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Michael
Eugene SAMPLE
Classification: Murderer
Characteristics:
Robbery
Number of victims: 2
Date of murders:
August 29, 1981
Date of arrest:
Next day
Date of birth:
May 23, 1956
Victims profile:
Benjamin Cooke
and Steve Jones (store
clerks)
Michael Eugene Sample
and Larry McKay were convicted of two counts of felony murder each
for the shooting deaths of two Shelby County store clerks during a
1981 robbery.
Supreme Court of
Tennessee
Sample v. State
Michael Eugene SAMPLE, et al.
v.
STATE of Tennessee.
No. W1999-01202-SC-R11-PC.
August 02, 2002
E. RILEY ANDERSON, J., delivered
the opinion of the court, in which ADOLPHO A. BIRCH, JR., and
JANICE M. HOLDER, JJ., joined.
David M. Eldridge, Knoxville, Tennessee, and
Harry R. Reinhart, Columbus, Ohio, for the appellant, Michael
Eugene Sample.Michael E. Moore, Solicitor General; Jennifer L.
Smith and Erik W. Daab, Assistant Attorneys General; William L.
Gibbons, District Attorney General; and Reginald Henderson and
John W. Campbell, Assistant District Attorneys General, for the
appellee, State of Tennessee.
OPINION
We granted review in this post-conviction
capital case to address two issues: (1) whether the trial court
properly ruled that the petitioner's claim that the prosecution
suppressed exculpatory evidence was barred by the statute of
limitations; and (2) whether the trial court properly determined
that the jury's reliance on the felony murder aggravating
circumstance in imposing a death sentence for the offense of
felony murder in violation of article I, § 16 of the Tennessee
Constitution was harmless error beyond a reasonable doubt. The
Court of Criminal Appeals affirmed the denial of post-conviction
relief.
After carefully reviewing the
record and applicable authority, we hold that our decision in
Wright v. State, 987 S.W.2d 26 (Tenn.1999), did not create a per
se rule requiring the dismissal of all late-arising suppression of
exculpatory evidence claims, and that the record in this case
preponderates against the trial court's determination that the
petitioner's liberty interest in raising such an issue was
outweighed by the State's interest in finality. We therefore
remand for further proceedings on this claim. We further hold that
the violation of article I, § 16 of the Tennessee Constitution
under the present facts in the record was harmless error beyond a
reasonable doubt under State v. Howell, 868 S.W.2d 238 (Tenn.1993).
We therefore reverse the Court of Criminal Appeals' judgment and
remand to the trial court for further proceedings consistent with
this opinion.
BACKGROUND
Trial and Direct Appeal
The petitioner, Michael Eugene Sample, and a co-defendant,
Larry McKay, were convicted of felony murder and sentenced to
death for the 1981 killing of two men during an armed robbery in
Memphis, Tennessee. To place the issues raised in this appeal in
the appropriate context, we will briefly summarize the evidence
from the trial and sentencing.
Melvin Wallace, Jr., testified that on August
29, 1981, he entered the L & G Sundry Store and saw two employees,
Benjamin Cooke and Steve Jones, being held at gunpoint. Wallace
tried to flee, but was shot in the leg by the petitioner, Michael
Sample. While lying on the floor, Wallace heard Sample demand
money and threaten to kill everyone, and he saw McKay shoot Cooke.
When Sample realized that Wallace was still alive, he shot him
in the back; Sample then put a gun to Wallace's head, but it
misfired. Wallace and Sample engaged in a struggle, and Wallace
lost consciousness when the gun fired near his head. Wallace
survived the shootings, but Cooke and Jones were killed.
The day after the offenses, police officers
apprehended Sample and McKay and found a .32 caliber handgun in
their car. Bullets fired from this weapon matched those found in
all three victims. Two days after the offenses, Wallace
identified Sample and McKay from a lineup. At trial, Wallace
again identified Sample and McKay as the persons who committed the
offenses. A second witness, Charles Rice, testified that he fled
from the scene when he saw the robbery in progress; he likewise
identified Sample and McKay as the perpetrators. Both Sample and
McKay were convicted of two counts of felony murder.
At a sentencing hearing to determine punishment,
Sample introduced mitigating evidence that he was an
“exceptionally good” and “very conscientious” employee. Several
family members testified about Sample's work history, character,
and qualities as a husband, father, and son-in-law. Sample's
mother testified that he was a good son and asked the jury to
spare his life. Sample testified that he did not commit these
crimes and asked the jury to spare his life for the sake of his
son and wife.
The jury sentenced Sample to death based on
three aggravating circumstances: that he created a great risk of
death to two or more persons other than the victims who were
murdered; that he committed the murder to avoid, interfere with
or prevent a lawful arrest or prosecution; and that the murders
were committed in the course of committing a felony. See
Tenn.Code Ann. § 39-2404(i)(3), (6), (7) (Supp.1981).1
The convictions and sentences were upheld on direct appeal. State
v. McKay, 680 S.W.2d 447 (Tenn.1984), cert. denied, 470 U.S. 1034,
105 S.Ct. 1412, 84 L.Ed.2d 795 (1985).
Post-Conviction Proceedings
The present action for post-conviction relief
was filed in January of 1995.2
The petition alleged, among other grounds, that the prosecution
violated his rights to due process and a fair trial under the
Fourteenth Amendment to the United States Constitution and article
I, § 8 of the Tennessee Constitution by suppressing exculpatory
evidence. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10
L.Ed.2d 215 (1963); Johnson v. State, 38 S.W.3d 52 (Tenn.2001).
The petition also alleged that the jury's reliance upon the felony
murder aggravating circumstance violated article I, § 16 of the
Tennessee Constitution. See State v. Middlebrooks, 840 S.W.2d
317 (Tenn.1992).
The trial court initially dismissed the post-conviction
petition without requiring the State to file an answer, conducting
an evidentiary hearing, or addressing the merits of the issues
raised. When the dismissal was appealed, the Court of Criminal
Appeals recognized that the petition had been filed after the
expiration of the three-year statute of limitations then
applicable to post-conviction cases, see Tenn.Code Ann.
§ 40-30-102 (1990), but concluded that the trial court erred in
summarily dismissing the petition without determining whether the
exculpatory evidence issue should be heard as a “later-arising”
claim. The Court of Criminal Appeals further held that the trial
court erred in failing to determine whether the violation of
article I, § 16 of the Tennessee Constitution was harmless error
beyond a reasonable doubt. Sample v. State, Nos.
