         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                     July 11, 2000 Session

              MICHAEL EUGENE SAMPLE and LARRY MCKAY
                       v. STATE OF TENNESSEE

                      Appeal from the Criminal Court for Shelby County
                       No. P-14252, P-14266   Bernie Weinman, Judge



                    No. W1999-01202-CCA-R3-PC - Filed January 17, 2001


The Defendants were each convicted in 1982 of two counts of felony murder. Each Defendant
received two death penalties for the murders. On post-conviction, the Defendants contend that the
State withheld exculpatory information and that their death penalties were predicated in part on an
invalid aggravating circumstance. The trial court dismissed the petitions without a hearing, finding
that the Brady claims were time-barred and finding beyond a reasonable doubt that the jury would
have imposed the death sentences absent consideration of the invalid aggravating circumstance. The
Defendants now appeal the trial court’s findings on both claims for relief. We affirm the trial court’s
judgment.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed.

DAVID H. WELLES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS, J. and
CORNELIA A. CLARK, SP.J., joined.

David M. Eldridge and Richard L. Gaines, Knoxville, Tennessee; and Harry R. Reinhart, Columbus,
Ohio, for the appellant, Michael Eugene Sample.

David C. Stebbins, Columbus, Ohio, for the appellant, Larry McKay.

Paul G. Summers, Attorney General and Reporter; Erik W. Daab, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Reginald Henderson and John W. Campbell,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                             OPINION

       In 1982, the Defendants Larry McKay and Michael Eugene Sample were jointly tried and
convicted of murdering two men during the perpetration of a robbery in 1981. Both Defendants
were sentenced to death for each murder. Their convictions and sentences were affirmed on direct
appeal. See State v. McKay, 680 S.W.2d 447, 453 (Tenn. 1984). Several post-conviction petitions
were subsequently filed, all of which were denied.

       In early 1995, the Defendants filed the instant post-conviction petitions, alleging numerous
grounds for relief. The trial court dismissed Sample’s petition for lack of jurisdiction. It dismissed
McKay’s petition as barred by the statute of limitations.1 The Defendants appealed, and this Court
remanded for further proceedings. See Michael Eugene Sample v. State, No. 02C01-9505-CR-
00131, 1996 WL 551754, at *14 (Tenn. Crim. App., Jackson, Sept. 30, 1996). The trial court again
denied relief, and this matter is now before us for the second time.

        Before we address the issues on this appeal, a further review of the prior proceedings is
helpful. As set forth in our prior opinion, the instant petitions allege four grounds for relief:
               1.      The State presented false testimony at trial and
                       suppressed exculpatory evidence in violation of Brady
                       v. Maryland, 373 U.S. 83 (1963)2 (“the Brady
                       claims”);

                   2.        The death sentences were predicated on an invalid
                             aggravating circumstance under State v.
                             Middlebrooks, 840 S.W.2d 317 (Tenn. 1992) (“the
                             Middlebrooks error”);

                   3.        The jury instructions defining reasonable doubt at
                             both phases of the trial were unconstitutional; and

                   4.        Numerous other errors by the trial court, prosecutors
                             and trial counsel violated the Tennessee and United
                             States constitutions.

See id. at *1. The trial court dismissed Sample’s petition without a hearing because a prior post-
conviction appeal was then pending before this Court, and we found that dismissal to be error. See




         1
          As noted in our previous opinion, the State did not raise the statute of limitations defense in its initial response
to the Defendants’ petitions. However, this issue may be raised by the trial co urt sua sponte . See Rickman v. State, 972
S.W.2d 687, 691 (T enn. Crim. App. 1997 ).

         2
           Under Brady, the prosecution m ust furnish exculpatory information to the defendant upon request. “[T]he
suppression by the prosecu tion of evidence favorable to an a ccused upo n request violates du e process w here th e
evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373
U.S. at 87 .

                                                             -2-
id. at *2. The trial court also dismissed without a hearing McKay’s petition, which had been filed
on February 1, 1995, as barred by the applicable three-year statute of limitations.3 See id. at *1.

        On the initial appeal, we determined that the Defendants’ claims regarding the jury
instructions defining reasonable doubt were “without merit.” Id. at *11. We further held that the
Defendants were not entitled to relief on any of the “numerous other errors” referred to above. Id.
at *12. However, we held that further proceedings were necessary on the Brady claims and the
Middlebrooks error. Id. at *8, 18.

        With respect to the Brady claims, we first noted that the Defendants’ allegations “clearly
stated constitutional grounds for relief.” Id. at *4. Because the trial court had summarily dismissed
the petitions, we concluded that the trial court had not given “due consideration” to the “key issues”
of “whether [the Brady claims] were viable at this stage of the post-conviction proceedings.” Id.
In short, we determined that, under Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992), the Brady
claims might still be cognizable even though the statute of limitations on the Defendants’ post-
conviction claims for relief had expired prior to the time these petitions were filed. See Sample,
1996 WL 551754, at *6-8. Accordingly, we remanded the Brady claims to the trial court “for further
consideration.” Id. at *8. We instructed the trial court that “[i]f the [Defendants’] allegations are
substantiated, and no statutory defenses are shown to apply, [it] shall consider the merits of the
[Brady claims] in accordance with the applicable authority.” Id. (emphasis added).

