# FILED
July 14, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MAY 1998 SESSION

TIMOTHY EUGENE MO RRIS, ) ) NO. 03C01-9708-CR-00351 Appellant, ) ) GREENE COUNTY VS. ) ) HON. WILLIAM H. INMAN, STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-Co nviction - Death Pen alty)

FOR THE APPELLANT : GRE G W. EIC HEL MAN District Public Defender MICHAEL A

. WALCHER Assistant District P ublic Defender 1609 College Park Dri

ve, Box 11 Morristown, TN 37813- 1618 JAMES S. ROACH Attorney at Law P. O. Box 1495 Johnson City, TN 37605-1495 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter MICHAEL E. MOORE Solicitor General KENNETH RUCKER JOHN BAKER Assistant Attorneys Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 C. BERKELEY BELL, JR. District Attorney General ERIC D. CHRISTIA

NSEN Assistant

District Attorney

General 109 South Main, Ste. 501 Greeneville, TN 37743

OPINION FI LED:

AFFIRMED
JOE G. RILEY, JUDGE2 O P I N I O N Petitioner, Timothy

Eugene Morris, appeals the dismissal of his second postconviction relief petition by the C riminal Court of Greene County

. He was previously convicted in 1981 of first degree murder and sentenced to death. In this Co urt he contends the trial court erred in dismissing the petitio n and alleges the following in this appeal: 1. T he trial court's instruction on malic e wa s

unconstitutional. 2. The trial court's instr uction on reasonable doubt was unconstitutional. 3. There was insufficient evidenc e to suppor

t a finding of first degree murder. 4. The trial c

ourt imp roperly failed to defi n e "mitigating evidence " or "mitigation." 5. The jury was not informed about the meaning of a n on-unanimous verdict and w as told they had to return a non-unanimous verdict, bo th bein g constitutional violati ons. 6. The jury was improper ly told t hat mitigating evidence had to be "suffi ciently subst antial" before a life sentence could be imposed. 7. The prosecution engaged in mi sconduct. 8. In tr oduction of the decedent's skull and a rock purportedly used as a wea p on against the victim w as improper. 9. The prosecution failed to establi sh tha t petition er's stat ement to authorit ies was volu ntary. 10. Authoritiesi llegally seiz ed without a

war rant a pickup truck driven by petitioner. 11. The state destroyed evidenc e in bad faith. 12. The trial court's instruction on premeditati on was unconstitutional. 13. The jury was

erroneously denied parole eligibil ity information. 14. The statutory review conducted by th e Tennessee Supreme Court on di rect appeal was constitutionally inadeq uate.3 15. El ect rocution constitutes cruel and unusual punishment. 16. The trial court failed to specify the specific felony for the felony murder aggr avating factor. 17. The certified copy of the previous volu n tary manslaughter

conviction was

not adequate proof of the crime of violence aggr

avator. 18. A death sentenc e may not s tand when the jury sentence r was presented no evidenc e concerning mitigation, where no attack was mounted on the aggravators a nd w here no attorney invol ved in the sentencing has ever stated a tactic al, s t rategical or logical reason why

sentencing was left blank. 19. The cumulative effect of all errors at trial and on appeal violated Due Proces s. 20. Petitioner

was denied a

full and fair postconviction hearing because: (a) the trial court refused to appointcounsel who hadex tensive knowledge of the case; (b) the trial court fail ed to provide expert funds as requested; an d (c) the trial court failed to provide petitioner access to TBI documents

. We conclude that the petition w as properly dismissed and AFFIRM the judgment of the trial court.

PROCEDURAL HISTORY

Petitioner

was convict ed by a Greene County jury of first degreemurder and sentenced to death. The conviction and s entence were affirmed by the Tennessee Supr eme Court on direct appeal. State v. Morris , 641 S.W.2d 883 (Tenn. 19 82)

. Certiorari was denied by the United States Supreme Court. Morris v. State , 460 U.S. 1047, 103 S.Ct. 1450, 75 L.Ed.2d 804 (1983). On July 26, 1983, petitioner filed his first pe tition for post

-convi ction r

elief. After an ev identiary hearing, the trial court denied rel ief. This Court affirmed the dismissal of the petition. Timothy Eugene Morris v. State , C.C.A. No. 218, Greene County (Tenn. Crim

