IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
FILED
FEBRUARY 1997 SESSION March 26, 2008
Cecil Crowson, Jr.
ROBERT GLEN COE, ) Appellate Court Clerk
) C.C.A. NO. 02C01-9606-CR-00200
Appellant, )
) SHELBY COUNTY
VS )
) JOHN P. COLTON,
STATE OF TENNESSEE ) JUDGE
)
Appellee. ) (Post Conviction - Death Penalty)
FOR THE APPELLANT: FOR THE APPELLEE;
ROBERT C. IRBY CHARLES W. BURSON
4345 Mallory Avenue East Attorney General and Reporter
Memphis, TN 38111
JOHN P. CAULEY
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
JOHN W. PIEROTTI
District Attorney General
JOHN CAMPBELL
Assistant District Attorney General
201 Poplar Avenue, 3rd Floor
Memphis, TN 38103
OPINION FILED:
AFFIRMED - RULE 20 ORDER
JOE G. RILEY,
JUDGE
ORDER
Appellant, Robert Glen Coe, appeals from the dismissal of his third post-
conviction relief petition. He has been convicted of first degree murder, aggravated
rape, and aggravated kidnaping. He was sentenced to death for first degree murder
and received two sentences of life imprisonment for the other charges. Coe
contends the trial court erred in dismissing his petition and presents to this Court the
following issues for review:
(1) whether the state withheld exculpatory evidence and
presented misleading testimony;
(2) whether the use of the felony-murder aggravating
circumstance rendered the death penalty unconstitutional;
(3) whether the jury instruction defining “reasonable doubt”
was unconstitutional;
(4) whether the jury instruction on first degree murder
omitted an essential element of the offense;
(5) whether he was denied the fundamental right to
a unanimous jury verdict;
(6) whether the jury instruction on expert testimony was
unconstitutional;
(7) whether the jury was unconstitutionally instructed on
the effect of a verdict of not guilty by reason of insanity;
(8) whether the jury instructions precluded full consideration
of the defense of insanity;
(9) whether the failure to instruct the jury about eligibility
for parole was unconstitutional;
(10) whether the jury instructions erroneously omitted
information about the effect of a non-unanimous verdict;
(11) whether he was denied effective review of
the death sentence;
(12) whether he was denied effective assistance of
counsel at trial and on appeal, including the denial of
entitlement to investigative funds;
(13) whether electrocution constitutes cruel and
unusual punishment;
(14) whether he was unconstitutionally precluded
from consulting with counsel during trial;
(15) whether the death sentence unconstitutionally
infringes upon his fundamental right to life; and
(16) whether he was arrested without probable cause.
2
We affirm the dismissal of the petition.
PROCEDURAL HISTORY
Coe was found guilty of first degree murder, aggravated rape and aggravated
kidnaping in 1981. The Tennessee Supreme Court affirmed the convictions and
sentences in 1983. A petition for writ of certiorari to the United States Supreme
Court was denied in 1984.
His first petition for post-conviction relief was filed in 1984. The dismissal of
that petition was affirmed by this Court in 1986. In 1987 Coe filed a petition for writ
of habeas corpus in the United States District Court for the Middle District of
Tennessee. That petition was dismissed without prejudice in March 1989 for failure
to exhaust state remedies.
In May 1989 Coe filed a second petition for post-conviction relief which was
denied by the trial court in November 1989. The denial was affirmed by this Court
in January 1991. The Tennessee Supreme Court denied permission to appeal in
November 1991.
In February 1992 Coe filed his second federal petition for writ of habeas
corpus in the United States District Court for the Middle District of Tennessee.
While the federal writ of habeas corpus was pending, Coe filed this, his third petition
for post-conviction relief, on February 21, 1995. On January 2, 1996, the trial court
dismissed the subject petition for post-conviction relief finding that all claims were
time-barred or waived. It is this dismissal that is the subject of the current appeal.
