
    Michael Eugene SAMPLE, et al. v. STATE of Tennessee.
    Supreme Court of Tennessee, at Jackson.
    Aug. 2, 2002.
    
      David M. Eldridge, Knoxville, Tennessee, and Harry R. Reinhart, Columbus, Ohio, for the appellant, Michael Eugene Sample.
    Michael E. Moore, Solicitor General; Jennifer L. Smith and Erik W. Daab, Assistant Attorneys General; William L. Gibbons, District Attorney General; and Reginald Henderson and John W. Campbell, Assistant District Attorneys General, for the appellee, State of Tennessee.
   OPINION

E. RILEY ANDERSON, J.,

delivered the opinion of the court, in which

ADOLPHO A. BIRCH, JR., and JANICE M. HOLDER, JJ., joined.

We granted review in this post-conviction capital ease to address two issues: (1) whether the trial court properly ruled that the petitioner’s claim that the prosecution suppressed exculpatory evidence was barred by the statute of limitations; and (2) whether the trial court properly determined that the jury’s reliance on the felony murder aggravating circumstance in imposing a death sentence for the offense of felony murder in violation of article I, § 16 of the Tennessee Constitution was harmless error beyond a reasonable doubt. The Court of Criminal Appeals affirmed the denial of post-conviction relief.

After carefully reviewing the record and applicable authority, we hold that our decision in Wright v. State, 987 S.W.2d 26 (Tenn.1999), did not create a per se rule requiring the dismissal of all late-arising suppression of exculpatory evidence claims, and that the record in this case preponderates against the trial court’s determination that the petitioner’s liberty interest in raising such an issue was outweighed by the State’s interest in finality. We therefore remand for further proceedings on this claim. We further hold that the violation of article I, § 16 of the Tennessee Constitution under the present facts in the record was harmless error beyond a reasonable doubt under State v. Howell, 868 S.W.2d 238 (Tenn.1993). We therefore reverse the Court of Criminal Appeals’ judgment and remand to the trial court for further proceedings consistent with this opinion.

BACKGROUND

Trial and Direct Appeal

The petitioner, Michael Eugene Sample, and a co-defendant, Larry McKay, were convicted of felony murder and sentenced to death for the 1981 killing of two men during an armed robbery in Memphis, Tennessee. To place the issues raised in this appeal in the appropriate context, we will briefly summarize the evidence from the trial and sentencing.

Melvin Wallace, Jr., testified that on August 29, 1981, he entered the L & G Sundry Store and saw two employees, Benjamin Cooke and Steve Jones, being held at gunpoint. Wallace tried to flee, but was shot in the leg by the petitioner, Michael Sample. While lying on the floor, Wallace heard Sample demand money and threaten to kill everyone, and he saw McKay shoot Cooke. When Sample realized that Wallace was still alive, he shot him in the back; Sample then put a gun to Wallace’s head, but it misfired. Wallace and Sample engaged in a struggle, and Wallace lost consciousness when the gun fired near his head. Wallace survived the shootings, but Cooke and Jones were killed.

The day after the offenses, police officers apprehended Sample and McKay and found a .32 caliber handgun in their car. Bullets fired from this weapon matched those found in all three victims. Two days after the offenses, Wallace identified Sample and McKay from a lineup. At trial, Wallace again identified Sample and McKay as the persons who committed the offenses. A second witness, Charles Rice, testified that he fled from the scene when he saw the robbery in progress; he likewise identified Sample and McKay as the perpetrators. Both Sample and McKay were convicted of two counts of felony murder.

At a sentencing hearing to determine punishment, Sample introduced mitigating evidence that he was an “exceptionally good” and “very conscientious” employee. Several family members testified about Sample’s work history, character, and qualities as a husband, father, and son-in-law. Sample’s mother testified that he was a good son and asked the jury to spare his life. Sample testified that he did not commit these crimes and asked the jury to spare his life for the sake of his son and wife.

The jury sentenced Sample to death based on three aggravating circumstances: that he created a great risk of death to two or more persons other than the victims who were murdered; that he committed the murder to avoid, interfere with or prevent a lawful arrest or prosecution; and that the murders were committed in the course of committing a felony. See Tenn. Code Ann. § 39 — 2404(i)(3), (6), (7) (Supp. 1981). The convictions and sentences were upheld on direct appeal. State v. McKay, 680 S.W.2d 447 (Tenn.1984), cert. denied, 470 U.S. 1034, 105 S.Ct. 1412, 84 L.Ed.2d 795 (1985).

Postr-Convictim Proceedings

The present action for post-conviction relief was filed in January of 1995. The petition alleged, among other grounds, that the prosecution violated his rights to due process and a fair trial under the Fourteenth Amendment to the United States Constitution and article I, § 8 of the Tennessee Constitution by suppressing exculpatory evidence. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Johnson v. State, 38 S.W.3d 52 (Tenn.2001). The petition also alleged that the jury’s reliance upon the felony murder aggravating circumstance violated article I, § 16 of the Tennessee Constitution. See State v. Middlebrooks, 840 S.W.2d 317 (Tenn.1992).

The trial court initially dismissed the post-conviction petition without requiring the State to file an answer, conducting an evidentiary hearing, or addressing the merits of the issues raised. When the dismissal was appealed, the Court of Criminal Appeals recognized that the petition had been filed after the expiration of the three-year statute of limitations then applicable to post-conviction cases, see Tenn.Code Ann. § 40-30-102 (1990), but concluded that the trial court erred in summarily dismissing the petition without determining whether the exculpatory evidence issue should be heard as a “later-arising” claim. The Court of Criminal Appeals further held that the trial court erred in failing to determine whether the violation of article I, § 16 of the Tennessee Constitution was harmless error beyond a reasonable doubt. Sample v. State, Nos. 02C01-9505-CR-000131 and 02C01-9505-CR-00139, 1996 WL 551754, 1996 Tenn.Crim.App. LEXIS 597 (Sept. 30, 1996).

