IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
May 3, 2001 Session
DAVID EARL MILLER v. STATE OF TENNESSEE
Appeal by permission from the Court of Criminal Appeals
Criminal Court for Knox County
No. 47700 Ray Jenkins, Judge
No. E1998-00247-SC-R11-PD - Filed August 29, 2001
We granted petitioner, David Earl Miller’s application for permission to appeal to determine whether
this Court’s decision in State v. Brown, 836 S.W.2d 530 (Tenn. 1992) created a new state
constitutional rule regarding the elements of deliberation and premeditation. Petitioner claims that
Brown created a new state constitutional rule and that the jury instructions given at his initial trial
violated this rule by relieving the prosecution of its burden to prove the elements of premeditation
and deliberation beyond a reasonable doubt. Therefore, the petitioner argues that his conviction of
first-degree murder was not supported by sufficient proof. After due consideration, we conclude that
Brown did not announce a new state constitutional rule, did not implicate any constitutional right,
is not retroactive, and may not serve as the basis for post-conviction relief. Accordingly, we
conclude that the petitioner’s complaint about the jury instructions given at his initial trial has been
waived because it was not raised on direct appeal and that his complaint about the sufficiency of the
evidence to support premeditation and deliberation was previously determined by this Court on
direct appeal. Accordingly, the decision of the Court of Criminal Appeals is affirmed.
Tenn. R. App. P. 11; Judgment of the Court of Criminal Appeals Affirmed
FRANK F. DROWOTA, III, J., delivered the opinion of the court, in which E. RILEY ANDERSON, C.J.,
ADOLPHO A. BIRCH JR., JANICE M. HOLDER and WILLIAM M. BARKER, JJ., joined..
Mark Stephens, John Halstead, and Paula R. Voss, Knoxville, Tennessee, for the appellant, David
Earl Miller.
Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Daryl J.
Brand, Associate Solicitor General; Randall E. Nichols, District Attorney General; and Robert L.
Jolley, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.
W. Mark Ward, Memphis, Tennessee, for Amicus Curiae, Tennessee Association of Criminal
Defense Lawyers.
OPINION
I. Background
The petitioner, David Earl Miller, was convicted of first-degree murder for the May 1981
killing of 23-year-old victim, Lee Standifer.1 Upon finding that the murder was especially
heinous, atrocious, or cruel in that it involved torture or depravity of mind, the jury imposed a
sentence of death. This Court affirmed Miller’s conviction on direct appeal, but reversed the
sentence of death and remanded for a new sentencing hearing because the prosecution had been
erroneously permitted to introduce evidence about Miller’s prior arrests which had not resulted in
convictions. State v. Miller, 674 S.W.2d 279 (Tenn. 1984). In February 1987, a new sentencing
hearing was conducted, and the jury again sentenced Miller to death based upon its finding that
the murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of
mind. On direct appeal, this Court affirmed the sentence of death. State v. Miller, 771 S.W.2d
401 (Tenn. 1989). Thereafter, Miller filed a timely petition seeking post-conviction relief.2
Counsel for Miller presented his claims for post-conviction relief to the trial court. No witnesses
were called at the hearing; however, transcripts of the 1982 trial and the 1987 sentencing hearing
were introduced in support of Miller’s claims. The trial court denied Miller’s petition. Miller
appealed, raising eight issues, including his claims that the jury instructions given at his trial
relieved the State of its burden to prove premeditation and deliberation beyond a reasonable
doubt and that the evidence was insufficient to prove premeditation and deliberation beyond a
reasonable doubt. The Court of Criminal Appeals affirmed the trial court’s decision denying
post-conviction relief. Thereafter, we granted Miller’s application for permission to appeal and
now affirm the judgments of the trial court and the Court of Criminal Appeals.
II. Standard of Review
The standard of appellate review of post-conviction proceedings is familiar. We review
findings of fact de novo with a presumption that the findings are correct unless the evidence
preponderates against those findings. See Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001);
Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). We review questions of law de novo with
no presumption of correctness. Fields, 40 S.W.3d at 456-57.
III. Jury Instructions and Sufficiency of the Evidence
Relying upon this Court’s decision in State v. Brown, 836 S.W.2d 530 (Tenn. 1992),
Miller raises two related issues. First, he alleges that the jury instructions given at his trial
relieved the State of its burden to prove premeditation and deliberation beyond a reasonable
doubt and therefore violated his right to due process under the United States Constitution. See In
1
Comp lete descriptions of the evidence offered against Miller in the initial trial and in the new sentencing
hearing are containe d in this Cour t’s 1984 and 1989 published opinions. Resolution of the issues in this appeal does not
require ano ther summa ry of the proo f.
2
Miller’s petition was filed in 1992. Accordingly, this post-conviction action is governed by the post-conviction
statute effective at that time, Tennessee Code Annotated sections 40-30-101 through -124 (repealed 1995).
