Rickman v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

APRIL SESSION, 1997

FILED

July 28, 1997

RONALD RICKMAN, )

) No. 02C01-9608-CR-00252

Cecil Crowson, Jr.

Appellant )

Appellate C ourt Clerk

) SHELBY COUNTY

vs. )

) Hon. Carolyn Wade Blackett, Judge

STATE OF TENNESSEE, )

) (Post-Conviction - Capital Case)

Appellee )

For the Appellant: For the Appellee:

WILLIAM P. REDICK, JR. CHARLES W. BURSON

Post Office Box 187 Attorney General and Reporter

6750 Old Hickory Blvd.

Whites Creek, TN 37189 JOHN P. CAULEY

Assistant Attorney General

(ON APPEAL) Criminal Justice Division

450 James Robertson Parkway

Nashville, TN 37243-0493

WILLIAM P. REDICK, JR.,

Director

PAUL BOTTEI, JAMES J. CHALLEN, III

Staff Attorney Assistant District Attorney

Capital Case Resource Center Criminal Justice Complex

of Tennessee Suite 301, 201 Poplar Ave.

704 18th Ave. South Memphis, TN 38103

Nashville, TN 37203

(AT TRIAL)

OPINION FILED:

AFFIRMED

David G. Hayes

Judge

OPINION

The appellant, Ronald Rickman, appeals the post-conviction court’s summary

dismissal of his third petition for post-conviction court relief. In 1978, the appellant

was convicted of first degree murder and sentenced to death for the contract killing

of Deborah Lee Groseclose, the wife of his co-defendant, William Groseclose. In

1981, our supreme court affirmed the appellant’s conviction. State v. Groseclose

and Rickman, 615 S.W.2d 142 (Tenn.), cert. denied, 454 U.S. 882, 102 S.Ct. 367

(1981). In 1982, the appellant filed his first petition for post-conviction relief, which

the post-conviction court denied following the appointment of counsel and a full

evidentiary hearing. This court affirmed the lower court’s judgment. Groseclose and

Rickman v. State, No. 9 (Tenn. Crim. App. at Nashville, February 16, 1984). Our

supreme court denied the appellant permission to appeal, and the United States

Supreme Court denied certiorari. Rickman v. Tennessee, 469 U.S. 963, 105 S.Ct.

363 (1984). In 1985, the appellant filed a Petition for Writ of Habeas Corpus in

federal district court. Subsequently, in 1989, while his habeas corpus petition was

still pending in federal district court, the appellant filed his second petition for post-

conviction relief. In 1990, the post-conviction court dismissed the appellant’s

petition without an evidentiary hearing. This court affirmed the lower court’s

judgment. Rickman v. State, No. 15 (Tenn. Crim. App. at Jackson, September 11,

1991), perm. to appeal denied, (Tenn. 1992). In 1994, pursuant to the appellant’s

motion for partial summary judgment of his habeas corpus petition, the federal

district court vacated the appellant’s sentence of death. Rickman v. Dutton, 854 F.

Supp. 1305 (M.D. Tenn. 1994). Thereafter, in a separate opinion, the federal district

court vacated the appellant’s conviction for first degree murder. Rickman v. Dutton,

864 F.Supp. 686 (M.D. Tenn. 1994). The federal district court’s opinions are now on

appeal before the United States Court of Appeals for the Sixth Circuit.

2

Nevertheless, on April 13, 1995, the appellant filed the instant petition for

post-conviction relief, his third petition.1 On May 24, 1995, the appellant filed before

the post-conviction court a “Motion to Abate Proceedings,” pending resolution of the

federal appeal. 2 The appellant asserted that affirmance by the Sixth Circuit of the

federal district court’s decisions would render the instant post-conviction

proceedings moot. On July 7, 1995, the appellant further submitted to the post-

conviction court a motion for appointment of counsel. On March 6, 1996, the post-

conviction court denied the appellant’s motions and dismissed the appellant’s

petition, finding that the appellant had raised no claims in his third petition for post-

conviction relief that had not been previously determined or waived.3

On appeal, the appellant presents the following issues for our consideration:

(1) Whether the appellant is entitled to a new sentencing

hearing pursuant to our supreme court’s decision in State

v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992);

(2) Whether the appellant was denied his right, under the

Tennessee constitution, to a unanimous jury verdict;

(3) Whether the appellant was involuntarily administered

“mind-dulling drugs” during his trial in violation of the

United States Supreme Court’s holding in Riggins v.

Nevada, 504 U.S. 127, 112 S.Ct. 1810 (1992);

(4) Whether the death penalty infringes upon the appellant’s

fundamental right to life in violation of the Tennessee and

United States constitutions;

(5) Whether the State’s plea offer of a life sentence infringed

upon the appellant’s right to trial and resulted in the

arbitrary imposition of a sentence of death in violation of

the Tennessee and United States constitutions;

(6) Whether the appellant was sentenced by an impartial

jury in violation of the Tennessee and United States

constitutions;

(7) Whether, in violation of the state and federal

constitutions, the grand jury was tainted by gender

1

Th e ap pellant filed his p etition prior to M ay 10, 1 995 , the effective date of the 19 95 P ost-

Conviction Procedure Act. Accordingly, the 1995 Act is inapplicable to the appellant’s case.

2

The appellant also submitted a motion to this court to stay his appeal pending the

resolution of his federal habeas corpus proceedings. On August 22, 1996, we denied the

appellant’s motion.

