Adkins v. State

• Citation: 911 S.W.2d 334
• Parties: Carl Wayne ADKINS, Appellant/Cross-Appellee, v. STATE of Tennessee, Appellee/Cross-Appellant.
• Decision Date: 02 December 1994
• Court: Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee

Page 334

911 S.W.2d 334

Carl Wayne ADKINS, Appellant/Cross-Appellee, v. STATE of Tennessee, Appellee/Cross-Appellant.

Court of Criminal Appeals of Tennessee,

at Knoxville.

Dec. 2, 1994.

Permission to Appeal Dismissed

by Supreme Court Aug. 25, 1995.

Debra A. Wall, Clarksville, Jeff Merryman, Indianapolis, IN, for appellant.

Charles W. Burson, Attorney General and Reporter, Nashville, Amy Tarkington, Assistant Attorney General, Nashville, William R. Mooney, Asst. District Attorney General, Jonesborough, for appellee.

OPINION

WADE, Judge.

The petitioner, Carl Wayne Adkins, appeals a judgment denying his petition for post-conviction relief. The state appeals from that portion of the judgment setting aside the death sentence and granting a new sentencing hearing.

Procedural Background

On May 22, 1979, the petitioner was convicted of first degree murder and sentenced to death by electrocution. On direct appeal, the Tennessee Supreme Court affirmed the petitioner's conviction but reversed the death sentence and remanded the case for a new sentencing hearing. State v. Adkins, 653 S.W.2d 708 (Tenn.1983).

At the re-sentencing hearing held in October of 1984, a jury again imposed the death penalty. Thereafter, the trial court granted the petitioner's motion for a third sentencing hearing because the second jury had been erroneously informed that the first jury had imposed the death penalty. In June of 1985, at the conclusion of the third sentencing hearing, the jury again returned a verdict of death by electrocution. On direct appeal, our supreme court affirmed the petitioner's sentence in 1987. State v. Adkins, 725 S.W.2d 660 (Tenn.1987). The United States Supreme Court denied a petition for writ of certiorari on June 1, 1987. Adkins v. Tennessee, 482 U.S. 909, 107 S.Ct. 2491, 96 L.Ed.2d 383 (1987).

On August 3, 1987, the petitioner filed a pro se petition for post-conviction relief challenging both his first degree murder conviction and death sentence. The trial court appointed counsel who, on December 16, 1988, filed an amended petition. Thereafter the petitioner filed two separate post-conviction petitions challenging prior convictions for second degree murder and aggravated assault. Judge Jack R. Musick was designated to hear that portion of the petition pertaining to the sentencing phase of the first degree murder conviction. Judge Arden L. Hill was designated to hear the portion of the petition pertaining to the guilt phase of the first degree murder conviction and the petitions pertaining to the second degree murder and aggravated assault convictions. The three petitions were consolidated.

On June 12, 1989, at the conclusion of a full evidentiary hearing, Judge Hill entered an order denying those portions of the petitions challenging the second degree murder conviction, the aggravated assault conviction, and the guilt phase of petitioner's first degree murder trial. Thereafter, Judge Musick conducted an evidentiary hearing on that portion of the post-conviction petition challenging the propriety of the death sentence. On January 28, 1991, Judge Musick filed an order sustaining the post-conviction challenge and granting what would constitute a fourth sentencing hearing.

The petitioner has appealed Judge Hill's refusal to set aside the three convictions. The state has appealed Judge Musick's grant of a new hearing on the death sentence. Counsel presented oral arguments to the Court of Criminal Appeals in June of 1993. The panel included Justice A.A. Birch, then on the Court of Criminal Appeals. On November 2, 1994, after Justice Birch had been appointed to the Tennessee Supreme Court, the case was reassigned for disposition by the remaining members of the panel.

Decision

We affirm the denial of post-conviction relief as to the second degree murder conviction, the aggravated assault conviction, and the guilt phase of the first degree murder conviction. We affirm the trial court's grant of a new sentencing hearing and remand for that purpose.

Scope of Review

We are guided in our review by several well-established principles. In post-conviction proceedings, the petitioner must prove the allegations contained in his petition by a preponderance of the evidence. State v. Kerley, 820 S.W.2d 753, 755 (Tenn.Crim.App.1991); Oliphant v. State, 806 S.W.2d 215, 218 (Tenn.Crim.App.1991). Findings of fact and conclusions of law made by the trial court are given the weight of a jury verdict; this court is bound by those findings unless the evidence contained in the record preponderates otherwise. Butler v. State, 789 S.W.2d 898, 899 (Tenn.1990); Teague v. State, 772 S.W.2d 932, 934 (Tenn.Crim.App.1988). This court may not reweigh or reevaluate the evidence or substitute its inferences for those drawn by the trial court. Questions concerning the credibility of witnesses and the weight and value to be given their testimony are for resolution by the trial court. Black v. State, 794 S.W.2d 752, 755 (Tenn.Crim.App.1990).

