Thompson v. State

• Decision Date: 30 May 1997
• Parties: Gregory THOMPSON, Appellant, v. STATE of Tennessee, Appellee.
• Court: Tennessee Court of Criminal Appeals

Page 156

958 S.W.2d 156

Gregory THOMPSON, Appellant, v. STATE of Tennessee, Appellee.

Court of Criminal Appeals of Tennessee at Nashville.

May 30, 1997.

Permission to Appeal Denied by

Supreme Court Oct. 20, 1997.

Robert J. Warner, Boult, Cummings, Conners, & Berry, Nashville, Joseph E. Ford, McBee & Ford, Winchester, for Appellant.

Charles W. Burson, Attorney General and Reporter, Kimberly A. Chance, Assistant Attorney General, Nashville, C. Michael Layne, District Attorney General, Stephen Weitzman, Asst. District Attorney General, Manchester, for Appellee.

OPINION

WADE, Judge.

The petitioner, Gregory Thompson, appeals the trial court's denial of post-conviction relief. The petitioner was convicted of first degree murder. The jury sentenced the petitioner to death based upon three aggravating circumstances: (1) that the murder was heinous, atrocious or cruel in that it involved torture or depravity of mind; (2) that the murder was committed to avoid prosecution; and (3) that the murder was committed while the defendant was committing a robbery or kidnapping. Tenn.Code Ann. § 39-2-203(i)(5), (6), and (7) (repealed 1989). Our supreme court affirmed the conviction and sentence on February 27, 1989. State v. Thompson, 768 S.W.2d 239 (Tenn.1989). In 1990, the petitioner filed this petition for post-conviction relief. At the conclusion of an evidentiary hearing several years later, the trial court denied the claim.

In this appeal of right, the petitioner presents the following issues for our review:

(1) whether the post-conviction court erred by finding that the petitioner received the effective assistance of counsel;

(2) whether the post-conviction court erred by denying funding for a psychologist or psychiatrist and an investigator (3) whether the post-conviction court erred by refusing to set aside the order designating Judge William Russell to hear this case and in refusing to reinstate Judge Buddy D. Perry;

(4) whether erroneous jury instructions defining deliberation and premeditation require reversal;

(5) whether the jury instructions on the "heinous, atrocious or cruel" aggravating circumstance were unconstitutionally vague;

(6) whether the petitioner's confession was unlawfully obtained and illegally admitted at his trial;

(7) whether the failure of the trial court to instruct the jury on the effect of non-unanimity and the option to recommend life imprisonment violated the petitioner's rights under the Eighth and Fourteenth Amendments;

(8) whether the trial court's allowing Dr. Watson to testify and introduce psychiatric/psychological reports through his testimony was an unconstitutional denial of petitioner's rights;

(9) whether the petitioner was denied his constitutional right to a trial by jury by the exclusion of two prospective jurors; and

(10) whether the petitioner's constitutional rights were violated by implicit references to his failure to testify.

We find no merit in the first four issues. We conclude that issues five, six, seven, and eight were previously determined by our supreme court on direct appeal and that issues nine and ten are waived. Accordingly, we affirm the judgment of the trial court.

A brief review of the convicting evidence is helpful. On January 1, 1985, the petitioner and Joanne McNamara, a juvenile, kidnapped the victim, Brenda Lane, in a Wal-Mart parking lot in Shelbyville, Tennessee. He forced the victim to drive them to an isolated area outside Manchester, Tennessee, where, he stabbed her four times in the back and then abandoned her. After his arrest, the petitioner confessed to the crime and assisted authorities in locating the body. His confession was introduced as evidence during the trial.

At the penalty phase of the trial, several witnesses testified on behalf of the petitioner. He was described as a well-behaved, good student prior to leaving home in 1979. The defendant's girlfriend, Arlene Cajulao, testified about his life after he left home, when he was in the military service and stationed in Hawaii. Dr. George Copple, a clinical psychologist, testified about the general abilities of the petitioner and what kinds of work he could perform during his imprisonment. Dr. Robert Watson testified that the petitioner exhibited anti-social adult behavior, was not remorseful, and malingered mental illness. A more complete account of the evidence appears in Thompson, 768 S.W.2d at 243.

I

The petitioner first argues that his two trial attorneys performed their duties ineffectively. In this appeal, the state contends that this ground for relief is barred as having been previously determined. During the course of the evidentiary hearing, however, the petitioner was allowed to introduce proof that his trial counsel was ineffective; at that time, the state did not assert the defense of previous determination, Tenn.Code Ann. § 40-30-112 (repealed 1995), and made no objections to the admission of the testimony.