On November 27, 1996, the United States District Court vacated all of Coe’s
convictions and sentences.1 The state was allowed 120 days from the entry of that
order to afford Coe a new trial; otherwise, the writ of habeas corpus will issue.
DISPOSITION
1
Robert Glen Coe v. Ricky Bell, No. 3:92-0180 (M. D. Tenn. filed November 27,
1996, at Nashville).
3
In order to be successful in this appeal, Coe must overcome at least two
statutory limitations. Firstly, the present petition must have been timely filed. See
T.C.A. § 40-30-102 (1990). Secondly, the grounds for relief must not have been
“previously determined” by a court of competent jurisdiction nor “waived” by the
failure to present them in prior proceedings. See T.C.A. § 40-30-112(a), (b)(1)
(1990).
Issues 1, 2, 3, 4, 6, 8, 9, 10, 11, 12, 13, and 17 have been previously
determined by the United States District Court for the Middle District of Tennessee.
In fact, Coe was successful in vacating his convictions and sentences based upon
some of these issues. Regardless, they have been previously determined.
As to Issue 1 concerning exculpatory evidence, this claim is also time-
barred.2
As to Issue 2, State v. Middlebrooks3 does not apply. There was adequate
proof of premeditation beyond a reasonable doubt to sustain a conviction for
common law murder. State v. Coe, 655 S.W.2d 903, 912 (Tenn. 1983). There was
no double counting. See Schad v. Arizona, 501 U. S. 624 (1991).
As to Issues 3 through 10, all of these issues have either been waived,
previously determined on direct appeal and/or time-barred. Furthermore, our review
of these issues indicates each to be without merit.
As to Issue 11 relating to the alleged denial of an effective review of the
death sentence, the issue has been waived, previously determined on direct appeal
by the Tennessee Supreme Court4 and is time-barred.
As to Issue 12, Coe’s claims of ineffective assistance of counsel have been
waived and are time-barred. With regard to the request for funds for investigative
2
This claim is not a “later arising” claim under Burford v. State, 845 S.W.2d 204
(Tenn. 1992). See Sands v. State, 903 S.W.2d 297 (Tenn. 1995). This court in Freeman v.
Jeffcoat, C.C.A. No. 01A01-9103-CV-00086 (Tenn. Crim. App. filed August 30, 1991, at
Nashville) authorized access to police records pursuant to the public records act. This
petition was filed more than three (3) years after this opinion.
3
840 S.W.2d 317 (Tenn. 1992).
4
State v. Coe, 655 S.W.2d at 913.
4
purposes, Coe has not made a proper threshold showing of the need for such
funds. See Owens v. State, 908 S.W.2d 923 (Tenn. 1995).
As to Issue 13 alleging that electrocution constitutes cruel and unusual
punishment, this issue has been waived, previously determined on direct appeal by
the Tennessee Supreme Court5 and is time-barred. Furthermore, the allegation is
without merit.
As to Issue 14 relating to the alleged denial of access to counsel during trial,
this issue has been waived and is time-barred.
As to Issue 15 alleging the death penalty deprives Coe of his fundamental
right to life, this issue has been waived and is time-barred. This issue is also
without merit.
As to Issue 16 alleging Coe’s original arrest was unlawful, this issue has
been waived and is time-barred.
As to Issue 17 which is a broad allegation that the cumulative effect of errors
rendered the trial fundamentally unfair, this issue has been waived and is time-
barred.
The judgment of the trial court is AFFIRMED pursuant to Rule 20, Tennessee
Court of Criminal Appeals.6
JOE G. RILEY, JUDGE
CONCUR:
JOE B. JONES, PRESIDING JUDGE
JOHN H. PEAY, JUDGE
5
State v. Coe, 655 S.W.2d at 913.
6
Since Coe was successful in the United States District Court in having all of his
convictions and sentences vacated, it is certainly arguable that this entire appeal is now moot.
We do not reach this issue, however, since the appeal is without merit for the other reasons
set forth in this order.
5