           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE             FILED
                           JULY SESSION 1997
                                                     November 25, 1997

STATE OF TENNESSEE               )                  Cecil W. Crowson
                                 )    C.C.A. 01C01-9610-CR-00442 Clerk
                                                  Appellate Court
            Appellee,            )
                                 )    DAVIDSON COUNTY
v.                               )
                                 )    Hon. J. Randall W yatt, Jr., Judge
CECIL C. JOHNSON, JR.            )
                                 )    (Post-Conviction Relief)
            Appellant.           )
                                 )


FOR THE APPELLANT                     FOR THE APPELLEE

James F. Sanders                      Charles W. Burson
Neal & Harwell                        Attorney General & Reporter
2000 First Union Tower
150 Fourth Avenue North               Glenn R. Pruden
Nashville, TN. 37219                  Assistant Attorney General
                                      Criminal Justice Division
James G. Thomas                       450 James Robertson Parkway
Neal & Hartwell                       Nashville, TN. 37243-0493
2000 First Union Tower
150 Fourth Avenue North               John P Cauley
Nashville, TN. 37219                  Assistant Attorney General
                                      450 James Robertson Parkway
George H. Cate, III                   Nashville, TN. 37243-0493
Neal & Hartwell
2000 First Union Tower                Victor S. Johnson, III
150 Fourth Avenue North               District Attorney General
Nashville, TN. 37219                  Washington Square, Suite 500
                                      222 Second Avenue North
                                      Nashville, TN. 37201-1649

                                      Steve R. Dozier
                                      Assistant District Attorney General
                                      Washington Square, Suite 500
                                      222 Second Avenue North
                                      Nashville, TN. 37201-1649




OPINION FILED:___________________

AFFIRMED

WILLIAM M. BARKER, JUDGE
                                             OPINION

        The appellant, Cecil C. Johnson, Jr., appeals the Davidson County Criminal

Court’s dismissal of his second post-conviction petition. On appeal, he contends that:

(1) The trial court erred in finding that the evidence withheld by the prosecution at trial

was not material under Brady v. Maryland; (2) The trial court erred in failing to set

aside the appellant’s convictions because the jury instructions at trial did not properly

define the “reasonable doubt” standard; (3) The trial court erred in failing to set aside

the appellant’s two first-degree murder convictions because the jury instructions at trial

improperly merged the “premeditation” and “deliberation” elements of first degree

murder; and (4) The cumulative effect of the claims in the second post-conviction

petition, when viewed together with the claims previously asserted in the first petition,

calls for a new trial.

        After a careful review of the record, we find no error and affirm the judgment of

the trial court.

                                   FACTUAL BACKGROUND

        In 1981, the appellant was convicted by a jury of three counts of first degree

murder, two counts of assault with intent to commit murder, and two counts of armed

robbery. He was sentenced to death by the jury on each count of first degree murder

and he received consecutive life sentences on the three remaining counts. Our

supreme court affirmed his convictions and sentences in his direct appeal in 1982.1

The facts surrounding his offenses were described in the direct appeal as follows:

               The crimes for which appellant stands convicted were committed
        on July 5, 1980. There is evidence that on that day, at about 9:45 p.m.,
        appellant went to the convenience market on Twelfth Avenue South in
        Nashville, Tennessee, which was owned and operated by Bob Bell, Jr.
        Appellant pointed a gun at Mr. Bell and ordered him and Lewis Smith,
        who was in the store working on a boat motor at the request of Mr. Bell,
        to go behind the store counter. Mr Bell’s twelve year old son, Bobbie
        Bell, was already behind the counter.


        1
          Following our supreme court’s decision, the United States Supreme Court denied the
appellan t’s petition for w rit of certiorari. Johnson v. Tennessee, 459 U.S. 882 (1982).