3

In its order dismissing the appellant’s petition, the post-conviction court stated:

Petitioner raises no claims in this third petition for post-conviction relief which

have not been either previously determined or waived. As Petitioner has

presented no issue requiring an evidentiary hearing the petition is hereby

dism issed by this Court.

(Citation om itted).

3

discrimination in the selection of grand jury forepersons

in Shelby County;

(8) Whether the appellant was denied effective assistance of

counsel at trial or in any subsequent proceeding in

violation of the state and federal constitutions.

Following a review of the record, we affirm the post-conviction court’s

judgment.

ANALYSIS

The appellant contends that the post-conviction court erred in dismissing his

petition for post-conviction relief.4 The State contends that the appellant’s petition is

time-barred by the statute of limitations. Tenn. Code Ann. § 40-30-102 (1990)(“[a]

prisoner in custody under sentence of a court of this state must petition for post-

conviction relief . . . within three years of the date of the final action of the highest

state appellate court to which an appeal is taken”). Our supreme court affirmed the

appellant’s conviction in 1981, prior to the enactment of the three year statute of

limitations and prior to the effective date of the statute on July 1, 1986. The new

limitations period applied to existing causes prospectively from this effective date.

Abston v. State, 749 S.W.2d 487, 488 (Tenn. Crim. App. 1988). See also Sands v.

State, 903 S.W.2d 297, 301 (Tenn. 1995)(the supreme court acknowledged the

“Abston rule”). Accordingly, the statute of limitations expired in the appellant’s case

on July 1, 1989.

Regardless of the applicability of the statute, under Burford v. State, 845

S.W.2d 204 (Tenn. 1992), and Sands, 903 S.W.2d at 297,5 to the various issues

4

Generally, in a post-conviction pro ceeding, the burden is upon the petitio ner to pro ve by a

prep ond eran ce o f the e viden ce the allegations in the petition. Da vis v. State, 912 S.W .2d 689,

697 (Te nn. 1995 ); W right v. S tate, No. 01C01-9506-CR-00211 (Tenn. Crim. App. at Nashville,

March 20, 1997). The factual findings of the trial court are conclusive on appeal unless the

evide nce prep ond erate s ag ainst those findings. Id.

5

See, e.g., Sam ple v. State, No. 02C01-9505-CR-00131, -00139 (Tenn. Crim. App. at

Jac kson, S epte m ber 3 0, 1996), perm. to appeal denied, (Tenn. 1997)(although filed after the

statutory period of limitations h ad c om m enc ed a nd e xpired, the app ellant’s p etition for pos t-

conviction relief set forth a viable ground for relief, as the petition was filed within three years of an

opinion announcing a new, retroactively applied, constitutional rule); Tenn. Code Ann. § 40-30-

105(199 0).

4

raised by the appellant, the appellant asserts that the State did not rely upon the

statute of limitations when arguing before the post-conviction court and cannot rely

upon this defense on appeal. In its answer to the appellant’s petition and in

proceedings before the post-conviction court, the State argued that the court should

dismiss the appellant’s petition, because the appellant’s case was pending before

the United States Court of Appeals for the Sixth Circuit. Inexplicably, in its

response, the State did not allege the expiration of the statute of limitations, nor did

it raise the defenses of waiver and previous determination or address the merits of

the appellant’s petition.

Generally, with respect to those seeking post-conviction relief, this court will

not address post-conviction issues that were not raised in the petition or addressed

in the post-conviction court. Brown v. State, 928 S.W.2d 453, 457 (Tenn. Crim.

App.), perm. to appeal denied, (Tenn. 1996)(citing State v. Smith, 814 S.W.2d 45,

49 (Tenn. 1991)). The appellant correctly observes in his brief that this court has

similarly declined to adopt a position of the State taken for the first time on appeal.

State v. Perry, No. 03C01-9401-CR-00016 (Tenn. Crim. App. at Knoxville), perm. to

appeal denied, (Tenn. 1995). Moreover, the statute of limitations is an affirmative

defense which the State must plead and prove. Smith v. State, 873 S.W.2d 5, 6

(Tenn. Crim. App. 1993). Failure to do so constitutes a waiver of the defense. Id.

(citations omitted). See also Sandusky v. State, No. 01C01-9404-CC-00142 (Tenn.

Crim. App. at Nashville, March 2, 1995)(a statute of limitations defense may not be

raised for the first time on appeal). The post-conviction court may raise the issue

sua sponte. Id. See also Handley v. State, 889 S.W.2d 223, 224 (Tenn. Crim. App.

1994). However, in the instant case, the court did not address this defense.

Nevertheless, in Sands, 903 S.W.2d at 299, our supreme court, in the context

of Tenn. R. Civ. P. 8.03's specific pleading requirement, held that this court did not

err in applying the statute of limitations to the appellant’s coram nobis claim, despite

5

the State’s failure to specifically plead the period of limitations applicable to coram

nobis actions, either in its motion to dismiss the appellant’s petition for a writ of

coram nobis and/or post-conviction relief or at the hearing before the trial court. The

State did cite the statute of limitations applicable to post-conviction petitions. Id.

Accordingly, the court concluded that the appellant had received fair notice of the

defense. Id. The supreme court observed:

Although Tenn. R. Civ. P. 8.03 does require that a statute of limitations

defense be specifically pleaded, it is well settled that failure to do so

does not result in a waiver of the defense if the opposing party is given

fair notice of the defense and an opportunity to rebut it. In other

words, the purpose of the specific pleading requirement is to prevent a

party from raising a defense at the last moment and thereby

prejudicing the opposing party’s opportunity to rebut the defense.

