# FILED
October 28, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE NOVEMBER 1995 SES SION

FREDERICK NATHAN VANN, ) ) Appellant, ) No. 03C01-9504-CR-00111

) ) Morgan County v. ) ) Honorable James B. Scott, Jr., Judge ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. ) For the Appellant : For the Appellee : Robert W. Ritchie Charles W. Burson 606 W. Main Street Attorney General of Tennessee Suite 300 and P.O. Box 1126 Michael J. Fahey, II Knoxville, TN 37901-112 6 Assistant Attorney Gener al of Tennessee 450 James Robertson Parkwa y Nashville, TN 37243-0493 Charles E . Hawk District Attorney General and D. Roger Delp Frank A. Harvey Assistant District A

ttorneys General P.O. Box 703 Kingston, TN 37763

OPINION FILED:____________________

AFFIRMED Joseph M. Tipton Judge1 The term “standing” actuall y rela

tes to th e substanti ve Fourth Amendment concept of the defe ndant ha ving a rea sonab le expec tation of priva cy in the place search ed or the items s eized. See Rak as v. I llinois , 439 U.S . 128, 132 -33, 99 S . Ct. 421, 42 4-25 (19 78); United Stat es v. Salvucci , 448 U.S. 83, 87, 10 0 S. Ct. 25 47, 2550 -51, n.4 (1 980). 2 O P I N I O N The petitioner Frederick N athan Vann, appeals as of right from t he Morgan County Cri minal Court’s denial of his petition for post-convic tion relief. The petition alleges that thi s court erred in the petit ioner’s direct appeal by affirming the denial of his motion to suppress and that the trial court’s instruction on premeditati on and deliberation violated his due process right

s. The trial court dismis sed the petition, concluding that the suppres sion issue had been previ ously determined and that the petitioner’s constitutional rights were not violated by the jury instructions given at his trial. The petitioner now contends that the suppression issue was not previously determined because he was not ac corded a full and fair hearing on the issue in the direct appeal. He also contends that the jury instr uctions violated his c

onstitutional rights. We affirm the trial court’s di smissal of the petition.

The petitioner was convicted of first degree murder and arson. He received a life sentence for fir st degree murder and a five- year sentence for the arson conviction. This court

affirmed the defendant’s convictions

. State v. Frederick N athan Vann , No. 45, Morgan County (Tenn. Crim. App. Apr. 26, 1990) , reh’g denied (July 16, 1990), app . denied (Tenn. Dec. 10, 1990).

The petitioner was convicted for killing his girlfriend and burning the house where she lived. The po lice spent three to five day s searching the house and confiscated several items. The petitioner filed a motion to s uppress evidence that w as seized from the home. After hearing proof on the matter, the trial c ourt held that the petitioner had “standing” 1 to challenge the search of the house. However, it denied the3

suppression because it concl uded that the petitioner consented to the search and that the search was also jus tified based upon exigent ci rcumstances.
This court affirmed the petitioner’ s convictions and upheld the denial of the motion to suppress in a spl it decision. The court concluded that the search of the home was not justified by consent or exigent ci rcumstances. Howeve r, the majority also concluded that the evidence in the record preponderate d against the trial court’s determination that the defendant had standi ng to challenge the searc h. In dissent, now Presiding Judge Joe B. Jones argued that there w as proof in the record to suppor t the trial court’s conclus ion regarding the petitioner’s expectation of pr ivacy in the home.
The crux of the disagreement w ithin the court related to the standard to use in reviewing

the trial court’s deter

minations. The majority opi nion noted that the trial court simply held that the petitioner had stan ding, without prov iding any findings of fact. It stated that the trial court’s determination of standi ng represented a conclusi on of law that was not bindi ng upon the court. Then, the major ity drew its ow

n legal conclusion based upon its review of the evidence, stating, as well, that the evidence did not support the trial court ’s legal conclusion t hat the petitioner had standing

.
The dissenting opinion believed that the majority opinion did not prope rly defer to the trial court’s implicit factual findings and improperly rewei ghed or reevaluated the evidence on its own. It stated that the majority should hav e limited its conside ration to the evide nce that tended t o suppor t the judg ment and should ha ve affirmed the judgment if material ev idence existed to support it. The dissent concluded that sufficient evidence exi sted to support the trial c ourt’s ruling that the petitioner had standing.4 I In his first issue, the peti tioner asks that we re

visit the search is

sue. The trial court concluded that the search issue had been prev iously determined in the convicting case. U nder the law applicable to this case, the scope of a post-conviction hearing does not extend to grounds that have been prev iously determined. See T.C.A. § 40-30-111 (repealed 1995). “ A ground for relief is ‘pr eviously determined’

if a court of competent jurisdiction has r uled on the merits after a full and fair hearing.” T.C.A. § 40- 30-112(a) (repealed 1995).