                                                  2
        While appellant and his captives were behind the counter, a
woman and two children entered the market. Appellant concealed his
gun and told his captives to act naturally and to wait on the customers.
As soon as the customers left, appellant ordered Bobbie Bell to fill a bag
with money from the cash register; Bobbie obeyed. Appellant then
searched Smith and Bell, taking Smith’s billfold.
        At that moment, Charles House stepped into the market, and was
ordered out by appellant; House obeyed. Almost immediately thereafter,
appellant began shooting his captives. Bobbie Bell was shot first [and
killed]. Smith threw himself on top of Bobbie to protect him from further
harm, and was himself shot in the throat and hand. Appellant then
walked toward Bob Bell, who was on the floor behind the counter,
pointed the gun at Bell’s head and pulled the trigger. Fortunately, Bell
threw up his hands and the bullet hit him in the wrist, breaking it.
Appellant ran from the market.
        Bell got a shotgun from under the store counter, preparatory to
chasing appellant. He heard two gunshots outside the market. He looked
toward the front of the store and saw appellant standing beside an
automobile parked at the entrance. Bell chased after appellant. As he
passed the automobile, he saw that a cab driver and his passenger had
been shot. The passenger was later identified as Charles House, the
customer who had entered the market only moments before appellant
began shooting his captives and who was acquainted with appellant.
Both the cab driver, James E. Moore, and Mr. House died from a
gunshot wound.
        Appellant was arrested on July 6, 1980, as the result of
information given police officers by Bell immediately after the robberies
and murders. Subsequently, both Bell and Lewis Smith identified
appellant as the perpetrator of the crimes and testified to that effect at
the trial. Debra Ann Smith, the customer who came into the market with
the children, also [testified and] identified appellant and placed him
behind the store counter with Bell, Bell’s son, and Lewis Smith.
        In addition to this eyewitness testimony, appellant was tied into
the crimes by the testimony of Victor Davis, who had spent most of July
5, 1980, in the company with the appellant. During the police
investigation, Davis gave statements to the prosecution and to the
defense that tended to provide an alibi for appellant. In essence, Davis
said that he and appellant were together continuously from about 3:30
p.m. on July 5, 1980, until about midnight and that at no time did they go
to Bell’s market. However, four days before the trial, and after his arrest
for carrying a deadly weapon and for public drunkenness, Davis gave a
statement to the prosecution, which incriminated appellant. In the trial,
Davis, who was promised immunity from prosecution in the Bell affair,
testified in accord with his last statement.
        According to Davis, he and appellant left Franklin, Tennessee
about 9:25 p.m. and arrived in Nashville in the vicinity of Bell’s Market
shortly before 10:00 p.m. Appellant then left Davis’ automobile, after
stating that he was going to rob Bell and was going to try not to leave
any witnesses.
        Davis testified that he next saw appellant some five minutes later,

                                    3
         near appellant’s father’s house which was only a block or a block and a
         half from Bell’s Market. At that time, appellant was carrying a sack and a
         pistol. Appellant discarded the pistol as he got into Davis’s automobile
         and said, “I didn’t mean to shoot that boy.” Davis retrieved the gun and
         sold it the next day for $40.00.
                  Davis further testified that after he picked up appellant, they went
         directly to appellant’s father’s house, arriving a little after 10:00 p.m.
         There, in the presence of Mr. Johnson, Sr., appellant took money from
         the sack, counted approximately $200.00, and gave $40.00 of it to
         Davis.
                  Appellant took the stand in his own behalf and denied being in the
         Bell Market on July 5, 1980. His testimony as to events of the day
         generally was in accord with Davis’ testimony except for the crucial
         minutes before 10:00 p.m. when witnesses placed appellant in Bell’s
         Market. Appellant testified that he never left the Davis automobile on the
         trip from Franklin to his father’s house in Nashville, and that he arrived at
         his father’s house shortly before 10:00 p.m. Mr. Johnson, Sr., fixed the
         time of arrival of appellant at a few minutes before 10:00 p.m. by
         testifying that appellant arrived as a television program ended and the
         10:00 p.m. news came on. Appellant’s girl friend, who talked with
         appellant on the telephone while appellant was at his father’s home,
         [testified and] fixed the time as being ten to fifteen minutes before 10:00
         p.m. Appellant further testified that the money counted in the presence
         of his father was money he had won gambling in a street game in
         Franklin, Tennessee.

See State v. Johnson, 632 S.W.2d 542, 544-45 (Tenn. 1982).

         The appellant filed his first post-conviction petition in 1983 raising thirty two

grounds for relief. The trial court denied his petition and he subsequently appealed to

this Court. We affirmed the trial court’s judgment in part, but reversed and remanded

the case for resentencing on the first degree murder convictions. 2 In 1990, the

supreme court reversed this Court’s decision to remand for a new sentencing hearing,

reinstated the death sentences, and affirmed the denial of relief on the appellant’s

other alleged grounds.3

         The appellant filed his second post-conviction petition in February 1995 after



         2
         See Cecil C. J ohnso n v. State , No. 83-241-III (Tenn. Crim. App., at Nash ville, Jan. 20, 1988),
per. app. granted (Tenn . 1988).

         3
          See Johns on v. State , 797 S.W.2d 578, 579-582 (Tenn. 1990). After our supreme court denied
the appellant’s petition for a rehearing on January 14, 1991, the appellant filed a petition for Writ of
Hab eas Corp us in t he U nited State s Dis trict C ourt f or the Midd le Dis trict of Ten nes see . Tha t petitio n is
currently pending.

