          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE         FILED
                              MAY 1998 SESSION          July 14, 1998

                                                    Cecil Crowson, Jr.
                                                     Appellate C ourt Clerk
TIMOTHY EUGENE MORRIS,               )
                                     )    NO. 03C01-9708-CR-00351
      Appellant,                     )
                                     )    GREENE COUNTY
VS.                                  )
                                     )    HON. WILLIAM H. INMAN,
STATE OF TENNESSEE,                  )    JUDGE
                                     )
      Appellee.                      )    (Post-Conviction - Death Penalty)



FOR THE APPELLANT:                         FOR THE APPELLEE:

GREG W. EICHELMAN                         JOHN KNOX WALKUP
District Public Defender                  Attorney General and Reporter

MICHAEL A. WALCHER                        MICHAEL E. MOORE
Assistant District Public Defender        Solicitor General
1609 College Park Drive, Box 11
Morristown, TN 37813-1618                 KENNETH RUCKER
                                          JOHN BAKER
JAMES S. ROACH                            Assistant Attorneys General
Attorney at Law                           Cordell Hull Building, 2nd Floor
P. O. Box 1495                            425 Fifth Avenue North
Johnson City, TN 37605-1495               Nashville, TN 37243-0493

                                          C. BERKELEY BELL, JR.
                                          District Attorney General

                                          ERIC D. CHRISTIANSEN
                                          Assistant District Attorney General
                                          109 South Main, Ste. 501
                                          Greeneville, TN 37743




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                     OPINION


       Petitioner, Timothy Eugene Morris, appeals the dismissal of his second post-

conviction relief petition by the Criminal Court of Greene County. He was previously

convicted in 1981 of first degree murder and sentenced to death. In this Court he

contends the trial court erred in dismissing the petition and alleges the following in

this appeal:

               1.    The trial court's instruction on malice was
               unconstitutional.

               2.    The trial court's instruction on reasonable doubt
               was unconstitutional.

               3.     There was insufficient evidence to support a
               finding of first degree murder.

               4.     The trial court improperly failed to define
               "mitigating evidence" or "mitigation."

               5.     The jury was not informed about the meaning of
               a non-unanimous verdict and was told they had to
               return a non-unanimous verdict, both being
               constitutional violations.

               6.    The jury was improperly told that mitigating
               evidence had to be "sufficiently substantial" before a life
               sentence could be imposed.

               7.     The prosecution engaged in misconduct.

               8.    Introduction of the decedent's skull and a rock
               purportedly used as a weapon against the victim was
               improper.

               9.      The prosecution failed to establish that
               petitioner's statement to authorities was voluntary.

               10.   Authorities illegally seized without a warrant a
               pickup truck driven by petitioner.

               11.    The state destroyed evidence in bad faith.

               12.  The trial court's instruction on premeditation was
               unconstitutional.

               13.   The jury was erroneously denied parole eligibility
               information.

               14.    The statutory review conducted by the
               Tennessee Supreme Court on direct appeal was
               constitutionally inadequate.




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               15.   Electrocution constitutes cruel and unusual
               punishment.

               16.    The trial court failed to specify the specific felony
               for the felony murder aggravating factor.

               17.   The certified copy of the previous voluntary
               manslaughter conviction was not adequate proof of the
               crime of violence aggravator.

               18.    A death sentence may not stand when the jury
               sentencer was presented no evidence concerning
               mitigation, where no attack was mounted on the
               aggravators and where no attorney involved in the
               sentencing has ever stated a tactical, strategical or
               logical reason why sentencing was left blank.

               19.   The cumulative effect of all errors at trial and on
               appeal violated Due Process.

               20.     Petitioner was denied a full and fair post-
               conviction hearing because: (a) the trial court refused to
               appoint counsel who had extensive knowledge of the
               case; (b) the trial court failed to provide expert funds as
               requested; and (c) the trial court failed to provide
               petitioner access to TBI documents.

We conclude that the petition was properly dismissed and AFFIRM the judgment

of the trial court.



                              PROCEDURAL HISTORY



       Petitioner was convicted by a Greene County jury of first degree murder and

sentenced to death. The conviction and sentence were affirmed by the Tennessee

Supreme Court on direct appeal. State v. Morris, 641 S.W.2d 883 (Tenn. 1982).

