Thompson v. State

• Decision Date: 12 May 2004
• Docket Number: No. M1987-00067-SC-DPE-DD.,M1987-00067-SC-DPE-DD.
• Parties: Gregory THOMPSON v. STATE of Tennessee
• Court: Tennessee Supreme Court

134 S.W.3d 168

Gregory THOMPSON v. STATE of Tennessee

No. M1987-00067-SC-DPE-DD.

Supreme Court of Tennessee, at Nashville.

Assigned on Briefs April 8, 2004.

May 12, 2004.

Michael J. Passino, Nashville, Tennessee, and B. Campbell Smoot, District Public Defender, Fourteenth Judicial District, Tullahoma, Tennessee, for the appellant, Gregory Thompson.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Jennifer L. Smith, Assistant Attorney General; C. Michael Layne, District Attorney General, Fourteenth Judicial District, for the appellee, State of Tennessee.

OPINION

FRANK F. DROWOTA, III, C. J., delivered the opinion of the court, in which E. RILEY ANDERSON, JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.

The appellant, death-row inmate Gregory Thompson, challenges the trial court's order denying a hearing on the issue of his competency to be executed. The trial court concluded that Thompson had failed to make a sufficient threshold showing. After carefully considering de novo the petition, the trial court's order, and the entire record in this cause, we conclude that the trial court correctly held that Thompson failed to make a threshold showing sufficient to warrant a hearing on his competence for execution. Accordingly, the judgment of the trial court is affirmed.

I. Procedural Background

In 1985, a Coffee County jury convicted the appellant, Gregory Thompson, of the first degree murder of Brenda Lane and imposed a sentence of death for this conviction. On direct appeal, this Court affirmed Thompson's conviction and sentence. See State v. Thompson, 768 S.W.2d 239 (Tenn. 1989). The United States Supreme Court denied Thompson's petition for a writ of certiorari. See Thompson v. Tennessee, 497 U.S. 1031, 110 S.Ct. 3288, 111 L.Ed.2d 796 (1990).

Thereafter, Thompson sought post-conviction relief in the state courts, but after a hearing, the trial court denied relief. The Court of Criminal Appeals affirmed the trial court's judgment, and this Court denied Thompson's application for permission to appeal. See Thompson v. State, 958 S.W.2d 156 (Tenn.Crim.App.) perm. app. denied (Tenn.1997).

In 1998, Thompson filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of Tennessee. The district court granted summary judgment to the State and dismissed the petition. The United States Court of Appeals for the Sixth Circuit affirmed the district court's judgment. See Thompson v. Bell 315 F.3d 566 (6th Cir. 2003). On December 1, 2003, the United States Supreme Court again denied Thompson's petition for writ of certiorari and thereafter denied Thompson's petition for rehearing. See Thompson v. Bell, ___ U.S. ___, 124 S.Ct. 804, 157 L.Ed.2d 701 (2003), reh'g denied ___ U.S. ___, 124 S. Ct. 1162 (2004).

On January 21, 2004, one day after the United States Supreme Court denied rehearing, the State filed a motion requesting that this Court schedule Thompson's execution. In response to the motion, Thompson raised the issue of his present competency to be executed and requested a hearing pursuant to Van Tran v. State, 6 S.W.3d 257 (Tenn.1999).¹

On February 25, 2004, this Court set Thompson's execution for August 19, 2004, but also remanded the case to the Coffee County Circuit Court² for proceedings in accordance with Van Tran, including an initial determination of whether Thompson had made a threshold showing sufficient to warrant an evidentiary hearing on the issue of his present competency to be executed.

On March 1, 2004, Thompson filed a petition in the Circuit Court for Coffee County requesting a competency hearing. Attached to the petition were copies of records showing that, for almost twenty years, Thompson has been treated for mental illnesses. The attached records included reports of mental health professionals opining that Thompson is not presently competent to be executed and affidavits from both Thompson's attorney and investigator in the federal court proceedings. These affidavits describe Thompson's delusional beliefs about his upcoming execution.

The State filed a response to the petition, asserting that Thompson's submissions, even if true, did not create a genuine issue of disputed fact about Thompson's present incompetence for execution and thus did not meet the threshold requirements under Van Tran for an evidentiary hearing. On March 8, 2004, the trial court entered an order denying a hearing on the issue and concluding that the expert reports submitted by Thompson demonstrate that he presently is aware both of the fact that he has been sentenced to death for the murder of Brenda Lane and of the fact of his impending execution. Thompson filed an expedited appeal as required by Van Tran, 6 S.W.3d at 271-72. After carefully considering the record, we affirm the trial court's judgment dismissing the petition.