                                                          4
receiving information in 1992 pursuant to a request under the Tennessee Open

Records Act. In his petition, the appellant alleged that: (1) the prosecution

suppressed exculpatory and material evidence at trial, warranting a new trial under

Brady v. Maryland; (2) the jury instructions did not properly define the “reasonable

doubt” standard; (3) the jury instructions improperly merged the “premeditation” and

“deliberation” elements of first degree murder; and (4) the cumulative effect of the

claims in the second post-conviction petition, when viewed together with the claims

previously asserted in the first petition, called for a new trial. The appellant had the

burden of proving those allegations by a preponderance of the evidence. See McBee

v. State, 655 S.W.2d 191, 195 (Tenn. Crim. App. 1987). 4

        The trial court held an evidentiary hearing and found that: (1) the evidence

withheld by the prosecution at trial was not material under Brady v. Maryland; (2) the

jury instruction pertaining to “reasonable doubt” properly reflected the evidentiary

certainty required by “due process” in the federal and state constitutions; (3) the jury

instruction on “premeditation” and “deliberation” did not violate the appellant’s

constitutional rights; and (4) the past and current claims raised by the appellant did not

create a cumulative effect warranting a new trial.

        The judgment of the trial court is affirmed.

                                              ANALYSIS

        The appellant first contends that the evidence withheld by the prosecution at

trial was material and warrants a new trial under Brady v. Maryland. This issue is

without merit.

        At the evidentiary hearing, the appellant introduced seven documents, marked

as exhibits one through seven, to demonstrate a Brady violation. Exhibit one is a July

6, 1980 report by Detective Jerry Moore of the Nashville Metropolitan Police


        4
         If the appellant had filed his petition after May 10, 1995, he would have been subject to the
1995 Post Conviction Procedure Act. Tenn. Code Ann. §§ 40-30-201 -- 310 (1996 Supp.). Tennessee
Code Annotated section 40-30-210 (f) (1996 Supp.) requires petitioners to prove their allegations of fact
by clear and convincing evidence.

                                                    5
Department (“NMPD”) in which Robert Bell stated that the assailant had no facial hair.

Exhibits two through four concern separate police interviews of the eyewitness, Louis

Smith, taken between July 5 and July 11, 1980, in which Smith indicated that he did

not get a good look at the assailant.5 Exhibit five is a pleading from the file of the

District Attorney’s office in the case of State v. Louis Edgar Smith, No. C6175-A.

Exhibit six is a July 6, 1980 report by Detective William Robeck of the NMPD in which

Louis Smith describes several customers who entered Bell’s Market during the

robbery. Additionally, that report contains information regarding Smith’s ability to

identify the assailant from a photographic line up. Lastly, exhibit seven is a medical

report prepared by Doctor Robert Stein at the Baptist Hospital in which Doctor Stein

stated that Robert Bell had a history of “some mental instability.”

        The appellant relies on the landmark case of Brady v, Maryland6 to assert that

the State’s suppression of the evidence in exhibits one through seven violated due

process. In Brady, the United States Supreme Court held that the prosecution has a

constitutional duty to furnish the defendant with any exculpatory evidence concerning

the defendant’s guilt or innocence and possible punishment. See 373 U.S. at 86. To

establish a violation under Brady, the defendant must prove by a preponderance of

the evidence that the prosecution suppressed evidence at trial, the evidence was

favorable to the defendant, and the evidence was material.7

        In this case, the State concedes that the evidence contained in exhibits one

through seven was exculpatory, favorable to the appellant, and improperly suppressed

at trial. The issue on appeal is whether the evidence was material.


        5
          Exhibit two is a July 11, 1980 report by Officer J. Dobson of the NMPD in which Smith identifies
the assailant as a young black man, but claims that he did not see the assailant’s face. Exhibit three is a
July 5, 1980 report by Detective William Flowers of the NMPD in which Detective Flowers wrote that the
“Victim [Smith] advised that he could not describe suspect at this time but is willing to be reinterviewed at
a later date.” Exhibit four is a July 5, 1980 report by Officer John Patton of the NMPD indicating that
Sm ith did not ge t a good loo k at the s uspec t.

        6
            373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 2 15 (1963).

        7
          See United States v. Bagley, 473 U.S . 667, 105 S.Ct. 337 5, 87 L.Ed .2d 481 ( 1985); State v.
Edg in, 902 S.W .2d 387, 3 89-390 (Tenn . 1995).

                                                      6
         The United States Supreme Court established the standard for determining

materiality in United States v. Bagley. Evidence is material “if there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different.” See 473 U.S. at 682. The existence of

“reasonable probability” centers around whether the court has confidence in the

verdict of the case despite non-disclosure of the exculpatory evidence. See id. at 678.

The court must view the suppressed evidence collectively in the context of the entire

record to determine whether the evidence is material under Bagley.8

         In this case, we find that although the evidence in exhibits one through seven is

exculpatory and favorable to the appellant, the evidence when viewed collectively is

not material.