Certiorari was denied by the United States Supreme Court. Morris v. State, 460

U.S. 1047, 103 S.Ct. 1450, 75 L.Ed.2d 804 (1983).

       On July 26, 1983, petitioner filed his first petition for post-conviction relief.

After an evidentiary hearing, the trial court denied relief. This Court affirmed the

dismissal of the petition. Timothy Eugene Morris v. State, C.C.A. No. 218, Greene

County (Tenn. Crim. App. filed September 11, 1985, at Knoxville). The Tennessee

Supreme Court denied permission to appeal on January 21, 1986.

       Petitioner filed the subject petition for post-conviction relief on January 19,

1987. Although the petition was originally dismissed based upon the statute of

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limitations, the petition was subsequently reinstated. Amended petitions were filed

on June 30, 1989, and January 18, 1995.1

       Petitioner filed a motion seeking investigative and expert assistance on

February 7, 1995. Although the trial court denied relief, the Tennessee Supreme

Court ultimately remanded to the trial court for further proceedings on this issue.

Timothy Eugene Morris v. State, No. 03C01-9503-CR-00068 (Tenn. filed December

4, 1995, at Knoxville). Upon remand, the trial court authorized funds for a mitigation

specialist and a clinical psychologist.

       An evidentiary hearing was conducted in February 1997. On March 12,

1997, the trial court entered extensive Findings of Fact and Conclusions of Law

denying post-conviction relief. Upon appeal, this case was orally argued in this

Court on May 27, 1998.



                                  STANDARD OF REVIEW



       Since the petition was filed prior to May 10, 1995, it is not controlled by the

Post-Conviction Procedure Act of 1995.               See Tenn. Code Ann. § 40-30-201

Compiler’s Notes (1997). Instead, the petition is controlled by the Post-Conviction

statutes contained in Tenn. Code Ann. § 40-30-101 et. seq. (1990).

       Some of the issues raised by the petitioner in the present petition have been

“previously determined” on direct appeal and/or in the appeal from the denial of the

first post-conviction relief petition. A ground for relief is “previously determined” if

a court of competent jurisdiction has ruled on the merits after a full and fair hearing.

Tenn. Code Ann. § 40-30-112(a)(1990). A “full and fair hearing” is afforded

whenever a petitioner is given every opportunity to litigate his constitutional

complaints in a state forum. House v. State, 911 S.W.2d 705, 711 (Tenn. 1995).

       Many of the issues raised by petitioner have been “waived.” A ground for

relief is “waived” if the petitioner knowingly and understandingly fails to present it in

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


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           The record does not reveal the reason for the lengthy delay in the trial court.

                                                4
have been presented. Tenn. Code Ann. § 40-30-112(b)(1)(1990). There is a

rebuttable presumption that a ground for relief not raised in any such proceeding

was waived.       Tenn. Code Ann. § 40-30-112(b)(2)(1990).                This rebuttable

presumption of waiver is not overcome by an allegation that the petitioner did not

personally fail to raise the issue, since waiver is to be determined by an objective

standard. House, 911 S.W.2d at 714. Furthermore, an allegation that petitioner

had ineffective counsel during prior post-conviction proceedings is insufficient to

rebut the presumption of waiver. Id. at 712.



                            MALICE JURY INSTRUCTION



       In issue 1 petitioner challenges the jury instruction that “the killing is

presumed to be malicious” alleging it to be in violation of Sandstrom v. Montana,

442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). The post-conviction court

found that the presumption of waiver had been rebutted; however, the court found

the Sandstrom violation to be harmless error.

       The 1979 Sandstrom decision held that a jury instruction creating a

presumption has the effect of shifting the burden of proof to the defendant and is,

therefore, a violation of due process. 442 U.S. at 524, 99 S.Ct. at 2459, 61 L.Ed.2d

at 51. Sandstrom was decided two (2) years prior to defendant’s original trial in

1981 and four (4) years prior to the filing of the first petition for post-conviction relief.

Yet, the issue was not raised in either proceeding.

