The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
CHARLES MONTAGUE v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Washington County
No. 21843, Lynn W. Brown, Trial Judge
No. E2000-00083-CCA-R3-PC - Decided July 11, 2000
Charles Montague appeals the Washington County Criminal Court’s summary dismissal of his pro
se post-conviction petition challenging his conviction for first degree murder. The appellant’s
original and supplemental petitions with attached affidavit present a myriad of claims within the trial
process. The post-conviction court dismissed all claims without a hearing, finding the original and
supplemental petitions were not properly verified and that the petitions failed to assert a sufficient
factual basis for relief. After review of the petition, we affirm the post-conviction court’s dismissal
of certain claims and vacate its dismissal as to others. The case is remanded to the post-conviction
court for further review of the surviving claims.
Tenn. R. App. P. 3(b) Appeal as of Right; Judgment of the Criminal Court affirmed in part;
reversed and remanded in part.
HAYES, J. delivered the opinion of the court, in which WITT, and OGLE , JJ., joined.
Charles Montague, Mountain City, Tennessee, Pro Se
Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Patricia C.
Kussmann, Assistant Attorney General, Joe C. Crumley, Jr., District Attorney General, and Steve
R. Finney, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
The appellant, Charles Montague, appeals, pro se, the Washington County Criminal Court’s
summary dismissal of his petition for post-conviction relief from his 1993 conviction for first degree
murder. At issue in this appeal is whether the post-conviction court properly dismissed the petition
without an evidentiary hearing on the grounds that both the original petition and the supplemental
petition failed to comply with the provisions of Tenn. Code Ann. § 40-30-201 et seq. (1995 Supp.).1
After consideration of the pro se petition for post-conviction relief, we affirm, in part, the
post-conviction court’s summary dismissal of certain post-conviction claims but reverse the court’s
dismissal of other claims for which an evidentiary hearing is required. Accordingly, this case is
remanded for an evidentiary hearing on those claims identified as colorable as set forth in this
opinion.
Procedural History
In January 1993, the appellant was convicted by a Washington County jury for the first
degree murder of Donnie McMillian. The trial court imposed a sentence of life imprisonment. This
court affirmed the conviction and sentence on direct appeal. See State v. Charles Montague, No.
03C01-9306-CR-00192 (Tenn. Crim. App. at Knoxville, Nov. 21, 1994), perm. to appeal denied,
(Tenn. Apr. 10, 1995). The appellant is presently incarcerated at Northeast Correctional Facility.
The appellant filed a seventy-two page pro se petition for post-conviction relief (including
attachments) in the Washington County Criminal Court on July 17, 1995. The petition alleged, inter
alia,
1
The appellant’s pro se brief raises a multitude of issues, including, inter alia:
(1) The District Attorney failed to file transcripts, records, etc. in the post-conviction record;
(2) The appellant is entitled to an evidentiary hearing on the issue of ineffective assistance of
counsel;
(3) The trial court erred in denying the appellant’s motion for change of venue;
(4) The instruction for first degree murder was unconstitutionally vague and deficient;
(5) The reasonable doubt instruction was unconstitutionally vague or deficient;
(6) The trial court’s failure to order individual voir dire of the venire denied the appellant a fair trial;
(7) The post-conviction court erred in denying post-conviction motions regarding
(a) motion for complete transcript of jury selection;
(b) request for discovery;
(c) Ake request for private investigator;
(d) motion for court to declare defense counsel’s non-responses to interrogatories as being
admitted;
(e) request for clerk to provide appellant certified copies of the record;
(f) motion for default judgment against the State;
(8) Failure to hold evidentiary hearing (same argument as in (1) and (2));
(9) Failure to rule on post-conviction motions denied appellant due process; and
(10) Prosecutorial misconduct during trial.
As the dispositive issue in the case sub judice remains the propriety of the post-conviction court’s
summary dismissal of the petition without an evidentiary hearing, we need not address extraneous
issues raised by the appellant on appeal.
