IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE SEPTEMBER SESSION, 1998 FILED October 15, 1998
Cecil Crowson, Jr. RONALD BRADFORD WALLER,) Appellate C ourt Clerk ) No. 03C01-9702-CR-00054 Appellant ) ) HAMILTON COUNTY vs. ) ) Hon. DOUGLAS A. MEYER, Judge STATE OF TENNESSEE, ) ) (Post-Conviction) Appellee )
For the Appellant: For the Appellee:
Ronald B. Waller, Pro Se John Knox Walkup S.T.S.R.C.F. #205287 Attorney General and Reporter Rt #4, Box 600 Pikeville, TN 37367 Ellen H. Pollack Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493
William H. Cox III District Attorney General
C. Leland Davis Asst. District Attorney General Suite 300, Courts Building Chattanooga, TN 37402
OPINION FILED:
REMANDED
David G. Hayes Judge OPINION
The appellant, Ronald Bradford Waller, appeals the Hamilton County
Criminal Court’s dismissal of his petition for post-conviction relief. In April 1992, the
appellant was convicted of two counts of first degree murder, one count of
especially aggravated robbery, and one count of theft of property over one thousand
dollars.1 These convictions resulted in the imposition of a sentence of life plus
twenty-three years. This court affirmed the appellant’s convictions and sentences
on direct appeal, finding his allegations without merit.2 State v. Waller, No. 03C01-
9212-CR-00429 (Tenn. Crim. App. at Knoxville, Oct. 6, 1993), perm. to appeal
denied, (Tenn. Feb. 7, 1994). He is currently confined at Southeastern Tennessee
State Regional Correctional Facility in Pikeville.
After review of the voluminous record before this court, we remand to the trial
court for further proceedings consistent with this opinion.
Background
On May 10, 1996, the appellant filed a petition for post-conviction relief.
Within the appellant’s ninety-one page pro se petition, he raises ten general grounds
for post-conviction relief; specifically, he enumerates over ninety separate grounds
upon which relief should be granted. Although the trial court subsequently
1 The appellant’s convictions arise from the January 9, 1991, murder of Chattanooga residen t Harold J ewell. The appellant h ad acc epted a r ide with M r. Jewell wh ile hitchhiking on I- 75. The two m en proc eeded to a hotel an d then to M r. Jewell’s B eaver C reek a partm ent. Allegedly, Mr. Jewell made homosexual advances towards the appellant. A struggle ensued, resulting in th e appe llant beating M r. Jewell an d virtually sever ing Jewe ll’s neck w ith a bread knife. Before leaving the apartment, the appellant gathered some money, prescription medication, and som e jew elry of t he vic tim’s . He th en lef t the a partm ent a nd dr ove to his m othe r’s re side nce in Port Ritch ie, Florida in the victim’s C hevrolet Im pala. See State v. Waller, No. 03C01-9212-CR- 00429 (Tenn . Crim. A pp. at Kno xville, Oct. 6, 1 993), perm. to appeal denied, (Tenn. Feb. 7, 1994).
2 On direct appeal, the appellant argued that the evidence was insufficient to support the verdicts; that he was prejudiced by the delayed admission of alleged homosexual conduct on the part of the deceased; that his convictions for first degree murder and especially aggravated robbery violate double jeopardy; and that consecutive sentencing was not prope r.
2 appointed counsel, the case proceeded on the pro se petition without amendment.
An evidentiary hearing was held on the petition on November 13, 1996, and January
27, 1997. On March 17, 1997, the trial court denied the appellant post-conviction
relief. Although no specific findings of fact were recited by the trial court, the trial
court’s order dismissing the petition provides in its entirety:
1. It is not double jeopardy for a defendant to be found guilty of premeditated murder and felony murder.
2. There was no proof of improper grand jury proceedings, denial of a speedy trial, prosecutorial misconduct, abuse of discretion/lack of control over proceedings, miscarriage of justice, and judicial conspiracy.
3. The issue of reasonable doubt/insufficient evidence was predetermined by the Court of Criminal Appeals on direct appeal.
4. The proof shows that petitioner received effective assistance of counsel from Hank Hill. But, assuming for the sake of discussion, that he did not, there is no showing of any reasonable probability that the result would have been different.
