Wil v. Doran, Special Judge

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON FILED

SEPTEMBER 1995 SESSION

November 15, 1995

Cecil Crowson, Jr.

Appellate Court Clerk

PHILLIP REX SPIGHT, )

)

APPELLANT, )

) No. 02-C-01-9502-CR-00034

)

) Shelby County

v. )

) Wil V. Doran, Special Judge

)

) (Post-Conviction Relief)

STATE OF TENNESSEE, )

)

APPELLEE. )

FOR THE APPELLANT: FOR THE APPELLEE:

Arthur E. Quinn Charles W. Burson

Attorney at Law Attorney General & Reporter

860 Ridge Lake Blvd., Suite 360 450 James Robertson Parkway

Memphis, TN 38120 Nashville, TN 37243-0493

Sharon S. Selby

Assistant Attorney General

450 James Robertson Parkway

Nashville, TN 37243-0493

John W. Pierotti

District Attorney General

201 Poplar Avenue, Third Floor

Memphis, TN 38103

Karen Cook

Assistant District Attorney General

201 Poplar Avenue, Third Floor

Memphis, TN 38103

OPINION FILED:___________________________________

AFFIRMED

Joe B. Jones, Judge

OPINION

The appellant, Phillip "Rex" Spight, appeals as of right from a judgment of the trial

court denying his suit for post-conviction relief. The trial court found that (a) the appellant

received the constitutionally mandated assistance of counsel prior to trial, during trial, and

in the appellate courts and (b) the Supreme Court's decision in State v. Brown, 836 S.W.2d

530 (Tenn. 1992), is not to be applied retroactively.

Two issues are presented for review. The appellant poses the issues in the

following manner:

I. Whether the evidence preponderates against the trial

court's finding that the petitioner was rendered effective

assistance of counsel as set forth in the case of Baxter v.

Rose, 523 S.W.2d 930 (Tenn. 1975).

II. With regard to the issues raised by the case of State v.

Brown, 836 S.W.2d 530 (Tenn. 1992), whether there was

sufficient evidence upon which to sustain a conviction for first

degree murder and whether trial counsel was ineffective for

failure to properly raise issues supported by the Brown case.

The judgment of the trial court is affirmed.

The appellant was tried for and convicted of murder in the first degree. The state

sought the imposition of a death sentence. The jury sentenced the appellant to life in the

Department of Correction. He subsequently appealed as of right to this Court. His

conviction was affirmed. State v. Phillip Spight, Shelby County No. 71 (Tenn. Crim. App.,

Jackson, July 31, 1991). The Supreme Court denied the appellant's application for

permission to appeal on December 2, 1991.

The present suit was filed in the trial court on November 22, 1993. The appellant

amended his pleadings on January 10, 1994. The state filed a response. The trial court

conducted an evidentiary hearing on June 2, 1994. The trial court filed extensive findings

of fact and conclusions of law on September 1, 1994, with the order denying the relief

sought.

1

I.

When a petitioner in a suit for post-conviction relief is granted an evidentiary hearing

to ventilate the grounds raised in his petition, the trial court's findings of fact are afforded

the weight of a jury verdict. Consequently, this Court is bound by the facts found by the

trial court unless the evidence contained in the record preponderates against the judgment

entered in the cause.1

Where, as here, the petitioner seeks to vitiate a conviction on the ground that trial

counsel were ineffective in their representation, the petitioner must establish by a

preponderance of the evidence (a) the services rendered or advice given by counsel fell

below "the range of competence demanded of attorneys in criminal cases,"2 and (b) the

unprofessional conduct or errors of counsel "actually had an adverse effect on the

defense."3 In determining whether an accused has been denied his constitutional right to

the effective assistance of counsel, an appellate court is bound by certain well-established

standards. First, the standard created by the Tennessee Supreme Court in Baxter v.

