             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE                  FILED
                           NOVEMBER 1995 SESSION
                                                             October 28, 1997

                                                            Cecil Crowson, Jr.
                                                            Appellate C ourt Clerk
FREDERICK NATHAN VANN,         )
                               )
             Appellant,        )    No. 03C01-9504-CR-00111
                               )
                               )    Morgan County
v.                             )
                               )    Honorable James B. Scott, Jr., Judge
                               )
STATE OF TENNESSEE,            )    (Post-Conviction)
                               )
             Appellee.         )


For the Appellant:                  For the Appellee:

Robert W. Ritchie                   Charles W. Burson
606 W. Main Street                  Attorney General of Tennessee
Suite 300                                  and
P.O. Box 1126                       Michael J. Fahey, II
Knoxville, TN 37901-1126            Assistant Attorney General of Tennessee
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    Charles E. Hawk
                                    District Attorney General
                                            and
                                    D. Roger Delp
                                    Frank A. Harvey
                                    Assistant District Attorneys General
                                    P.O. Box 703
                                    Kingston, TN 37763




OPINION FILED:____________________



AFFIRMED

Joseph M. Tipton
Judge
                                                 OPINION


                 The petitioner Frederick Nathan Vann, appeals as of right from the

Morgan County Criminal Court’s denial of his petition for post-conviction relief. The

petition alleges that this court erred in the petitioner’s direct appeal by affirming the

denial of his motion to suppress and that the trial court’s instruction on premeditation

and deliberation violated his due process rights. The trial court dismissed the petition,

concluding that the suppression issue had been previously determined and that the

petitioner’s constitutional rights were not violated by the jury instructions given at his

trial. The petitioner now contends that the suppression issue was not previously

determined because he was not accorded a full and fair hearing on the issue in the

direct appeal. He also contends that the jury instructions violated his constitutional

rights. We affirm the trial court’s dismissal of the petition.



                 The petitioner was convicted of first degree murder and arson. He

received a life sentence for first degree murder and a five-year sentence for the arson

conviction. This court affirmed the defendant’s convictions. State v. Frederick Nathan

Vann, No. 45, Morgan County (Tenn. Crim. App. Apr. 26, 1990), reh’g denied (July 16,

1990), app. denied (Tenn. Dec. 10, 1990).



                 The petitioner was convicted for killing his girlfriend and burning the house

where she lived. The police spent three to five days searching the house and

confiscated several items. The petitioner filed a motion to suppress evidence that was

seized from the home. After hearing proof on the matter, the trial court held that the

petitioner had “standing” 1 to challenge the search of the house. However, it denied the




                 1
                       The term “standing” actually relates to the substantive Fourth Amendment concept of
the defe ndant ha ving a rea sonab le expec tation of priva cy in the place search ed or the items s eized. See
Rak as v. I llinois , 439 U.S . 128, 132 -33, 99 S . Ct. 421, 42 4-25 (19 78); United States v. Salvucci, 448 U.S.
83, 87, 10 0 S. Ct. 25 47, 2550 -51, n.4 (1 980).

                                                         2
suppression because it concluded that the petitioner consented to the search and that

the search was also justified based upon exigent circumstances.



              This court affirmed the petitioner’s convictions and upheld the denial of

the motion to suppress in a split decision. The court concluded that the search of the

home was not justified by consent or exigent circumstances. However, the majority

also concluded that the evidence in the record preponderated against the trial court’s

determination that the defendant had standing to challenge the search. In dissent, now

Presiding Judge Joe B. Jones argued that there was proof in the record to support the

trial court’s conclusion regarding the petitioner’s expectation of privacy in the home.



              The crux of the disagreement within the court related to the standard to

use in reviewing the trial court’s determinations. The majority opinion noted that the

trial court simply held that the petitioner had standing, without providing any findings of

fact. It stated that the trial court’s determination of standing represented a conclusion

of law that was not binding upon the court. Then, the majority drew its own legal

conclusion based upon its review of the evidence, stating, as well, that the evidence did

not support the trial court’s legal conclusion that the petitioner had standing.



              The dissenting opinion believed that the majority opinion did not properly

defer to the trial court’s implicit factual findings and improperly reweighed or

reevaluated the evidence on its own. It stated that the majority should have limited its

consideration to the evidence that tended to support the judgment and should have

affirmed the judgment if material evidence existed to support it. The dissent concluded

that sufficient evidence existed to support the trial court’s ruling that the petitioner had

standing.




                                              3
                                             I

              In his first issue, the petitioner asks that we revisit the search issue. The

trial court concluded that the search issue had been previously determined in the

convicting case. Under the law applicable to this case, the scope of a post-conviction

hearing does not extend to grounds that have been previously determined. See T.C.A.