II. Threshold Issues

A. Public Defender's Motions to Withdraw

In the order of February 25, 2004, setting Thompson's execution date and remanding the case to the Coffee County Circuit Court, this Court appointed Michael J. Passino as lead counsel and the Office of the Public Defender for the Fourteenth Judicial District as co-counsel for Thompson. On March 1, 2004, B. Campbell Smoot, the District Public Defender for the Fourteenth Judicial District, filed both in this Court and in the trial court a "Motion to Withdraw as Counsel." As grounds for withdrawal, the motion alleged that the Office's sole investigator, Jimmy Dale Conn, served as a lead investigator with the Coffee County Sheriff's Department during the investigation of Brenda Lane's murder and testified for the prosecution at Thompson's 1985 trial.

On March 8, 2004, the trial court denied Thompson's petition for failure to satisfy the threshold showing, but the trial court did not rule on the Public Defender's motion to withdraw. On March 9, 2004, this Court denied the Public Defender's motion to withdraw, stating:

In our view, the motion is not well-taken. Mr. Conn's past involvement in Thompson's prosecution and trial does not disqualify the entire Office of the Public Defender for the Fourteenth Judicial District from proceedings to determine Thompson's discrete claim that he currently is not competent to be executed.

In this appeal Thompson argues that the trial court abused its discretion by failing to decide the motion to withdraw before ruling on Thompson's petition. In addition, Thompson asserts that the Public Defender should have been allowed to withdraw because an appearance of impropriety exists based upon the investigator's past employment with the prosecution during Thompson's original murder trial.

The State does not respond to the merits of Thompson's argument that withdrawal is appropriate. However, the State points out that this issue has been resolved by this Court, "notes with some concern" that the Office of the Attorney General has never been served with a copy of the motion, despite being listed on the certificate of service for the motion filed in the trial court, and states that the Attorney General's Office was unaware of the basis of the motion until entry of this Court's order of March 9, 2004.

In our view, the trial court did not err in ruling upon the petition before deciding the motion to withdraw. Thompson provides no legal authority supporting his assertion that the trial court's decision constituted an abuse of discretion. Given that this Court appointed the Public Defender's Office, the trial court reasonably may have concluded that this Court should consider and dispose of the motion to withdraw. Furthermore, as the State points out, in light of this Court's order denying the motion to withdraw, Thompson's claim is moot insofar as he suggests that the motion established an appearance of impropriety and that the trial court erred by not granting the motion.

However, our inquiry is not ended. On March 17, 2004, the Public Defender moved this Court to reconsider its order of March 9, 2004, denying his motion to withdraw. This motion asserts that, because one of the three lawyers employed by the Public Defender's Office represented Thompson's co-defendant, Joanne MacNamara, a conflict of interest exists requiring withdrawal of the entire Public Defender's Office. Accordingly, the motion requests that this Court reconsider its March 9 order and allow the Public Defender's Office to withdraw.

We are of the opinion that this motion is not well-taken. The Public Defender's Office has been appointed as co-counsel in a proceeding to determine the discrete issue of Thompson's present competency to be executed. Thompson has completed the standard three-tier appeals process. Issues relating to the validity and correctness of Thompson's conviction and sentence have been litigated in proceedings that are now final. The Public Defender's motion alleges neither a conflict of interest nor an appearance of impropriety requiring withdrawal. See State v. White, 114 S.W.3d 469, 476 (Tenn.2003) (discussing conflict of interest and appearance of impropriety). Accordingly, the Public Defender's motion to reconsider is without merit and is denied.

B. Trial Judge's Recusal in Prior Case

On March 30, 2004, Thompson filed in this Court a "Motion to Vacate Trial Court Order, or, in the Alternative, Supplemental Brief in Support of Appeal." In this filing, Thompson contends that the order entered by Judge Gerald Ewell, the trial court judge who reviewed and denied Thompson's competency petition, is void because Judge Ewell recused himself from Thompson's post-conviction case. Thompson cites to cases from Tennessee and other jurisdictions holding that a trial judge who recuses himself or herself can take no further action in the case except necessary ministerial acts, such as transferring the case to another judge.³ Under these authorities, Thompson asserts, any other orders of the recused judge are void and of no effect. Relying upon...