FILED

April 29, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

DECEMBER SESSION, 1996

KENNETH WAYNE O’GUINN, ) C.C.A. NO. 02C01-9510-CC-00302

)

Appellant, )

)

) MADISON COUNTY

VS. )

) HON. WHIT LAFON

STATE OF TENNESSEE, ) JUDGE

)

Appellee. ) (Post-Conviction Relief)

FOR THE APPELLANT: FOR THE APPELLEE:

CHRISTOPHER M. MINTON CHARLES W. BURSON

MICHAEL J. PASSINO Attorney General and Reporter

Lassiter, Tidwell & Hildebrand

213 Fifth Avenue North DARIAN B. TAYLOR

Nashville, TN 37219 Assistant Attorney General

450 James Robertson Parkway

Nashville, TN 37243

JERRY WOODALL

District Attorney General

AL EARLS

Assistant District Attorney

P. O. Box 2825

Jackson, TN 38302

OPINION FILED ________________________

REVERSED AND REMANDED

JERRY L. SMITH, JUDGE
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OPINION

Appellant Kenneth Wayne O’Guinn was convicted of first degree murder

and aggravated rape. He received a death sentence for the murder conviction

and life imprisonment for the rape conviction. In this appeal, Appellant

challenges the trial court’s dismissal of his petition for post-conviction relief,

presenting the following issues for review: (1) whether the trial court erred in

finding that his exculpatory evidence claim was previously determined; and (2)

whether the trial court erred in finding that his sufficiency claim was waived.

After a review of the record, we remand to the trial court for

consideration of Appellant’s first claim in a manner consistent with this opinion.

I. FACTUAL BACKGROUND

The record reveals that, on January 22, 1985, a Madison County Circuit

Court jury convicted Appellant of the first degree murder and aggravated rape

of Sheila Cupples. The trial court imposed respective sentences of death and

life imprisonment. On direct appeal, the Tennessee Supreme Court affirmed

both the convictions and the sentences. See State v. O’Guinn, 709 S.W.2d

561 (Tenn.), cert. denied, 479 U.S. 871 (1986).

Following the dismissal of two post-conviction petitions, Appellant filed a

habeas corpus petition in the United States District Court for the Middle

District of Tennessee. He alleged the following grounds for relief:

(1) admission of his confession violated his Fifth

Amendment right against self-incrimination;
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(2) his trial counsel provided ineffective assistance;

(3) the evidence supporting his first degree murder

conviction was insufficient;

(4) the State elicited perjured testimony from Dianna

King;

(5) the State employed surprise testimony regarding the

victim’s vaginal wounds;

(6) the State withheld exculpatory evidence; and

(7) the Tennessee death penalty is unconstitutional. 

The district court found only the first two grounds meritorious and granted a

writ. See O’Guinn v. Dutton, 870 F. Supp. 779 (M.D. Tenn. 1993). On

appeal, a three-judge panel of the Sixth Circuit Court of Appeals reversed the

judgment of the district court and dismissed the writ. On re-hearing, the Sixth

Circuit, sitting en banc, affirmed the dismissal of the writ, thereby vacating the

judgment of the district court. See O’Guinn v. Dutton, 88 F.3d 1409 (6th Cir.

1996), cert. denied, 117 S. Ct. 742 (1997).

On April 18, 1995, Appellant filed a third post-conviction petition. This

petition asserted two claims. First, Appellant argued that the State withheld

the following exculpatory evidence: (a) evidence that Joanie Cupples, the

victim’s cousin, was involved in the murder; (b) evidence that Joanie Cupple’s

associates and mother were involved in the murder; (c) evidence that former

Jackson Police Officer Richard Harper was involved in the murder; (d)

evidence that the victim was killed because she provided information to the

police regarding drug trafficking; and (e) evidence that Appellant’s brother was

first indicted for the murder based upon eyewitness testimony. Second,

Appellant argued that the evidence presented at trial was legally insufficient to

support a conviction for first degree murder. The trial court dismissed the

petition without a hearing, finding that the first claim was previously
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determined and that the second claim was waived. Appellant appeals from

this dismissal. 

II. POST-CONVICTION RELIEF

In challenging the dismissal of his petition, Appellant alleges that the

trial court erred both in finding that his exculpatory evidence claim was

previously determined and that his sufficiency claim was waived.

In post-conviction proceedings, the defendant has the burden of proving

the claims raised in the petition by a preponderance of the evidence. Tidwell v.

State, 922 S.W .2d 497, 500 (Tenn. 1996); Wade v. State, 914 S.W.2d 97, 101

(Tenn. Crim. App. 1995). Findings of fact made by the trial court are

conclusive on appeal unless the evidence preponderates against the

judgment. Cooper v. State, 849 S.W .2d 744, 746 (Tenn. 1993); Butler v.