Those convictions under collateral attack will be addressed first. The state appeal of the grant of a new sentencing hearing will be considered last.

I. 1965 SECOND DEGREE MURDER CONVICTION

On September 30, 1965, the petitioner was convicted of second degree murder and sentenced to ten years in the penitentiary. In exchange for the petitioner's waiver of his right to appeal the conviction, the state agreed that the sentence could be served concurrently with an armed robbery conviction for which he also received a sentence of ten years.

The petitioner presents the following five issues for our review:

(1) whether he was denied his right to trial by a fair cross-section of the community;

(2) whether he was denied his right to a fair and impartial jury due to pre-trial publicity;

(3) whether the trial court's instruction impermissibly shifted the burden of proof from the state;

(4) whether the trial court erred in joining all seven co-defendants for trial; and (5) whether he was denied the right to effective assistance of counsel.

At the conclusion of the evidentiary hearing, the trial court held that the petitioner had waived his first four issues by voluntarily waiving his right to appeal. The trial court also found that counsel effectively represented the petitioner at trial.

As a preliminary matter, the state argues that any consideration of the various issues raised in this post-conviction petition are completely barred by the doctrine of laches. In support of this claim, the state asserts that the petitioner failed to explain this 24-year wait in attacking this conviction; that the court file is no longer available; and that several of the attorneys who represented the other defendants at trial are now deceased.

The defense of laches, an affirmative defense, was neither alleged nor considered in the trial court and is raised for the first time on appeal. That cannot be done. See Stephen C. Parker v. State, No. 01C01-9008-CR-00188 (Tenn.Crim.App., at Nashville, Feb. 26, 1991), perm. to appeal denied, (Tenn.1991); see also Provident Life & Accident Ins. Co. v. Broome, 17 Tenn.App. 284, 66 S.W.2d 1041 (1933); National Acceptance Co. v. Royal Indem. Co., 9 Tenn.App. 515 (1929). Moreover, our supreme court has "explicitly reject[ed] any notion that the doctrine of laches can be invoked to deprive [a post-conviction] petitioner of relief that is constitutionally mandated...." Wills v. State, 859 S.W.2d 308, 310 (Tenn.1993). Thus, we find that the claim is not barred by laches.

A

The petitioner contends that his rights under the state and federal constitutions were violated when he was tried by a jury that did not proportionally represent the major population groups of Washington County. More specifically, he alleges a complete absence of women in the venire from which his jury was selected. In response, the state submits that the petitioner waived this issue by failing to object to the jury venire prior to trial and by relinquishing his right to appeal his conviction. The petitioner asserts, however, that the issue is entitled to a merits review because the state failed to plead waiver as an affirmative defense.

Because waiver was considered and applied by the trial court, we will consider its application to this issue. This is the first time the petitioner challenged the composition of the jury. The trial court specifically found that the petitioner had knowingly and voluntarily waived his right to appeal in exchange for concurrent sentences and could not use this petition for post-conviction relief as a substitute for a direct appeal. See Doyle v. State, 3 Tenn.Crim.App. 171, 174, 458 S.W.2d 637, 638 (1970).

It is fairly obvious that a petitioner could not now raise issues which had been specifically waived with his right to a direct appeal. Because, however, the right to a jury venire representing a fair cross-section of the community was not recognized as a constitutional claim when the petitioner relinquished his right to appeal, this court cannot find that the petitioner "knowingly or understandingly" waived this issue at his submission hearing in 1965. Thus, the plain words of our statute would not appear to support the state's claim of a procedural bar:

When ground for relief is "previously determined" or "waived."--(a) A ground for relief is "previously determined" if a court of competent jurisdiction has ruled on the merits after a full and fair hearing.

(b)(1) 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.

(2) There is a rebuttable presumption that a ground for relief not raised in any such proceeding which was held was waived.

Tenn.Code Ann. § 40-30-112 (emphasis added). Cf. Brown v. State, 729 S.W.2d 54, 55 (Mo.Ct.App.1987); People v. Shields, 205 A.D.2d 833, 613 N.Y.S.2d 281, 282-83 (N.Y.App.Div. 3...