5. The effect of other errors, even considered cumulatively, are harmless.
The appellant filed a timely notice of appeal of the trial court’s ruling. After
the appellant’s brief was filed on January 30, 1998, but prior to the case being
docketed for appellate review, post-conviction counsel was permitted to withdraw by
this court due to a conflict created by her acceptance of a position with the public
defender’s office, who had represented the appellant at trial. See Waller v. State,
No. 03C01-9702-CR-00054 (Tenn. Crim. App. at Knoxville, Feb. 20, 1998). The
State filed its response to the appellant’s brief on April 17, 1998. By order dated
June 16, 1998, this court ordered that the transcript of the appellant’s trial be
consolidated with the present record for purposes of this appeal. See Waller v.
State, No. 03C01-9702-CR-00054 (Tenn. Crim. App. at Knoxville, Jun. 16, 1998).
On June 22, 1998, this court ordered that the appellant’s pro se brief be filed as a
supplement to the brief submitted by counsel. 3 See Waller v. State, No. 03C01-
3 The appellant’s pro se brief is fifty-one pages in length. Counsel’s brief is thirty-nine pages.
3 9702-CR-000545 (Tenn. Crim. App. at Knoxville, Jun. 22, 1998).
The collective issues raised by the appellant in the two briefs allege
constitutional error requiring reversal based upon: (1) fatal variance between
indictment and proof; (2) various claims of double jeopardy; (3) numerous claims of
prosecutorial misconduct; (4) various allegations of the trial court’s failure to
maintain control over the court room; (5) approximately thirty-two grounds alleging
ineffective assistance of counsel; (6) the cumulative error of all due process
violations; (7) denial of equal protection of the law; (8) unconstitutional destruction of
grand jury records; and (9) an unconstitutional reasonable doubt jury instruction.
Analysis
Without reaching the merits of the appellant’s petition, we find it necessary to
remand this cause to the trial court as the posture of this case, the lack of adequate
findings of fact and conclusions of law by the trial court, and the State’s failure to
respond to the supplemental brief prevent us from completing any kind of
meaningful review.
First, the trial court failed to enter any discernible findings of fact and
conclusions of law as required by Tenn. Code Ann. § 40-30-211 (1996 Supp.). In
particular, the court’s findings are merely conclusions without any factual support,
the court failed to address all issues raised by the appellant, and the court’s order
suggests the presence of errors in the record without specifically naming them. See
supra Background. Tenn. Code Ann. § 40-30-211 provides that “[u]pon disposition
of every petition, the court shall enter a final order, and . . . shall set forth in the
order . . .
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE SEPTEMBER SESSION, 1998 FILED October 15, 1998
Cecil Crowson, Jr. RONALD BRADFORD WALLER,) Appellate C ourt Clerk ) No. 03C01-9702-CR-00054 Appellant ) ) HAMILTON COUNTY vs. ) ) Hon. DOUGLAS A. MEYER, Judge STATE OF TENNESSEE, ) ) (Post-Conviction) Appellee )
For the Appellant: For the Appellee:
Ronald B. Waller, Pro Se John Knox Walkup S.T.S.R.C.F. #205287 Attorney General and Reporter Rt #4, Box 600 Pikeville, TN 37367 Ellen H. Pollack Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493
William H. Cox III District Attorney General
C. Leland Davis Asst. District Attorney General Suite 300, Courts Building Chattanooga, TN 37402
OPINION FILED:
REMANDED
David G. Hayes Judge OPINION
The appellant, Ronald Bradford Waller, appeals the Hamilton County
Criminal Court’s dismissal of his petition for post-conviction relief. In April 1992, the
appellant was convicted of two counts of first degree murder, one count of
especially aggravated robbery, and one count of theft of property over one thousand
dollars.1 These convictions resulted in the imposition of a sentence of life plus
twenty-three years. This court affirmed the appellant’s convictions and sentences
on direct appeal, finding his allegations without merit.2 State v. Waller, No. 03C01-
9212-CR-00429 (Tenn. Crim. App. at Knoxville, Oct. 6, 1993), perm. to appeal
denied, (Tenn. Feb. 7, 1994). He is currently confined at Southeastern Tennessee
State Regional Correctional Facility in Pikeville.
After review of the voluminous record before this court, we remand to the trial
court for further proceedings consistent with this opinion.
Background
On May 10, 1996, the appellant filed a petition for post-conviction relief.
