             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE                  FILED
                           JUNE 1994 SESSION
                                                           November 8, 1996

                                                           Cecil W. Crowson
                                                          Appellate Court Clerk
JAMES J. BENSON,                )
                                )
             Appellant,         )     No. 01C01-9401-CC-00026
                                )
                                )     Williamson County
v.                              )
                                )     Hon. Donald Harris, Judge
                                )
STATE OF TENNESSEE,             )     (Post-Conviction)
                                )
             Appellee.          )



For the Appellant:                    For the Appellee:

William M. Leech, Jr.                 Charles W. Burson
William H. Farmer                     Attorney General of Tennessee
511 Union Street                             and
Nashville, TN 37219-1760              Amy L. Tarkington
                                      Assistant Attorney General of Tennessee
                                      450 James Robertson Parkway
                                      Nashville, TN 37243-0493

                                      Joseph D. Baugh, Jr.
                                      District Attorney General
                                      Williamson County Courthouse
                                      P.O. Box 937
                                      Franklin, TN 37065-0937




OPINION FILED:_________________


AFFIRMED

Joseph M. Tipton
Judge




                                 OPINION
              The petitioner, James J. Benson, appeals as of right from the W illiamson

County Circuit Court's denial of post-conviction relief. He is presently in the custody of

the Department of Correction, serving as a Range II, multiple offender, an effective

sentence of one hundred and twenty-eight years for convictions of two counts of

aggravated kidnaping and one count each of armed robbery, conspiracy, and accessory

before the fact to armed robbery, receiving a sentence of sixty years for each of the

crimes except the conspiracy, for which he received a sentence of eight years. The

convictions and sentences were affirmed on direct appeal on September 7, 1987, and

reaffirmed on a petition to rehear on February 16, 1990. State v. Bobby Mitchell,

Richard Cook, and James Benson, W illiamson County, No. 87-185-III (Tenn. Crim. App.

Sept. 27, 1989), app. denied, (Tenn. April 2, 1990).



              The petitioner asserts that the trial court erred in its denial because he

was denied his right to a fair trial before an impartial judge. He asserts that he is entitled

to his convictions being vacated because:

                          (1) The trial court erred in finding that the petitioner
              did not carry his burden of proving that the trial judge in his
              original trial solicited a bribe from him during the pendency of
              his prosecution.

                        (2) The trial court erred in finding that the petitioner
              knowingly and voluntarily waived the claim of solicitation of a
              bribe by not raising it prior to his trial.

                        (3) The trial court erred in applying the harmless
              error standard to the bribe solicitation in this case.




                                      BACKGROUND

              The petitioner's convictions arose out of an October 22, 1985, incident in

which two armed masked men entered the home of George Khoury, a well-known

Davidson County jeweler who resided in W illiamson County, and held the Khoury family

at gunpoint. W hile one of the men remained with the Khoury family, the other drove Mr.

Khoury to his jewelry store in the Green Hills area of Davidson County and took

                                               2
$350,000.00 worth of jewelry from the store's inventory. Upon returning to the Khoury

home, the two armed men bound the family with duct tape and took another $35,000.00

worth of jewelry from Ms. Khoury, $40.00 from the home safe, and $70.00 from Mr.

Khoury's billfold.




               An informant, to whom one of the petitioner's codefendants had given a

watch from the Khoury jewelry store, informed investigators of the identity of the three

men who were involved in this crime. On November 1, 1985, after seeing Mr. Benson

apparently loading something into the car at his home, Davidson County officers made a

warrantless stop of his car. From the car the officers seized a pair of sunglasses, a

pistol and four motel receipts from motels located in Knoxville and Chattanooga,

Tennessee, Chamblee, Georgia, and Ft. Lauderdale, Florida. A search warrant was

obtained for the petitioner's residence. Officers found no jewelry, but confiscated a

Gray sweatshirt and brown cotton work gloves which were later identified as being worn

by one of the men involved in the robbery.




                         All three codefendants were charged in both Davidson and

W illiamson Counties with offenses growing out of this robbery. By consent, all three

were tried jointly before Judge Sterling Gray, Jr., who sat by interchange in W illiamson

County. On June 6, 1985, petitioner's counsel filed motions to suppress the physical

evidence taken from his automobile. Hearings were held on these motions on July 11,

July 31, and August 4, 1986. On December 8, 1986, some four months later, Judge

Gray denied all of the petitioner's motions. The petitioner's case went to trial, the jury

found him guilty of the aforementioned offenses, and Judge Gray sentenced the

petitioner to an effective sentence of 128 years.