       In applying the statute of limitations to a Sandstrom claim, the Tennessee

Supreme Court held that Sandstrom had been applied to Tennessee proceedings

for several years and was not a “later arising ground” under Burford v. State, 845

S.W.2d 204 (Tenn. 1992). Sands v. State, 903 S.W.2d 297, 302 (Tenn. 1995). In

fact, a Sandstrom violation was recognized, yet found to be harmless error, in State

v. Chavis, 617 S.W.2d 903, 908 (Tenn. Crim. App. 1980), perm. to app. denied

(Tenn. 1981). Since this issue was not presented on direct appeal nor in the first

petition for post-conviction relief, the issue is waived.



                                             5
          In addition, we agree with the trial court’s finding that this jury instruction

constituted harmless error. Sandstrom violations are subject to harmless error

analysis. Rose v. Clark, 478 U.S. 570, 582, 106 S.Ct. 3101, 3108, 92 L.Ed.2d 460,

473-74 (1986); State v. Taylor, 771 S.W.2d 387, 397 (Tenn. 1989). The victim’s

skull had been severely crushed, and his body had been dragged through

underbrush 139 feet from a roadway. State v. Morris, 641 S.W.2d at 886. In

addition to the finding of malice, the jury concluded that the homicide was willful,

deliberate and premeditated. See Tenn. Code Ann. § 39-2402(a) (Supp.1980).

The evidence clearly supported these findings. State v. Morris, 641 S.W.2d at 887.

We agree with the trial court’s conclusion that the malice jury instruction constituted

harmless error.



                              MISCELLANEOUS ISSUES



          In issue 2 petitioner attacks the “reasonable doubt” jury instruction given in

his original trial. Firstly, this issue is waived since it was not raised in the direct

appeal nor in the first petition for post-conviction relief. Secondly, the “reasonable

doubt” jury instruction is constitutional. See Carter v. State, 958 S.W.2d 620, 626

(Tenn. 1997).

          In issue 3 petitioner contends the evidence was insufficient to support the

conviction. This issue was previously determined on the direct appeal. Morris, 641

S.W.2d at 887.

          In issues 4, 5 and 6 petitioner attacks the original trial court for failing to

define mitigating evidence, failing to inform the jury about the meaning of a non-

unanimous verdict and telling the jury that mitigating evidence had to be “sufficiently

substantial” in order to impose a life sentence. All of these issues are waived for

failure to raise them on direct appeal and in the first petition for post-conviction

relief.

          In issue 7 petitioner alleges prosecutorial misconduct. This issue was




                                             6
previously determined in the appeal of the denial of the first petition for post-

conviction relief. Timothy Eugene Morris v. State, slip op. at 33-34.

       In issues 8 and 9 petitioner attacks the introduction into evidence of the

victim’s skull, a rock and petitioner’s statement to authorities. Each of these issues

was previously determined on direct appeal. Morris, 641 S.W.2d at 888.

       In issues 10 and 11 petitioner attacks the illegal seizure of a pickup truck and

the destruction of evidence by the state. These issues are waived for failure to

present them in prior proceedings.

       In issue 12 petitioner attacks the jury instruction on “premeditation” as being

in violation of the holding in State v. Brown, 836 S.W.2d 530 (Tenn. 1992). Brown

is not to be applied retroactively; does not implicate a constitutional right; and may

not be used as a basis for post-conviction relief. Harris v. State, 947 S.W.2d 156,

174 (Tenn. Crim. App. 1996).

       In issue 13 petitioner contends the jury was improperly denied parole

eligibility information. This issue was previously determined in the appeal of the

denial of the first petition for post-conviction relief. Timothy Eugene Morris v. State,

slip op. at 19-20. The allegation is otherwise without merit. See State v. Bush, 942

S.W.2d 489, 503-504 (Tenn. 1997).

       In issue 14 petitioner contends the statutory review conducted by the

Tennessee Supreme Court on direct appeal was inadequate. This issue is waived

by the failure to present it in the first petition for post-conviction relief and is

otherwise without merit. See State v. Barber, 753 S.W.2d 659, 664 (Tenn. 1988).

       In issue 15 petitioner contends that death by electrocution constitutes cruel

and unusual punishment. This issue is waived and is otherwise without merit. See

State v. Howell, 868 S.W.2d 238, 258 (Tenn. 1993) cert. denied 510 U.S. 1215, 114

S.Ct. 1339, 127 L.Ed.2d 687 (1994).