Within the appellant’s ninety-one page pro se petition, he raises ten general grounds
for post-conviction relief; specifically, he enumerates over ninety separate grounds
upon which relief should be granted. Although the trial court subsequently
1 The appellant’s convictions arise from the January 9, 1991, murder of Chattanooga residen t Harold J ewell. The appellant h ad acc epted a r ide with M r. Jewell wh ile hitchhiking on I- 75. The two m en proc eeded to a hotel an d then to M r. Jewell’s B eaver C reek a partm ent. Allegedly, Mr. Jewell made homosexual advances towards the appellant. A struggle ensued, resulting in th e appe llant beating M r. Jewell an d virtually sever ing Jewe ll’s neck w ith a bread knife. Before leaving the apartment, the appellant gathered some money, prescription medication, and som e jew elry of t he vic tim’s . He th en lef t the a partm ent a nd dr ove to his m othe r’s re side nce in Port Ritch ie, Florida in the victim’s C hevrolet Im pala. See State v. Waller, No. 03C01-9212-CR- 00429 (Tenn . Crim. A pp. at Kno xville, Oct. 6, 1 993), perm. to appeal denied, (Tenn. Feb. 7, 1994).
2 On direct appeal, the appellant argued that the evidence was insufficient to support the verdicts; that he was prejudiced by the delayed admission of alleged homosexual conduct on the part of the deceased; that his convictions for first degree murder and especially aggravated robbery violate double jeopardy; and that consecutive sentencing was not prope r.
2 appointed counsel, the case proceeded on the pro se petition without amendment.
An evidentiary hearing was held on the petition on November 13, 1996, and January
27, 1997. On March 17, 1997, the trial court denied the appellant post-conviction
relief. Although no specific findings of fact were recited by the trial court, the trial
court’s order dismissing the petition provides in its entirety:
1. It is not double jeopardy for a defendant to be found guilty of premeditated murder and felony murder.
2. There was no proof of improper grand jury proceedings, denial of a speedy trial, prosecutorial misconduct, abuse of discretion/lack of control over proceedings, miscarriage of justice, and judicial conspiracy.
3. The issue of reasonable doubt/insufficient evidence was predetermined by the Court of Criminal Appeals on direct appeal.
4. The proof shows that petitioner received effective assistance of counsel from Hank Hill. But, assuming for the sake of discussion, that he did not, there is no showing of any reasonable probability that the result would have been different.
5. The effect of other errors, even considered cumulatively, are harmless.
The appellant filed a timely notice of appeal of the trial court’s ruling. After
the appellant’s brief was filed on January 30, 1998, but prior to the case being
docketed for appellate review, post-conviction counsel was permitted to withdraw by
this court due to a conflict created by her acceptance of a position with the public
defender’s office, who had represented the appellant at trial. See Waller v. State,
No. 03C01-9702-CR-00054 (Tenn. Crim. App. at Knoxville, Feb. 20, 1998). The
State filed its response to the appellant’s brief on April 17, 1998. By order dated
June 16, 1998, this court ordered that the transcript of the appellant’s trial be
consolidated with the present record for purposes of this appeal. See Waller v.
State, No. 03C01-9702-CR-00054 (Tenn. Crim. App. at Knoxville, Jun. 16, 1998).
On June 22, 1998, this court ordered that the appellant’s pro se brief be filed as a
supplement to the brief submitted by counsel. 3 See Waller v. State, No. 03C01-
3 The appellant’s pro se brief is fifty-one pages in length. Counsel’s brief is thirty-nine pages.
3 9702-CR-000545 (Tenn. Crim. App. at Knoxville, Jun. 22, 1998).
The collective issues raised by the appellant in the two briefs allege
constitutional error requiring reversal based upon: (1) fatal variance between
indictment and proof; (2) various claims of double jeopardy; (3) numerous claims of
prosecutorial misconduct; (4) various allegations of the trial court’s failure to
maintain control over the court room; (5) approximately thirty-two grounds alleging
ineffective assistance of counsel; (6) the cumulative error of all due process
violations; (7) denial of equal protection of the law; (8) unconstitutional destruction of
grand jury records; and (9) an unconstitutional reasonable doubt jury instruction.