On remand, the trial court determined that consideration of the exculpatory evidence issue was barred because the petition had been filed after the three-year statute of limitations. The trial court cited Wright v. State, 987 S.W.2d 26 (Tenn. 1999), in which this Court held that a late-arising exculpatory evidence claim was properly rejected because the petitioner had not been denied a reasonable opportunity to litigate the issue and the petitioner’s liberty interests in raising the issue were outweighed by the State’s interest in finality of judgments. The trial court also found that the violation of article I, § 16 of the Tennessee Constitution was harmless beyond a reasonable doubt.

On appeal following the remand, the Court of Criminal Appeals affirmed the trial court’s conclusion that the exculpatory evidence issue was barred by the statute of limitations, yet expressed concern that the decision in Wright may unfairly prevent petitioners from litigating late-arising exculpatory evidence issues through no fault of their own. The appeals court also agreed with the trial court’s determination that the jury’s reb-anee on the felony murder aggravating circumstance in violation of article I, § 16 was harmless beyond a reasonable doubt under State v. Howell, 868 S.W.2d 238 (Tenn.1993).

We granted this appeal.

EXCULPATORY EVIDENCE CLAIM

Suppressed “Brady” Evidence

The United States Supreme Court has held that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. at 87, 83 S.Ct. at 1196-97. Evidence is favorable to an accused where it exculpates the accused, mitigates the punishment, or impeaches the prosecution’s witnesses. See Johnson v. State, 38 S.W.3d at 55-56. Evidence is material when there is a reasonable probability that the result of the proceeding would have been different had the exculpatory evidence been disclosed. Id. at 58.

The post-conviction petition and attached exhibits in this case alleged that the prosecution violated these due process principles by suppressing police records that included numerous statements made by Melvin Wallace. For instance: Wallace told Sgt. J.D. Welch that he did not notice Sample during the robbery; Wallace told Sgt. Welch that he had been shot by McKay; Wallace told Officer J.D. Douglas that he could identify McKay but not the second man involved in the offense; and Wallace gave physical descriptions that did not match either McKay or Sample. The petition alleged that these statements were exculpatory and material because they contradicted Wallace’s critical eyewitness testimony at trial.

In addition, the petition alleged that the prosecution suppressed the following exculpatory evidence: reports that Sample’s fingerprints were not found at the scene of the offenses; reports that other potential suspects were near the scene at the time of the offenses; descriptions given to the dispatcher that matched neither Sample nor McKay; descriptions given to officers by witness Charles Rice that matched neither Sample nor McKay; inconsistent statements made by Rice regarding the offenses; and reports that drugs were commonly sold from the L & G grocery store.

The petitioner asserted that the claim was not raised within the three-year statute of limitations because he was unaware that the prosecution suppressed the exculpatory evidence until he had access to police investigative files pursuant to the decision in Capital Case Resource Center of Tennessee, Inc. v. Woodall, No. 01A01-9104-CH-00150, 1992 WL 12217, 1992 Tenn. Ct.App. LEXIS 94 (Jan. 29, 1992), which held that the Tennessee Public Records Act applies to criminal cases under collateral review. Moreover, after remand, the petitioner asserted that he had requested exculpatory evidence both before trial and after the Woodall decision and that he did not obtain possession of the evidence until September of 1993. The trial court nonetheless determined that the claim was barred by the statute of limitations.

Statute of Limitations

At the time the petitioner filed this petition for post-conviction relief, the Post Conviction Procedure Act stated:

[a] prisoner in custody under sentence of a court of this state must petition for post-conviction relief under this chapter within three (3) years of the date of the final action of the highest state appellate court to which an appeal is taken or consideration of such petition shall be barred.

Tenn.Code Ann. § 40-30-102 (1990). The statute was applied prospectively, meaning that petitioners whose cases were final before the statute was enacted were given three years from the effective date of July 1, 1986, in which to seek post-conviction relief. See State v. Masucci, 754 S.W.2d 90 (Tenn.Crixn.App.1988). Because this Court decided the petitioner’s direct appeal in 1984, the parties agree that the three-year statute of limitations began to run on July 1, 1986, and that the present petition, filed in January of 1995, was filed well after the limitations period expired.

Sample argues, however, that the exculpatory evidence claim could not have been raised before the statute of limitations expired because he did not have access to investigative files until the decision in Woodall in January of 1992 and did not have actual possession of the exculpatory evidence until September of 1993. Sample urges that application of the statute of limitations would deny him a reasonable opportunity to raise the claim and violate due process. The State, which notes that Woodall was decided in January of 1992, and that the petition was not filed until January of 1995, maintains that the claim was barred by the statute of limitations and that the petitioner was not denied a reasonable opportunity to have the claim heard.

Due Process

We first addressed whether due process may require an exception to the post-conviction statute of limitations in Burford v. State, 845 S.W.2d 204 (Tenn. 1992). The petitioner, whose post-conviction petition challenging his enhanced sentencing as a persistent offender was filed after the statute of limitations, argued that he could not raise the issue until prior convictions used to enhance his sentence were set aside in a separate post-conviction suit in another county. Id. at 205.

We recognized that although the State has a legitimate interest in preventing the litigation of stale claims by enacting statutes of limitations in post-conviction cases, “due process requires that potential litigants be provided an opportunity for the presentation of claims at a meaningful time and in a meaningful manner.” Id. at 208. In weighing the interests of a petitioner against the interests of the State, we said that “the test is whether the time period provides an applicant a reasonable opportunity to have the claimed issue heard and determined.” Id. at 208. Accordingly we concluded that strict application of the statute of limitations to prevent the petitioner from challenging his improperly enhanced sentence under the unusual procedural circumstances in Burford violated due process. Id.

In applying Burford, we have since clarified that due process may prohibit strict application of the statute of limitations in a post-conviction case “when the grounds for relief, whether legal or factual, arise after ... the point at which the limitations period would normally have begun to run.” Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995). In such a case, the court must determine whether application of the limitations period would deny the petitioner a reasonable opportunity to present the claim by balancing the “liberty interest in ‘collaterally attacking constitutional violations occurring during the conviction process,’ ... against the State’s interest in preventing the litigation of ‘stale and fraudulent claims.’ ” Id. (citations omitted); see also Caldwell v. State, 917 S.W.2d 662 (Tenn.1996) (application of the three-year statute of limitations did not deny petitioner a reasonable opportunity to raise a pretextual arrest issue).