        With respect to the Middlebrooks error, we went further and determined that the Defendants’
allegations in this regard were not time-barred. Id. at *9. Accordingly, we directed the trial court
to determine whether the Middlebrooks error was harmless beyond a reasonable doubt, pursuant to
the analysis set forth in State v. Howell, 868 S.W.2d 238, 260-61 (Tenn. 1993). See Sample, 1996
WL551754, at *10.

       On remand, the trial court dismissed both Defendants’ Brady claims as time-barred, relying
on Wright v. State, 987 S.W.2d 26, 28-30 (Tenn. 1999). It further found that the Middlebrooks error
was harmless beyond a reasonable doubt. Therefore, the trial court denied both petitions. This
appeal as of right from the trial court’s decisions on both issues followed. For the reasons set forth
below, we now affirm the trial court’s judgment.

                                            THE BRADY CLAIMS




         3
         Because these petition s were filed prior to May 10, 1995, the applicable statute of limitations is three years.
See Tenn. Code Ann. § 40-30-102 (repealed 1995); Abston v. State, 749 S.W.2d 487, 488 (Tenn. Crim. App. 1988).



                                                          -3-
        In dismissing the Defendants’ Brady claims as barred by the statute of limitations, the trial
court found that the applicable statute of limitations began to run on August 30, 1991.4 It found
further that “the petitioners were not denied a reasonable opportunity to have the [Brady] issues
heard and litigated,” relying on Wright v. State, 987 S.W.2d at 30. The Defendants argue that the
trial court erred for the following reasons:
                 1.      In the previous appeal of this matter, this Court ruled
                         that the Defendants had overcome the statute of
                         limitations issue and remanded this matter for an
                         evidentiary hearing on the Brady claims;

                  2.       The statute of limitations did not commence on
                           August 30, 1991; and

                  3.       The trial court misapplied relevant case law in
                           determining whether the statute of limitations should
                           be strictly applied.

Upon our review of the record and the relevant case law, we affirm the trial court’s dismissal of the
Defendants’ Brady claims as time-barred.

         We first address the Defendants’ contentions that the trial court misconstrued this Court’s
ruling on the prior appeal of this matter. In our initial consideration of the Defendants’ petitions, we
were faced with a summary dismissal of Sample’s petition on the ground of lack of jurisdiction and
a summary dismissal of McKay’s petition upon strict application of the three-year statute of
limitations. See Sample, 1996 WL551754, at *1. Apparently, the trial court ruled that McKay’s
petition was time-barred without analyzing whether the statute of limitations should have been
suspended under Burford v. State, 845 S.W.2d at 204. Upon our review of the petitions, we
concluded that Sample’s petition was properly before the trial court. Sample, 1996 WL551754, at
*2. We further found that the Defendants’ allegations that the State had knowingly used false
testimony and suppressed exculpatory evidence “clearly stated constitutional grounds for relief.”
Sample, 1996 WL 551754, at *4. However, “[t]he key issues were whether the grounds were viable
at this stage of the post-conviction proceedings.” Id. That is, were the Defendants entitled to an
evidentiary hearing, or were the petitions barred by the procedural defenses of waiver, previous
determination, or the statute of limitations? We held that a remand was necessary because “the trial
court did not give due consideration to these key issues,” id., and concluded that upon remand, “[i]f
the [Defendants’] allegations are substantiated, and no statutory defenses are shown to apply, the
trial court shall consider the merits of the issues in accordance with the applicable authority.” Id.
at *8 (emphasis added). Accordingly, on remand, the trial court focused its efforts on determining
whether the Defendants’ petitions were subject to the strict application of the statute of limitations

         4
           This is the date on which the Tennessee Court of Appea ls filed its opinio n in Rebecca Freeman v. William
Jeffcoat, No. 01 A01-9 103-C V-000 86, 199 1 WL 16580 2 (Tenn . Ct. App ., Nashville, Aug. 30, 1991), which permitted
a post-co nviction p etitioner acc ess to police records. See id. at *7.

                                                        -4-
under Burford and its progeny. The trial court did not err in undertaking this analysis. The
Defendants’ contention that we had previously ruled that the statute of limitations did not apply to
their petitions is incorrect.5 This issue is without merit.

         The trial court did err, however, in finding that the statute of limitations on the Brady claims
commenced on August 30, 1991. There are not different statutes of limitations applicable to post-
conviction petitions, depending on the issues raised therein. At the time these post-conviction
petitions were filed, they were subject to a single three-year limitations period. See Tenn. Code Ann.
§ 40-30-102 (repealed 1995). The limitations period for these Defendants commenced on July 1,
1986 and expired on July 1, 1989. See id.; Abston v. State, 749 S.W.2d 487, 488 (Tenn. Crim. App.
1988). Thus, the issue became whether due process required that the statute of limitations not be
applied to the Brady claims raised in these petitions. See Burford, 845 S.W.2d at 204. Our supreme
court has refused to apply a “secondary” limitations period to claims that arise after the statute of
limitations has expired. See Wright, 987 S.W.2d at 30. Accordingly, the trial court was incorrect
in its holding that the three-year statute of limitations period commenced on August 30, 1991. This
error does not, however, entitle the Defendants to the relief they seek.

