Keen v. State

Decision Date20 December 2012
Docket NumberNo. W2011–00789–SC–R11–PD.,W2011–00789–SC–R11–PD.
Citation398 S.W.3d 594
PartiesDavid KEEN v. STATE of Tennessee.
CourtTennessee Supreme Court

OPINION TEXT STARTS HERE

Kelley Henry and Gretchen L. Swift, Office of the Federal Public Defender, Nashville, Tennessee, for the appellant, David Keen.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; Deshea Dulany Faughn, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee.

OPINION

WILLIAM C. KOCH, JR., J., delivered the opinion of the Court, in which JANICE M. HOLDER, CORNELIA A. CLARK, and SHARON G. LEE, JJ., joined.

WILLIAM C. KOCH, JR., J.

This appeal involves a prisoner who was sentenced to death in 1991. Nineteen years later, he filed a petition in the Criminal Court for Shelby County seeking to reopen his post-conviction proceeding on the ground that he possessed new scientific evidence of his actual innocence. His evidence consisted of a newly-obtained I.Q. test score purportedly showing that he could not be executed by virtue of Tenn.Code Ann. § 39–13–203 (2010) because he was intellectually disabled. The trial court declined to hold a hearing and denied the prisoner's petition. The trial court determined, as a matter of the law, that the prisoner's newly-obtained I.Q. test score was not new scientific evidence of his actual innocence of the offenses to which he earlier pleaded guilty. The prisoner filed an application for permission to appeal the denial of his petition to reopen in the Court of Criminal Appeals. In addition to asserting that the newly-obtained I.Q. test score was new scientific evidence of his actual innocence, the prisoner asserted that this Court's decision in Coleman v. State, 341 S.W.3d 221 (Tenn.2011), announced a new constitutional right and, therefore, provided another basis for reopening his petition for post-conviction relief. The Court of Criminal Appeals entered an order on June 29, 2011, affirming the trial court's denial of the petition to reopen because the I.Q. test score did not amount to scientific evidence of actual innocence for the purpose of Tenn.Code Ann. § 40–30–117(a)(2) (2006) and because Coleman v. State did not announce a new rule of constitutional law under Tenn.Code Ann. § 40–30–117(a)(1). We granted the prisoner's application for permission to appeal to address whether the phrase “actually innocent of the offense” in Tenn.Code Ann. § 40–30–117(a)(2) encompasses ineligibility for the death penalty in addition to actual innocence of the underlying crime and whether our holding in Coleman v. State established a new constitutional right to be applied retroactively under Tenn.Code Ann. § 40–30–117(a)(1). We hold that the Tennessee General Assembly, when it enacted Tenn.Code Ann. § 40–30–117(a)(2), did not intend for the phrase “actually innocent of the offense” to include ineligibility for the death penalty because of intellectual disability. We also hold that Coleman v. State did not establish a new rule of constitutional law that must be applied retroactively under Tenn.Code Ann. § 40–30–117(a)(1). Accordingly, we affirm the judgment of the trial court and the Court of Criminal Appeals denying the prisoner's petition to reopen his post-conviction petition.

I.

Eight-year-old Ashley Nicole Reed was raped and murdered in March 1990. Her body, wrapped in a blanket, was thrown into the Wolf River near Mud Island in Memphis. Shortly thereafter, David Keen, the boyfriend of the child's mother, confessed that he had thrown the child's body into the river and gave conflicting statements regarding the rape and murder.2

A Shelby County grand jury indicted Mr. Keen for first degree murder, murder in perpetration of rape, and aggravated rape, and the State announced that it would seek the death penalty. Mr. Keen entered a plea of guilty to all the charges in the Criminal Court for Shelby County, and the case was submitted to a jury for sentencing. The jury sentenced Mr. Keen to death for the first degree murder offense and twenty years imprisonment for the aggravated rape offense. When the case was automatically appealed to this Court, we remanded the case for a new sentencing hearing because of errors in the trial court's instructions to the jury. State v. Keen, 926 S.W.2d at 729–31, 735–36.

On August 15, 1997, a new jury sentenced Mr. Keen to death. The Court of Criminal Appeals affirmed the sentence. State v. Keen, No. 02C01–9709–CR–00365, 1999 WL 61058, at *23 (Tenn.Crim.App. Feb. 10, 1999). This Court likewise affirmed the sentence. State v. Keen, 31 S.W.3d at 225.

On May 3, 2001, Mr. Keen filed a pro se petition for post-conviction relief in the Criminal Court for Shelby County. The post-conviction court appointed counsel for Mr. Keen, and counsel filed an amended post-conviction petition. Following a hearing, the post-conviction court entered an order on August 2, 2004, denying post-conviction relief. The Court of Criminal Appeals affirmed the post-conviction court, and this Court declined to review the case. Keen v. State, No. W2004–02159–CCA–R3–PD, 2006 WL 1540258, at *53 (Tenn.Crim.App. June 5, 2006), perm. app. denied (Tenn. Oct. 30, 2006).