As the parties recognize, we applied this balancing analysis to circumstances similar to the present case in Wright v. State, 987 S.W.2d 26 (Tenn.1999). In Wright, the petitioner’s first degree murder conviction and death sentence were affirmed on direct appeal in 1988. In January of 1995, after the three-year statute of limitations had expired, the petitioner filed a post-conviction petition alleging that the prosecution violated his right to due process by withholding exculpatory evidence. As in the present case, the petitioner alleged that the claim did not arise until he had access to investigative records under the Court of Appeals’ decision in Woodall. The trial court nonetheless found that the claim was barred by the three-year statute of limitations and dismissed the petition.

On appeal, we agreed that the exculpatory evidence issue was a later-arising claim and stressed that “the critical inquiry [was] whether ... application of the three-year statute of limitations effectively denied Wright a ‘reasonable opportunity’ to raise the issue.” Wright v. State, 987 S.W.2d at 29. We also acknowledged that the right asserted by Wright — the denial of due process from the prosecution’s suppression of exculpatory evidence — was a personal trial right directly relating to the justice or integrity of the conviction and sentence. Id. at 30 (citing Brady v. Maryland, 373 U.S. at 87, 83 S.Ct. at 1197).

In applying the analysis, however, we determined that the balancing otherwise “weighted] heavily in favor of the legitimate interests of the State,” inasmuch as the post-conviction suit was filed ten years after the commission of the offense, six and one-half years after the conviction became final, three and one-half years after the three-year post-conviction statute of limitations expired; and nearly three years after the Woodall decision. See id. Moreover, we concluded:

[T]his passage of time is directly related to the manner and means of litigating Wright’s issue. The availability of critical witnesses and their ability to recall and relate details as to the alleged suppression of exculpatory evidence and the facts of this offense are immediate and significant concerns. Wright’s mere allegation that the prosecution suppressed exculpatory evidence does not warrant relief. Instead, Wright must establish that favorable evidence existed, that it was material to the defense, and that it was, in fact, suppressed by the prosecution. Accordingly, ... raising this issue at this stage of the proceedings, would require extensive, possibly expensive litigation.

Id. (citations omitted); see also Caldwell v. State, 917 S.W.2d at 666 (“All the dangers inherent in the litigation of stale claims— which the State has a legitimate interest in preventing — appear to be present here”).

Despite the factual similarities to the present case, we believe that the State reads Wright too broadly in asserting that it requires the dismissal of all late-arising exculpatory evidence claims. We did not establish such a per se rule for rejecting exculpatory evidence claims in Wright or any other case, nor have we ever created a specific limitations period for late-arising claims in general. See Wright v. State, 987 S.W.2d at 30; Burford v. State, 845 S.W.2d at 208. Instead, beginning with Bmford, we have consistently said that the principles of due process are flexible and require balancing of a petitioner’s liberty interests against the State’s finality interests on a case by case basis. See Burford v. State, 845 S.W.2d at 207 (“Identification of the precise dictates of due process requires consideration of both the governmental interests involved and the private interests affected by the official action.”).

Accordingly, our review must consider that the record in the present case differs in several important respects from that in Wright. The post-conviction petition filed by Sample was accompanied by exhibits and records replete with apparent exculpatory evidence; in contrast, the petition in Wright contained “mere allegations” of exculpatory evidence. See Wright v. State, 987 S.W.2d at 30; see also Tenn.Code Ann. § 40-30-104(b) (1990) (“The petition shah have attached affidavits, records or other evidence supporting its allegations.... ”). When the court undertakes its review of the petition, exhibits, and records, such considerations necessarily bear upon the petitioner’s liberty interest.

Similarly, the record in this case, unlike Wright, details the petitioner’s efforts to obtain exculpatory evidence both before trial, after trial, and after the decision in Woodall. The petitioner asserted that the prosecution refused to respond to his repeated requests and that he was unable to secure the evidence until September of 1993, and then only through the assistance of the Capital Case Resource Center. The State’s sole response is that the exculpatory evidence was available when Woodall was decided in January of 1992; the State does not explain why the prosecution did not respond to the repeated requests of the petitioner and does not otherwise convincingly respond to the assertions regarding the petitioner’s efforts to secure the 'evidence. ■ Again, these considerations bear upon not only the significance of the petitioner’s liberty interest- in asserting a late-arising claim in a capital case but also the balancing of that interest against the State’s asserted interest.

Moreover, given these significant distinctions, our decisions following Wright likewise bear upon the issue in this case. In Williams v. State, 44 S.W.3d 464 (Tenn. 2001), for example, the petitioner alleged that his pro se petition for post-conviction relief was untimely because his attorney failed to comply with the procedural requirements for withdrawing from representation following direct appeal and the petitioner did not know whether his direct appeal remained pending. We remanded for an evidentiary hearing to determine whether the petitioner was denied a reasonable opportunity to seek post-conviction relief through no fault of his own due to the possible misrepresentation of his counsel. Id. at 471. Moreover, even though the petitioner apparently had three months to seek post-conviction relief after learning that his direct appeal had concluded, we remanded for a determination of whether he had “time enough” to preserve a reasonable opportunity to seek relief. See also Burford v. State, 845 S.W.2d at 208.

Similarly, a majority of the Court recently held under analogous circumstances that due process mandated an exception to the one-year statute of limitations where a petitioner in a capital case sought a writ of error coram nobis based on newly discovered evidence of actual innocence. Workman v. State, 41 S.W.3d 100 (Tenn.2001). In relying on Burford and Williams, the Court observed:

Weighing the[ ] competing interests in the context of this case, we have no hesitation in concluding that due process precludes application of the statute of limitations to bar consideration of ... this case. [The defendant’s] interest in obtaining a hearing to present newly discovered evidence that may establish actual innocence of a capital offense far outweighs any governmental interest in preventing the litigation of stale claims.

Id. at 103. Significantly, the majority stressed that the “delay in obtaining th[e] evidence [was] not attributable to the fault of [the defendant] or his attorneys,” and that the State had failed to respond to a prior subpoena that sought the evidence. Id. Moreover, the majority concluded that the fact that the defendant waited 13 months to raise the claim did not eliminate the due process implications. Id. at 103-104.