§ 40-30-111 (repealed 1995). “A ground for relief is ‘previously determined’ if a court of

competent jurisdiction has ruled on the merits after a full and fair hearing.” T.C.A. § 40-

30-112(a) (repealed 1995).



              The petitioner asserts that the standing issue cannot be deemed

previously determined because he was denied a full and fair hearing before this court.

The gist of the petitioner’s reasoning is that this court used the wrong standard of

review in determining his standing to object to the search and improperly ruled on its

view of the evidence in the record instead of remanding the case for the trial court to

place its factual findings upon the record. The petitioner also argues that a remand

would have given him an opportunity to prove standing under this court’s change in the

standard of review.



              The petitioner relies upon several cases in which remands for further

hearings occurred in federal habeas corpus cases and one Tennessee case because of

the concern that the petitioner did not have a full and fair hearing on a given issue. In

Riley v. Gray, 674 F.2d 522 (6th Cir. 1982), the issue before the state appellate court in

the convicting case, as raised by the petitioner, was that evidence should have been

suppressed because it was obtained under a warrant that was based on an improper

warrantless search. Even though the state did not contest standing and neither party

briefed or argued the issue, the appellate court ruled that there was no standing to

challenge the evidence under the evidence before it. It affirmed the conviction without

remanding the case for a determination of the facts relevant to the issue of standing. In



                                             4
affirming the grant of habeas corpus relief, the Sixth Circuit concluded that the

petitioner was denied an opportunity for full and fair litigation of his claim in an

unreasonable manner. 674 F.2d at 527.



              In United States ex rel. Bostick v. Peters, 3 F.3d 1023 (7th Cir. 1993), the

state trial court had told the petitioner at his suppression hearing that he need not testify

because his sworn affidavit would suffice. The state called two agents to testify. After

the hearing, the trial court suppressed the evidence in issue, concluding that the agents

had not provided a sufficient basis for the stop of the petitioner. On the state’s appeal,

the appellate court held that the petitioner’s affidavit was insufficient to satisfy his

burden of proving his allegations, deeming it to be incompetent evidence. Noting that

the petitioner failed to present evidence to support his allegations contradicting the

agents’ testimony, the court concluded that the evidence of the record showed that the

petitioner had not been seized and reversed the suppression order. Upon remand, the

state trial court refused to provide another evidentiary hearing. In granting the petitioner

a hearing on the merits of his Fourth Amendment claim, the Seventh Circuit concluded

that the petitioner was not given a reasonable opportunity to present his evidence

because of an unanticipated and unforeseeable application of a rule on appeal, thus

denying him the opportunity for full and fair litigation of his Fourth Amendment

challenge. 3 F.3d at 1029.



              Also, the petitioner relies upon Donald Lewis Sullens v. State, No. 01C01-

9212-CR-00394, Davidson County (Tenn. Crim. App. Nov. 18, 1993), in which this court

stated that “it is difficult to conclude that a full and fair hearing on the merits

contemplates a court making a ruling based upon facts which are not only absent from,

but contradicted by the evidentiary record.” Id., slip op. at 9. In Sullens, the record

reflected that in the direct appeal of the convicting case, this court had rejected an issue

upon a mistaken view of the evidence.



                                               5
                In reviewing the petitioner’s claim, we note that we are bound by the post-

conviction laws of the state of Tennessee, not the federal habeas corpus laws. In this

respect, we note that in House v. State, 911 S.W.2d 705, 711 (Tenn. 1995), our

supreme court held that “a full and fair hearing” under T.C.A. § 40-30-112 (a) (repealed

1995), is provided when a petitioner is given an opportunity to present a constitutional

claim at a meaningful time and in a meaningful manner, without undue restriction of the

scope of the hearing or undue limitation on the introduction or presentation of evidence.



                In the petitioner’s convicting case, the issue of whether evidence was

seized from the victim’s home in violation of the petitioner’s constitutional rights was

fully litigated at the suppression hearing before trial. Both the petitioner and the state

presented proof with respect to the petitioner’s expectation of privacy in the area that

was searched. Based on the suppression hearing record, this court determined that the

petitioner did not have a sufficient objective expectation of privacy in the property to

challenge the search.



                The petitioner’s full opportunity to present and the actual presentation in

the convicting case of evidence and argument on the issue of standing distinguishes

this case from Riley and Bostick. Also, nothing in the record before us reflects any

detail or fact that would allow the petitioner to show standing that was not already

presented at the suppression hearing. Moreover, the evidence upon which this court

relied to decide the standing issue does, in fact, exist in the record, a material

circumstance that distinguishes this case from Sullens.



                Even if we were to assume, for argument’s sake, that the standard of

review used by this court in the direct appeal of the convicting case was not the usual

one,2 we do not believe that it alters the fact that the standing issue was previously


                2
                 We note that the issue of the proper standard of review of a suppression ruling was not
settled in Tennessee until our supreme court decided State v. Odom , 928 S.W .2d 18 (Tenn. 1996).