State, 789 S.W.2d 898, 899 (Tenn.1990). Thus, we are bound to affirm the

judgment unless the evidence in the record preponderates against the trial

court's findings. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).

According the Post-Conviction Procedure Act, the scope of a postconviction hearing extends to all grounds of the petitioner, except for those

grounds which have been previously determined or waived. Tenn. Code Ann.

§ 40-30-111. A ground for relief is previously determined “if a court of

competent jurisdiction has ruled on the merits after a full and fair hearing.” Id.

§ 40-30-112(a). A ground for relief is waived “if the petitioner knowingly and

understandingly failed to present it for determination in any proceeding before
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a court of competent jurisdiction in which the ground could have been

presented.” Id. § 40-30-112(b)(1). 

Furtherm ore, a petitioner must seek relief within three years of the date

of the final action of the highest state appellate court to which an appeal has

been taken. Id. § 40-30-102. However, in Burford v. State, 845 S.W.2d 204

(Tenn. 1992), and Sands v. State, 903 S.W.2d 297 (Tenn. 1995), the

Tennessee Supreme Court created an exception to this statute of limitations,

commenting as follows:

[I]n certain circumstances, due process prohibits the

strict application of the post-conviction statute of

limitations to bar a petitioner’s claim when the grounds

for relief, whether legal or factual, arise after the “final

action of the highest state appellate court to which

appeal is taken” -- or, in other words, when the grounds

arise after the point at which the limitations period would

normally have begun to run.

Sands, 903 S.W.2d at 301. The Supreme Court then established the following

three-step inquiry for analyzing specific factual situations.

(1) the court should determine when the limitations

period would normally have begun to run;

(2) the court should determine whether the ground for

relief arose after the limitations period would normally

have commenced; and 

(3) if the ground for relief is later-arising, the court

should determine whether a strict application of the

limitations period would effectively deny the petitioner a

reasonable opportunity to present his claim by weighing

the petitioner’s liberty interest in collaterally attacking a

constitutional violation against the State’s interest in

preventing the litigation of stale and fraudulent claims.

Id.

A. EXCULPATORY EVIDENCE
1

 Appellant argu es that the reco rd is in suff icient to show that he pers onally waive d the claim . This

point, whether accurate or not, is irrelevant. “Waiver in the post-conviction context is to be

determined by an objective standard under which a petitioner is bound by the action or inaction of

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Appellant first alleges that the trial court erred in finding that his

exculpatory evidence claim was previously determined. In making this finding,

the trial court relied upon a district court judgment that found the claim without

merit. See O’Guinn v. Dutton, 870 F. Supp. 779 (M.D. Tenn. 1993). On

appeal, however, the district court decision was reversed and vacated by the

Sixth Circuit. See O’Guinn v. Dutton, 88 F.3d 1409 (6th Cir. 1996), cert.

denied, 117 S. Ct. 742 (1997). By virtue of the fact that the Sixth Circuit

vacated the district court’s decision and the United States Suprem e Court

denied certiorari, the trial court’s finding that Appellant’s claim was previously

determined is erroneous. Therefore, as the State concedes, we must remand

to the trial court for consideration of this claim on the merits.

B. SUFFICIENCY OF THE EVIDENCE

Appellant next alleges that the trial court erred in finding that his

sufficiency claim was waived. Appellant argues that he could not have waived

this claim because of the holding in State v. Brown, 836 S.W.2d 530 (Tenn.

1992); involving the sufficiency of evidence with respect to “deliberation”, an

element of first degree murder. Brown was decided after Appellant’s direct

appeal. However, this Court has previously held that Brown did not create a

new constitutional rule relative to the sufficiency of the evidence in a first

degree murder case. See Miller v. State, No. 03C01-9409-CR-00336, 1995

WL 395842, at *3 (Tenn. Crim. App. July 6, 1995). 

Therefore, Appellant could have brought this sufficiency claim in his first postconviction petition. Because he failed to do so, this claim is waived.1
his attorney.” Hous e v. State, 911 S.W .2d 705, 7 11 (Te nn. 1995 ). While it is true that House was

not issued until three months after the trial court’s dismissal of Appellant’s claim, the concept of an

objective waiver sta ndard w as well-es tablished prior to that ru ling. See, e.g., Caruth ers v. State ,

814 S.W .2d 64 (T enn. Crim. Ap p. 1991); State v. Bishop, 731 S.W.2d 552 (Tenn. Crim. App.

1986).

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Accordingly, this case is reversed and remanded to the trial court for

consideration of Appellant’s first claim in a manner consistent with this opinion.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

JOE B. JONES, PRESIDING JUDGE

___________________________________

JOSEPH M. TIPTON, JUDGE