02C01-9505-CR-000131 and 02C01-9505-CR-00139, 1996 WL 551754, 1996
Tenn.Crim.App. LEXIS 597 (Sept. 30, 1996).
On remand, the trial court determined that
consideration of the exculpatory evidence issue was barred because
the petition had been filed after the three-year statute of
limitations. The trial court cited Wright v. State, 987 S.W.2d
26 (Tenn.1999), in which this Court held that a late-arising
exculpatory evidence claim was properly rejected because the
petitioner had not been denied a reasonable opportunity to
litigate the issue and the petitioner's liberty interests in
raising the issue were outweighed by the State's interest in
finality of judgments. The trial court also found that the
violation of article I, § 16 of the Tennessee Constitution was
harmless beyond a reasonable doubt.
On appeal following the remand, the Court of
Criminal Appeals affirmed the trial court's conclusion that the
exculpatory evidence issue was barred by the statute of
limitations, yet expressed concern that the decision in Wright may
unfairly prevent petitioners from litigating late-arising
exculpatory evidence issues through no fault of their own. The
appeals court also agreed with the trial court's determination
that the jury's reliance on the felony murder aggravating
circumstance in violation of article I, § 16 was harmless beyond a
reasonable doubt under State v. Howell, 868 S.W.2d 238 (Tenn.1993).
We granted this appeal.
EXCULPATORY EVIDENCE CLAIM
Suppressed “Brady” Evidence
The United States Supreme Court has held that
“suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is
material either to guilt or punishment, irrespective of the good
faith or bad faith of the prosecution.” Brady v. Maryland, 373
U.S. at 87, 83 S.Ct. at 1196-97.3
Evidence is favorable to an accused where it exculpates the
accused, mitigates the punishment, or impeaches the prosecution's
witnesses. See Johnson v. State, 38 S.W.3d at 55-56. Evidence
is material when there is a reasonable probability that the result
of the proceeding would have been different had the exculpatory
evidence been disclosed. Id. at 58.
The post-conviction petition and attached
exhibits in this case alleged that the prosecution violated these
due process principles by suppressing police records that included
numerous statements made by Melvin Wallace. For instance: Wallace
told Sgt. J.D. Welch that he did not notice Sample during the
robbery; Wallace told Sgt. Welch that he had been shot by McKay;
Wallace told Officer J.D. Douglas that he could identify McKay
but not the second man involved in the offense; and Wallace gave
physical descriptions that did not match either McKay or Sample.
The petition alleged that these statements were exculpatory and
material because they contradicted Wallace's critical eyewitness
testimony at trial.
In addition, the petition alleged that the
prosecution suppressed the following exculpatory evidence: reports
that Sample's fingerprints were not found at the scene of the
offenses; reports that other potential suspects were near the
scene at the time of the offenses; descriptions given to the
dispatcher that matched neither Sample nor McKay; descriptions
given to officers by witness Charles Rice that matched neither
Sample nor McKay; inconsistent statements made by Rice regarding
the offenses; and reports that drugs were commonly sold from the
L & G grocery store.4
The petitioner asserted that the claim was not
raised within the three-year statute of limitations because he was
unaware that the prosecution suppressed the exculpatory evidence
until he had access to police investigative files pursuant to the
decision in Capital Case Resource Center of Tennessee, Inc. v.
Woodall, No. 01A01-9104-CH-00150, 1992 WL 12217, 1992 Tenn. Ct.App.
LEXIS 94 (Jan. 29, 1992), which held that the Tennessee Public
Records Act 5
applies to criminal cases under collateral review. Moreover,
after remand, the petitioner asserted that he had requested
exculpatory evidence both before trial and after the Woodall
decision and that he did not obtain possession of the evidence
until September of 1993. The trial court nonetheless determined
that the claim was barred by the statute of limitations.
Statute of Limitations
At the time the petitioner filed this petition
for post-conviction relief, the Post Conviction Procedure Act
stated:
[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 the 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 (1990).6
The statute was applied prospectively, meaning that petitioners
whose cases were final before the statute was enacted were given
three years from the effective date of July 1, 1986, in which to
seek post-conviction relief. See State v. Masucci, 754 S.W.2d 90
(Tenn.Crim.App.1988). Because this Court decided the
petitioner's direct appeal in 1984, the parties agree that the
three-year statute of limitations began to run on July 1, 1986,
and that the present petition, filed in January of 1995, was filed
well after the limitations period expired.
Sample argues, however, that the exculpatory
evidence claim could not have been raised before the statute of
limitations expired because he did not have access to
investigative files until the decision in Woodall in January of
1992 and did not have actual possession of the exculpatory
evidence until September of 1993. Sample urges that application
of the statute of limitations would deny him a reasonable
opportunity to raise the claim and violate due process. The
State, which notes that Woodall was decided in January of 1992,
and that the petition was not filed until January of 1995,
maintains that the claim was barred by the statute of limitations
and that the petitioner was not denied a reasonable opportunity to
have the claim heard.7
Due Process
We first addressed whether due process may
require an exception to the post-conviction statute of limitations
in Burford v. State, 845 S.W.2d 204 (Tenn.1992). The petitioner,
whose post-conviction petition challenging his enhanced sentencing
as a persistent offender was filed after the statute of
limitations, argued that he could not raise the issue until prior
convictions used to enhance his sentence were set aside in a
separate post-conviction suit in another county. Id. at 205.
We recognized that although the State has a
legitimate interest in preventing the litigation of stale claims
by enacting statutes of limitations in post-conviction cases, “due
process requires that potential litigants be provided an
opportunity for the presentation of claims at a meaningful time
and in a meaningful manner.” Id. at 208. In weighing the
interests of a petitioner against the interests of the State, we
said that “the test is whether the time period provides an
applicant a reasonable opportunity to have the claimed issue heard
and determined.” Id. at 208. Accordingly we concluded that
strict application of the statute of limitations to prevent the
petitioner from challenging his improperly enhanced sentence under
the unusual procedural circumstances in Burford violated due
process. Id.
In applying Burford, we have since clarified
that due process may prohibit strict application of the statute of
limitations in a post-conviction case “when the grounds for relief,
whether legal or factual, arise after ․ the point at which the
limitations period would normally have begun to run.” Sands v.