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(1) The trial court improperly denied Motion for Change of Venue;
(2) Ineffective assistance of counsel;
(3) The prosecution presented false testimony and evidence;
(4) Improper chain of custody as to fingerprint evidence;
(5) The prosecution failed to lay a proper foundation preceding admission of
latent prints evidence;
(6) Brady violation;
(7) The first degree murder pattern jury instruction is unconstitutional;
(8) The trial court improperly instructed jury as to reasonable doubt;
(9) The prosecution coerced witnesses to testify;
(10) Visible security measures at trial prejudiced jury; and
(11) The trial court failed to require individual voir dire.
The appellant requested that counsel be appointed for the post-conviction proceedings. Counsel was
appointed to represent the appellant and, on December 1, 1995, submitted an amended petition.
However, the attorney-relationship became severely strained and counsel was permitted to withdraw,
on July 31, 1996.
Substituted counsel was then appointed by the post-conviction court. Substituted counsel
likewise submitted an amended petition.2 The appellant, apparently still unsatisfied with his
appointed counsel, requested that he be permitted to proceed pro se. After advising the appellant
of the perils of self-representation, the post-conviction court granted the appellant’s request. A
written waiver of post-conviction counsel was filed by the appellant on March 4, 1998. The
appellant also withdrew the amended petitions filed by counsel and elected to proceed on his original
pro se petition with amendments.
On June 15, 1998, the appellant filed a supplemental post-conviction petition. The
supplemental petition alleged, as additional grounds:
1. The indictment failed to state the proximate cause of death nor the actions of the
appellant which bring him within the statute and counsel should have challenged the
same on this basis;
2. “Negroes in Washington County, Tn, are being systematically excluded from
serving on Grand and Petit Juries.” Specifically, he alleges that “The judge appoints
three jury commissioners who are ‘Ku-Klux-Klan’ members, the jury commissioners
make up a jury list of all white persons except a token black woman. She can only
2
This amended petition, filed on January 10, 1997, presented three claims (1) ineffective
assistance of counsel; (2) unconstitutional systematic jury exclusion; and (3) prosecutorial
misconduct. A second amended petition was filed on February 25, 1998, in order to clarify the
claims raised in the amended petition.
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serve on the Grand Jury or the petit jury.” Accordingly, he argues that Tenn. Code
Ann. § 22-2-201 et seq. are unconstitutional in that these provisions provide for
systematic exclusion of African-Americans.
Attached to the supplemental petition was an accompanying affidavit, alleging fifteen specific claims
of ineffective assistance of counsel.
The State filed an Answer and Motion to Dismiss the Amended Petition contending that the
appellant’s petition fails to satisfy the procedural requirements of Tenn. Code Ann. § 40-30-204(d).
On November 25, 1998, the post-conviction court entered an order granting the appellant “a
reasonable amount of time [thirty days] to supplement his petition and amended petition to contain
this language as required by Tenn. Code Ann. § 40-30-204(d).” The order further advised that
failure to comply would result in the dismissal of the petition.
On January 15, 1999, the State again filed a motion to dismiss the appellant’s petition and
supplemental petition for failure to comply with the court’s November 25th order requiring
compliance with Tenn. Code Ann. § 40-30-204(d). Specifically, the State argued that the appellant’s
“Oath and Affirmation” filed on December 21, 1998, failed to satisfy Tenn. Code Ann. § 40-30-
204(d), as it states, “that I raised all constitutional claims known to me, at this time.” The State
maintained that the language “at this time” is inconclusive. The State’s motion to dismiss was
denied on April 28, 1999. Specifically, the court found that the appellant’s “Oath or Affirmation”
filed on December 21, 1998, fulfills the requirements of Tenn. Code Ann. § 40-30-204(d).3 The trial
court granted the appellant until June 1, 1999, to file any additional motions or documents.
Notwithstanding appellant’s displeasure with prior appointed counsel, on January 11, 1999,
the appellant filed a request for appointment of counsel. The post-conviction court denied the
appellant’s motion for appointment of counsel on February 9, 1999, finding that “this case has been
languishing” since July 17, 1995, when the first pro se petition was filed.
On August 10, 1999, the post-conviction court entered an order dismissing the appellant’s
petition for post-conviction relief. In summary, the court made the following findings of fact and
conclusions of law:
...
Attached to the original petition is a sworn statement by Mr.
