Roy E. Keough v. State of Tennessee
356 S.W.3d 366
Tenn.2011Background
- Keough was convicted of first-degree murder and attempted first-degree murder in 1997; death sentence and a 40-year consecutive term were imposed and affirmed on appeal.
- Post-conviction petition filed December 12, 2000; counsel appointed; an amended petition with 18 grounds filed February 14, 2003.
- 2007 evidentiary hearings occurred; lead counsel was incapacitated; co-counsel had faded memory and a destroyed file, making testimony uncertain.
- Petitioner sought limited-scope cross-examination under Rule 28, restricting cross-examination to direct testimony and excluding questions about underlying facts of the crimes.
- Trial court denied the limited-scope cross-examination request, petitioner chose not to testify; post-conviction court and Court of Criminal Appeals denied relief.
- Court granted permission to appeal to determine whether Rule 28 governs cross-examination scope and whether self-incrimination rights apply in post-conviction proceedings, ultimately remanding for a new hearing under Rule 28,8(C)(1)(d).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 28,8(C)(1)(d) governs cross-examination scope in post-conviction cases | Keough argues for limited cross-examination under Rule 28,8(C)(1)(d) | State argues Rule 611(b) controls unless Rule 28 provides a specific limit | Rule 28,8(C)(1)(d) controls the scope of cross-examination in post-conviction proceedings |
| Whether the post-conviction petitioner’s self-incrimination rights apply to limit cross-examination | Keough invites Fifth Amendment and Tennessee constitutional protections | State contends no application in post-conviction context or beyond limited scope | Court declines to decide applicability of self-incrimination in post-conviction; relies on Rule 28 for relief and remand for limited cross-examination; leaves broader constitutional questions for another case |
| Whether the case should be remanded for a new post-conviction hearing | Limited-scope testimony is essential to prove ineffective assistance; cross-examination should be restricted | Procedural posture requires reconsideration under existing rules | Remanded for a new post-conviction hearing with testimony limited by Rule 28,8(C)(1)(d) |
| Whether appellate issues are pretermitted due to remand | Petitioner asserts multiple ineffective assistance claims | State asserts resolution depends on post-remand record | Other issues pretermitted pending new evidentiary hearing |
Key Cases Cited
- State v. McClintock, 732 S.W.2d 268 (Tenn. 1987) (balancing burden of proof in collateral proceedings)
- Luttrell v. State, 644 S.W.2d 408 (Tenn. Crim. App. 1982) (balances justice in collateral attacks)
- State v. Mallard, 40 S.W.3d 473 (Tenn. 2001) (premises Rule 28 as supplement to Act; inherent authority to promulgate rules)
- Thomas v. Oldfield, 279 S.W.3d 259 (Tenn. 2009) (statutory construction applied to rules of procedure)
- State v. Reid, 213 S.W.3d 792 (Tenn. 2006) (abuse of discretion standard for cross-examination decisions; pure law question for some issues)
- Pylant v. State, 263 S.W.3d 854 (Tenn. 2008) (remand for new evidentiary hearing in post-conviction context)