In our view, these considerations are applicable in the present case given the distinctions between it and Wright. In Williams, for example, we emphasized that a post-conviction petitioner should not be denied a reasonable opportunity to raise a claim due to another’s misconduct. In Workman, we emphasized that newly found exculpatory evidence in a capital case may warrant due process consideration where the fault in creating delay in raising the issue does not rest with the petitioner. Moreover, the fact that Sample waited approximately 16 months after discovering the evidence before raising the issue is not substantially different than the 13 month period in Workman. As we said in Workman, “the time within which th[e] petition was filed does not exceed the reasonable opportunity afforded by due process.” Id. at 103.

In reaching this holding we disagree with the dissent’s conclusion that the petitioner is barred from hearing his claim because he waited an unreasonable length of time to raise the issue after obtaining the evidence. Initially, we stress that the petitioner, despite his efforts, did not obtain the exculpatory evidence until well after the three-year statute of limitations had expired and therefore had no opportunity to file the claim within the statutory period. In comparison, the Court has granted due process relief in cases where the petitioners discovered their late-arising claims for relief before the statute of limitations had expired-yet asserted the claims after the statute expired. See Burford v.State, 845 S.W.2d at 209 (nine months remaining in the statutory period); Williams v. State, 44 S.W.3d at 471 (three months remaining in the statutory period).

In addition, although the petitioner did not raise the issue until 16 months after obtaining the evidence, it bears noting that there was at that time no statute of limitations applicable to late-arising claims; indeed, the Court in Burford, which was decided nine months before Sample obtained the evidence in this case, declined to adopt a specific period for asserting late-arising claims in favor of a case by case due process analysis. Burford, 845 S.W.2d at 208; see also Wright, 987 S.W.2d at 30. Moreover, the 16-month period under these circumstances must be viewed with and mitigated by the fact that the prosecution suppressed the evidence and prevented the issue from being litigated for over 10 years. In balancing the interests of the parties, there is simply no basis for holding that the 16-month period in and of itself was unreasonable.

Accordingly, we conclude that our decision in Wright v. State, 987 S.W.2d 26 (Tenn.1999), did not create a per se rule requiring the dismissal of all late-arising suppression of exculpatory evidence claims and that the record in this case preponderates against the trial court’s determination that the petitioner's liberty interests in raising such an issue were outweighed by the State’s interest in finality. We therefore remand for further proceedings on this claim.

MIDDLEBROOKS ERROR

As detailed above, the petitioner asserted that the jury’s reliance on the felony murder aggravating circumstance to impose a death sentence for the offense of felony murder violated article I, § 16 of the (Tennessee Constitution as provided in State v. Middlebrooks, 840 S.W.2d 317 (Tenn.1992). In Middlebrooks, we held that the felony murder aggravating circumstance set forth in Tenn.Code Ann. § 39 — 2—203(i) (7) (1982) duplicated the elements of the offense of felony murder and, when applied to a felony murder, failed to narrow the class of death eligible murderers as required by article I, § 16 of the Tennessee Constitution and the Eighth Amendment to the United States Constitution.

The new constitutional rule announced in Middlebrooks has since been applied retroactively in post-conviction cases. See Barber v. State, 889 S.W.2d 185, 187 (Tenn.1994). As both parties recognize, therefore, the jury’s reliance on the invalid felony murder aggravating factor was constitutional error properly recognized in this post-conviction proceeding. The critical inquiry is whether the error was harmless and whether a resentencing hearing is required.

In State v. Howell, we held that a Middlebrooks error does not require a resen-tencing 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.” 868 S.W.2d 238, 262 (Tenn.1993). We stressed that the reviewing court must “completely examine the record for the presence of factors which potentially influence the sentence ultimately imposed,” including “the number and strength of remaining valid aggravating circumstances, the prosecutor’s argument at sentencing, the evidence admitted to establish the invalid aggravator, and the nature, quality and strength of mitigating evidence.” Id. at 260-61.

In reviewing the first factor under Howell, there were two valid aggravating circumstances relied upon by the jury in imposing the death sentences, in addition to the invalid felony murder aggravating circumstance: that Sample knowingly created a great risk of death to two or more persons other than the victim murdered, during the act of murder; and that the murders were committed to avoid arrest or prosecution. Tenn.Code Ann. § 39-2404©(3), (6) (Supp.1981).

With regard to the “great risk of death” aggravating circumstance, this Court has said it “has been applied where a defendant fires multiple gunshots in the course of a robbery or other incident at which persons other than the victim are present.” State v. Henderson, 24 S.W.3d 307, 314 (Tenn.2000) (citation omitted). The trial court found that both Sample and McKay “were convicted of murdering two people and in addition a third person was shot and left to die.” The Court of Criminal Appeals likewise observed that the evidence showed that “McKay and Sample were acting jointly to kill three people, and they fired at least seven gunshots between them.” The court reasoned that the murder of Cooke placed two other victims, Jones and Wallace, at great risk of death, and that the murder of Jones placed two other victims, Cooke and Wallace, at great risk of death. We agree that the facts revealed that Sample engaged in conduct that knowingly created a great risk of death to two or more persons in the store other than the murder victims. Indeed, we have previously cited the present case as an example of this aggravating circumstance being applied properly. See Johnson v. State, 38 S.W.3d at 61; see also State v. Burns, 979 S.W.2d 276, 281 (Tenn. 1998).

With regard to the “avoiding arrest or prosecution” aggravating circumstance, this Court has frequently said that this aggravating circumstance applies whenever the evidence demonstrates that avoidance of arrest or prosecution was one of the motives for the killing, and that it need not be the sole motive. See State v. Henderson, 24 S.W.3d at 314; see also State v. Bane, 57 S.W.3d 411, 423 (Tenn. 2001); Terry v. State, 46 S.W.3d 147, 161 (Tenn.2001). The trial court found that it was “abundantly clear from the record that the shootings occurred in order for [Sample and McKay] to avoid arrest and prosecution.” The Court of Criminal Appeals likewise correctly observed that Sample and McKay killed two eyewitnesses to the robbery and then fled after believing a third eyewitness had been killed.

