# FILED April 29, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON DECEMBER SESSION, 1996 KENNETH WAYNE O’GUINN, ) C.C.A. NO. 02C 01-9510-CC-00302 ) Appellant, ) ) ) MADISON COUNTY VS. ) ) HON. WHIT LAFON STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-Conviction Relief)

FOR THE APPELLANT : FOR THE APPELLEE : CHRISTOPHER M. MINTON CHARLES W. BURSON MICHAEL J. PASSINO Attorney General and Repor ter Lassiter, Tidwell & H ildebrand 213 Fifth Avenue North DARIAN B. TAYLOR Nashville, TN 37219 Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243 JERRY WOODALL District Attorney General AL EARLS Assistant District A

ttorney P. O. Box 2825 Jackson, TN 38302
OPINION FILED ________________________ REVERSED AND REMAND ED JERRY L. SMITH, JUDGE-2- 

## OPINION

Appellant Kennet h Wayne O’Guinn was convicted of first degree murder and aggravated r

ape. He received a death sentence f or the murder conv iction and lifeimprisonment for the rape conv iction . In thi s appeal, Appel lant challeng es the trial co urt’s dism issal of his p etition for po st-convictio n relief, prese nting th e follow ing issu es for re view: (1 ) wheth er the tr ial cou rt erred in finding that his

exculpator

y evidence cl aim was previous ly deter mined; and (2) whether the t rial cour t erred i n findin g that his suffic iency cl aim was waived.

After a rev iew of the r ecord, we remand to t he trialcourt for considerati on of Appellant’s fi rst clai m in a manner consist ent with t his opini on.

I. FACTUAL

BACKGROUND The record revea ls that, o n Jan uary 2 2, 198 5, a Ma dison Coun ty Circu it Court jury

convicted Appellant of the fir st degree murder and a ggravated ra pe of Sheila Cuppl es. The tri al court i mposed respective sentences of deat h and life i mprisonment. On dir ect appeal, the Tennessee Supreme Court af firmed both the conviction s and the senten ces. See State v. O’Guinn , 709 S.W.2d 561 (T enn.), cert. deni ed , 479 U.S. 87 1 (1986).
Following t he dismissal of two post- convicti on petiti ons, Appellan t fil ed a habe as co rpus p etition in the Un ited Sta tes Dis trict Co urt for th e Midd le District of T ennes see. He alleg ed the follo wing gro unds fo r relief: (1) adm ission of his confess ion violated his Fifth Amendment right against self- incrimin ation;-3- (2) his t rial coun sel provi ded ineffec tive assi stance; (3) the ev idence support ing his f irst degr ee murder conviction was insu fficient; (4) the State elic ited perj ured testi mony from Dianna King; (5) the State employed surprise test imony regardi ng the victim’s vagi nal wounds; (6) the State withhel d exculpator y evidence; and (7) the T ennes see de ath pen alty is unco nstitutiona l. The distri ct court f

ound only the f irst t

wo grounds meritorious and grant ed a writ. See O’Guinn v. Dutt on , 87 0 F. Supp. 779 ( M.D. Tenn. 1993 ). On appeal, a t hree-judge panelof the Six th Circui t Court of Appeals rever sed the judgm ent of the d istrict court an d dism issed the writ. On re-h earing, the Sixth Circuit , sitt ing en banc , affi rmed the dismissalof the wri t, ther eby vacati ng the judgm ent of the d istrict court. See O’Guinn v. Dutton , 88 F.3d 140 9 (6th Cir. 1996), cert. deni ed , 117 S. Ct. 742 (1997).

On A pril 18, 1 995, A ppella nt filed a third po st-con viction p etition. T his petition asse rted tw o claim s. First, A ppella nt argu ed tha t the Sta te withh eld the foll owing exculpat ory evidence: (a) evi dence that Joani e Cupples, the victim’s cous in, was involve d in the murd er; (b) e videnc e that J oanie Cupp le’s associates and mot her were involved in t he murder; (c) evidence that former Jackson Police Of

ficer Ri chard Harper was i nvolved i n the murder; ( d) evidence that

the vict im was kill ed because she provi ded informati on to the police re garding drug t raffi cking; and ( e) evidence t hat Appellant’s brother was first indict ed for the murder based upon eyewit ness testi mony. Second, Appe llant argue d that the e vidence presen ted at trial wa s legally insu fficient to support a convi ction fo r fir st degree murder. The trialcourt dis missed the petition withou t a hea ring, find ing tha t the first c laim w as pre viously-4-

determined and t hat the second cl aim was waived. Appellant appeal s from this dism issal.

II. POST-CONVICTI ON RELIEF In chall enging the di smissal of hi s petiti on, Appellant alleges t hat the trialcourt err

ed both in f inding t hat his exc ulpatory evidence cl aim was previousl y determined and t hat his suf ficien cy claim was wai ved.
In post-conv iction proceedings, the defendant has the burden of

proving the claim s raised in the petition by a prep ondera nce of the evidenc e. Tidwell v. State , 922 S.W .2d 497 , 500 (T enn. 19 96); Wa de v. State , 914 S.W.2d 97, 101 (Tenn. C rim. App. 199 5). Findings of fact m ade by the trial court are conclusive on appeal unless the evidence preponderates agai nst the judgm ent. Coop er v. State , 849 S.W .2d 744 , 746 (T enn. 19 93); Butler v. State , 789 S.W.2d 898, 899 (Tenn.1990) . Thus, we are bound t o affirm the judgment unless t he evidence i n the record pr eponderates agai nst the trial court's find ings. Black v. S tate , 794 S.W .2d 752, 755 (Tenn. Crim . App. 1990 ).