         The essence of the State’s case against the appellant was the testimony of

three eyewitnesses and the appellant’s friend, Victor Davis. 9 The jury heard the

testimony of Robert Bell, who was the owner of the market where the robbery and

murders took place. In his testimony, he described in detail how the assailant entered

the store and held him, his son, and Louis Smith at gun point before robbing and

shooting them. According to Bell, the assailant held them captive behind the check-

out counter while a few customers entered and left the store. The assailant told Bell

that he had nothing to lose and ordered Bell’s son, Bobbie, Jr., to give him the money

from the cash register. After filling a paper bag with money, the assailant robbed Bell

and Louis Smith before shooting each of them and Bobbie, Jr. with a .38 caliber

pistol.10

         8
         See Kyles v. Whitley, 514 U.S. ___, ___, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490, 505-08
(1995); United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 2401, 49 L.Ed.2d 342 (1976). The
Tennessee Supreme Court followed Bagley and Kyles in State v. Edg in, 902 S.W.2d 387, 390 (Tenn.
1995).

         9
           The trial record containing the transcripts of witness testimony was not made a part of the
reco rd in th is app eal. H owe ver, d ue to the p roce dura l histo ry and ma gnitu de of this c apita l case , we w ill
take jud icial notice of th e trial record .

         10
          Bullet fragments recovered from the victims were identified by Patrick Garland, a senior
firearms exam iner of the Tennessee B ureau of Investigation. Garland testified that the fragments were
consistent as having been fired from a .38 caliber revolver.

                                                            7
         At trial, Bell identified the appellant as the perpetrator of the crimes. He

emphasized that although he did not originally know the appellant’s name, he clearly

recognized him as a customer who had frequented the market in the months

preceding the robbery.11 Bell specifically remembered that the appellant had been in

the market three nights before the robbery and had helped another customer, Michael

Lawrence, purchase beer.12

         After the robbery, Bell identified the appellant, on four separate occasions, as

the perpetrator. First, when emergency crews began arriving at the crime scene, Bell

pointed Michael Lawrence out of a crowd of bystanders as the man who had been in

the store with the appellant three nights before the robbery. Bell testified he knew at

that time that the appellant was the same man who had just robbed his store.

Additionally, Bell positively identified the appellant as the assailant from a

photographic line up, a physical line up, and in his testimony at trial. According to Bell,

the appellant fit his description of the perpetrator being roughly 5' 10'’ and between

160 and 170 pounds. Bell stated that on the night of the robbery, the appellant was

wearing a dark shirt, dark pants, and a dark checkered sport coat.

         Bell’s pre-trial description of the assailant was generally consistent with the

description he provided at trial. However, in his July 6, 1980 statement given to

Detective Jerry Moore, Bell indicated that the assailant had no facial hair. The

appellant’s mug shot taken one day after the robbery revealed that the appellant had a

faint mustache and a goatee. Although the appellant never received a copy of Bell’s

statement to Detective Moore prior to trial, his defense counsel questioned Bell on the


         11
             Bell testified that he had seen the appellant in the store on numerous occasions. About four
months before the robbery, the appellant stopped by the market and told Bell that he had just returned
from Ohio. D uring a later visit, he told Be ll that he had gotten a jo b with the n earby Va nderbilt Ho spital.
Bell te stified that th e app ellant shop ped in the s tore a bou t three to fou r tim es a w eek and o ften w ore h is
hospital w ork cloth es.

         12
           Bell testified that on July 2, 1980, the appellant had been shopping in the store and was about
to lea ve wh en he let ano ther m an bo rrow som e cha nge to pu rcha se be er. Af ter the robb ery, Be ll
recognized the other man, Michael Lawrence, standing amongst a crowd of onlookers in the market
parking lot. Lawrence testified at trial that he had been in the store on July 2 when the ap pellant gave
him so me c hange for a bee r.

                                                           8
issue of facial hair. Bell explained that he focused on the assailant’s eyes during the

robbery and did not notice anything distinctive about facial hair.

         Another eyewitness, Louis Smith, testified for the State that he was in the store

when the robbery and murders occurred.13 His testimony corroborated the testimony

of Robert Bell and he provided details concerning the time sequence of the robbery.

According to Smith, the assailant spent almost fifteen minutes in the market during

which time he held Bell, Bobbie, Jr., and Smith at gun point behind the counter. Smith

remembered a few customers entering and leaving the store during the robbery;

however, he stated that he did not notice them closely because he was focused on the

assailant.14 Smith further remembered Bobbie, Jr. crying as the assailant ordered him

to take money from the cash register and place it into a paper bag. According to

Smith, the assailant took the money and then began firing his gun. Smith testified that

he dove on top of Bobbie, Jr. after he saw the assailant shoot him with the gun.

         At trial, Smith identified the appellant as the perpetrator of the robbery and

murders. He testified that the assailant was a black male about 5' 8" and 160 pounds.