                                                    6
determined so as to bar its consideration as a ground for post-conviction relief. In fact,

the fact that a case has been decided upon a court’s misapprehension of the law does

not mean, for post-conviction purposes, that a full and fair hearing did not occur. See

Barr v. State, 910 S.W.2d 462 (Tenn. Crim. App. 1995) (petitioner who challenged

search in direct appeal was barred from challenging it in post-conviction proceeding,

because it was previously determined, even though the Tennessee Supreme Court had

ruled that the same search was unconstitutional in codefendant’s case); see also

Kenneth M. Godwin, No. 01-C-01-9101-CC-00001, Dickson County (Tenn. Crim. App.

Sept. 17, 1991) (claim previously determined even though Tennessee Supreme Court

later rejected the legal analysis used to affirm the petitioner’s conviction).



              In sum, the petitioner received a full and fair hearing of his search and

seizure issues, including the question of standing, as such a hearing is defined in

House for our state post-conviction cases. Moreover, the mere fact that a different

standard of review than the petitioner expected might have been used, does not rise to

the level of a due process violation so as to provide a separate basis for post-conviction

relief. Therefore, we hold that the issue of standing was previously determined for post-

conviction relief purposes.



                                              II

              Next, the petitioner contends that he is entitled to post-conviction relief

because the trial court instructed the jury that premeditation may be formed in an

instant and failed to define deliberation. He relies upon State v. Brown, 836 S.W.2d

530 (Tenn. 1992), in which our supreme court restated the differences between

premeditation and deliberation and stated “that it is prudent to abandon an instruction

that tells the jury that ‘premeditation may be formed in an instant.’ Such an instruction

can only result in confusion, given the fact that the jury must also be charged on the law

of deliberation.” 836 S.W.2d at 543. In the present case, the trial court concluded that



                                              7
the instruction on premeditation used in the convicting case was correct under the law

then existing and noted that Brown had not been given retroactive application. Also, we

note that the jury was instructed in a separate passage that a deliberate killing was one

done “with cool purpose.”



              The petitioner acknowledges that this court has refused to apply the

holdings in Brown retroactively. See, e.g., State v. Joe Nathan Person, No. 02C01-

9205-CC-00106, Madison County (Tenn. Crim. App. Sept. 29, 1993); State v. William

Paul Roberson, No. 01C01-9206-CC-00200, Putnam County (Tenn. Crim. App. Feb.

25, 1993); State v. Willie Bacon, Jr., No. 1164, Hamilton County (Tenn. Crim. App. Aug.

4, 1992). However, he maintains that he is still entitled to relief because of the

improper instructions in the context of due process. We disagree.



              Initially, we note that with the petitioner’s concession that Brown is not to

be applied retroactively regarding the premeditation instruction, his due process claim

would be barred from consideration for waiver because it was not pursued in the

convicting case. Although the state did not specifically claim in the trial court that the

petitioner waived this issue, it was implicit in the positions taken by the parties in the

trial court. That is, the petitioner explained in his post-conviction petition that the

reason this issue had not been previously presented was because Brown was released

after the petitioner’s direct appeal was completed. This explanation was provided to

overcome the presumption of waiver that arises when a ground for relief is not raised in

a prior proceeding in which it could have been raised, such as the direct appeal in this

case. See T.C.A. § 30-112(b) (repealed 1995). However, the only rebuttal that could

result from the later-arising Brown case would relate to the fact that the ground for relief

did not exist before Brown and was to be retroactively applied after Brown. See, e.g.,

Pruett v. State, 501 S.W.2d 807 (Tenn. 1973). In this fashion, once the petitioner




                                              8
dropped his retroactive application claim relative to Brown, he provided no way in which

to rebut the presumption of waiver.



               In any event, we believe that the petitioner’s due process rights were not

violated as he claims. In Brown, our supreme court concluded that it was prudent to

abandon an instruction that premeditation may be formed in an instant because it could

result in confusion because the element of deliberation contemplates a period of

reflection, during which the mind is free from the influence of passion. However, the

mere fact that the instruction was abandoned in Brown does not mean that its previous

use equated with a due process violation that would be cognizable in a post-conviction

proceeding. See Lofton v. State, 898 S.W.2d 246, 249 (Tenn. Crim. App. 1994). With

the trial court having instructed the jury that the state must have proven beyond a

reasonable doubt that the killing was deliberate, meaning with cool purpose, and our

view under Brown that use of the former premeditation instruction did not constitute, by

itself, a matter of constitutional significance, we conclude that the petitioner’s due

process rights were not violated by the instructions in this case.



               In consideration of the foregoing and the record as a whole, the judgment

of the trial court is affirmed.




                                                         Joseph M. Tipton, Judge



CONCUR:




Gary R. Wade, Judge




Joe D. Duncan, Special Judge


                                             9
