IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

May 3, 2001 Session

DAVID EARL MILLER v. STATE OF TENNESSEE

Appeal by permission from the Court of Criminal Appeals

Criminal Court for Knox County

No. 47700 Ray Jenkins, Judge

No. E1998-00247-SC-R11-PD - Filed August 29, 2001

We granted petitioner, David Earl Miller’s application for permission to appeal to determine whether

this Court’s decision in State v. Brown, 836 S.W.2d 530 (Tenn. 1992) created a new state

constitutional rule regarding the elements of deliberation and premeditation. Petitioner claims that

Brown created a new state constitutional rule and that the jury instructions given at his initial trial

violated this rule by relieving the prosecution of its burden to prove the elements of premeditation

and deliberation beyond a reasonable doubt. Therefore, the petitioner argues that his conviction of

first-degree murder was not supported by sufficient proof. After due consideration, we conclude that

Brown did not announce a new state constitutional rule, did not implicate any constitutional right,

is not retroactive, and may not serve as the basis for post-conviction relief. Accordingly, we

conclude that the petitioner’s complaint about the jury instructions given at his initial trial has been

waived because it was not raised on direct appeal and that his complaint about the sufficiency of the

evidence to support premeditation and deliberation was previously determined by this Court on

direct appeal. Accordingly, the decision of the Court of Criminal Appeals is affirmed.

Tenn. R. App. P. 11; Judgment of the Court of Criminal Appeals Affirmed

FRANK F. DROWOTA, III,J., delivered the opinion of the court, in which E. RILEY ANDERSON, C.J.,

ADOLPHO A. BIRCH JR., JANICE M. HOLDER and WILLIAM M. BARKER, JJ., joined..

Mark Stephens, John Halstead, and Paula R. Voss, Knoxville, Tennessee, for the appellant, David

Earl Miller.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Daryl J.

Brand, Associate Solicitor General; Randall E. Nichols, District Attorney General; and Robert L.

Jolley, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

W. Mark Ward, Memphis, Tennessee, for Amicus Curiae, Tennessee Association of Criminal

Defense Lawyers.
1

Comp lete descriptions of the evidence offered against Miller in the initial trial and in the new sentencing

hearing are containe d in this Court’s 1984 and 1989 published opinions. Resolution of the issues in this appeal does not

require ano ther summa ry of the proo f.

2Miller’s petition was filed in 1992. Accordingly, this post-conviction action is governed by the post-conviction

statute effective at that time, Tennessee Code Annotated sections 40-30-101 through -124 (repealed 1995).

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OPINION

I. Background

The petitioner, David Earl Miller, was convicted of first-degree murder for the May 1981

killing of 23-year-old victim, Lee Standifer.1 Upon finding that the murder was especially

heinous, atrocious, or cruel in that it involved torture or depravity of mind, the jury imposed a

sentence of death. This Court affirmed Miller’s conviction on direct appeal, but reversed the

sentence of death and remanded for a new sentencing hearing because the prosecution had been

erroneously permitted to introduce evidence about Miller’s prior arrests which had not resulted in

convictions. State v. Miller, 674 S.W.2d 279 (Tenn. 1984). In February 1987, a new sentencing

hearing was conducted, and the jury again sentenced Miller to death based upon its finding that

the murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of

mind. On direct appeal, this Court affirmed the sentence of death. State v. Miller, 771 S.W.2d

401 (Tenn. 1989). Thereafter, Miller filed a timely petition seeking post-conviction relief.2

Counsel for Miller presented his claims for post-conviction relief to the trial court. No witnesses

were called at the hearing; however, transcripts of the 1982 trial and the 1987 sentencing hearing

were introduced in support of Miller’s claims. The trial court denied Miller’s petition. Miller

appealed, raising eight issues, including his claims that the jury instructions given at his trial

relieved the State of its burden to prove premeditation and deliberation beyond a reasonable

doubt and that the evidence was insufficient to prove premeditation and deliberation beyond a

reasonable doubt. The Court of Criminal Appeals affirmed the trial court’s decision denying

post-conviction relief. Thereafter, we granted Miller’s application for permission to appeal and

now affirm the judgments of the trial court and the Court of Criminal Appeals.

II. Standard of Review

The standard of appellate review of post-conviction proceedings is familiar. We review

findings of fact de novo with a presumption that the findings are correct unless the evidence

preponderates against those findings. See Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001);

Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). We review questions of law de novo with

no presumption of correctness. Fields, 40 S.W.3d at 456-57.

