Johnson v. State

• Decision Date: 04 September 1990
• Docket Number: No. 88-47-I,88-47-I
• Parties: Cecil C. JOHNSON, Jr., Appellant, v. STATE of Tennessee, Appellant.
• Court: Tennessee Supreme Court

Page 578

797 S.W.2d 578

Cecil C. JOHNSON, Jr., Appellant, v. STATE of Tennessee, Appellant.

No. 88-47-I.

Supreme Court of Tennessee at Nashville.

Sept. 4, 1990.

Rehearing Denied Oct. 22, 1990.

Charles Burson, Atty. Gen. & Reporter, Kymberly Lynn Anne Hattaway, Asst. Atty. Gen., Nashville, for State's appeal.

James F. Sanders, James G. Thomas, George H. Cate, III, Neal & Harwell, Nashville, for Johnson's appeal.

OPINION

O'BRIEN, Justice.

This post-conviction proceeding is before the Court on joint applications for permission to appeal from the judgment of the Court of Criminal Appeals. The State takes issue with that court's judgment ruling that the prosecuting attorney's argument at trial was violative of the Eighth Amendment and whether or not the defendant waived any right to post-conviction relief on his claim of prosecutorial misconduct. The defendant-petitioner has raised twenty-six (26) issues about equally divided between the guilt phase at trial and the sentencing proceeding.

On 19 January 1981 petitioner was found guilty in a jury trial on three (3) counts of first degree murder; two (2) counts of assault with intent to commit murder, and one (1) count of armed robbery. He was sentenced to death by the jury on each of the first degree murder charges and received consecutive life sentences on each of the other charges. On 3 May 1982 this Court affirmed the convictions and sentences imposed upon the petitioner. ¹ A petition to rehear was denied on 21 May 1982. On 4 October 1982 the United States Supreme Court denied a petition for writ of certiorari. A petition to rehear in that court was denied on 28 October 1982. This petition for post-conviction relief was filed on 15 March 1983 and denied after an evidentiary hearing. The petitioner here appealed the trial court judgment to the Court of Criminal Appeals which on 20 January 1988 affirmed, in part, and reversed in part, the judgment of the trial court dismissing the petition for post-conviction relief. The intermediate court set aside the death sentences imposed in the trial court and remanded the case for a new sentencing hearing on the first degree murder sentences.

We first address the Court of Criminal Appeals judgment remanding the case for a new sentencing hearing. We reverse that court's judgment and reinstate the sentences imposed in the trial court.

The State of Tennessee, appellant here, citing Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), ² argues that the Court of Criminal Appeals erred in its holding that defendant did not waive any right to post-conviction relief by his failure to attack the prosecuting attorney's arguments on the basis raised here, either at trial or on direct appeal from his conviction. Moreover, they say he failed to allege any reason for his failure to assert this issue at the appropriate time in the prior proceedings. They further argue that defendant has not shown that Caldwell, supra, created a new constitutional right which must be applied retroactively.

In reference to the procedural waiver of the Caldwell issue due to the defendant's failure to raise it at trial or on direct appeal the intermediate court held that the essential nature of the problem was discussed in the petition for post-conviction relief, even in advance of the opinion in Caldwell. They expressed their agreement with the 10th Circuit Court of Appeals decision in Dutton v. Brown, 812 F.2d 593, which involved federal habeas corpus jurisdiction. In the Dutton case the court discussed Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 2911, 82 L.Ed.2d 1 (1984). In Reed the court ruled that cause existed for defense counsel's failure to raise an issue when a subsequent Supreme Court decision articulated a constitutional principle not previously recognized. The Court of Criminal Appeals then ruled that this novel-issue principle is equally applicable in State post-conviction litigation. They reversed the judgment of the trial court denying relief on the sentence imposed and remanded the case for a new penalty hearing.

T.C.A. Sec. 40-30-105 expressly provides for relief when grounds stated in a post-conviction petition were not recognized as existing at the time of conviction and require constitutional retrospective application.

