# Johnson v. State

> Tennessee Supreme Court · September 4, 1990 · 797 S.W.2d 578

URL: https://www.frixlaw.com/law-library/cases/9769201

## Case

- **Full name:** Cecil C. JOHNSON, Jr., Appellant, v. STATE of Tennessee, Appellant
- **Court:** Tennessee Supreme Court
- **Decided:** September 4, 1990
- **Citations:** 797 S.W.2d 578; 1990 Tenn. LEXIS 314
- **Precedential status:** Published
- **Opinion:** Concurrence by Drowota
- **Judges:** O'Brien, Fones, Cooper, Harbison, Drowota
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9769201

## Opinion text

DROWOTA, Chief Justice,
concurring.
While I concur in the results reached in the majority opinion, I write separately to express my opinion that the Court should not address the merits in this case because the rule of Caldwell v. Mississippi, 472 U.S. 320 , 105 S.Ct. 2633 , 86 L.Ed.2d 231 (1985), should not be retroactively applied in this post-conviction proceeding.
T.C.A. § 40-30-105 provides that post-conviction relief shall be granted when the conviction or sentence is void or voidable because of the abridgement of any right guaranteed by the Constitution of the State of Tennessee 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. In the recent case of Sawyer v. Smith, — U.S. -, 110 S.Ct. 2822 , 111 L.Ed.2d 193 (1990), the United States Supreme Court, applying the retroactivity analysis announced in Teague v. Lane, 489 U.S. 288 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989), held that the Federal Constitution does not require that the constitutional rule established in Caldwell v. Mississippi be retroactively applied to those cases in which a habeas corpus petitioner’s conviction had become final prior to the Caldwell decision. *589 In this case petitioner’s conviction became final in October 1982, almost three years before the decision in Caldwell, see Teague v. Lane, 109 S.Ct. at 1067 ; therefore, retroactive application of Caldwell is not required.
The rule expressed in Caldwell is a part of Eighth Amendment jurisprudence and a matter of federal law. Where the Federal Constitution does not require retroactive application to judgments which have become final before a rule of federal constitutional law is announced, the Tennessee Constitution does not require otherwise.
Because of my position concerning the retroactivity of the Caldwell rule, I find it inappropriate to comment on the majority’s evaluation of the merits of any Caldwell error in this case.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9769201. Public record. Not legal advice.