Montague that his trial court did not inform him of his constitutional
rights regarding the . . . issues raised in the petition, so that those
issues were not raised at trial and on direct appeal. Therefore, the
court is of the opinion that the petitioner has satisfactorily explained
why the issues were not previously raised . . . .
3
The “Oath or Affirmation” filed by the appellant, on December 21, 1998, in response to the
post-conviction court’s November 1998 order is not contained in the record before this court.
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However, the petitioner has not complied with the requirement that
the petition be verified. Page 39 of the petition headed “Sworn
Statement,” recites: “First being duly sworn, I Charles Montague, do
hereby certify that I drafted this Post-Conviction Petition, and that I
have knowledge and understanding of the allegations contained
therein.” What this statement fails to do is state under oath that the
matters contained in the petition are the truth. “Verify” means to
confirm or substantiate by oath. [citation omitted]. Having
knowledge of the contents is not sufficient. Such would allow for
frivolous, false or even perjured contents of a post-conviction
petition. The petitioner’s failure to verify his petition or any facts
contained in the petition leaves this court with nothing to consider
indicating that the petitioner is entitled to relief. The court concludes
that the original petition should be dismissed. Tenn. Code Ann. § 40-
30-209.
Even if the petition had been verified, it is fatally devoid of facts.
...
On June 15, 1998, the petitioner filed a pro se motion to allow
supplemental pleadings and “Supplemental Post-Conviction
Petition.” This supplemental petition is not verified. Accordingly the
court concludes that it should be dismissed.
...
The supplemental petition contains many more assertions, but no
additional statements of fact. The court concludes that even if the
supplemental petition had been verified, it contains no factual basis
for the court to grant post-conviction relief.
With the supplemental petition on June 15, 1998, Mr. Montague filed
an affidavit, affirming under penalty of perjury before a notary public
that the contents are true. This affidavit, unlike the petitions, is
properly verified. Post-conviction relief shall be granted when the
conviction is void or voidable because of the abridgment of any right
guaranteed by the Constitution of Tennessee or the Constitution of the
United States. Tenn. Code Ann. § 40-30-303. The numbered
paragraphs of this affidavit are considered in order as they relate to
the petition and supplemental petition:
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1. Mr. Montague states that he has knowledge and understanding of
the allegations in the petitions. The court finds that this does not
serve to cure his failure to verify either the petition or supplemental
petition. It does not state any facts.
2. Trial counsel did not inform Mr. Montague that he could challenge
the sufficiency of the indictment. The petitioner does not state how
the indictment was insufficient, so this does not state grounds for
post-conviction relief.
3. “That my trial counsel did not inform me that I could challenge the
individual grand jurors for reason of want of qualification [sic] to sit
as such jurors or that failure of me to do such would later preclude me
from later raising this issue.” The court finds that this statement
prevents the waiver of the issue as contained in paragraph 4.
4. That trial counsel did not investigate the fact that Negroes are
being systematically excluded from serving as gand jurors and petit
jurors and grand jury foreman. The court finds that this paragraph of
the affidavit assumes the systematic exclusion of black people from
the jury venire. It does not state facts upon which the court could find
systematic exclusion. This bare allegation, not supported by facts, is
not sufficient to show that the petitioner is entitled to relief.
5. Trial counsel did not inform the petitioner that he could challenge
the selection of jury commissioners . . . . The court finds that this fact
does not abridge any constitutional right. . . .
6. Trial counsel did not inform Mr. Montague that he could move to
suppress fingerprints. No facts are stated which would result in
suppression of any fingerprint evidence. The court finds no
abridgement of any constitutional right.
7. Trial counsel did not inform Mr. Montague that he could renew
the motion for change of venue. This is not grounds for relief, and no
prejudice is shown.
8. Trial counsel did not inform the petitioner that the jury could be
polled. The court finds that this states no constitutional deprivation.
9. Trial counsel did not inform Mr. Montague that he could object to
the testimony of the pathologist. Likewise, no constitutional error is
stated and no prejudice shown.
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10. That Mr. Montague informed his trial counsel before trial that . .
. “Rusty Buck . . . could verify that I lost my wallet at Kiwanis Park.