The petitioner asserts that the standing issue cannot be deemed previously determin ed because he was denied a full and fair hearing before this co urt. The gist of the petitioner’s r easoning is that this cour t used the wrong standar d of review in determini ng his standing to objec t to the search and improperly ruled on its view of the evidence i n the record instead of remanding the case for the trial court to place its factual findings upon the record. The petitioner al so argues that a remand would have giv

en him an opportunity to prov e standing under this cour t’s change in the standard of review.

The petitioner relies upon sev eral cases in which remands for further hearings occurred in feder al habeas corpus cases and one Tennes see case because of the concern that the petitioner did not have a full and fair hear ing on a given iss ue. In Riley v. Gray , 674 F.2d 522 (6th Cir. 1982), the issue before the state ap pellate court in the convicting case, as raised by the petiti oner, was that evidenc e should have been suppressed because it was obtained under a warrant that was based on an improper warrantless search. Even though the state did not contest standing and neither party briefed or argued the issue, the appellate court ruled that there was no standing to challenge the evidence und er the evidence before it. I t affirmed the conviction without remanding the case for a determin ation of the facts relevant to the issue of standing. In5

affirming the grant of habeas corpus relief, the Sixth Cir

cuit concluded that the petitioner was denied an op portunity for full and fair l itigation of his claim i n an unreasonable manner. 674 F.2d at 527.

In United States ex rel. Bostick v. Peters , 3 F.3d 1023 (7th Cir. 1993) , the state tr ial cou rt had to ld the pe titione r at his

suppres sion hea ring th at he need not tes tify because his sworn affidavi t would suffice. The state call ed two agents to testify . After the hearing, the trial c

ourt suppressed the evidenc e in issue, concluding that the agents had not provided a sufficient basis for the stop of the petitioner. On the state’s appeal, the appellate court held that the petitioner’s aff idavit was insufficient to satisfy his burden of proving his al legations, deeming it to be incompetent evidence. Noti ng that the petitioner failed to present evidence to support his allegations contradicti ng the agents’ testimony, the c ourt concluded that the evi dence of the record showed that the petitioner had not been seiz ed and reversed the suppres sion order. Upon remand, the state trial court refused to provide another evident iary hearing. In g ranting the petitioner a hearing on the merits of his Fourth Amendment claim, the Sev enth Circuit concluded that the petitioner was not given a reasonable opportunity to present his evidence because of an unanticipated and unforeseeable application of a rule on appeal, thus denying him the opportunit y for full and fair litig ation of his Fourth Amendment challenge. 3 F.3d at 1029.

Also, the petitioner reli es upon Donald Lewis Sullens v. State , No. 01C01- 9212-CR-00394, Davidson County (Tenn. Crim. App. Nov. 18, 1993), in which this court stated that “it is difficult to conclude that a full and fair hear ing on the merits contemplates

a court maki ng a ruling based upon fact

s which ar

e not only a bsent from, but contradicted by the evidentiary record.” Id. , slip op. at 9. In Sullens , the record reflected that in the direct appeal of the convicting cas e, this court had rejected a n issue upon a mistaken view of the e vidence.2 We note that the issu e of the proper standard of r

eview of a suppr

ession rul ing was not settledin Tennessee unti l our supreme court decided State v. Odom , 928 S.W .2d 18 (Tenn. 1996). 6 In reviewing the petitioner’s claim, w e note that we are bound by the postconviction laws of the state of Tennessee, not the f ederal habeas corpus laws. In this respect, we note that in House v. State , 911 S.W.2d 705, 711 (Tenn. 1995), our supreme court held that “a full and fair hearing” under T.C.A . § 40-30-112 (a) (repeale d 1995), is provided w

hen a petitioner is giv

en an opportunity to present a constitutional claim at a meaningful time and in a meaningful manner, without undu e restriction of the scope of the hearing or undue li mitation on the introduction or presentation of evidence.
In the petitioner’s conv icting case, the issue of whether evidence w as seized from the victim’ s home in violation of the petitioner’s constitutional rights was fully litigated at the suppression hearing before tr ial. Both the petitioner and the state presented proof with respec t to the petitioner’s ex

pectation of privacy i n the area that was searched. Based on the suppression hearing rec ord, this court determined t hat the petitioner did not have a s ufficient objective expect ation of privacy in the

property to challenge the search.

The petitioner’s full opportunity to present and the actu al presentation in the convicting case of ev idence and argument on the issue of standing distinguishes this case fr

om Riley and Bostick . Also, nothing in the r ecord before us reflects any detail or fact that would al low the petitioner to s how standing that wa s not already presented at the suppression hearing. Moreover, the evidence upon which this court relied to decide the standing issue does, in fact, exis t in the record, a material circumstan ce that dist inguishes this case fr

om Sullens

.

