IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
DECEMBER SESSION, 1996
KENNETH WAYNE O’GUINN, ) C.C.A. NO. 02C01-9510-CC-00302 ) Appellant, ) ) FILED ) MADISON COUNTY VS. ) April 29, 1997 ) HON. WHIT LAFON STATE OF TENNESSEE, ) JUDGE Cecil Crowson, Jr. ) Appellate C ourt Clerk Appellee. ) (Post-Conviction Relief)
FOR THE APPELLANT: FOR THE APPELLEE:
CHRISTOPHER M. MINTON CHARLES W. BURSON MICHAEL J. PASSINO Attorney General and Reporter Lassiter, Tidwell & Hildebrand 213 Fifth Avenue North DARIAN B. TAYLOR Nashville, TN 37219 Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243
JERRY WOODALL District Attorney General
AL EARLS Assistant District Attorney P. O. Box 2825 Jackson, TN 38302
OPINION FILED ________________________
REVERSED AND REMANDED
JERRY L. SMITH, JUDGE OPINION
Appellant Kenneth Wayne O’Guinn was convicted of first degree murder
and aggravated rape. He received a death sentence for the murder conviction
and life imprisonment for the rape conviction. In this appeal, Appellant
challeng es the trial co urt’s dism issal of his p etition for po st-convictio n relief,
prese nting th e follow ing issu es for re view: (1 ) wheth er the tr ial cou rt erred in
finding that his exculpatory evidence claim was previously determined; and (2)
whether the trial court erred in finding that his sufficiency claim was waived.
After a review of the record, we remand to the trial court for
consideration of Appellant’s first claim in a manner consistent with this opinion.
I. FACTUAL BACKGROUND
The record revea ls that, o n Jan uary 2 2, 198 5, a Ma dison Coun ty Circu it
Court jury convicted Appellant of the first degree murder and aggravated rape
of Sheila Cupples. The trial court imposed respective sentences of death and
life imprisonment. On direct appeal, the Tennessee Supreme Court affirmed
both the conviction s and the senten ces. See State v. O’Guinn, 709 S.W.2d
561 (T enn.), cert. denied, 479 U.S. 87 1 (1986).
Following the dismissal of two post-conviction petitions, Appellant filed a
habe as co rpus p etition in the Un ited Sta tes Dis trict Co urt for th e Midd le
District of T ennes see. He alleg ed the follo wing gro unds fo r relief:
(1) adm ission of his confess ion violated his Fifth Amendment right against self-incrimination;
-2- (2) his trial counsel provided ineffective assistance; (3) the evidence supporting his first degree murder conviction was insu fficient; (4) the State elicited perjured testimony from Dianna King; (5) the State employed surprise testimony regarding the victim’s vaginal wounds; (6) the State withheld exculpatory evidence; and (7) the T ennes see de ath pen alty is unco nstitutiona l.
The district court found only the first two grounds meritorious and granted a
writ. See O’Guinn v. Dutton, 870 F. Supp. 779 (M.D. Tenn. 1993). On
appeal, a three-judge panel of the Sixth Circuit Court of Appeals reversed the
judgm ent of the d istrict court an d dism issed the writ. On re-h earing, the Sixth
Circuit, sitting en banc, affirmed the dismissal of the writ, thereby vacating the
judgm ent of the d istrict court. See O’Guinn v. Dutton, 88 F.3d 140 9 (6th Cir.
1996), cert. denied, 117 S. Ct. 742 (1997).
On A pril 18, 1 995, A ppella nt filed a third po st-con viction p etition. T his
petition asse rted tw o claim s. First, A ppella nt argu ed tha t the Sta te withh eld
the following exculpatory evidence: (a) evidence that Joanie Cupples, the
victim’s cous in, was involve d in the murd er; (b) e videnc e that J oanie Cupp le’s
associates and mother were involved in the murder; (c) evidence that former
Jackson Police Officer Richard Harper was involved in the murder; (d)
evidence that the victim was killed because she provided information to the
police regarding drug trafficking; and (e) evidence that Appellant’s brother was
first indicted for the murder based upon eyewitness testimony. Second,
Appe llant argue d that the e vidence presen ted at trial wa s legally insu fficient to
support a conviction for first degree murder. The trial court dismissed the
petition withou t a hea ring, find ing tha t the first c laim w as pre viously
-3- determined and that the second claim was waived. Appellant appeals from
this dism issal.