. App. filed September 11, 1985, at Knoxville

). The Tennessee Supreme Court denied permissi on to appeal on January 21, 1986. Petitioner

filed the sub ject petition for post-conv iction relief on January 19, 1987. Alt hou gh the petition was or iginally dismiss

ed based upon the statute of1 The record does not reveal the reason for the lengthy delay in the trial court. 4 limitations, the petition was subseq uently reinstated. Amended petitions were filed on June 30, 1989, and January 18, 1 995. 1 Petitioner

filed a motion seeking inv es tigative and expert

assistance on February7, 1995. Although the trial court d enied relie f, the Tennessee

Supreme Court ultimately remand ed to the trial court for further proceedings on this is sue. Timothy Eugene Morris v. State , No. 03C01-9503-C R- 00068 (Tenn. filed December 4, 1995, atKnoxville). Up on remand, the trial court autho rized funds for a mitigati on specialist and a clinic

al psychologist. An evidentiary heari ng was conduc ted in F ebruary 1997. On March 12, 1997, the trial court entered extensive Findings of Fact and Conclusions of Law denyi ng po st-conviction relief. Upon appeal, this case was orally argued in this Court on May 27, 1998.

STANDARD OF REVIEW
Since the petition was fil ed prior to May 10, 1995,it is not controlled by the Post-ConvictionProcedure Act o f 1995. See Tenn. Code Ann. § 40-30-201 Compiler’s Notes (1997). Instead, the petition is cont rolled by the Post-Conv iction statutes contained in Tenn. Code Ann.§ 40-30-101 et. seq. (1990)

. Some of the issues raisedby the petitioner in the present petition have been “previously

determined” on direct appeal and/or in the appeal from the den ial of the first post-conviction rel ief petition. A ground for relief is “previous ly determined” if
a court of competent jurisdiction has ruled on the me rits after a fu ll and fair hear ing. Tenn. Code Ann. § 40-30-112(a)(1990) . A “full and fair h earing” is afforded whenever

a pe titioner is given every opportunity

to litigate his constitutional comp lain ts in a state forum. House v. State , 911 S.W.2d 705, 71 1 (Tenn. 1995). M any of the issues raised by petitioner have been “waived.” A ground fo r reliefis “waived” if the petitioner knowingly and under

standingly fails to pr

esent it in
a prior proceeding before a c ourt of competent

jurisdiction in w

hich the ground could5

have been presented. Tenn. Code Ann. § 40-30-1 12(b)(1)(1990). There is a rebuttable presumption that a ground for relief n ot raised in any such pr oceeding
was waived. Tenn. Code Ann. § 40-30-112(b)(2)(1990). This rebuttable presumption of waiver is not overcome by an allegation that the petit ioner did not personally fail to raise the issue, s ince waiver is to be determined by an ob je ctive standard. House , 911 S .W.2d a t 714. Furthermore, an allegation that petitioner had ineffective counsel during prior post-conviction proceedings is ins ufficient to rebut the presumption of waiv er. Id. at 712.

MALICE JURY

INSTRUCTION

In issue 1 petitioner chall enges the jury instr uction that “the killi ng is presumed to be mal icious ” alleg ing it to be in v

iolati on of Sandst r om v. Montana , 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (19 79). The post-conviction court found that the presumption of waiver had beenrebutted; however, the court found the Sandstrom violation to be harmless error. The 1979 Sandstrom decision held that a jury instruct ion c reating a presumption has the effect of shifting the b urden of proof to the defendant an d is, therefore, a violation of due process. 442 U.S. at 524, 99S.Ct. at 2459, 61 L.Ed.2d at 51. Sandstrom was decided two (2) years prior to defendant’s original tri al in 1981 and four (4) years prior to the filing of the firs t petiti on for pos

t-conv iction relief. Yet, the issue was not raised in either proceedi ng. In applying the statute of li mitations to a Sandstrom claim, the Tennesse e SupremeCourt held that Sandstrom had been applied to Tennessee proceedings forseveral years and was not a “later arising ground” under Burfor d v. St ate , 845 S.W.2d 204 (Tenn. 1992). Sands v. State , 903 S.W.2d 297, 302 (Tenn. 1995). In fact, a Sandstrom violation was recognized, yet found to be harmless error, in State
v. Chavis , 617 S.W.2d 903, 908 (Tenn. Crim. App. 1980), p erm. to ap p. denied (Tenn. 1981). Since this issue was not presented on direct appeal nor in the first petition for post-convic