In turning to the next Howell factor, we observe that no additional evidence was admitted to support the invalid felony murder aggravating circumstance and that it was relied upon by the prosecution solely to prove the offenses in the guilt phase. As we said in Howell, “an aggravating factor which duplicates the elements of the underlying crime has less relative tendency to prejudicially affect the sentence imposed than invalid aggravating factors which interject inadmissible evidence into the sentencing calculus, or which require the sentencing jury to draw additional conclusions from the guilt phase evidence.” 868 S.W.2d at 261. Accordingly, the jury in this case heard no more evidence in support of the felony murder aggravating circumstance than had already been presented to prove the offense of felony murder during the guilt phase of the trial.

With regard to the emphasis placed on the felony murder, the record reveals that the prosecution mentioned the felony murder aggravating circumstance on several occasions in its closing argument following the sentencing proceedings. As the trial court found, however, “it was certainly mentioned that the murders were committed during the commission of a robbery,” but “more significance was attributed to the other aggravating factors.” Similarly, the Court of Criminal Appeals noted that while the prosecution’s closing argument “did mention the felony murder aggravator several times, this issue was not dwelled upon or given undue emphasis.” Our review also reveals that the majority of the prosecution’s arguments was devoted to the remaining two aggravating circumstances and rebutting the mitigating evidence.

With regard to the final Howell factor— the nature, quality and strength of the mitigating evidence — the trial court found that Sample asked the jury to spare his life for his wife and child and that he presented evidence regarding his family support and work background. The Court of Criminal Appeals summarized the mitigating proof as follows:

Two of Samples’ foremen testified on his behalf, stating that he was an ‘exceptionally good’ employee, that he was ‘very conscientious,’ and that he had ‘no problem with the people’ he oversaw. Sample’s sister testified, explaining that Sample had left school after the ninth grade to start working. [Sample’s] mother-in-law and father-in-law ... testified as to Sample’s good character and as to his good qualities as a husband, father, and son-in-law. His mother testified ... that Sample was a good son and [asked] the jury to spare his life. Sample testified on his own behalf, stating that he did not commit these crimes and asking the jury to spare his life for the sake of his son and wife.

We have considered all of the relevant Howell analytical factors in our review of the record, and have considered and applied the requirement for individualized sentencing. We agree with the Court of Appeals that while the evidence in mitigation warrants some weight, the evidence of two remaining aggravating circumstances was substantial. Moreover, we agree that there was no additional or improper evidence of felony murder during sentencing and that the prosecution did not place great or undue emphasis on the felony murder aggravating circumstance. Accordingly, we agree with the Court of Criminal Appeals’ that the verdict would have been the same had the jury given no weight to the invalid aggravating circumstance.

CONCLUSION

After carefully reviewing the record and applicable authority, we hold that our decision in Wright v. State, 987 S.W.2d 26 (Tenn.1999), did not create a per se rule requiring the dismissal of all late-arising suppression of exculpatory evidence claims and that the record in this case preponderated against the trial court’s determination that the petitioner’s liberty interests in raising such an issue were outweighed by the State’s interest in finality. We further hold that the violation of article I, § 16 of the Tennessee Constitution under the present facts in the record was harmless error beyond a reasonable doubt under State v. Howell, 868 S.W.2d 238 (Tenn. 1993). We therefore reverse the Court of Criminal Appeals’ judgment and remand to the trial court for further proceedings consistent with this opinion. Costs of this appeal are taxed to the State of Tennessee for which execution may issue if necessary.

FRANK F. DROWOTA, III, C.J., filed a concurring opinion.

WILLIAM M. BARKER, J„ filed a concurring and dissenting opinion.

FRANK F. DROWOTA, III, C.J.,

concurring.

I fully concur in the majority decision but feel compelled to write separately to respond to the dissent’s characterization of the majority’s decision in Workman v. State, 41 S.W.3d 100 (Tenn.2001), as a “hastily considered decision — one brought on by the pressures of extraordinary circumstances — and it cannot be justified as a logical or natural progression of the law.” To the contrary, from even a cursory reading it is clear that the majority decision in Workman resulted from a principled application of established law to the facts of a particular case. The dissent’s claim that the majority opinion in Workman is not founded in logic or prior law is easily dispelled by simply considering the language of the opinion itself, rather than the dissent’s hyperbole. In concluding that consideration of Workman’s petition for a writ of error coram nobis was not foreclosed by the statute of limitations, the majority meticulously applied the due process balancing test outlined in Burford v. State, 845 S.W.2d 204 (Tenn.1992), Seals v. State, 23 S.W.3d 272 (Tenn.2000), and Williams v. State, 44 S.W.3d 464 (Tenn.2001). In so holding, we stated as follows:

As in Burford, to determine whether due process requires tolling in this case, we must consider the governmental interests involved and the private interests affected by the official action. In this case, as in Burford, the governmental interest in asserting the statute of limitations is the prevention of stale and groundless claims. The private interest involved here is the petitioner’s opportunity to have a hearing on the grounds of newly discovered evidence which may have resulted in a different verdict if heard by the jury at trial. If the procedural time bar is applied, Workman will be put to death without being given any opportunity to have the merits of his claim evaluated by a court of this State.
Weighing these competing interests in the context of this case, we have no hesitation in concluding that due process precludes application of the statute of limitations to bar consideration of the writ of error coram nobis in this case. Workman’s interest in obtaining a hearing to present newly discovered evidence that may establish actual innocence of a capital offense far outweighs any governmental interest in preventing the litigation of stale claims. Workman has raised serious questions regarding whether he fired the shot that killed Memphis Police Lieutenant Ronald Oliver. If he did not fire that shot, he is not guilty of the crime for which he is scheduled to be put to death. These claims are based upon evidence obtained from the Shelby County Medical Examiner’s Office long after the conclusion of the state post-conviction proceedings. The defendant’s delay in obtaining this evidence is not attributable to the fault of Workman or his attorneys. In fact, Workman previously had filed a subpoena requesting an x-ray of this type, but it was not provided. No court in this State has actually held a hearing to fully evaluate the strength of these claims. Under such circumstances, Workman’s interest in obtaining a hearing on these claims clearly outweighs the governmental interest embodied in the statute of limitations. Accordingly, due process precludes summary dismissal of this claim based upon a statutory time bar.