State, 903 S.W.2d 297, 301 (Tenn.1995). In such a case, the
court must determine whether application of the limitations period
would deny the petitioner a reasonable opportunity to present the
claim by balancing the “liberty interest in ‘collaterally
attacking constitutional violations occurring during the
conviction process,’ ․ against the State's interest in preventing
the litigation of ‘stale and fraudulent claims.’ ” Id. (citations
omitted); see also Caldwell v. State, 917 S.W.2d 662 (Tenn.1996)
(application of the three-year statute of limitations did not deny
petitioner a reasonable opportunity to raise a pretextual arrest
issue).8
As the parties recognize, we applied this
balancing analysis to circumstances similar to the present case in
Wright v. State, 987 S.W.2d 26 (Tenn.1999). In Wright, the
petitioner's first degree murder conviction and death sentence
were affirmed on direct appeal in 1988. In January of 1995,
after the three-year statute of limitations had expired, the
petitioner filed a post-conviction petition alleging that the
prosecution violated his right to due process by withholding
exculpatory evidence. As in the present case, the petitioner
alleged that the claim did not arise until he had access to
investigative records under the Court of Appeals' decision in
Woodall. The trial court nonetheless found that the claim was
barred by the three-year statute of limitations and dismissed the
petition.
On appeal, we agreed that the exculpatory
evidence issue was a later-arising claim and stressed that “the
critical inquiry [was] whether ․ application of the three-year
statute of limitations effectively denied Wright a ‘reasonable
opportunity’ to raise the issue.” Wright v. State, 987 S.W.2d at
29. We also acknowledged that the right asserted by Wright-the
denial of due process from the prosecution's suppression of
exculpatory evidence-was a personal trial right directly relating
to the justice or integrity of the conviction and sentence. Id.
at 30 (citing Brady v. Maryland, 373 U.S. at 87, 83 S.Ct. at
1197).
In applying the analysis, however, we
determined that the balancing otherwise “weigh[ed] heavily in
favor of the legitimate interests of the State,” inasmuch as the
post-conviction suit was filed ten years after the commission of
the offense, six and one-half years after the conviction became
final, three and one-half years after the three-year post-conviction
statute of limitations expired; and nearly three years after the
Woodall decision. See id. Moreover, we concluded:
[T]his passage of time is directly related to
the manner and means of litigating Wright's issue. The
availability of critical witnesses and their ability to recall and
relate details as to the alleged suppression of exculpatory
evidence and the facts of this offense are immediate and
significant concerns. Wright's mere allegation that the
prosecution suppressed exculpatory evidence does not warrant
relief. Instead, Wright must establish that favorable evidence
existed, that it was material to the defense, and that it was, in
fact, suppressed by the prosecution. Accordingly, ․ raising this
issue at this stage of the proceedings, would require extensive,
possibly expensive litigation.
Id. (citations omitted); see also Caldwell v.
State, 917 S.W.2d at 666 (“All the dangers inherent in the
litigation of stale claims-which the State has a legitimate
interest in preventing-appear to be present here”).
Despite the factual similarities
to the present case, we believe that the State reads Wright too
broadly in asserting that it requires the dismissal of all late-arising
exculpatory evidence claims. We did not establish such a per se
rule for rejecting exculpatory evidence claims in Wright or any
other case, nor have we ever created a specific limitations period
for late-arising claims in general. See Wright v. State, 987 S.W.2d
at 30; Burford v. State, 845 S.W.2d at 208. Instead, beginning
with Burford, we have consistently said that the principles of due
process are flexible and require balancing of a petitioner's
liberty interests against the State's finality interests on a case
by case basis. See Burford v. State, 845 S.W.2d at 207
(“Identification of the precise dictates of due process requires
consideration of both the governmental interests involved and the
private interests affected by the official action.”).
Accordingly, our review must consider that the
record in the present case differs in several important respects
from that in Wright. The post-conviction petition filed by
Sample was accompanied by exhibits and records replete with
apparent exculpatory evidence; in contrast, the petition in
Wright contained “mere allegations” of exculpatory evidence. See
Wright v. State, 987 S.W.2d at 30; see also Tenn.Code Ann.
§ 40-30-104(b) (1990) ( “The petition shall have attached
affidavits, records or other evidence supporting its allegations․”).9
When the court undertakes its review of the petition, exhibits,
and records, such considerations necessarily bear upon the
petitioner's liberty interest.10
Similarly, the record in this case, unlike
Wright, details the petitioner's efforts to obtain exculpatory
evidence both before trial, after trial, and after the decision in
Woodall. The petitioner asserted that the prosecution refused to
respond to his repeated requests and that he was unable to secure
the evidence until September of 1993, and then only through the
assistance of the Capital Case Resource Center. The State's sole
response is that the exculpatory evidence was available when
Woodall was decided in January of 1992; the State does not
explain why the prosecution did not respond to the repeated
requests of the petitioner and does not otherwise convincingly
respond to the assertions regarding the petitioner's efforts to
secure the evidence.11
Again, these considerations bear upon not only the significance
of the petitioner's liberty interest in asserting a late-arising
claim in a capital case but also the balancing of that interest
against the State's asserted interest.
Moreover, given these significant distinctions,
our decisions following Wright likewise bear upon the issue in
this case. In Williams v. State, 44 S.W.3d 464 (Tenn.2001), for
example, the petitioner alleged that his pro se petition for post-conviction
relief was untimely because his attorney failed to comply with the
procedural requirements for withdrawing from representation
following direct appeal and the petitioner did not know whether
his direct appeal remained pending. We remanded for an
evidentiary hearing to determine whether the petitioner was denied
a reasonable opportunity to seek post-conviction relief through no
fault of his own due to the possible misrepresentation of his
counsel. Id. at 471. Moreover, even though the petitioner
apparently had three months to seek post-conviction relief after
learning that his direct appeal had concluded, we remanded for a
determination of whether he had “time enough” to preserve a
reasonable opportunity to seek relief. See also Burford v. State,
845 S.W.2d at 208.
Similarly, a majority of the Court recently
held under analogous circumstances that due process mandated an
exception to the one-year statute of limitations where a
petitioner in a capital case sought a writ of error coram nobis
based on newly discovered evidence of actual innocence. Workman
v. State, 41 S.W.3d 100 (Tenn.2001).12
In relying on Burford and Williams, the Court observed:
Weighing the[ ] competing interests in the
context of this case, we have no hesitation in concluding that due
process precludes application of the statute of limitations to bar
consideration of ․ this case. [The defendant's] interest in
obtaining a hearing to present newly discovered evidence that may
establish actual innocence of a capital offense far outweighs any
governmental interest in preventing the litigation of stale claims.