III. Jury Instructions and Sufficiency of the Evidence 

Relying upon this Court’s decision in State v. Brown, 836 S.W.2d 530 (Tenn. 1992),

Miller raises two related issues. First, he alleges that the jury instructions given at his trial

relieved the State of its burden to prove premeditation and deliberation beyond a reasonable

doubt and therefore violated his right to due process under the United States Constitution. See In
3

Under the pre-1995 Post-Conviction Act, waiver applied “if the petitioner knowingly and understandingly

failed to present it for determination in any proceed ing before a court of competent jurisdiction in whic h the ground could

have been pre sented.” Tenn. Code Ann. § 40-30-112(b) (1)(repealed 1995). A ground for relief was considered

previously determined “if a court of competent jurisdiction had ruled on the merits after a full and fair hearing.” Tenn.

Code Ann. § 40-3 0-112(a ) (repealed 1995). See also House v . State, 911 S.W.2d 705, 710-11, 713-14 (Tenn. 1995)

(discussing wa iver and pr evious dete rmination). 

4

This statute provid ed that “[r]elief un der this chap ter shall be gra nted when th e conviction or sentence is void

or voidable because of the abridgement in any way of any right guaranteed by the constitution of this state or the

Constitution of the United States, including a right that was not recognized as existing at the time of trial if either

constitution req uires retrosp ective app lication of that righ t.”

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re Winship, 397 U. S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Miller also argues that the

prejudicial effect of these unconstitutional jury instructions is clear because the evidence was

insufficient for any rational trier of fact to find the essential elements of deliberation,

premeditation, and lack of heat of passion beyond a reasonable doubt. Miller argues that these

issues are proper grounds for consideration in a post-conviction proceeding because this Court’s

decision in Brown announced a new constitutional rule that must be retroactively applied because

it enhances the fact-finding process of the trial. See Meadows v. State, 849 S.W.2d 748, 754

(Tenn. 1993) (discussing the circumstances that will require retroactive application of new state

constitutional rules). Apparently recognizing that there is no precedent supporting his position,

Miller says that the Court of Criminal Appeals in this case and in prior decisions has dealt only

with the retroactivity of Brown’s disapproval and abandonment of the “premeditation can be

formed in an instant” jury instruction and has failed to address the retroactivity of the core issue

of Brown: how to properly define deliberation apart from premeditation. 

The State argues that Miller’s complaint about the jury instruction is waived because it

was not raised on direct appeal. See Tenn. Code Ann. § 40-30-112(b)(1) (repealed 1995).3

 The

State also argues that the sufficiency of the evidence to establish premeditation and deliberation

may not be raised in this post-conviction action because it was previously determined by this

Court in Miller’s direct appeal. See Tenn. Code Ann. § 40-30-112(a) (repealed 1995); Miller,

674 S.W.2d at 282-83. The State also argues that Brown did not announce a new state

constitutional rule, did not implicate any constitutional right, is not retroactive, and may not serve

as the basis for post-conviction relief. See Tenn. Code Ann. § 40-30-105 (repealed 1995);4

Harris v. State, 947 S.W.2d 156, 174 (Tenn. Crim. App. 1996). Finally, the State asserts that

even if these claims are considered on the merits Miller is entitled to no relief because the jury

instructions given at his trial accurately stated the law and because the evidence offered

sufficiently established premeditation and deliberation. 

We begin our analysis with Brown, in which this Court found that the evidence was

insufficient to establish deliberation and premeditation and modified the defendant’s conviction

from first- to second-degree murder. Id. at 537. In so holding, we reviewed many Tennessee

appellate court decisions and concluded that some of those decisions had blurred the distinction

between premeditation and deliberation – the essential elements of first degree murder. Id. at

537-44. We emphasized that “the courts of Tennessee should adhere to long-established rules of
5

See Tenn. Code Ann. § 39-13-202(a)(1) (1991 Repl.) (defining first-degree murder as the

"intentional, premeditated and deliberate killing of another"). The statute has since been amended and first-degree

murder is now defined as “a premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1)

(Supp. 2000). Proof of deliberation is no longer required.

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law and that we should abandon the modern tendency to muddle the line between first- and

second-degree murder.” Id. at 542-43. We found support for this view in the 1989 statute,5

which had included both premeditation and deliberation in the definition of first-degree murder. 

Id. As a result, we concluded that “it is prudent to abandon an instruction that tells the jury that

‘premeditation may be formed in an instant.’” Brown, 836 S.W.2d at 543. We also overruled

prior case law to the extent it had interpreted the fact of “repeated blows” to constitute sufficient

circumstantial evidence of premeditation and deliberation in and of itself. Id. at 543-44.

In Brown, contrary to Miller’s assertion, we did not announce a new rule of constitutional

law. In fact, we did not so much as refer to the state or federal constitution in our discussion of

the sufficiency of the evidence issue. We also did not declare or imply that the potentially

confusing “premeditation may be formed in an instant” instruction infringed upon a defendant’s

constitutional rights. Finally, we neither declared nor implied that the decision could or should

be applied to invalidate every first-degree murder conviction that had been previously obtained. 