Accord ing the P ost-Co nviction P rocedu re Act, the scope of a postconviction hearing ext ends to all grounds of the pet itioner, except for those grounds which have been previousl y determined or waived. Tenn. Code Ann. § 40-30-111. A gr

ound for rel ief is

previousl y determined “ if a court of compe tent jurisdiction has ruled on the me rits after a full and fair hearing.” Id. § 40-30-112(a) . A ground for relief is waived “ if the pet itioner knowingly and understand ingly failed to present it for determ ination in any proce eding before-5-

a court of competent juri sdicti on in which t he ground could have been presented.” Id. § 40-30 -112(b)( 1).

Furtherm ore, a pe titioner mu st seek re lief within three years of the date of the fi nal acti on of the hi ghest stat e appellat e court to whi ch an appeal has been ta ken. Id. § 40-30-102. However , in Burford v. State , 845 S.W.2d 204 (Tenn. 1992), and Sand s v. State , 903 S.W.2d 297 (Tenn. 1995), the Tennessee Supreme C ourt created an exception to this statute of limitat ions, commenting as follows: [I]n cer tain ci rcumstances, due pr ocess prohibi ts the strict applicat ion of thepost-convi ction statute of limitat ions to bar

a petiti oner’s cl aim when the grounds for rel ief, whet her legal o r factual , arise af ter the “ final action of the highest

state appellate court to which appeal is taken” -- or , in other words, when the gr

ounds arise a fter the p oint at w hich th e limita tions p eriod w ould normally have begun to run. Sands , 903 S.W.2d at 301. The Supreme Court then establ ished the following three-step inquir

y for analyzi ng specific fact ual situati ons. (1) the cour

t should determine when the l imitati ons period would no rmally have begun to run; (2) the cour

t should determine whether t he ground for relief aro se afte r the lim itations period would norm ally have commenced; and (3) if the ground for relief is later-arising, the court should determi ne whether a strict appl icatio n of the limitations period wo uld effectively deny the p etitioner a reasonable opport unity to present hi s claim by wei ghing the petit ioner’s l iberty interest in coll aterall y attacki ng a cons titutiona l violation again st the S tate’s in terest in preventing the li tigation of stale and fraudulent cl aims. Id.

A. EX CULPATORY EV IDENCE1 App ellant argu es th at the reco rd is in suff icient to sh ow th at he pers ona lly waive d the claim . This point, whether accurat e or not, is irrel evant. “ Waiver in the post-convicti on context i s to be determined by anobjecti ve standard under which a petitioner is bound by the action or inacti on of -6- Appe llant first a lleges that the trial cou rt erred in findin g that h is exculpator

y evidence cl aim was previous ly deter mined. In making t his fi nding, the tri al court r

elied upon a di strict

court judg ment that foundthe clai m without merit. See O’Guinn v. Dutton , 87 0 F. Supp. 779 ( M.D. Tenn. 1993 ). On appeal, however , the district court deci sion was rever sed and vacated by the Sixth Circu it. See O’Guinn v. Dutton , 88 F.3d 1409 (6 th Cir. 199 6), cert. denied , 117 S . Ct. 74 2 (199 7). By virt ue of th e fact th at the S ixth Circ uit vacated the d istrict court’s decision and the United S tates Suprem e Court denie d certio rari, the trial cou rt’s findin g that A ppella nt’s claim was p reviou sly determined is

erroneous. Therefore, as t he State concedes, we must remand to the trialcourt for considerat ion of this cl aim on the merits.

B. SUFFI CIENCY OF T HE EVIDENCE Appe llant ne xt allege s that th e trial co urt erre d in find ing tha t his suffic iency cl aim was waived. Appellant ar gues that he coul d not have waived this cl aim because of the ho lding i n State v . Brown , 836 S.W.2d 530 (Tenn. 1992); inv

olving t he suffi ciency of evidence wit h respect to “deliber ation”, an eleme nt of first deg ree mu rder. Brown was decided after Appellant’ s direct appea l. Howeve r, this Cou rt has pre viously he ld that Brown did not create a new constitutional rule relative to the suffi ciency of the evi dence in a first degree murde r case. See Miller v. State , No. 03C01-9409-CR-00336, 1995 WL 39584 2, at *3 (T enn. C rim. App . July 6, 199 5). There fore, App ellant cou ld have b rought th is sufficienc y claim in h is first postconvicti on petiti on. Because he fai led to do so, this cl aim is waived. 1his attorney.” Hous e v. State , 911 S.W .2d 705, 7 11 (Te nn. 1995 ). W hile it is true that House was not issued until t hree months after the trial court’s dismissal of Appellant’s cl aim, 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. Cr im. Ap p. 1991) ; State v. Bishop , 731 S.W.2d 552 (Tenn. Crim. App. 1986). -7- Accordingly , this case is reversed and remanded to t he trialcourt for considerati on of Appellant’s fi rst clai m in a manner consist ent with t his opini on.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ JOE B. JONES, PRESI DING J UDGE

___________________________________ JOSEPH M. TIPTON, JUDGE