Id. at 103. Significantly, the majority
stressed that the “delay in obtaining th[e] evidence [was] not
attributable to the fault of [the defendant] or his attorneys,”
and that the State had failed to respond to a prior subpoena that
sought the evidence. Id. Moreover, the majority concluded that
the fact that the defendant waited 13 months to raise the claim
did not eliminate the due process implications. Id. at 103-104.
In our view, these considerations are
applicable in the present case given the distinctions between it
and Wright. In Williams, for example, we emphasized that a post-conviction
petitioner should not be denied a reasonable opportunity to raise
a claim due to another's misconduct. In Workman, we emphasized
that newly found exculpatory evidence in a capital case may
warrant due process consideration where the fault in creating
delay in raising the issue does not rest with the petitioner.
Moreover, the fact that Sample waited approximately 16 months
after discovering the evidence before raising the issue is not
substantially different than the 13 month period in Workman. As
we said in Workman, “the time within which th[e] petition was
filed does not exceed the reasonable opportunity afforded by due
process.” Id. at 103.
In reaching this holding we disagree with the
dissent's conclusion that the petitioner is barred from hearing
his claim because he waited an unreasonable length of time to
raise the issue after obtaining the evidence. Initially, we
stress that the petitioner, despite his efforts, did not obtain
the exculpatory evidence until well after the three-year statute
of limitations had expired and therefore had no opportunity to
file the claim within the statutory period. In comparison, the
Court has granted due process relief in cases where the
petitioners discovered their late-arising claims for relief before
the statute of limitations had expired yet asserted the claims
after the statute expired. See Burford v. State, 845 S.W.2d at
209 (nine months remaining in the statutory period); Williams v.
State, 44 S.W.3d at 471 (three months remaining in the statutory
period).
In addition, although the petitioner did not
raise the issue until 16 months after obtaining the evidence, it
bears noting that there was at that time no statute of limitations
applicable to late-arising claims; indeed, the Court in Burford,
which was decided nine months before Sample obtained the evidence
in this case, declined to adopt a specific period for asserting
late-arising claims in favor of a case by case due process
analysis. Burford, 845 S.W.2d at 208; see also Wright, 987 S.W.2d
at 30.13
Moreover, the 16-month period under these circumstances must be
viewed with and mitigated by the fact that the prosecution
suppressed the evidence and prevented the issue from being
litigated for over 10 years. In balancing the interests of the
parties, there is simply no basis for holding that the 16-month
period in and of itself was unreasonable.
Accordingly, we conclude that our decision in
Wright v. State, 987 S.W.2d 26 (Tenn.1999), did not create a per
se rule requiring the dismissal of all late-arising suppression of
exculpatory evidence claims and that the record in this case
preponderates against the trial court's determination that the
petitioner's liberty interests in raising such an issue were
outweighed by the State's interest in finality. We therefore
remand for further proceedings on this claim.
MIDDLEBROOKS ERROR
As detailed above, the petitioner asserted that
the jury's reliance on the felony murder aggravating circumstance
to impose a death sentence for the offense of felony murder
violated article I, § 16 of the Tennessee Constitution as provided
in State v. Middlebrooks, 840 S.W.2d 317 (Tenn.1992). In
Middlebrooks, we held that the felony murder aggravating
circumstance set forth in Tenn.Code Ann. § 39-2-203(i)(7) (1982)
duplicated the elements of the offense of felony murder and, when
applied to a felony murder, failed to narrow the class of death
eligible murderers as required by article I, § 16 of the Tennessee
Constitution and the Eighth Amendment to the United States
Constitution.
The new constitutional rule announced in
Middlebrooks has since been applied retroactively in post-conviction
cases. See Barber v. State, 889 S.W.2d 185, 187 (Tenn.1994).
As both parties recognize, therefore, the jury's reliance on the
invalid felony murder aggravating factor was constitutional error
properly recognized in this post-conviction proceeding. The
critical inquiry is whether the error was harmless and whether a
resentencing hearing is required.14
In State v. Howell, we held that a Middlebrooks
error does not require a resentencing hearing if the reviewing
court 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.” 868 S.W.2d 238, 262 (Tenn.1993).
We stressed that the reviewing court must “completely examine
the record for the presence of factors which potentially influence
the sentence ultimately imposed,” including “the number and
strength of remaining valid 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 260-61.15
In reviewing the first factor under Howell,
there were two valid aggravating circumstances relied upon by the
jury in imposing the death sentences, in addition to the invalid
felony murder aggravating circumstance: that Sample knowingly
created a great risk of death to two or more persons other than
the victim murdered, during the act of murder; and that the
murders were committed to avoid arrest or prosecution. Tenn.Code
Ann. § 39-2404(i)(3), (6) (Supp.1981).16
With regard to the “great risk of death”
aggravating circumstance, this Court has said it “has been applied
where a defendant fires multiple gunshots in the course of a
robbery or other incident at which persons other than the victim
are present.” State v. Henderson, 24 S.W.3d 307, 314 (Tenn.2000)
(citation omitted). The trial court found that both Sample and
McKay “were convicted of murdering two people and in addition a
third person was shot and left to die.” The Court of Criminal
Appeals likewise observed that the evidence showed that “McKay and
Sample were acting jointly to kill three people, and they fired at
least seven gunshots between them.” The court reasoned that the
murder of Cooke placed two other victims, Jones and Wallace, at
great risk of death, and that the murder of Jones placed two other
victims, Cooke and Wallace, at great risk of death. We agree
that the facts revealed that Sample engaged in conduct that
knowingly created a great risk of death to two or more persons in
the store other than the murder victims. Indeed, we have
previously cited the present case as an example of this
aggravating circumstance being applied properly. See Johnson v.
State, 38 S.W.3d at 61; see also State v. Burns, 979 S.W.2d 276,
281 (Tenn.1998).
With regard to the “avoiding arrest or
prosecution” aggravating circumstance, this Court has frequently
said that this aggravating circumstance applies whenever the
evidence demonstrates that avoidance of arrest or prosecution was
one of the motives for the killing, and that it need not be the
sole motive. See State v. Henderson, 24 S.W.3d at 314; see also
State v. Bane, 57 S.W.3d 411, 423 (Tenn.2001); Terry v. State, 46
S.W.3d 147, 161 (Tenn.2001). The trial court found that it was
“abundantly clear from the record that the shootings occurred in
order for [Sample and McKay] to avoid arrest and prosecution.”