Rose4 does not require perfect representation.5 Second, it is not this Court's function to

"second guess" trial counsel's tactical and strategic choices pertaining to matters of

defense unless these choices are made without knowledge of the relevant facts or the law

applicable to the issue.6 As the Supreme Court said in Hellard v. State: "[T]he defense

1

Teague v. State, 772 S.W.2d 932, 933-34 (Tenn. Crim. App. 1988), cert. denied

493 U.S. 874, 110 S.Ct. 210, 107 L.Ed.2d 163 (1989); Brooks v. State, 756 S.W.2d 288,

289-90 (Tenn. Crim. App.), per. app. denied (Tenn. 1988); Vermilye v. State, 754 S.W.2d

82, 84 (Tenn. Crim. App.), per. app. denied (Tenn. 1987).

2

Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).

3

Strickland v. Washington, 466 U.S. 668, 693, 104 S.Ct. 2052, 2067, 80 L.Ed.2d

674, 697 (1984). The Strickland standards were adopted by the Tennessee Supreme

Court in State v. Melson, 772 S.W.2d 417, 419 (Tenn. 1989), cert. denied, 493 U.S. 874,

110 S.Ct. 211, 107 L.Ed.2d 164 (1989). Prior to Melson, this Court adopted the Strickland

standards in numerous cases. See Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App.

1985), per. app. denied (Tenn. 1986), one of the first cases to apply Strickland.

4

523 S.W.2d 930 (Tenn. 1975).

5

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

6

Hellard, 629 S.W.2d at 9; State v. Swanson, 680 S.W.2d 487, 490 (Tenn. Crim.

App.), per. app. denied (Tenn. 1984); McBee v. State, 655 S.W.2d 191, 193 (Tenn. Crim.

App.), per. app. denied (Tenn. 1983).

2

attorney's representation, when questioned, is not to be measured by '20-20' hindsight."7

Third, an accused is not deprived of the effective assistance of counsel because a different

procedure or strategy might have produced a different result.8

Since the trial court found that the appellant failed to establish he was entitled to

post-conviction relief, this Court must review the record to determine if the trial court's

findings of fact preponderate against the judgment entered in this case.9 In doing so, this

Court is bound by certain well-established rules of appellate procedure. As this Court said

in Black v. State:10

First, this Court cannot reweigh or reevaluate the evidence;

nor can [this Court] substitute [its] inferences for those drawn

by the trial [court]. Second, questions concerning the

credibility of the witnesses, the weight and value to be given

their testimony, and the factual issues raised by the evidence

are resolved by the trial [court], not this Court. Third, the

appellant has the burden in this Court of illustrating why the

evidence contained in the record preponderates against the

judgment entered by the trial [court].

With these rules in mind, this Court will proceed to determine the merits of the issues

presented for review.

II.

The appellant gave a complete statement to the police. He subsequently made two

spontaneous statements to the officers. A lawyer retained by the family obtained

information from the appellant and gave the information to the police officers investigating

the homicide. The appellant contends that he was denied his constitutional right to the

effective assistance of counsel because trial counsel failed to file and pursue a motion to

suppress the statements he made to the police and the information his lawyer gave the

7

629 S.W.2d at 9.

8

Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App.), per. app. denied

(Tenn. 1980); Long v. State, 510 S.W.2d 83, 88 (Tenn. Crim. App.), per. app. denied

(Tenn. 1974).

9

Teague, 722 S.W.2d at 933-34; Brooks, 756 S.W.2d at 289-90; Vermilye, 754

S.W.2d at 84.

10

794 S.W.2d 752, 755 (Tenn. Crim. App.),per. app. denied (Tenn. 1990).

3

police. He also contends that he was entitled to have any evidence derived from the

statements suppressed.

The body of Felix L. Clanton, Jr., was discovered at 2:35 p.m., on the afternoon of

April 16, 1989. The investigation conducted by the Memphis Police Department revealed

that the appellant had recently lived with the victim. When the appellant moved out, he

gave the victim a check drawn on a closed bank account for his share of the rent. The

investigating officers found a note written by the victim to the appellant. The note stated

that if the appellant did not make the bad check good within a given number of days, the

victim would obtain a warrant for the appellant's arrest and have him arrested. It also

stated the victim had recalculated the amount due and set forth the actual amount owed.