               In October of 1985, the T.B.I. initiated an investigation concerning

allegations of bribery and corruption on the part of Judge Gray and his court officer, Irvin



                                              3
Oten. The investigation resulted in indictments being returned against Judge Gray and

Oten, and on November 17, 1987, Judge Gray offered his resignation. On May 19,

1988, Oten pled guilty to one count of aiding and abetting bribery of a judicial officer. He

received a three-year prison sentence which was suspended, and he was placed on

probation for three years. On January 19, 1988, Judge Gray fatally wounded his wife

and committed suicide. The case was officially closed on June 27,1989.




                                   POST-CONVICTION HEARING




                At the post-conviction evidentiary hearing, the petitioner testified that on

August 4, 1985, Court Officer Irvin Oten met him in the restroom of the W illiamson

County Courthouse and initiated a conversation by telling him that he looked like he

needed a little help. The petitioner told him that yes, he guessed he did, and Oten

replied that "everything has a price." W hen the petitioner questioned him further, Oten

responded, "$30,000.00 in jewelry."




                The petitioner testified that his lead attorney1 had noticed him talking with

Oten and had become extremely upset, warning the petitioner to stay away from Oten.

The petitioner admitted that he had not told his attorneys what Oten had said to him. He

then testified that later that day, Oten had again followed him into the bathroom and had

given him a piece of paper with the phone number of a grocery store where he could be

reached after hours. Counsel again noticed the interaction, and, according to the

petitioner, "blew his stack," informing the petitioner that he would "get off" the case if the

petitioner had any other contact with Oten.



                The petitioner testified that some two weeks later, out of curiosity, he had

called the number given to him by Oten but that Oten had not been there and the


        1
          The petitioner was represented by two partners in a Knoxville law firm . References will be to the
lead attorney or counsel and to cocounsel.

                                                     4
petitioner had not left a name or number. He then testified that on November 19, 1986,

he had received a message while at the Dayton Golf and Country Club that Judge Gray

had called for him and had asked that the petitioner return his call at 8:00 that evening.

The petitioner stated that he had called Judge Gray from a Chinese restaurant in

Chattanooga that evening and that Gray had asked him if he would "be able to handle

the business informed by Oten." According to the petitioner, he told Gray that he did not

have the money and Gray responded that he should think about it because the charges

against him were serious and he had not yet ruled on the petitioner's motions. The

petitioner testified that he had previously known Gray because his ex-wife had been a

court reporter for Judge Gray and that he had spoken with Gray over the phone on

several occasions when Gray had called for his ex-wife.



              The petitioner said that Gray had called the petitioner's mother's home on

the morning of December 19, 1986, and had asked that the petitioner call him. The

petitioner returned the call from his aunt's home, and an exhibit of the aunt's phone

records was introduced into evidence to substantiate the call. The petitioner stated that

Gray had reminded him that he would be going to court the following month and that

help could still be had. Gray asked if the petitioner had any jewelry because he would

like to give his wife some jewelry for Christmas. The petitioner denied having any

jewelry, and Gray then asked for half of the money that he supposed the petitioner had

gotten for the jewelry. Again the petitioner told Gray that he had no money.



              The petitioner testified that he had no other contact with Gray or Oten until

the trial began on January 12, 1986. W hen questioned as to why he had not told his

attorneys about the bribe solicitation, he stated that he had been scared that his

attorneys would not believe him and might withdraw from his case, as one of the

attorneys had earlier threatened. He then testified that on November 7, 1987, after his

appeal had been briefed and argued but not decided, he had spoken with another of his

attorneys and had told him that he had indeed been solicited for a bribe by Oten and

                                             5
Gray. He stated that the attorney had told him that he would discuss the case with his

other attorney.



              On cross-examination, the state questioned the petitioner about the call

made from the petitioner's aunt's house on December 19, 1986. After denying that he

had talked to Judge Gray about anything besides Gray wanting jewelry or money, the

petitioner admitted that he did not really remember if he had talked to Gray about not

being able to appear in court that day on counsel's motion to withdraw. The petitioner

acknowledged that a motion was heard in Judge Gray's court on the morning of

December 19, 1986, concerning counsel's motion to be relieved of counsel because the

petitioner had not paid all of counsel's fees. He then stated that he had driven to

W illiamson County, arriving between 12:00 and 12:30 p.m., only to learn that the motion

had already been heard and denied.