The Court of Criminal Appeals likewise correctly observed that
Sample and McKay killed two eyewitnesses to the robbery and then
fled after believing a third eyewitness had been killed.
In turning to the next Howell factor, we
observe that no additional evidence was admitted to support the
invalid felony murder aggravating circumstance and that it was
relied upon by the prosecution solely to prove the offenses in the
guilt phase. As we said in Howell, “an aggravating factor which
duplicates the elements of the underlying crime has less relative
tendency to prejudicially affect the sentence imposed than invalid
aggravating factors which interject inadmissible evidence into the
sentencing calculus, or which require the sentencing jury to draw
additional conclusions from the guilt phase evidence.” 868 S.W.2d
at 261. Accordingly, the jury in this case heard no more
evidence in support of the felony murder aggravating circumstance
than had already been presented to prove the offense of felony
murder during the guilt phase of the trial.
With regard to the emphasis placed on the
felony murder, the record reveals that the prosecution mentioned
the felony murder aggravating circumstance on several occasions in
its closing argument following the sentencing proceedings. As
the trial court found, however, “it was certainly mentioned that
the murders were committed during the commission of a robbery,”
but “more significance was attributed to the other aggravating
factors.” Similarly, the Court of Criminal Appeals noted that
while the prosecution's closing argument “did mention the felony
murder aggravator several times, this issue was not dwelled upon
or given undue emphasis.” Our review also reveals that the
majority of the prosecution's arguments was devoted to the
remaining two aggravating circumstances and rebutting the
mitigating evidence.
With regard to the final Howell factor-the
nature, quality and strength of the mitigating evidence-the trial
court found that Sample asked the jury to spare his life for his
wife and child and that he presented evidence regarding his family
support and work background. The Court of Criminal Appeals
summarized the mitigating proof as follows:
Two of Samples' foremen
testified on his behalf, stating that he was an ‘exceptionally
good’ employee, that he was ‘very conscientious,’ and that he had
‘no problem with the people’ he oversaw. Sample's sister
testified, explaining that Sample had left school after the ninth
grade to start working. [Sample's] mother-in-law and father-in-law
․ testified as to Sample's good character and as to his good
qualities as a husband, father, and son-in-law. His mother
testified ․ that Sample was a good son and [asked] the jury to
spare his life. Sample testified on his own behalf, stating that
he did not commit these crimes and asking the jury to spare his
life for the sake of his son and wife.
We have considered all of the relevant Howell
analytical factors in our review of the record, and have
considered and applied the requirement for individualized
sentencing. We agree with the Court of Appeals that while the
evidence in mitigation warrants some weight, the evidence of two
remaining aggravating circumstances was substantial. Moreover,
we agree that there was no additional or improper evidence of
felony murder during sentencing and that the prosecution did not
place great or undue emphasis on the felony murder aggravating
circumstance. Accordingly, we agree with the Court of Criminal
Appeals' that the verdict would have been the same had the jury
given no weight to the invalid aggravating circumstance.
CONCLUSION
After carefully reviewing the record and
applicable authority, we hold that our decision in Wright v. State,
987 S.W.2d 26 (Tenn.1999), did not create a per se rule requiring
the dismissal of all late-arising suppression of exculpatory
evidence claims and that the record in this case preponderated
against the trial court's determination that the petitioner's
liberty interests in raising such an issue were outweighed by the
State's interest in finality. We further hold that the violation
of article I, § 16 of the Tennessee Constitution under the present
facts in the record was harmless error beyond a reasonable doubt
under State v. Howell, 868 S.W.2d 238 (Tenn.1993). We therefore
reverse the Court of Criminal Appeals' judgment and remand to the
trial court for further proceedings consistent with this opinion.
Costs of this appeal are taxed to the State of Tennessee for
which execution may issue if necessary.
I fully concur in the majority decision but
feel compelled to write separately to respond to the dissent's
characterization of the majority's decision in Workman v. State,
41 S.W.3d 100 (Tenn.2001), as a “hastily considered decision-one
brought on by the pressures of extraordinary circumstances-and it
cannot be justified as a logical or natural progression of the law.”
To the contrary, from even a cursory reading it is clear that
the majority decision in Workman resulted from a principled
application of established law to the facts of a particular case.
The dissent's claim that the majority opinion in Workman is not
founded in logic or prior law is easily dispelled by simply
considering the language of the opinion itself, rather than the
dissent's hyperbole. In concluding that consideration of
Workman's petition for a writ of error coram nobis was not
foreclosed by the statute of limitations, the majority
meticulously applied the due process balancing test outlined in
Burford v. State, 845 S.W.2d 204 (Tenn.1992), Seals v. State, 23
S.W.3d 272 (Tenn.2000), and Williams v. State, 44 S.W.3d 464 (Tenn.2001).
In so holding, we stated as follows:
As in Burford, to determine whether due process
requires tolling in this case, we must consider the governmental
interests involved and the private interests affected by the
official action. In this case, as in Burford, the governmental
interest in asserting the statute of limitations is the prevention
of stale and groundless claims. The private interest involved
here is the petitioner's opportunity to have a hearing on the
grounds of newly discovered evidence which may have resulted in a
different verdict if heard by the jury at trial. If the
procedural time bar is applied, Workman will be put to death
without being given any opportunity to have the merits of his
claim evaluated by a court of this State.
Weighing these competing interests in the
context of this case, we have no hesitation in concluding that due
process precludes application of the statute of limitations to bar
consideration of the writ of error coram nobis in this case.
Workman's interest in obtaining a hearing to present newly
discovered evidence that may establish actual innocence of a
capital offense far outweighs any governmental interest in
preventing the litigation of stale claims. Workman has raised
serious questions regarding whether he fired the shot that killed
Memphis Police Lieutenant Ronald Oliver. If he did not fire that
shot, he is not guilty of the crime for which he is scheduled to
be put to death. These claims are based upon evidence obtained
from the Shelby County Medical Examiner's Office long after the
conclusion of the state post-conviction proceedings. The
defendant's delay in obtaining this evidence is not attributable
to the fault of Workman or his attorneys. In fact, Workman
previously had filed a subpoena requesting an x-ray of this type,
but it was not provided. No court in this State has actually
held a hearing to fully evaluate the strength of these claims.