T.C.A. Sec. 40-30-112 defines when a ground for relief is previously determined or waived. In the former, a ground for relief is previously determined if a court of competent jurisdiction has ruled on the merits after a full and fair hearing. Waiver is implied if a petitioner knowingly and understandingly fails to present a ground of relief for determination in any proceeding before a court of competent jurisdiction in which the grounds could have been presented. A rebuttable presumption arises that a ground for relief not raised in any such proceeding has been waived.

We do not agree with the State's argument that Caldwell, supra, did not create a new constitutional right, nevertheless there is no constitutional mandate which either prohibits or requires retrospective effect. See Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 1737, 14 L.Ed.2d 601 (1965). More recently, United States Supreme Court decisions indicate the intent that new rules for conduct of criminal prosecutions are to be applied retroactively to all cases, State or Federal, pending on direct review which are not yet final. See Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987). In Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 1075, 103 L.Ed.2d 334 (1989) the Court adopted a specific view on retroactivity for cases on collateral review, holding that unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced. ³

In deciding against retroactive application in this case we are not unmindful of the court's admonition in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976), that the penalty of death is qualitatively different from a sentence of imprisonment and because of that difference there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case. If constitutional error occurred it would require appropriate palliative response. However, the appellate courts of this State may notice plain error at any time, at any stage of the proceedings, where necessary to do substantial justice. Tenn.R.Crim.P. 52. We have examined this record carefully. We do not find, as did the intermediate court, that State's counsel, in their statements to the jury at the sentencing hearing, attempted to minimize the jury's degree of responsibility in the sentencing decision or that the jurors themselves were not solely responsible for authorizing imposition of the death penalty. ⁴

That portion of the District Attorney's opening statement and final argument which the lower court found constitutionally offensive is as follows:

"Your issue today is whether Cecil Johnson should experience the death penalty.

Now in order to arrive at that and we (sic) and we asked you, if you will recall on the voir dire and the judge will explain to you and I am satisfied the defense will, you also have the option of life imprisonment on those three murders. Those are your two options. That is all you have got to debate. You can, you can vote to [have] him executed--now incidentally it is not you doing that.

You are representing the reflective judgment, as I have already said, of the people of Tennessee and of the Supreme Court. Or you can sentence him to life imprisonment. (Emphasis in Court of Appeals opinion).

The Court of Appeals also found a part of the prosecution argument to be an attempt to minimize the jury's degree of responsibility in the sentencing decision:

The jury is but one step in the process. The Legislature, as General Shriver spoke earlier, has enacted the death penalty, has put that into the body of the law in Tennessee, said that it is applicable in first degree murder cases. It set forth under what circumstances and how the death penalty should be considered and whether or not it will be imposed. And certainly the jury is, is part of that system. But it is just part of a process of determining what is the proper appropriate punishment for, in this case, Cecil Johnson. For his responsibility for three, three separate first degree murders. (Emphasis in Court of Appeals opinion).

That portion of the District Attorney General's opening statement which preceded the remarks found objectionable by the Court of Appeals is as follows:

May it please the court, and ladies and gentlemen, you have found Cecil Johnson guilty of murder in the first degree. As we explained when we were questioning you, when you were picked, this is a two-part process. Now your job is to decide what his punishment should be on those charges, the three, three sentences of, or the three charges of murder in the first degree. Now, I think the first thing you need to keep in mind is that the debate here is not whether there ought to be a death penalty. That has already been decided. The United States Supreme Court has decided that. The Tennessee State Legislature which represents the people, and therefore the collective judgment of the people in Tennessee and in Davidson County, the Tennessee State Legislature said there is a death penalty available as a punishment for murder in the first degree. So you are not debating whether there ought to be a death penalty in general.

The part of the closing argument, coming before and after the portion excerpted by the lower court as improper, contains a great deal more to enable a reviewing court to determine if the argument falls short of appropriate constitutional standards:

Ladies and gentlemen of the jury, we are once again at a point of argument. W...