State v. Denton

Decision Date02 December 1996
Citation938 S.W.2d 373
PartiesSTATE of Tennessee, Appellee, v. John Michael DENTON, Appellant. William Douglas BROWN, Appellant, v. STATE of Tennessee, Appellee.
CourtTennessee Supreme Court

John H. Henderson, District Public Defender, Franklin, for appellants Denton and Brown.

Charles W. Burson, Attorney General and Reporter, Michael E. Moore, Solicitor General, Gordon W. Smith, Associate Solicitor General, Nashville, Joseph D. Baugh, Jr., District Attorney General, Eric L. Davis, Asst. District Attorney General, Franklin, for Appellee.

OPINION

BIRCH, Chief Justice.

We granted review and consolidated these cases in order to consider the circumstances under which imposition of two convictions resulting from a "single" criminal act may violate the double jeopardy and due process clauses of the state and federal constitutions in light of State v. Anthony, 817 S.W.2d 299 (Tenn.1991).

William Douglas Brown was convicted of first-degree murder (felony) 1 and armed robbery accomplished by the use of a deadly weapon. 2 In this post-conviction proceeding, he contends that one of the two convictions is barred by double jeopardy. In addition, Brown insists that these convictions violate his due process rights in general and under the rationale of Anthony, 817 S.W.2d at 299. However, the record shows that Brown failed to file his petition for post-conviction relief within the statutory period required by law. He insists, nevertheless, that our holding in Burford v. State, 845 S.W.2d 204 (Tenn.1992), excuses his failure to comply with the statute of limitations and that he should receive the benefit, if any, of our holding in Anthony.

After a painstaking examination of the record and a thorough consideration of the issues presented, we find that Brown's double jeopardy claim has been "previously determined" 3 and that his general due process claim is time-barred. 4 Further, because Anthony did not announce a new rule of constitutional law, it does not apply to Brown's convictions. Accordingly, as to Brown, the judgment of the Court of Criminal Appeals is affirmed.

John Michael Denton was convicted of aggravated assault, 5 attempted voluntary manslaughter, 6 and possessing a weapon with the intent of using it in the commission of a criminal offense. 7 Denton contends that his due process rights under Anthony and his rights under the double jeopardy clauses of the federal and state constitutions bar the imposition of the three convictions.

Following careful examination and full consideration of the record and the issues, we conclude that only one of the three convictions can survive double jeopardy scrutiny. Accordingly, we affirm the conviction and sentence imposed for aggravated assault. We reverse the convictions for attempted voluntary manslaughter and possessing a weapon intended for use in the commission of a criminal offense. We vacate the sentences thereupon imposed and dismiss the respective indictments. 8

I

We begin with Brown, the simpler of the two cases, and we must first determine which issues are properly before us. In August 1985, Brown was convicted of first-degree murder (felony) and armed robbery. He received a life sentence in each case, to be served consecutively. Specifically rejecting Brown's double jeopardy challenge, the Court of Criminal Appeals affirmed the convictions on January 13, 1988. 9 Subsequently this Court denied permission to appeal on April 4, 1988. On September 23, 1991, we released Anthony, holding that when the offense of kidnapping is committed incidentally to another crime, in that case, robbery, and the attendant detention did not substantially increase the risk of harm beyond that necessarily present in the accompanying felony, the due process clause of the Tennessee Constitution barred the conviction for kidnapping. Anthony, 817 S.W.2d at 306. In September 1992, Brown filed this post-conviction petition.

Brown's double jeopardy claim was considered by the Court of Criminal Appeals in his direct appeal; 10 therefore, it is a "previously determined" issue, and we will not consider it on postconviction. Tenn.Code Ann. § 40-30-112 (1990). 11

The claim based on general due process principles could have been raised at any time during the trial or process of direct appeal. Instead, Brown delayed almost eighteen months after the limitations period expired before raising this issue in his postconviction petition. Because Brown could have raised this issue in a timely fashion but did not, we are statutorily barred from any further consideration of it. Tenn.Code Ann. § 40-30-102 (1990).

Because Anthony was decided after Brown's conviction became final, we must determine whether Anthony announced a new rule of constitutional law and, if so, whether that rule should be applied retroactively. Meadows v. State, 849 S.W.2d 748 (Tenn.1993).

In Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334, (1989), the United States Supreme Court stated:

[A] case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final.

Id. at 301, 109 S.Ct. at 1070. (citations omitted and emphasis in original). We adopted and applied this test in Meadows, 849 S.W.2d at 751, and we apply it again here with respect to Anthony.

In Meadows, the Court determined that State v. Jacumin, 778 S.W.2d 430 (Tenn.1989), announced a new rule of constitutional law on the standard by which to measure probable cause under Tennessee law. Applying the Teague definition of a new rule, we found that the courts of Tennessee had "continually followed federal precedent with respect to the sufficiency of affidavits used to obtain search warrants until this Court's opinion in State v. Jacumin. ..." Meadows, 849 S.W.2d at 752. Thus, as the opinion in Jacumin stated a probable cause test different from the test under federal law, Jacumin broke new ground, and its result was not dictated by precedent. Id. at 753.

Such is not the case with Anthony. Prior to Anthony, there were two lower court opinions that applied the same rule. See Brown v. State, 574 S.W.2d 57 (Tenn.Crim.App.1978) and State v. Rollins, 605 S.W.2d 828 (Tenn.Crim.App.1980). Further, although there was a dearth of direct Tennessee case law on the issue, numerous other jurisdictions had addressed the relationship between kidnapping and other felonies that characteristically involved some detention of the victim. While the case law from other state jurisdictions does not constitute "precedent" within the Meadows/Teague rule, such analyses of the issue were widespread and represented a body of persuasive authority available to the petitioner. In light of the previous intermediate court opinions, we hold that Anthony did not announce a new rule.

As Anthony did not announce a new rule of constitutional law, consideration of this issue in Brown's case is barred by Tenn.Code Ann. § 40-30-102 (1995). The judgment of the Court of Criminal Appeals dismissing the petition is, accordingly, affirmed.

II

The salient facts of record in Denton's case establish that Brook Thompson, the victim, and some friends organized a graduation party. After midnight as the party was ending, Thompson was struck in the head with a bottle; Denton, however, did not participate in this altercation. As Thompson was leaving the party to obtain medical treatment, he was approached by a man he later positively identified as Denton. According to Thompson, Denton, armed with a long pointed object, "came around, he cut me right there (indicating), and came around and stabbed me and then jumped in front of me and said come on let's fight."

Denton initially was indicted for attempted second-degree murder, aggravated assault by use of a deadly weapon, and carrying a weapon intended for use in the commission of an offense. At the conclusion of the trial, the jury found Denton guilty of aggravated assault, attempted voluntary manslaughter, and carrying a weapon intended for use in the commission of an offense. The trial court sentenced Denton as a Range I standard offender to six years confinement for the aggravated assault, four years for the attempted voluntary manslaughter, and two years for the weapon offense. The sentence for attempted voluntary manslaughter was ordered to be served consecutively to the sentence for aggravated assault; the sentence for the weapon offense was ordered to be served concurrently with the other two sentences--an effective sentence of ten years.

On direct appeal, the Court of Criminal Appeals reversed the weapon conviction, finding that the weapon offense was "essentially incidental" to the aggravated assault offense under Anthony. Applying the Blockburger 12 test strictly, the intermediate court concluded that aggravated assault and attempted voluntary manslaughter were different offenses for double jeopardy purposes; therefore, the convictions for both offenses were affirmed.

Denton, as stated, attacks the convictions on due process and double jeopardy grounds. Although the Court of Criminal Appeals' opinion relies on Anthony to overturn Denton's conviction for the weapon offense, we prefer to base our holding on Article I, § 10 of the Tennessee Constitution.

Our disposition of the double jeopardy issue, see infra, Parts III and IV, also obviates the need to determine whether Denton's convictions violate, either generally or under the holding of Anthony, the due process clause of the Tennessee Constitution.

We note that in Anthony, we held that when kidnapping is "essentially incidental" to another offense--most notably, robbery and rape, then the due process provision of the Tennessee Constitution prohibits a conviction for kidnapping. While our decision in Anthony addressed the particularly anomalous nature of the...

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