II. POST-CONVICTION RELIEF
In challenging the dismissal of his petition, Appellant alleges that the
trial court erred both in finding that his exculpatory evidence claim was
previously determined and that his sufficiency claim was waived.
In post-conviction proceedings, the defendant has the burden of proving
the claim s raised in the petition by a prep ondera nce of the evidenc e. Tidwell v.
State, 922 S.W .2d 497 , 500 (T enn. 19 96); Wa de v. State , 914 S.W.2d 97, 101
(Tenn. C rim. App. 199 5). Findings of fact m ade by the trial court are
conclusive on appeal unless the evidence preponderates against the
judgm ent. Coop er v. State, 849 S.W .2d 744 , 746 (T enn. 19 93); Butler v.
State, 789 S.W.2d 898, 899 (Tenn.1990). Thus, we are bound to affirm the
judgment unless the evidence in the record preponderates against the trial
court's find ings. Black v. S tate, 794 S.W .2d 752, 755 (Tenn. Crim . App. 1990 ).
Accord ing the P ost-Co nviction P rocedu re Act, the scope of a post-
conviction hearing extends to all grounds of the petitioner, except for those
grounds which have been previously determined or waived. Tenn. Code Ann.
§ 40-30-111. A ground for relief is previously determined “if a court of
compe tent jurisdiction has ruled on the me rits after a full and fair hearing.” Id.
§ 40-30-112(a). A ground for relief is waived “if the petitioner knowingly and
understand ingly failed to present it for determ ination in any proce eding before
-4- a court of competent jurisdiction in which the ground could have been
presented.” Id. § 40-30 -112(b)( 1).
Furtherm ore, a pe titioner mu st seek re lief within three years of the date
of the final action of the highest state appellate court to which an appeal has
been ta ken. Id. § 40-30-102. However, in Burford v. State, 845 S.W.2d 204
(Tenn. 1992), and Sand s v. State, 903 S.W.2d 297 (Tenn. 1995), the
Tennessee Supreme C ourt created an exception to this statute of limitations,
commenting as follows:
[I]n certain circumstances, due process prohibits the strict application of the post-conviction statute of limitations to bar a petitioner’s claim when the grounds for relief, whether legal or factual, arise after the “final action of the highest state appellate court to which appeal is taken” -- or, in other words, when the grounds arise a fter the p oint at w hich th e limita tions p eriod w ould normally have begun to run.
Sands, 903 S.W.2d at 301. The Supreme Court then established the following
three-step inquiry for analyzing specific factual situations.
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
DECEMBER SESSION, 1996
KENNETH WAYNE O’GUINN, ) C.C.A. NO. 02C01-9510-CC-00302 ) Appellant, ) ) FILED ) MADISON COUNTY VS. ) April 29, 1997 ) HON. WHIT LAFON STATE OF TENNESSEE, ) JUDGE Cecil Crowson, Jr. ) Appellate C ourt Clerk Appellee. ) (Post-Conviction Relief)
FOR THE APPELLANT: FOR THE APPELLEE:
CHRISTOPHER M. MINTON CHARLES W. BURSON MICHAEL J. PASSINO Attorney General and Reporter Lassiter, Tidwell & Hildebrand 213 Fifth Avenue North DARIAN B. TAYLOR Nashville, TN 37219 Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243
JERRY WOODALL District Attorney General
AL EARLS Assistant District Attorney P. O. Box 2825 Jackson, TN 38302
OPINION FILED ________________________
REVERSED AND REMANDED
JERRY L. SMITH, JUDGE OPINION
Appellant Kenneth Wayne O’Guinn was convicted of first degree murder
and aggravated rape. He received a death sentence for the murder conviction
and life imprisonment for the rape conviction. In this appeal, Appellant
challeng es the trial co urt’s dism issal of his p etition for po st-convictio n relief,
prese nting th e follow ing issu es for re view: (1 ) wheth er the tr ial cou rt erred in
finding that his exculpatory evidence claim was previously determined; and (2)
whether the trial court erred in finding that his sufficiency claim was waived.
After a review of the record, we remand to the trial court for
consideration of Appellant’s first claim in a manner consistent with this opinion.
