The Tennessee Supreme Court has unanimously rejected an appeal by death row inmate Donald Wayne Strouth, sentenced to death for murdering a Kingsport merchant by hitting him in the head and slitting his throat during a robbery at the victim’s used clothing store.
Strouth and Jeffrey Stuart Dicks, who died in prison last month, were convicted of the 1978 murder of James Keegan, 70. Strouth, 19 at the time of the murder, and Dicks each accused the other of killing Keegan. The men were tried separately and both received death sentences.
In his second post-conviction appeal, denied Monday by the court, Strouth said one of two aggravating circumstances found by jurors - that the murder was committed during a felony crime - is constitutionally invalid. In a 1992 ruling, State v. Donald Middlebrooks, the Supreme Court held that when a defendant is convicted of first degree murder solely on the basis of felony murder, or murder committed during a felony crime, the aggravating circumstance duplicates elements of the underlying crime and fails to narrow the class of defendants eligible for the death penalty.
Under state law, a death sentence can be given only if the jury finds at least one valid aggravating circumstance which outweighs all mitigating circumstances.
The law lists 14 aggravating circumstances jurors may consider in death penalty cases.
Jurors found Strouth guilty of murder in the perpetration of a robbery and robbery with a deadly weapon. Besides the felony murder aggravating circumstance, the jury also found the state had proven the murder was “especially heinous, atrocious or cruel in that it involved torture or depravity of mind” and there were no mitigating circumstances sufficient to outweigh the aggravating circumstances.
Writing for the Supreme Court, Justice Frank Drowota said the use of the invalid felony murder aggravating circumstance was “harmless error” because of the strength of the remaining aggravating circumstance. Strouth contended in his appeal that because Keegan was unconscious when his throat was cut, he did not experience pain and the killing was not “especially heinous, atrocious or cruel in that it involved torture or depravity of mind.” The court disagreed with the argument.
“The cruelty with which the perpetrators attacked this elderly man and showed no mercy toward him after he was already unconscious and helpless demonstrates depravity of mind,” Drowota wrote. “... Unless stayed by this court or other proper authority, Strouth’s sentence of death by electrocution shall be carried out on October 28, 1999.”
In a separate concurring opinion, Justice Janice Holder agreed with the denial of Strouth’s post-conviction petition to appeal but disagreed with the majority that a Middlebrooks error occurred.
“The jury in this case was clearly charged that first degree murder can be committed in one of two ways; with premeditation and deliberation or during the perpetration of a felony,” she wrote. “The jury returned a non-specific verdict finding the defendant ?guilty of murder in the first degree.’ I, therefore, would hold that a Middlebrooks error did not occur in this case because the defendant’s conviction for first degree murder was not based solely on felony murder.”
Holder also agreed with the majority that even if a Middlebrooks error had occurred the error would have been harmless.