Under such circumstances, Workman's interest in obtaining a
hearing on these claims clearly outweighs the governmental
interest embodied in the statute of limitations. Accordingly,
due process precludes summary dismissal of this claim based upon a
statutory time bar.
Id. at 103. We considered that Workman filed
the petition in state court thirteen months after discovery of the
evidence, but concluded that Burford and its progeny clearly
mandate that a petitioner be afforded a reasonable opportunity
after the expiration of the limitations period to present claims
in a meaningful time and manner. Under the circumstances of the
case, we held that thirteen months was not an unreasonable delay,
particularly in light of the twelve-month coram nobis statute of
limitations and “the magnitude and gravity of the death penalty.”
Id. at 103-104. In sum, the majority opinion in Workman
accurately applied settled law in affording the petitioner due
process relief from the coram nobis statute of limitations.
The dissenting opinion criticizes the majority
in Workman and apparently would have barred the claim because it
was brought thirteen, rather than twelve, months after the
evidence was discovered. In my view, the dissenting justice's
position that the claim should have been barred because it was
brought one month beyond the time initially afforded is impossible
to reconcile with Burford and Williams, decisions with which the
dissent professes to agree. The petitioner in Burford failed to
timely file his claim even though nine months remained on the
governing statute of limitations when he discovered the grounds
for his claim. Notwithstanding the remaining time on the statute,
this Court held that due process entitled him to additional time.
Likewise, in Williams, a decision authored by the dissenting
justice, the petitioner failed to timely file his claim even
though at least three months remained on the governing statute of
limitations. Nevertheless, a majority of this Court held that
due process tolled the statute of limitations despite statutory
provisions stating that the post-conviction statute of limitations
should not be tolled for any reason. Given the decisions in
Burford and Williams, I am bewildered by the dissenting justice's
initial and continuing “disapproval” of the majority decision in
Workman. Unlike the petitioners in Burford and Williams, the
petitioner in Workman had no time remaining under the governing
statute of limitations and no opportunity, reasonable or otherwise,
to bring his claim within the statute of limitations.
The dissent makes much of the fact that
Workman's petition was filed in state court shortly before his
scheduled execution and charges that the majority decision was
influenced by the timing of the filing. This charge has
absolutely no basis in fact. To the contrary, last minute
filings are disfavored. Nevertheless, surely the dissent would
agree that this Court should not refuse to apply existing and
established law merely because a claim is filed shortly before a
scheduled execution. Indeed, such a rule would be arbitrary and
the ultimate exaltation of form over substance.
As in Workman, the majority decision in this
case accurately applies existing and established law.
Accordingly, I concur with the majority decision.
In the majority's opinion today, I find much
with which to agree. For example, I concur in the majority's
holding that our decision in Wright v. State, 987 S.W.2d 26 (Tenn.1999),
did not create a per se bar against all later-arising claims
alleging suppression of exculpatory evidence. I also agree with
the majority that a defendant may bring such a claim,
notwithstanding the running of the statute of limitations under
the Post-Conviction Procedure Act, so long as any delay in filing
the petition for relief is reasonable under all the circumstances.
Finally, I agree that the Middlebrooks error here is harmless
beyond a reasonable doubt under the standard recognized by this
Court in State v. Howell, 868 S.W.2d 238 (Tenn.1993).
However, I write separately to respectfully
express my disapproval with the majority's reliance on Workman v.
State, 41 S.W.3d 100 (Tenn.2001), as authority for finding that
the defendant in this case made a timely filing for post-conviction
relief. I was one of two members of this Court who dissented
from the decision in Workman, and I regret that it has been used
today as authority to toll the post-conviction statute of
limitations for a sixteen-month period.
I. Shortcomings of Workman v. State, 41 S.W.3d
100 (Tenn.2001)
A mere two days before his scheduled execution,
Philip Workman filed a motion to reopen his post-conviction
petition under Tennessee Code Annotated section 40-30-217(a)(2)
(1997), claiming that he possessed new scientific evidence that
showed his actual innocence of the crime for which he was
sentenced to death. He also filed a motion seeking a writ of
error coram nobis. Both the trial court and the Court of
Criminal Appeals denied these petitions, finding that he was not
eligible to reopen his post-conviction petition under the statutes
and that his motion for the writ of error coram nobis was barred
by the statute of limitations.
On the very afternoon of his scheduled
execution, Workman appealed these findings to this Court, and in a
3-2 decision remanding the case to determine whether a writ of
error coram nobis should issue, Workman's imminent execution was
stayed with little more than an hour remaining. Although the
statute of limitations for a writ of error coram nobis is one year
from the date of the defendant's conviction, see Tenn.Code Ann.
§§ 40-26-105; 27-7-103, the Workman majority held that
considerations of due process tolled that limitations period to
allow the defendant to have a hearing on the issue. The factual
basis for doing so was cited only vaguely as “the circumstances of
the case.” See Workman, 41 S.W.3d at 101, 103-04.
I dissented from the majority's decision
because I believed then, as I do now, that the defendant had been
afforded all of the process-and more-that the Constitution
commanded was due to him. Prior to Workman, the lynchpin of the
due-process tolling analysis was the presence of circumstances
beyond the defendant's control which conspired to prevent the
defendant from making a timely assertion of rights.1
After all, only when the defendant is faced with such
circumstances does his or her liberty interest become sufficient
weighty to overcome the State's countervailing interests in
preserving the finality of judgments and preventing stale and
groundless claims.
However, when a defendant sits on his or her
rights, these governmental interests become even more compelling.
The Workman majority did not recognize this fact, and it instead
improperly focused its attention upon the defendant's delay in
obtaining the evidence rather than upon his lengthy delay in
bringing the evidence to the attention of a court. See Workman,
41 S.W.3d at 103. The fact remains, however, that Workman
delayed seeking a writ of error coram nobis for an additional
thirteen months after his receipt of this evidence. Even
granting for sake of argument that the one-year statute of
limitations did not begin running until he actually came into
possession of the evidence, Workman's claim would still have been
well beyond this “new” full limitations period.2
In essence, the Court's decision
in Workman can stand for three propositions: (1) that due process
considerations can toll a statute of limitations even without
evidence suggesting that the defendant was prevented by
circumstances beyond his or her control from bringing a timely
claim; (2) that due process considerations can toll a statute of
limitations even when the delay in seeking relief is the result of
a tactical decision-the overwhelming indication from the record
was that Workman's delay in seeking relief was a tactical decision
to delay his execution; and (3) that due process considerations
can toll successive “statutes of limitations,” so as to permit a
defendant as many as three bites at the post-conviction apple-Workman
was permitted a hearing eighteen years after the original statute
of limitations had run and after his “new” full statute of
limitations, beginning from the discovery of the alleged
exculpatory evidence, had run as well. These propositions have
no basis whatsoever in our prior decisions,3
and with them, the Court ushered in dangerous and ominous concepts
that may ultimately render a nullity all statutes of limitations
for post-conviction remedies.