              The petitioner again stated that he had not told his counsel about the bribe

solicitation for fear that they would withdraw from the case. W hen he had told his

attorney about the solicitation, he stated that his attorney told him that he believed that

the appeal would be successful and that the solicitation of a bribe complaint would have

to be brought up at a later date. The petitioner admitted that he had never objected to

the trial being held in Judge Gray's court and that he had not told anyone about the bribe

solicitation. He further admitted that at the time he had informed counsel of the

solicitation, there had been lots of publicity in the news surrounding an alleged bribe

scandal involving Judge Gray and "Bonehead" Scales, a defendant in another case.



              W ade Lee Phelps, owner of W ade’s Drive-In Market, then testified that the

number the petitioner had said Irvin Oten had given him had been the number of his

market at which Oten had worked during 1986, the time of the alleged bribe solicitation.

Jerry Sue W ard, a former waitress at the Dayton Golf and Country Club, testified that

while working at the club, she had answered the phone and had taken a message for the

                                              6
petitioner from Judge Gray in which Gray had asked that the petitioner return his call.

She testified that she had written down the number Gray had given her on a piece of

paper and had given the petitioner the message later that afternoon. Larry Travis, a

member of the Dayton Golf and Country Club, testified that he had heard Ms. W ard

repeat Judge Gray's number and message when the call had come in. He distinctly

remembered that it had been in the late fall of 1986 about mid-afternoon when the call

had come in and that many of the men sitting around the club had teased the petitioner

about receiving a call from a judge.



              Petitioner’s former attorneys then testified in the petitioner’s behalf. Both

counsel testified that they had filed a motion to suppress evidence seized in search of

the petitioner’s car, his person, and his residence. His counsel detailed the facts

surrounding the three-day suppression hearing in which the arresting officers stated that

they had gotten all of their information to justify the search of the petitioner's car and

home through three unnamed informants ten days after the crime had taken place. The

counsel stated that in his opinion, the information was stale and that there had been no

basis of knowledge or reliability for the search. He testified that he had fully anticipated

that the motion to suppress would be granted. He further testified that the last argument

on the motion had taken place on August 4, 1986, and that the ruling had not been

made by Judge Gray until December 8, 1986, some four months later, an unusually long

delay. He also testified that a motion in limine had been filed to limit a co-conspirator’s

statement that was made clearly outside the time limits of the conspiracy. According to

the petitioner’s counsel, the motion was denied after another unusual delay. He then

testified that when the petitioner had told him about the attempted bribe solicitation, the

case was already on appeal and that he had advised the petitioner that no mechanism

was available to raise the issue at that time.



              The petitioner’s lead attorney testified about the incident between the

petitioner and Oten that took place during the suppression hearing. He recalled being

                                              7
very concerned and upset about the communication. Both attorneys testified that they

had feared that someone was trying to “set up” the petitioner for additional charges

because they believed that their motions to suppress would be successful.



                Davidson County Deputy District Attorney General Tom Thurman was

called by the petitioner to testify that on October 17, 1985, he had been offered a bribe

by Irvin Oten on behalf of a defendant in another case, but he added that at that time, he

thought Mr. Oten was joking. He also testified about the investigation and arrest of

Judge Gray, stating that Gray had denied all accusations until learning that Oten had

been “wired” when they spoke the night before about the bribe solicitation of “Bonehead”

Scales. Gray had told Thurman that at that time there were no more bribe solicitations

“in the pipeline.” On cross-examination, Thurman stated that at no time during the two-

year investigation of Gray had there been any information concerning a bribe solicitation

in the petitioner’s case.



                Davidson County Criminal Court Judge Thomas Shriver testified that he

had been the district attorney general and had initiated the investigation of Irvin Oten

and Judge Gray in October, 1985, after he received several complaints concerning

alleged bribe solicitations in Judge Gray’s court. He testified that attorney Arnold

Peebles had informed his office that Judge Gray could be bribed and that upon inquiry,

his assistants informed him of other similar allegations concerning Gray. Judge Shriver

stated that the defendant in Mr. Peeble’s case had been a male Caucasian. Also, he

acknowledged that although the investigation of Judge Gray and Oten had been ongoing

at the time of the petitioner’s trial, no special measures had been taken to monitor Judge

Gray’s cases.