However, before trial, it is apparent that Smith could not positively identify the

assailant. In interviews conducted by Officer Patton and Officer Dobson, Smith

indicated that he did not get a good look at the suspect. Moreover, in a report by

Detective Flowers, Smith advised that “he could not describe the suspect at this time

but is willing to be reinterviewed at a later date.” Smith testified at trial that he gave

statements to police officers after the robbery; however, the prosecution never



         13
           During the appellant’s trial, Louis Smith was under indictment on an unrelated charge of
aggrav ated rap e. See State v. Lo uis Edg ar Sm ith, No. C6175-A. The appellant claims that a defense
pleading in the Smith case was Brady evidenc e that the S tate shou ld have dis closed in his case . W e
find that an y pleading in th e Sm ith case w as pub lic record a nd not in the exclusive control of th e State.
Thus, the State’s failure to disclose the pleading to the appellant was not a Brady violation.

         14
          The appellant’s trial counsel cross-examined Smith on his ability to identify the various
customers who entered the store during the robbery. Smith testified in accordance with his pre-trial
statement to Detective William Robeck that he remembered a few customers entering and leaving the
store during the robbery. However, he adm itted that he could not accurately identify the customers
except for the last customer, Charles House. Smith’s statement to Robeck was never disclosed to the
appellant at trial. However, we find that the jury heard the substance of Smith’s statement when he was
cross- exam ined by def ense c ounse l.

                                                        9
disclosed those reports to the appellant.15

        On July 6, 1980, one day after the robbery, Detective William Robeck

presented a photographic line up to Smith. Robeck’s report indicates that Smith

picked photographs five and six as matching the assailant, with photograph number

four being a picture of the appellant.16 At trial, Smith testified that he picked two

photographs that closely fit his description of the assailant; however, the prosecution

never disclosed Detective Robeck’s report to the appellant.

        Additionally, before trial, Smith was asked to identify the perpetrator from a

physical line up. Smith testified that he believed person number two, the appellant, to

be the assailant. However, he stated that he could not make a positive identification

because the appellant had his hair “up in curls” at the line up, unlike his hair style at

the crime scene.

        The State’s third eyewitness was Debra Smith, a customer who entered the

store during the robbery. Ms. Smith testified that she went to Bell’s market on July 5,

1980 between 9:30 p.m. and 9:50 p.m. to pick up a cold beverage. When she arrived

at the market, she noticed a man standing in a phone booth and a cab parked out

front with the driver waiting in the front seat. Upon entering the store, she observed

Robert Bell, Bobbie, Jr., Louis Smith, and the appellant standing behind the counter.

She testified that she knew the appellant from having seen him on prior occasions in

another convenient store. She further stated that she had visited in the appellant’s

home in the past and had gone to high school with the appellant’s older brother.

        According to Ms. Smith’s testimony, she knew that a robbery was in progress

when she payed for her beverage at the check-out counter. She stated that although



        15
           After Smith’s direct examination, the State supplied defense counsel with a seventeen page
transcript of a tape-recorded statement given by Smith on July 11, 1980. The recording contains
statements by Sm ith concerning the events of the robbery and descriptions of the assa ilant. However,
the reco rding con tains no info rma tion regard ing other s tatem ents that S mith ga ve to the po lice.

        16
           At a pre-trial suppression hearing in 1981, Smith testified that he picked photographs four and
six as ma tchin g the ass ailant . The appe llant d id not cros s-ex am ine S mith at trial r ega rding this
discrep ancy.

                                                    10
she did not see the appellant’s gun, she noticed Bobbie, Jr. crying as he handed her

the change from her purchase. She further testified that she immediately left the store

and returned to her boyfriend’s house without calling the police. Besides telling her

sister about the robbery, she did not communicate her knowledge of the incident until

police contacted her on July 15, 1980. She explained at trial that she kept quiet

because she knew the appellant and she did not want to get involved.

       During cross-examination, Ms. Smith expressed difficulty in identifying Louis

Smith as the fourth man in the market. She admitted that she originally thought that

Smith was the appellant’s accomplice in the robbery. She stated that she

remembered seeing Smith behind the counter with the appellant; however, she

identified Smith as a black male. The appellant’s counsel reminded her of her earlier

testimony during direct examination in which she stated that Smith was Caucasian.

       One of the State’s key witnesses at trial was Victor Davis, a close friend of the

appellant. Davis was originally listed as an alibi witness for the defense. However, at

trial, Davis testified for the prosecution concerning his activities with the appellant

leading up to the events at Bell’s Market. Davis testified that he and the appellant had

gone to Franklin, Tennessee during the afternoon on July 5, 1980. While in Franklin,

the two men picked up chicken at a local KFC and spent time gambling at a hangout

near the Franklin high school. Davis testified that they went back to the KFC around

9:00 p.m. that evening, but the restaurant was already closed. While sitting in the

KFC parking lot, the appellant told Davis that he would have robbed the restaurant if it

had been open. Davis stated that he noticed the appellant carrying a dark .38 caliber

pistol during their time in Franklin. He also remembered that the appellant was

wearing a black shirt and denim jeans.