       In issue 16 petitioner attacks the failure of the trial court to specify the

specific felony supporting the felony murder aggravating factor. This issue was

previously determined on the appeal from the denial of the first petition for post-

conviction relief. Timothy Eugene Morris v. State, slip op. at 21.



                                           7
       In issue 17 petitioner alleges the admission into evidence of a certified copy

of his prior voluntary manslaughter conviction was insufficient to establish a prior

conviction involving violence. This issue has been previously determined. Morris,

641 S.W.2d at 883; Timothy Eugene Morris v. State, slip op. at 15.

       In issue 18 petitioner alleges the death penalty must be set aside since no

mitigation evidence was presented.          This is an indirect attack on effective

assistance of counsel. The issue of effective assistance of counsel has previously

been determined on the appeal from the denial of the first petition for post-

conviction relief. Timothy Eugene Morris v. State, slip op. at 9-13. Furthermore, the

death penalty has been previously determined to be proper in this case. Morris, 641

S.W.2d at 889-90.

       In issue 19 petitioner alleges the cumulative effect of all errors constitutes a

Due Process violation. In the direct appeal as well as the appeal from the denial of

the first petition for post-conviction relief, petitioner’s allegations were rejected. The

record does not reveal cumulative errors. This issue is without merit.



             DEPRIVATION OF FAIR POST-CONVICTION HEARING



       In issue 20 petitioner alleges he was deprived of a full and fair post-

conviction hearing for the following reasons:

              1.    The post-conviction court improperly refused to
              re-appoint one of petitioner’s prior attorneys;

              2.     The post-conviction court improperly denied
              expert services; and

              3.    The post-conviction court improperly denied
              access to TBI documents.



                                           A.

       Prior counsel, John Oliva, was employed by the Tennessee Capital Case

Resource Center.       When the Center was defunded, Oliva sought to be re-

appointed. The post-conviction court found that Oliva resided over 250 miles from

Greeneville which would result in substantial state expenses. The court further

                                            8
found petitioner had other counsel familiar with the case and also appointed the

public defender to assist in petitioner’s representation. We find no error in this

regard. See State v. Smith, 755 S.W.2d 757, 766 (Tenn. 1988).

                                          B.

       Although the trial court authorized expert services for a mitigation expert and

a clinical psychologist, petitioner contends other expert assistance should have

been authorized. At the ex parte hearing, only the mitigation specialist and the

clinical psychologist testified. Petitioner’s request for their services was granted

pursuant to Owens v. State, 908 S.W.2d 923 (Tenn. 1995). Petitioner does not

make an appropriate reference to the record as to which services were denied. See

Tenn. Crim. App. Rule 10(b). The issue is waived. Although a transcript of the ex

parte hearing is in the record, documentation and the so-called “sealed record”

requesting experts in addition to the mitigation specialist and clinical psychologist

are not in the record. It is appellant’s responsibility to provide an appropriate record

for review. See State v.Ballard, 855 S.W.2d 557, 560 (Tenn. 1993).

       Petitioner’s brief in an unrelated issue refers to the post-conviction court’s

refusal to authorize funds for a forensic anthropologist to investigate cause of death,

a surveyor to investigate proper venue of the homicide and an investigator to

investigate other guilt-innocence issues. Issues relating to the cause of death,

venue and guilt-innocence have been previously determined or waived. Thus, the

post-conviction court would not be in error for failing to authorize funds relating to

these issues.

                                          C.

       Finally, petitioner contends he has been denied access to TBI documents.

Petitioner does not make an appropriate reference to the record. See Tenn. Crim.

App. Rule 10(b). This issue is waived. Furthermore, our examination of the record

does not reveal any basis for relief as to this issue.




                                           9
                                   CONCLUSION



      Finding no error, we affirm the judgment of the trial court. The sentence of

death shall be carried out as provided by law on October 30, 1998, unless otherwise

ordered by an appropriate court.



                                         ________________________________
                                         JOE G. RILEY, JUDGE




CONCUR:



_______________________________
JOSEPH M. TIPTON, JUDGE



_______________________________
CURWOOD WITT, JUDGE




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