                Special Agent Richard W right with the T.B.I. testified concerning his

investigation of Judge Gray and Irvin Oten. W right testified that he had received a call

from General Shriver in October, 1985, concerning a purported bribe payment by

                                               8
Howard Scales to Irvin Oten. He testified that when Irvin Oten had been arrested in

November, 1987, he had admitted involvement in only two other cases, but that W right

had known that he was not telling the truth because his office had posted surveillance

when Oten had accepted money in another case. He also testified that Irvin Oten’s

father had been involved in a solicitation attempt and that he had later been convicted of

that offense. He stated that in the course of the investigation he had learned that Gray

had borrowed money from bondsmen and had written several bad checks. He admitted

that at the time of the Benson case, his office had not taken any steps to insure that

inappropriate gestures were not made by Gray or Oten. He stated that at the time of

Judge Gray’s death, the state had indictments in four cases but that to his knowledge,

there had never been any allegation of misconduct in the petitioner’s case. On cross-

examination he stated that all allegations involving bribery in Judge Gray’s court had

involved members of the black community.



              Other witnesses called by the petitioner included Mark Beverage, a former

assistant district attorney, who testified that Irvin Oten had inappropriately approached

him on occasion to discuss individual defendants and their cases. Harry Owens, former

chief accountant with the Davidson County Criminal Court Clerk’s office, testified that he

had been unaware of Judge Gray’s financial difficulties until several checks that Gray

had cashed through the clerk’s office were returned for insufficient funds. Forest Brent,

a Davidson County bail bondsman, testified that Judge Gray had borrowed $700.00 from

him and that Gray had never repaid him. Bill Thompson, another T.B.I. agent who had

assisted in the investigation of Gray and Oten, testified that he had learned that Judge

Gray had often sent court officers to retrieve his bad checks and to place illegal numbers

bets for him. Floyd Price, the former assistant district attorney who had represented the

state in Benson’s original trial, testified he had not been made aware of any investigation

concerning Oten or Gray during the trial. He also testified that he recalled having

participated in serious plea negotiations involving a ten to fifteen-year sentence for the

petitioner.

                                             9
              Irvin Oten was the first witness called by the state. He testified that he had

served as Judge Gray’s court officer from September, 1982, until the time of his arrest.

He stated that he had pled guilty to the offenses in which he took part in soliciting bribes

and that he was currently on probation. Oten admitted that he had taken money from

two defendants who had cases pending in Judge Gray’s court, but adamantly denied

that he had ever spoken with the petitioner. He stated that his job had been to oversee

the prisoners being held in the room behind the courtroom, and since the petitioner had

been on bond, he would have not had a reason to be in contact with him. He also stated

that he would never talk to anyone in the bathroom because it was a public place and

because the prisoners in the backroom demanded all of his attention.



              On cross-examination Oten testified that he had no prior convictions, but a

presentence report which revealed that he had been convicted of passing worthless

checks was used to impeach him. He admitted that Judge Gray had sent him to place

numbers bets and pick up his bad checks at least once a week.



              Ed Yarbrough, the attorney who had represented Irvin Oten in his plea

negotiations, testified that the district attorney’s office had promised Oten that if he

would be truthful and assist them in their investigation of Judge Gray, he would not be

incarcerated. He stated that he had advised Oten at that time to cooperate and report

any other cases in which a bribe had been solicited.



              After the evidentiary hearing, the trial court filed an order and a supporting

memorandum with its findings and conclusions. The court concluded that the petitioner

failed to prove by a preponderance of the evidence that either Judge Gray or his court

officer had solicited a bribe from the petitioner and that the only direct evidence of such

a solicitation had come from the petitioner himself. The court noted that the solicitation

allegation was refuted by the deliverer of the alleged offer, Irvin Oten, but that both

                                             10
witnesses were convicted felons. The court found that there was credible evidence that

the petitioner spoke with Oten on at least one occasion and that the petitioner had

phoned Gray’s office on December 19, 1985. He then noted that the petitioner was

scheduled to appear in court on that same day and that it was more probable that rather

than returning a purported phone call made by Gray, the petitioner was phoning the

judge’s office to advise the court that he would be late for his appearance when, in fact,

he did appear three and one-half hours late. He then found that because the

circumstances surrounding and the purpose of the December 16 call “were

fabricated, . . . little credence [could] be given petitioner’s assertions that a bribe was

solicited from him.” He then stated that “even if the petitioner had proven the attempt to

solicit a bribe, his failure to disclose it before trial would prevent his being entitled to

relief.”