Id. (citations omitted). In Smith, 873 S.W.2d at 6-7, this court suggested, consistent

with the above rationale, that when a defense has not been pled, but the petitioner

has raised the issue in his own pleadings, there is no waiver. In the instant case, as

pointed out by the State, the appellant addressed the statute of limitations defense

in his petition for post-conviction relief and in his brief on appeal. Additionally,

appellant’s counsel raised the issue of the statute of limitations before the post-

conviction court when arguing before the court that the appellant’s petition should

not be dismissed. Appellant’s counsel conceded that the statute of limitations had

already run, but cited exceptions to application of the statute. These facts are

distinguished from those in Perry. The proof reveals that the appellant was clearly

aware of the statute of limitation and its importance. Thus, the State's failure to

specifically plead the defense of statute of limitation did not prejudice the appellant.

Accordingly, the State may, on appeal, rely upon the defenses of statute of

limitation, waiver, and previous determination in support of its position.

However, the appellant contends that the post-conviction court failed to enter

specific findings as to each issue raised by the appellant in his petition. In effect,

the appellant challenges the post-conviction court’s compliance with Tenn. Code

6

Ann. § 40-30-118(b)(1990). Tenn. Code Ann. § 40-30-118(b) provides:

Upon the final disposition of every petition, the court shall enter

a final order, and . . . shall set forth in the order or a written

memorandum of the case all grounds presented and shall state

the findings of fact and conclusions of law with regard to each

such ground.

This court has observed that, "[a]lthough this requirement has been determined to

be mandatory, the failure of the trial judge to abide by the requirement does not

always mandate a reversal of the trial court's judgment." State v. Swanson, 680

S.W.2d 487, 489 (Tenn. Crim. App. 1984)(citations omitted). See also Swanson v.

State, 749 S.W.2d 731, 739 n.3 (Tenn. 1988). Noncompliance by the post-

conviction court does not warrant a reversal if the record is sufficient to effectuate a

meaningful appellate review. Brown v. State, No. 03C01-9107-CR-00233 (Tenn.

Crim. App. at Knoxville, June 26, 1992). Even if not ideal in form, the order of

dismissal in this case does set forth the reasons for the post-conviction court's

dismissal of the appellant's petition. "[W]here the record of the proceedings

contains the reasons of the trial judge for dismissing the petition, the record is

sufficient to effectuate meaningful appellate review." Watkins v. State, No. 1121

(Tenn. Crim. App. at Knoxville, September 18, 1989).

Of course, we must still determine if the post-conviction court properly

dismissed the appellant’s petition without appointing counsel and without an

evidentiary hearing. This court has observed that there is a discernible trend toward

appointing counsel to assist pro se appellants in post-conviction proceedings,

providing opportunities to amend petitions, and allowing evidentiary hearings.6

Carmley v. State, No. 03C01-9305-CR-00167 (Tenn. Crim. App. at Knoxville,

January 13, 1994). Nevertheless, "a clear but patently non-meritorious petition may

be dismissed summarily," without the appointment of counsel or an evidentiary

6

In th e insta nt c ase, th e re cord clearly reflects th at, d espite the post-convictio n court’s

failure to appoint counsel, the appellant received the assistance of counsel at all stages of the

proceedings and the appellant’s attorney drafted the appellant’s petition.

7

hearing. Martucci v. State, 872 S.W.2d 947, 949 (Tenn. Crim. App. 1993); Cureton

v. Tollett, 477 S.W.2d 233, 236 (Tenn. Crim. App. 1971). A petition sets forth a

colorable claim if it alleges facts showing that the conviction resulted from an

abridgment of a constitutional right and demonstrates that the ground for relief was

not previously determined or waived. Carmley, No. 03C01-9305-CR-00167.

We must therefore determine whether the appellant’s claims have been

waived or previously determined. Tenn. Code Ann. § 40-30-112 (1990) provides:

A ground for relief is ‘previously determined’ if a court of competent

jurisdiction has ruled on the merits after a full and fair hearing. . . . A

ground for relief is ‘waived’ if the petitioner knowingly and

understandingly failed to present it for determination in any proceeding

before a court of competent jurisdiction in which the ground could have

been presented.

Initially, the record conclusively demonstrates that the appellant’s claim of ineffective

assistance of counsel has been previously determined.7 The appellant contends,

however, that any waiver was not knowing and understanding. See Tenn. Code

Ann. § 40-30-112(b)(1). Moreover, he asserts that the objective standard of waiver

articulated by the supreme court in House, 911 S.W.2d at 705, should not be

“retroactively” applied to his case. He contends that such application would violate

due process and ex post facto provisions of the Tennessee and United States

Constitutions.

7

W ith respect to any additional factual allegations raised in the instant petition, this court

has previously held that the issue of ineffective assistance of counse l is a single “ground for relief”

as c onte m plated by Te nn. C ode Ann . § 40-30-111 (199 0). Co ne v. State, 927 S.W .2d 579, 581-

582 (Te nn. C rim . App . at Jackson , Ma rch 22, 1995 ), perm. to appeal denied, (Te nn. 1996 ). In

Cone, we observed

A petitioner may not relitigate a previously determined issue by presenting

additional factual allegations. W e should not encourage post-conviction

petitioners to invent new facts to revive an issue which was unfavorably decided,

nor should we allow petitio ners to ‘sandbag’ by re servin g fa ctu al claim s until th eir

sec ond or third petition.