The officers found a screen missing from the victim's bedroom window. It was

surmised that this was the manner by which the murderer obtained entry into the

apartment. A fingerprint comparison revealed that the appellant had handled the screen.

The appellant's fingerprints were found inside the apartment. Relatives of the victim

advised officers that the victim retained the appellant's clothing and personal effects as

collateral for the amount owed by the appellant. A search of the bedroom previously

occupied by the appellant revealed that the appellant's clothing and personal effects had

been removed from the apartment.

The appellant immediately became a suspect in the murder. Homicide officers

began looking for the appellant. The officers left word with the appellant's family and

friends that he was a suspect, and they wanted to talk to him. On April 17, 1989, the

appellant contacted the officers by telephone. He waited until the officers arrived. He was

taken into custody and transported to the Memphis Police Department.

The arresting officers gave the appellant the Miranda warnings. He subsequently

gave the officers an oral statement after he arrived at the police station. The statement

was given on April 17, 1989, at 7:27 p.m. The statement concluded at 8:50 p.m. The

officers described it as an "alibi statement." The appellant stated that he had not seen the

victim since April 12, 1989. He told the officers where he had been, the people he saw,

and how he was able to travel from one location to another. In short, he accounted for his

activities during the time period the victim may have been murdered. He acknowledged

4

that he had given the victim a bad check, but denied that the victim had either written or

given him a note regarding the bad check. He also told the officers: "I had no

disagreements with Felix. He was like a father to me. We never argued."

The appellant was asked if he would give the officers "a typewritten statement

relative to the criminal homicide of your ex room mate, Felix Leroy Clanton, Jr." The

appellant stated that he would give such a statement. The appellant was again given the

Miranda warnings, and he acknowledged that he understood these warnings. The officer

subsequently asked: "Having these rights in mind, do you wish to make a statement?"

The appellant responded: "I want an Attorney now."

The officers removed the appellant from the secretary's office. While en route to

the officer's office, the appellant stated: "Wait a minute now. I want to give [a] statement.

Just don't stop -- I want to tell you about this thing. I want to give a statement." Since he

had invoked the right to counsel, the officers refused to take a statement from him. They

told the appellant that he would have to hire an attorney or have an attorney appointed to

represent him. The officers prepared the necessary "paper work" and took the appellant

to the jail.

It is the policy of the Memphis Police Department to advise a suspect in person that

he or she is being charged with a serious felony. On April 20, 1989, at 3:30 p.m., Sergeant

Bobby G. Garner took the appellant from the jail to his office in the Homicide Bureau. The

following colloquy occurred between Sergeant Garner and the appellant:

Q. Phillip, it is my duty as a police officer to advise you that I

am going to charge you with First Degree Murder.

A. Sgt. Garner, I didn't kill Felix. I went over there and got my

clothes. I'm not going to jail for somebody else. I'll tell you

who killed Felix but I want my lawyer with me when I tell you.

Q. Do you have a lawyer?

A. No, but I'm gonna call my mother and get her to get me one.

Sergeant Garner permitted the appellant to call his mother. He was then taken back to the

jail.

The appellant's mother hired an attorney to represent him. The lawyer met privately

with the appellant in the Homicide Bureau. The appellant advised the lawyer that he and

5

Lawrence Woods went to the victim's apartment to obtain his clothing and personal effects.

According to the appellant, Woods began stabbing the victim while the appellant was in

another room. The appellant attempted to get Woods to stop. He stated that he did not

participate in the murder or procure Woods to kill the victim. The lawyer advised the

officers that Lawrence Woods was the person who killed the victim, not the appellant. This

conversation took place in front of the appellant. He did not complain or otherwise

remonstrate when the attorney related this information.