               The court emphasized that the petitioner had been found guilty by a jury

and that he had been represented by two preeminent criminal defense attorneys. He

pointed out that the conviction was reviewed by the court of criminal appeals who found

that there was “ample, indeed overwhelming evidence from which any rational trier of

fact would conclude that all the appellants, . . . were guilty of all these crimes beyond a

reasonable doubt.” He noted that Judge Gray’s ruling on the motion to suppress

evidence had also been reviewed by the appellate court in some detail and had been

sustained and that the court had conducted a de novo review of the petitioner’s

sentence, without a presumption of correctness, and had affirmed it. In conclusion, the

trial court stated that even though the appellate court had conducted an “exhausted

review” of the case, “this court has again reviewed the transcript of the trial proceedings

and has not found exercise of discretion by Judge Gray that was inappropriate or may

have unfairly prejudiced the petitioner.” The court then dismissed the petition for post-

conviction relief.




                      SUFFICIENCY OF SOLICITATION EVIDENCE

                                               11
              The petitioner first contends that the trial court’s conclusion that the

petitioner failed to prove by a preponderance of the evidence that Judge Gray solicited a

bribe from him is erroneous. He concedes that the only direct evidence of the

solicitation is the testimony of the petitioner and Irvin Oten, but he argues that the

unrebutted testimony of Jerri Sue W ard and Larry Travis that Judge Gray telephoned the

petitioner at the Dayton Golf and Country Club and the unrebutted testimony of the

petitioner’s attorneys and the attorneys’ investigator that there was contact between the

petitioner and Oten on two occasions strongly supported the petitioner’s allegations. He

also notes the unusually long delay in Judge Gray’s ruling on the petitioner’s pretrial

motions.



              The state argues that there is ample evidence to support the trial court’s

conclusions. It points to an inconsistency in the petitioner’s testimony concerning the

November 19,1986, telephone call supposedly made to Dayton Golf and Country Club in

which Judge Gray asked that the petitioner return his call at 8:00 p.m. The petitioner

testified that he returned the call at 8:00 p.m. from a Chattanooga restaurant, which

would have been 7:00 p.m. Nashville time, which the state contends was inconsistent

with Gray’s purported message. The state also refutes the December 19, 1986,

telephone call by noting that Judge Gray announced at the hearing that day on the

attorney’s motion to withdraw that he had talked to the petitioner that morning when the

petitioner had called to say that he might not be in court on time. The state argues that

Oten stated that he had never had any contact with the petitioner and that when Tom

Thurman had confronted Gray with the evidence against him, Gray had told him there

were “no more cases in the pipeline.” Lastly, the state emphasizes that all of the cases

in which bribes were alleged involved members of the Afro-American community.



              In a post-conviction proceeding, the burden is on the petitioner to prove the

factual allegations in his petition by a preponderance of the evidence. Brooks v. State,




                                             12
756 S.W .2d 288, 289 (Tenn. Crim. App. 1988).2 On appeal, we are bound by the trial

court’s findings of fact unless we conclude that the evidence in the record preponderates

against those findings. Black v. State, 794 S.W .2d 752, 755 (Tenn. Crim. App. 1990).



                  Under the facts and circumstances of this case, we conclude that the

evidence in the record on appeal preponderates against the findings of the trial court

from which it concluded that the petitioner had not carried his burden of proving by a

preponderance of evidence that Judge Gray and Irvin Oten solicited a bribe from him.

The state’s only direct evidence that the petitioner was not solicited for a bribe was the

testimony of Oten. However, the record is replete with instances in which Oten had

falsely represented facts to T.B.I. officers. Oten testified more than once that he had

never spoken to the petitioner under any circumstance, however this testimony is in

direct contradiction to that of the petitioner’s attorneys and the attorneys’ investigator in

this case. Oten also testified falsely concerning his prior record.3



                  In its brief, the state makes much of the fact that Judge Gray had only

solicited bribes from the black community. However, former District Attorney General

Thomas Shriver testified that he had first been made aware of improper conduct in

Judge Gray’s court by Arnold Peebles, and the defendant in that case had been white.

Officers involved in the investigation of Gray and Oten admitted that no special

precautions had been taken to monitor the cases in which Judge Gray was presiding at

the time, even after most allegations against Judge Gray had been revealed.



