Workman v. State

• Citation: 868 S.W.2d 705
• Parties: Philip R. WORKMAN, Appellant, v. STATE of Tennessee, Appellee.
• Decision Date: 07 April 1993
• Court: Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee

Page 705

868 S.W.2d 705

Philip R. WORKMAN, Appellant, v. STATE of Tennessee, Appellee.

Court of Criminal Appeals of Tennessee,

at Jackson.

April 7, 1993.

Permission to Appeal Denied by

Supreme Court Nov. 29, 1993.

Christopher M. Minton, Nashville, for appellant.

Charles W. Burson, Atty. Gen. and Reporter, Amy L. Tarkington, Asst. Atty. Gen., Nashville, John W. Pierotti, Dist. Atty. Gen., James M. Lammey, Jr., Asst. Dist. Atty. Gen., Memphis, for appellee.

OPINION

JONES, Judge.

The appellant, Philip R. Workman, ¹ appeals of right from a judgment of the trial court summarily dismissing his suit for post-conviction relief. The trial court ruled that the grounds raised in the petition had either been previously determined or waived. As to those issues that were deemed waived, the trial court found that the appellant failed to give an adequate reason for failing to raise the issues on direct appeal or in the first post-conviction suit.

ISSUES PRESENTED FOR REVIEW

The appellant raised three issues for review. Each issue has a series of sub-issues. The issues raised are:

The criminal court erred in dismissing the petition without holding an evidentiary hearing because the petition alleged facts entitling him to an evidentiary hearing on the issue of whether his conviction and sentence amount to a fundamental miscarriage of justice rendering the waiver doctrine inapplicable to certain claims and factual bases raised in the petition.

The criminal court erred in dismissing petitioner's petition without holding an evidentiary hearing because the petition alleged facts entitling him to an evidentiary hearing on the issue of whether grounds asserted therein were waived.

State v. Middlebrooks, 840 S.W.2d 317, (Tenn.1992), announced "new law" during the pendency of this appeal that renders petitioner's death sentence constitutionally infirm.

HISTORY OF LEGAL PROCEEDINGS

The appellant was convicted of murder in the first degree in the perpetration of a robbery and sentenced to death. The jury found five aggravating circumstances:

a.) The defendant knowingly created a great risk of death to two (2) or more persons, other than the victim murdered, during the act of murder, Tenn.Code Ann. § 39-2-203(i)(3);

b.) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another, Tenn.Code Ann. § 39-2-203(i)(6);

c.) The murder was committed while the defendant was engaged in committing, or was an accomplice in the commission of, or was attempting to commit, or was fleeing after committing or attempting to commit, the offense of robbery, Tenn.Code Ann. § 39-2-203(i)(7);

d.) The murder was committed by the defendant while in lawful custody or in a place of lawful confinement or during the defendant's escape from lawful custody or from a lawful place of confinement, Tenn.Code Ann. § 39-2-203(i)(8); and e.) The murder was committed against any law enforcement officer, corrections official, corrections employee or firefighter, who was engaged in the performance of official duties, and the defendant knew or reasonably should have known that such victim was a law enforcement officer, corrections official, corrections employee or firefighter engaged in the performance of official duties, Tenn.Code Ann. § 39-2-203(i)(9).

The appellant appealed of right his conviction and death sentence. The Supreme Court affirmed both the conviction and death sentence. State v. Workman, 667 S.W.2d 44 (Tenn.1984). The United States Supreme Court denied the appellant's petition for certiorari. Workman v. Tennessee, 469 U.S. 873, 105 S.Ct. 226, 83 L.Ed.2d 155 (1984).

On March 1, 1985, the appellant initiated his first suit for post-conviction relief. The appellant was represented by Larry D. Woods, who is recognized as an expert in capital litigation, and an associate, Kim L. Kirk. Counsel prepared and filed the petition on behalf of the appellant. The trial court denied the relief sought by the appellant. This Court affirmed the judgment of the trial court. Philip Ray Workman v. State, Shelby County No. 111 (Tenn.Crim.App., February 18, 1987, Jackson), per. app. denied May 11, 1987. The United States Supreme Court denied the appellant's petition for certiorari. Workman v. Tennessee, 484 U.S. 873, 108 S.Ct. 209, 98 L.Ed.2d 160 (1987).

This suit was instituted on June 27, 1988. Counsel was appointed to represent the appellant. An "Amended Petition for Post-Conviction Relief" was filed by counsel on February 22, 1991. Subsequently, a "Superseding Amended Petition for Post-Conviction Relief" was filed in the cause on January 28, 1992. The trial court filed its findings of fact and conclusions of law on March 20, 1992.