Id. at 103. We considered that Workman filed the petition in state court thirteen months after discovery of the evidence, but concluded that Burford and its progeny clearly mandate that a petitioner be afforded a reasonable opportunity after the expiration of the limitations period to present claims in a meaningful time and manner. Under the circumstances of the case, we held that thirteen months was not an unreasonable delay, particularly in light of the twelve-month coram nobis statute of limitations and “the magnitude and gravity of the death penalty.” Id. at 103-104. In sum, the majority opinion in Workman accurately applied settled law in affording the petitioner due process relief from the coram nobis statute of limitations.

The dissenting opinion criticizes the majority in Workman and apparently would have barred the claim because it was brought thirteen, rather than twelve, months after the evidence was discovered. In my view, the dissenting justice’s position that the claim should have been barred because it was brought one month beyond the time initially afforded is impossible to reconcile with Burford and Williams, decisions with which the dissent professes to agree. The petitioner in Bur-ford failed to timely file his claim even though nine months remained on the governing statute of limitations when he discovered the grounds for his claim. Notwithstanding the remaining time on the statute, this Court held that due process entitled him to additional time. Likewise, in Williams, a decision authored by the dissenting justice, the petitioner failed to timely file his claim even though at least three months remained on the governing statute of limitations. Nevertheless, a majority of this Court held that due process tolled the statute of limitations despite statutory provisions stating that the post-conviction statute of limitations should not be tolled for any reason. Given the decisions in Burford and Williams, I am bewildered by the dissenting justice’s initial and continuing “disapproval” of the majority decision in Workman. Unlike the petitioners in Burford and Williams, the petitioner in Workman had no time remaining under the governing statute of limitations and no opportunity, reasonable or otherwise, to bring his claim within the statute of limitations.

The dissent makes much of the fact that Workman’s petition was filed in state court shortly before his scheduled execution and charges that the majority decision was influenced by the timing of the filing. This charge has absolutely no basis in fact. To the contrary, last minute filings are disfavored. Nevertheless, surely the dissent would agree that this Court should not refuse to apply existing and established law merely because a claim is filed shortly before a scheduled execution. Indeed, such a rule would be arbitrary and the ultimate exaltation of form over substance.

As in Workman, the majority decision in this case accurately applies existing and established law. Accordingly, I concur with the majority decision.

WILLIAM M. BARKER,

concurring in part, dissenting in part.

In the majority's opinion today, I find much with which to agree. For example, I concur in the majority’s holding that our decision in Wright v. State, 987 S.W.2d 26 (Tenn.1999), did not create a per se bar against all later-arising claims alleging suppression of exculpatory evidence. I also agree with the majority that a defendant may bring such a claim, notwithstanding the running of the statute of limitations under the Post-Conviction Procedure Act, so long as any delay in filing the petition for relief is reasonable under all the circumstances. Finally, I agree that the Middlebrooks error here is harmless beyond a reasonable doubt under the standard recognized by this Court in State v. Howell, 868 S.W.2d 238 (Tenn.1993).

However, I write separately to respectfully express my disapproval with the majority’s reliance on Workman v. State, 41 S.W.3d 100 (Tenn.2001), as authority for finding that the defendant in this case made a timely filing for post-conviction relief. I was one of two members of this Court who dissented from the decision in Workman, and I regret that it has been used today as authority to toll the post-conviction statute of limitations for a sixteen-month period.

I. Shortcomings of Workman v. State, 41 S.W.3d 100 (Tenn.2001)

A mere two days before his scheduled execution, Philip Workman filed a motion to reopen his post-conviction petition under Tennessee Code Annotated section 40-30-217(a)(2) (1997), claiming that he possessed new scientific evidence that showed his actual innocence of the crime for which he was sentenced to death. He also filed a motion seeking a writ of error coram no-bis. Both the trial court and the Court of Criminal Appeals denied these petitions, finding that he was not eligible to reopen his post-conviction petition under the statutes and that his motion for the writ of error coram nobis was barred by the statute of limitations.

On the very afternoon of his scheduled execution, Workman appealed these findings to this Court, and in a 3-2 decision remanding the case to determine whether a writ of error coram nobis should issue, Workman’s imminent execution was stayed with little more than an hour remaining. Although the statute of limitations for a writ of error coram nobis is one year from the date of the defendant’s conviction, see Tenn.Code Ann. §§ 40-26-105; 27-7-103, the Workman majority held that considerations of due process tolled that limitations period to allow the defendant to have a hearing on the issue. The factual basis for doing so was cited only vaguely as “the circumstances of the case.” See Workman, 41 S.W.3d at 101, 103-04.

I dissented from the majority’s decision because I believed then, as I do now, that the defendant had been afforded all of the process' — and more — that the Constitution commanded was due to him. Prior to Workman, the lynchpin of the due-process tolling analysis was the presence of circumstances beyond the defendant’s control which conspired to prevent the defendant from making a timely assertion of rights. After all, only when the defendant is faced with such circumstances does his or her liberty interest become sufficient weighty to overcome the State’s countervailing interests in preserving the finality of judgments and preventing stale and groundless claims.

However, when a defendant sits on his or her rights, these governmental interests become even more compelling. The Workman majority did not recognize this fact, and it instead improperly focused its attention upon the defendant’s delay in obtaining the evidence rather than upon his lengthy delay in bringing the evidence to the attention of a court. See Workman, 41 S.W.8d at 103. The fact remains, however, that Workman delayed seeking a writ of error coram nobis for an additional thirteen months after his receipt of this evidence. Even granting for sake of argument that the one-year statute of limitations did not begin running until he actually came into possession of the evidence, Workman’s claim would still have been well beyond this “new” full limitations period.