tion relief, the issue is w aived.6 In addition, we agree wi th the trial court’s findi ng that this jury i nstruction constituted harmless error. Sandstrom violations are subjec t to harmless error analysis. Rose v. Clark , 478 U.S. 570, 582, 106 S.Ct. 3101, 3108, 92L.Ed.2d 460, 473-74 (1986); State v. Taylor , 771 S.W.2d 387, 397 (Tenn. 1989). The victi m’s skull had been severely cr ushed, and his body had been dragged th rough underbr ush 139 f eet from a roadway. State v. Morris , 641 S.W.2d at 886. In addition to the finding of malice , the jury concluded that the homicide was willful, deliberate and premeditated. See Tenn. Code Ann. § 3 9-24 02(a) (Supp.1980). The evidence clearly supported these findings. State v. Morris , 641 S.W.2d at 887. We agree with the trial court’s conclusion that the malice jury instruction constituted harmless error.

MISCELLANEOU S ISSUES
In issue 2 petitioner

attacks the “reasonable doubt” jury instruction given in his original trial. Firstly, this issue is waived since it was not raised in the direct appeal nor

in the first petition for

post-conviction relief. Secondly, the “reasonable doubt” jury

instruction is constitutional. See Carter v. State , 958 S.W.2d 620, 626 (Tenn. 1997). In issue 3 petitioner contends the evidence was insuffici ent to support the conviction. This issue was previo usly determined on the dir ect appeal. Morris , 641 S.W.2d at 887. In issues 4, 5 and 6 petiti oner atta cks the original tri al court for failing to defin e mitig ating evidence, failing to inform the jury about the meani ng of a nonunanimous verdictand telling the jury that mitigating

evidence had to be “sufficiently substantial” in order to impose a life sent en ce. Allof these issues are waiv ed for failure to raise th em o n d irect appeal and in the first petition for post-convic tion relief. In issue 7 petitioner alleges prosecutorial misconduct. This issue was7

previouslydetermi ned in th e appeal of the den ial of t he first pe tition for postconviction relief. Timothy Eugene Morris v. State , slip op. at 33-34. In issues 8 and 9 petitioner at tacks the introduction i nto ev idence of the victim’s skull, a rock and petiti oner’s statement to authoriti es. Each of these issues was previously

determined on direct appeal. Morris , 641 S.W.2d at 888. In issues 10 and 11 petitioner attacks the illegal seizure of a pickup truck and the destruction of evidence by the state. These issues a re waiv ed for failure to present them in prior proceedings. In issue 12 petitioner attacks the j ury instruction on “premeditation” as being in violation of the holding in State v. B rown , 836 S.W.2d 530 (Tenn. 1992). Brown is not to be applied retroactively; does not implicate a constituti onal right; and may not be used as a basis for post-conviction re lief. Harris v. State , 947 S.W.2d 156, 174 (Tenn. Crim. App. 1996). In issue 13 petitioner conten ds t he jury was improperly denied parole eli gibility information. This issue w as previously deter

mined in the appeal of th e denial of the first petition for post-convic tion relief. Timoth y Eugene Mo rris v. State , slip op. at 19-20. The allegation is otherwise without merit. See State v. Bush , 942 S.W.2d 489, 503-504 (Tenn. 1997). In issue 14 petit ioner contends the statutory review conducted by the Tennessee SupremeCourt on direct appeal w as inadequate. This issue is waiv ed bythe failure to present it in the first petition for post-con victio n relief and is otherwise without merit. See State v. Barber , 753 S.W.2d 659, 664 (Tenn. 1988). In issue 15 petitioner contends that death by

electrocution constitutes cruel and unusual punishment. This issue is waived and is otherwise without merit. See State v. Howell , 868 S.W.2d 238, 258 (Tenn. 1993) cert. denied 510 U.S. 1215, 114 S.Ct. 1339, 127 L.Ed.2d 687 (1994). In issue 16 petitioner attacks the failure of the trial c ourt to specify the specific felony supporting the felony murder aggrav

