Donald Wayne Strouth

Case record: Donald Wayne Strouth

Background

Donald Wayne Strouth was 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 co-defendant Jeffrey Stuart Dicks, who died in prison, were convicted of the 1978 murder of James Keegan, 70. Strouth was 19 at the time of the murder; Dicks and Strouth each accused the other of killing Keegan. The men were tried separately and both received death sentences.

The offence

On February 15, 1978, James Keegan, the sole proprietor of a used clothing store in downtown Kingsport, Tennessee, was murdered. Keegan’s body was found on the floor of his store.

Keegan’s pockets had been emptied of his billfold and a large roll of money he habitually carried. Several items were missing from the store.

Keegan sustained a severe blow to the head with a blunt object and deep lacerations on his scalp and ear. Keegan’s death resulted from a deep laceration extending the entire width of his neck. Keegan’s throat was slit literally from ear to ear. The laceration was approximately three inches deep and completely severed both the large muscle of Keegan’s neck and his jugular vein.

According to the medical examiner, Keegan was unconscious from the blow to his head when his throat had been cut, and Keegan bled to death from the neck wound within fifteen minutes.

Investigation

Donald Wayne Strouth and Jeffrey Stuart Dicks had been seen in the area of the store around the time of the murder, and they were eventually arrested and charged with the robbing and killing of Keegan.

Each made a pre-trial statement to police acknowledging his presence at the scene of the crime but accusing the other of killing Keegan. For this reason, Strouth and Dicks were tried separately to avoid the possibility of violating Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

At Strouth’s trial, police proof demonstrated that Keegan’s body was discovered by his wife around noon. Police were called to the scene and discovered two sets of footprints outside the back entrance of the store.

Police also discovered that an electric heater had been turned on inside the store and that a fuel-soaked towel had been placed across the heater. Testimony indicated that Keegan did not use electric heaters and had them in the store only as resale items.

Dicks and his girlfriend, Betty Merrit, lived in an apartment near the store owned by Keegan and were often visited by their friends, including Strouth and his girlfriend, Barbara Davis.

About a week before the murder, Dicks and Merrit went to Keegan’s store and sold him some clothes. According to Merrit, Keegan paid them from a large roll of cash he kept in his front pants pocket.

On the day before the murder, an employee of a nearby dry cleaners testified that he had seen Strouth and Dicks standing and talking beside the cleaners, near Keegan’s store. Two other eyewitnesses saw both Strouth and Dicks in the area of Keegan’s store on the morning of the murder.

Evidence introduced at Strouth’s trial tended to show that Strouth was the person who actually cut Keegan’s throat. Witnesses testified to seeing blood on Strouth’s hands and clothes shortly after the murder.

Strouth’s girlfriend, Barbara Davis, told the jury that she had given Strouth a large hawkbill knife as a present sometime before the murder. She said that Strouth had admitted to the robbery and stated, “Jeff froze on me.”

The medical examiner testified that the hawk-bill knife owned by Strouth was consistent with and could have been used to slit Keegan’s throat. The medical examiner also testified that the blood spots on the pants that Strouth had worn at the time of the murder were consistent with the theory that Strouth had stood over the victim and cut his throat.

Trial

Upon hearing the proof, the jury found Strouth guilty of murder in the perpetration of a robbery and robbery with a deadly weapon.

In the subsequent sentencing hearing, the State relied upon the following six aggravating circumstances:

1. The defendant was previously convicted of one or more felonies, other than the present charge, which involved the use or threat of violence to the person.
2. The defendant knowingly created a great risk of death to two or more persons, other than the victim murdered, during his act of murder.
3. The defendant committed murder for remuneration or the promise of remuneration.
4. The murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind.
5. The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another.
6. The murder was committed while the defendant was engaged in committing or was an accomplice in the commission of, or was attempting to commit ․ robbery.

Tenn.Code Ann. § 39-2404(i)(2)-(i)(7) (Supp.1978).

Little proof was offered by either the State or the defendant at the sentencing hearing. The State offered proof to establish that Strouth had been previously convicted of a felony crime against nature in North Carolina.

The defense called Officer Jim Keesling, who had taken two statements from Strouth on March 8 and 9, 1978. Officer Keesling read the statements into the record for the jury’s consideration. In the first statement Strouth denied that he had been in Kingsport on the day of the murder. In the second statement Strouth claimed that Dicks and a third person had committed the robbery and murder while he waited in the car.

