### IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE May 3, 2001 Sess

ion

DAVID EARL MILLER v. STATE OF TENNESSEE

Appeal by permissio

n from the Court o

f Criminal Appeals Criminal Court for Knox County No. 47700 Ray Jenkins, Judge

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

Wegranted petitioner, David Earl Miller’s application for permission to appeal to determine w hethe r this Court’s decision in State v. Brown , 836 S.W.2d 530 (Tenn. 1992) creat ed a new state constitutional rule regarding the elements of deliberation and premeditation. Petitioner claims that Brown created a newstate 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 an y constitution

al right, is not retroactive, and may not serve as the basis for pos t-co nviction relief. Accordingly, we conclude that the petitioner’s complaint about the jury instructions given at his initial trial has been waivedbecause it was not raised on direct appeal and that his complaint about the sufficiency of the evidence to support premeditation a nd deliberation was previously determined by this Court on direct appeal. Accordingly, the decision of the Court of Criminal Appeals is af firmed.

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

F RANK F. D ROWOTA , III, J., delivered the op inion of the court,

in which E. R ILEY A NDERSON , C.J., A DOLPHO A. B IRCH J R ., J ANICE M. H OLDER and W ILLI AM M. B ARKER , JJ., joined..

Mark Stephens, John Halste

ad, and Paula R. Voss, Knoxville, Tenne ssee, for the app

ellant, David Earl Miller.

Paul G. Summers, Attorne y General & Reporter; Mich

ael E. Moore, So

lici tor Gen

eral; D aryl J. Brand, Associate Solicitor General; Randall E. Nichols, District A ttorn ey Gener al; an d Robe rt L. Jolley, Jr., Assistant District Attorney General, for the appellee, State of Te nnessee.

W. Mark Ward, Memphis , Tennessee, for Amicus Curiae, Te

nnessee Associa

tion of Crimin a l Defense La

wyers.1 Comp lete descriptions of the evidence offered agai nst Miller in the ini tial trial and in the new sentencing hearing are containe d in this Cour t’s 1984 and 1989 published opinions . Resolut ion of t he issu es in t his appeal

does not require ano ther summa ry of the proo f.

2 Miller’s petition was filed i n 1992. Accordingly, this post-conviction acti on is governed by the post-convi cti on statute effecti

ve at that time, Tennessee Code Annotated sections 40-30-101 through -124 (repealed 1995).

-2- 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 e

specially 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 introd

uce evidence a

bout Miller’s prior

arrests which ha

d 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 ag ain sentenced Miller to death based upon its finding that the murder was especially heinous, atrocious, or cruel in that it involved torture or depra vity 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-convic tion 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 a t his trial relieved the Stat

e of its burden to pr

ove premeditatio

n and deliberatio

n beyond a r

easonable 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 a nd now affirm the jud

gments of the tria

l court and the Cour

t of Criminal Appea

ls.

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. Sta

te , 960 S.W.2d 572, 579 (T enn. 1997). We rev

iew questions of la

w 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 give n at his trial relieved the State of its burden to prove premedit

ation and deliber

ation beyon

d a reasonable doubt and therefore violated his right to due process under the United States Constitution. See In3 Under the pre-1995 Post-Conviction Act, waiver applied “if the peti tioner kn owingly a nd under standingly failed to present it for determination in any proceed ing before a court of co mpetent jur isdiction in whic h the ground could have been pre sente d. ” Tenn. Code Ann. § 40-30-112(b) (1)(repea led 1995). A ground for rel ief was consi

dered previously determined“if a court of co mpetent jur isdiction had ruled on the merits after a full and fair hearing.” Tenn. C ode A nn. § 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 becaus e of the abridgement in any way of any ri ght guaranteed by the constitut ion of this state or t

he Constit ution of the Uni

ted Stat es, inc luding a right that was not rec ognized as existin g at the ti me of trial