ating factor. This issue was previouslydetermined on the appeal from the denial of the first petition fo r postconviction relief. Timothy Eugene Morris v. State , slip op. at 21.8 In issue 17 petitioner alleges the admission into evidenc e of a certified copy of his prior voluntary manslaughter conviction was insuffic ient to es tablish a prior conviction involving violence. This issue has been previously determi ned. Morris , 641 S.W.2d at 883; Timothy Eugene Morris v. State , slip op. at 15. In issue 18 petitioner alleges the death penalty must be set as ide since no mitigation evidence was presented. This is an in direct at tack on ef fective assistance of counsel. The issue of effective assistance of counsel has previously been determined on the appeal from the den ial of the first petition for postconviction relief. Timothy Eugene Morris v. State , slip op. at 9-13. Furthe rmore, the death penalty has been previ ously determined to be proper in this case. Morris , 641 S.W.2d at 889-90. In issue 19 petitioner alleges the cumulative effect of all errors constitutes a Due Process violation. In the direct appeal as w ell as the appeal from the denial of the first petition for post-conviction re lief, petitioner’s allegations were rejected. The record does not reveal c umulative errors. This

issue is without meri

t.

DEPRIVATION OF FAIR POST-CONVICTION HEARING

In issue 20 petitioner alleges he was deprived of a full an d f air postconviction hearing for the following reasons:

1. The post-conviction cour t improperly refus ed to re-appoint one of petitioner’s prior attorneys; 2. Th e post -conviction court improperly denie d expert services; and 3. The post- co nviction court improper ly denied access to TBI documents.

A. Prior counsel, John Oliva , was emplo ye d by the Tennessee Capital Case Resource Center. W hen the Center was defunded, Oliva sought to be reappointed. The post -convictio n court f ound tha t Oliva resided over 250 miles from Greeneville which would resul t in substantial state ex penses. The court further9

fo und petitioner had other counsel familiar with the case and also appoin ted th e public de fender to assist in petitioner ’s representation. We find no error in thi s regard. See State v. Smith , 755 S.W.2d 757, 766 (Tenn. 1988). B. Although the trial court authorized expert ser vices for a mitigation

expert and
a clinical p sychologis t, petiti oner con tends ot her expert assistan ce should have been authorized. At the ex parte hearing, only the mitigation sp ecialist and the clinical psychologist testi fied. Petitioner’s reques t for their ser

vices was

granted pursuantto Owens v. State , 908 S.W.2d 923 (Tenn. 1995) . P etitioner does not make an appropriate reference to the record as to which servi ces were denied. See Tenn. Crim. App. Rule 10(b). The issue is waived. Although a transcript of the ex parte hearing is in the rec

or d, documentation and the so-called “ sealed record” requestingexperts in addition to th e mitigation specialist and clinical psychologist
are not in the record. It is appellant’s responsibility to provide an appropriate record for review. See State v.Ballard , 855 S.W.2d 557, 560 (Tenn. 1993). Petitioner’s brief in an unrelated issue refers to the post-convictio n court’s refusal to authorize funds for a forensic anthropologist to inv

estigate cause of death,
a surveyor to inv

estigate proper venue of the homicide and an investigator to inv estigateother guilt-innocence i ssues. Issues relating to the cause of death,
venue and guilt-innocence hav e been previously deter mined or waived. Thus, the post-convictioncourt would not be in error for failing t o author ize funds relating to these issues. C. Finally, petitioner contends he has been denied access to T BI documents. Petitioner

does not make an appropriate referen ce to the record. See Tenn. Crim. App. Rule 10(b). This issue is waived. Fur

thermore, our examination of the record does not reveal any basi s for relief as to this iss ue.10 CONCLUSION
Finding noerror, we affirm the judg ment of the trial court. The sentence of death shall be carried out as p rovided by law on October 30, 1998, unless otherwise ordered by an appropriate court

.

________________________________ JOE G. RILEY, JUDGE

CONCUR:

_______________________________ JOSEPH M. TIPTON, JUDG E

_______________________________ CURWOOD WITT, JUDGE