When the officers had difficulty locating a Lawrence Woods, they asked the

appellant's attorney if he would see if the appellant had additional information regarding

Woods. It appears that Woods's first name was Larz, not Lawrence, and the appellant

gave the attorney a physical description of Woods as well as additional information. The

lawyer relayed this information to the officers. They discovered that Woods had a juvenile

record. Information obtained from the juvenile court authorities led to the arrest of Larz

Woods.

A.

In the landmark case of Miranda v. Arizona,11 the United States Supreme Court,

noting the "inherent pressures of the interrogation atmosphere,"12 formulated warnings that

must be given to a suspect before the commencement of custodial interrogation. Miranda

requires law enforcement officers to warn a suspect "in clear and unequivocal terms" that

(a) "he has the right to remain silent,"13 (b) "anything said can and will be used against

[him] in court,"14 (c) he has "the right to consult with a lawyer and to have the lawyer with

him during interrogation,"15 and (d) if "indigent a lawyer will be appointed to represent

11

384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

12

Miranda, 384 U.S. at 468, 86 S.Ct. at 1624, 16 L.Ed.2d at 720.

13

384 U.S. at 468, 86 S.Ct. at 1624, 16 L.Ed.2d at 720.

14

Miranda, 384 U.S. at 469, 86 S.Ct. at 1625, 16 L.Ed.2d at 720-21.

15

Miranda, 384 U.S. at 471, 86 S.Ct. at 1626, 16 L.Ed.2d at 723.

6

him."16

The purpose of the Miranda warnings is clear. First, the suspect is informed of the

privilege against self-incrimination. Second, the suspect is informed of the consequences

of waiving his privilege against self-incrimination. Third, the suspect is informed that he

has a right to consult with a lawyer before being interrogated, and, if desired, to have the

lawyer present during the interrogation.

The holding in Miranda is limited to "custodial interrogations."17 The Court defined

the phrase "custodial interrogation" as "questioning initiated by law enforcement officers

after a person has been taken into custody or otherwise deprived of his freedom of action

in any significant way."18 A person is "in custody" within the meaning of Miranda if there

has been "a 'formal arrest or restraint on freedom of movement' of the degree associated

with a formal arrest."19 The Court has refused to extend Miranda to non-custodial

interrogations.20

There is "no talismanic incantation . . . required to satisfy [Miranda's] strictures."21

However, the actual warnings given to the suspect must be a "fully effective equivalent" of

the Miranda warnings.22

16

Miranda, 384 U.S. at 473, 86 S.Ct. at 1627, 16 L.Ed.2d at 723.

17

See Stansbury v. California, 511 U.S. _____, 114 S.Ct. 1526, 128 L.Ed.2d 293

(1994); Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984);

California v. Beheler, 463 U.S. 1121, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983); Oregon v.

Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977); Beckwith v. United States,

425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976); State v. Smith, 868 S.W.2d 561 (Tenn.

1993); State v. Brown, 836 S.W.2d 530 (Tenn. 1992); State v. House, 743 S.W.2d 141

(Tenn. 1937), cert. denied, 498 U.S. 912, 111 S.Ct. 284, 112 L.Ed.2d 239 (1990); State

v. Davis, 735 S.W.2d 854 (Tenn. Crim. App.), per. app. denied (Tenn. 1987); State v.

Stapleton, 638 S.W.2d 850 (Tenn. Crim. App.), per. app. denied (Tenn. 1982).

18

Miranda, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706.

19

Beheler, 463 U.S. at 1125, 103 S.Ct. at 3520, 77 L.Ed.2d at 1279 (quoting

Mathiason, 429 U.S. at 495, 97 S.Ct. at 714, 50 L.Ed.2d at 719).

20

See Beckwith, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976) (an accused was

not entitled to the Miranda warnings when special agents of the Internal Revenue Service

questioned Beckwith in the dining room of his home).

21

California v. Prysock, 453 U.S. 355, 359, 101 S.Ct. 2806, 2809, 69 L.Ed.2d 696,

701 (1981).