In essence, the Court’s decision in Workman can stand for three propositions: (1) that due process considerations can toll a statute of limitations even without evidence suggesting that the defendant was prevented by circumstances beyond his or her control from bringing a timely claim; (2) that due process considerations can toll a statute of limitations even when the delay in seeking relief is the result of a tactical decision — the overwhelming indication from the record was that Workman’s delay in seeking relief was a tactical decision to delay his execution; and (3) that due process considerations can toll successive “statutes of limitations,” so as to permit a defendant as many as three bites at the post-conviction apple — Workman was permitted a hearing eighteen years after the original statute of limitations had run and after his “new” full statute of limitations, beginning from the discovery of the alleged exculpatory evidence, had run as well. These propositions have no basis whatsoever in our prior decisions, and with them, the Court ushered in dangerous and ominous concepts that may ultimately render a nullity all statutes of limitations for post-conviction remedies.

Our new era of due-process tolling jurisprudence is disconcerting principally because it is without identifiable limits or boundaries. How is any court to know when due process commands that a statute of limitations be tolled after our holding in Workman? Prior to today, one could have reasonably supposed that Workman was merely an aberration in the law, with its result compelled by the fact that the defendant was already in the chamber when the stay of execution was issued. However, by relying upon Workman today, the Court has undermined any such supposition, and it has instead breathed full life into a decision that we should properly put asunder.

I am at a loss to know where this due-process tolling path will end, but I suspect that it will end, if at all, only after miring the law in a state of unmitigated turmoil. As we can already see from a quick review of the eases from the Court of Criminal Appeals, the intermediate court is unclear as to how to apply Workman or what the limits of that case may be. Indeed, given the vagueness of the factors supporting its holding, I believe that attempting a consistent application of due-process tolling after Workman is likely to be less fruitful than answering any one of the imponderables offered in William Blake’s timeless poem, “The Tyger.”

At the end of the day, our continued reliance on Workman as authority for any proposition only serves to further compound our previous error. Plainly stated, Workman was a hastily considered decision — one brought on by the pressures of extraordinary circumstances — and it cannot be justified as a logical or natural progression of prior law. I would therefore prefer that we admit our analytical mistakes in Workman and either overrule that decision or consign its fate to the realm of legal oblivion.

II. Application of Workman to this Case

In the case before us today, we are again faced with the question of whether due process considerations allow a defendant to late-file a post-conviction petition after coming into possession of alleged exculpatory evidence. The majority concludes, after appropriately distinguishing Wright, that a defendant may do so, provided that any delay in bringing the petition is reasonable under the circumstances. As I stated earlier, I fully concur with this proposition. However, the majority then concludes that the sixteen-month delay in this case is reasonable under the circumstances, if only because this time period “is not substantially different than the period in Workman.” It is with this conclusion that the majority and I must part ways.

Although the majority is correct that this case is not “substantially different” from Workman, this fact should be a basis for denying the defendant’s petition, not for allowing it to proceed. Just as the defendant in Workman unreasonably sat on his rights as a tactical decision to delay his execution, so too has the defendant in this case been guilty of an unreasonable delay in asserting his rights. Indeed, like Workman, the defendant here came into possession of evidence that he believed warranted a new trial, but he did not seem at all interested in seeking relief. He did not, for example, file a petition for relief within a week, within a month, or even within a full year of his discovery of this evidence. Instead, he waited nearly a year and a half to bring this evidence to the attention of a court. Again, even assuming, as I did in Workman, that this defendant was somehow granted an additional twelve months after his discovery of the alleged exculpatory evidence to file a petition for relief, nothing here suggests that he is entitled to an extra four months beyond that period in which to file. Because of this considerable and lengthy delay, I do not agree that this defendant’s liberty interests are so weighty that “due process” considerations must now intervene to assist him in his quest for a new hearing.

Therefore, contrary to the majority’s holding, I find no basis for holding that a sixteen-month delay in seeking relief is reasonable under the circumstances of this ease. It does not appear that the defendant was prevented from filing his petition for post-conviction relief due to any circumstances beyond his control; rather, it appears that he was merely dilatory in asserting his rights — a fact which does not properly entitle him to due-process tolling considerations. In the end, the majority’s reliance on Workman as authority for its holding today is disheartening, as we have now taken a second — but quite critical— step in permitting “due process considerations” to erase the significance of statutes of limitations in the post-conviction context.

For these reasons, I respectfully dissent from the Court’s holding that Defendant Sample’s filing for post-conviction relief is timely. 
      
      . Present versions of these aggravating circumstances Eire found in Tenn.Code Ann. § 39 — 13—204(i)(3), (6), (7) (1997 & Supp. 2001).
     
      
      . The trial court found that the petitioner has filed six petitions for post-conviction relief, all of which have been denied. Our records indicate that the following post-conviction suits were denied and also affirmed on appeal: McKay & Sample v. State, No. 25, 1989 WL 17507, 1989 Tenn.Crim.App. LEXIS 153 (March 1, 1989); Sample & McKay v. State, No. 02CO 1-9104-CR-00062, 1995 WL 66563, 1995 Tenn.Crini.App. LEXIS 115 (Feb. 15, 1995); State v. McKay & Sample, No. 02C01-9506-CR-00175, 1996 WL 417664, 1996 Tenn.Crim.App. LEXIS 460 (July 26, 1996).
     
      
      . Moreover, the prosecution is responsible for any favorable evidence known to others acting on the State's behalf, including the police. See Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995); Johnson v. State, 38 S.W.3d'at 56.
     
      
      . In addition, the petition alleged that the prosecution withheld exculpatory evidence regarding an earlier robbery committed in the same area that the prosecution had attempted to link to Sample and McKay.
     
      
      . Presently codified at Tenn.Code Ann. § 10-7-505 (1999 & Supp.2001).
     
      
      .In contrast, the current Post Conviction Procedures Act contains a one (1) year statute of limitations. See Tenn.Code Ann. § 40-30-202(a) (1997). Because Sample's petition was filed before the effective date of the present act, it is governed by the Post Conviction Procedure Act then in effect.
     
      
      . In addition, the State notes that the claim was actually available several months earlier pursuant to the Court of Appeals' decision in Freeman v. Jeffcoat, No. 01A01-9103-CV-00086, 1991 WL 165802, 1991 Tenn. Ct.App. LEXIS 659 (Sept. 11, 1991, as corrected), which reached a similar conclusion as Woo-dall.
      