In the direct appeal from the conviction and sentence, the petitioner made two separate claims regarding his trial counsel:

Issue I: The constitutional rights of the defendant, pursuant to Article I, Sections 8 and 9 of the Declaration of Rights, Tennessee Constitution, and under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution were denied defendant by virtue of the appointments of attorneys John W. Rollins and H. Thomas Parsons, when they were disqualified to act as counsel due to their respective representations of Coffee County and Sheriff Bobby McCullough, sheriff of Coffee County.

Issue II: The rights of the defendant, Gregory Thompson, to competent counsel pursuant to Article I, Sections 8 and 9 of the Declaration of Rights of the Tennessee Constitution and under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution were denied him by the failure of the court to appoint counsel experienced in both criminal litigation and death litigation, neither Doyle E. Richardson nor H. Thomas Parsons having ever participated in a death penalty case.

In resolving the first claim, our supreme court ruled as follows:

Plainly, an accused is entitled to zealous representation by an attorney unfettered by a conflicting interest. To establish a denial of the sixth amendment right to counsel, it is sufficient to show that an actual conflict existed. If an attorney actively represents conflicting interests, no analysis of prejudice is necessary; it is presumed that his divided interests adversely affected his representation. But as counsel conceded, the conflict claimed here was only a potential one and quite remote; and it was resolved before trial. Without a showing of prejudice--and an attorney's good faith assertion of his disqualification is not in itself ineffective representation--there is no denial of counsel.

Thompson, 768 S.W.2d at 245 (citations omitted).

As to the second issue, our supreme court ruled as follows:

Neither is any prejudice apparent in this record from counsel's lack of experience in capital cases or from co-counsel Rollins' non-participation or from inadequate compensation to Defendant's court-appointed attorneys. While it is understandable that counsel would second-guess their decisions in a case such as this, these and related questions are more appropriately raised by other counsel when the present attorneys are relieved of their advocacy role.

Thompson, 768 S.W.2d at 245 (footnote omitted) (emphasis added).

The state argues that our supreme court has already determined the petitioner received the effective assistance of counsel. "A ground for relief is 'previously determined' if a court of competent jurisdiction has ruled on the merits after a full and fair hearing." Tenn.Code Ann. § 40-30-112(a)(1) (repealed 1995). Ineffective assistance of counsel is generally " 'a single ground for relief' " under the post-conviction statute. Cone v. State, 927 S.W.2d 579, 581-82 (Tenn.Crim.App.1995), app. denied, (Tenn.1996), cert. denied, --- U.S. ----, 117 S.Ct. 309, 136 L.Ed.2d 226 (1996). " '[T]he fact that such violation may be proved by multiple acts or omissions does not change the fact that there remains only one ground for relief.' " Frank McCray v. State, No. 01C01-9108-CR-00255, slip op. at 10, 1992 WL 217780 (Tenn.Crim.App., at Nashville, Sept. 11, 1992) (quoting William Edward Blake v. State, No. 1326, slip op. at 3, 1991 WL 35744 (Tenn.Crim.App., at Knoxville, March 19, 1991)). A petitioner may not relitigate previously determined grounds for relief by presenting additional factual allegations. Cone, 927 S.W.2d at 581-82.

Here, our supreme court clearly ruled on the first issue, holding that a conflict of interest did not deprive the petitioner of the effective assistance of counsel. Thompson, 768 S.W.2d at 245. While observing that the conflict issue was "thoroughly litigated in the trial court," our supreme court pretermitted consideration of the additional factual allegations in support of the claim of ineffective assistance. Id. The court ruled that "these and related questions are more appropriately raised by other counsel when the present attorneys are relieved of their advocacy role." Id.

It is true that ineffective assistance is a single ground for relief and a petitioner may not relitigate the issue by presenting new and different factual allegations in a subsequent proceeding. In this instance, however, our supreme court has deliberately abstained from ruling on whether some of the factual allegations entitle the petitioner to relief. Thus, those additional allegations should not be considered as previously determined. Except for the allegation that his counsel was ineffective for laboring under a direct conflict of interest, we must conclude that the issue has not been previously determined.

Nevertheless, raising the issue of ineffective assistance on direct appeal is a "practice fraught with peril." State v. Jimmy L. Sluder, No. 1236, slip op. at 16, 1990 WL...