Even if we were to a

ssume, for argument’s sake, that the standard of review used by this court in the direct appeal of the convicting case was not the usual one, 2 we do not believe that it alters the fact that the standing issue was previously7

determined so as to bar its c onsideration as a ground for post-conviction reli ef. In fact, the fact that a case has been decided upon a court’s misapprehension of the law does not mean, for post-conviction purposes, that a full and fair hear ing did not occur. See Barr v. State , 910 S.W.2d 462 (Tenn. Crim. App. 1995) (petiti oner who challenged search in direct a ppeal was barred f rom challenging it in post-conviction proceeding, because it was previ ously determined, even t hough the Tennessee Supreme Court had ruled that the same search w as unconstitutional in codefendant’ s case); see also Kenneth M. Godwin , No. 01-C-01-9101-CC- 00001, Dickson County ( Tenn. Crim. App. Sept. 17, 1991) (claim previously determined even though Tennessee Su preme Court later rejected the legal

analysis used to affirm the peti tioner’s conviction)

.
In sum, the petitioner receiv ed a full and fair hearing of his search and seizure issues, including the question of standing, as such a hearing is defined in House for our state post-convi ction cases. Moreover, the mere fact that a different standard of review than t he petitioner expected mig ht have been used, does not ris e to the level of a due process v iolation so as to provi de a separate basis for post-co nviction relief. Therefore, we hold that the issue of standing was previously determi ned for postconviction relief purpos es.

II Next, the petitioner cont ends that he is entitled to post -conviction relief because the trial court in structed the jury that p remeditation may be formed in an instant and failed to define delibera tion. He relies upon State v. B rown , 836 S.W.2d 530 (Tenn. 1992), in which ou r supreme court restated the differences between premeditation and deliberation and stated “that it is prudent to abandon an instruction that tells the jury tha

t ‘premeditation may be formed in an instant.’ Such an instr uction can only result in confusi on, given the fact that the j ury must also be charg ed on the law of deliberation.” 836 S.W.2d at 543. In the present case, the trial court c

oncluded that8

the instruction on premeditati on used in the convicting case was correct under the law then existing and noted that Brown had not b een given re troactive applicat ion. Also , we note that the jury was

instructed in a separate pas sage that a deliberate kil ling was one done “with cool purpose.”

The petitioner acknowledg es that this court has refused t o apply the holdings in Brown retroactively. See , e.g. , State v. Joe Nathan Person , No. 02C01- 9205-CC-00106, Madison Count y (Tenn. Crim. App. Sept. 29, 1993); State v. William Paul Roberson , No. 01C01-9206-CC-00200, Putnam County (Tenn. Crim. App. Feb. 25, 1993); State v. Willie Bacon, Jr. , No. 1164, Ham ilton County (Ten n. Crim. App. Au g. 4, 1992). However, he maintains that he is stil l entitled to relief because of the improper instructions i n the context of due process. We disagree.

Initially, we note

that with the petitioner ’s concession that Brown is not to be applied retroactively regarding the premeditation instruction, his due process claim would be barred from consider ation for waiver becaus e it was not pursued in the convicting case. Al

though the state did not specifically claim in the tr ial court that the petitioner waived t his issue, it was i mplicit in the positions taken by the parties in t he trial court. That is, the petitioner explained in his post-conviction petition that the reason this issue had not been pr eviously presented w

as because Brown was released after the petitioner’s direc t appeal was completed. This explanation was prov ided to overcome the presumption of waiver that arises when a ground for relief is not raised in a prior proceeding in which it could have been raised, such as the direct appeal in this
case. See T.C.A. § 30-112(b) (repealed 1995). However, the only rebuttal that could result from th e later-arising Brown case would relate to the fact that the ground for relief did not exist before Brown and was to be retroactively applied after Brown

. See , e.g. , Pruett v. State , 501 S.W.2d 807 (Tenn. 1973). In this fashion, once the petitioner9

dropped his retroactiv

e application claim relati ve to Brown , he provided no way in which to rebut the presumption of wai ver.
In any event, we bel ieve that the petitioner’ s due process rights w ere not violated as he claims. In Brown , our supreme court concluded that it was prudent to abandon an instruction that premeditation m ay be formed in an instant because it could result in confusion because the e lement of deliberation contemplates a period of reflection, during whi ch the mind is free from the influence of pass ion. However, the mere fact that the instruction w as abandoned in Brown does not mean that its previ ous use equated with a due proc ess violation that w

ould be cognizable in a post-conviction proceeding. See Lofton v. State , 898 S.W.2d 246, 249 (Tenn. Crim. App. 1994). With the trial court having

instructed the jury that the state must have prov en beyond a reasonable doubt that the kill ing was deliberate, meaning with cool purpos e, and our view under Brown that use of the former premeditation i nstruction did not constitute, by itself, a matter of constitutional significance, we conc

lude that the petitioner’s due process rights w

ere not violated by the

instructions in this c

ase.
In consideration of the foregoing and the record as a whole , the judgment of the trial court is affirmed.

Joseph M. Tipton, Judge

CONCUR:

Gary R. Wade, Judge

Joe D. Duncan, Sp ecial Judge