I. FACTUAL BACKGROUND
The record revea ls that, o n Jan uary 2 2, 198 5, a Ma dison Coun ty Circu it
Court jury convicted Appellant of the first degree murder and aggravated rape
of Sheila Cupples. The trial court imposed respective sentences of death and
life imprisonment. On direct appeal, the Tennessee Supreme Court affirmed
both the conviction s and the senten ces. See State v. O’Guinn, 709 S.W.2d
561 (T enn.), cert. denied, 479 U.S. 87 1 (1986).
Following the dismissal of two post-conviction petitions, Appellant filed a
habe as co rpus p etition in the Un ited Sta tes Dis trict Co urt for th e Midd le
District of T ennes see. He alleg ed the follo wing gro unds fo r relief:
(1) adm ission of his confess ion violated his Fifth Amendment right against self-incrimination;
-2- (2) his trial counsel provided ineffective assistance; (3) the evidence supporting his first degree murder conviction was insu fficient; (4) the State elicited perjured testimony from Dianna King; (5) the State employed surprise testimony regarding the victim’s vaginal wounds; (6) the State withheld exculpatory evidence; and (7) the T ennes see de ath pen alty is unco nstitutiona l.
The district court found only the first two grounds meritorious and granted a
writ. See O’Guinn v. Dutton, 870 F. Supp. 779 (M.D. Tenn. 1993). On
appeal, a three-judge panel of the Sixth Circuit Court of Appeals reversed the
judgm ent of the d istrict court an d dism issed the writ. On re-h earing, the Sixth
Circuit, sitting en banc, affirmed the dismissal of the writ, thereby vacating the
judgm ent of the d istrict court. See O’Guinn v. Dutton, 88 F.3d 140 9 (6th Cir.
1996), cert. denied, 117 S. Ct. 742 (1997).
On A pril 18, 1 995, A ppella nt filed a third po st-con viction p etition. T his
petition asse rted tw o claim s. First, A ppella nt argu ed tha t the Sta te withh eld
the following exculpatory evidence: (a) evidence that Joanie Cupples, the
victim’s cous in, was involve d in the murd er; (b) e videnc e that J oanie Cupp le’s
associates and mother were involved in the murder; (c) evidence that former
Jackson Police Officer Richard Harper was involved in the murder; (d)
evidence that the victim was killed because she provided information to the
police regarding drug trafficking; and (e) evidence that Appellant’s brother was
first indicted for the murder based upon eyewitness testimony. Second,
Appe llant argue d that the e vidence presen ted at trial wa s legally insu fficient to
support a conviction for first degree murder. The trial court dismissed the
petition withou t a hea ring, find ing tha t the first c laim w as pre viously
-3- determined and that the second claim was waived. Appellant appeals from
this dism issal.
II. POST-CONVICTION RELIEF
In challenging the dismissal of his petition, Appellant alleges that the
trial court erred both in finding that his exculpatory evidence claim was
previously determined and that his sufficiency claim was waived.
In post-conviction proceedings, the defendant has the burden of proving
the claim s raised in the petition by a prep ondera nce of the evidenc e. Tidwell v.
State, 922 S.W .2d 497 , 500 (T enn. 19 96); Wa de v. State , 914 S.W.2d 97, 101
(Tenn. C rim. App. 199 5). Findings of fact m ade by the trial court are
conclusive on appeal unless the evidence preponderates against the
judgm ent. Coop er v. State, 849 S.W .2d 744 , 746 (T enn. 19 93); Butler v.
State, 789 S.W.2d 898, 899 (Tenn.1990). Thus, we are bound to affirm the
judgment unless the evidence in the record preponderates against the trial
court's find ings. Black v. S tate, 794 S.W .2d 752, 755 (Tenn. Crim . App. 1990 ).
Accord ing the P ost-Co nviction P rocedu re Act, the scope of a post-
conviction hearing extends to all grounds of the petitioner, except for those
grounds which have been previously determined or waived. Tenn. Code Ann.
§ 40-30-111. A ground for relief is previously determined “if a court of
compe tent jurisdiction has ruled on the me rits after a full and fair hearing.” Id.