Our new era of due-process tolling
jurisprudence is disconcerting principally because it is without
identifiable limits or boundaries. How is any court to know when
due process commands that a statute of limitations be tolled after
our holding in Workman? Prior to today, one could have
reasonably supposed that Workman was merely an aberration in the
law, with its result compelled by the fact that the defendant was
already in the chamber when the stay of execution was issued.
However, by relying upon Workman today, the Court has undermined
any such supposition, and it has instead breathed full life into a
decision that we should properly put asunder.
I am at a loss to know where this due-process
tolling path will end, but I suspect that it will end, if at all,
only after miring the law in a state of unmitigated turmoil. As
we can already see from a quick review of the cases from the Court
of Criminal Appeals, the intermediate court is unclear as to how
to apply Workman or what the limits of that case may be. Indeed,
given the vagueness of the factors supporting its holding, I
believe that attempting a consistent application of due-process
tolling after Workman is likely to be less fruitful than answering
any one of the imponderables offered in William Blake's timeless
poem, “The Tyger.”
At the end of the day, our continued reliance
on Workman as authority for any proposition only serves to further
compound our previous error. Plainly stated, Workman was a
hastily considered decision-one brought on by the pressures of
extraordinary circumstances-and it cannot be justified as a
logical or natural progression of prior law. I would therefore
prefer that we admit our analytical mistakes in Workman and either
overrule that decision or consign its fate to the realm of legal
oblivion.
II. Application of Workman to this Case
In the case before us today, we are again faced
with the question of whether due process considerations allow a
defendant to late-file a post-conviction petition after coming
into possession of alleged exculpatory evidence. The majority
concludes, after appropriately distinguishing Wright, that a
defendant may do so, provided that any delay in bringing the
petition is reasonable under the circumstances. As I stated
earlier, I fully concur with this proposition. However, the
majority then concludes that the sixteen-month delay in this case
is reasonable under the circumstances, if only because this time
period “is not substantially different than the period in Workman.” 4
It is with this conclusion that the majority and I must part ways.
Although the majority is correct that this case
is not “substantially different” from Workman, this fact should be
a basis for denying the defendant's petition, not for allowing it
to proceed. Just as the defendant in Workman unreasonably sat on
his rights as a tactical decision to delay his execution, so too
has the defendant in this case been guilty of an unreasonable
delay in asserting his rights. Indeed, like Workman, the
defendant here came into possession of evidence that he believed
warranted a new trial, but he did not seem at all interested in
seeking relief. He did not, for example, file a petition for
relief within a week, within a month, or even within a full year
of his discovery of this evidence. Instead, he waited nearly a
year and a half to bring this evidence to the attention of a court.
Again, even assuming, as I did in Workman, that this defendant
was somehow granted an additional twelve months after his
discovery of the alleged exculpatory evidence to file a petition
for relief, nothing here suggests that he is entitled to an extra
four months beyond that period in which to file. Because of this
considerable and lengthy delay, I do not agree that this
defendant's liberty interests are so weighty that “due process”
considerations must now intervene to assist him in his quest for a
new hearing.5
Therefore, contrary to the majority's holding,
I find no basis for holding that a sixteen-month delay in seeking
relief is reasonable under the circumstances of this case. It
does not appear that the defendant was prevented from filing his
petition for post-conviction relief due to any circumstances
beyond his control; rather, it appears that he was merely
dilatory in asserting his rights-a fact which does not properly
entitle him to due-process tolling considerations. In the end,
the majority's reliance on Workman as authority for its holding
today is disheartening, as we have now taken a second-but quite
critical-step in permitting “due process considerations” to erase
the significance of statutes of limitations in the post-conviction
context.
For these reasons, I respectfully dissent from
the Court's holding that Defendant Sample's filing for post-conviction
relief is timely.
FOOTNOTES
1. Present
versions of these aggravating circumstances are found in Tenn.Code
Ann. § 39-13-204(i)(3), (6), (7) (1997 & Supp.2001).
2. The
trial court found that the petitioner has filed six petitions for
post-conviction relief, all of which have been denied. Our
records indicate that the following post-conviction suits were
denied and also affirmed on appeal: McKay & Sample v. State, No.
25, 1989 WL 17507, 1989 Tenn.Crim.App. LEXIS 153 (March 1, 1989);
Sample & McKay v. State, No. 02C01-9104-CR-00062, 1995 WL 66563,
1995 Tenn.Crim.App. LEXIS 115 (Feb. 15, 1995); State v. McKay &
Sample, No. 02C01-9506-CR-00175, 1996 WL 417664, 1996
Tenn.Crim.App. LEXIS 460 (July 26, 1996).
3. Moreover,
the prosecution is responsible for any favorable evidence known to
others acting on the State's behalf, including the police. See
Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d
490 (1995); Johnson v. State, 38 S.W.3d at 56.
4. In
addition, the petition alleged that the prosecution withheld
exculpatory evidence regarding an earlier robbery committed in the
same area that the prosecution had attempted to link to Sample and
McKay.
5. Presently
codified at Tenn.Code Ann. § 10-7-505 (1999 & Supp.2001).
6. In contrast, the
current Post Conviction Procedures Act contains a one (1) year
statute of limitations. See Tenn.Code Ann. § 40-30-202(a)
(1997). Because Sample's petition was filed before the effective
date of the present act, it is governed by the Post Conviction
Procedure Act then in effect.
7. In
addition, the State notes that the claim was actually available
several months earlier pursuant to the Court of Appeals' decision
in Freeman v. Jeffcoat, No. 01A01-9103-CV-00086, 1991 WL 165802,
1991 Tenn. Ct.App. LEXIS 659 (Sept. 11, 1991, as corrected), which
reached a similar conclusion as Woodall.
8. In
adopting this balancing analysis, we have declined to create a
specific limitations period for later-arising claims. Burford v.