                  The trial court did not address Judge Gray’s unusually long delay in ruling

on the petitioner’s pretrial motions. It also made no mention of the unrebutted testimony

of Jerri Sue W ard and Larry Travis that Judge Gray had telephoned the Dayton Golf and



        2
           For post-conviction cases filed as of May 10, 1995, petitioners have the burden of proving
factual allegations by clear and convincing evidence. T.C.A. § 40-30-210(f).

        3
            The record on appeal includes a video tape record of the evidentiary hearing.

                                                     13
Country Club asking for the petitioner. In conclusion, we hold that the weight of the

evidence in this case preponderates against the trial court’s finding that the petitioner did

not carry his burden in proving that he had been solicitated for a bribe.




                                              WAIVER

                The petitioner next asserts that the trial court erred in finding that the

petitioner had waived the ground for relief based upon Judge Gray’s improper conduct

by failing to raise it prior to trial. In his reply brief, the petitioner argues that he did not

personally and intentionally relinquish his right to present the bribe solicitation as a

ground for review of his conviction and sentence because he timely brought it to the

attention of his attorneys. The state argues that even if the petitioner had told his

attorneys about the solicitation attempt at the appellate stage of the proceedings, the

petitioner would still have waived the issue because he failed to bring it to their attention

at the trial stage. W e agree, first noting the conspicuous absence from the petitioner’s

excellent briefs of any real attempt to justify his failure to notify his attorney before trial of

the solicitations.



                Pursuant to T.C.A. § 40-30-112(b)(1), "[a] ground for relief is 'waived' if the

petitioner knowingly and understandingly failed to present it for determination in any

proceeding before a court of competent jurisdiction in which the ground could have been

presented." Furthermore, there is "a rebuttable presumption that a ground for relief not

raised in any such proceeding which was held was waived." T.C.A. § 40-30-112(b)(2).4

In this respect, our supreme court addressed the issue of waiver under the post-

conviction act. The court held as follows:




        4
         For post-conviction cases filed as of May 10, 1995, T.C.A. § 40-30-112 has been replaced by
T.C.A. § 40-30-206(g), (h). 1995 Tenn. Pub. Acts ch. 207, § 3.

                                                  14
              W e further conclude that the rebuttable presumption of waiver
              is not overcome by an allegation that the petitioner did not
              personally and therefore, “knowingly and understandingly”
              waive the ground for relief. W aiver is to be determined by an
              objective standard under which a petitioner is bound by the
              action or inaction of his attorney.

House v. State, 911 S.W .2d 705, 706 (Tenn. 1995), cert. denied, 116 S. Ct. 1685

(1996).



              In this case, the petitioner had the opportunity both pretrial and in his

motion for a new trial to raise the solicitation issue. According to the petitioner, he was

first solicited for a bribe during hearings on pretrial motions. He admitted that he did not

tell his attorneys of the contact, supposedly because he was afraid they would withdraw

from the case. He also admitted that he had not asked that Judge Gray be recused and

that he had never objected to Judge Gray presiding over the trial.




              The trial court concluded that the petitioner’s explanation, that he “feared

the ire of his attorneys,” did not provide a legally sufficient reason to excuse his failure to

raise the issue earlier. W e agree. Accordingly, the petitioner has not overcome the

presumption of waiver, and this issue is without merit.




                              HARMLESS ERROR ANALYSIS

              Lastly, the petitioner asserts that the trial court erred in applying the

harmless error standard to the facts in this case. He cites State v. Bobo, 814 S.W .2d

353, 358 (Tenn. 1991), for the proposition that constitutional “violations which are

defects in the structure of the trial mechanism defy harmless error analysis.” He also

cites Tumey v. Ohio, 273 U.S. 510, 535, 47 S. Ct. 437, 71 L.Ed.749 (1927), in which the

United States Supreme Court held that where a court has a financial interest in its

decision, the harmless error standard does not apply. The petitioner asserts that the

judicial corruption surrounding Judge Gray at the time of his trial so infected the integrity




                                              15
of the judicial process that he should, per se, be granted a new trial by an impartial and

disinterested judge.