The defense attempted to call a minister and sociology teacher to testify about the Christian philosophy on the death penalty and about the deterrent effect of the death penalty. The trial court disallowed the testimony after a jury-out hearing.

The jury deliberated for approximately seven hours before returning a verdict.

Finding that the State had proven two aggravating circumstances beyond a reasonable doubt—(1) that the murder was especially heinous, atrocious or cruel in that it involved torture or depravity of mind and (2) that the murder was committed while the defendant was engaged in committing a robbery—the jury also found that there were no mitigating circumstances sufficiently substantial to outweigh the aggravating circumstances.

The jury sentenced Strouth to death by electrocution.

On direct appeal, Strouth’s first degree felony murder conviction and death sentence were affirmed. State v. Strouth, 620 S.W.2d 467 (Tenn.1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1491, 71 L.Ed.2d 692 (1982).

This Court later vacated Strouth’s armed robbery conviction holding that dual convictions for felony murder and the underlying felony violated principles of double jeopardy.

Strouth filed his first post-conviction petition in 1982 alleging numerous constitutional violations. After a lengthy evidentiary hearing, the trial court denied relief. The Court of Criminal Appeals affirmed and this Court declined to review the case. Strouth v. State, 755 S.W.2d 819 (Tenn.Crim.App.1986), perm. app. denied (Tenn.1987).

Strouth’s current post-conviction petition was filed on December 30, 1993. Strouth asserted that his death sentence should be set aside under State v. Middlebrooks, 840 S.W.2d 317 (Tenn.1992).

The trial court held an evidentiary hearing and concluded that the Middlebrooks error was harmless beyond a reasonable doubt under the analysis adopted in Howell. The trial court held that the remaining claims were either barred by the statute of limitations or waived. The Court of Criminal Appeals affirmed the dismissal of the petition, also finding the Middlebrooks error harmless beyond a reasonable doubt.

The appeal was granted limited to whether the lower courts erred in finding the Middlebrooks error harmless beyond a reasonable doubt.

Sentencing

Strouth’s sentencing jury found two aggravating circumstances beyond a reasonable doubt:

• the murder was especially heinous, atrocious or cruel in that it involved torture or depravity of mind; and
• the murder was committed while the defendant was engaged in committing a robbery.

The jury found no mitigating circumstances sufficiently substantial to outweigh the aggravating circumstances and sentenced Strouth to death by electrocution.

Appeals

Middlebrooks issue and harmless error analysis

In Middlebrooks, the Court determined that when a defendant is convicted of first degree murder solely on the basis of felony murder, the felony murder aggravating circumstance may not be used as a basis to support imposition of the death penalty because it duplicates the elements of the underlying offense. The felony murder aggravating circumstance failed to sufficiently narrow the class of death-eligible murderers and violated Article I, § 16 of the Tennessee Constitution. 840 S.W.2d at 346. A sentence of death may not be imposed for a conviction of first degree felony murder unless it is based upon at least one other statutory aggravating circumstance. Id. at 346-47. The rule was applied retroactively.

The Court concluded that, in Strouth’s sentencing phase, the jury based the sentence of death upon two aggravating circumstances, one of which was that the crime was committed while the defendant was engaged in committing the felony of robbery. As a result, the jury’s reliance upon the felony murder aggravating circumstance contravened Middlebrooks.

The Court then applied harmless error analysis under State v. Howell. Howell held that a Middlebrooks error would be harmless if a reviewing court concluded “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.” Id. at 262.

The Court identified nonexclusive factors guiding harmless error analysis, including:

• the number and strength of remaining valid aggravating circumstances;
• the extent to which the prosecutor emphasized the invalid aggravating circumstance during closing argument;
• the evidence admitted to establish the invalid aggravating circumstance; and
• the nature, quality, and strength of mitigating evidence.

After applying the analysis, the Court concluded beyond a reasonable doubt that the sentence would have been the same had the jury given no consideration to the invalid felony murder aggravating circumstance, and affirmed dismissal of the post-conviction petition.

Remaining valid aggravating circumstance: “especially heinous, atrocious or cruel”

The Court considered the remaining valid aggravating circumstance that the murder was especially heinous, atrocious or cruel in that it involved torture or depravity of mind.