       Davis testified that he was having car trouble on July 5, but that he and the

appellant returned to Nashville before 10:00 p.m. Davis estimated that the return trip

from Franklin took them about forty-five minutes. When the two arrived in Nashville,

Davis dropped the appellant off a few blocks from Bell’s Market. Davis testified that

                                            11
as the appellant was exiting the car, he told Davis that “he was going to rob Bob Bell”

and “was going to try not to leave no witnesses.”

         Davis testified that he did not see the appellant again until about five minutes

after the appellant left his car. Davis explained that he observed the appellant walking

in the direction of his home with a paper bag in one hand and a pistol in the other.

Davis stopped his car and picked up the pistol which the appellant had thrown on the

ground. The two men then proceeded to the appellant’s father’s house, arriving

shortly after 10:00 p.m.17 Davis testified that, during their visit, the appellant counted

about two hundred ($200) dollars from the paper bag and gave forty dollars ($40) of

the money to Davis. While handling the money, the appellant told his father that he

had been gambling in Franklin, Tennessee. The appellant then called his girlfriend on

the telephone before leaving with Davis to pick up some beer. Davis testified that the

appellant made only one comment that evening concerning his involvement in the

robbery. As Davis and the appellant were leaving his father’s home, the appellant told

Davis that “he didn’t mean to shoot that boy.”

         During cross-examination, the appellant’s counsel attempted to impeach Davis’

testimony by emphasizing that Davis was originally a witness for the defense.18 Davis

admitted that he had never disclosed the incriminating facts against the appellant until

after his arrest on the Saturday before trial. 19 He explained that he initially withheld

the information because he did not want to get involved in the case against the

appellant.20 He also expressed fear that he would be considered an accomplice to the


         17
         Davis was certain of this time frame because he remembered seeing the ten o’clock news
program on T.V. at the appellant’s father’s house.

         18
            In pre -trial s tatem ents given to po lice inv estig ators and t he pu blic de fend er’s o ffice , Dav is
originally explained that he and the appellant had driven from Franklin, Tennessee straight to the
appellant’s father’s house in Nashville. The defense planned to use Davis to establish an alibi for the
appellan t.

         19
           On th e Sa turda y befo re the appe llant’s trial, D avis w as ar reste d by po lice fo r pub lic
drunkenness and as a suspect in an unrelated robbery. Information concerning the outcome of that
arrest wa s not m ade a pa rt of the rec ord in this ap peal.

         20
         According to Davis, he and the appellant had agreed before trial to keep their stories
consistent regarding the events on July 5, 1980.

                                                           12
crimes at Bell’s Market. Thus, he testified that he did not come forward with complete

information about the case until the State promised him immunity for his testimony.

         The appellant argues that he could have impeached both Robert Bell and Louis

Smith if the prosecution had properly disclosed the exculpatory evidence contained in

exhibits one through seven.21 We agree that the suppressed evidence would have

strengthened the appellant’s ability to cross-examine those two eyewitnesses.

However, after considering that evidence collectively with the record, we have

complete confidence in the verdict.

         The record reflects that three eyewitnesses separately identified the appellant

as the perpetrator of the crimes. Specifically, Robert Bell and Debra Smith both

recognized the appellant from past experiences and knew without a doubt that he was

the assailant in Bell’s Market. Although Bell’s and Louis Smith’s pre-trial descriptions

of the assailant were flawed, their testimony at trial was strengthened by Victor Davis,

who placed the appellant at Bell’s Market during the time of the robbery. We find that

the appellant had full opportunity to impeach the testimony of Davis without disclosure

of the Brady evidence. However, Davis’ testimony concerning the events before and

after the robbery was uncontroverted.

         In light of Davis’ testimony and the testimony of the corroborating eyewitnesses,

we have confidence in the verdict even though the prosecution withheld exculpatory

evidence. We, therefore, find no reasonable probability that the results of the case

would have been different if the State had disclosed that evidence to the appellant.

                                                           II.

         The appellant next contends that the trial court erred in failing to set aside his


         21
             The appellant also argues that he could have impeached the testimony of Debra Smith if the
State ha d prope rly disclosed the July 6, 19 80 repo rt by Detec tive Robe ck. In that re port, Lou is Sm ith
provided vague descriptions of the customers who entered Bell’s Market during the robbery. The
appellant contends that he could have used Smith’s statements to challenge Ms. Smith’s testimony
concerning her presence in the market on that evening. The record, however, reflects that Smith never
testified that Ms. Smith was a customer in the market during the robbery. Moreover, Smith admitted at
trial tha t he c ould n ot cle arly ide ntify an y cus tom er ex cep t Cha rles H ous e. Th us, w e find that S mith ’s
statements to Detective Robeck would have provided the appellant with little assistance in the cross-
exam ination of D ebra Sm ith.