Id. at 582. Additionally, with respect to the performance of counsel during prior post-conviction

proceedings, there is of course no right to effective assistance of counsel in the post-conviction

con text. Ho use v. State, 911 S.W .2d 705, 712 (T enn . 1995), cert. denied, U.S . , 116 S.C t.

168 5 (19 96). See also De em v. State , No. 01C01-9403-CC-00083 (Tenn. Crim. App. at Nashville,

Augus t 29, 1996).

8

In House, our supreme court concluded that “[w]aiver in the post-conviction

context is to be determined by an objective standard under which a petitioner is

bound by the action or inaction of his attorney.” Id. at 714. However, in articulating

this objective standard of waiver, the court observed that “Tennessee cases dealing

generally with the concept of waiver in the post-conviction context apply an objective

standard and impute the conduct of counsel to their clients.” Id. at 713. The court

then applied this standard to the appellant in that case. In Melson v. State, No.

02C01-9402-CR-00023 (Tenn. Crim. App. at Jackson), perm. to appeal denied,

(Tenn. 1996), in its order denying the appellant’s petition for a rehearing, this court

rejected the appellant’s argument that the waiver standard set forth in House should

not be applied retroactively “‘to a petitioner who has relied on the plain language of

the post-conviction statute.’” Indeed, we noted that relevant case history indicated

that the statute, prior to the supreme court’s opinion in House, did not require

personal waiver. Id. See also O’Guinn v. State, No. 02C01-9510-CC-00302 n. 1

(Tenn. Crim. App. at Jackson, April 29, 1997)(in applying House, this court observed

that “[w]hile it is true that House was not issued until three months after the trial

court’s dismissal of Appellant’s claim, the concept of an objective waiver standard

was well-established prior to that ruling”). Thus, we must reject the appellant’s

argument that House altered the situation of the appellant to his disadvantage.

State v. Bragan, 920 S.W.2d 227, 241 (Tenn. Crim. App. 1995), perm. to appeal

denied, (Tenn. 1996)(citing State v. Pearson, 858 S.W.2d 879, 882 (Tenn. 1993)).

See also State v. Ricci, 914 S.W.2d 475, 480 (Tenn. 1996)(“[a]n ex post facto law

contains two critical elements . . . [f]irst, the law must apply to events occurring

before its enactment; second, it must disadvantage the offender affected by it”).

The supreme court’s decision in House did not change the law, but merely clarified

existing law. Accordingly, application of the objective waiver standard to the

appellant’s case violates neither ex post facto nor due process provisions of the

9

Tennessee and United States Constitutions. 8

Even in the context of an objective waiver standard, the appellant contends

that several issues could not have been presented in any earlier proceeding. Tenn.

Code Ann. § 40-30-112(b)(1). Clearly, “the waiver provision cannot logically or

legally ‘apply to a defense [or grounds for relief] . . . which did not exist and could

not have been asserted by the most diligent counsel at the [prior] hearing.’”

Swanson, 749 S.W.2d at 735 (citing Pruett v. State, 501 S.W.2d 807, 809 (Tenn.

1973)). See also Burford, 845 S.W.2d at 208 (“[b]efore a state may terminate a

claim for failure to comply with procedural requirements . . ., due process requires

that potential litigants be provided an opportunity for the presentation of claims at a

meaningful time and in a meaningful manner). Additionally, Tenn. Code Ann. § 40-

30-105 permits a petitioner to rely upon “a right that was not recognized as existing

at the time of the trial if either constitution requires retrospective application of that

right.”

Nevertheless, we conclude that the record supports the post-conviction

court’s finding that the appellant has waived the following issues:9 whether the

appellant was denied his right, under the Tennessee constitution, to a unanimous

jury verdict; whether the death penalty infringes upon the appellant’s fundamental

right to life in violation of the Tennessee and United States constitutions; whether

the State’s plea offer of a life sentence infringed upon the appellant’s right to trial

8

W e do not address whether the standard of waiver to be applied in the post-conviction

con text is a rule of proc edu re no t affecting a ny substa ntial right of the appe llant. Bragan, 920

S.W .2d at 241.

9

The appellant contends that, because his claims involve “fundamental errors,” they

can not be wa ived. O f cou rse, becaus e on ly cons titutional violations a re co gnizable in post-

conviction proceedings, Tenn. Code Ann. § 40-30-105, every cognizable error could be

characterized as “funda m ental.” Nevertheless, our suprem e court has ob served that states have

no constitutional duty to provide post-conviction relief procedures, and, accordingly, the

opp ortun ity to collatera lly attack con stitutiona l violations during the con viction p rocess is not a

fundam enta l right entitled to heighten ed d ue p rocess prote ction. Burford, 845 S.W .2d at 207.

Moreover, to the extent that the appellant is arguing that capital litigants should be exempt from

waiver or statute of limitations provisions of the Post-Conviction Procedure Act, the legislature has

declined to provide any such exception and we decline to hold that either the state or federal

constitution mandates any such exception.