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re Winship, 397 U. S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Miller also argues that the
prejudicial effect of these unconstitutional jury instructions is clear because the evidence was
insufficient for any rational trier of fact to find the essential elements of deliberation,
premeditation, and lack of heat of passion beyond a reasonable doubt. Miller argues that these
issues are proper grounds for consideration in a post-conviction proceeding because this Court’s
decision in Brown announced a new constitutional rule that must be retroactively applied because
it enhances the fact-finding process of the trial. See Meadows v. State, 849 S.W.2d 748, 754
(Tenn. 1993) (discussing the circumstances that will require retroactive application of new state
constitutional rules). Apparently recognizing that there is no precedent supporting his position,
Miller says that the Court of Criminal Appeals in this case and in prior decisions has dealt only
with the retroactivity of Brown’s disapproval and abandonment of the “premeditation can be
formed in an instant” jury instruction and has failed to address the retroactivity of the core issue
of Brown: how to properly define deliberation apart from premeditation.
The State argues that Miller’s complaint about the jury instruction is waived because it
was not raised on direct appeal. See Tenn. Code Ann. § 40-30-112(b)(1) (repealed 1995).3 The
State also argues that the sufficiency of the evidence to establish premeditation and deliberation
may not be raised in this post-conviction action because it was previously determined by this
Court in Miller’s direct appeal. See Tenn. Code Ann. § 40-30-112(a) (repealed 1995); Miller,
674 S.W.2d at 282-83. The State also argues that Brown did not announce a new state
constitutional rule, did not implicate any constitutional right, is not retroactive, and may not serve
as the basis for post-conviction relief. See Tenn. Code Ann. § 40-30-105 (repealed 1995);4
Harris v. State, 947 S.W.2d 156, 174 (Tenn. Crim. App. 1996). Finally, the State asserts that
even if these claims are considered on the merits Miller is entitled to no relief because the jury
instructions given at his trial accurately stated the law and because the evidence offered
sufficiently established premeditation and deliberation.
We begin our analysis with Brown, in which this Court found that the evidence was
insufficient to establish deliberation and premeditation and modified the defendant’s conviction
from first- to second-degree murder. Id. at 537. In so holding, we reviewed many Tennessee
appellate court decisions and concluded that some of those decisions had blurred the distinction
between premeditation and deliberation – the essential elements of first degree murder. Id. at
537-44. We emphasized that “the courts of Tennessee should adhere to long-established rules of
3
Under the pre-1995 Post-Conviction Act, waiver applied “if the petitioner knowingly a nd under standingly
failed to present it for determination in any proceed ing before a court of co mpetent jur isdiction in whic h the ground could
have been pre sented.” Tenn. Code Ann. § 40-30-112(b) (1)(repealed 1995). A ground for relief was considered
previously determined “if a court of co mpetent jur isdiction had ruled on the merits after a full and fair hearing.” Tenn.
Code Ann. § 40-3 0-112(a ) (repealed 1995). See also House v . State, 911 S.W.2d 705, 710-11, 713-14 (Tenn. 1995)
(discussing wa iver and pr evious dete rmination).
4
This statute provid ed that “[r]elief un der this chap ter shall be gra nted when th e conviction or sentence is void
or voidable because of the abridgement in any way of any right guaranteed by the constitution of this state or the
Constitution of the United States, including a right that was not recognized as existing at the time of trial if either
constitution req uires retrosp ective app lication of that righ t.”
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law and that we should abandon the modern tendency to muddle the line between first- and
second-degree murder.” Id. at 542-43. We found support for this view in the 1989 statute,5
which had included both premeditation and deliberation in the definition of first-degree murder.
Id. As a result, we concluded that “it is prudent to abandon an instruction that tells the jury that
‘premeditation may be formed in an instant.’” Brown, 836 S.W.2d at 543. We also overruled
prior case law to the extent it had interpreted the fact of “repeated blows” to constitute sufficient
circumstantial evidence of premeditation and deliberation in and of itself. Id. at 543-44.
In Brown, contrary to Miller’s assertion, we did not announce a new rule of constitutional
law. In fact, we did not so much as refer to the state or federal constitution in our discussion of
the sufficiency of the evidence issue. We also did not declare or imply that the potentially
confusing “premeditation may be formed in an instant” instruction infringed upon a defendant’s
constitutional rights. Finally, we neither declared nor implied that the decision could or should
be applied to invalidate every first-degree murder conviction that had been previously obtained.
Indeed, the summary in Brown indicates the straightforward and routine nature of our holding:
[W]e do not condone the homicide in this case, or the sustained abuse of the
defenseless victim, Eddie Brown. We simply hold that in order to sustain the
defendant’s conviction, the proof must conform to the statute. Because the state
has failed to establish sufficient evidence of first-degree murder, we reduce the
defendant’s conviction to second degree murder and remand the case for
resentencing.