          We turn now to the trial court’s holding that, under Wright, the Defendants’ Brady claims
are time-barred. We begin our analysis of this issue with Burford. In that case, Burford was serving
a fifty-year sentence as a persistent offender. 845 S.W.2d at 205. Several of the convictions upon
which his enhanced sentence was based were subsequently found void. Id. Thereafter, Burford filed
for post-conviction relief, alleging that the fifty-year sentence was excessive in light of the voided
convictions. Id. Burford’s claim for relief under the post-conviction statute, based upon the voiding
of his convictions, did not arise until approximately ten months before the applicable three-year
statute of limitations expired. Id. at 209. Burford did not actually file his petition for post-
conviction relief until approximately nine months after the limitations period expired. Id. at 211
(Daughtrey, J., concurring). Our supreme court refused to apply the limitations period strictly,
finding that Burford had “found himself caught in a procedural trap and unable to initiate litigation
. . . despite the approach of the three-year limitation.” Id. at 208. In determining whether to strictly
apply the statute of limitations, the court applied a balancing test: whether the State’s interest in the
administrative efficiency and economy created by a time-bar was outweighed by Burford’s interest



         5
           Even if we construed our prior opinion as holding that the Defendants’ Brady claims were not time-barred,
the Defendan ts would still not prevail. Altho ugh the “law of the case” wo uld then favor th e Defenda nts’ position, that
doctrine is not without exceptions. “[W]hen an initial appeal re sults in a rem and to the trial court, the decision of the
appellate court establishes the law of the case which generally must be followed upon remand by the trial court, and by
an appellate c ourt if a second appeal is taken from the judgment of the trial court entered after remand. [One of the]
limited circumstances which may justify reconsideration of an issue which w as decide d in a prior appeal . . . [is where]
the prior decision is contrary to a change in the controlling law which has occurre d betwe en the first an d secon d appea l.”
Mem phis Publ’g Co. v. Tennessee Petroleum Underground Storage Tank Bd., 975 S .W .2d 303, 306 (Tenn.
1998)(citations omitted). Our prior opinion was filed in 1996. Wright was filed in 1999. W e believe the Defe ndants’
construction of our prior decision is contrary to Wright, and the issue of w hether the Defe ndants’ Brady claims are time-
barred is th erefore su bject to reco nsideration .

                                                             -5-
against serving an excessive sentence in violation of his constitutional rights. Id. at 209. In
conducting this test, the court noted:
               There is nothing stale or fraudulent about the petitioner’s claim.
               Although he filed his petition outside the time limits provided by the
               statute of limitations, there is no difficulty here with the availability
               of witnesses or the memories of witnesses. Nor is there a problem
               with respect to a groundless claim generating excessive costs. It is
               abundantly clear that the petitioner had a valid claim to have his
               sentence reduced, and all the [trial] court will have to do is examine
               the record of the Wilson County proceedings. The [trial] court can
               then resentence Burford . . . . Accordingly, we find that the
               governmental interest represented by Tenn. Code Ann. § 40-30-102
               is not served by applying the statute to bar Burford’s petition.

Id.

       Our supreme court revisited this issue in Sands v. State, 903 S.W.2d 297 (Tenn. 1995). In
Sands, the court held,
               In applying the Burford rule to specific factual situations, courts
               should utilize a three-step process: (1) determine when the
               limitations period would normally have begun to run; (2) determine
               whether the grounds for relief actually arose after the limitations
               period would normally have commenced; and (3) if the grounds are
               “later-arising,” determine if, under the facts of the case, a strict
               application of the limitations period would effectively deny the
               petitioner a reasonable opportunity to present the claim. In making
               this final determination, courts should carefully weigh the petitioner’s
               liberty interest in “collaterally attacking constitutional violations
               occurring during the conviction process,” against the State’s interest
               in preventing the litigation of “stale and fraudulent claims.”

Id. at 301 (citations omitted).

         In Caldwell v. State, 917 S.W.2d 662 (Tenn. 1996), our supreme court once again visited this
issue, and restated the rule from Burford as requiring that “the interests of both parties [be weighed
so as] to determine if due process requires the suspension of the limitations period so as to afford the
petitioner a reasonable opportunity to litigate the claim.” Id. at 666. In Caldwell, the defendant was
challenging his arrest as pretextual. The court found the defendant’s interest to be something less
than the personal trial right that had been at issue in Burford, and it noted that even if Caldwell was
successful in his challenge and was thereby able to suppress evidence, his conviction would not
necessarily be reversed. Id. at 667.



                                                  -6-
        The court further noted that the State’s interest in this case was “much stronger than in
Burford.” Id. at 666. Because the events at issue had occurred fifteen years earlier, the State’s
concern with litigating stale claims was significant. Id. The State’s interest in preventing excessive
cost was also more pronounced here than in Burford. Id. In Caldwell, the defendant had to
“successfully litigate several issues relating to the allegedly pretextual arrest before he receives any
benefit at all from the claim.” Id. Accordingly, the court declined to suspend the statute of
limitations and dismissed the defendant’s petition for post-conviction relief as time-barred.

       Finally, in Wright v. State, 987 S.W.2d 26 (Tenn. 1999), the court considered the application
of Burford to a later-arising Brady claim such as we face in the instant cases. Wright had been
convicted in 1985 of two counts of first degree premeditated murder; he was sentenced to death on
one of these convictions. Id. at 27. The three year statute of limitations for his post-conviction
claims for relief expired in August 1991. Id. at 28.

        Wright filed for post-conviction relief on January 27, 1995, alleging that the State had
withheld exculpatory evidence in violation of Brady v. Maryland. Id. at 27. He argued that his
claim for relief did not arise until January 29, 1992, when the Tennessee Court of Appeals filed its
decision in Capital Case Resource Center v. James G. Woodall, No. 01A01-9104-CH-00150, 1992
WL 12217 (Tenn. Ct. App., Nashville, Jan. 29, 1992).6 Id. In Woodall, the Middle Section of the
Court of Appeals held that police investigative files regarding a case under collateral attack were
subject to disclosure under the Tennessee Public Records Law. 1992 WL 12217, at *5. Using
Woodall, Wright had apparently obtained information previously unavailable to him, and he claimed
part of it to be exculpatory within the meaning of Brady v. Maryland. Wright, 987 S.W.2d at 27.
Wright argued that, under Burford, the three-year statute of limitations applicable to post-conviction
petitions should not apply to his cause of action. Id. at 28.

        Our supreme court agreed that Wright’s Brady claim was “later-arising” under Sands and
Caldwell. Id. at 29. It then restated the test for determining whether a later-arising claim should be
subject to strict application of the statute of limitations:
                To determine whether a petitioner was denied a reasonable
                opportunity to present a claim, a court must balance the liberty
                interest in collaterally attacking the constitutional violations


          6
             W e are som ewhat m ystified by this argum ent, which the D efendants also raise in these cases. Under Brady
v. Maryland, if the prosecution had the exculpatory information prior to trial, and it was requested, then the prosecution
was under a duty at that time to disclose th e inform ation. “Th is duty to d isclose exten ds to all “favorable information”
irrespective of whether the evidence is admissible.” Woo den v. Sta te, 898 S.W.2d 752, 755 (Tenn. Crim. App. 1994).
The prosecution ha s the responsibility to disclose statemen ts of witness es favora ble to the d efense. Id. We would be
surprised if the prosecution in a murder case did not have copies of the police records which are the subject of the
Jeffcoat and Woo dall opinion s. Thus, w hile a defendant may not discover his claim for relief until long after his or her
trial, it actually arises upon th e prosecu tion’s viola tion of its du ty to disclose prior to trial. The key issue in a case such
as this one is whether the prosecution’s continued failure to disclose — thereby preventing the defendant from
discovering the violation of his or her constitutional rights — should toll the statute of limitations during the period the
exculpatory information is suppressed.

                                                               -7-
                occurring during the conviction process against the State’s legitimate
                interest in preventing the litigation of stale and fraudulent claims.

Id. at 28 (citations omitted). Applying this test to the case before it, the court made the following
determinations:
                 We initially observe that the right asserted by Wright -- the denial of
                 due process resulting from the prosecution’s suppression of
                 exculpatory evidence -- is a personal trial right directly relating to the
                 justice or integrity of the conviction and sentence. It is, therefore,
                 more similar to the liberty interest asserted in Burford than the
                 interest in Caldwell.

                The other side of the scale, however, weighs heavily in favor of the
                legitimate interests of the State. The post-conviction suit filed by
                Wright was filed ten years after the commission of the offense; nearly
                six and one-half years after Wright’s conviction became final; three
                and one-half years after the three-year post-conviction statute of
                limitations expired; and nearly three years after the Court of Appeals
                decided in Woodall that police investigative files were not exempt
                from the Public Records Act.7

                As in Caldwell, this passage of time is directly related to the manner
                and means of litigating Wright’s issue. The availability of critical
                witnesses and their ability to recall and relate details as to the alleged
                suppression of exculpatory evidence and the facts of this offense are
                immediate and significant concerns. Wright’s mere allegation that
                the prosecution suppressed exculpatory evidence does not warrant
                relief. Instead, Wright must establish that favorable evidence existed,
                that it was material to the defense, and that it was, in fact, suppressed
                by the prosecution. Accordingly, as in Caldwell, raising this issue at
                this stage of the proceedings, would require extensive, possibly
                expensive litigation.

Id. at 30.

        Like Wright, the Defendants in these cases claim they did not obtain the information they
now allege is exculpatory until after the Woodall decision in 1992. The three year statute of
limitations applicable to their post-conviction petitions expired on July 1, 1989. Thus, the



        7
          The Wright opinion does not indicate how much time passed after the petitioner received the alleged
exculpa tory infor mation before h e filed his pe tition.

                                                    -8-
Defendants’ Brady claims are “later-arising” as defined in Sands.8 And, like Wright’s and Burford’s,
the Defendants’ Brady claims are based on personal trial rights directly relating to the justice or
integrity of their convictions. See id.

        As it did in Wright, however, “[t]he other side of the scale . . . weighs heavily in favor of the
legitimate interests of the State.” Id. These post-conviction petitions were filed more than thirteen
years after the offenses were committed; more than ten years after the Defendants’ convictions
became final; five and one-half years after the three-year statute of limitations expired; three years
after the Woodall decision; and more than one year after the Defendants finally got the information
which forms the basis of their Brady claims.

        The Defendants argue strenuously that Wright is distinguishable from their cases, stating that
these delays are not their fault because they actively sought the exculpatory information since 1982
but were continuously “sandbagged” by the State until 1993. They argue that the petitioner in
Wright “had apparently made no such attempts.” Our review of Wright, however, reveals no
mention of whether Wright had earlier sought the information he eventually obtained; more
importantly, it reveals no indication that, even if Wright had done so, the court’s holding would have
been different.

        The Defendants also argue that their Brady claims are supported by significant proof already
submitted with their pleadings, in contrast to “Wright’s mere allegation that the prosecution
suppressed exculpatory evidence.” Wright, 987 S.W.2d at 30. We believe the Defendants
misconstrue this portion of the Wright decision. The supreme court was pointing out that Wright
was not entitled to relief merely on the basis of his pleadings: rather, he must first establish at an
evidentiary hearing that “favorable evidence existed, that it was material to the defense, and that it
was, in fact, suppressed by the prosecution.” Id. The Defendants herein would have to prove — at
an evidentiary hearing — exactly the same things to be entitled to a new trial. Such proof here —
as in Wright’s case — “would require extensive, possibly expensive litigation.” Id. The State has
made it clear that it does not agree with the Defendants that the material which forms the basis of
their Brady claims provides the Defendants with any grounds for relief.

        In short, we find ourselves constrained to apply the holding of Wright to the Defendants’
petitions and affirm the trial court’s holding that they are time-barred. Nevertheless, we take this
opportunity to voice our concerns about the result which we believe to be mandated by the Wright
decision. We begin by emphasizing that we have made no findings that the State actually secreted
or withheld exculpatory information. The issue before us is whether the Defendants are entitled to
an evidentiary hearing concerning their allegations of Brady violations.

       Returning to the starting point of this issue in Burford, we note that Justice Daughtrey
foresaw this very situation in her concurring opinion in that case:


        8
            See, however, footnote six, above.

                                                  -9-
                  Hypothetically, of course, legitimate grounds for relief might come
                  to light long after the three-year [statute of limitations] has run, as in
                  the case of suppression of material evidence by the prosecution that
                  is concealed for many years after the trial. Through no fault of his or
                  her own, an inmate in such a situation would be foreclosed from any
                  type of post-conviction relief other than, perhaps, executive
                  clemency.

Burford, 845 S.W.2d at 211. She continued: “While I adhere enthusiastically to policies of finality
and judicial economy, I cannot accept such a narrow interpretation of the 1986 amendment to the
Post-Conviction Act.” Id.

        In both the case at bar and in Wright, the petitioners’ allegations are that the State withheld
exculpatory evidence in violation of their constitutional rights under Brady v. Maryland.9 Wright
appears to stand for the proposition that, if the State is successful in withholding such evidence for
a long enough time, it can then successfully argue that the passage of such a lengthy time should
keep the evidence forever out of court. Under Wright, the State’s possible incentive to conceal
evidence favorable to the defense for as long as it possibly is apparent.10

        Failure to state the factual basis for the grounds for relief in a post-conviction petition results
in the summary dismissal of the petition. Tenn. Code Ann. § 40-30-206(d). Without the withheld
Brady material, a defendant cannot assert a Brady violation. Therefore, the State’s violation of its
duty to disclose exculpatory information within the relevant statute of limitations period may
effectively render a defendant incapacitated to timely raise a Brady claim. It is difficult to articulate
a meaningful distinction between this type of incapacity and the type recognized by our supreme
court in Seals v. State, 23 S.W.3d 272 (Tenn. 2000). In Seals the court recognized that “due process
requires tolling of the statute of limitations where a petitioner is denied the reasonable opportunity
to assert a claim in a meaningful time and manner due to mental incompetence.” Id. at 279. The
basis for this holding was that, “‘if the petitioner was mentally incompetent, and therefore legally
incapable, he would be denied any opportunity to assert his constitutional rights in a post-conviction
petition, unless the period of limitations was suspended during his mental incompetence.’” Id. at
278 (quoting Watkins v. State, 903 S.W.2d 302, 307 (Tenn. 1995)) (emphasis changed). The
petitioner in Seals was legally incapable of raising his post-conviction claims due to his mental
incompetence: an unfortunate condition beyond his control. Here, the Defendants allege that they



         9
          And it is this exculpa tory evid ence which also supp orts the De fendan ts’ claims tha t the State kn owing ly
presented false testimo ny at trial.

         10
           While the Jeffcoat and Woo dall decisions m ade ava ilable police records p ost-conv iction, the pr osecution is
bound under Brady to provide exculpatory information upon request even before a defendant’s trial. That a defendant
may have finally obtained exculpatory material after either of these cases was filed should not exonerate the State from
any im proper f ailure to ha ve prov ided it earlier.

                                                          -10-
were legally incapable of raising their claims due to the State’s alleged refusal to provide them with
constitutionally required factual information: a factual situation equally beyond their control.

        In spite of our concern that the Wright decision may be too heavily weighted in favor of the
State, we are not unmindful of the potential for abuse that would arise were our supreme court to
overrule Wright and hold that a defendant was entitled to an evidentiary hearing upon the mere filing
of a Brady claim, irrespective of how much time had passed since conviction. We therefore examine
the merits of the doctrine of “equitable estoppel” which could be used to screen cases such as this
one. Equitable estoppel “requires that the plaintiff’s failure to bring the action within the statutory
period of limitations be attributable to deception or misconduct on the part of the [opposing party].”
Norton v. Everhart, 895 S.W.2d 317, 321 (Tenn. 1995). Under equitable estoppel, the complaining
defendant would therefore have to make an initial showing that the State had engaged in misconduct
or deception which made it impossible to have filed a timely post-conviction petition. Such a
showing, we presume, would require the defendant to submit with his petition documentation setting
forth his attempts to obtain the alleged Brady information as well as evidence of the State’s bad-faith
refusal to cooperate. The trial court could then add this information to its calculus in determining
whether the statute of limitations should be strictly applied to the defendant’s claim. While this
approach may seem to impose a fact-finding process in order to determine whether there should be
a fact-finding hearing, such an extra layer could better serve the ends that due process is meant to
achieve.11

        “[D]ue process embodies the concept of fundamental fairness.” Seals, 23 S.W.3d at 277.
“[D]ue process requires that a potential litigant be provided an opportunity for the ‘presentation of
claims at a meaningful time and in a meaningful manner.’” Id. at 278 (quoting Burford, 845 S.W.2d
at 207).

        The serious ramifications of the Wright decision in death penalty cases are apparent. If the
exculpatory evidence clearly exonerated a defendant, yet was withheld until long after the statute of
limitations had expired, Wright would appear to bar a defendant from presenting the evidence in
court based upon the need for finality and economy.

                              THE MIDDLEBROOKS ERROR
       We turn now to the Defendants’ contentions that they are entitled to a new sentencing hearing
because their death sentences are based in part on the use of an invalid aggravating circumstance.

         11
            The doctrine of “equitable tolling” would also address the instant problem. Under equitable tolling, a
defendant’s failure to timely file his post-conviction petition would be excused “only if he shows that he ‘could not,
despite the exerc ise of reaso nable dilig ence, hav e discove red all the inf ormatio n he nee ded in o rder to be able to file
his claim on time.’ In other words, ‘[e]xtraordinary circumstances far beyond the litigant’s control must have prevented
timely filing.’” United States ex rel Rice v. Haws, 2000 WL 1508242, at *5 (N.D.Ill. 2000) (quoting Taliani v. Chrans,
189 F.3d 597, 597-98 (7th Cir. 1999) and United States v. Marce llo, 212 F.3d 1005, 1010 (7th Cir. 2000)) (noting that
the statute of limitations of the Antiterrorism and Effective Death P enalty A ct of 199 6 is subject to equitable tolling).
However, our supreme court has previously declined to adopt the doctrine of equitable tolling. See Norton, 895 S.W.2d
at 321.

                                                             -11-
In sentencing each Defendant to two death penalties for the two murders they jointly committed, the
jury relied upon the following three aggravating circumstances:
               1. The defendant knowingly created a great risk of death to two or
               more persons, other than the victim murdered, during his act of
               murder;

                  2. The murder was committed for the purpose of avoiding,
                  interfering with, or preventing a lawful arrest or prosecution of the
                  defendant or another; and

                  3. The murder was committed while the defendant was engaged in
                  committing, or was an accomplice in the commission of, or was
                  attempting to commit, or was fleeing after committing or attempting
                  to commit, any first degree murder, arson, rape, robbery, burglary,
                  larceny, kidnapping, aircraft piracy, or unlawful throwing, placing or
                  discharging of a destructive device or bomb (“the felony murder
                  aggravator”).

Tenn. Code Ann. § 39-2404(i)(3), (6), (7) (Supp. 1981). The jury applied a fourth aggravating
circumstance to McKay: that he had been previously convicted of a felony which involved the use
or threat of violence to the person. Id. § 39-2404(i)(2).

        In State v. Middlebrooks, our supreme court held that application of the felony murder
aggravator to enhance a sentence for a felony murder conviction was unconstitutional. 840 S.W.2d
at 346. Accordingly, the jury’s reliance on the felony murder aggravator in determining McKay’s
and Samples’ sentences was error. Such an error is harmless, however, if an appellate court finds
“beyond a reasonable doubt that the sentence would have been the same had the jury given no weight
to the invalid felony murder aggravating factor.” Howell, 868 S.W.2d at 262.12 Our review of the
Middlebrooks error is de novo. King v. State, 992 S.W.2d 946, 949 (Tenn. 1999).

        Howell instructs us that, when conducting our harmless error review of the Middlebrooks
issue, we must review the record for those factors potentially influencing the sentence ultimately
imposed. 868 S.W.2d at 260-61. These factors include, but are not limited to, “the number and
strength of remaining valid aggravating circumstances, the prosecutor’s argument at sentencing, the
evidence admitted to establish the invalid aggravator, and the nature, quality and strength of
mitigating evidence.” Id. at 261.



         12
             The Defendants contend that the How ell analysis of a Middlebrooks error is not a pplicable to death penalties
imposed under th e statute wh ich applied to their senten ces. See Te nn. C ode A nn. § 39-2404 (Supp. 1981) . We
respectfu lly disagree. See, e.g., Harries v. State, 958 S.W.2d 799, 803 (Tenn. Crim. App. 1997) (applying How ell
analysis to Middlebrooks error comm itted in sentencing defendant under Tenn. Code Ann. § 39-2404 for murder
comm itted in 198 1). This issu e is withou t merit.

                                                          -12-
        Initially, a brief review of the facts proved during the guilt phase of the trial is helpful. At
about 11:00 p.m. on August 29, 1981, Melvin Wallace, Jr., walked into the L & G Sundry Store in
Memphis. Inside, he found two clerks whom he knew (Benjamin Cooke and Steven Jones) and the
two Defendants, whom Wallace did not know. As he waited for the sandwiches he had ordered,
Wallace saw McKay put a gun to Cooke’s head. Wallace ran for the door, and Sample said, “Halt,
nigger. I’ll shoot.” Wallace was unable to immediately stop, and Sample shot him in the thigh.
Wallace fell to the floor. As he lay there, he heard Sample say, “I ought to kill all you son-of-a-
bitches.” Sample kept asking Jones for the money. Jones told him he’d given him everything he
had. Sample said, “Give me everything below and behind the counter.” Jones said he “don’t have
no more.” Sample repeated, “I ought to kill all you son-of-a-bitches.” Sample then said, “Kill every
son-of-a-bitch in here.” According to Wallace, Sample and McKay then “went to shooting.” Cooke
was shot twice and was killed by a bullet to the back of his head. Jones was shot at least twice and
was also killed by a bullet to the back of his head. After the Defendants shot Cooke and Jones,
Sample came over to the prone Wallace, said “This nigger ain’t dead,” and shot him in the back. He
then put his gun to Wallace’s head, but the gun misfired. Wallace started wrestling with Sample and
the gun went off next to Wallace’s head. Wallace lapsed into unconsciousness. When he woke up,
he heard one of the Defendants say, “Let’s get the hell out of here.” Wallace later identified the
Defendants from line-ups.

        We turn first to the jury’s finding that each of these Defendants — with respect to each
murder — knowingly created a great risk of death to two or more persons, other than the victim
murdered, during his act of murder. This aggravating factor “contemplates either multiple murders
or threats to several persons at or shortly prior to or shortly after an act of murder upon which the
prosecution is based.” State v. Henderson, 24 S.W.3d 307, 313 (Tenn. 2000) (citations omitted).
It has most frequently been applied “where a defendant fires multiple gunshots in the course of a
robbery or other incident at which persons other than the victim are present.” Id. at 313-14 (quoting
State v. Burns, 979 S.W.2d 276, 280 (Tenn. 1998)). The proof at trial established that McKay and
Sample were acting jointly to kill three people, and they fired at least seven gunshots between them.
Thus, while the Defendants were shooting and murdering Cooke – Jones and Wallace were at a great
risk of death; and while they were shooting and murdering Jones – Cooke and Wallace were at a
great risk of death.13

        Defendants contend that this analysis results in “double counting” because it counts each
murder victim as being one of the two persons put at great risk during the other victim’s murder.
That is, the Defendants construe the aggravating circumstance as referring to “two or more persons,
other than the victims murdered” (emphasis added). We respectfully reject the Defendants’
argument, finding that this analysis favors form over substance. If the Defendants had succeeded


         13
             Arguably, each Defendant was also put at a great risk o f death by the other D efendan t’s actions of firing his
gun in th e store. There was no proof at trial, however, that Sample was ever in McKay’s line of fire or vice versa, or
that either Defendant fired his gun randomly so as to endange r the other Defendant. Rather, the proof established that
McKay and Sample took pains to execute Cooke and Jones by shots to the backs of their heads, and they tried to do the
same to Wallace.

                                                           -13-
in killing only one of the victims, there would be no question about the applicability of this factor:
that is, the Defendants would each be eligible for the death penalty based on this factor alone.14
Under the Defendants’ reasoning, this factor alone does not make them eligible because they
succeeded in killing two of the victims. That the Defendants managed to kill two of three people
— instead of only one of three — should not make them less eligible for the death penalty. The jury
properly applied this aggravating factor to both of the Defendants’ sentences.

         The proof that the Defendants committed the murders in order to avoid their arrest or
prosecution was also very strong. To establish this aggravating circumstance, the State needed to
prove only that avoidance of arrest or prosecution was “one” of the motives for the killing. See State
v. Henderson, 24 S.W.3d at 314. Here, the evidence established that the Defendants wore no
disguise while committing these offenses;15 they deliberately killed two of the three eyewitnesses
— and tried to kill the third — without provocation; and they fled the scene after the third
eyewitness appeared dead. With respect to McKay, Charles Malone testified at trial that McKay told
him the next day to purchase a bus ticket to Chicago for McKay under a false name, supporting the
inference that McKay was still attempting to avoid apprehension. Malone also testified that, when
he, McKay and Sample were subsequently approached by the police, McKay stated, “It look like
we’re going to have to kill some police, man.” Clearly, the Defendants were determined to avoid
their arrest and prosecution, and were willing to murder multiple persons in order to do so. The jury
properly applied this aggravator to both of Defendants’ sentences.

       The jury also applied a third aggravating circumstance to McKay’s sentences: that he had
previously been convicted of another felony involving the use or threat of violence to the person.
During the sentencing hearing, the State submitted undisputed proof that McKay had been convicted



         14
            W e acknowledge that a majority of a panel of this Court has found that this aggravating circumstance cannot
be applied vicariously to one defendant for the actions of his acco mplice. See Erskine Leroy Johnson, No. 02C01-9707-
CR-00292, 1999 WL 608861, at *11 (Tenn. Crim. App., Jackson, Aug. 12, 1999), perm. appeal granted (Tenn. 2000).
In Johnson, the defendant and another man entered a grocery store to rob it. Both men carried guns. The defendant
fired more than one shot, killing the owner of the store. Another shot was fired, which grazed a customer. The
defendant was convicted of felony murder and sentenced to death, in part on the basis that he knowingly created a great
risk of death to two or more persons, other than the victim murdered, during his act of m urder. See State v. Johnson,
762 S.W.2d 110, 119 (Tenn. 1988). On post-conviction, the defendant claimed that suppressed exculpatory evidence
indicated that he had not fired the shot which grazed the customer and, presumably, endangered other persons. 1999
W L 608861, at *8. The undersigned judge dissented from the majority’s holding, stating “this Defe ndant, b ased on his
participation in this armed robbery and felony-murder, is responsib le for the ac ts of his co-d efendan t such that th is
aggravating circum stance w ould ap ply even if the co-defenda nt fired the shot wh ich grazed the cu stomer.” (W elles,
J., dissenting) In the cases before us, the proof at trial was not clear about who shot and killed whom. The proof was
clear, however, that these Defendants were acting jointly to kill everyone else in the store. We find that, under the
circumstances of this case, this aggravating factor should apply to both Defendants, regardless of who fired the fatal
shots.

         15
            W e may infer this fact from Wallace’s description of the scene as he entered the store and his ability to later
identify the Defendants from a line-up.

                                                           -14-
of a 1974 robbery with a deadly weapon.16 We note that our supreme court in Howell found this
aggravating circumstance “more qualitatively persuasive and objectively reliable than others.” 868
S.W.2d at 261.

        Therefore, we find that two aggravating circumstances were properly applied to each of
Sample’s sentences, and three aggravating circumstances were properly applied to each of McKay’s
sentences. We further find that each of these aggravating circumstances was strongly supported by
the proof. We turn now to the evidence admitted to support the invalid felony murder aggravator;
the efficacy of the mitigating evidence offered on behalf of the Defendants; and the prosecutors’
arguments at sentencing.

       With respect to the evidence admitted to establish the felony murder aggravator, we must
determine whether the proof was “materially inaccurate or admissible only to support the invalid
aggravator, or whether the evidence was otherwise admissible in either the guilt or sentencing phases
of the proceeding.” Howell, 868 S.W.2d at 261. Here, the State offered no evidence at the
sentencing hearing other than proof of McKay’s prior conviction.17 Thus, the proof of the felony
murder aggravator was admitted in conjunction with proving the Defendants’ guilt of felony murder.
The proof was not materially inaccurate, nor was it admissible only to support the felony murder
aggravator. Therefore, we find that the admission of the evidence supporting the invalid aggravator
was proper.

        McKay testified on his own behalf, explaining to the jury that he had found God during his
previous stay in prison; that he had seen the error of his ways while there and straightened himself
out; and that he hadn’t murdered the victims. McKay’s sister and mother also testified on his behalf,
explaining that McKay was not a violent person and that he had been affected by his parents’ marital
problems. They pleaded with the jury to spare his life. We find this proof of mitigation to be not
particularly strong.

         Two of Samples’ foremen testified on his behalf, stating that he was an “exceptionally good”
employee, that he was “very conscientious,” and that he had “no problem with the people” he
oversaw. Sample’s sister testified, explaining that Sample had left school after the ninth grade to
start working. Samples’ mother-in law and father-in-law were also called and testified as to
Sample’s good character and as to his good qualities as husband, father, and son-in-law. His mother
testified, stating that Sample was a good son and also asking the jury to spare his life. Sample
testified on his own behalf, stating that he did not commit these crimes and asking the jury to spare
his life for the sake of his son and wife. We find this evidence offered in mitigation to be of some
weight.


        16
           This is the only proof that the State introduced during the sentencing hearing. It relied on the proof
introduced d uring the guilt pha se of the trial for the remain ing aggrava ting circumstanc es.

        17
          The State also asked a witness testifying on behalf of Sample if he knew that Sample had “been convicted
of murdering a sixteen year old clerk and a twenty-four year old clerk in the perpetration of a robbery?”

                                                      -15-
       The State’s opening statement was very brief, and basically just mentioned the four
aggravating circumstances it intended to rely upon. During closing argument, the prosecution
focused primarily on explaining why the Defendants’ proof did not constitute mitigating
circumstances that outweighed the four aggravating factors. While the prosecution did mention the
felony murder aggravator several times, this issue was not dwelled upon or given undue emphasis.

       With respect to McKay’s sentences, then, we find three remaining valid aggravating
circumstances, all of which were strongly established, and mitigating circumstances of negligible
weight. We find that no improper evidence was introduced to support the felony murder aggravator
and that the State’s argument did not unduly emphasize this invalid aggravating circumstance.
Accordingly, we find beyond a reasonable doubt that the jury would have imposed the death
sentence on McKay for each murder absent consideration of the felony murder aggravating
circumstance. We therefore find no error in McKay’s sentencing that requires a new sentencing
hearing.

        Similarly, with respect to Sample’s sentences, we find two remaining valid aggravating
circumstances, both of which were strongly established, and mitigating circumstances of slight
weight. No improper evidence was introduced to support the felony murder aggravator and the
State’s argument did not unduly emphasize this invalid aggravating circumstance. Accordingly, we
find beyond a reasonable doubt that the jury would have imposed the death sentence on Sample for
each murder absent consideration of the felony murder aggravating circumstance. We therefore find
no error in Sample’s sentencing that requires a new sentencing hearing.

                                           CONCLUSION
        Under our supreme court’s decision in Wright v. State, we hold that the Defendants’ Brady
claims in their petitions for post-conviction relief are barred by the statute of limitations. We further
find that the Middlebrooks error committed in their sentencing hearing was harmless beyond a
reasonable doubt. Accordingly, the judgment of the trial court is affirmed.




                                                ___________________________________________
                                                DAVID H. WELLES, JUDGE




                                                  -16-