Analysis
Without reaching the merits of the appellant’s petition, we find it necessary to
remand this cause to the trial court as the posture of this case, the lack of adequate
findings of fact and conclusions of law by the trial court, and the State’s failure to
respond to the supplemental brief prevent us from completing any kind of
meaningful review.
First, the trial court failed to enter any discernible findings of fact and
conclusions of law as required by Tenn. Code Ann. § 40-30-211 (1996 Supp.). In
particular, the court’s findings are merely conclusions without any factual support,
the court failed to address all issues raised by the appellant, and the court’s order
suggests the presence of errors in the record without specifically naming them. See
supra Background. Tenn. Code Ann. § 40-30-211 provides that “[u]pon disposition
of every petition, the court shall enter a final order, and . . . shall set forth in the
order . . . all grounds presented, and shall state the findings of fact and conclusions
of law with regard to each such ground.” (Emphasis added). The duty to enter
4 findings of fact and conclusions of law as to each ground alleged is mandatory as
the appellate courts may only review the findings of the trial court. See Brown v.
State, 445 S.W.2d 669, 671 (1969). Not only do the trial court’s findings facilitate
appellate review, but, in many cases, are necessary for such review. See Tate v.
State, No. 02C01-9108-CR-00170 (Tenn. Crim. App. at Jackson, May 20, 1992),
perm. to appeal denied, (Tenn. Sept. 14, 1992).
In the absence of oral findings, the failure of the trial court to include its
findings of facts in its order dismissing the petition requires reversal of the order.
Brown, 445 S.W.2d at 671; State v. Higgins, 729 S.W.2d 288, 290-291 (Tenn. Crim.
App. 1987). Moreover, where questions of law are presented negating the need for
the finding of fact, the trial court must still show all grounds presented and the
conclusions with regard to each of them. Little v. State, 469 S.W.2d 537, 538
(Tenn. Crim. App. ), perm. to appeal denied, (Tenn. 1971). In the present case, the
trial court failed to enter any findings of fact as they relate to the appellant’s various
claims for relief. See supra Background. Additionally, the trial court failed to enter
conclusions of law as to all grounds presented. Id. Where the trial court fails to
make “a clear and detailed finding of fact,” either orally or on the record, the
appellate court is “at a complete loss to know the basis of the trial judge’s decision
and judgment; assignments of error [now issues] and appellate review are seriously
frustrated if not completely thwarted by lack of a definitive finding of fact by the trial
judge.” Brooks v. State, No. 03C01-9507-CR-00204 (Tenn. Crim. App. at Knoxville,
Oct. 9, 1996) (citing Brown, 445 S.W.2d at 671).
To further frustrate our review of the proceedings before us, we acknowledge
the disarrayed presentation of issues created by the supplementation of the
appellant’s pro se brief to the record. The two briefs cannot be reconciled. The pro
se brief not only expands the grounds alleged in counsel’s brief but also provides
duplicitous and often confusing argument when compared to counsel’s brief. As
5 illustration, the pro se brief alleges two grounds not alleged in counsel’s brief,
neglects two grounds alleged in counsel’s brief, and, specifically, to the claim of
ineffective assistance of counsel, raises five additional grounds not alleged in
counsel’s brief. We note that the better procedure, facilitating appellate review,
would be to submit only one merged brief addressing all issues.
For these reasons, this cause is remanded solely for the purpose of
permitting the trial court to enter its findings of facts and conclusions of law as to
each ground alleged in the appellant’s petition. No further filings or supplemental
pleadings by either party shall be permitted at the post-conviction level. Once the
trial court enters its order, the appellant may be appointed counsel for purposes of
appeal, if he so desires. Irrespective of his position regarding counsel, only one
brief to this court will be permitted. The briefs previously filed by the parties in this
appeal will not be considered.
Accordingly, the judgment of the trial court is reversed and remanded in
order to permit the trial court to revisit the grounds raised by the appellant in his
original petition, and, thereafter, enter findings of fact and conclusions of law as
required by the Post-Conviction Act. Pursuant to Tenn. R. App. P. 29(a), once the
record has been filed with the clerk of this court, the appellant shall have thirty days
in which to file his appellate brief.
____________________________________ DAVID G. HAYES, Judge
6 CONCUR:
___________________________________ JOHN H. PEAY, Judge
___________________________________ JOSEPH M. TIPTON, Judge