Id. at 544 (emphasis added). In Brown we simply reiterated that Tennessee law had for many
years required proof of both premeditation and deliberation to sustain a conviction of first-degree
murder, and we repudiated any prior, aberrant decisions blurring that dual requirement. To avoid
future blurring or confusion, we abandoned the jury instruction that advises “premeditation may
be formed in an instant,” and emphasized that the fact of “repeated blows” is not sufficient
circumstantial proof in and of itself to establish premeditation and deliberation. Id.
The Court of Criminal Appeals has uniformly recognized that Brown did not create a new
constitutional rule which must be given retroactive application. See, e.g., Lofton v. State, 898
S.W.2d 246, 249 (Tenn. Crim. App. 1994), perm. app. denied (Tenn. Feb. 27, 1995); Harris v.
State, 947 S.W.2d 156, 174 (Tenn. Crim. App. 1996), perm. app. denied (Tenn. Feb. 3, 1997);
Alley v. State, 958 S.W.2d 138, 154 (Tenn. Crim. App. 1997), perm. app. denied (Tenn. Sept. 29,
1997); Thompson v. State, 958 S.W.2d 156, 173 (Tenn. Crim. App. 1997), perm. app. denied
(Tenn. Oct. 20, 1997). The Court of Criminal Appeals has also appropriately recognized that this
Court’s abandonment of a potentially confusing jury instruction does not automatically mean that
5
See Tenn. Code Ann. § 39-13-202(a)(1) (1991 Repl.) (defining first-degree murder as the
"intentional, premeditated and deliberate killing of another"). The statute has since been amended and first-degree
murder is now defined as “a premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1)
(Supp. 2000). Proof of deliberation is no longer required.
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prior use of the abandoned jury instruction was constitutional error. See, e.g., Lofton, 898
S.W.2d at 250. The petitioner’s attempt to distinguish the issues he raises in this case from these
prior decisions refusing to apply Brown retroactively is unpersuasive. Accordingly, consistent
with Brown itself, and with every other appellate court decision addressing the issue, we
conclude that Brown did not create a new state constitutional rule, that the decision is not to be
given retroactive application, and that use of the abandoned jury instruction did not infringe upon
or implicate any constitutional right.
Having so determined, it follows that Miller’s challenge to the jury instructions given at
his initial trial must fail. As the State points out, this issue has been waived because it was not
raised in his direct appeal to this Court.6 See Tenn. Code Ann. § 40-30-112(b)(1) (repealed
1995).
Moreover, Miller’s related claim that the evidence was not sufficient to support the jury’s
finding of premeditation and deliberation was previously determined by this Court in his direct
appeal. See Tenn. Code Ann. § 40-30-112(a) (repealed 1995). The sufficiency of the proof as to
premeditation and deliberation was the second issue addressed in this Court’s opinion. See
Miller, 674 S.W.2d at 282. After stating that one of the defenses interposed at trial was that the
evidence was insufficient because the defendant was so intoxicated he could not commit
premeditated murder, we considered and rejected that claim, concluding that “[t]he jury was
properly charged on that issue and their verdict was approved by the trial judge.” Id. at 283.
Clearly the precise issue of sufficiency of the evidence of premeditation and deliberation about
which Miller now complains was previously determined and rejected by this Court on direct
appeal. This issue cannot be revisited in this post-conviction proceeding.
IV. Conclusion
For the reasons stated herein, we conclude that Brown did not announce a new state
constitutional rule and is not retroactive. Therefore, Miller’s claim regarding the jury instruction
given at his initial trial is waived and his claim regarding the sufficiency of the evidence is
previously determined. With respect to the other issues raised by Miller, we affirm without
discussion the decision of the Court of Criminal Appeals. It appearing that the petitioner is
indigent, costs of this appeal are taxed to the State of Tennessee for which execution may issue if
necessary.
6
Amicus Curiae, Tennessee Association of Criminal Defense Lawyers, argues that waiver shou ld not app ly
because the law conc erning delib eration was in a state of great disa rray at the time o f Miller’s trial, and as a result,
diligent counsel co uld not have recognize d or asserte d the issue. W ith all due respect, we must disagree. Amicus
Curiae’s argument is b ased on two faulty propo sitions. First, there is no indication in Brown that the law actually was
in a state of great disarray. The strongest words used in the Brown decision were “blurred” and “muddled”.
Furthermore, a diligent attorney is more, not less, likely to raise a n issue relating to a n area of the la w that is in a state
of great disarra y. Indeed, it see ms more r easonab le to conclud e that diligent co unsel is less likely to raise an issue when
he or she performs research and discovers that the law in an are a is well-settled and uniformly app lied. Amicus Curiae’s
arguments that waiver should not be applied are unpersuasive.
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___________________________________
FRANK F. DROWOTA, III, JUSTICE
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