LAW GOVERNING ISSUES PRESENTED FOR REVIEW

In this jurisdiction a petition for post-conviction relief may be summarily dismissed without benefit of an evidentiary hearing if the petition establishes on its face, or the court records reveal, that the grounds raised have been previously determined or waived. Tenn.Code Ann. §§ 40-30-111 and -112; Caruthers v. State, 814 S.W.2d 64, 69-70 (Tenn.Crim.App.1991).

A ground for relief has been "previously determined" when "a court of competent jurisdiction has ruled on the merits [of the grounds] after a full and fair hearing." Tenn.Code Ann. § 40-30-112(a). A ground is deemed to be "previously determined" when the petitioner appealed as of right from his conviction and the issue was addressed by the appellate court. Rhoden v. State, 816 S.W.2d 56, 61, 62, 63, 65 (Tenn.Crim.App.1991); Caruthers v. State, supra; Cole v. State, 798 S.W.2d 261, 264-265 (Tenn.Crim.App.1990). Also, a ground is "previously determined" when a petitioner raises a ground in a post-conviction proceeding, and the ground is addressed on the merits following an evidentiary hearing. Holiday v. State, 512 S.W.2d 953, 958 (Tenn.Crim.App.1972). See Caruthers v. State, supra; Garrett v. State, 534 S.W.2d 325, 327 (Tenn.Crim.App.1975); Doyle v. State, 3 Tenn.Crim.App. 171, 173, 458 S.W.2d 637, 638 (1970).

A ground for relief is said to have been "waived" when the petitioner "knowingly and understandingly failed to present it for determination in any proceeding before a court of competent jurisdiction in which the ground could have been presented." Tenn.Code Ann. § 40-30-112(b)(1). There is a presumption, rebuttable in nature, that "a ground for relief not raised in any such proceeding which was held was waived." Tenn.Code Ann. § 40-30-112(b)(2). Before a petitioner is entitled to an evidentiary hearing to rebut this presumption, the petition must allege a legal excuse for not having raised the waived issues on direct appeal or in a prior post-conviction suit. See Swanson v. State, 749 S.W.2d 731, 735 (Tenn.1988); Caruthers v. State, supra; Underwood v. Livesay, 721 S.W.2d 824, 828 (Tenn.Crim.App.1986); Recor v. State, 489 S.W.2d 64, 70 (Tenn.Crim.App.1972), cert. denied, 411 U.S. 920, 93 S.Ct. 1560, 36 L.Ed.2d 313 (1973).

A ground is deemed waived when the petitioner fails to raise the ground as part of the direct appeal following conviction. Rhoden v. State, 816 S.W.2d at 65. Also, a ground is deemed waived when the petitioner fails to raise the ground in a prior suit for post-conviction relief.

EXCULPATORY EVIDENCE CLAIM

The petition alleged that the state had failed to furnish defense counsel with materials that are described as "exculpatory evidence." This evidence consisted of certain reports prepared by police officers who either were present on the night in question or investigated the murder of Lieutenant Oliver. The appellant also relied on the statements of certain lay witnesses. The purported "exculpatory evidence" may be categorized in the following manner: (a) the statements that were inconsistent with the state's trial theory; (b) the shooting was triggered when the appellant was hit in the back of the head with a flashlight after he had surrendered and was kneeling on the parking lot; and (c) other officers besides Lt. Oliver and the appellant fired weapons, and Oliver may "possibly" have been killed by "friendly fire."

In the landmark case of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court ruled that the prosecution has a compelling duty to voluntarily furnish the accused with any exculpatory evidence that pertains to (a) the guilt or innocence of the accused and/or (b) the punishment which may be imposed if the accused is convicted of a criminal offense. The Supreme Court extended the exculpatory evidence doctrine to impeaching evidence in Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). See Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). The Court said in Brady that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87, 83 S.Ct. at 1196-1197, 10 L.Ed.2d at 219. Thus, there are three prerequisites that must be met before an accused is entitled to relief on this theory. First, the prosecution must have suppressed evidence. Second, the evidence suppressed must have been favorable to the accused. Third, the evidence must have been material. See United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Brady v. Maryland, supra; State v. Marshall, 845 S.W.2d 228 (Tenn.Crim.App.1992); Strouth v. State, 755 S.W.2d 819 (Tenn.Crim.App.1986).

The prosecutor's duty to disclose is not limited in scope to "competent evidence" or "admissible evidence." The duty extends to "favorable information" unknown to the accused. State v. Marshall, supra; Branch v. State, 4 Tenn.Crim.App. 164, 168, 173, 469 S.W.2d 533, 536 (1969). See United States v. Gleason, 265...