22

Prysock, 453 U.S. at 359-60, 101 S.Ct. at 2809, 69 L.Ed.2d at 701; see also

Duckworth v. Eagan, 492 U.S. 195, 202, 109 S.Ct. 2875, 2880, 106 L.Ed.2d 166, 176

(1989).

7

B.

When a suspect clearly articulates23 during custodial interrogation that he wishes

to invoke the privilege against self-incrimination24 or the right to counsel,25 the officers

conducting the interrogation must stop questioning the suspect.26 As the United States

Supreme Court said in Miranda:

If . . . [the suspect] indicates in any manner and at any stage

of the process that he wishes to consult with an attorney

before speaking there can be no questioning. Likewise, if the

individual is alone and indicates in any manner that he does

not wish to be interrogated, the police may not question him.

The mere fact that he may have answered some questions or

volunteered some statements on his own does not deprive him

of the right to refrain from answering any further inquiries until

he has consulted with an attorney and thereafter consents to

be questioned.27

In this case, the appellant invoked the right to consult with counsel or have counsel

present before being interrogated. The officers honored this right by ceasing the

interrogation. When the appellant attempted to talk to the officers after invoking this right,

the officers refused to talk with him until he was represented by counsel. The officers did

not attempt to interrogate the appellant thereafter. When counsel was retained by the

appellant's family to represent him, the officers directed all of their inquiries to counsel, not

the appellant. The appellant did not complain or remonstrate when he heard the lawyer

relaying the information to the officers.

C.

23

Davis v. United States, 512 U.S. _____, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362,

371-72 (1994).

24

See Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

25

See Minnick v. Mississippi, 498 U.S. 146, 111 S.Ct. 486, 491, 112 L.Ed.2d 489,

497-98 (1990); Edwards, supra; State v. Tidwell, 775 S.W.2d 379, 386-87 (Tenn. Crim.

App.), per. app. denied (Tenn. 1989).

26

Miranda, 384 U.S. at 444-45, 86 S.Ct. at 1612, 16 L.Ed.2d at 707.

27

384 U.S. at 444-45, 86 S.Ct. at 1612, 16 L.Ed.2d at 707.

8

If a suspect initiates contact with a law enforcement officer after invoking the right

to confer with and have counsel present, the law enforcement officer may converse with

the suspect.28 What the suspect tells the officer is admissible as evidence if it is

established at the suppression hearing that (a) the accused initiated the contact with the

officer and (b) the waiver is knowingly and intelligently made.29

Volunteered, spontaneous statements made by a suspect are also admissible as

evidence if not the product of interrogation.30 In Miranda v. Arizona, the United States

Supreme Court said that "[v]olunteered statements of any kind are not barred by the Fifth

Amendment and their admissibility is not affected by our holding today."31

The statements introduced into evidence were clearly spontaneous, volunteered

statements. They were not the product of interrogation as the appellant contends.

Moreover, Sergeant Garner testified that he had no intention of questioning the appellant

on April 20th. He continued to honor the appellant's invocation of the right to confer with

counsel and have counsel present. Moreover, no information was obtained from the

28

Oregon v. Bradshaw, 462 U.S. 1039, 1044, 103 S.Ct. 2830, 2834, 77 L.Ed.2d 405,

411-12 (1983); State v. Claybrook, 736 S.W.2d 95, 103 (Tenn. 1987); see Smith v. Illinois,

469 U.S. 91, 95, 105 S.Ct. 490, 492, 83 L.Ed.2d 488, 493-94 (1984); Edwards, 451 U.S.

at 485, 101 S.Ct. at 1885, 68 L.Ed.2d at 386; Tidwell, 775 S.W.2d at 386-87.

29

Bradshaw, 462 U.S. at 1044, 103 S.Ct. at 2834, 77 L.Ed.2d at 411-12; Tidwell, 775

S.W.2d at 386.