Indeed, the summary in Brown indicates the straightforward and routine nature of our holding:

[W]e do not condone the homicide in this case, or the sustained abuse of the

defenseless victim, Eddie Brown. We simply hold that in order to sustain the

defendant’s conviction, the proof must conform to the statute. Because the state

has failed to establish sufficient evidence of first-degree murder, we reduce the

defendant’s conviction to second degree murder and remand the case for

resentencing.

Id. at 544 (emphasis added). In Brown we simply reiterated that Tennessee law had for many

years required proof of both premeditation and deliberation to sustain a conviction of first-degree

murder, and we repudiated any prior, aberrant decisions blurring that dual requirement. To avoid

future blurring or confusion, we abandoned the jury instruction that advises “premeditation may

be formed in an instant,” and emphasized that the fact of “repeated blows” is not sufficient

circumstantial proof in and of itself to establish premeditation and deliberation. Id.

The Court of Criminal Appeals has uniformly recognized that Brown did not create a new

constitutional rule which must be given retroactive application. See, e.g., Lofton v. State, 898

S.W.2d 246, 249 (Tenn. Crim. App. 1994), perm. app. denied (Tenn. Feb. 27, 1995); Harris v.

State, 947 S.W.2d 156, 174 (Tenn. Crim. App. 1996), perm. app. denied (Tenn. Feb. 3, 1997);

Alley v. State, 958 S.W.2d 138, 154 (Tenn. Crim. App. 1997), perm. app. denied (Tenn. Sept. 29,

1997); Thompson v. State, 958 S.W.2d 156, 173 (Tenn. Crim. App. 1997), perm. app. denied

(Tenn. Oct. 20, 1997). The Court of Criminal Appeals has also appropriately recognized that this

Court’s abandonment of a potentially confusing jury instruction does not automatically mean that
6

Amicus Curiae, Tennessee Association of Criminal Defense Lawyers, argues that waiver shou ld not app ly

because the law conc erning delib eration was in a state of great disa rray at the time o f Miller’s trial, and as a result,

diligent counsel co uld not have recognize d or asserte d the issue. W ith all due respect, we must disagree. Amicus

Curiae’s argument is b ased on two faulty propo sitions. First, there is no indication in Brown that the law actually was

in a state of great disarray. The strongest words used in the Brown decision were “blurred” and “muddled”.

Furthermore, a diligent attorney is more, not less, likely to raise a n issue relating to a n area of the la w that is in a state

of great disarra y. Indeed, it seems more r easonab le to conclud e that diligent co unsel is less likely to raise an issue when

he or she performs research and discovers that the law in an are a is well-settled and uniformly app lied. Amicus Curiae’s

arguments that waiver should not be applied are unpersuasive.

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prior use of the abandoned jury instruction was constitutional error. See, e.g., Lofton, 898

S.W.2d at 250. The petitioner’s attempt to distinguish the issues he raises in this case from these

prior decisions refusing to apply Brown retroactively is unpersuasive. Accordingly, consistent

with Brown itself, and with every other appellate court decision addressing the issue, we

conclude that Brown did not create a new state constitutional rule, that the decision is not to be

given retroactive application, and that use of the abandoned jury instruction did not infringe upon

or implicate any constitutional right.

Having so determined, it follows that Miller’s challenge to the jury instructions given at

his initial trial must fail. As the State points out, this issue has been waived because it was not

raised in his direct appeal to this Court.6

 See Tenn. Code Ann. § 40-30-112(b)(1) (repealed

1995).

Moreover, Miller’s related claim that the evidence was not sufficient to support the jury’s

finding of premeditation and deliberation was previously determined by this Court in his direct

appeal. See Tenn. Code Ann. § 40-30-112(a) (repealed 1995). The sufficiency of the proof as to

premeditation and deliberation was the second issue addressed in this Court’s opinion. See

Miller, 674 S.W.2d at 282. After stating that one of the defenses interposed at trial was that the

evidence was insufficient because the defendant was so intoxicated he could not commit

premeditated murder, we considered and rejected that claim, concluding that “[t]he jury was

properly charged on that issue and their verdict was approved by the trial judge.” Id. at 283. 

Clearly the precise issue of sufficiency of the evidence of premeditation and deliberation about

which Miller now complains was previously determined and rejected by this Court on direct

appeal. This issue cannot be revisited in this post-conviction proceeding.

IV. Conclusion

For the reasons stated herein, we conclude that Brown did not announce a new state

constitutional rule and is not retroactive. Therefore, Miller’s claim regarding the jury instruction

given at his initial trial is waived and his claim regarding the sufficiency of the evidence is

previously determined. With respect to the other issues raised by Miller, we affirm without

discussion the decision of the Court of Criminal Appeals. It appearing that the petitioner is

indigent, costs of this appeal are taxed to the State of Tennessee for which execution may issue if

necessary.
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___________________________________ 

FRANK F. DROWOTA, III, JUSTICE