Pettyjohn v. State

• Citation: 885 S.W.2d 364
• Parties: Myer PETTYJOHN, Appellant, v. STATE of Tennessee, Appellee.
• Decision Date: 28 April 1994
• Court: Tennessee Court of Criminal Appeals

Page 364

885 S.W.2d 364

Myer PETTYJOHN, Appellant, v. STATE of Tennessee, Appellee.

Court of Criminal Appeals of Tennessee,

at Nashville.

April 28, 1994.

Permission to Appeal Denied

by Supreme Court Sept. 12, 1994.

John H. Henderson, Dist. Public Defender, Franklin, for appellant.

Charles W. Burson, Atty. Gen., and Eugene J. Honea, Asst. Atty. Gen. of Tennessee, Nashville, and Joseph D. Baugh, Dist. Atty. Gen., Franklin, for appellee.

OPINION

TIPTON, Judge.

The appellant, Myer Pettyjohn, appeals as of right from the action of the Hickman County Circuit Court by which his second petition for post-conviction relief was denied because it was time-barred and raised grounds which were either previously determined or waived. The appellant was convicted of first degree murder in 1980 and sentenced to life in prison. The conviction was affirmed on direct appeal. State v. Ernest Lee Archie and Myer Pettyjohn, No. 81-96-III, Hickman Co. (Tenn.Crim.App., Sept. 22, 1982), applic. denied (Dec. 30, 1982). His first petition for post-conviction relief was denied and the denial was affirmed on appeal. State v. Myer Pettyjohn, No. 01C01-9006-CC-00139, Hickman Co., 1992 WL 50973 (Tenn.Crim.App., March 19, 1992), applic. denied (Aug. 31, 1992).

In this appeal, the underlying issue relates to whether or not the convicting court's jury instruction equating beyond a reasonable doubt with a "moral certainty" that the accused committed the offense violates due process. In this respect, the appellant asserts that (1) the United States Supreme Court held that the instruction violated due process in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990) and Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), (2) that these cases announce a new constitutional rule which is to be applied retroactively, (3) that the appellant could not assert the new rule at the time of his trial or previous post-conviction case, and (4) that, under the circumstances, use of the three-year statute of limitations in this case violates due process under Burford v. State, 845 S.W.2d 204 (Tenn.1992). In response, the state asserts that the jury instructions did not violate due process, that Cage and Sullivan did not announce a new rule to be applied retroactively, and that Burford should not be expanded so as to preclude the application of the statute of limitations in this case. Both parties have ably briefed these issues.

Obviously, the predicate issue from which all other issues flow is whether or not the instruction violates due process. In his petition, the appellant states that his jury was instructed as follows:

Reasonable doubt is that doubt engendered by an investigation of all the proof in the case and an inability, after such investigation, to let the mind rest easily as to the certainty of guilt. Reasonable doubt does not mean a captious, possible, or imaginary doubt. Absolute certainty of guilt is not demanded by the law to convict of any criminal charge, but moral certainty is required, and this certainty is required as to every proposition of proof to constitute the offence [sic].

(charge to the jury, transcript of evidence) (vol. 5, page 604, 605).

It is not necessary that each particular fact should be proved beyond a reasonable doubt[ ] [i]f enough facts are proved to satisfy the jury beyond a reasonable doubt, of all the facts necessary to constitute the crime charged. Before a verdict of guilty is justified that [sic] circumstances taken together must be of a conclusive nature and tendency, leading on the whole to satisfactory conclusion and producing in effect a "moral certainty" that the defendant committed the offence [sic].

(charge to the jury, Transcript of evidence) (vol. 5, page 606).

We conclude that the instructions did not violate due process and sufficiently described the degree of doubt necessary for acquittal and the degree of proof necessary for conviction. This court has recently held similar...