30

Miranda, 384 U.S. at 478, 86 S.Ct. at 1630, 16 L.Ed.2d at 726; State v. Hurley,

876 S.W.2d 57, 65-6 (Tenn. 1993), cert. denied ____ U.S. ____, 115 S.Ct. 328, 130

L.Ed.2d 287 (1994); State v. McNish, 727 S.W.2d 490, 496 (Tenn), cert. denied, 484 U.S.

873, 108 S.Ct. 210, 98 L.Ed.2d 161 (1987); State v. Luellen, 867 S.W.2d 736, 739 (Tenn.

Crim. App. 1992); State v. Brown, 664 S.W.2d 318, 321 (Tenn. Crim. App. 1983), per. app.

denied (Tenn. 1984); State v. Chavis, 617 S.W.2d 903, 905-06 (Tenn. Crim. App., 1980),

per. app. denied (Tenn. 1981); State v. James Rines, Cocke County No. 03-C-01-9204-

CR-00115 (Tenn. Crim. App., Knoxville, January 13, 1993), per. app. denied (Tenn. 1993);

State v. Harrison Dale Harville, Hamblen County No. 03-C-01-9110-CR-00337 (Tenn. Crim.

App, Knoxville, March 31, 1992), per. app. denied (Tenn. 1992); State v. Larry Fields,

Fayette County No. 11 (Tenn. Crim. App., Jackson, March 20, 1991) per. app. denied

(Tenn. 1991); State v. Simon Nelson, Madison County No. 2 (Tenn. Crim. App., Jackson,

April 25, 1990), per. app. denied (Tenn. 1990); State v. David Jerome Williams, Knox

County No. 1146 (Tenn. Crim. App., Knoxville, January 25, 1988); State v. B. R. Russell

and David Russell, Loudon No. 62, 63 (Tenn. Crim. App., Knoxville, September 15, 1987),

per. app. denied (Tenn. 1987); State v. Roscoe Leonard Perry, Hamilton County No. 987

(Tenn. Crim. App., Knoxville, April 14, 1987), per. app. denied (Tenn. 1987); State v.

Charles Blankenship, Sullivan County No. 727 (Tenn. Crim. App., Knoxville, March 23,

1987); State v. James Eddie Sherrill, Loudon County No. 59 (Tenn. Crim. App., Knoxville,

December 15, 1986). See Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77

L.Ed.2d 405 (1983).

31

384 U.S. at 478, 86 S.Ct. at 1630, 16 L.Ed.2d at 726.

9

appellant between the time he invoked the right to counsel and counsel conferred with him.

On each occasion that the officers desired information, the inquiries were directed to

appellant's counsel, not the appellant, and the information was relayed through counsel.

D.

The appellant is not entitled to relief on this ground. He has failed to establish that

his lawyers rendered ineffective assistance of counsel or that he was prejudiced by their

representation. The appellant told his attorneys that he freely and voluntarily made the

statements attributed to him. The appellant did not refute this fact at the evidentiary

hearing. His testimony was marked with such answers as "I don't know," "I can't recall,"

and "I'm relying on my lawyer."

The defense attorneys stated that they did not move to suppress the statements for

two reasons. First, there was no basis in fact or law to have the statements suppressed.

Second, the attorneys wanted the statements to come into evidence because the

statements supported the appellant's theory that Woods killed the victim. The alibi

statement was not introduced into evidence.

The trial court could reasonably conclude that the appellant made the statements

in question in an effort to clothe himself in innocence while casting the blame for the

murder on his friend, Woods. This formed the core of his defense. He testified against the

advice of counsel. He related to the jury that he was in another room when he apparently

heard Woods kill the victim. He went into the bedroom, saw Woods cutting the victim's

throat and stabbing the victim's chest, and he made a concerted effort to pull Woods away

from the victim. In the end, the appellant's scheme to cast the blame on Woods backfired.

Woods, a co-defendant, testified as a prosecution witness.

This issue is without merit.

III.

10

The appellant poses the second issue in terms of ineffective assistance of counsel.