. . .” The petitioner apparently alleges that his counsel failed to
properly investigate and find this witness. . . . Nothing in the affidavit
indicates where Rusty Buck lived, how he could be found, or indeed
if he has ever been found. The court finds that the facts alleged do
not constitute ineffective assistance of counsel.
11. Trial counsel failed to inform Mr. Montague that he could object
to introduction of Exhibit 14. Mr. Montague does not identify the
exhibit or state facts sufficient for the court to determine if a chain of
custody was necessary. The court finds no grounds for relief.
12. Petitioner states the same facts regarding Exhibit 7. The court’s
finding is the same.
13. Trial counsel did not inform Mr. Montague that he could object
to the jury instruction. The court finds that the statement that the
“jury instructions were constitutionally vague and deficient,” is a bare
allegation. This paragraph does not state facts upon which relief can
be granted.
14. The court finds that this duplicates paragraph 13.
15. Trial counsel did not inform Mr. Montague that he could object
to visible extra security in the courtroom. The court finds that this is
not grounds for relief.
16. Trial counsel did not inform the petitioner that he could object to
questioning of a prospective juror in the presence of other jurors. The
court finds that this fact does not constitute grounds for relief.
In fairness to the petition, the court has also considered whether all of
the facts stated in the affidavit when taken together could constitute
grounds for ineffective assistance of counsel. The court finds that the
facts do not state any ineffective assistance in the slightest degree and
do not state any prejudice to the petitioner.
The court on these findings concludes that the petitioner . . . is
entitled to no relief.
...
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Analysis
The 1995 Post-Conviction Procedure Act governs all petitions filed after May 10, 1995. See
Tenn. Code Ann. § 40-30-201. The appellant’s original petition for post-conviction relief was filed
on July 17, 1995. Thus, the 1995 Act is applicable in the case sub judice. In regard to the 1995 Act,
of particular relevance to the present case is the specific procedure to be followed in presenting a
petition to the court.
One such procedural requirement is that the petition be properly verified. Tenn. Code Ann.
§ 40-30-204(d) provides, “The petition and any amended petition shall be verified under oath.” The
post-conviction court found that the appellant had failed to properly “verify” his petition and
supplemental petition pursuant to Tenn. Code Ann. § 40-30-204(d). The appellant was given the
opportunity to verify the petition and the supplemental petition. The trial court’s order of April 28,
1999, finds that the appellant’s “Oath and Affirmation” filed December 21, 1998, satisfied the
verification requirement.4 Accordingly, the evidence preponderates against the post-conviction
court’s finding that the petition and supplemental petition were not properly verified. Thus,
dismissal on this basis was error.
Proper verification is not the only procedural requirement identified in the new Act. The
1995 Act requires that the grounds for relief be specified and that a petitioner set out the facts to
establish a “colorable claim.”5 See Tenn. Sup. Ct. R. 28, § 6(B)(3). Specifically,
the petitioner shall include allegations of fact supporting each claim for relief set
forth in the petition and allegations of fact explaining why each ground for relief was
not previously presented in any earlier proceeding. The petition and any amended
petition shall be verified under oath. Affidavits, records or other evidence available
to the petitioner supporting the allegations of the petition may be attached to it.
Tenn. Code Ann. § 40-30-204(e).6
4
Again, we note that the December 21, 1998, “Oath and Affirmation,” is not included in the
record. Notwithstanding, both the post-conviction court and the State acknowledge the filing of this
document.
5
“A colorable claim is a claim, in a petition for post-conviction relief, that, if taken as true,
in the light most favorable to petitioner, would entitle petitioner to relief under the Post-Conviction
Procedure Act.” Tenn. Sup. Ct. R. 28, § 2(H).
6
The petition shall contain:
...
(3) each and every error that petitioner asserts as a ground for relief, including a
description of how petitioner was prejudiced by the error(s);
(4) specific facts supporting each claim for relief asserted by petitioner;
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The petition must contain a clear and specific statement of all grounds upon which
relief is sought, including full disclosure of the factual basis of those grounds. A bare
allegation that a constitutional right has been violated and mere conclusions of law
shall not be sufficient to warrant any further proceedings.