                                                          13
convictions because the jury instructions at trial did not properly define the

“reasonable doubt” standard. He specifically argues that the phrases “moral certainty”

and “let the mind rest easily” in the instructions allowed the jury to convict him on a

lower standard of proof in violation of the decisions in Cage v. Louisiana22 and Victor

v. Nebraska.23 This issue is without merit.

         In this case, the trial judge instructed the jury on reasonable doubt as follows:

                 Reasonable doubt is that doubt engendered by an investigation of
         all the proof in the case and an inability, after such investigation, to let
         the mind rest easily as to the certainty of guilt. Reasonable doubt does
         not mean a captious, possible, or imaginary doubt. Absolute certainty of
         guilty is not demanded by the law to convict of any criminal charge, but
         moral certainty is required as to every proposition of proof requisite to
         constitute the offense.

The appellant concedes that this Court has previously upheld the constitutionality of

similar jury instructions.24 However, he requests this Court to re-examine the

“reasonable doubt” issue in light of Rickman v. Dutton.25

         We initially find that the appellant’s claim is time-barred by the three year

statute of limitations in Tennessee Code Annotated section 40-30-102 (repealed

1995).26 The appellant first raised the “reasonable doubt” issue in his second post-

conviction petition filed in February 1995, under the pre-1995 Post Conviction

Procedure Act. Accordingly, almost five years elapsed between the United States

Supreme Court’s ruling in Cage and the appellant’s second post-conviction petition.

         We find that since the Supreme Court’s decision in Cage, there has been no


         22
              498 U.S. 39, 41, 111 S.Ct. 328, 329-30, 112 L.Ed. 2d 339 (1990).

         23
              511 U .S. 1, __, 11 4 S.Ct. 12 39, 1247 -48, 127 L.Ed. 2d 5 83 (199 4).

         24
              See e.g. PettyJohn v. State , 885 S.W .2d 364 ( Tenn . Crim. A pp. 1994 ), per app. denied (Tenn.
1994).

         25
              864 F.S upp. 686 (M.D. T enn. 199 4), appeal docketed, No. 94-6 232 (6th Cir. Oct. 3 , 1994).

         26
             In its brief, the State argues that the appellant has waived any challenge to the definition of
“rea son able d oub t” in the jury ins truct ions by failin g to ra ise th e issu e at tria l, on dir ect a ppe al, or in his
first p ost-c onvic tion p etition . W e find , how ever , that th e app ellant ’s firs t opp ortun ity to rais e this
particular issue was not until the United States Supreme Court decided Cage on Nov emb er 13, 19 90.
Therefore, we find no waiver on this issue. However, although not raised by either party on appeal, we
find it a ppro priate to de term ine w heth er the issue is tim e bar red b y the th ree- year s tatute of lim itation s in
Tennesse e Code Anno tated section 40-30-102 (repealed 1995 ).

                                                             14
subsequent constitutional rule on “reasonable doubt” jury instructions to warrant an

exception to the three-year statute of limitations. See Burford v. State, 845 S.W.2d

204, 208-210 (Tenn. 1992). The appellant’s reliance on Victor v. Nebraska and

Rickman v. Dutton does not affect our decision.

         In Victor, the United States Supreme Court readdressed the use of the “moral

certainty” phrase in jury instructions. The Court reasoned that the phrase “moral

certainty” may have lost its historical meaning and that modern juries might interpret

“moral certainty” to mean something less than the high level of determination

constitutionally required in criminal cases. However, the Court in Victor did not

espouse a new constitutional rule concerning the use of “moral certainty” in jury

instructions. Instead, the Court merely expressed criticism regarding the continued

use of the “moral certainty” phrase.

         The appellant also relies on Rickman v. Dutton, a decision from the United

States District Court for the Middle District of Tennessee. In Rickman, the district

court held that a jury instruction containing the phrases “moral certainty” and “mind

rest easily” suggested to a reasonable juror a lower burden of proof than is required by

constitution. See 864 F.Supp. at 709. Although we acknowledge that the district

court’s ruling in Rickman pertained to a jury instruction similar to the one in the

appellant’s case, we are not bound by decisions of the district court.27

         Moreover, this Court and the Tennessee Supreme court have specifically

addressed and upheld the constitutionality of jury instructions similar to the one in this

case.28 We, therefore, conclude that, even if the appellant’s claim were not time

barred, his contention is without merit. The reasonable doubt instruction given at the


         27
        See State v. Jones, 598 S.W .2d 209 ( Tenn . 1980); Mauric e Book er v. State , No. 01C01-9606-
CC-00271 (T enn. Crim. App. at Nas hville, June 30, 1997).