     
      
      . In adopting this balancing analysis, we have declined to create a specific limitations period for later-arising claims. Burford v. State, 845 S.W.2d at 208; see also Wright v. State, 987 S.W.2d at 30.
     
      
      . As we have recognized in analogous circumstances regarding the tolling of the statute for mental incompetency: "We emphasize that to make a prima facie showing of incompetence requiring tolling of the limitations period, a post-conviction petition must include specific factual allegations that demonstrate [mental incompetency]. Unsupported, conclusory, or general allegations of mental illness will not be sufficient to require tolling and prevent summary dismissal....” State v. Nix, 40 S.W.3d 459, 464 (Tenn.2001).
     
      
      . In this case, the trial court appeared to make such an initial determination by finding that Melvin Wallace's inconsistent statements regarding identification were not material because he was thoroughly examined at trial. We note, however, that the trial court assessed only a portion of the witness's statements and, moreover, did not make findings regarding all of the allegedly exculpatory evidence asserted by the petitioner.
     
      
      .The trial court's finding that the petitioner's efforts to acquire the evidence amounted to a challenge to the conduct of his post-conviction counsel is clearly erroneous; the efforts were directly relevant to the question of whether the petitioner had a reasonable opportunity to raise the issue. Similarly, the trial court’s observation that the petitioner did not comply with the Public Records Act by requesting the records in person during business hours is hardly dispositive of whether the petitioner had a reasonable opportunity to raise the issue within the statutory period.
     
      
      . Although I joined Justice Barker in dissenting from the majority in Workman, I fully respect that it is the law in this State and must be applied when applicable. As such, I find that the reasoning in Workman with respect to the appropriate due process balancing analysis under Buford and its progeny is persuasive as applied in this post-conviction capital case.
     
      
      . The dissent writes that if the petitioner is "somehow granted an additional 12 months after his discovery of the alleged exculpatory evidence to file a petition for relief, nothing here suggests that he is entitled to an extra four months beyond that period....” (emphasis in original). The dissent’s consideration of a 12-month period in its analysis is misplaced given that the statute of limitations applicable in this post-conviction case was three years and there was no specific statutory period for raising late-arising claims. Although the dissent faults the Workman decision for allowing a 13-month delay where the statute of limitations in a coram nobis case was 12 months, that statutory period is not at issue here.
     
      
      . Although we have remanded on the exculpatory evidence issue, we believe it is appropriate to address the Middlebrooks issue as it presently has been raised under the existing circumstances in this record. Our conclusions will not preclude additional consideration of the sentencing error as it may relate to the findings regarding the exculpatory evidence. See Johnson v. State, 38 S.W.3d at 59 (consideration of exculpatory evidence with respect to remaining aggravating circumstances).
     
      
      . Initially, we note that we have previously rejected the petitioner’s argument that an appellate court may not conduct harmless error review of an invalid aggravating circumstance. See State v. Boyd, 959 S.W.2d 557, 562-63 (Tenn. 1998). We have also previously rejected the argument that the harmless error review must also weigh the effect of alleged errors that are not properly before the post-conviction court. See King v. State, 989 S.W.2d 319, 327 (Tenn. 1999).
     
      
      . Presently found at Tenn.Code Ann. § 39-13 — 204(f)(3), (6) (1997 & Supp.2001).
     
      
      . See Burford v. State, 845 S.W.2d 204 (Tenn. 1992); Seals v. State, 23 S.W.3d 272 (Tenn. 2000); Williams v. State, 44 S.W.3d 464 (Tenn.2001).
     
      
      . As the majority in this case is careful to note, there is no "due process" statute of limitations for later-arising claims, as the timeliness of filings in individual cases are determined by what is reasonable under the circumstances. However, supposing that the one-year limitations period, without more, would be the presumptive outer limit of reasonableness for a writ of error coram nobis, I still must question the propriety of granting a hearing in the face of a thirteen-month delay. This is especially the case when, as in Workman, no evidence shows that the defendant was prevented from seeking relief due to circumstances beyond his or her control.
     
      
      . Workman clearly does not follow from our previous decisions addressing due-process tolling. In Burford v. State, 845 S.W.2d 204 (Tenn. 1992), the defendant could not file within the applicable limitations period because his claim, due to no fault of his own, had yet to accrue. In Seals v. State, 23 S.W.3d 272 (Tenn.2000), the defendant could not file within the applicable limitations period, due to no fault of his own, because of questions of mental incompetence. Even in Williams v. State, 44 S.W.3d 464 (Tenn.2001), the defendant alleged that he could not file a petition for relief, when due to no fault of his own, he labored for nine months under the impression that he was still being represented by counsel in a direct appeal to this Court.
      As the majority in Williams acknowledged, the defendant in that case still had an additional three months within the original limitations period to file a post-conviction petition after he learned that he was no longer being represented by counsel. However, although the record contained sufficient cause for concern, it was insufficiently developed to enable this Court to rule upon whether the timing of the ultimate filing was reasonable. As such, a majority of this Court remanded the case for such a determination. See 44 S.W.3d at 471.
      Importantly, however, even an expansive reading of 'Williams reveals that it is not at all similar to the situation presented in Workman. Nothing in Workman suggested that the tolling of the statute of limitations for an additional thirteen months was reasonable under any set of circumstances presented in that case. Indeed, even assuming that Workman was somehow granted an additional twelve months to file after his discovery of the alleged exculpatory evidence — a proposition which I do not grant — nothing in that record suggested that he was entitled to the benefit of a extra month beyond that period in which to seek relief.
     
      
      . As the majority notes, Sample received the allegedly exculpatory statements and reports in September of 1993. Nearly sixteen months later, in January of 1995, he filed his post-conviction petition based on this evidence.
     
      
      . I take no issue with the majority’s conclusion the statute of limitations was tolled during the time that the State failed to disclose the allegedly exculpatory evidence and reports. As in any case in which the State withholds evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the weight of the State’s interests in finality and in preventing stale claims is diminished vis-á-vis the defendant's interest in personal liberty. However, once having received this evidence from the State, it was incumbent upon the defendant to then assert his rights in a timely and reasonable manner. The longer the delay in asserting these rights, the more that the defendant’s interests in liberty must, of necessity, diminish.
     