Tenn. Code Ann. § 40-30-206(d). The
f]ailure to state a factual basis for the grounds alleged shall result in immediate
dismissal of the petition. If, however, the petition was filed pro se, the judge may
enter an order stating that the petitioner must file an amended petition that complies
with this section within fifteen (15) days or the petition will be dismissed.
Tenn. Code Ann. § 40-30-206(d).7 See also Tenn. Sup. Ct. R. § 28, 6(B)(4). Thus, when a trial
court determines that the petition has not presented a colorable claim, the court shall summarily
dismiss the petition. Tenn. Code Ann. § 40-30-206(d); Tenn. Sup. Ct. R. 28, § 6(B)(4)(a).
Before undertaking review of the petition for conformity with the procedural requirements
of the Act, we acknowledge that, in the present case, the post-conviction court appointed counsel on
two occasions. Each attorney filed an amended petition. The appellant, unsatisfied with counsel,
elected to proceed pro se and was permitted to file a supplemental petition and an affidavit. The
post-conviction court granted the appellant sufficient time to modify his petition to comply with the
requirements of the Act. In any event, the appellant had over three years in which to finalize his
petition for post-conviction relief. In this regard, we conclude that further appointment of counsel
pursuant to Tenn. Code Ann. § 40-30-206(d) is not required to guarantee compliance with the Act.
At this stage in the proceeding, our review is limited to the evaluation of the appellant’s
claims under Tenn. Code Ann. § 40-30-206(f).8 In this regard, we conclude after review that the
(5) specific facts explaining why each claim for relief was not previously presented
in any earlier proceeding. . .
Tenn. Sup. Ct. R. 28, § 5(E).
7
A petition may be dismissed without a hearing if it:
...
(3) does not contain specific factual allegations;
(4) does not state the reasons that the claim is not barred by the statute of limitations,
waived, or previously determined; or
(5) does not entitle petitioner to relief even if taken as true.
Tenn. Sup. Ct. R. 28, § 5(F).
8
Indeed, at this preliminary stage, it is the function of the court only to determine whether a
colorable claim was stated, rather than to examine and adjudicate the factual merits of the
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petition presents several colorable claims and as such summary dismissal of the petition was error.
In order to facilitate review of the appellant’s post-conviction claims on remand, we proceed to
perform the requisite preliminary assessment of the claims presented.
Again, our review is limited to the pro se petition filed July 15, 1995; and the supplemental
pro se petition and attached affidavit filed June 15, 1998. The claims raised by the appellant may
be categorized as follows:
I. Alleged prejudice resulting from errors committed by the Trial Court
II. Alleged prejudice resulting from the Ineffective Assistance of Counsel
III. Alleged prejudice resulting from Prosecutorial Misconduct
Within each category are a multitude of individual claims. We, in turn, proceed to evaluate each
individual claim under it’s respective category.
I. Alleged Prejudice Resulting from Trial Court Errors
A. Post-Conviction Claim: The trial court erred by denying the appellant’s motion for change
of venue.
This court concludes: Claim dismissed for failure to state a factual basis for grounds
alleged, Tenn. Code Ann. § 40-30-206(d); in addition to waiver for failure to present for
determination on direct appeal. Tenn. Code Ann. § 40-30-206(f) & (g).
B. Post-Conviction Claim: Trial court admitted fingerprint evidence although State failed to
establish “chain of custody” by failing to call Lisa Coppoch to the stand.
This court concludes: Claim dismissed because facts alleged, even if true, fail to show
appellant is entitled to relief, Tenn. Code Ann. § 40-30-206(f), in addition to waiver for
failure to present for determination on direct appeal. Tenn. Code Ann. § 40-30-206(f) & (g).
C. Post-Conviction Claim: Trial court’s recitation of pattern jury instruction for first degree
murder is unconstitutionally vague and deficient.
This court concludes: Claim waived for failure to present for determination on direct
appeal. Tenn. Code Ann. § 40-30-206(f) & (g).
D. Post-Conviction Claim: Trial court’s recitation of pattern jury reasonable doubt instruction
is unconstitutionally vague and deficient.
This court concludes: Claim waived for failure to present for determination on direct
appeal. Tenn. Code Ann. § 40-30-206(f) & (g).