10

and resulted in the arbitrary imposition of a sentence of death in violation of the

Tennessee and United States constitutions; whether the appellant was sentenced

by an impartial jury in violation of the Tennessee and United States constitutions;

and whether, in violation of the state and federal constitutions, the grand jury was

tainted by gender discrimination in the selection of grand jury forepersons in Shelby

County.10

10

The appellant as serts that num erous issues rais ed in his petitio n were previously

unavailable for waiver or sta tute of lim itatio ns purposes, because our suprem e court’s decision in

Ow ens and Payne v. State, 908 S.W .2d 923, 927 (Tenn. 1995), was issued following his prior

post-convictio n proceedings and follo wing the com m encem ent and expiration of the applicable

statute of limitations. In Owens and Payne, pursuant to principles of statutory construction, our

suprem e court held that Tenn . Code A nn. § 40-14-20 7(b) (1990), authorizing funding for expert

services if necessary to protect the constitutional rights of indigent capital defendants, was

app licable in pos t-con viction c apital case s. Id. However, this court recently opined that “nothing

in Owens suggests a new c onstitu tion al ru le as antic ipated by Burford or retro active app lication to

all prior post-conviction actions.” W right, No. 01C 01-9 506 -CR -002 11. T he c ourt d ecline d to

characterize Owens and Payne as a later-arising legal ground supporting the appellant’s claim of

ineffective assistance of counsel at trial and on appeal. The contention of the appellant in the

instan t cas e is sim ilarly without m erit.

The appellant additionally contends that his claim concern ing his right to a unanim ous jury

verdict is not su bje ct to waiver or the sta tute of lim itatio ns, as our suprem e court’s decision in

Shelton v. State, 851 S.W .2d 134 (Tenn. 1993), was issued following his prior post-conviction

proc eed ings and following the com m enc em ent and e xpiration of the statute of lim itations. In

Shelton, 851 S.W .2d at 137, the court held that its opinion in Burlison v. State , 501 S.W .2d 801

(Tenn. 1973), required that “when evidence suggests that a defendant has comm itted many

sexual crimes against a victim, the court must require the state to elect the particular offenses for

which convictions are sought.” W e doubt that, pursuant to Meadows, 849 S.W .2d at 751, the

court announced a new rule of law, i.e., a rule that breaks new ground or imposes a new

obligation on the state or federal government. The court noted “the well established right under

our state constitution to a unanimou s jury verdict,” Shelton, 851 S.W .2d at 137. Moreover, the

holding in Shelton was dictated by the holding in Burlison, impos ing a d uty on the trial court “‘to

require the State, at the close of its proof-in-chief, to elect the particular offense of carnal

knowledge upon which it would rely for conviction, and to properly instruct the jury so that the

verdict of the jury would be united on the on e offense.’” Id. at 136 (citing Burlison, 501 S.W .2d at

804). In any event, the holding in Shelton is not even applicable by analogy to th e appellant’s

case in light of our subsequent conclusion that, with respect to the appellant, only one offense,

premeditated first degree murder, was presented to the jury for consideration.

W e note in passing that, c ontrary to the appellant’s argum ent in his re ply brief, his claim

concerning his rig ht to a unanim ous ju ry verdict does not depend upon our suprem e court’s

decision in Middlebrooks, 840 S.W .2d at 317. Indeed, in the main body of his argument

addressing this issue, the appellant does not once cite Middlebrooks.

The appellant further contends that his claim that he was sentence d by an impa rtial jury

has not been waived and is not barred by the statute of limitations. He asserts that the United

States Supreme Court in Morgan v. Illino is, 504 U.S. 719, 112 S.Ct. 2222 (1992), announced a

new right or rule of law that must be retroactively applied to his case. In Morgan, the Co urt’s

holdings, concerning the requirement of an impartial jury during the sentencing phase of a capital

trial and the rem oval for cause of a juror who d eclares that he or sh e will auto m atically vote to

impos e the dea th penalty if the defenda nt is co nvicte d, clea rly do not constitute new rules of law.

Id. at 728-729, 2229-2230. To the extent the Court in Morgan announced a new rule of law that

must be retroactively applied, the new rule imposed a duty on the trial court to allow a defendant

to ask prospective jurors whether or not they would automatically vote in favor of death in the

event of a guilty verdict. Id. at 7 36, 2233. Yet, the appellant in the instan t ca se does not claim

that the trial court imperm issibly limited voir dire. Rather, he contends that, during federal

proceedings, he discovered that, in fact, one juror in his case was predisposed to impose the

death penalty.

Thus, alternatively, the appellant argues that this issue was not waived or subject to the

11

A. MIDDLEBROOKS CLAIM

The appellant has not waived his argument that, in violation of our supreme

court’s decision in Middlebrooks, 840 S.W.2d at 317, the State relied upon the

felony murder circumstance to both prove first degree murder and to render the

appellant death eligible. In Barber v. State, 889 S.W.2d 185 (Tenn. 1994), cert.

denied, U.S. , 115 S.Ct. 1177 (1995), the supreme court held that the decision

in Middlebrooks announced a new rule that should be applied retroactively pursuant

to Meadows, 849 S.W.2d at 748. See also Sample, No. 02C01-9505-CR-00131, -

00139.11 Nevertheless, a review of the record reveals that the jury returned a verdict

of guilt as to count one of the indictment. Count one of the indictment charged the

appellant with “feloniously, wilfully, deliberately, maliciously and premeditatedly

Kill[ing] and Murder[ing]” the victim. Accordingly, the indictment only encompassed

premeditated first degree murder or what was referred to as common law murder.