The Court recounted Strouth’s argument that the aggravating circumstance was weak and lacked objective reliability because Keegan was unconscious when his throat was cut. Strouth also argued that the jury instructions included only the language of the statutory aggravating circumstance and did not include definitions later announced in State v. Williams.

The State responded that the Court had repeatedly upheld the constitutionality of the (i)(5) aggravating circumstance and had never held that Williams definitions were constitutionally required. The Court agreed.

The Court also stated it had upheld the constitutionality of the (i)(5) aggravating circumstance in multiple decisions, and it noted that the Williams instruction requirement had not been applied retroactively. It further stated it had never held that Williams definitions were constitutionally required.

The Court explained that the “heinous, atrocious, or cruel” language in the Tennessee statute was modified and limited by the phrase “in that it involved torture or depravity of mind,” distinguishing it from language held unconstitutionally vague in Godfrey v. Georgia and Maynard v. Cartwright. It stated that in an Howell analysis, it considered whether Williams instructions were provided and that the absence of Williams definitions had not been held to limit the significance of the (i)(5) aggravating circumstance.

The Court concluded that depravity of mind was supported by evidence that the perpetrators attacked an elderly man and showed no mercy toward him after he was already unconscious and helpless. It cited cases including State v. Zagorski and State v. Van Tran.

The Court quoted its earlier description from the opinion denying Strouth’s petition to rehear on direct appeal, which described the perpetrators striking Keegan on the head with a rock, rendering him unconscious, and slitting Keegan’s throat while he was unconscious, leaving him to bleed to death. It described the act as conscienceless and pitiless and as heinous and atrocious and evincing a depraved state of mind.

Prosecutor emphasis on the invalid aggravating circumstance

The Court found that its review of the record did not indicate unusual emphasis of the invalid felony murder aggravating circumstance in closing argument. It stated the prosecutor focused first on the lack of mitigating evidence, then argued each of the six aggravating circumstances. It stated the argument relating to the felony murder aggravating circumstance was minimal and that the prosecutor merely reminded jurors that by finding the defendant guilty, they had found the felony murder aggravating circumstance.

The Court stated that Strouth’s brief quoted extensively from the district attorney’s argument to attempt to show undue emphasis, but that an objective reading revealed the prosecution was emphasizing an aggravating circumstance the jury eventually rejected—murder committed to avoid arrest or prosecution.

The Court concluded the emphasis placed on the invalid aggravating circumstance was minimal.

Evidence admitted to establish the invalid aggravating circumstance

The Court found no materially inaccurate or inadmissible evidence was admitted to establish the aggravating circumstance, and that the evidence relied upon to establish the invalid aggravating circumstance had been properly admitted at the guilt phase to support the felony murder conviction. It stated no additional evidence was introduced at sentencing to support the invalid aggravating circumstance.

Mitigating evidence

The Court stated that little evidence was offered in mitigation.

Officer Keesling read two statements Strouth gave to law enforcement officials to the jury. The defense had sought to introduce evidence on Christian philosophy about death as punishment, but the trial court excluded it as irrelevant.

The Court stated Strouth argued that his age at the time of the offence—nineteen—was a strong mitigating circumstance that lessened culpability. It stated the State mentioned age in arguing that little mitigation was presented and that defense counsel did not stress Strouth’s age in closing argument. Instead, defense counsel asked the jury to impose a life sentence because all “killing,” including death penalty as punishment for crime, is wrong.

The Court agreed with the Court of Criminal Appeals that the quality of the mitigation offered was weak. It stated Strouth’s statements read by Officer Keesling were contradictory and that any exculpatory effect was virtually eliminated when measured against trial testimony and physical evidence. It concluded that Strouth’s age carried no great mitigation weight because the record reflected that Strouth was living independent of his parents, traveling routinely between Tennessee and North Carolina, and committing crimes as a juvenile. It stated this did not show a dependent teenager or an innocent young man whose inexperience led him into an unlawful situation.

The Court rejected the claim that Strouth was merely present and did not commit the murder, stating evidence at trial showed Strouth was actively involved and inflicted the fatal wound.

Overall, the Court concluded that the quantity, nature, and quality of mitigating evidence was weak.

Separate concurring opinion

A separate concurring opinion disagreed with the majority’s conclusion that Middlebrooks error occurred, while agreeing with the dismissal of the post-conviction petition.