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

-3- 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 e vidence was insufficient for any rational trier of fact to find the essential elements of de liberation, premeditation, a

nd lack of heat of

passion bey

ond a reasonable

doubt. Miller arg

ues that these issues are proper grounds for consideration in a post-conviction proceeding beca use this Court’s decision in Brown

announced a new

constitutional rule

that must be retroa

ctively app

lied because it enhances the fact-finding process of the trial. See Meadows v. State , 849 S.W.2d 748, 754 (Tenn. 1993) (dis

cussing the circ

umstances that wil

l require retroa

ctive application

of new state constitutional rules). Apparently recognizing that there is no precede nt supporting his position, Miller says t

hat the Court of Crim

inal Appeals in this

case and in prior

decisions has dea

lt 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 argue

s that Miller’s comp

laint about the jury

instruction is waiv

ed 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 ra

ised in this post-con

viction action bec

ause it was previo

usly determ

ined by this Court in Miller’s direct appeal. See Tenn. Code Ann. § 40 -30-112(a) (re

pealed 1995); Miller
, 674 S.W.2d at 282-83.

The State also arg

ues that Browndid not announce a new state constitutional rule, did not implicate any constitutional right, is not retroactive, and may not se rve 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 T ennessee 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 of5 See Tenn. Code Ann. § 39-13-202(a)(1) (1991 Repl.) (defining first-

degree murder as the "intentiona

l, premeditat

ed and deliberate ki

lling of another"). The st atute has s

ince been amended and fi rst-degree murder is

now defin

ed as “a pre

meditat ed and int

entional killi ng of anot

her.” Tenn.

Code Ann. § 39-13-202(a)(1) (Supp. 2000). Proof of del iberati on is no l

onger requi

red.

-4- law and that we should abandon the modern tendency to muddle the line between first- a nd 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 potentiall

y confusing “premeditation may be formed in an instant” instruction infringe d upon a defendant’s constitutional rig

hts. Finally

, we neither dec

lared nor implied t

hat the decision c

ould or should be applied to invalidate every first-degree murde r conviction that had been previously obtained. Indeed, the summary in Brown indicates the straigh tforward and routine nat ure of our ho lding:

[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 sta te has failed to establish sufficient evidence of first-degree murder, we reduc e the defendant’s conviction to second degree murder and remand the case f or resentenci ng.

Id. at 544 (emphasis added). In Brown we simply reiterated that Tennessee law had for many years required proof of bothpremeditation and deliberation to sustain a conviction of first-degree murder, and we r

epudiated any

prior, aberran

t decisions blurrin

g that dual requ

irement. 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 Crimina

l Appeals has unif

ormly reco

gnized 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, 1 995); 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, 19

97). The Court of Cr

iminal Appeals has

also appropriate

ly recog nized that this Court’s abandonment of a potentially confusing jury instruction does not automatically mean that6 Amicus Curiae, Tennessee Association of Criminal Defense Lawyers, argu es that waiver shou ld not app ly

because the law conc erning delib erati on was in a sta t e 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 respec t, we must disagree. Amicus Curiae’s argument is b ased on two faulty propo sitions. First, there is no in dicati on in Brown that the l

aw actually

was in a state of g

reat disarr

ay. The stronges

t words used in t

he Brown decision

were “bl

urred” 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 see ms 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 tha t the law in an are a is well-settled and uniformly app lied. Amicus Curiae’s arguments tha

t waiver shoul

d not be applied are unper suasive.

-5- prior use of the abandoned jury instruction was constitutional error. See, e.g.

, Lofton , 898 S.W.2d at 250. The pe

titioner’s attempt

to distinguish the is sues he raises in t his case from the

se pri or d eci sio ns r efus ing t o ap ply 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 rig

ht.

Having so determined, it follows that Miller’s challenge to the jury instructions given a t his initial trial must fail. As the State points out, this issue has been waived because it was not raised in his direc

t appeal to this Cour

t. 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) (re

pealed 1995). Th

e 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 ins

ufficient beca

use the defenda

nt 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 a pproved 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. Thi s issue cann ot be revis ited in th is post-co nviction p roceeding.

IV. Conclusion For the reasons

stated herein, w

e 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 initia

l trial is waived an

d his claim rega

rding the suffic

iency of the

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

ision of the Court of

Criminal Appeals. I

t appearing tha

t the petitioner is indigent, costs of

this appeal are t

axed to the State of T

ennessee for wh

ich execution may

issue if

nece ssa ry.-6- ___________________________________ FRANK F. DROWOTA

, III , JUSTICE