See Tenn. Code Ann. § 39-2402(a)(1977). Thus, Middlebrooks is inapplicable.12

statute of limitations, because the factual basis of his claim was only established during his federal

proceedings, due to investigative assistance provided in federal court. Yet, the appellant does not

allege specifically when he acquired evidence supporting his claim. The appellant’s federal

proc eed ings were initiated in 198 5, we ll before the filing of the appe llant’s se con d pe tition for post-

con viction re lief and the expiration of the statute of lim itations. The ap pellant has failed to

adequately rebut the presumption of waiver or otherwise explain why his claim should be

addressed in these proceedings. Moreover, the appellant does not claim that the ground for relief

was previously unava ilable, see, e.g., Burford, 845 S.W .2d at 211 (Da ugh trey, J.,

concurring)(citing the example of suppression of material evidence by the State that is concealed

for m any years after trial), but rather that he lack ed a deq uate fund s to investiga te his c laim .

Again, to the extent the appellant argues that this claim rem ains viable because our supreme

court’s decision in Owens and Payne was issued in 1995, we have already determined that the

court’s decision has no such retroactive effect. Reviewing the record, we decline to conclude that

due process mandates the consideration of this issue.

11

W e note that the appellant filed his petitio n within three years of the suprem e court’s

decision in Middlebrooks. Thus, pursuant to Burford and Sands, even if the statute of limitations

is applicable to the appellant’s petition, this claim rem ains a viable ground for post-conviction

relief.

12

W e note that, in Rickman, 864 F.Supp. at 694, the federal district court similarly found,

“The jury found Rickman guilty of wilful, premeditated, and deliberate murder.” However, although

the ind ictm ent only charged prem editate d first degre e m urde r, the trial co urt, in its instructions to

the jury, recited verbatim the language of Tenn. Code Ann. § 39-2402(a)(1977), which subsection

encompassed both prem editated and felony mu rder:

Every murder perpetrated by means of poison, lying in wait, or by any other kind

of wilful, deliberate, malicious, and premeditated killing, or comm itted in the

perpetration of, or attempt to perpetrate, any murder in the first degree, arson,

rape, robbery, burglary, larceny, kidnapping, aircraft piracy, or the unlawful

throwing, placing or discharging of a destructive device or bomb, is murder in the

first degree.

How ever, the trial court the n instructed the jury:

12

B. FORCED MEDICATION

The appellant next contends that, in violation of his due process rights, he

was forcibly administered "mind-dulling" medication during his trial. In his first post-

conviction petition, filed in 1982, the appellant asserted that he was incompetent to

stand trial as a result of the State's administration of Meprobamate and Dalmane

during trial. On appeal, this court concluded that the record did not preponderate

against the trial court's finding to the contrary. Groseclose and Rickman, No. 9. In

1985, the appellant filed a federal writ of habeas corpus alleging, inter alia, that "he

was unconstitutionally administered Meprobamate and Dalmane by the State at

critical stages of his trial." Rickman, 864 F.Supp. at 712. The appellant’s second

post-conviction petition filed in 1989, and while the federal writ was still pending,

alleged no claim of forced medication. In 1994, the federal district court for the

Middle District of Tennessee, relying upon Riggins v. Nevada, 504 U.S. 127, 112

S.Ct. 1811 (1992)13, concluded that, because the appellant had been "administered

drugs which cause drowsiness and may inhibit their ability to follow the proceedings,

W hen the act of killing is not done during the commission of a rape, robbery, or

kidnapping, in order to make it murder in the first degree not only must the killing

be d one wilfully, delibera tely and m alicious ly, but it must also be don e with

premeditation, that is a design to kill must be formed coolly and deliberately and

before the act is performed by which death is produced and the killing must be

the cool and deliberate act of the slayer.

This is the distinctive feature of murder in the first degree, as charged in the

indictment.

(Em pha sis adde d).

Jury ins tructio ns m ust be reviewed in the contex t of the overall charge ra the r than in

isolation . State v. Byrd, No. 02C01-9508-CR-00232 (Tenn. Crim. App. at Jackson, January 2,

1997). In this context, it is apparent that the trial court did not intend to have the jury apply the

felony murde r doc trine to this case. See, e.g., State v. W ard, 663 S.W .2d 805, 807-808 (Tenn.

Crim. App. 1983)(in this somewhat analogous case, the trial court recited the language in Tenn.

Code Ann. § 39-2402 in its instruction to the jury despite the absence of any evidence at trial that

the murder was comm itted in the perpetration of a felony; even in light of evidence that jurors may

have misunderstood the instruction, this court found no error, concluding that the inclusion in the

instructions of the reference to felony murder was only an attempt to provide the jury with a

complete definition of the offense for which the appellant was indicted and was a correct

statem ent of Ten nesse e law).

13

In Riggins, the defendant challenged his convictions on grounds that the State of

Ne vada forced drug s up on h im at trial. Rigg ins argue d that, becaus e he relied upon an ins anity

defense, the forced medication deprived him of the right to show jurors his demeanor and “true

mental state.” Thus, the State’s administration of antipsychotic drugs over his objection denied

him due proc ess . The Su prem e Court a gree d finding the se fa cts im plicated Riggins ’ Fourteen th

Am endment right and, additionally, his Sixth Amendm ent right to assist counsel in his defense.