The separate opinion stated that the defendant was charged in a fact-specific indictment with “killing and murdering [the victim] in the first degree.” It said the trial judge instructed the jury on both premeditated murder and felony murder and that the jury deliberated with written instructions including detailed instructions on both theories.

The separate opinion stated that the jury returned a single, or general, verdict and stated: “We, the jury, find the defendant guilty of murder in the first degree.”

It stated Tennessee courts held that a single-count indictment charging premeditated murder was sufficient to support conviction of either premeditated first degree murder or felony murder, describing the felony perpetration as the legal equivalent of premeditation, deliberation, and malice. It cited State v. Beasley, Sullivan v. State, and Farmer v. State, and referenced Schad v. Arizona for the proposition that jurors were not required to agree upon a single means of commission for first degree murder.

The separate opinion argued that a Middlebrooks error occurred only “when a defendant is convicted of first degree murder solely on the basis of felony murder” and when the felony murder aggravating circumstance was utilized. It concluded that no Middlebrooks error occurred when a jury returned a general verdict convicting the defendant of both felony murder and premeditated murder, citing Carter v. State.

The separate opinion stated it would hold that Middlebrooks error did not occur because the conviction for first degree murder was not based solely on felony murder.

It further stated that even assuming Middlebrooks error occurred, it agreed with the majority that the error was harmless beyond a reasonable doubt.

It concluded that, for those reasons, it agreed with the majority’s conclusion that dismissal of the petition should be affirmed.

Outcome

The Court affirmed the judgment of the Court of Criminal Appeals which upheld the trial court’s dismissal of the post-conviction petition.

The Court concluded that the jury’s consideration of the invalid felony murder aggravating circumstance was harmless error beyond a reasonable doubt and that the remaining aggravating circumstance was supported by an abundance of proof qualitatively persuasive. It found the prosecutor did not emphasize the invalid aggravating circumstance in closing argument, no inadmissible evidence was introduced to support the invalid felony murder aggravating circumstance, and mitigation was weak.

Unless stayed by this Court or other proper authority, Strouth’s sentence of death by electrocution was to be carried out on October 28, 1999.

DROWOTA, J., ANDERSON, C.J. and BIRCH, J. concurred. HOLDER, J. concurred with the separate concurring opinion.

Timeline

• February 15, 1978 — James Keegan was murdered at his used clothing store in downtown Kingsport, Tennessee.
• March 8, 1978 — Officer Jim Keesling took one statement from Strouth.
• March 9, 1978 — Officer Jim Keesling took a second statement from Strouth.
• December 30, 1993 — Strouth filed his current post-conviction petition.
• September 4, 1978 — Strouth was sentenced to death.
• October 28, 1999 — Death by electrocution was scheduled to be carried out unless stayed.

Other details

• Keegan was described as having been unconscious when his throat was cut, and the fatal bleeding was within fifteen minutes.
• The medical examiner described a wound as “victim's throat was cut; head almost decapitated.”
• A more complete recitation of the facts was stated to appear in State v. Strouth, 620 S.W.2d 467 (Tenn.1981).
• The separate opinion stated the indictment language included “killing and murdering [the victim] in the first degree.”
• The separate opinion reproduced the jury’s general verdict: “We, the jury, find the defendant guilty of murder in the first degree.”
• The separate opinion quoted the relationship between the instruction theories and general verdict and cited Schad v. Arizona.
• A post-conviction statute of limitations expiration on July 1, 1989 was noted in connection with Strouth’s Middlebrooks claim timing, including citations to Tenn.Code Ann. § 40-30-102 (repealed 1995), Abston v. State, Barber v. State, Burford v. State, and Sands v. State.
• Footnotes stated: a more complete recitation of facts appeared in the direct appeal opinion; Tennessee Code references for (i)(5) and (i)(7); co-defendant Dicks’s separate trial and direct appeal affirmance in State v. Dicks, 615 S.W.2d 126 (Tenn.1981); dual convictions later held not to violate double jeopardy in State v. Blackburn, 694 S.W.2d 934 (Tenn.1985); and that the court ordered supplemental briefing on three additional issues, then deemed them unnecessary after oral argument.
• The separate opinion was authored while dissent described in Middlebrooks was referenced in a footnote, including the author of the opinion and retired Justice O’Brien dissented in Middlebrooks.