State, 845 S.W.2d at 208; see also Wright v. State, 987 S.W.2d at
30.
9. As
we have recognized in analogous circumstances regarding the
tolling of the statute for mental incompetency: “We emphasize
that to make a prima facie showing of incompetence requiring
tolling of the limitations period, a post-conviction petition must
include specific factual allegations that demonstrate [mental
incompetency]. Unsupported, conclusory, or general allegations
of mental illness will not be sufficient to require tolling and
prevent summary dismissal․” State v. Nix, 40 S.W.3d 459, 464 (Tenn.2001).
10. In
this case, the trial court appeared to make such an initial
determination by finding that Melvin Wallace's inconsistent
statements regarding identification were not material because he
was thoroughly examined at trial. We note, however, that the
trial court assessed only a portion of the witness's statements
and, moreover, did not make findings regarding all of the
allegedly exculpatory evidence asserted by the petitioner.
11. The
trial court's finding that the petitioner's efforts to acquire the
evidence amounted to a challenge to the conduct of his post-conviction
counsel is clearly erroneous; the efforts were directly relevant
to the question of whether the petitioner had a reasonable
opportunity to raise the issue. Similarly, the trial court's
observation that the petitioner did not comply with the Public
Records Act by requesting the records in person during business
hours is hardly dispositive of whether the petitioner had a
reasonable opportunity to raise the issue within the statutory
period.
12. Although
I joined Justice Barker in dissenting from the majority in Workman,
I fully respect that it is the law in this State and must be
applied when applicable. As such, I find that the reasoning in
Workman with respect to the appropriate due process balancing
analysis under Burford and its progeny is persuasive as applied in
this post-conviction capital case.
13. The
dissent writes that if the petitioner is “somehow granted an
additional 12 months after his discovery of the alleged
exculpatory evidence to file a petition for relief, nothing here
suggests that he is entitled to an extra four months beyond that
period․” (emphasis in original). The dissent's consideration of
a 12-month period in its analysis is misplaced given that the
statute of limitations applicable in this post-conviction case was
three years and there was no specific statutory period for raising
late-arising claims. Although the dissent faults the Workman
decision for allowing a 13-month delay where the statute of
limitations in a coram nobis case was 12 months, that statutory
period is not at issue here.
14. Although
we have remanded on the exculpatory evidence issue, we believe it
is appropriate to address the Middlebrooks issue as it presently
has been raised under the existing circumstances in this record.
Our conclusions will not preclude additional consideration of the
sentencing error as it may relate to the findings regarding the
exculpatory evidence. See Johnson v. State, 38 S.W.3d at 59 (consideration
of exculpatory evidence with respect to remaining aggravating
circumstances).
15. Initially,
we note that we have previously rejected the petitioner's argument
that an appellate court may not conduct harmless error review of
an invalid aggravating circumstance. See State v. Boyd, 959 S.W.2d
557, 562-63 (Tenn.1998). We have also previously rejected the
argument that the harmless error review must also weigh the effect
of alleged errors that are not properly before the post-conviction
court. See King v. State, 989 S.W.2d 319, 327 (Tenn.1999).
16. Presently
found at Tenn.Code Ann. § 39-13-204(i)(3), (6) (1997 & Supp.2001).
1. See
Burford v. State, 845 S.W.2d 204 (Tenn.1992); Seals v. State, 23
S.W.3d 272 (Tenn.2000); Williams v. State, 44 S.W.3d 464 (Tenn.2001).
2. As
the majority in this case is careful to note, there is no “due
process” statute of limitations for later-arising claims, as the
timeliness of filings in individual cases are determined by what
is reasonable under the circumstances. However, supposing that
the one-year limitations period, without more, would be the
presumptive outer limit of reasonableness for a writ of error
coram nobis, I still must question the propriety of granting a
hearing in the face of a thirteen-month delay. This is
especially the case when, as in Workman, no evidence shows that
the defendant was prevented from seeking relief due to
circumstances beyond his or her control.
3. Workman
clearly does not follow from our previous decisions addressing due-process
tolling. In Burford v. State, 845 S.W.2d 204 (Tenn.1992), the
defendant could not file within the applicable limitations period
because his claim, due to no fault of his own, had yet to accrue.
In Seals v. State, 23 S.W.3d 272 (Tenn.2000), the defendant
could not file within the applicable limitations period, due to no
fault of his own, because of questions of mental incompetence.
Even in Williams v. State, 44 S.W.3d 464 (Tenn.2001), the
defendant alleged that he could not file a petition for relief,
when due to no fault of his own, he labored for nine months under
the impression that he was still being represented by counsel in a
direct appeal to this Court.As the majority in Williams
acknowledged, the defendant in that case still had an additional
three months within the original limitations period to file a
post-conviction petition after he learned that he was no longer
being represented by counsel. However, although the record
contained sufficient cause for concern, it was insufficiently
developed to enable this Court to rule upon whether the timing of
the ultimate filing was reasonable. As such, a majority of this
Court remanded the case for such a determination. See 44 S.W.3d
at 471.Importantly, however, even an expansive reading of Williams
reveals that it is not at all similar to the situation presented
in Workman. Nothing in Workman suggested that the tolling of the
statute of limitations for an additional thirteen months was
reasonable under any set of circumstances presented in that case.
Indeed, even assuming that Workman was somehow granted an
additional twelve months to file after his discovery of the
alleged exculpatory evidence-a proposition which I do not grant-nothing
in that record suggested that he was entitled to the benefit of a
extra month beyond that period in which to seek relief.
4. As
the majority notes, Sample received the allegedly exculpatory
statements and reports in September of 1993. Nearly sixteen
months later, in January of 1995, he filed his post-conviction
petition based on this evidence.
5. I
take no issue with the majority's conclusion the statute of
limitations was tolled during the time that the State failed to
disclose the allegedly exculpatory evidence and reports. As in
any case in which the State withholds evidence in violation of
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215
(1963), the weight of the State's interests in finality and in
preventing stale claims is diminished vis-à-vis the defendant's
interest in personal liberty. However, once having received this
evidence from the State, it was incumbent upon the defendant to
then assert his rights in a timely and reasonable manner. The
longer the delay in asserting these rights, the more that the
defendant's interests in liberty must, of necessity, diminish.
E. RILEY ANDERSON
FRANK F. DROWOTA, III, C.J., filed a concurring
opinion.WILLIAM M. BARKER, J., filed a concurring and dissenting
opinion.