13

due process requires a showing that such medication is necessary to accomplish an

essential state policy." Rickman, 864 F.Supp. at 713. In April 1995, the appellant,

relying upon Riggins as a new rule of law, filed the instant petition alleging, inter alia,

that he was "involuntarily administered mind-dulling drugs during the trial" in

violation of his state and federal due process rights.14

The existence of a constitutional right to refuse involuntarily administered

medication grounded upon a liberty interest under the due process clause of the

Fourteenth Amendment is undisputed. In Washington v. Harper, 494 U.S. 210, 221,

110 S.Ct. 1028, 1036 (1990), the Supreme Court recognized the existence of a

"significant liberty interest [of a convicted prisoner] in avoiding the unwanted

administration of antipsychotic drugs."15 The Court also stated: "The forcible

injection of medication into a nonconsenting person's body represents a substantial

interference with that person's liberty." Id. at 229, 110 S.Ct. at 1041. Although the

Court refused to find an absolute liberty interest of a competent person to refuse

14

The State contends in its brief that this issue has been previously determined by the

federal district court, wh ich de cided this issue in favo r of the app ellant. Rickman, 864 F.Supp. at

713-714. Indeed, this court has observed:

Unde r the doctrine of res judicata, a second suit is barred between the same

parties on the same cause of action with respect to all issues which were litigated

and which could have been litigated. A corollary doctrine of res judicata is the

doctrine of collateral estoppel which states that when an issue has once been

determined by a valid and final judgment, that issue cannot again be litigated

between the same parties in any future lawsuit. In effect, T.C.A. Sec. 40-30-112

is a codified form of these two doctrines . . . by which petitioners are bound by

previous judgments and determinations.

State v. Blake, No. 1326 (T enn . Crim . App . at Knoxville, Marc h 19 , 1991)(citations om itted).

Similarly, in Myers v. State, 462 S.W .2d 265, 269 (Tenn. Crim. App. 1970), this court stated that

the appe llant could no t relitigate ques tions p reviou sly determ ined adversely to him in two s epa rate

habeas corpus cases by state and federal courts of competent jurisdiction. However, in Mon ts v.

State , 455 S.W .2d 627, 629 (Tenn. Crim. App. 1970), this court also held “that the fact that the

petitioner did have pe nding on app eal in the United States Circuit Co urt of A ppe als a p etition . . .

for a w rit of ha beas corpus did not deny ju risdiction to th e trial court to consider [the appellant’s

petition for post-conviction relief].” In O’Guinn, No. 02C01-9510-CC-00302, this court also

observed that, because the federal district court’s decision resolving the appellant’s claim was

reversed and vacated by the Court of Appeals for the Sixth Circuit and the Supreme Court denied

certiorari, the appellant’s claim was not previously determined. Accordingly, in light of the current

postu re of the appellant’s habeas corpus proceedings, i.e ., on appeal before the C ourt of Appeals

for the Sixth Circuit, we conclude that this issue has not yet been previously determined and may

be c ons idered by the pos t-con viction c ourt.

15

See also Mills v. Roge rs, 457 U.S. 291, 299, 102 S.Ct. 2442, 2448 (1982) (the

Constitution recognizes a liberty interest of mental hospital patients in avoiding the unwanted

adm inistration of an tipsych otic drugs ); Bee v. Greaves, 744 F.2d 1387, 1394 (10th Cir. 1984)

(plaintiff's liberty interest in avoiding unw ante d m edication is not abso lute); Com m onwea lth v.

Louraine, 453 N.E .2d 437 (M ass . 1983); In re Pray, 336 A.2d 174 (Vt. 19 75); State v. Murphy, 355

P.2d 323 (W ash . 1960); State v. Ma ryott, 492 P.2d 239 (W ash. App. 197 1).

14

psychotropic drugs, it recognized that the substantive protections of the Due

Process Clause, under certain circumstances, limit the forced administration of

psychotropic drugs to inmates. Id. at 243, 1048.

In Riggins v. Nevada, 504 U.S. 127, 135, 112 S.Ct. 1810, 1815 (1992), the

Supreme Court applied the Fourteenth Amendment principles of Harper to the

pretrial and trial setting for detained defendants. 16

Although the Supreme Court’s announcement in Riggins was perhaps new

to the appellant when he filed his third post-conviction petition, Riggins created

neither a new nor novel constitutional rule of law.17 See Riggins, 504 U.S. at 151,

112 S.Ct. at 1823 (Thomas, J., dissenting) (liberty interest recognized in Harper);

see also State v. Van Orden, 647 N.E.2d 641, 644 (Ind.App. 4 Dist. 1995) ("[T]he

holding in Riggins does not apply retroactively to Van Orden's trial result." Teague,

485 U.S. at 933, 108 S.Ct. at 1106). Cf. Heffernan v. Norris, 48 F.3d 331, 334 (8th

Cir. 1995) (holding that Riggins does not present novel constitutional issues). But

see Giannini v. State, No. 02C01-9603-CR-00091 (Tenn. Crim. App. at Jackson,

Jan. 15, 1997). Clearly, the liberty interest arising from the involuntary

administration of medication was recognized in Harper, which was decided in

1990.18 The appellant first raised this issue in the state courts in his third post-

conviction petition filed in 1995. Accordingly, we find the issue of forced medication

16

The Court expressly noted that "[t]he Fourteenth Amendm ent affords at least as much

prote ction to pers ons the S tate detains for trial [as that protec tion afforded to inm ates ]." Id. at

135, 102 S.Ct. at 1815 (citing Bell v. Wolfish, 441 U.S. 520, 545 , 99 S.Ct. 1861, 1877 (19 79)).