E. Post-Conviction Claim: Visible extra security measures in courtroom, i.e., deputies
carrying a weapon in each hand and ten police officers present, prejudiced jurors.
allegations. See Loring C. Warner v. State, No. 03C01-9610-CR-00407 (Tenn. Crim. App. at
Knoxville, Jan. 23, 1998) (citing Tenn. Code Ann. § 40-30-206(f); Tenn. Sup. Ct. R. 28, §6(B)(2)).
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This court concludes: Claim waived for failure to present for determination on direct
appeal. Tenn. Code Ann. § 40-30-206(f) & (g).
F. Post-Conviction Claim: Trial court erred by failing to require individualized voir dire of
prospective jurors.
This court concludes: Claim waived for failure to present for determination on direct
appeal. Tenn. Code Ann. § 40-30-206(f) & (g).
G. Post-Conviction Claim: Admission of testimony of Jerry Jackson in violation of the T.R.E.
402, 403, and 602.
This court concludes: Claim dismissed because facts alleged, even if true, fail to show
appellant is entitled to relief, Tenn. Code Ann. § 40-30-206(f), in addition to waiver for
failure to present for determination on direct appeal. Tenn. Code Ann. § 40-30-206(f) & (g).
H. Post-Conviction Claim: Combination testimony of Vince Kyle, Angelio Dalpiaz and the
pathologist is prejudicial to the appellant.
This court concludes: Claim dismissed because facts alleged, even if true, fail to show
appellant is entitled to relief, Tenn. Code Ann. § 40-30-206(f), in addition to waiver for
failure to present for determination on direct appeal. Tenn. Code Ann. § 40-30-206(f) & (g).
I. Post-Conviction Claim: Systematic exclusion of African-American jurors based on fact
that appellant has had three jury trials in Washington County and “none of the jury pools had
a single black in them” and “judge appoints . . . jury commissioners who are Ku-Klux-Klan
members . .[who] make up a jury list of all white persons except a token black woman.”
Appellant also claims that Tenn. Code Ann. § 22-2-201 et seq. is unconstitutional.
This court concludes: Claim dismissed because facts alleged, even if true, fail to show
appellant is entitled to relief, Tenn. Code Ann. § 40-30-206(f), in addition to waiver for
failure to present for determination on direct appeal. Tenn. Code Ann. § 40-30-206(f) & (g).
II. Alleged Ineffective Assistance of Counsel
A. Post-Conviction Claim: Failure to challenge the indictment on ground that indictment
failed to state proximate cause of death and failure to allege actions of appellant “which bring
him within the statute.”
This court concludes: Claim dismissed because facts alleged, even if true, fail to show
appellant is entitled to relief. Tenn. Code Ann. § 40-30-206(f).
B. Post-Conviction Claim: Failure to investigate and raise systematic exclusion of African
Americans on the jury.
This court concludes: Claim dismissed for failure to state a factual basis for grounds
alleged. Tenn. Code Ann. § 40-30-206(d).
C. Post-Conviction Claim: Failure to request individual voir dire due to extensive pretrial
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publicity of case in community.
This court concludes: Colorable claim is presented; remanded for evidentiary hearing.
D. Post-Conviction Claim: Failure to file motion to suppress fingerprints.
This court concludes: Claim dismissed for failure to state a factual basis for grounds
alleged. Tenn. Code Ann. § 40-30-206(d).
E. Post-Conviction Claim: Failure to renew motion for change of venue to include news
article regarding case which appeared on morning of appellant’s trial.
This court concludes: Colorable claim is presented; remanded for evidentiary hearing.
F. Post-Conviction Claim: Failure to have jury polled.
This court concludes: Claim dismissed because facts alleged, even if true, fail to show
appellant is entitled to relief. Tenn. Code Ann. § 40-30-206(f).
G. Post-Conviction Claim: Failure to object to testimony of pathologist regarding exact cause
of death and manner of infliction of wounds as being outside area of expertise.
This court concludes: Claim dismissed because facts alleged, even if true, fail to show
appellant is entitled to relief. Tenn. Code Ann. § 40-30-206(f).
H. Post-Conviction Claim: Failure to investigate and interview witness Rusty Buck to verify
that the appellant lost his wallet in Kiwanis Park on the date of the murder.