§ 40-30-112(a). A ground for relief is waived “if the petitioner knowingly and
understand ingly failed to present it for determ ination in any proce eding before
-4- a court of competent jurisdiction in which the ground could have been
presented.” Id. § 40-30 -112(b)( 1).
Furtherm ore, a pe titioner mu st seek re lief within three years of the date
of the final action of the highest state appellate court to which an appeal has
been ta ken. Id. § 40-30-102. However, in Burford v. State, 845 S.W.2d 204
(Tenn. 1992), and Sand s v. State, 903 S.W.2d 297 (Tenn. 1995), the
Tennessee Supreme C ourt created an exception to this statute of limitations,
commenting as follows:
[I]n certain circumstances, due process prohibits the strict application of the post-conviction statute of limitations to bar a petitioner’s claim when the grounds for relief, whether legal or factual, arise after the “final action of the highest state appellate court to which appeal is taken” -- or, in other words, when the grounds arise a fter the p oint at w hich th e limita tions p eriod w ould normally have begun to run.
Sands, 903 S.W.2d at 301. The Supreme Court then established the following
three-step inquiry for analyzing specific factual situations.
(1) the court should determine when the limitations period would normally have begun to run; (2) the court should determine whether the ground for relief aro se afte r the lim itations period would norm ally have commenced; and (3) if the ground for relief is later-arising, the court should determine whether a strict application of the limitations period wo uld effectively deny the p etitioner a reasonable opportunity to present his claim by weighing the petitioner’s liberty interest in collaterally attacking a cons titutiona l violation again st the S tate’s in terest in preventing the litigation of stale and fraudulent claims.
Id.
A. EXCULPATORY EVIDENCE
-5- Appe llant first a lleges that the trial cou rt erred in findin g that h is
exculpatory evidence claim was previously determined. In making this finding,
the trial court relied upon a district court judgment that found the claim without
merit. See O’Guinn v. Dutton, 870 F. Supp. 779 (M.D. Tenn. 1993). On
appeal, however, the district court decision was reversed and vacated by the
Sixth Circu it. See O’Guinn v. Dutton, 88 F.3d 1409 (6 th Cir. 199 6), cert.
denied, 117 S . Ct. 74 2 (199 7). By virt ue of th e fact th at the S ixth Circ uit
vacated the d istrict court’s decision and the United S tates Suprem e Court
denie d certio rari, the trial cou rt’s findin g that A ppella nt’s claim was p reviou sly
determined is erroneous. Therefore, as the State concedes, we must remand
to the trial court for consideration of this claim on the merits.
B. SUFFICIENCY OF THE EVIDENCE
Appe llant ne xt allege s that th e trial co urt erre d in find ing tha t his
sufficiency claim was waived. Appellant argues that he could not have waived
this claim because of the holding in State v. Brown, 836 S.W.2d 530 (Tenn.
1992); involving the sufficiency of evidence with respect to “deliberation”, an
eleme nt of first deg ree mu rder. Brown was decided after Appellant’s direct
appea l. Howeve r, this Cou rt has pre viously he ld that Brown did not create a
new constitutional rule relative to the sufficiency of the evidence in a first
degree murde r case. See Miller v. State , No. 03C01-9409-CR-00336, 1995
WL 39584 2, at *3 (T enn. C rim. App . July 6, 199 5).
There fore, App ellant cou ld have b rought th is sufficienc y claim in h is first post-
conviction petition. Because he failed to do so, this claim is waived.1
1 App ellant argu es th at the reco rd is in suff icient to sh ow th at he pers ona lly waive d the claim . This point, whether accurate or not, is irrelevant. “Waiver 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
-6- Accordingly, this case is reversed and remanded to the trial court for
consideration of Appellant’s first claim in a manner consistent with this opinion.
____________________________________ JERRY L. SMITH, JUDGE
CONCUR:
___________________________________ JOE B. JONES, PRESIDING JUDGE
___________________________________ JOSEPH M. TIPTON, JUDGE
his attorney.” Hous e v. State , 911 S.W .2d 705, 7 11 (Te nn. 1995 ). 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 sta ndard w as well-es tablished prior to that ru ling. See, e.g., Caruth ers v. State , 814 S.W .2d 64 (T enn. Cr im. Ap p. 1991) ; State v. Bishop, 731 S.W.2d 552 (Tenn. Crim. App. 1986).
-7-