         28
           See State v. Nic hols , 877 S.W .2d 722 ( Tenn . 1994); PettyJohn v. State , 885 S.W.2d 364, 365-
66 (Te nn. Crim . App. 199 4), per app. denied (Tenn . 1994); Mauric e Book er v. State , No. 01C01-9606-
CC -002 71 (T enn . Crim . App . at Na shville , Jun e 30, 1997 ). Add itiona lly, the U nited State s Six th Cir cuit
Court of Appeals has recently upheld the constitutionality of reasonable doubt instructions containing the
phrases “m oral certainty” and “mind rest easily.” See Aus tin v. B ell, No. 86-00293 (6th Cir. October 2,
1997).

                                                         15
appellant’s trial properly reflected the standard of proof required by the state and

federal constitutions.

                                              III.

       The appellant next contends that the trial court erred in failing to set aside his

two convictions of first degree murder because the jury instructions at trial improperly

merged the “premeditation” and “deliberation” elements of first degree murder. He

argues that the merger of those elements in the jury charge violated his constitutional

rights as set forth in State v. Brown, 836 S.W.2d 530 (Tenn. 1992).

       This issue is without merit.

       The jury instruction on the elements of first degree murder included the

following in pertinent part:

               (4) that the killing was premeditated. This means that the intent to
       kill must have been formed previous to the act itself. Such intent to
       design to kill may be conceived and deliberately formed in an instant. It
       is not necessary that the purpose of kill[ing] pre-exist in the mind of the
       accused for any definite period of time. It is sufficient that it preceded
       the act, however, short the interval.

The appellant contends that the rule in State v. Brown should apply retroactively to

the jury instruction given at his trial in 1982.

       In Brown, the Tennessee Supreme Court held that courts should abandon the

use of jury instructions which dictate that “premeditation can be formed in an instant.”

See id. at 543. The Court reasoned that such an instruction on premeditation might

cause juror confusion since the jury must also be instructed on deliberation. As the

Court acknowledged, the element of deliberation cannot be formed in an instant, but

requires some interval of time.

       We agree with the appellant that if applied retroactively, the rule from Brown

would entitle him to relief on his first-degree murder instruction. However, this Court

has previously held that Brown did not create a new constitutional ground for relief in




                                              16
post-conviction proceedings.29 To the contrary, in previous cases, this Court has ruled

that “the mere fact that such an instruction has been abandoned as confusing does

not necessarily mean that its previous use equated with a due process violation

rendering a first degree murder conviction void.”30 The rule in Brown is to be applied

prospectively, not retroactively.

        We, therefore, conclude that the appellant is not entitled to relief based upon

his first-degree murder instruction.

                                                       IV.

        The appellant next contends that the cumulative effect of the claims in his

second post-conviction petition, when viewed collectively with the claims asserted in

his first petition, calls for a new trial. This issue is without merit.

         In the appellant’s first post-conviction petition, he raised thirty two grounds for

relief. The trial court, as affirmed by our supreme court, denied relief on all grounds.

In his second petition, the appellant raised four new grounds for post-conviction relief.

The trial court determined that the issues raised in that petition were without merit; and

on appeal, we are affirming the judgment of the trial court. Therefore, we find no

cumulative effect or error sufficient to warrant a new trial.

         Based on the foregoing, the judgment of the trial court is affirmed. Unless

otherwise stayed by a court of competent jurisdiction, the appellant’s sentences of

death shall be carried out on March 5, 1998.




        29
            See Phillip Rex S pight v. State , No. 02-C-01-9501-CR-00034 (Tenn. Crim. App., at Jackson,
Novem ber 15, 1 995), per app. denied (Tenn. 1996). Relief requested in a post-conviction petition may
be granted only when the petitioner’s sentence or conviction is void or voidable because it contravenes a
state or fe deral con stitutional right. See Tenn . Code A nn. § 40- 30-105 (repeale d 1995 ); see also State
v. Neal, 810 S.W .2d 131 (Tenn. 1991).

        30
           See Phillip Rex S pight v. State , No. 02-C-01-9502-CR-00034, slip op. at 7 (quoting John
W ayne Slate v. State , No. 03-C -01-CR -00014 (Tenn . Crim. A pp., at Kno xville, April 27, 19 94), per. app.
denied, concu rring in resu lts only (Ten n. 1994) ); State v. Willie Bacon, Jr., No. 116 4, (Ten n. Crim . App.,
at Knox ville, Aug. 4, 19 92); per. app. denied (Tenn. 1992).

                                                       17
                                   ____________________________
                                   WILLIAM M. BARKER, JUDGE




CONCUR:


___________________________
JOHN H. PEAY, JUDGE


___________________________
JERRY L. SMITH, JUDGE




                              18