17

Again, w e note that the post-c onviction statute of lim itation s expired in the appellant's

case on July 1, 1989. However, the statute of limitations will not bar a post-conviction claim when

the ground for relief arises after "the final action of the highest state appellate court to which

app eal is tak en." Sands, 903 S.W .2d at 301. Thus , in order for a subseque nt decision by a court

to c onstitu te a later-arising gro und fo r relief, the rule announced therein m ust co nstitute a new rule

of law that should be applied retroactively. Under both federal and Tennessee law, a new rule of

constitutional law exists "when it breaks new ground or imposes a new obligation on the States or

the Federal Government . . . . To put it differently, a case announces a new rule if the result was

not dictated by preced ent existing at the tim e the defe nda nt's conviction beca m e final." Tea gue v.

Lane, 489 U.S . 288, 301, 109 S.C t. 1060, 1070 (1 989 ) (em pha sis in original); Me ado ws v. State ,

849 S.W .2d 748, 751 (T enn . 1993).

18

W e find it unnece ssary to determ ine whether Harper crea ted a new con stitutiona l rule.

See supra note 2.

15

barred by the applicable three year statute of limitations.

Notwithstanding our holding that the appellant's forced medication claim is

time barred, we are also compelled to note that the instant case does not invoke the

due process protections afforded by Harper and Riggins. The Supreme Court, in

Riggins, narrowly defined those circumstances under which the due process

procedures set forth in Harper are required; the threshold determination being

whether the appellant was forcibly medicated, i.e., whether the medication was

unwanted, compelled, over objection, or involuntary, and not whether the State may

administer medication.19 Riggins, 504 U.S. at 133, 112 S.Ct. at 1814. Accord

Magwood v. State, 689 So. 2d 959, 985 (Ala. Cr. App. 1996), cert. denied, (Ala.

1997); Ferguson v. Singletary, 632 So. 2d 53, 56 (Fla. 1993); Van Orden, 647

N.E.2d at 644; Ex Parte Thomas, 906 S.W.2d 22, 24 (Tex. Crim. App. 1995).

Although no evidentiary hearing was held in the instant case, the proof in the record

from the 1982 post-conviction proceeding does not reflect that the medication

received by the appellant was involuntary or forced upon him. Indeed, the findings

of fact of the federal district court indicate that the attending psychiatrist informed

the appellant as to the nature and identity of the medication prior to its

administration. Rickman, 864 F.Supp. at 713. Moreover, there is no indication that

the appellant, at any time, objected to being medicated. In a post-conviction

petition, the appellant must establish his allegations by a preponderance of the

evidence. McBee v. State, 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983).

However, he fails to show anywhere in the record that he was forced to take the

medication or that there was even an objection to his being medicated.20 Thus, we

19

In Riggins, Justice O'Connor, writing for the majority, stated: "The record in this case

narrowly de fines the iss ues befo re us . . . .[O]nce the District Court de nied Rigg ins' m otion to

term inate u se o f the M ellaril, subseq uen t adm inistration of the drug was involun tary." Id.

20

See, e.g., Magwood, 689 So.2d at 985 (petitioner must assertively object to medication

to be involun tary); Ferguson, 632 So.2d at 56-57 (adm inistration of me dication voluntary where

evidence showed that petitioner received medication in cell, that he was upset when he did not

receive medication, that medication was appropriate, and that counsel never requested on the

record th at m edication b e disc ontinu ed ); Van Orden, 647 N.E.2D at 644 (petitioner never

obje cted to being m edicated , thus adm inistration of m edication w as voluntary); Thom as, 906

S.W .2d at 24 (no objection on reco rd to dem onstrate that m edication was involuntary).

16

conclude that the Fourteenth Amendment implications addressed in Harper and

Riggins have no application to the case before us. See Riggins, 504 U.S. at 133,

112 S.Ct. at 1814. Accordingly, the appellant's due process contention is without

merit.

The remaining issue, thus, involves the appellant’s Sixth Amendment right to

counsel as observed in Riggins. "Competence to stand trial is rudimentary, for upon

it depends the main part of those rights deemed essential to a fair trial, including the

right to effective assistance of counsel, the rights to summon, to confront, and to

cross-examine witnesses, and the right to testify on one's own behalf or to remain

silent without penalty for doing so." Riggins, 504 U.S. at 139-40, 112 S.Ct. at 1817

(Kennedy, J., concurring) (citing Drope v. Missouri, 420 U.S. 162, 171-172, 95 S.Ct.

896, 903-904 (1975)). Accord Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15

L.Ed.2d 815 (1966); State v. Stacy, 556 S.W.2d 552 (Tenn. Crim. App. 1977);

Mackey v. State, 537 S.W.2d 704 (Tenn. Crim. App. 1975). However, the mere fact

that the appellant was receiving medication during the course of a trial does not per

se render him incompetent. See generally State v. DeAngelis, 511 A.2d 310 (Conn.

1986); State v. Hampton, 218 So.2d 311 (La. 1969); People v. Hardesty, 362

N.W.2d 768 (Mich.App. 1984). The appellant's competency was previously litigated

in his first post-conviction petition. Groseclose and Rickman, No. 9. As such, this

issue has been previously determined and is without merit.

For the foregoing reasons, the judgment of the post-conviction court

dismissing the appellant’s petition is affirmed.

17

____________________________________

DAVID G. HAYES, Judge

CONCUR:

_______________________________

JOSEPH M. TIPTON, Judge

_______________________________

WILLIAM M. BARKER, Judge

18