However, the appellant also challenges the sufficiency of the evidence and the sufficiency

of the instruction given by the trial court on the issues of premeditation and deliberation.

He argues that this Court should determine whether the evidence was sufficient to support

his conviction of murder in the first degree, grant him relief on the basis of the instruction

given by the trial court, and find that counsel rendered ineffective assistance of counsel

because they did not challenge the instruction or offer a special request.

A.

There are two reasons why the appellant is not entitled to relief based on the

sufficiency of the evidence in this case. First, the appellant raised this issue on direct

appeal and this Court ruled upon the merits of the issue. Therefore, this issue has been

previously determined within the meaning of Tenn. Code Ann. §§ 40-30-111 and -112.

Second, as a general rule, a petitioner is not entitled to relitigate the sufficiency of the

evidence in a post-conviction proceeding.32

This subissue is clearly without merit.

32

Long v. State, 510 S.W.2d 83, 86 (Tenn. Crim. App.), cert. denied (Tenn. 1974);

Gant v. State, 507 S.W.2d 133, 137 (Tenn. Crim. App.), cert. denied (Tenn. 1974); Ray v.

State, 489 S.W.2d 849, 851 (Tenn. Crim. App.), cert. denied (Tenn. 1972); Parton v. State,

483 S.W.2d 753, 755 (Tenn. Crim. App.), cert. denied (Tenn. 1972).

11

B.

There are also two reasons why the appellant is not entitled to relief based on the

Supreme Court's decision in State v. Brown.33 Brown did not create a constitutional right

and it is not to be applied retroactively.

First, the appellant was not entitled to litigate this issue based upon the facts of this

case. Tenn. Code Ann. § 40-30-105 states:

Relief under this chapter shall be granted when the conviction

or sentence is void or voidable because of the abridgement in

any way of any right guaranteed by the constitution of this state

or the Constitution of the United States, including a right that

was not recognized as existing at the time of trial if either

constitution requires retrospective application of that right.

Brown did not create a new constitutional right.34 In John Wayne Slate v. State, a panel

of this Court, addressing the same issue now before this Court, stated: "[T]he mere fact

that such an instruction has been abandoned as confusing does not necessarily mean that

its previous use equated with a due process violation rendering a first degree murder

conviction void. That is, trial errors may occur which could result in a reversal on direct

appeal but which do not implicate the fundamental rights which are of concern in a post-

conviction proceeding."35

In the recent case of Overton v. State,36 the petitioner contended that he was denied

his constitutional right to the effective assistance of counsel because counsel failed to

object to an erroneous instruction given by the trial court in an aggravated rape

prosecution. The trial court instructed the jury on the offense of aggravated rape as it then

existed, rather than the offense that existed when the crime was committed. There was

a difference in the elements of the two offenses. In holding that the petitioner was not

33

836 S.W.2d 530 (Tenn. 1992).

34

John Wayne Slate v. State, Sevier County No. 03-C-01-9201-CR-00014 (Tenn.

Crim. App., Knoxville, April 27, 1994), app. denied, concurring in results only (Tenn. 1994).

35

John Wayne Slate v. State, Sevier County No. 03-C-01-9201-CR-00014, slip op.

at 8. Slate was followed in Stephen Michael Bell v. State, Davidson County No. 01-C-01-

9304-CR-00130 (Tenn. Crim. App., Nashville, August 4, 1994), slip op. at 5-6.

36

874 S.W.2d 6 (Tenn. 1994).

12

entitled to post-conviction relief based on this error, the Supreme Court said:

Although this instruction may well have constituted reversible

error in this case, we agree with the Court of Criminal Appeals

that it is not a cognizable ground for relief in a post-conviction

petition. Relief may be granted on a post-conviction petition

only when the sentence or conviction is void or voidable

because it contravenes a state or federal constitutional right of

the defendant. Tenn. Code Ann. § 40-30-105; State v. Neal,

810 S.W.2d 131 (Tenn. 1991). Moreover, to allow every error

committed by the trial court to be recast in a post-conviction

petition as an ineffective assistance of counsel allegation

would be to subvert the limited purposes of the post-conviction

procedure.37

In summary, this Court holds that the jury instruction given in this case, although

condemned in Brown, did not per se raise a constitutional issue in the context of this case.

Thus, the appellant is not entitled to relief based on this violation.

Second, the rule announced in Brown is to be applied prospectively -- not

retrospectively as the appellant contends. This Court has held in numerous direct appeals

of conviction, as well as post-conviction appeals, that Brown is to be applied

prospectively.38 The Supreme Court has denied the petitioner's application for permission

to appeal in practically every case. The appellant acknowledges that this is the rule.

However, he has made an effort to convince this Court that the rule should be otherwise.

The doctrine of stare decisis requires that this Court follow the unwavering prior precedent.

This subissue is without merit.

37

874 S.W.2d at 11-12.

38

See, for example, Richard Caldwell v. State, Madison County No. 02-C-01-9405-

CC-00099 (Tenn. Crim. App., Jackson, December 28, 1994); Rodney Bernard Bibbs v.

State, Shelby County No. 02-C-01-9303-CR-00037 (Tenn. Crim. App., Jackson, August

31, 1994), per. app. denied (Tenn. 1994); Stephen Michael Bell, Davidson County No. 01-

C-01-9304-CR-00130 (Tenn. Crim. App., Nashville, August 4, 1994); State v. Joe Nathan

Person, Madison County No. 02-C-01-9205-CC-00106 (Tenn. Crim. App., Jackson,

September 29, 1993), per. app. denied (Tenn. 1994); State v. William Paul Roberson,

Putnam County No. 01-C-01-9206-CC-00200 (Tenn. Crim. App., Nashville, February 25,

1993), per. app. denied (Tenn.1993); State v. David Lee Richards, Hamilton County No.

03-C-01-9207-CR-00230 (Tenn. Crim. App., Knoxville, March 23, 1993), per. app. denied

(Tenn. 1993); State v. Clonte J. Thomas, Shelby County No. 02-C-01-9112-CR-00262

(Tenn. Crim. App., Jackson, January 27, 1993), per. app. denied, concurring in results only

(Tenn. 1993); State v. Willie Bacon, Jr., Hamilton County No. 1164 (Tenn. Crim. App.,

Knoxville, August 4, 1992), per. app. denied (Tenn. 1992).

13

C.

Finally, the appellant claims that he was denied his constitutional right to the

effective assistance of counsel because counsel failed to object to the trial court's

instruction regarding premeditation and deliberation. He predicates this argument on the

holding in Brown. There are three reasons why the appellant cannot prevail on this issue.

First, counsel were not ineffective for failing to object to the instruction given by the

trial court. The instruction had been given in first degree murder cases for years. It was

part of the Tennessee Jury Pattern Instructions on first degree murder. The trial court

would have given the instruction even if there had been an objection to the instruction.

Furthermore, trial counsel were not visionaries. It was impossible for them to foresee that

approximately three years later the Tennessee Supreme Court would hold that the "split

second" instruction was improper.

Second, the Supreme Court's decision in Overton v. State39 is applicable to this

case. While it is possible that either this Court or the Supreme Court may have reached

the same conclusion as Brown and reversed his conviction, the failure to object to the

instruction does not equate to a valid ineffective assistance claim.

Third, the appellant contended that he was not guilty for the reason hereinabove set

forth. In other words, he gambled that the jury would believe him. An argument that he

might be guilty of a lesser included offense would have weakened or undermined his

argument of innocence. The instruction did not impact upon this defense.

This subissue is also without merit.

_____________________________________

JOE B. JONES, JUDGE

CONCUR:

39

874 S.W.2d 6 (Tenn. 1994).

14

_______________________________________

JOSEPH M. TIPTON, JUDGE

________________________________________

JOHN K. BYERS, SENIOR JUDGE

15