In February 2010, Mr. Keen received a score of 67 on the Wechsler Adult Intelligence Test, Fourth Edition (“WAIS–IV”). Based on this new score, Mr. Keen filed a motion in the Criminal Court for Shelby County, seeking to reopen his post-conviction proceedings in accordance with Tenn.Code Ann. § 40–30–117(a)(2) (2006). He asserted that the new I.Q. test score constituted “new scientific evidence” that he was “actually innocent” of the offense of first degree murder.3 He argued that he was “actually innocent” because Tenn.Code Ann. § 39–13–203(b) (2010) prohibited imposing the death penalty on persons with a functional intelligence quotient of 70 or below. Although Mr. Keen presented several psychological issues as mitigating circumstances during his sentencing hearing,4 he has not previously asserted that he was ineligible for the death penalty because he is intellectually disabled. Mr. Keen supported his motion to reopen with an expert affidavit taking issue with the validity of the scores he had received on earlier I.Q. tests.5

The trial court heard argument on February 18, 2011, to determine whether to proceed to an evidentiary hearing. In an order filed on March 28, 2011, the trial court concluded that Mr. Keen had “failed to establish by clear and convincing evidence that new scientific evidence exists establishing his actual innocence.” More specifically, the court held that actual innocence under Tenn.Code Ann. § 40–30–117(a)(2) did not encompass ineligibility for the death penalty under Tenn.Code Ann. § 39–13–203(b).

Mr. Keen filed an application for permission to appeal in accordance with Tenn.Code Ann. § 40–30–117(c). In addition to arguing that his petition contained a viable basis for reopening his post-conviction proceeding in accordance with Tenn.Code Ann. § 40–30–117(a)(2), Mr. Keen raised an additional claim that he was entitled to reopen his post-conviction petition based on a new “constitutional right” under Tenn.Code Ann. § 40–30–117(a)(1). He argued that our decision in Coleman v. State, 341 S.W.3d 221 (Tenn.2011), announced a new rule of constitutional criminal law that required retroactive application. The Court of Criminal Appeals rejected both of Mr. Keen's claims in an order filed on June 29, 2011. Mr. Keen then filed an application for permission to appeal with this Court on August 31, 2011. We granted that application on December 14, 2011.

II.

The issues presented in this case involve questions of statutory interpretation. The construction of a statute and its application to the facts of a particular case present questions of law which we review de novo. State v. Russell, 382 S.W.3d 312, 315–16 (Tenn.2012); State v. Marshall, 319 S.W.3d 558, 561 (Tenn.2010).

III.

In 1990, the Tennessee General Assembly decided that intellectually disabled 6 persons who commit first degree murder should not be executed. Tenn.Code Ann. § 39–13–203(b). Tenn.Code Ann. § 39–13–203(a) defines “intellectual disability” in terms of a three-part test. In order to be found intellectually disabled, a person must demonstrate: (1) Significantly subaverage general intellectual functioning as evidenced by a functional intelligence quotient (I.Q.) of seventy (70) or below; (2) Deficits in adaptive behavior; and (3) The intellectual disability must have been manifested during the developmental period, or by eighteen (18) years of age.” In addition, Tenn.Code Ann. § 39–13–203(c) provides that [t]he burden of production and persuasion to demonstrate intellectual disability by a preponderance of the evidence is upon the defendant. The determination of whether the defendant had intellectual disability at the time of the offense of first degree murder shall be made by the court.”

This Court previously addressed motions to reopen in Van Tran v. State, 6 S.W.3d 257 (Tenn.1999). In 1995, death row inmate Heck Van Tran filed a petition for post-conviction relief, asserting that he could not be executed because of the prohibition on executing intellectually disabled persons in Tenn.Code Ann. § 39–13–203(b). At the hearing on Mr. Van Tran's petition, two psychologists presented conflicting opinions regarding whether Mr. Van Tran's I.Q. was 67 or 72. Their opinions were based on Mr. Van Tran's performance on the Wechsler Adult Intelligence Scale Revised (“WAIS–R”). The post-conviction court credited the higher score offered by the state's psychologist and dismissed Mr. Van Tran's petition. Both the Court of Criminal Appeals and this Court affirmed the post-conviction court's decision. Van Tran v. State, No. 02C01–9803–CR–00078, 1999 WL 177560, at *6 (Tenn.Crim.App. Apr. 1, 1999); Van Tran v. State, 6 S.W.3d 257, 274.

Mr. Van Tran was re-tested in 1999 using the newer third edition of the...

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