denied, 510 U.S. 1215, 114 S.Ct. 1339, 127 L.Ed.2d 687 (1994). The trial court dismissed the defendant's petition for relief, and a majority of the appellate court affirmed finding: