             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON

                            NOVEMBER 1995 SESSION              FILED
                                                          September30, 1996
MICHAEL EUGENE SAMPLE,          *     No. 02C01-9505-CR-00131
                                                          Cecil Crowson, Jr.
                                                          Appellate Court Clerk
             APPELLANT,         *     SHELBY COUNTY

VS.                             *     Hon. Bernie Weinman

STATE OF TENNESSEE,             *     (Post-Conviction-- Death Penalty)

             APPELLEE.          *


LARRY McKAY,                    *     No. 02C01-9505-CR-00139

             APPELLANT,         *     SHELBY COUNTY

VS.                             *     Hon. Bernie Weinman

STATE OF TENNESSEE,             *     (Post-Conviction-- Death Penalty)

             APPELLEE.          *


For Appellant Sample:                 For the Appellee
David M. Eldridge                     Charles W. Burson
606 W. Main Ave.                      Attorney General & Reporter
P.O. Box 1126                         450 James Robertson Parkway
Knoxville, TN 37902                   Nashville, TN 37243-0493

Harry R. Reinhart                     John H. Baker, III
536 South High Street                 Asst. Attorney General & Reporter
Columbus, OH 43215-5605               450 James Robertson Parkway
                                      Nashville, TN 37243-0493
For Appellant McKay:
Jacob M. Dickinson, IV                John W. Pierotti
648 Poplar Ave.                       District Attorney General
Memphis, TN 38105-4512
                                      Reginald R. Henderson
David C. Stebbins                     Asst. District Attorney General
8 East Long Street, Suite 424         201 Poplar Ave.
Columbus, OH 43215                    Memphis, TN 38103


OPINION FILED: ___________

REVERSED AND REMANDED


William M. Barker, Judge
                                     OPINION
              The appellants, Michael Eugene Sample and Larry McKay, appeal as of right

from the Shelby County Criminal Court’s judgments denying their petitions for post-

conviction relief.1 The appellants were each convicted in a joint trial of two counts of felony

murder and sentenced to death in November of 1982. Their convictions and sentences

were affirmed on direct appeal by the Tennessee Supreme Court, and a petition for writ

of certiorari was denied by the United States Supreme Court. State v. McKay & Sample,

680 S.W.2d 447 (Tenn. 1984), cert. denied, 470 U.S. 1034 (1985). Initial suits for post-

conviction relief were denied by the trial court and affirmed on appeal. Larry McKay &

Michael Eugene Sample v. State, No. 25 (Tenn. Crim. App., Mar. 1, 1989, Jackson), perm.

to appeal denied, (Tenn. 1989). Subsequent petititions for post-conviction relief filed by

each were also denied by the trial court and affirmed on appeal. Michael E. Sample &

Larry McKay v. State, No. 02C01-9104-CR-00062 (Tenn. Crim. App., Feb. 15, 1995,

Jackson)(application for permission to appeal pending).2



              Sample’s present post-conviction suit was filed on January 27, 1995, and

McKay’s suit was filed on February 1, 1995. The grounds for relief in both suits were

essentially the same: (a) that the State of Tennessee presented false testimony at trial and

suppressed exculpatory evidence; (b) that the death sentences were predicated on an

invalid aggravating circumstance under State v. Middlebrooks, 840 S.W.2d 317 (Tenn.

1992); (c) that the instructions defining reasonable doubt in the guilt and sentencing

phases were unconstitutional; and (d) that numerous errors committed by the trial court,




          1
                The appellants filed separate petitions and separate appeals. We have
   consolidated the appeals pursuant to Tennessee Rules of Appellate Procedure 16(b).

          2
                   The opinion filed February 15, 1995, referred to the appellants’ “fourth
   amended petition for post-conviction relief,” which was filed on June 13, 1989, and
   denied by the trial court on March 12, 1991. Although the pleadings are not in this
   record, it appears that Sample and McKay filed pro se petitions for post-conviction relief
   on June 28, 1989, and September 16, 1992, and that these petitions were denied by
   the trial court. This court alluded to additional petitions for post-conviction relief that
   had been filed, but it did not address them in the opinion of February 15, 1995.

                                              2
prosecutors, and trial counsel violated the Tennessee and United States Constitutions.3



                The trial court dismissed Sample’s petition without an evidentiary hearing

after ruling that he could not proceed with a post-conviction petition while an appeal from

the denial of a prior post-conviction suit was pending with the Court of Criminal Appeals.

The trial court dismissed McKay’s petition on the ground that it had been filed after the

expiration of the three year statute of limitations then applicable to post-conviction cases.4

On appeal, the appellants argue that the trial court erred in dismissing their petitions

without a hearing. They reiterate the claims asserted in their petitions and also argue that

the trial court erred in denying their requests for state funded expert and investigative

services.



                After a thorough review of the record and authority, we conclude that the trial

court erred in dismissing the petitions. The trial court’s judgments are reversed, and these

cases are remanded for further proceedings consistent with this opinion.



                We will briefly summarize the convicting evidence. On August 29, 1981,

Melvin Wallace, Jr., entered the L & G grocery store in Memphis, Tennessee. He saw two

employees of the store, Benjamin Cooke and Steve Jones, both of whom he knew. He

saw a man he later identified at trial as McKay holding a gun to Cooke’s head, and he

realized a robbery was in progress. When Wallace ran for the door, a second man, whom

he identified at trial as Sample, shot him in the thigh and in the back. Wallace heard

Sample demand money and threaten to kill everyone in the store. Shots followed.

Wallace saw McKay shoot Cooke in the head. Wallace struggled with Sample, and

Sample tried to shoot him once more. McKay and Sample then fled from the store. Cooke

and Jones died from shots to the head but Wallace survived. Charles Rice testified that


            3
                   The specific allegations will be set forth herein.
            4
                   See Tenn. Code Ann. § 40-30-102 [repealed in Acts 1995, ch. 207 § 1].

                                               3
he also saw the robbery in progress; he later identified Sample and McKay. The State

introduced physical evidence relating to the crime and evidence purporting to link the

appellants to other robberies committed in the area. The appellants were convicted of two

counts of murder in the perpetration of armed robbery.



                                              I

              Sample’s first issue is that the trial court erred in dismissing the petition due

to the pendency of an appeal from a previous petition for post-conviction relief. He argues

that the basis for dismissal was factually and legally erroneous. The State concedes that

the trial court erred. We agree.



              The record indicates that this petition was filed on January 27, 1995. The

State’s answer to the petition was filed on February 10, 1995; it asserted only that the

appellant was not permitted to pursue the post-conviction case while a separate post-

conviction suit was pending before the Court of Criminal Appeals. The trial court dismissed

the petition on that basis on the same day, February 10, 1995. Five days later, our court

filed its opinion in Michael E. Sample & Larry McKay v. State, No. 02C01-9104-CR-00062

(Tenn. Crim. App., Feb. 15, 1995, Jackson). Sample filed a reply with the trial court,

asserting that the State’s answer was factually and legally incorrect. The trial court,

however, took no further action.



              In Laney v. State, 826 S.W.2d 117 (Tenn. 1992), which is cited by both sides,

the trial court dismissed a petition for post-conviction relief because a previously filed

petition was pending on appeal.       Our supreme court said that the Post-Conviction

Procedure Act did not “as a matter of law ban multiple suits attacking the same conviction.”

Id. at 118. Instead, where “separate and distinct” suits are filed, a trial court has the

jurisdiction to hear and determine the issues even if the appeal from a previous petition is

pending before a higher court. Id.



                                              4
               Accordingly, the trial court erred in dismissing the petition on this basis. The

court had the jurisdiction to consider Sample’s petition, and it erred in failing to do so.



                                              II

               Sample and McKay argue that they were denied their rights to a fair trial and

to due process under the Tennessee and United States Constitutions because the State

presented false testimony at trial and suppressed exculpatory evidence. They assert that

the grounds for relief were unknown and unavailable prior to the decision in Capital Case

Resource Center of Tennessee, Inc. v. Woodall, No. 01A01-9104-CH-00150 (Tenn. App.,

Jan. 29, 1992, Nashville). In Woodall, the Court of Appeals held that police investigative

records concerning a case under collateral attack were not exempt from disclosure under

the Tennessee Public Records Law. Id. slip op. at 5; see also Tenn. Code Ann. § 10-7-

501, et. seq. Thus, having obtained previously suppressed police records and statements,

the appellants argue that the trial court should have conducted a hearing to further develop

the issues.5



               The State argues on appeal that Sample has not shown that he is entitled to

relief on the substantive allegations, but it concedes that the trial court should have

conducted further proceedings to consider the issue raised and any procedural defenses

available to the State. The State argues that McKay failed to allege factual grounds in

support of his claim and also failed to overcome procedural barriers to hearing the petition.

The State maintains that the trial court correctly dismissed McKay’s suit on the basis of the

statute of limitations.




           5
                 The records containing the allegedly exculpatory evidence were attached
   to the appellants’ post-conviction petitions. It is not clear from the petition exactly when
   the information was obtained.

                                               5
                                               A

              We will summarize the factual allegations made by both Sample and McKay

in support of their claims. They insist that the State’s key witness at trial, Melvin Wallace,

Jr., gave false testimony. Wallace testified, in pertinent part, that he wrestled with Sample,

got a “good look” at Sample’s face, and was “positive” of his identification of Sample at

trial. Wallace admitted at trial that he failed to identify Sample in a physical line-up, but he

said he was confused due to medication. Sample and McKay assert that they filed motions

requesting exculpatory evidence prior to trial and that they received a three page statement

Wallace made to authorities on August 31, 1981. They allege, however, that records

obtained under the public records law revealed that the State withheld the following

evidence:

              (1) On August 30, 1981, Wallace told Memphis Police Sgt. J.D.
              Welch that he did not notice subject #2 [allegedly Sample]
              during the robbery.

              (2) Wallace told Sgt. Welch that subject #1 [allegedly McKay]
              was the one who stood over him and shot him [and not subject
              #2, allegedly Sample, as Wallace testified at trial].

              (3) On November 17, 1981, Wallace told Memphis Police
              Officer J.D. Douglas that he could not identify the second man
              [allegedly Sample] in the robbery. Wallace only saw one of the
              men during the robbery, the one who shot him [allegedly
              McKay].

              (4) Wallace gave physical descriptions of the suspects,
              including their height, weight, and skin complexion, that did not
              match Sample or McKay.

The appellants allege that the State withheld additional exculpatory evidence that we

summarize below:

              (1) Reports that indicated Sample’s and McKay’s fingerprints
              were not found at the L & G grocery store.

              (2) Information regarding other potential suspects who were
              alleged to be near the scene at the time of the crime, including
              Sammy House.

              (3) Descriptions of the perpetrators given to the police
              dispatcher that did not match Sample or McKay.




                                               6
              (4) Evidence that drugs were commonly sold from the L&G
              grocery store, which provided other possible motives and
              suspects for the crime.

              (5) Descriptions of the perpetrators given to police officers by
              Charles Rice that did not match Sample or McKay.

              (6) Inconsistent statements made by Charles Rice about the
              offense and what he observed.

              (7) Exculpatory evidence relating to the other robberies in the
              area which the State tried to link to Sample and McKay.



              The appellants’ allegations clearly implicate constitutional rights. In Brady v.

Maryland, 373 U.S. 83, 87 (1963), the United States Supreme Court held that the

prosecution has the duty to furnish exculpatory evidence to the accused upon request.

Exculpatory evidence may pertain not only to the guilt or innocence of the accused, but

also to the punishment which may be imposed if the accused is convicted of the crime.

State v. Marshall, 845 S.W.2d 228 (Tenn. Crim. App. 1992). Any “suppression by the

prosecution of evidence favorable to an accused upon request violates due process where

the evidence is material either to guilt or to punishment, irrespective of the good faith or

bad faith of the prosecution.” Brady v. Maryland, 373 U.S. at 87. The duty to disclose

extends to all “favorable information” regardless of whether the evidence is admissible at

trial. State v. Marshall, 845 S.W.2d at 233; Branch v. State, 4 Tenn. Crim. App. 164, 168,

469 S.W.2d 533, 536 (1969).



              Similarly, it is well established that the State’s knowing use of false testimony

to convict an accused violates the right to a fair and impartial trial as embodied in the due

process clause of the fourteenth amendment to the United States Constitution and article

1, sections 8 and 9 of the Tennessee Constitution. Pyle v. Kansas, 317 U.S. 213, 216

(1942); State v. Spurlock, 874 S.W.2d 602, 617 (Tenn. Crim. App. 1993). When a witness

answers questions on direct or cross examination falsely, the prosecution has an

affirmative duty to correct the false testimony. Giglio v. United States, 405 U.S. 150, 153

(1972); Napue v. Illinois, 360 U.S. 264, 269 (1959); State v. Spurlock, 874 S.W.2d at 617.


                                              7
              Accordingly, the allegations made by Sample and McKay clearly stated

constitutional grounds for relief. Tenn. Code Ann. § 40-30-105. The key issues were

whether the grounds were viable at this stage of the post-conviction proceedings. As we

will discuss, the trial court did not give due consideration to these key issues.



                                              B

                                             (1)

              Under the Post-Conviction Procedure Act governing these petitions, a

petitioner could raise all constitutional claims except those which have been previously

determined, waived, or barred by the statute of limitations. The statutory definitions for

previous determination and waiver were as follows:

              (a) A ground for relief is ‘previously determined’ if a court of
              competent jurisdiction has ruled on the merits after a full and
              fair hearing.

              (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.

              (2) There is a rebuttable presumption that a ground for relief
              not raised in any such proceeding which was held was waived.

Tenn. Code Ann. § 40-30-112.



              In House v. State, 911 S.W.2d 705 (Tenn. 1995), cert. denied, ___ U.S. ___,

116 S.Ct. 1685 (1996), our supreme court held that “a ‘full and fair hearing’ sufficient to

support a finding of previous determination occurs if a petitioner is given the opportunity

to present proof and argument on the petition for post-conviction relief.” Id. at 706. With

regard to waiver, the court held:

              [T]he 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.
              Waiver is to be determined by an objective standard under
              which a petitioner is bound by the action or inaction of his
              attorney. Because there is no right to effective assistance of
              counsel in post-conviction proceedings, an allegation of
              ineffective assistance of prior post-conviction counsel does not

                                              8
               preclude application of the defenses of waiver and previous
               determination.

Id. Thus, the court gave a broad interpretation to both statutory defenses.



               The burden is on the post-conviction petitioner to allege facts in a petition to

overcome the application of procedural barriers. State v. Smith, 814 S.W.2d 45, 48 (Tenn.

1991); see also Tenn. Code Ann. § 40-30-104(10). If a competently drafted petition is

before the court, and “all pleadings, files and records of the case which are before the court

conclusively show that the petitioner is entitled to no relief, the court may order the petition

dismissed.” Tenn. Code Ann. § 40-30-109(a)(1). However, in reviewing a post-conviction

petition and determining whether it states a colorable claim for relief, the trial court must

treat the allegations in the petition as true. Skinner v. State, 4 Tenn. Crim. App. 447, 472

S.W.2d 903, 904 (1971).



               Both Sample and McKay alleged numerous grounds in their petitions to rebut

these defenses, principally that they were unable to raise these issues prior to the Woodall

decision. Additionally, they assert that as convicted felons they were unable to obtain

public records even after the Woodall decision.        See, e.g., In Re: Records Sought By

Daniel B. Taylor v. Neil, No. 01AO1-9211-CH-00439 (Tenn. App., Mar. 17, 1993), perm.

to appeal denied, (Tenn. 1993). Thus, they specifically assert that they did not personally

make a “knowing and understanding” waiver of the issues.6



               With regard to Sample, the State asserts in its brief that an exculpatory

evidence issue was raised in Sample’s June 1989 petition and that the use of false




           6
                 In this regard, Sample and McKay cite opinions from this court supporting
   a subjective test for waiver. See Paul Gregory House v. State, No. 03C01-9110-CR-
   00326 (Tenn. Crim. App., Mar. 28, 1994, Knoxville) & Donald Edward Johnson v. State,
   No. 02C01-9111-CR-00237 (Tenn. Crim. App., Mar. 23, 1994). As noted above, the
   supreme court’s opinion in House, which was released after the briefing of this appeal,
   mandates an objective standard.

                                               9
evidence issue was not raised on direct appeal or in a prior post-conviction petition.7 The

State correctly concedes, however, that Sample’s petition rebutted the application of

procedural barriers by asserting that the grounds for relief were unavailable before the

Woodall decision. In other words, if Sample’s allegations are accepted as true, the

grounds for relief were unavailable due to the State’s suppression of evidence. Thus,

Sample could not have had an opportunity to present the issues for a ruling “on the merits”

for the purpose of previous determination. Tenn. Code Ann. § 40-30-112(a). Likewise, the

issues could not have been presented in a prior suit for the purpose of waiver. Tenn. Code

Ann. § 40-30-112(b)(1); see Wooden v. State, 898 S.W.2d 752, 754 (Tenn. Crim. App.

1994); Stephen C. Parker v. State, No. 01C01-9008-CR-00188 (Tenn. Crim. App., Feb. 26,

1991, Nashville), perm. to appeal denied, (Tenn. 1991). Moreover, the trial court dismissed

Sample’s suit on a legally incorrect basis without giving any consideration to the allegations

or the possible statutory defenses. Accordingly, as the State concedes on appeal, the

defenses of waiver and previous determination were rebutted by Sample.



              With regard to McKay, the State makes no concessions. Instead, the State

argues on appeal that the exculpatory evidence issue was raised in a petition filed in June

of 1989 and that the use of false evidence issue was raised in a prior petition filed on

September 16, 1992. As both suits were dismissed by the trial court, the State suggests

that the issues were previously determined. These contentions are not supported by the

record.8 Moreover, the State did not address McKay’s allegations that the grounds for

relief could not have been raised earlier or heard on the merits due to the State’s

suppression of the evidence and the unavailability of the evidence prior to Woodall. Thus,


          7
                We initially note that the State failed to raise the defenses of waiver and
   previous determination in its answers to the petitions, which could render the defenses
   waived on appeal. See State v. James Richard Perry, No. 03C01-9401-CR-00016
   (Tenn. Crim. App., July 24, 1995, Knoxville). In any event, we conclude that the State
   has not shown that these defenses were substantiated by the record.
          8
                 Moreover, the State again failed to raise these defenses in its answer to
   McKay’s petition. The pleadings attached to the State’s brief do not constitute evidence
   for our consideration.

                                             10
we conclude that McKay, like Sample, rebutted the defenses of waiver and previous

determination.



                                              (2)

               The State also argues that Sample and McKay filed their petitions after the

expiration of the three year statute of limitations then applicable to post-conviction cases.

While the State concedes that Sample’s suit should be remanded for further consideration,

it maintains that McKay’s suit was properly dismissed. The relevant statute provided:

               [a] prisoner in custody under sentence of a court of this state
               must petition for post-conviction relief under this chapter within
               three (3) years of the date of final action of the highest state
               appellate court to which an appeal is taken or consideration of
               such petition shall be barred.

Tenn. Code Ann. § 40-30-102 [repealed by Acts 1995, ch. 207, §1]. The statute, which

took effect July 1, 1986, was applied prospectively by our courts. State v. Masucci, 754

S.W.2d 90 (Tenn. Crim. App. 1988); Abston v. State, 749 S.W.2d 487 (Tenn. Crim. App.

1988). Thus, defendants like McKay and Sample, whose cases were final prior to the

enactment of the statute, were given three years from July 1, 1986, in which to seek post-

conviction relief.



               Sample and McKay allege that application of the statute would deny them a

reasonable opportunity to have the suppression of exculpatory evidence and the use of

false testimony issues considered inasmuch as they were not known or available until after

the expiration of the three year period. They cite Burford v. State, 845 S.W.2d 204 (Tenn.

1992), in which the supreme court said:

               [B]efore a state may terminate a claim for failure to comply with
               procedural requirements such as statutes of limitations, due
               process requires that potential litigants be provided an
               opportunity for the presentation of claims at a meaningful time
               and in a meaningful manner. The question, then, is ‘whether
               the state’s policy reflected in the statute affords a fair and
               reasonable opportunity for ... bringing ... suit.’ Pickett v.
               Brown, 638 S.W.2d 369, 376 (Tenn. 1982), rev’d on equal
               protection grounds, 462 U.S.1, 103 S.Ct 2199, 76 L.Ed. 2d 372
               (1983). In other words, the test is whether the time period


                                              11
              provides an applicant a reasonable opportunity to have the
              claimed issue heard and determined. Michel v. Louisiana, 350
              U.S. 91, 93, 76 S.Ct. 158, 160, 100 L.Ed 83, 89 (1955).

Burford v. State, 845 S.W.2d at 208 (emphasis added; citation omitted). As a result, the

court in Burford recognized that “it is possible that under the circumstances of a particular

case, application of the statute may not afford a reasonable opportunity” to litigate an

issue. Id.



              Burford was clarified by the supreme court in Sands v. State, 903 S.W.2d 297

(Tenn. 1995). In certain cases, “due process prohibits the strict application of the post-

conviction statute of limitations to bar a petitioner’s claim when the grounds for relief,

whether legal or factual, arise after the ‘final action of the highest state appellate court to

which an appeal is taken’-- or, in other words, when the grounds arise after the point at

which the limitations period would normally have begun to run.” Id. at 301 (emphasis

added). The court set forth the following process in analyzing Burford situations:

              (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,’ Burford, 845 S.W.2d at 207, against the State’s
              interest in preventing the litigation of ‘stale and fraudulent
              claims.’ Id. at 208.

Sands, 903 S.W.2d at 301; see also Caldwell v. State, 917 S.W.2d 662 (Tenn. 1996).



              Here, the appellants’ direct appeals were decided in 1984. The effective date

of the statute of limitations, as noted, was July 1, 1986. Given the prospective application

of the statute, the appellants had three years from the effective date in which to file post-

conviction petitions. They have alleged that the legal and factual grounds in support of

their exculpatory evidence and false testimony issues arose after the statute had



                                              12
commenced to run and then expired. Thus, in accepting the allegations as true, it would

appear that the appellants have had no reasonable opportunity in which to litigate the

issues despite prior post-conviction suits. Moreover, in balancing the interests of the

parties, it is obvious that the rights affected-- due process and a fair trial-- implicate

personal trial rights of the appellants. See Caldwell v. State, 917 S.W.2d at 667-68. As

such, the grounds raised by Sample and McKay directly affect “the justice or integrity of the

conviction or sentence.” Id. at 667 (emphasis in original).



              We note that a Brady issue was envisioned as a later arising ground in

Justice Daughtrey’s concurring opinion in Burford: “[L]egitimate grounds for relief might

come to light long after the three year period has run, as in the case of suppression of

material evidence by the prosecution that is concealed for many years after the trial.” See

Burford v. State, 845 S.W.2d at 211 (Daughtrey, J., concurring). Similarly, in Arthur L.

Armstrong v. State, No. 01C01-9311-CR-00403 (Tenn. Crim. App., Dec. 8, 1994,

Nashville), a habeas corpus petitioner raised a late-arising exculpatory evidence issue.

Our court noted that the issue could not be raised in a state habeas corpus case but

indicated that the petitioner could again seek post-conviction relief. The court said:

              The state concedes, and we agree, that under the rule of
              Burford v. State, 845 S.W.2d 204 (Tenn. 1992), the three-year
              statute of limitations would not apply to a petition raising
              allegations of a recently discovered Brady issue. In Burford,
              the Supreme Court balanced the governmental interest in
              preventing litigation of stale or fraudulent claims and the
              interest of administrative efficiency against the private interests
              of the defendant and concluded that the governmental
              interests did not outweigh the infringement of a constitutional
              right affecting life or liberty. 845 S.W.2d at 209. In a
              concurrence to Burford, Justice Daughtrey hypothesized a
              situation in which the suppression of material evidence by the
              prosecution is concealed for many years after trial and
              concluded that the application of a statute of limitations in such
              a situation would be a violation of due process. Id. at 211.

Armstrong, slip op. at 7.




                                              13
              Likewise, in Wooden v. State, 898 S.W.2d at 753, a petitioner alleged in his

third petition for post-conviction relief that the state had suppressed exculpatory evidence.

He argued that the issue was not previously available because he had been denied access

to records under the Public Records Law. Our court, after discussing possible exceptions

to the three year statute of limitations under Burford, remanded the case to the trial court

with the following instructions:

              Upon remand, the trial court should consider first whether the
              evidence is in fact exculpatory. If so, it can then determine
              whether the evidence supports the application of the Burford
              due process exception to the statute of limitations. If each of
              these questions is resolved in the affirmative, the trial court
              may then consider appropriate relief.

898 S.W.2d at 755.



              Accordingly, we conclude that the State has not shown that the statute of

limitations barred the appellants’ petitions, insofar as these grounds are concerned. To the

contrary, we believe that a hearing is necessary to further consider the issue.



                                             C

              In summary, we conclude that Sample and McKay have stated constitutional

grounds for relief with regard to the use of false testimony and suppression of exculpatory

evidence. The appellants’ allegations as to why the claims were not waived, previously

determined, or barred by the statute of limitations rebutted the application of these

statutory defenses. The State made no effort in the trial court to show that the defenses

were applicable and it has not substantiated its allegations on appeal. Moreover, the State

did not comply with its statutory duty to compile those portions of the record necessary to

resolve the issues. Tenn. Code Ann. § 40-30-114.9 Thus, we conclude that the cases

must be remanded to the trial court for further consideration. If the appellants’ allegations



          9
                 Both Sample and McKay raise the State’s failure to comply with its
   statutory duty in this regard as separate issues on appeal. On remand, the State shall
   comply with the relevant statutes. Tenn. Code Ann. § 40-30-114.

                                             14
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.



                                             III

               Sample and McKay next argue that they were entitled to post-conviction relief

under State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992). In Middlebrooks, our supreme

court held that “when a defendant is convicted of first-degree murder solely on the basis

of felony murder, the aggravating circumstance set out in Tenn. Code Ann. § 39-2-

203(i)(7)(1982) and §39-13-204(i)(7)(1991) does not narrow the class of death eligible

murderers sufficiently under the Eighth Amendment to the United States Constitution and

Article I, section 16 of the Tennessee Constitution because it duplicates the elements of

the offense.” Id. at 346.10 The appellants allege that the factor was erroneously applied

in their cases, that harmless error analysis is inappropriate when reviewing errors made

in a capital sentencing proceeding, and that, assuming a harmless error analysis must be

applied, the Middlebrooks error was not harmless under the facts and circumstances of

these cases.



               Middlebrooks was decided on September 8, 1992. The constitutional rule

announced therein was later held to apply retroactively in post-conviction cases. Barber

v. State, 889 S.W.2d 185 (Tenn. 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1177, 130

L.Ed.2d 1129 (1995); see also Workman v. State, 868 S.W.2d 705 (Tenn. Crim. App.

1993). In Barber, the court said:

               When an aggravating circumstance is improperly injected into
               the process by which the juror must weigh aggravating and
               mitigating circumstances to determine a sentence, the integrity
               and reliability of the sentencing process is jeopardized
               because the death penalty may not be reserved for only the
               most culpable defendants. For this reason, we apply
               Middlebrooks retroactively....


          10
                   The court later clarified that its decision was based independently upon
   Article I, section 16 of the Tennessee Constitution. State v. Howell, 868 S.W.2d 238
   (Tenn. 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1339, 127 L.Ed.2d 687 (1994).

                                             15
Id. at 187.



                   The State concedes that the issue has not been waived or previously

determined with regard to either Sample or McKay.11 Moreover, although Middlebrooks

was decided well after the statutory period of limitations had commenced and expired, the

State acknowledges that it is a later-arising ground involving significant liberty interests to

the appellants. As such, application of the three year statute of limitations would deny the

appellants a reasonable opportunity to have the claim litigated. See Sands v. State, 903

S.W.2d at 301; Burford v. State, 845 S.W.2d at 208. Additionally, we note that the

appellants’ petitions were filed within three years of the Middlebrooks opinion. See

Lawrence Moore v. State, No. 03C01-9504-CR-00122 (Tenn. Crim. App., Feb. 14, 1996,

Knoxville)(petition filed within three years of opinion announcing a new constitutional rule);

Rudy Myers v. State, No. 01C01-9308-CC-00270 (Tenn. Crim. App., Jan. 20, 1994,

Nashville)(petition filed within three years of a new, retroactively applied constitutional rule).

Thus, the claim under Middlebrooks was a viable ground for post-conviction relief, and the

trial court erred in dismissing the petitions without considering the issues.



                   With regard to the substance of the issue, the appellants concede that the

original sentencing jury found aggravating circumstances in addition to the felony murder

factor.12 Nonetheless, the appellants contend that a new sentencing hearing is mandated


              11
                  On appeal, the State notes that McKay and Sample filed pro se motions
   to have a Middlebrooks issue included with a prior post-conviction appeal to this court.
   A judge of this court granted the motion on October 23, 1992; however, the opinion filed
   by this court on February 15, 1995, does not address Middlebrooks. Thus, the State
   correctly concedes that the issue has not been waived or previously determined.
              12
                  As to Sample, the jury also found that he created a great risk of death to
   two or more persons other than the victims murdered, and that he committed the
   murder to avoid, interfere with, or prevent a lawful arrest or prosecution. See Tenn.
   Code Ann. § 39-2-203(i)(3) & (i)(6)(presently §39-13-204(i)(3) & (i)(6)). As to McKay,
   the jury also found that he had a prior conviction for a felony involving violence to a
   person, that he created a great risk of death to two or more persons other than the
   victims murdered, and that he committed the murders to avoid, interfere with, or prevent
   a lawful arrest or prosecution. Tenn. Code Ann. § 39-2-203(i)(2), (i)(3), & (i)(6)
   (presently §39-13-204(i)(2), (i)(3), & (i)(6)).

                                               16
under Tennessee constitutional and statutory law because an appellate court cannot

reweigh aggravating and mitigating factors or otherwise conduct a harmless error analysis.

Moreover, the appellants argue that even if a harmless error analysis is applied, the

Middlebrooks errors were not harmless under either Chapman v. California, 386 U.S. 18

(1967) or State v. Howell, 868 S.W.2d at 260.13 The appellants cite Rickman v. Dutton,

864 F. Supp. 686 (M.D. Tenn. 1994) in support of their position.



               In State v. Howell, our supreme court held that a Middlebrooks violation was

subject to a harmless error analysis. In undertaking such an analysis, an appellate court

should consider “the number and strength of the remaining 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. The

court further said:

               [E]ven more crucial than the sum of the remaining aggravating
               circumstances is the qualitative nature of each circumstance,
               its substance and persuasiveness, as well as the quantum of
               proof supporting it. In that respect, the Tennessee statute
               assigns no relative importance to the various statutory
               aggravating circumstances. By their very nature, and under
               the proof in certain cases, however, some aggravating
               circumstances may be more qualitatively persuasive and
               objectively reliable than others....

Id. at 260-61. Upon reviewing these factors, an appellate court may uphold a death

sentence if it concludes “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....”

Id. at 262 (citing Stringer v. Black, 503 U.S. 222 (1992)). Since its decision in Howell, the


          13
                  As a corollary to this issue, the appellants argue that Chapman, and not
   Howell, sets forth the proper test to determine harmless error, that is, whether the State
   proves “beyond a reasonable doubt that the error...did not contribute to the verdict
   obtained.” Chapman, 386 U.S. at 24. Moreover, the appellants argue that the test
   formulated in Howell violates the Tennessee and United States Constitutions. In
   Howell, our supreme court considered Chapman and other applicable United States
   Supreme Court cases in formulating its harmless error analysis. Id. at 262 (citing,
   Stringer v. Black, 503 U.S. 222 (1992), Sochor v. Florida, ___ U.S. ___, 112 S.Ct.
   2114, 119 L.Ed.2d 326 (1992), Clemons v. Mississippi, 494 U.S. 738 (1990), &
   Satterwhite v. Texas, 486 U.S. 249 (1988)). Thus, we view Howell as consistent with
   the controlling authority, and we reject the appellants’ contentions.

                                             17
supreme court has applied the harmless error analysis on numerous occasions. State v.

Smith, 893 S.W.2d 908, 925 (Tenn. 1994), cert. denied, ___ U.S. ___, 116 S.Ct. 99, 133

L.Ed.2d 53 (1994); Barber v. State, 889 S.W.2d at 187-189; State v. Nichols, 877 S.W.2d

722, 738 (Tenn. 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 909, 130 L.Ed.2d 791 (1995);

State v. Cazes, 875 S.W.2d 253, 269-70 (Tenn. 1994), cert. denied, ___ U.S. ___, 115

S.Ct. 743, 130 L.Ed.2d 644 (1995).



              Thus, our supreme court has not only adopted a harmless error analysis for

this type of case, it has also applied the analysis on numerous occasions. As an

intermediate appellate court, we are bound to follow our supreme court precedent over the

federal district court case of Rickman v. Dutton, supra, which is cited by the appellants.

See State v. Bowers, 673 S.W.2d 887, 889 (Tenn. Crim. App. 1984); see also Rotunda &

Nowak, Treatise on Constitutional Law: Substance & Procedure, 2nd, §1.6(c)(“because the

state courts are not ‘lower courts,’ they are not required to follow the interpretations of

lower federal courts, such as the Court of Appeals with jurisdiction over their state territory,

even on matters relating to the Constitution of the United States.”). We therefore reject the

appellants’ contentions with respect to the propriety and manner of a harmless error review

in death penalty sentencing procedures by an appellate court. Given the presence of a

Middlebrooks error, a harmless error analysis is not only appropriate but is mandated by

our supreme court.



              While not conceding any of their other arguments, Sample and McKay

contend that the error was not harmless under Chapman or Howell. They argue that there

was significant mitigating evidence at trial, that the prosecution focused its arguments and

its evidence on the invalid aggravating factor, and that the evidence supporting the

remaining aggravating factors was weak or altogether insufficient. The State contends that

the error was harmless. Because of the scant record before our court and because of the

remand on other issues, we conclude that the issues should be considered first by the trial



                                              18
court. The trial judge is in the better position to review the record of the proceedings, to

hear the arguments of the parties, and to undertake the initial review of the Middlebrooks

error under the analysis set forth in Howell.



                                                IV

              The appellants contend that they were entitled to post-conviction relief

because the jury instructions at trial equated “reasonable doubt” with “moral certainty” and

allowed the jury to convict if it could “let the mind rest easily on the certainty of guilt.” The

appellants argue that the instruction relieved the State of its burden of proof in violation of

the Tennessee and United States Constitutions. The appellants claim that the issue was

not raised earlier and is not barred by the statute of limitations because it is based on the

recent United States Supreme Court’s opinions in Victor v. Nebraska, 511 U.S. 1 (1994)

and Sandoval v. California, 511 U.S. 1 (1994). In addition, the appellants rely on Rickman

v. Dutton, supra, in which the district court held that a similarly worded reasonable doubt

instruction was unconstitutional. The State, however, maintains that the appellants are not

entitled to post-conviction relief on this ground.



              Although the State did not raise specific procedural defenses to this claim in

its answer to the petitions, we have concluded that it is without merit under prior opinions

of our court. In Pettyjohn v. State, 885 S.W.2d 364 (Tenn. Crim. App. 1994), the post-

conviction petitioner raised a similar issue:

              [T]he United States Supreme Court rendered an opinion in two
              cases in which it analyzed the relationship of reasonable doubt
              to the ‘moral certainty’ phrase. Victor v. Nebraska and
              Sandoval v. California, ___ U.S. ___, 114 S.Ct. 1239, 127
              L.Ed.2d 583 (1994). The Court indicated that the phrase
              ‘moral certainty’ may have lost its nineteenth century meaning
              relative to the level of certainty humanly attainable in matters
              relating to human affairs. It recognized that a modern jury,
              unaware of the historical meaning, might understand the
              phrase, in the abstract, to mean something less than the very
              high level of determination constitutionally required in criminal
              cases. However, although it expressed criticism of the
              continued use of the ‘moral certainty’ phrase, the Court did not
              actually hold that it was constitutionally inappropriate, but


                                                19
               looked to the full charge to the jury to determine if the phrase
               was placed in such a context that a jury would understand that
               it meant certainty with respect to human affairs.

Id. at 365-66 (emphasis added). The court concluded that “the instructions as a whole did

not make it reasonably likely that the jury understood the words ‘moral certainty’ either as

suggesting a standard of proof lower than due process requires or as allowing conviction

upon factors other than the evidence.” Id. at 366. Thus, the court held that the instruction

did not violate due process. Id. Similarly, our court has continued to reject Victor-Sandoval

claims. See State v. Sexton, 917 S.W.2d 263, 266 (Tenn. Crim. App. 1995); State v.

Michael Dean Bush, No. 03C01-9403-CR-00094 (Tenn. Crim. App., Feb. 12, 1996,

Knoxville)(presently before the supreme court pursuant to Tenn. Code Ann. § 39-13-

206(a)(1)); State v. Ricky Thompson, No. 03C01-9406-CR-00198 (Tenn. Crim. App., Jan.

24, 1996, Knoxville)(application for permission to appeal pending).



               Accordingly, the appellants have failed to show a violation of constitutional

due process. We are aware that the federal district court granted habeas corpus relief on

this issue in Rickman v. Dutton, 864 F.Supp. at 710. As we noted in the preceding issue,

however, we are not required to follow Rickman over the decisions of our court. Thus, we

believe that the appellants are not entitled to post-conviction relief on this issue.



                                              V

               The appellants contend that the trial court erred in summarily dismissing

numerous grounds alleging deprivations of constitutional rights under the fifth, sixth, eighth

and fourteenth amendments to the United States Constitution and Article I, sections 8, 9,

16, and 17 of the Tennessee Constitution. The appellants insist that they did not

“knowingly and understandingly” waive any of the issues and that the statute of limitations

should not apply to bar the claims from being heard.14 The problem with the appellants’


          14
                   Because we hold that the issues were either waived or previously
   determined, we need not address the appellants’ allegations with regard to the statute
   of limitations.

                                             20
claim is that they rely on the “subjective” test for waiver that the supreme court rejected in

House v. State, 911 S.W.2d at 707. As discussed earlier, House adopted a broad,

objective test for waiver that also imputes the actions or omissions of counsel to a post-

conviction petitioner. It is with this standard that we review the appellants’ issues.



               The following issues asserted by Sample are waived because they were not

raised on direct appeal: that a .32 caliber handgun was obtained pursuant to an unlawful

search of a vehicle and that the prosecution engaged in misconduct through its questioning

of witnesses during the sentencing phase. Tenn. Code Ann. § 40-30-112(b)(1) & (b)(2).



               The following grounds argued by both Sample and McKay are likewise

waived: that the trial court erred in instructing the jury that it need not find the element of

malice to convict for felony murder; that the trial court erred in failing to instruct the jury that

it had to find all of the elements alleged in the indictment to convict for felony murder; that

trial counsel were ineffective due to a conflict of interest; that the State introduced

prejudicial victim-impact evidence during the guilt phase of the trial; that trial counsel were

ineffective because the appellants were made to sit in the second row during the trial; that

the prosecution made improper closing arguments during the guilt and sentencing phases

of the trial; that Tenn. Code Ann. § 39-2-203(i)(3) and (i)(6) were constitutionally defective

and not supported with sufficient evidence; that the trial court erred in instructing the jury

that its verdict should not be influenced by sympathy; that the trial court erred in instructing

the jury on the range of penalties for lesser included offenses; that the trial court erred in

instructing the jury that witnesses are presumed to tell the truth; that the jury’s verdict was

prejudiced by extraneous influences; that the trial court erred in excluding jurors for

religious reasons; that the trial court erred in excluding juror Bishop; that trial and appellate

counsel were ineffective for failing to raise the above errors; and that the cumulative effect

of the errors denied a fair trial. In sum, the issues were not raised on direct appeal or in




                                                21
prior post-conviction suits. Thus, the issues are without merit. Tenn. Code Ann. § 40-30-

112(b)(1) & (b)(2).



                The following issues were raised by the appellants in earlier proceedings and

were previously determined: that the trial court erred by instructing the jury that it could

presume malice from the use of a deadly weapon and the death of the victim; that the trial

court erred in failing to instruct the jury on the effects of a non-unanimous verdict; that trial

counsel were ineffective; and that the trial court erred in failing to sever the trials. Similarly,

Sample’s contention that Wallace’s identification of him was unduly suggestive and,

therefore, unconstitutional, was addressed on direct appeal.15 Thus, the issues are without

merit. Tenn. Code Ann. § 40-30-112(a).



                Finally, we note that the appellants also allege that the foregoing issues

should not be procedurally barred due to the inactions of prior post-conviction counsel.

This claim has been foreclosed by House, in which the court held that the actions or

inactions of post-conviction counsel are imputed to a petitioner. Id. at 707. Moreover, the

ineffectiveness of post-conviction counsel is not a separate ground for post-conviction

relief. Id. at 712 (citing Murray v. Giarratano, 492 U.S. 1, 10 (1989) & Pennsylvania v.

Finley, 481 U.S. 551, 554-55 (1987)).



                                                VI

                Sample contends that the trial court erred in denying his “motion to proceed

ex parte in seeking investigative and expert services.” The motion asserted that funds for

investigative and expert services were necessary to prepare the post-conviction issues and

to conduct a full and fair hearing.        The motion further asserted that statutory and

constitutional principles mandated that the need for the funds be shown in an ex parte



           15
                   We would note, however, that the identification issue may be affected by
   the trial court’s ruling as to the exculpatory evidence claim.

                                                22
hearing.16 McKay did not file a specific motion for an ex parte proceeding; however, he

asserts that the trial court erred in denying his request for state funded expert and

investigative services. The State did not address the requests in its answers to the

petitions, and the trial court did not make a specific ruling in either case.



               On appeal, the appellants rely in part on this court’s opinions in Owens v.

State, No. 02C01-9111-CR-00259 (Tenn. Crim. App., Mar. 25, 1994, Jackson) and Payne

v. State, No. 02C01-9204-CR-00094 (Tenn. Crim. App., Mar. 25, 1994, Jackson). This

court had held that a capital post-conviction petitioner is not entitled to an

ex parte proceeding but that, upon a sufficient showing, a petitioner may receive funds for

expert services needed to establish a constitutional violation. The State also relies on the

Owens--Payne cases; it argues that the appellants were not entitled to an ex parte hearing

and did not show a particularized need for state funded experts.



               As noted by the parties, the supreme court granted applications to appeal in

both Owens and Payne, and it released its opinion after the briefing in this appeal. In

Owens v. State, 908 S.W.2d 923 (Tenn. 1995), the supreme court ruled, as a matter of

statutory construction, that the ex parte provisions of Tennessee Code Annotated section

40-14-207(b) are to be applied in post-conviction death penalty cases. Id. at 928. The

court said:

               To obtain an ex parte hearing, a capital post-conviction
               petitioner must submit a written motion to the trial court,
               alleging why under the particular facts and circumstances of
               the case, investigative or expert services are necessary to
               ensure the protection of the petitioner’s constitutional rights.
               A bare allegation that support services are needed is not
               sufficient. In addition, the motion must include: (a) the name
               of the proposed expert or service; (b) how, when and where
               the examination is to be conducted or the services are to be
               performed; (c) the cost of the evaluation and report thereof;


          16
                  The motion cited Tennessee Code Annotated section 40-14-207(b), the
   sixth, eighth, and fourteenth amendments to the United States Constitution, and article
   I, sections six through eleven, fourteen, sixteen, and seventeen of the Tennessee
   Constitution.

                                             23
                and (d) the cost of any other necessary services, such as court
                appearances. Tenn. Sup. Ct. Rule 13, §2(b)(10). Once the
                petitioner satisfies these threshold procedural requirements,
                the trial court must conduct an ex parte hearing on the motion.

Id. at 928. Moreover, the court said that, upon showing a “particularized need” requiring

expert or investigative services to ensure the protection of a constitutional right, a petitioner

may receive state funding for such services. Id.



                Obviously, Owens had not been decided when the appellants’ post-conviction

petitions were filed; however, supreme court Rule 13, §2(b)(10), which was cited in Owens,

governed requests for ex parte hearings. In this regard, we note that McKay did not even

request an ex parte hearing much less comply with Rule 13. Moreover, McKay made only

a bare allegation that he needed funds for expert and investigative services. McKay’s

request, therefore, fell far short of showing a particularized need for relief. Sample filed a

specific request for the ex parte hearing and cited numerous grounds in support of the

request, including the statute interpreted in Owens; however, he too failed to set forth

detailed allegations in support of the motion as required by Rule 13. Thus, we conclude

that neither Sample nor McKay showed he was entitled to relief on this ground.17



                                              VII

                In summary, the judgments in both cases are reversed and the cases are

remanded to the trial court for further proceedings consistent with this opinion.




           17
                 Moreover, we note that the appellants allege that numerous issues should
   be, in effect, re-litigated with the benefit of funds under Owens. We reject this
   contention. There is nothing in Owens to suggest that any issues previously
   determined or waived may be revived in this manner.

                                               24
                                   _________________________________
                                   William M. Barker, Judge



___________________________
Paul G. Summers, Judge



___________________________
David H. Welles, Judge




                              25