              In its memorandum in support of its order dismissing the post-conviction

petition, the trial court concluded that after reading the transcript of the trial proceedings

it found that Judge Gray’s exercise of discretion had not been inappropriate or had not

unfairly prejudiced the petitioner. It noted that while there was valid evidence that Judge

Gray had been performing official acts for personal motive, and that his abuses of office

had been known to law enforcement authorities, the facts did not necessarily suggest

that Gray had acted improperly in this case. As stated previously, the court emphasized

that the defendant had been found guilty by a jury, that the petitioner had been

represented by two preeminent criminal defense attorneys, and that this court had

reviewed the petitioner’s convictions and the sentences and had found them to be

correct and appropriate. However, even in finding no prejudice, it went on to conclude

that the petitioner’s failure to raise timely the alleged impropriety constituted waiver.




              W hile this court wholeheartedly agrees with the petitioner’s position that

Judge Gray’s conduct directed toward defendants from whom he solicited bribes was

illegal and that the Due Process Clause of the Fourteenth Amendment of the United

States Constitution guarantees every defendant the right to a fair trial with a

disinterested and impartial trial judge, we must agree with the trial court that the

petitioner in this case waived any right to challenge the partiality of the trial judge.

T.R.A.P. 36(a), in pertinent part, states that “[n]othing in this rule shall be construed in

requiring relief be granted to a person responsible for an error or who failed to take

whatever action was reasonably available to prevent or nullify the harmful effect of an

error.” In State v. Simerly, 612 S.W . 2d 196, 197 (Tenn. Crim. App. 1980), this court

concluded that even constitutional issues could not be considered on appeal when there

was no contemporaneous objection and they were not presented in the motion for a new



                                              16
trial. Adopting language from Hill v. State, 513 S.W .2d 142, 143 (Tenn. Crim. App.

1974), the court quoted the following:

              “W hile recognizing the authority that holds constitutional
              questions may be raised at any time, we believe that rule
              applies only to fundamental constitutional defects in the
              convicting process not waived or not subject to waiver. To
              apply the rule to questions of evidence admissibility would
              undercut the very function of the trial process, for if it would
              become a tactical matter of defense to allow a bit of
              constitutionally inadmissible evidence into the record, in the
              hope for an acquittal but secure in the knowledge that a new
              trial would result... Search and seizure, fifth amendment, due
              process, equal protection, right to counsel, or one of the many
              constitutional provisions lies at the bottom of most trial
              proceeding questions. We cannot say that constitutional
              questions enjoy an immunity from not being raised at the
              trial without by so doing destroying the trial process itself.”

State v. Simerly, 612 S.W .2d at 197 (emphasis added).



              In Holmes v. Eason, 76 Tenn. 754 (1882), our supreme court held that a

judgment rendered by a justice of the peace who was related to one of the parties within

the prohibited degree, without objection made by the other party on that ground, was not

void but merely voidable. The court reasoned that an objection should be made before

trial, “[f]or otherwise, the parties would be allowed to experiment with the court by tacit

acquiescence, and raise the objection when the result of the trial proved to be

unfavorable.” Id. at 756-57.



              W e agree with the above rationale. In the case at bar, the petitioner did

not inform his attorneys of the bribe solicitation until the case was on appeal, supposedly

because he feared the anger of his attorneys and the fact that they might withdraw from

his case. Had the issue been raised immediately after the first solicitation attempt, a

motion for recusal would have been appropriate. Instead, the petitioner waited to come

forth with this complaint until the motion for new trial had been heard and denied and the

proceedings were in the appellate stage. A plausible inference from the petitioner’s

delay in raising this issue is that he was contemplating raising the money. By not

contesting the partiality of the trial court immediately, the petitioner may have been

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keeping his options open, realizing that if he received an unfavorable verdict and

sentence, he could raise the issue on appeal and obtain a new trial.



               W hile recognizing the critical importance of maintaining the integrity of our

criminal justice system, we cannot accept the petitioner’s argument that even after failing

to raise his claim timely, his convictions should be vacated and he should be granted a

new trial. Rather, as we have previously stated, we hold that the petitioner waived his

right to raise this issue at this time.




                                          CONCLUSION

               In consideration of the foregoing and the records of the original trial, the

direct appeal, and the post-conviction proceeding, we conclude that the evidence in the

record on appeal preponderates against the trial court’s conclusion that the petitioner

had not proven by a preponderance of the evidence his allegation that he was solicited

for a bribe by the trial court and its officer. However, we further conclude that the

petitioner has waived his right to raise this issue at this time. Accordingly, the judgment

of the trial court in its denial of post-conviction relief is affirmed.




                                                         _____________________________
                                                         Joseph M. Tipton, Judge

CONCUR:


___________________________
David H. W elles, Judge


___________________________
Stephen M. Bevil, Special Judge




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