This court concludes: Claim dismissed because facts alleged, even if true, fail to show
appellant is entitled to relief. Tenn. Code Ann. § 40-30-206(f).
I. Post-Conviction Claim: Failure to challenge admission of fingerprint evidence based upon
State’s failure to establish “chain of custody.”
This court concludes: Colorable claim is presented; remanded for evidentiary hearing.
J. Post-Conviction Claim: Failure to object to reasonable doubt instruction.
This court concludes: Colorable claim is presented; remanded for evidentiary hearing.
K. Post-Conviction Claim: Failure to request individualized voir dire of prospective jurors due
to extensive pretrial publicity.
This court concludes: Colorable claim is presented; remanded for evidentiary hearing.
L. Post-Conviction Claim: Failure to object to the visible extra security within the courtroom
during trial, i.e., armed deputies and presence of ten police officers.
This court concludes: Colorable claim is presented; remanded for evidentiary hearing.
III. Alleged Prejudice Resulting from Prosecutorial Misconduct
A. Post-Conviction Claim: Presentation of false evidence, specifically, “blown up fingerprint”
is not that of appellant, location of wallet, testimony of Angela Darden regarding appellant’s
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clothing, testimony of Jerry Jackson regarding appellant’s clothing.
This court concludes: Claim dismissed for failure to state a factual basis for grounds
alleged, Tenn. Code Ann. § 40-30-206(d).
B. Post-Conviction Claim: State failed to establish complete “chain of evidence” regarding
Exhibit #14, by failing to show that Angelo Dalpiaz acquired custody of fingerprint evidence
from appellant.
This court concludes: Claim dismissed because facts alleged, even if true, fail to show
appellant is entitled to relief, Tenn. Code Ann. § 40-30-206(f), in addition to waiver for
failure to present for determination on direct appeal. Tenn. Code Ann. § 40-30-206(f) & (g).
C. Post-Conviction Claim: State knowingly concealed from the defense exculpatory evidence,
i.e., favorable fingerprint evidence, a Bic lighter, the search warrant of locker #13, and a
baseball cap, showing that appellant was not the perpetrator of the murder.
This court concludes: Colorable claim is presented; remanded for evidentiary hearing.
D. Post-Conviction Claim: State intimidated and coerced witnesses Angela Darden, Jerry
Jackson, Vincent Kyle, Janet Heckler, and Mark Price to testify and “withheld their deals .
. . from the defense.”
This court concludes: Colorable claim is presented; remanded for evidentiary hearing.
E. Post-Conviction Claim: The direct examination of Jerry Jackson by the State prejudiced
the appellant.
This court concludes: Claim dismissed because facts alleged, even if true, fail to show
appellant is entitled to relief, Tenn. Code Ann. § 40-30-206(f), in addition to waiver for
failure to present for determination on direct appeal. Tenn. Code Ann. § 40-30-206(f) & (g).
If the “court finds that certain claim(s) are colorable and others are not, the court shall enter
an order specifying which claims are dismissed and which claims must be responded to by the state.”
Tenn. Sup. Ct. R. 28,§ 6(B)(5). After our review, we conclude that certain claims are colorable and
others are not. Again, the post-conviction court dismissed all post-conviction claims. Thus, in
effect, we must sever the unworthy claims from the colorable claims by affirming the dismissal of
the claims designated above as “dismissed” and by reversing the dismissal of all other claims.
Therefore, upon remand, the post-conviction court shall (1) enter an order dismissing the claims
herein designated as dismissed for any reason and (2) enter an appropriate preliminary order
directing the State to respond to the allegations in the surviving claims, i.e., II(C), II(E), II(I), II(J),
II(K), II(L), III(C) and III(D), and to grant an evidentiary hearing as to the claims denominated as
colorable. See Tenn. Code Ann. § 40-30-207; Tenn. Sup. Ct. R. 28, § 6(B)(5), (6).
Accordingly, the judgment of the post-conviction court is reversed as to those specific claims
which this court finds as constituting colorable claims. Dismissal of the remaining claims is
affirmed. This cause is remanded for further proceedings consistent with this opinion.
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